NSW Food Authority v Nutricia Australia Pty Ltd

DECISION: The questions on the Stated Case are to be answered as follows (a) No; (b) No; (c) No; (d) No; (e) No; (f) No; (g) No.

CATCHWORDS: PROCEDURE - Rules of court - whether provision for administration of interrogatories in criminal proceedings - Part 75 rule 11 Supreme Court Rules 1970 - STATUTORY INTERPRETATION - Clear statement principle - integrity of the system of criminal justice - need for a clear statement before parliament will be taken to authorise a contempt of court - section 37 (1)(o) and (q) Food Act 2003 - PROCEDURE - Contempt - what constitutes - not mere advantage - improper interference with legal proceedings - exercise of statutory power to obtain documents and answers to interrogatories - section 37 (1)(o) and (q) Food Act 2003 - STATUTORY INTERPRETATION - Abridgement of the accusatory system - clear statement required to authorise steps to compel an accused to provide information for purposes of proceedings - role of derivative use - section 37 (1)(o) and (q) Food Act 2003

Australian Industries Preservation Act 1906 (Cth) Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1965 Food Act 2003 Income Tax Assessment Act 1936 (Cth) Supreme Court Rules 1970 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005

Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 Attorney-General v Times Newspapers [1974] AC 273 Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695 Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132, [2003] 130 FCR 37 Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 Bropho v Western Australia (1990) 171 CLR 1 Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 Chang v Laidley [2007] HCA 37; (2007) 81 ALJR 1598 Coco v The Queen (1994) 179 CLR 427 Commissioner of Taxation v De Vonk (1995) 61 FCR 564 Continental Liqueurs Pty Ltd v G F Heublein & Bro Inc (1960) 103 CLR 422 Daniels Corporation International Pty Ltd v The Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Durham Holdings Pty Ltd v New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Hamilton v Oades (1989) 166 CLR 486 Hammond v The Commonwealth (1982) 152 CLR 188 Harrison v Melhem [2008] NSWCA 67 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 Hutchinson v Jauncey [1950] 1 KB 574 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 Kable v Director of Public Prosecutions (1996) 189 CLR 51 Liyanage v The Queen [1967] 1 AC 259 Lauri v Renad [1892] 3 Ch 402 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 CASES CITED : Lodhi v The Queen [2007] NSWCCA 360 L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd (The Boucraa) [1994] 1 AC 496 MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304; (2007) 65 ACSR 299 Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 Minet v Morgan (1873) 8 LR Ch App 361 Moss v Donohoe (1915) 20 CLR 615 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Nicholas v The Queen (1998) 193 CLR 173 Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 Plewa v Chief Adjudication Officer [1995] 1 AC 249 Police Integrity Commission v Shaw [2006] NSWCCA 165; (2006) 66 NSWLR 446 Potter v Minahan (1908) 7 CLR 277 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 Rank Film Distributors Ltd v Video Information Centre (a firm) [1982] AC 380 Re Joseph Suche & Co Ltd (1875) 1 Ch D 48 Reid v Howard (1995) 184 CLR 1 Reid v Reid [1886] 31 Ch D 402 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 Ridgeway v The Queen (1995) 184 CLR 19 Rodriguez v United States 480 US 522 (1987) RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 Sorby v The Commonwealth (1983) 152 CLR 281 State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150 The Queen v Humby; Ex parte Rooney (1973) 129 CLR 231 The Queen v Ireland (1972) 126 CLR 321 The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 Yim v Industrial Relations Commission (NSW) [2007] NSWCA 77; (2007) 162 IR 62 Zainal bin Hashim v Government of Malaysia [1980] AC 734

PARTIES: NSW Food Authority (Applicant) Nutricia Australia Pty Ltd (Respondent)

COUNSEL: M Joseph SC, M P Cahill, A P L Naylor (Applicant) R Beech-Jones SC, A Mitchelmore (Respondent)

SOLICITORS: Mornay & Agnew (Applicant) Gilbert + Tobin (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 13664/07; 13666/07; 13669/07; 13678/07

LOWER COURT DATE OF DECISION: 2 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited [2007] NSWSC 1215

• 63 - THE COURT OF CRIMINAL APPEAL 2008/2552001

SPIGELMAN CJ HIDDEN J LATHAM J

Thursday 6 November 2008 NSW Food Authority v Nutricia Australia Pty Ltd

FACTS The NSW Food Authority instituted criminal proceedings against Nutricia Australia Pty Ltd for contraventions of s 21(2) and (3) of the Food Act 2003, with respect to the sale of certain products for infants and toddlers to Woolworths Ltd. The Authority was also investigating the institution of similar proceedings with respect to the sale of the same products to others.

Subsequently, the Authority issued six notices to Nutricia pursuant to s 37 of the Food Act 2003. The notices contained interrogatories and required the production of a range of documents.

In the court below, James J set aside two notices which contained an express statement that the information sought related to the charges in the proceedings already commenced. These notices asked questions the answers to which would establish elements of the criminal charges against Nutricia.

James J refused to set aside the other four notices, consisting of the same or similar questions, two of which related to sales to Coles Ltd and two of which did not specify the person supplied. His Honour found that these four notices were issued in relation to potential "further" offences and charges, and contained express or implied statements that any material produced would not be used in the existing charges.

The parties asked James J to state a case to the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912.

HELD Question (a) and (b): Rules of Court and interrogatories (Spigelman CJ, Hidden and Latham JJ agreeing)

1 Part 75 r 11 Supreme Court Rules 1970 does not permit the court to order interrogatories. In order to alter the usual criminal procedure under an accusatory system, Parliament must make a clear statement to that effect, which is absent here. [42] [44] [201] [202]

2 The failure of Pt 75 to incorporate specific provisions of the Uniform Civil Procedure Rules 2005 relating to interrogatories is deliberate and reflects the long established incidents of criminal procedure. [43] [201] [202]

3 As there is no power to administer interrogatories, the judge below committed no error in concluding that the Authority attempted to obtain an advantage in pending proceedings. [46] [201] [202]

Question (c): Interpretation of s37(1)(o) and (q) Food Act 2003 (Spigelman CJ, Hidden and Latham JJ agreeing)

4 The law of statutory interpretation requires Parliament to provide a clear statement before legislation will be interpreted to abrogate "fundamental principles, infringe rights, or depart from the general system of law". [97] [98] [201] [202] Durham Holdings Pty Ltd v New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340 ; Potter v Minahan (1908) 7 CLR 277; Bropho v Western Australia (1990) 171 CLR 1 ; Coco v The Queen (1994) 179 CLR 427 referred to.

5 The protection of the integrity of the system of criminal justice by the contempt of court doctrine is a fundamental principle. The administration of detailed interrogatories for the purpose of proving elements of an offence, the subject of extant charges, is such a significant impingement upon the integrity of the courts that Parliament should be understood not to intend that a statutory power can be so deployed in the absence of a clear statement to that effect. [105] [112] [136] [201] [202] Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 applied.

6 Authorising conduct which would otherwise be a contempt of court involves so fundamental a principle, such that considerations of administrative convenience and regulatory effectiveness do not justify an inference that Parliament intended to override the law of contempt. [123]-[129] [201] [202] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Commissioner of Taxation v De Vonk (1995) 61 FCR 564; Rodriguez v United States 480 US 522 (1987); Minet v Morgan (1873) 8 LR Ch App 361; The Queen v Ireland (1972) 126 CLR 321; Ridgeway v The Queen (1995) 184 CLR 19; Nicholas v The Queen (1998) 193 CLR 173; The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159 referred to.

7 Alternatively, the accusatorial system of criminal justice represents a "general system of law". The clear statement principle also applies to s 37 as it departs from the accusatorial system of criminal justice. [106] [157] [159]-[160] [201] [202] Bropho v Western Australia (1990) 171 CLR 1 referred to.

8 The process of reading down a power and determining the occurrence of a contempt of court should be kept distinct. However, this court should follow authority to the contrary. [119]-[122] [201] [202] Commissioner of Taxation v De Vonk (1995) 61 FCR 564 applied. Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 referred to.

Questions (e) and (f): Advantage and derivative use (Spigelman CJ, Hidden and Latham JJ agreeing)

9 A mere advantage for the prosecution in pending proceedings or an effect upon such proceedings will not constitute an impermissible interference with court proceedings so as to amount to a contempt of court. [145] [201] [202]

10 Absent a clear statement that the accusatory system is to be abrogated, a statutory power should not be read as authorising steps to compel an accused, the subject of extant charges, to provide information for purposes of those proceedings. [159] [201] [202] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 applied.

11 The formal presentation of a charge is a critical step in the criminal justice process, from which point the accusatory system of justice applies. Parliament should be taken not to have intended to impinge upon the accusatory nature of our system of criminal justice, after charges are lain, in the absence of express words or necessary intendment. [160]-[161] [201] [202]

12 The significant role in protecting the public that is served by the exercise of the powers in s 37(1)(o) and (q) of the Act indicates that Parliament necessarily intended that the powers could be exercised for purposes of investigation as to whether charges should be lain and to do so even if the prosecution may obtain an indirect advantage in extant criminal proceedings. [161]-[162] [171] [201] [202] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Commissioner of Taxation v De Vonk (1995) 61 FCR 564; Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 applied.

Questions (d) and (g): Contempt of court (Spigelman CJ, Hidden and Latham JJ agreeing)

13 The test for contempt is whether there is a "substantial risk of serious injustice", not whether there might be such a risk. [178] [180] [201] [202] Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; Hammond v The Commonwealth (1982) 152 CLR 188; Attorney-General v Times Newspapers [1974] AC 273; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695 applied. Commissioner of Taxation v De Vonk (1995) 61 FCR 564 doubted.

14 The relevant risk is impermissible interference with court proceedings by usurping the judicial function of compelling persons to answer questions and produce documents. It cannot be said that any advantage to the prosecution constitutes a usurpation. [143] [145] [182] [187] [201] [202]

15 In determining whether there has been a contempt of court, it may be necessary to balance competing public interests. The difficulties of enforcing a regulatory scheme designed to serve the public interest and the degree of connection between the exercise of the statutory power and extant proceedings are important elements to balance. [189]-[191] [197] [201] [202]

16 A balancing exercise is not an appropriate issue to raise on a stated case. [192] [201] [202] Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 applied.

17 The judge below committed no legal error in balancing and finding on the facts that there was no contempt in relation to four notices, nor in finding that there was contempt in relation to the first two notices. [193]-[194] [196] [197] [201] [202]

Answers to the Stated Case (Spigelman CJ, Hidden and Latham JJ agreeing)

18 The questions on the stated case are to be answered as follows (a) No; (b) No; (c) No; (d) No; (e) No; (f) No; (g) No. [200] [201] [202] THE COURT OF CRIMINAL APPEAL 2008/2552001

SPIGELMAN CJ HIDDEN J LATHAM J

Thursday 6 November 2008 NSW Food Authority v Nutricia Australia Pty Ltd Judgment 1 SPIGELMAN CJ: Justice James has stated a case to this Court pursuant to s 5AE of the Criminal Appeal Act 1912 submitting certain questions of law. The questions are consequential upon a judgment of his Honour in which he set aside two of six notices issued by the NSW Food Authority ("the Authority") upon Nutricia Pty Ltd ("Nutricia") to provide information and/or documents. His Honour refused to set aside the other four notices. The notices were issued pursuant to s 37 of the Food Act 2003 ("the Act"). (Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215.) 2 Prior to the issue of the notices the Authority instituted criminal proceedings against Nutricia for alleged contraventions of s 21(2) and (3) of the Act, with respect to the sale of certain products for infants and toddlers to Woolworths Ltd. The Authority is also investigating the institution of similar proceedings with respect to the sale of the same products to others, specifically Coles Ltd. 3 The proceedings already instituted, and the further proceedings contemplated, allege or will allege that the Nutricia products contained certain substances and adopted labelling, in breach of the Food Standards Code, which the Authority alleges constituted contraventions of the Act. 4 The six notices before James J were each headed: "Notice under s 37 of the Food Act, 2003 to obtain information, documents and evidence." 5 Each notice commenced with a statement by an "authorised officer" asserting a belief that Nutricia was "capable of providing information and/or documents that may be necessary to ascertain whether an offence under the Act has been committed by Nutricia Australia Pty Limited". 6 Each notice contained a detailed set of questions, accurately characterised as interrogatories in the submissions to this Court. Each notice also required the production of a broad range of documents. 7 The two notices which his Honour set aside were accompanied by an express statement that the information sought related to the charges in the proceedings already commenced (Notices 5 and 6). These notices ask questions the answers to which would establish elements of the criminal charges lain against Nutricia. 8 The four notices which his Honour refused to set aside were issued in relation to the investigation of "further" offences and made reference to "further charges". Two notices were expressly concerned with supply to Coles (Notices 2 and 3). The questions in those documents were the same as the questions addressed to Woolworths. Two other notices sought information and/or documents, without identifying the person supplied, and, accordingly, could extend to supply to Woolworths. One of these notices was accompanied by an express statement that any material produced would not be used in relation to the existing charges (Notice 4) and the other, his Honour held, contained an implied statement to that effect (Notice 1). His Honour drew the same inference with respect to Notices 2 and 3. 9 After his Honour delivered judgment in this matter the parties asked his Honour to state a case. The Authority sought to challenge his Honour's decision to set aside the two notices and Nutricia sought to challenge his Honour's dismissal of its application to set aside the other four notices.

The Stated Case 10 The Stated Case annexes each of the relevant notices, the content of which is summarised by his Honour as follows: "6 On 4 September 2007, an authorised officer of the NSW Food Authority (other than Ms Tumney) issued a notice to the Defendant pursuant to s 37 of the Food Act requiring it to answer questions and produce documents in relation to its sales of infant formula and follow-on formula during the period 1 January 2007 to 19 July 2007. The questions related to the substances FOS and GOS. Accompanying the notice was a letter dated 4 September 2007. A copy of the letter and this notice is annexed to this stated case at pages 64 to 69. The letter stated, inter alia: 'The NSW Food Authority is investigating whether Nutricia Australia Pty Limited has committed any further offences contrary to the Act. Information given and/or documents produced in response to the enclosed Notice may be used against Nutricia Australia Pty Limited if further charges are preferred under the Act.' 7 On 6 September 2007, an authorised officer of the NSW Food Authority (other than Ms Tumney) issued a notice to the Defendant pursuant to s 37 of the Food Act requiring it to answer questions and produce documents in relation to its sales of infant formula and follow-on formula during the period 1 December 2006 to 1 September 2007. The questions related to sales of these products to the Coles Group Limited and related entities. A copy of this notice is annexed to this stated case at pages 70 to 88. 8 On 6 September 2007, an authorised officer of the NSW Food Authority (other than Ms Tumney) issued a notice to the Defendant pursuant to s 37 of the Food Act requiring it to answer questions and produce documents in relation to its sales of toddler nutritional supplement during the period 1 December 2006 to 1 September 2007. The questions related to sales of this product to the Coles Group Limited and related entities. A copy of this notice is annexed to this stated case at pages 89 to 106. 9 Both of the notices dated 6 September 2007 were served under cover of a letter dated 6 September 2007. A copy of this letter is annexed to this stated case at page 107. The letter included the same statement that is set out in paragraph 6, in relation to these notices. 10 On 13 September 2007, an authorised officer of the NSW Food Authority (other than Ms Tumney) issued a notice to the Defendant pursuant to s 37 of the Food Act requiring it to answer questions and produce documents in relation to its sales of infant formula and follow-on formula during the period 1 December 2006 to 1 September 2007. The questions related to persons involved in the management of the Defendant company. Accompanying this notice was a letter dated 13 September 2007. A copy of the letter and this notice is annexed to this stated case at pages 108 to 124. The letter stated, inter alia: 'I enclose by way of service, a further notice issued by me today pursuant to s 37 of the Food Act 2003 (NSW) ('the Act'). The NSW Food Authority is investigating whether Nutricia Australia Pty Limited has committed any further offences contrary to the Act. Please note that any information given and/or documents produced in response to the enclosed Notice: 1 may be used against Nutricia Australia Pty Ltd in relation to further charges if and when preferred; and 2 will not be used in relation to the charges presently before the Court.' 11 On 13 September 2007, an authorised officer of the NSW Food Authority (other than Ms Tumney) issued a notice to the Defendant pursuant to s 37 of the Food Act requiring it to answer questions and produce documents in relation to its sales of infant formula and follow-on formula during the period 5 February 2007 to 20 June 2007. The questions related to sales of these products to Woolworths Limited. A copy of this notice is annexed to this stated case at pages 125 to 143. 12 On 13 September 2007, an authorised officer of the NSW Food Authority (other than Ms Tumney) issued a notice to the Defendant pursuant to s 37 of the Food Act requiring it to answer questions and produce documents in relation to its sales of toddler nutritional supplement during the period 5 February 2007 to 20 June 2007. The questions related to sales of this product to Woolworths Limited. A copy of this notice is annexed to this stated case at pages 144 to 161. 13 It was expressly acknowledged by the Plaintiff that the two notices issued on 13 September 2007 relating to sales to Woolworths Limited, sought to obtain evidence for use in the proceedings." 11 In the Stated Case, his Honour summarised his findings, with respect to the two notices that he set aside, as follows: "15 I found that the powers conferred by s 37(1)(o) and 37(1)(q) of the Food Act should be construed as not authorising the giving of notices for the sole or dominant purpose of obtaining evidence for use in pending proceedings, in circumstances where their issue would confer an advantage on the prosecutor which could not be obtained under the procedural rules of the Court in which the proceedings were pending. 16 I found that the giving of the notices would confer an advantage upon the Food Authority and the Plaintiff which they could not obtain under the procedural rules of the Supreme Court. 17 In relation to the notices issued on 13 September 2007 and referred to in paragraphs 11 and 12 above, I found that they were given for the purposes of obtaining evidence for use in the present proceedings. 18 I therefore concluded that the powers conferred by s 37(1)(o) and s 37(1)(q) of the Food Act should be construed so as not to authorise the giving of the notices issued on 13 September 2007 in relation to the sales to Woolworths (being those referred to in paragraphs 11 and 12 above). Alternatively, I found that the giving of these notices should be held to amount to a contempt of court or an abuse of process. 19 Accordingly, I set aside the two notices issued on 13 September 2007 relating to sales to Woolworths (being those referred to in paragraphs 11 and 12 above)." 12 With respect to the four notices that his Honour did not set aside, he summarised his findings as follows: "20 I found that the notices issued on 4 September 2007 and referred to in paragraph 6 and the notices dated 6 September 2007 referred to in paragraphs 7 and 8 and the remaining notice that was issued on 13 September 2007 referred to in paragraph 10 (the 'four notices') did not relate to all or did not specifically relate to the sales by the Defendant to Woolworths which are the subject of the present proceedings. 21 I also found that the notices issued on 6 September 2007 referred to in paragraphs 7 and 8 which related to alleged sales by the Defendant to Coles, asked questions which were identical or virtually identical to the questions asked in the notices referred to in paragraphs 11 and 12 (which I set aside) which related to alleged sales by the Defendant to Woolworths. 22 In relation to the notices dated 4 and 6 September 2007 referred to in paragraphs 6, 7 and 8 above I found that there was a strong implication from the letters accompanying those notices that information given in response to the notices would not be used in these proceedings. 23 In relation to the notice dated 13 September 2007 referred to in paragraph 10 above I found that the letter referred to in that paragraph gave an express assurance that information given in response to the notice would not be used in relation to these proceedings. 24 Having regard to the assurances that I found had been made at the time of the service of the four notices, I found that it would be a serious breach of the Plaintiff's obligations as a prosecutor for her or those representing her to attempt to use any information given in answer to those notices in the present proceedings. 25 While I accepted that the knowledge obtained by the Food Authority and the Plaintiff from the answers given to the four notices would result in them obtaining some advantages in the present proceedings, I did not accept that they would amount to misuse of the statutory powers or a contempt of court. 26 Accordingly, I declined to set the four notices aside." 13 The questions of law, which his Honour submitted to this Court, are: "27 At the request of the Plaintiff in relation to questions (a) to (d) and at the request of the Defendant in relation to questions (e) to (g) and pursuant to s 5AE of the Criminal Appeal Act 1912, I submit the following questions of law arising from or in reference to the proceedings, to the Court of Criminal Appeal for determination: (a) Did I err in law in finding that the general power to make orders and give directions conferred by Part 75 r 11(4)(a) of the Supreme Court Rules cannot be construed as extending to a power to require a defendant in summary criminal proceedings in the Court to answer interrogatories administered by the prosecutor where the defendant is a corporation? (b) Did I err in law in finding that the giving of notices to the Defendant requiring answers to questions about sales by the Defendant to Woolworths (being those referred to in paragraphs 11 and 12), was an attempt to obtain an advantage which could not be obtained in the pending proceedings? (c) Did I err in law in finding that the giving of notices to the Defendant requiring answers to questions about sales by the Defendant to Woolworths (being those referred to in paragraphs 11 and 12), was not authorised by s 37(1)(o) and s 37(1)(q) of the Food Act ? (d) Did I err in law in finding that the giving of notices to the Defendant requiring answers to questions about sales by the Defendant to Woolworths (being those referred to in paragraphs 11 and 12), should be held to amount to a contempt of court or an abuse of process? (e) Did I err in law in finding that the powers conferred by s 37(1)(o) and 37(1)(q) of the Food Act should be construed as authorising the giving of notices which had the effect of conferring an advantage upon a prosecutor in the conduct of proceedings which could not be obtained under the procedural rules of the Court in which the proceedings are pending if they were not issued with the sole or dominant purpose of obtaining evidence for use in those proceedings? (f) Did I err in law in finding that the issue of each of the four notices that I held to be valid, was authorised by s 37(1)(o) and 37(1)(q) of the Food Act ? (g) Did I err in law in finding that the issue of each of the four notices that I held to be valid, did not amount to a contempt of Court or an abuse of process?" 14 Questions (a) and (b) raise issues which are preliminary to his Honour's ultimate findings. It is convenient to deal with them together. Questions (c), (e) and (f) each involve the same issue of statutory interpretation and I will deal with them together. Questions (d) and (g) each raise the same issue of contempt and/or abuse of process and I will deal with them together.

Issues before the Court 15 The central issue arising under the Stated Case concerns the scope of the power of the Authority pursuant to s 37(1)(o) and s 37(1)(q) of the Act. In this regard, the critical step in the reasoning of James J is found in the following paragraph of his Honour's judgment, which judgment is annexed to the Stated Case: "[90] … [I]f a statutory power conferred in general terms is sought to be exercised by a party to pending court proceedings for the sole purpose or a dominant purpose of obtaining evidence to be used in the pending proceedings and in such a way as to obtain an advantage which could not be obtained under the procedural rules of the court in which the proceedings are pending, then there would be a contempt of the court in which the proceedings are pending; and, if the statutory power is conferred only in general terms and does not clearly authorise such an exercise, the statutory power will be construed so as not to authorise such a purported exercise of the power. Alternatively, such a purported exercise of the statutory power will amount to a contempt or an abuse of process, which the court in which the proceedings have been brought will restrain or, at least, not facilitate." 16 As appears from the questions in the Stated Case, his Honour determined the proceedings on the alternative bases of, first, reading down the statutory power and, secondly, restraining a contempt or abuse of process. (Compare questions (c) and (f) and questions (d) and (g).) 17 His Honour noted that the fifth and sixth notices were expressly acknowledged as having been served for the purposes of the extant proceedings and, accordingly, fell within the principle his Honour identified. 18 The first four notices, his Honour found, did not relate, either at all or did not specifically relate, to sales by the defendant to Woolworths, which is the subject of the proceedings. Furthermore, his Honour found that each of these notices was identified as relating to "further charges". His Honour inferred that information supplied in response to each such notice would not be used in the present proceedings. Indeed, as noted above, in one of the two notices capable of extending to supply to Woolworths, there was an express assurance in the covering letter that information would not be used in relation to the extant proceedings. Accordingly, his Honour held that the first four notices were not within the principle he identified. 19 The submissions in this Court on behalf of the Authority challenged his Honour's test. The Authority relied upon the decision by the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 that a corporation was not entitled to the privilege against self-incrimination, a principle now enshrined in s 187 of the Evidence Act 1965. The Authority submitted, it could not be contended that the interrogation of a corporation would be a contempt. 20 The Authority relied on the scope and purpose of the legislative scheme to submit that no reading down of the statutory power, in the way his Honour read it down, was appropriate. 21 The Authority further submitted, in the alternative, that the applicable principle was whether or not the corporation would receive a fair trial. Subject to the principle of a fair trial, which was not in issue in this case and does not arise on the Stated Case, the Authority submitted that a corporate respondent is not entitled to rights which find their origin in the privilege against self-incrimination. Accordingly, there was no contempt or abuse of process. 22 Nutricia sought to uphold his Honour's reasoning and to extend it. The principal submission on the part of Nutricia, of particular relevance to its contention that the first four notices should be set aside, was that his Honour adopted too narrow an approach when defining the scope of the exclusion. 23 Nutricia submitted that the relevant principle is not concerned only with the exercise of a power for the sole or dominant purpose of obtaining evidence for use in proceedings in such a way as to obtain an advantage not otherwise available. It submitted that the principle extends to any exercise of the power which has the effect of securing such an advantage, so as to amount to "an interference with the administration of justice". This is the basis of question (e), which assumes that the conferring of an advantage, not otherwise available, is sufficient to establish invalidity and that it is unnecessary to establish the purpose of obtaining evidence for use in the proceedings. I note that Nutricia's submissions in this Court adopt a characterisation of the "advantage" not expressed in the Stated Case question: the "advantage", it contends must constitute an interference with the administration of justice. 24 The Authority submitted that the questions posed with respect to the four notices not set aside are now hypothetical, because Nutricia has in fact answered the notices in full. Nutricia submits that the questions remain relevant because, if it were successful in having the notices set aside, it could contend that the answers given and documents supplied should not be admitted into evidence. 25 In this respect it is pertinent to repeat that his Honour held that there was an implied undertaking not to use the information supplied in answer to the first four notices at the trial of the extant proceedings. This finding is not in issue on the Stated Case. 26 I note, further, that one of the matters raised with respect to validity in Nutricia's submissions to this Court is the possibility of derivative use. I will discuss below whether it is appropriate to answer questions in the Stated Case insofar as derivative use is the basis of any relevant entitlement.

The Statutory Scheme 27 Section 37 of the Act is contained in Pt 4 "Inspection and Seizure Powers", in Div 1 "Inspection". Subsection (1) provides: "37(1) For the purposes of this Act, an authorised officer may, at any reasonable time, do any one or more of the following: (a) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises that the authorised officer reasonably believes are used in connection with the handling of any food intended for sale or the sale of food, or any food transport vehicle, (b) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises or food transport vehicle, in which the authorised officer reasonably believes that there are any records or documents that relate to the handling of any food intended for sale or the sale of food, (c) examine any food intended for sale, (d) open and examine any package that the authorised officer reasonably believes contains any food intended for sale or any equipment, (e) open and examine any equipment, (f) examine any labelling or advertising material that appears to the authorised officer to be intended for use in connection with any food intended for sale or any equipment, (g) subject to Division 1 of Part 6, for the purpose of analysing any food sold or intended for sale or for carrying out any other examination in order to determine whether the provisions of this Act or the regulations are being complied with, demand, select and obtain samples of any food, (h) for the purpose of analysis, take samples of water or soil or any other thing that is part of the environment in which any food is handled to determine whether that environment poses a risk to the safety of the food for human consumption, (i) take samples of any thing, other than for the purpose of analysis, that the authorised officer reasonably believes may be used as evidence that an offence has been, or is being, committed under this Act or the regulations, (j) examine any records or documents referred to in paragraph (b), make copies of those records or documents or any part of them and, for that purpose, take away and retain (for such time as may be reasonably necessary) any such records or documents or any part of them, (k) stop and detain any vehicle that the authorised officer is authorised by this subsection to enter, (l) open, or require to be opened, any container used for the conveyance of goods, or any package, that the authorised officer reasonably believes to contain any food sold or intended for sale, or any equipment, (m) take such photographs, films or audio or visual recordings as the authorised officer considers necessary, (n) take any measurements and make sketches or drawings or any other type of record, (o) require a person to provide information or answer questions in connection with the authorised officer's functions under this Act or to produce any record, document or thing that an authorised officer is authorised to examine under this Act, (p) require a person to state the person's name and residential address, (q) generally make such investigations and inquiries as may be necessary to ascertain whether an offence under this Act or the regulations has been or is being committed." 28 Section 37(1)(o) was the principal source of power purportedly exercised in the present proceedings. Reliance was also placed on s 37(1)(q). Each power must be interpreted in its context. Regard must be had to the Act as a whole, particularly because of the introductory words of s 37(1) itself, ie "For the purposes of this Act …". The immediate context of s 37 is significant because of the wide range of intrusive powers conferred by the various paragraphs of s 37(1). The very breadth of the power expressly conferred indicates the significance of the public interest to be served, on the one hand, and the extent of possible intrusion upon the lives of citizens, on the other hand. 29 The objects of the Act identify the significant public interests to be served by the exercise of the powers in s 37(1). Section 3 of the Act provides: "3 The objects of this Act include the following: (a) to ensure food for sale is both safe and suitable for human consumption, (b) to prevent misleading conduct in connection with the sale of food, (c) to provide for the application in this State of the Food Standards Code." 30 An "authorised officer", within s 37(1) means a person appointed under Div 3 of Pt 9. Section 114 of the Act makes provision for the appointment of qualified persons by, relevantly, the Authority and for the issue of certificates of authority to such persons. 31 Particularly by reason of the reference in s 37(1)(o) to the clause "in connection with the authorised officer's functions under this Act", it is pertinent to identify the functions of the Authority which are set out in s 108 of the Act: "108(1) The Food Authority has such functions as are conferred or imposed on it by or under this or any other Act. (2) In particular, the Food Authority has the following functions: (a) to keep under review the construction, hygiene and operating procedures of premises, vehicles and equipment used for the handling or sale of food, (b) to provide advice or recommendations to the Minister on the establishment, development or alteration of food safety schemes, (c) to regulate the handling and sale of food the subject of food safety schemes to ensure that it is safe and suitable for human consumption, (d) to encourage businesses engaged in the handling or sale of food to minimise food safety risks, (e) to undertake or facilitate the education and training of persons to enable them to meet the requirements of the Food Standards Code and food safety schemes, (f) to provide advice, information, community education and assistance in relation to matters connected with food safety or other interests of consumers in food, (f1) to make recommendations as to the maximum fees to be charged by local councils in relation to inspections carried out under section 37 by authorised officers of enforcement agencies (other than inspections in connection with premises the subject of a licence under a food safety scheme or the granting of a licence under a food safety scheme), (g) to carry out such research as is necessary in order to perform its other functions." 32 The intrusive powers in s 37 are reinforced by the search and seizure powers conferred upon authorised officers in s 38 and s 39. It may be that this power could extend to the seizure of documents which the s 37 notices require Nutricia to produce. The submissions in this Court focused on the requirement in the notices to answer questions. There was no contention that the Court should consider the issue of production of documents separately. 33 It is also pertinent to note that his Honour held that s 108 of the Act which confers a range of functions on the Authority does not confer a power to institute a prosecution and, accordingly, that s 109E of the Act, which empowers the Authority to delegate functions to an "authorised officer", does not enable such an officer to institute a prosecution. On this finding, which is not in issue on the Stated Case, the reference to "authorised officer's functions" within s 37(1)(o) does not extend to the institution of proceedings. However, the power in s 37(1)(q) is clearly related to such proceedings, albeit proceedings to be instituted by a prosecutor.

The Rules of Court (Question (a)) 34 Question (a) involves Pt 75 of the Supreme Court Rules 1970 which is concerned with criminal proceedings. Division 2 is concerned with summary jurisdiction. Rule 11, in this Division, has a heading "Pre-trial procedures". This purpose is confirmed in r 11(1) which states that: "11(1) The procedures prescribed by this rule shall be completed before the trial of a case commences." 35 Part 75 r 11(4)(a) states: "11(4) The Judge may, of his own motion or on the application of a party: (a) make orders and give directions for the just and efficient disposal of the proceedings;" 36 Part 75 r 11(4)(b) identifies a range of orders which may be made, without limiting the generality of par (a), including the giving of particulars, the supply of witness lists and statements, the supply of lists and copies of documents, admissions and directions relating to any alibi offence. 37 James J rejected a submission put to him to the effect that r 11(4)(a) should be interpreted as conferring a power to make orders for the administering and answering of interrogatories. He did so in the course of applying the test which he propounded, namely whether notices under the Act constituted an attempt to obtain an advantage which could not be obtained under the procedural rules of the court. Accordingly, the issue identified in question (a) was a stepping stone to the conclusion identified in question (b). 38 In submissions to this Court, the Authority asserted that, pursuant to s 257 of the Criminal Procedure Act 1986, the Rule Committee had power to make rules with respect to the administration of interrogatories to corporations. That section relevantly states: "257(1) The Rule Committee may make rules for or with respect to the practice and procedure of a court in the exercise of summary jurisdiction under this Part. (2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to: … (b) pre-trial procedures and related practices, …" 39 The authority also referred to Pt 75 r 11(4)(b) which relevantly provides: "11(4) The judge may, of his own motion or on the application of a party: … (b) without limiting the generality of paragraph (a), make such orders and give such directions as may be appropriate relating to: (vii) evidence …" 40 The Authority submitted that the Rule Committee had power to make rules with respect to the administration of interrogatories. However, this issue is not before the Court. Nor was it before James J. The direct issue is whether, pursuant to either the general power in r 11(4)(a) or the specific power in r 11(4)(b)(vii), the Court can order interrogatories. 41 Nutricia submitted that his Honour was correct to reject the Authority's contentions in this respect. Nothing in Pt 75 makes express provision for the administration of interrogatories. Nutricia further submitted that Pt 75 does incorporate specific provisions of the Uniform Civil Procedure Rules 2005 ("UCPR"), but the rule relating to the administration of interrogatories is not one of them. 42 Whether or not the Rule Committee has power to make a rule authorising interrogatories in a criminal trial to which the self-incrimination principle does not apply need not be decided. The scope of its powers is irrelevant. The proposition for which the Authority contends should be rejected on the basis of the accusatory system which I discuss below. If the drafter of r 11(4)(a) or of r 11(4)(b)(vii) had intended to alter the usual procedure in criminal prosecutions, s/he would not have relied on general words but would have provided a clear statement to that effect. For present purposes, it is sufficient to note that there is no such statement. In any event neither the words "disposal of the proceedings" nor the word "evidence" are apt to extend to interrogatories. 43 Furthermore, as Nutricia correctly submits, the failure to adopt the relevant provisions of the UCPR is deliberate and reflects the long established incidents of criminal procedure. 44 For these reasons the reference to "orders … for the just and efficient disposal of the proceedings" in r 11 (4)(a) and to "directions … relating to … evidence" in Pt 75 r 11(4)(b)(vii) should not be extended in the manner for which the Authority contends. Notwithstanding the breadth often given to the phrase "relating to", it should not be given so wide an interpretation as to authorise a direction which alters the traditional approach to criminal proceedings. A clear statement is required. 45 Question (a) should be answered: "No".

Obtaining an Advantage (Question (b)) 46 Question (b) is consequential upon question (a) because, the Authority submitted in this Court, if there was a power in the Court to order interrogatories in such proceedings then the Authority would not in fact receive any advantage. Accordingly, the answer "Yes" to question (a) would require the same answer to question (b). I have not been able to identify a separate question of law in the Authority's written submissions on this matter other than the consequential effect of the answer to question (a). Accordingly, I propose to treat this question as simply consequential upon question (a) and it should also be answered: "No".

The Case Law (Questions (c)-(g)) 47 There is no determinative High Court authority on the issues before the Court which arise under questions (c)-(g). The parties rely on observations made by particular judges in various judgments. This Court is invited to choose between a variety of specific observations, more often than not obiter dicta, to deduce the legal principles applicable to the issues before the court. However, none of the observations have authoritative force as ratio decidendi or as representing obiter dicta of a majority of judges. 48 I propose to set out the statements principally relied upon in this section of the judgment. I will identify below the propositions which are supported by these quotations and which, in my opinion, this Court should adopt and apply. 49 An appropriate starting point is the judgment of Mason J in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460, a case concerned with the power to serve a notice requiring the provision of information pursuant to s 155 of the Trade Practices Act 1974 (Cth). The issue before James J did not arise in Pioneer Concrete, because the Trade Practices Commission, which issued the notice, was not involved in civil proceedings to which the information sought pursuant to the notices related. 50 Mason J said at 473: "The possibility that the Commission could in exercising the power conferred interfere with court proceedings raises problems of a different order. A statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court." 51 His Honour went on to state at 473: "Section 155, cast as it is in general terms, does not address itself to the question of contempt of court. It should therefore be read as not authorizing any action on the part of the Commission which would amount to such a contempt. Whether this leads to the conclusion that any action by the Commission which amounts to a contempt would necessarily stand outside the power which the section confers is a larger and more difficult question. It is possible to read the section as conferring power on the Commission to act in accordance with its terms, but subject to the law of contempt, so that action taken under the section is subject to the exercise by the Federal Court of its contempt powers. This appeals to me as a more sensible construction of the sub-section, one which avoids locating the ambit of the power at the point, not readily identifiable, where contempt begins. There are advantages in keeping questions of power and contempt separate." 52 In Pioneer Concrete Gibbs CJ said at 467-468: "The second argument submitted on behalf of the appellants is that the power given by s 155 permits interference with pending judicial proceedings. No doubt it is right to say that the power conferred by the section might in some cases be used so as improperly to interfere with judicial proceedings. I incline to think that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court. As at present advised I would agree with the decision in Brambles Holdings Ltd v Trade Practices Commission (No. 2) (1980) 44 FLR 182; 32 ALR 328 . However, not every investigation into facts which are the subject of pending proceedings constitutes a contempt of court: see Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, and the authorities there discussed. In the present case it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s 155 would in the circumstances have that effect. The power is a drastic power and is capable of abuse and must be exercised with care. However it was not shown that its exercise in the present case would amount to a contempt of court." 53 The terminology in this passage of giving "a party advantages which the rules of procedure would otherwise deny him" is the formulation adopted by James J in the present case. It appears to originate in the judgment of Franki J in Brambles to which his Honour referred, as discussed below. I note that Gibbs CJ expressed the proposition in terms of his 'inclination', rather than as a determination. 54 In the subsequent case of Environment Protection Authority v Caltex, McHugh J said at 558-559: "In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460, at p 473), Mason J pointed out that a general power such as s 29(2)(a) should not be read as authorizing any action which would amount to a contempt of court. Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power 'would give such a party advantages which the rules of procedure would otherwise deny him' ( Pioneer Concrete (1982) 156 CLR, at p 468, per Gibbs CJ). But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation." 55 In Hammond v The Commonwealth (1982) 152 CLR 188, the Court was concerned with an investigation by a Royal Commission in which witnesses and co-accused of the appellant would be examined on matters directly arising in criminal conspiracy proceedings under the Crimes Act 1914 (Cth), against the appellant. Gibbs CJ, with whom Mason J agreed, said at 198: "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. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence." 56 Deane J said at 206: "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. For example, the existence of civil proceedings, in respect of certain alleged actions, will not ordinarily preclude proper administrative inquiries as to whether penal proceedings should be instituted in respect of those alleged actions. Thus, neither police inquiries nor committal proceedings constitute, in themselves, an improper interference with the proceedings of a court hearing a civil claim based on the subject matter of such inquiries. On the other hand, 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 an extracurial 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. Where a court is exercising the judicial power of the Commonwealth pursuant to s 71 of the Constitution, such interference involves a derogation of the constitutional guarantees that flow from the vesting of the judicial power of the Commonwealth in courts of law." [Emphasis added] 57 I note that in the passage set out at [52] above from Pioneer Concrete Gibbs CJ did not refer simply to an interference with a pending judicial proceedings. His Honour also characterised such interference as being 'improper'. The substantive legal principle which his Honour applied was the threat of a contempt of court. 58 Like Gibbs CJ in Pioneer Concrete, Deane J referred to "an improper interference with the due administration of justice" (Hammond at 206, emphasis added). His Honour also characterised the 'interference' as constituting a contempt. Similarly in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707, McHugh JA said: "Contempt of court is a generic but misleading expression which covers the various ways in which words or conduct unlawfully interfere with the administration of justice." [Emphasis added] 59 In Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118, Chief Justice Gleeson referred to a number of authorities including Hammond, and noted that they involved Commonwealth legislation in relation to which constitutional considerations require a different approach to a separation of power issue. In the course of that analysis Gleeson CJ said at 132E: "Nevertheless there are underlying issues as to the interference by the executive in the process of adjudication by courts which are of binding importance." 60 On appeal in Environment Protection Authority v Caltex supra, after referring to that passage, McHugh J said at 558: "In the federal sphere, a statute may be invalid unless it can be read down so as to be consistent with the doctrine of separation of powers. That sometimes means that a statute must be given a construction which, although open, is not the most natural reading of the provision. In the State sphere, however, the analogous rule cannot be put higher than that, in the absence of clear legislative indication to the contrary, a statute should not be read as authorizing an interference with the course of justice."

(See also Environment Protection Authority v Caltex at 507 per Mason CJ and Toohey J.) 61 I accept that case law on Commonwealth statutes must be treated with some care because of the possibility that the interpretation of such statutes has been affected by unstated assumptions arising from the strictness of Australian constitutional separation of powers jurisprudence. Nevertheless, separation of powers ideas underlie some of the fundamental rights and principles protected by the law of statutory interpretation.

62 As I have noted above, the Authority placed particular reliance on the High Court judgment in Environment Protection Authority v Caltex. That case, unlike the other authorities referred to in submissions, was concerned with a State regulatory statute and was not affected by the separation of powers issues which arise under a Commonwealth Act. (There was no suggestion that the principles referred to in the line of authority commencing with Kable v Director of Public Prosecutions (1996) 189 CLR 51 was engaged in this case.) 63 Environment Protection Authority v Caltex authoritatively established that corporations were not entitled to claim the benefit of the self-incrimination immunity. However, the case does not have a clear ratio decidendi. The majority judgments - Mason CJ, Toohey, Brennan and McHugh JJ - approached matters relevant to the present case in different ways. The dissenting judgment of Deane, Dawson and Gaudron JJ would have upheld the privilege. 64 In Environment Protection Authority v Caltex, documents were sought under both a statutory power and under a notice to produce issued pursuant to rules of court. The latter was held by Mason CJ and Toohey J to be effective, once it had been held that the privilege did not apply to corporations. Relevantly for present purposes, their Honours considered the implications of their finding for the statutory power at 506-507: "In the Court of Appeal, Gleeson CJ held that the power to obtain documents conferred by s 29(2)(a) of the Act could not be exercised solely for the purpose of gathering evidence in current proceedings. Gleeson CJ concluded, rightly in our view, that the power was circumscribed by the purpose for which it was given. His Honour went on to say ( Caltex Refining Co (1991) 25 NSWLR, at p 132): 'That does not include the purpose of gathering evidence for use in current criminal proceedings or of enabling the prosecution to circumvent the limitations which the process of the court places upon the power to compel production of documents.' His Honour was, of course, interpreting the statutory provision from a perspective which differs from ours. He was approaching the question from the viewpoint that the privilege against self-incrimination is available to corporations and that s 29 abrogates the privilege. Once it is accepted, in conformity with the view we take, that by resort to the court's own process in the form of a notice to produce it is possible to compel production of the information sought during the currency of the proceedings, we see no persuasive reason for construing s 29(2)(a) restrictively so that it becomes subject to a limitation which is not applicable to the notice to produce. As the court's own process can be used to compel production, resort to the statutory power for the same purpose cannot amount to an abuse of process. …" 65 Furthermore, their Honours emphasised the distinction that exists between a power to obtain documents and a power to compel answers to interrogatories at 502-503: " … [T]he privilege inhibits the production of books which might be used in evidence and are in the nature of real evidence which speak for themselves as distinct from testimonial oral evidence which is brought into existence in response to an exercise of investigative power or in the course of legal proceedings ( Controlled Consultants Pty Ltd (1985) 156 CLR at p 399, per Gibbs CJ, Mason and Dawson JJ; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at p 326, per Brennan J). Plainly enough the case for protecting a person from compulsion to make an admission of guilt is much stronger than the case for protecting a person from compulsion to produce books or documents which are in the nature of real evidence of guilt and are not testimonial in character." 66 To similar effect are the observations of Brennan J in Environment Protection Authority v Caltex at 516-517: "… When an investigative power to require the giving of information is conferred by statute, the power will ordinarily be construed as exhausted when criminal proceedings to which the information relates have been commenced and are pending. That is because the power is understood to be conferred for the purpose of the performance of the administrative function of determining whether proceedings should be instituted ( Huddart, Parker and Co Pty Ltd v Moorehead; Appleton v Moorehead (1909) 8 CLR 330 at pp 384-385; Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR at pp 341, 343, 346, 347, 350; Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1981) 55 FLR 77 at pp 94-95; 36 ALR 151, at pp 166-167, per Deane J (Federal Court), approved in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 per Mason J at p 474; Hammond v The Commonwealth [1982] HCA 42; 1982) 152 CLR 188). The reason why a restrictive construction is given to a statute creating such a power is, in my opinion, that a power to compel a person (whether natural or corporate) to give testimony of facts relating to an offence with which that person stands charged is wholly inconsistent with an accused's right of silence at the pending trial. The statute is read down to protect the right of silence ( Hammond v The Commonwealth ). But that reason has little cogency if it be applied to a statutory power (Aliter, if it be applied to the court's power to order discovery …) to require the production of documents which speak for themselves and which, if the statutory power were exhausted, could be searched for and seized under a warrant …"

(His Honour's reference to the "right to silence" should now be understood in terms of the accusatory system of criminal justice, which I discuss below. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 esp at [22]; Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 esp at [36], [171].) 67 Mason CJ and Toohey J in Environment Protection Authority v Caltex at 507-508 expressed reasons for concluding that the accusatory system of justice relied upon by Gleeson CJ in this Court, is not undermined if the privilege against self-incrimination is denied to a corporation. Their Honours again distinguished between producing documents and compelling answers to questions when they said at 503: "Accepting that … the privilege does protect the individual from being compelled to produce incriminating books and documents, it does not follow that the protection is an essential element in the accusatorial system of justice or that its unavailability in this respect, at least in relation to corporations, would compromise that system. The fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown would remain unimpaired, as would the companion rule that an accused person cannot be required to testify to the commission of the offence charged. To speak in this context of a violation of the 'right to silence' serves, in our view, only to confuse the issue ..." 68 Their Honours concluded with respect to the accusatorial system at 507-508: "Ultimately, it is clear that the rationales for the availability of the privilege against self-incrimination to natural persons, both historical and modern, do not support the extension of the privilege to artificial legal entities such as corporations. The privilege in its modern form is in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them. In respect of natural persons, a fair state-individual balance requires such protection; however, in respect of corporations, the privilege is not required to maintain an appropriate state-individual balance. Nor is the privilege so fundamental that the denial of its availability to corporations in relation to the production of documents would undermine the foundations of our accusatorial system of criminal justice. Legislative abrogation of the privilege demonstrates this, rather than demonstrating that the privilege is available to corporations …"

69 Of particular significance is the passage from the joint judgment of Mason CJ and Toohey J at 503-504: "Although the privilege has been described as "deep rooted in English law" ( Lam Chi-ming v The Queen [1991] 2 AC 212, at p 222), the legislatures have from time to time in different fields abrogated or interfered with the privilege in many of its aspects, including its application to the production of documents. The legislatures have taken this course when confronted with the need, based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained. The statutory provisions regulating examinations and inquiries into the affairs of corporations, whether undertaken by liquidators, inspectors or other investigators, are illustrations which are germane to the issue arising in the present case. That is because the necessity for these provisions demonstrates beyond any doubt that the shield of privilege as applied to corporations is a formidable obstacle to the ascertainment of the true facts in the realm of corporate activities. Indeed, the extent to which statute has interfered with the privilege in relation to corporations indicates that the privilege, at least in so far as it relates to production of corporate documents, is not a fundamental aspect of the accusatorial criminal justice system ( Istel Ltd v Tully [1993] AC at p 62, per Lord Ackner). The extent of abrogation also illustrates the point made earlier in these reasons that the effect of the privilege is to shield corporate criminal activity. In this respect, the availability of the privilege to corporations has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence. In the case of corporations, their books and documents constitute the best evidence of their business transactions and activities. It makes no sense at all to make the privilege available to a corporation in respect of these books and documents when officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally. Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation ( Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at pp 481, 483-485, per Stephen J; Penn-Texas Corporation v Murat Anstalt [1964] 1 QB 40, at pp 56, 67, 68-69)." 70 In this passage, their Honour's reasoning, in substance, balanced the public interest served by the statute, against the public interest served by the principle against self-incrimination and concluded that the privilege had "a disproportionate and adverse impact" on the ability to prosecute corporations for a criminal offence. 71 To similar effect are the reasons of Mason ACJ, Wilson and Dawson JJ in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 where their Honours said, again in the context of the privilege against self-incrimination: "In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings." 72 Their Honours went on to say at 343: " … [I]t is apparent that the purpose of conferring the power and imposing the obligation is to enable the Commission to ascertain whether any contravention of the Act has taken place, or is taking place, and to make the information furnished, the documents produced and the evidence given admissible in proceedings in respect of contravention of the Act, a purpose which would be defeated if privilege were available. As in Mortimer (1970) 122 CLR 493 the comment may be made that the provision is valueless if the obligation to comply is subject to privilege. Without obtaining information, documents and evidence from those who participate in contraventions of the provisions of Pt IV of the Act the Commission would find it virtually impossible to establish the existence of those contraventions. The consequence would be that the provisions of Pt IV could not be enforced by successful proceedings for a civil penalty under s 76(1)." 73 A first instance decision frequently referred to in subsequent cases, including by Gibbs CJ with prima facie approval in Pioneer Concrete, is that of Franki J in Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182. That case also involved a notice under s 155 of the Trade Practices Act 1974 (Cth) relating to issues relevant to pending proceedings in the Federal Court in which the Trade Practices Commission sought the imposition of a penalty under the Act. His Honour held that there was no relevant difference between s 155 and s 15B of the Australian Industries Preservation Act 1906 (Cth), which had been interpreted by the High Court and concluded that s 155 did not, as a matter of statutory interpretation, confer power to serve a notice in proceedings which had already been commenced. 74 The cases to which Franki J referred culminated in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 where, especially at 341, it is apparent that this line of authority turns on the proposition that the power to compel answers to questions was conferred for the purpose of determining whether an offence had been committed. (See also at 347.) Such a purpose will naturally lead to the conclusion that the use of the power at all, or at least against an accused, after proceedings have been instituted is ultra vires in the narrow sense of that term. There was no contention in the present case that s 37 of the Act is of this kind and, accordingly, these cases are not applicable. 75 In Brambles, Franki J went on to consider the distinct question whether, if there was no such power, the service of the notice constituted a contempt of court. His Honour did not consider the situation in which power could extend to serving such a notice, to determine whether doing so would constitute a contempt of court. Accordingly, although his Honour's observations are of some utility, they are not directly applicable to a case such as the present, where there is no suggestion that the power was conferred for the sole purpose of determining whether proceedings should be instituted. 76 On the issue of contempt his Honour said at 189-190: "It was common ground that the Commission could not get discovery or require answers to interrogatories since the proceedings were for penalties. Counsel for the respondents conceded that the question of whether the issue of the notice amounted to contempt was to be determined by whether what had been done had affected or could on any reasonable view have affected the proper resolution of issues between the parties in regard to the proceedings for a penalty. Senior counsel for the applicant argued that whether or not the Commission had the power to issue the notice, its issue was designed to secure to the Commission an advantage in the litigation which it could not have obtained otherwise because of its inability to require discovery or answers to interrogatories. It is an important aspect of this case that the issue of the notice and the compliance with it was a matter not authorized by statute and not within the control of the court. This distinction is important and distinguishes a number of cases where the relevant act was authorized by statute and was subject to the supervision and control of the court …" 77 His Honour concluded at 192: "In my opinion it is perfectly clear that the service of the notice was for the purpose of obtaining information from the applicant which could not be obtained by a process in the court because discovery and interrogatories were denied to the Commission. The function of the court is to determine issues according to law and the evidence presented to it and not to proceed in an inquisitorial manner to endeavour itself to ascertain the truth. It is clear therefore that the giving of the notice, which referred to the penalty provided by s 155(5), was an attempt to achieve by threats an advantage in proceedings already before the court which could not otherwise have been obtained and therefore, in my opinion, was a clear interference with the court." 78 And his Honour further concluded at 194: "In my opinion the issue of the notice in this case was a clear interference with the ordinary course of justice. It was a clear attempt to procure an advantage by threatening a party with criminal proceedings if it did not do something which the law did not require it to do." 79 As noted above, his Honour's references to "achieving advantages which could not otherwise be obtained", appear to be the origin of the formulation applied by James J in the present case. 80 Commissioner of Taxation v De Vonk (1995) 61 FCR 564 is, perhaps, the authority most closely analogous to the case before the Court. In that case the Commissioner of Taxation issued a s 264 notice under the Income Tax Assessment Act 1936 (Cth) requiring the respondent to give evidence at a time that criminal proceedings were pending against the respondent. It was held that the self-incrimination privilege had been abrogated by the statute. Accordingly, the situation of the individual in that case is the same as a corporation, like Nutricia, to which the self-incrimination privilege does not apply. 81 In De Vonk Foster J said at 569: "The privilege against self-incrimination is a fundamental safeguard given by the common law to an individual and can only be taken from him by the manifestation in statute of a clear legislative intention to do so. It is, nevertheless, personal to him. The doctrine of contempt of court, however, focuses upon a court's right and, indeed, its obligation, to protect the integrity of its operations and to prevent interference with its administration of justice. This may, of course, involve enforcing an individual's privilege against self-incrimination but it also encompasses a court taking other steps to ensure that its processes are not contaminated by unfairness. It does not follow, even where there is a statutory abrogation of the privilege against self-incrimination, that a court is not necessarily concerned to exclude other elements of unfairness or prejudice which may operate to the disadvantage of an accused contrary to the spirit of the common law. It is clear from Victoria v Australian Building Construction Employees' and Builders' Labourers Federation (1982) 152 CLR 25 that even in the absence of an intention to interfere with the course of justice, the establishment or continuation of an administrative inquiry will be a contempt if there is an actual interference with the administration of justice or 'a real risk, as opposed to a remote possibility' of such an interference (see per Gibbs CJ at 56)." 82 In the course of their joint judgment, Hill and Lindgren JJ said at 585: "Unless Parliament has acted to authorise an investigation in contempt of court (an authorisation not lightly to be inferred), it must be conceded that the coercive power of investigation conferred by s 264 could, in a particular case, be exercised in a way which would constitute a contempt. The question would, however, not ordinarily be likely to arise. If the power to interrogate under s 264 were exercised for a purpose of interfering with the administration of justice in a court, then no doubt the exercise of the power would be in contempt of that court. But so to use the power would be an abuse of the power which could be set aside. To conduct an investigation for a purpose of interfering with the administration of justice would not be a bona fide exercise of the power under s 264 at all. Nevertheless, circumstances could arise where, the power not being intended to be exercised for the purpose of interfering with the administration of justice, the asking of questions might nevertheless bring about a substantial risk of serious injustice." 83 Their Honours went on to say at 586: "It is clear enough that the putting of questions in an examination under s 264 might, in a particular case, constitute a contempt of court notwithstanding that the answers might not in any way tend to incriminate the person to whom the questions are addressed. For example, questions could be put under s 264 which touched upon areas the subject of civil proceedings which would not violate the privilege against self-incrimination but could represent a substantial interference with the civil proceedings. Thus in Brambles Holdings Ltd v Trade Practices Commission (No.2) (1980) 44 FLR 182, Franki J held that the issue of a notice pursuant to s 155 of the Trade Practices Act 1974 (Cth) where proceedings were pending in this Court to which the Trade Practices Commission was a party, constituted a contempt of court. It may, of course, also be noted that his Honour also held that there was no power to issue the notice for the collateral purpose of obtaining evidence in such proceedings. In the course of his judgment Franki J cited the comments of Lord Diplock in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309 to the effect that litigants should be able to rely upon there being no usurpation by any other person of the function of a court to decide cases in accordance with law once the dispute has been submitted to a court of law." 84 Their Honours posed the issue in De Vonk in the following way, at 588: "The question that arises in the present case is thus whether there is anything in the context of s 264 of the Act or in the language of ss 8C and 8D of the Taxation Administration Act or both, which leads to the conclusion that Parliament intended that the power to interrogate under s 264 could be used in circumstances where so to do might tend to constitute a real risk of interference with the administration of justice." 85 Their Honours, having earlier decided that the statute abrogated the privilege against self-incrimination, said at 588: "The considerations which, without more, might have suggested that the privilege of self-incrimination could not apply in the context of income tax are not present, at least in as acute a form, in the context of contempt of court. The evident purpose of ensuring a proper disclosure of income by taxpayers would not be frustrated if the power of investigation were curtailed in circumstances where litigation had been commenced and the power of interrogation might interfere with the administration of justice. Thus the only question seems to be whether the express requirement that questions be answered to the extent of the capability of the answerer should be taken as necessarily requiring questions to be answered irrespective of the impact upon the administration of justice." 86 Their Honours concluded at 588-589: "On the whole we think that the legislature should not be taken in s 264 of the Act and ss 8C and 8D of the Taxation Administration Act to have authorised the compulsory interrogation of persons in circumstances where so to do might constitute an interference with the administration of justice, civil or criminal. The decision to refuse to answer a question on the grounds of self-incrimination is a matter for the person to whom the question is put. It remains within the capability of that person to answer. Contempt of court is not a matter for the parties to litigation, or for that matter any person not a party; it is a matter under the sole control of the Court itself. If it is a contempt of court to require a person under compulsion to answer a question that person could not excuse the contempt. If Parliament intends to interfere with the administration of justice it should express that intention clearly or unambiguously." 87 There is a reasonably close analogy between De Vonk and the present case, but as the extracts from the judgments in that case make clear, a conclusion as to the proper interpretation of a statute cannot be transposed to a different statute. 88 Similar issues have also been considered by Austin J in Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 where his Honour was concerned with notices under s 19 and s 32A of the Australian Securities and Investments Commission Act 2001 (Cth). The notices in that case required persons to attend for examination and/or to produce documents and were served when there were extant proceedings for the winding up of several corporations in insolvency, in which orders were sought that individual defendants should be disqualified from managing any corporation because of alleged breaches of duty under the Corporations Act 2001 (Cth). 89 His Honour also considered the High Court authorities on s 15B of the Australian Industries Preservation Act 1906 (Cth), the judgment of Franki J in Brambles and the judgments in Pioneer Concrete and Environment Protection Authority v Caltex. 90 Austin J said: "[38] The Caltex case exposes the link between, on the one hand, the want of power issue and the contempt of court issue, and on the other hand, the question of availability of privileges to a defendant in criminal or civil penalty proceedings. The majority judgments make it clear, though in different ways, that the objection to issuing a statutory notice to a defendant after commencement of proceedings against it was undermined by the finding that the defendant had no available privilege. That finding meant that any implied limitation on the statutory power, as a matter of construction, would be irrelevant because the limitation could only prevent the section from being used to override a privilege. It also meant, absent any other circumstances suggesting the obtaining of an advantage through the use of the power, that there was no contempt in using the statutory provisions to achieve something that could also be achieved by other means, such as by search warrant or under the rules of court." 91 After considering additional authorities, his Honour said: "[44] It seems to me, in light of these authorities, that I must consider two questions in this case: · first, whether, as a matter of statutory construction, ASIC's power to employ ss 19 and 32A was extinguished once the proceeding (which is, in part, a civil penalty proceeding) was commenced, so that it would be a contempt of court for it to attempt to achieve advantages by using or threatening to use powers that are not available; and · secondly, if ASIC has the power to proceed with the notices, it should be restrained from doing so because its purpose is to use its powers to obtain information for use in a proceeding to which it is a party, in a manner that will give it an advantage beyond what is permitted to a litigant by the rules of court, and therefore in contempt of court, or there is a real risk that the continuing use its powers will have that affect." 92 His Honour noted at [48] that: "[S]ections 19 and 32A are each expressed in general terms, in words that are capable of applying after a proceeding has commenced". His Honour concluded at [59] that he should not read down the plain words of the sections "so as to prevent [them] from being used against a person other than the defendant in the civil penalty proceeding, just because the civil penalty proceeding has commenced". I note that this step in his Honour's analysis on the statutory interpretation issue referred to the fact that the notices in that case were issued to third parties. In the present case the notices are addressed to the defendant. 93 Austin J also considered submissions to the effect that the conduct amounted to a contempt of court because ASIC's purpose was to use its powers to obtain information for use in proceedings in which it is a moving party "in a manner that will give it an advantage beyond what is permitted to a litigant by the rules of court" [44]. His Honour rejected the proposition that, on the evidence, he should make a finding that this was ASIC's dominant purpose [77]. In the present case James J made such a finding in the case of two notices. 94 With respect to a submission that the material that was to be obtained would nevertheless be used to assist ASIC's case in the extant proceedings, Austin J said: "[79] In all probability, a substantial amount of the information gathered in ASIC's further investigation will be relevant to the proceeding and potentially evidence against one or more of the defendants. To that extent, I agree with counsel for the applicants that the information sought in the notices is 'clearly relevant' (to use Franki J's expression) to the issues in the proceeding. The sections invoked in the notices are substantially the same as those in the originating process. The persons sought to be examined are authorised representatives of the first defendant. The persons likely to conduct the examinations include Mr Thompson, who is likely to be a witness in the proceeding. The client file sought in the s 32A notice is the file of a client who invested in financial products which are the subject of the proceeding. To the extent that the investigation relates to contraventions by any of the 12 defendants of the statutory provisions listed in the notices, it may lead to ASIC obtaining evidence relevant to the present proceeding. To the extent that the investigation relates to contraventions by anyone else, such as the proposed examinees, or to some curial or extra-curial proceeding for relief other than relief flowing from contraventions by any of the 12 defendants (such as, for example, a proceeding for revocation of a financial services licence), the evidence will not or may not be relevant to the present proceeding. But that level of connection and overlapping does not itself mean that the continuation of the investigation will amount to a misuse of the statutory powers or a contempt of court." 95 His Honour further said: "[83] … It is true that if it continues the investigation, ASIC will be able to accumulate additional evidence which could be used at the trial. Every plaintiff is in that position, to the extent that it is open to the plaintiff to prepare for the trial by taking witness statements, issuing of subpoenas and notices to produce, and administering discovery and interrogatories. The advantage that ASIC has is that it can exercise compulsory powers overriding, to a degree, the privileges of examinees. On the other hand, ASIC is a public regulator charged with important responsibilities under the corporations legislation, and there would be a serious risk of impediment to its effectiveness if it were required to discontinue its entire investigation of a general subject matter just because it had initiated a legal proceeding to which that subject matter had relevance. That being so, my view is that there is no unfairness of the kind that would justify the court's intervention." 96 As in De Vonk, the particular statutory framework was a critical aspect of the analysis in Elm and explains the different result.

The Authority's Interpretation Issue (Question (c)) 97 The law of statutory interpretation requires Parliament to provide a clear statement before legislation will be interpreted to have particular consequences. There are various formulations of what degree of legislative advertence is required by this clear statement principle, for example, "irresistible clearness" or "unambiguously clear" or "unmistakeable and unambiguous language", all of which are equivalent. (See the list set out in Durham Holdings Pty Ltd v New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340 at 353 [44]; and see J J Spigelman "The Principle of Legality and the Clear Statement Principle" (2005) 71 Australian Law Journal 769 esp at 779.) 98 The clear statement principle does not require express abrogation. Necessary intendment is sufficient and that will be determined by the interpretation of the legislative scheme considered as a whole. 99 The case always cited as the origin of Australian doctrine on this matter is the judgment of O'Connor J in Potter v Minahan (1908) 7 CLR 277 at 304, where his Honour adopted a passage from the fourth edition of Maxwell on Statutes which stated: "It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used." 100 In the absence of clear High Court authority directly in point, this Court must decide whether the clear statement principle applies to the exercise of the powers in s 37, either avowedly for the purpose of extant criminal proceedings (on the test adopted by James J) or which exercise could, at some degree of probability, which it may be necessary to determine, have an effect on such proceedings (on the test propounded by Nutricia). 101 The issue before the Court on questions (c) and (f) is whether either the formulation applied by James J, or the broader formulation advanced on behalf of Nutricia, is a matter to which the clear statement principle applies so that s 37 of the Act must be read down and, if so, to what extent. Section 37 of the Act contains no express statement to the relevant effect. If the principle applies, the power should be read down. 102 In the present case the principle of a fair trial which, in the alternative, the Authority accepts to be the scope of the relevant principle, is not engaged. It was not suggested before James J or in this Court that the requirement to produce documents and answer questions pursuant to the notices would constitute an interference with a fair trial. 103 It is well established that the clear statement principle applies to a range of fundamental rights, liberties and immunities (see, eg Bropho v Western Australia (1990) 171 CLR 1 at 17-18; Coco v The Queen (1994) 179 CLR 427 at 437), including the right to the self-incrimination immunity. (See, for example, Hamilton v Oades (1989) 166 CLR 486 at 495.) However, Nutricia, as a corporation, is not entitled to rely on the self-incrimination immunity. 104 In my opinion, no fundamental right is involved in this case, on either the test adopted by James J or the broader formulation of Nutricia. There may, however, to use the alternative formulations from Potter v Minahan be a "fundamental principle" or a departure from "the general system of law". 105 The relevant fundamental principle is the need to safeguard the integrity of the system of, relevantly, criminal justice which is protected by the contempt of court doctrine. In my opinion this principle gives rise to a strong case for the application of the clear statement principle. 106 The relevant "general system of law" in issue, in my opinion, is the Australian accusatorial system of criminal justice. This is, in my opinion, of somewhat lesser strength. 107 As the joint judgment in Bropho said at 18: " … The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' ( Potter v. Minahan (1908) 7 CLR 277, at p 304, and see, also, Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, at p 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear."

108 There are a number of statements rejecting or doubting whether the approach in Potter v Minahan should be applied in particular contexts, in view of the scope and frequency of statutory intervention in certain spheres of law. (See, for example, Malika Holdings Pty Ltd v Stretton [2001] HCA 14: (2001) 204 CLR 290 esp at [27]-[30] per McHugh J; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at [36]. See also R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [61]-[69]; Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 at [114]-[115]; Police Integrity Commission v Shaw [2006] NSWCCA 165; (2006) 66 NSWLR 446 at [90]-[93]; Harrison v Melhem [2008] NSWCA 67 at [2]-[10]; [235]-[237].) 109 Similarly, in the cognate, albeit distinct, constitutional context, a reason for not finding any relevant infringement of the separation of powers for which the Constitution provides, is that Parliament has often amended the law of evidence. (Nicholas v The Queen (1998) 193 CLR 173 at [23]-[24], [25]-[26], [53], [55], [151], [161]-[162], [235]-[236], [238]. 110 To the same effect is the reliance on the frequency with which Parliament has overturned the self-incrimination immunity, to which Mason CJ and Toohey J referred in Environment Protection Authority v Caltex at 503-504 set out at [69] above) 111 There is legislation which has modified the accusatory system of criminal justice, for example, provisions imposing evidential burdens on accused. I am, however, unaware of legislation which, even in the absence of constitutional restraint, has clearly authorised a contempt of court. It is in part for this reason that I regard the latter as a stronger case for the application of the clear statement principle than the former. 112 The need for a clear statement before Parliament will be taken to intend that a statutory power can be exercised in such a way as would, in the absence of such authority, constitute a contempt of court is a proposition supported by the reasons of Mason J and of Gibbs CJ in Pioneer Concrete (set out at [50], [51] and [52] above) and of McHugh J in EPA v Caltex (set out at [54] and [60] above). Furthermore, this proposition is clearly adopted by the judgments in De Vonk (see especially the extracts quoted at [82], [84] and [86] above). 113 As I have indicated at [59]-[61] above, cases on Commonwealth statutes on separation of powers issues must be treated with care. However, nothing in the reasons in De Vonk suggests that the constitutional background was influential in their Honours' reasoning. This Court should follow a decision of another intermediate court of appeal, unless convinced it is plainly wrong, in the same way as would apply to a proposed departure from one of its own judgments. (See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135], where the High Court's reference to "non-statutory law" encompasses the law of statutory interpretation.) 114 I turn to the application of the principle to the particular statutory regime under consideration. 115 In view of my answer to question (a), there was, on the submissions limited by the Stated Case questions, no court procedure to obtain the documents, let alone to administer the interrogatories, to which the notices related. Accordingly, the basis of the reasoning of Mason CJ and Toohey J in Environment Protection Authority v Caltex, where their Honours refused to read down a statutory power to require production of documents which could be obtained by notice to produce, does not apply. (See [64] above. See also Austin J's analysis in Australian Securities and Investments Commission v Elm extracted at [90].) 116 Indeed, it is the dissenting judgment of Deane, Dawson and Gaudron JJ that is more relevant to the present case. Their Honours, being of the view that a corporation is entitled to rely on the self incrimination immunity, held that it could refuse, on that basis, to answer the notice to produce issued under the rules of court. The position was, in substance, the same in the present case. 117 In that context their Honours proceeded at 537 to read down the statutory power: " … The powers which are conferred by the Clean Waters Act upon authorized officers are clearly directed to the administrative control of the pollution of waters. This control includes requiring a person or authority to clean up polluted waters (ss 27 and 27A), ensuring compliance with the Act, and uncovering offences. But it does not extend to gathering evidence after a prosecution has been launched. The distinction is important because it is a distinction between acting in aid of an executive function and acting in aid of a judicial function, a distinction which was adverted to in Huddart, Parker and Co Pty Ltd v Moorehead ((1909) 8 CLR 330). If it requires clear language or a clear implication to exclude the privilege against self-incrimination, then legislation must surely be no less clear before it can be construed as empowering a prosecutor to obtain compulsorily from the defendant, after the prosecution has been commenced, the evidence which it requires to discharge the onus cast upon it to prove its own case. Furthermore, if s 29(2)(a) could be used after a prosecution had been launched, then the procedures of the Clean Waters Act would cut across the procedures specifically provided for the conduct of a prosecution by the rules of court. As Mason J observed in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd , a power given to an official for the purpose of performing that official's functions under an Act 'must be circumscribed by reference to this purpose' ((1979) 143 CLR 499, at p 535; see also Hammond v The Commonwealth (1982) 152 CLR 188 at p 206, per Deane J). Whilst, no doubt, the powers of an authorized officer under the Act extend to the commencement of a prosecution and even to the gathering of evidence for that purpose, the Act does not purport to govern the manner in which the prosecution is to be conducted. That is determined by the procedures of the court in which the prosecution is commenced. Thus, s 29(2)(a) does not empower an authorized officer to require the production of documents for the purpose of furnishing evidence for the prosecution in existing proceedings (See Hamilton v Oades (1989) 166 CLR 486 at p 498, per Mason CJ). Such a requirement would not be 'in the exercise of his power under the Act' …" 118 Furthermore, the distinction drawn by Mason CJ and Toohey J, as well as by Brennan J, (see at [65] and [66] above) between documents which have a physical existence and could, for example, be subject to a search and seizure power, on the one hand, and the power to compel answers to questions, is not applicable here. It was not suggested that the answers to any question in the Stated Case should differ because in some parts of each notice documents were required to be produced. 119 As quoted at [51] above, in Pioneer Concrete Mason J expressed a preference, without deciding, that such matters should be left to the substantive law of contempt, rather than reading down the power. I agree with his Honour that questions of power and contempt should be kept separate. If a court is asked to injunct a threatened contempt it should address that issue directly, rather than indirectly through the prism of statutory interpretation. A range of quite distinct considerations arise if the focus is squarely on injuncting a threatened contempt. 120 Attempts have been made to distinguish a "technical contempt" from a contempt that attracts a remedy. (See, for example, Hunt v Clarke (1889) 58 LJQB 490 at 491-492; B E Sufrin, N V Lowe, G J Borrie, The Law of Contempt, 3rd ed (1996) Butterworths at 76-78; D Eady and A T H Smith, Arlidge, Eady and Smith on Contempt, 3rd ed (2005) Sweet and Maxwell at 1-78 to 1-83.) However, a "technical contempt" is still a contempt, but the consequences may differ. (See Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367; Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 708; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 46-48.) Such distinctions are difficult to accommodate in a process of statutory interpretation. Questions of fact and degree arise when determining whether a contempt or abuse is threatened and, if so, whether an injunction should issue. Such issues, it appears to me, are best left to the consideration of contempt or abuse of process as the principal focus of attention. 121 Although De Vonk was based on a different statutory scheme, the approach of the Court in that case was not consistent with the preference expressed by Mason J in Pioneer Concrete. As I have said, even though I share his Honour's views, this Court should follow De Vonk unless convinced that it is plainly wrong. 122 I am not convinced to the requisite degree and, in any event, this matter has not been fully argued. 123 The considerations taken into account in cases like Environment Protection Authority v Caltex (see [69] above) and Pyneboard (see [71]-[72] above) with respect to the public interest served by the enforcement of the regulatory scheme are a crucial consideration when determining what the Parliamentary intention was with respect to the abrogation of a fundamental principle. In my opinion, authorising conduct which would otherwise be a contempt of court involves so fundamental a principle, that considerations of administrative convenience and regulatory effectiveness are not such as to justify an inference that Parliament intended to override the law of contempt, which became applicable when charges were laid. 124 The fact that the commencement of proceedings makes a critical difference to the weight to be given to the public interest in the enforcement of the regulatory scheme was emphasised by Hill and Lindgren JJ in De Vonk. (As quoted at [85] above.) 125 Furthermore, as the Supreme Court of the United Stated said in Rodriguez v United States 480 US 522 (1987) at 525-526: " … [N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." [Emphasis added] 126 The public interest in ascertaining the true facts of corporate compliance with a regulatory regime (as emphasised by Mason CJ and Toohey J in the passage set out at [69] above) cannot always prevail. Permitting other values of the law to have precedence does not always have a disproportionate effect on the ability of regulators to ascertain the facts. (the word 'disproportionate' is used by Mason CJ and Toohey J at [69] above). 127 In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court" (Minet v Morgan (1873) 8 LR Ch App 361 at 368), Vice-Chancellor Knight Bruce said:

"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination … Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much." ( Pearse v Pearse (1846) 1 De G & Sm 12 at 28-29; 63 ER 950 at 957)

128 The Vice-Chancellor went on to refer to paying "too great a price … for truth". This is a formulation which has subsequently been frequently invoked. (See, for example The Queen v Ireland (1972) 126 CLR 321 at 335; Ridgeway v The Queen (1995) 184 CLR 19 at 52; Nicholas v The Queen (1998) 193 CLR 173 at 196 [34], see also at 209 [76] per Gaudron J). On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to prevailing community standards." (The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159 at 194 [91] per Toohey, Gaudron and Gummow JJ).

129 The difficulties often attendant upon the enforcement of a regulatory statute are not, in my opinion, a decisive consideration in an interpretive exercise with respect to the period after the regulatory authority has determined that it has sufficient evidence to lay charges for an offence which it must establish beyond reasonable doubt. The degree of interference with the ability to ensure that the public interest, which the statute is designed to serve, is attenuated so that another public interest should be permitted to prevail. In my opinion, the laying of charges which submit the matter for judicial decision, should be regarded as a fundamental transformation of a character which Parliament should be taken to understand and respect. 130 There is a useful analogy from case law on another fundamental principle of our legal system, to which the clear statement principle applies - the approach to the interpretation of retroactive statutes. Such statutes are given retrospective application only to the extent necessitated by the clear intention of Parliament in the words of the statute. (See Reid v Reid [1886] 31 Ch D 402 at 408-409; Lauri v Renad [1892] 3 Ch 402 at 421; Moss v Donohoe (1915) 20 CLR 615 at 621; Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 at 724; Plewa v Chief Adjudication Officer [1995] 1 AC 249 at 257; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150 at [127]; Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [48]; Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 at 310-311; R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [45]-[46]; Chang v Laidley [2007] HCA 37; (2007) 81 ALJR 1598 at [82]-[83] per Hayne, Heydon and Crennan JJ.) This approach has particular application when legislation modifies fundamental principles of the criminal justice process. (See, for example, R v JS supra at [45]-[46].) 131 However, the degree of unfairness to the defendant has a role to play in determining what is required by way of a clear statement before the presumption of non-interference can be overcome. (See Secretary of State for Social Security v Tunnicliffe supra at 724; Plewa supra at 257; World Best Holdings supra at [59]; Chang v Laidley supra at [83]; Thaina Town supra at [131]; See also B Juratowich, Retroactivity and the Common Law (2008) Hart Publishing at 76ff.) 132 On this basis, authorities with respect to the application of retroactive laws accept that the fact that proceedings have been commenced introduces an added element of unfairness. Accordingly, a statute intended to have retroactive effect to some degree, is read down to restrict that effect so as not to apply to proceedings already commenced. (See Zainal bin Hashim v Government of Malaysia [1980] AC 734 at 742; World Best Holdings supra at [49]-[63]; Lodhi supra at 310; R v JS supra at [42]-[48]; Yim v Industrial Relations Commission (NSW) [2007] NSWCA 77; (2007) 162 IR 62 at [51]; Thaina Town supra at [130]. See also Re Joseph Suche & Co Ltd (1875) 1 Ch D 48 at 50; Hutchinson v Jauncey [1950] 1 KB 574 at 579; Continental Liqueurs Pty Ltd v G F Heublein & Bro Inc (1960) 103 CLR 422 at 427; L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd (The Boucraa) [1994] 1 AC 496 at 495-495 and 524-525; Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at [19], [153], [186], [193]-[198], [200]-[201] and [219]; State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465 esp at [21]-[22], [25].) 133 By instituting proceedings against Nutricia the prosecutor, no doubt acting on the instructions of the Authority, asserted that s/he was able to establish criminal guilt beyond reasonable doubt. S/he submitted that issue for determination by the Court, thus subjecting the conduct of investigatory and prosecuting authorities to the doctrine of contempt of court. 134 I do not mean to suggest that the commencement of proceedings is determinative in this respect. (See the observations of McHugh J and of Deane J set out at [54] and [56] above.) However, it is a step which brings into consideration the integrity of the judicial system enforced by the law of contempt.

135 It will often, perhaps usually, be the case that the institution of proceedings will be a critical step with respect to determining the application of a statutory power conferring powers of investigation and collection of evidence. In my opinion, that is so for s 37 of the Act. 136 It is sufficient for present purposes to conclude that the administration of detailed interrogatories for the purpose of proving elements of an offence the subject of extant charges, is such a significant impingement upon the integrity of the courts that Parliament should not be understood to intend that a statutory power can be so deployed in the absence of a clear statement to that effect. There is none here. 137 In my opinion, question (c) should be answered: "No".

Nutricia's Interpretation Issue (Questions (e) and (f)) 138 As noted above Nutricia seeks to uphold the test applied by James J, but submits that it is only an example of a more wide ranging test. This is of particular significance with respect to its challenge to his Honour's decision not to set aside the first four notices. 139 Question (e) removes from the test applied by James J the element of the notices having been issued "with the sole or dominant purpose of obtaining evidence for use in those proceedings". The contention underlying the question is that an advantage, irrespective of purpose, is sufficient. No different contention was advanced with respect to the unqualified question posed as (f). The answer to each should be the same. 140 Nutricia adopts references in a number of the authorities expressed in terms of "interference with the course of justice" (for example, as set out at [54], [55], [56], [77], [79], [81] and [84] above). This broader formulation, Nutricia submits, extends to restrict the exercise of a statutory power which has the effect of securing any advantage, even if the power is not exercised for a purpose which confers an advantage not able to be obtained by the procedures in court. 141 The word "interference" is protean and can apply to matters of minor significance and also to matters of considerable significance. In that respect it is quite likely to be deployed as a mode of expressing a conclusion, rather than as a legal test. When so used, the formulation "interference with the course of justice" has an unstated adjective and is used in the sense of an "impermissible interference". Accordingly, Gibbs CJ in Pioneer Concrete and Deane J in Hammond referred to an "improper interference". (See [52] and [56] above.) 142 This conclusion is reinforced by the context in which the formulation "interference with the course of justice" has appeared, namely that the relevant conduct was such as to constitute a contempt of court. The authorities considered above - Pioneer Concrete, Hammond, Environment Protection Authority v Caltex and De Vonk (see at [51], [52], [54], [56], [82], [83], [85], [86]) - all make it clear that there must be a finding of contempt of court, being that category of contempt sometimes referred to as 'interference with legal proceedings'. 143 It cannot be said that any "effect" upon extant proceedings constitutes such a contempt. In my opinion, the formulation advanced by Nutricia is too wide. The cases indicate that there must be a finding that a contempt of court has occurred or is threatened, being a "real risk" of interference with the administration of justice. 144 This conclusion is supported by the fact that the Court in Hammond refused to make an order restraining the Royal Commission from inquiring into or reporting on matters "touching and concerning" the charge of conspiracy that had been lain. (See Hammond supra at pp 195-196, 199.3, 199.9 and c/f 208-209.) Nothing in Hammond, or the other authorities, suggests that a mere "effect" is sufficient. 145 In my opinion a mere "advantage" will not, when expressed in those terms, constitute an impermissible interference with court proceedings so as to amount to a contempt of court. There may, however, be such an interference and a contempt by reason of conduct undertaken other than "for the sole or dominant purpose of obtaining evidence". It is only necessary to refer to contempt by reason of publicity as an example. However, it cannot be said that any advantage is sufficient. 146 The failure to apply a test so broadly expressed was the only error of law said by Nutricia to arise under questions (e) and (f). Nutricia made no submission to the effect that James J committed any other error of law in the course of rejecting its contention that the advantages that could be said to arise in this case otherwise constituted an impermissible interference and contempt. 147 During oral submissions, a different way of approaching this issue was raised, by reference to the Australian accusatory system of criminal justice. 148 So far as I am aware the characterisation of our criminal justice system as "accusatorial" was introduced into contemporary jurisprudence by Chief Justice Gleeson in Caltex Refining Co Pty Ltd v State Pollution Control Commission supra at 127 where his Honour referred to: "[O]ur accusatorial system of criminal justice which obliges the Crown to make out a case before an accused must answer." 149 On appeal to the High Court his Honour's characterisation was quoted with approval by Mason CJ and Toohey J (Environment Protection Authority v Caltex Refining Co Pty Ltd supra at 500) and their Honours, and McHugh J in a separate judgment, adopted that characterisation for the purpose of analysing the privilege against self-incrimination. (See at 501.3, 503.3, 504.3, 508.3 and 546.9.) 150 As the extracts from the reasons of Mason CJ and Toohey J, which I have set out at [67] and [68] above indicate, their Honours concluded that the power to compel production of documents there under consideration did not sufficiently impinge on this traditional aspect of our legal system. 151 Since Environment Protection Authority v Caltex the characterisation of our system of criminal justice as "accusatory" has been frequently referred to in High Court jurisprudence: in the context of the principle of duplicity (Walsh v Tattersall (1996) 188 CLR 77 at 94); to explain the right to silence and determine that the rule in Jones v Dunkel did not apply to a criminal trial (RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [22]; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at [34], [38], [64]; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [9], [60]); to explain the inapplicability of the rule in Browne v Dunn to a criminal trial (MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [41]); to explain the approach a Court of Criminal Appeal should adopt when applying the proviso (Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [43]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [109]); to determine whether or not the conduct of counsel caused a miscarriage of justice at the trial (Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [25]); to identify the duties and responsibilities of the prosecution (Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [71]-[72]); to explain the obligation to disclose the Crown case to an accused (Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [67]); to explain the obligation to provide particulars (HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 at [9], [57]). 152 The self-incrimination immunity should now be regarded as one manifestation of a broader principle and the broader principle may have other manifestations which are available to corporations. The process of historical development was identified in the dissenting judgment of Deane, Dawson and Gaudron JJ in Environment Protection Authority v Caltex in a manner which is not affected by their Honour's conclusion that the self-incrimination immunity is available to a corporation. 153 Their Honours said at 527, after reference to the privilege against self-incrimination expressed in the maxim nemo tenetur seipsum prodere (or accusare): "However, other inter-related rights or immunities have emerged which have become woven into the law, particularly the criminal law, both by way of procedure and in substance. For example, the fact that persons suspected of having committed a crime are immune from having to answer, under compulsion, the questions of police officers or others in authority, has led to the development of rules which render inadmissible in evidence confessions which are involuntary or unfairly obtained. And an accused person (who is a competent witness only as a matter of fairly recent history) has the right to refrain from giving evidence and to avoid answering incriminating questions. The latter right is by no means wholly explained by reference to the maxim nemo tenetur seipsum prodere. Rather it is to be explained by the principle, fundamental in our criminal law, that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way. Thus, whilst the basic adversarial procedure of the criminal law may have roots in the seventeenth century, it has grown in a way that is not explained solely by reference to a specific immunity such as the privilege against self-incrimination. Rather it must be explained by reference to broader considerations which may in turn explain the privilege. As Gibbs CJ said in Sorby v The Commonwealth ((1983) 152 CLR, at p 294.): 'It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.'" 154 Subsequently, at 534-535, their Honours distinguished between a right to refuse to answer, on the basis of the privilege against self-incrimination, and what their Honours referred to as "the broader basis that the prosecution cannot compel a defendant in criminal proceedings to assist in the proof of its case". 155 The accusatory system is, in my opinion, a fundamental element of our traditional method of determining criminal guilt. A public authority which formally alleges criminal conduct by a person must prove it. As recognised in the reasons of Mason CJ and Toohey J set out at [67] and [68] above and the observations of Deane, Dawson and Gaudron JJ set out at [153] above, the accusatory system is not co-extensive with the privilege against self-incrimination. It is derived, as many other aspects of our criminal procedure are derived, from the recognition of the imbalance of power between the State and its citizens. That imbalance extends to corporations. 156 The reasoning of Mason CJ and Toohey J in Environment Protection Authority v Caltex (see at [69] above) is concerned with the difficulties which arise for the proof of breach of regulatory statutes and is directed to production of documents, not to the compelling of answers to questions. As their Honours and Brennan J indicated in the passages set out at [65] and [66] above, the latter raises very different considerations. It constitutes a qualitatively more significant impingement upon the accusatory system. Brennan J also emphasised in that paragraph the significance of the actual commencement of proceedings. I note also the reference to the "fundamental principle … that an accused cannot be required to testify to the commission of the offence charged" in the reasons of Mason CJ and Toohey J set out at [67] and the confinement of their qualification of the accusatory system to "the production of documents" in the passage set out at [69]. 157 In the present case, the only rule relied on was Pt 75 r 11 which, in view of the answer to question (a) which I propose, is not equivalent to the rule of court under consideration in Environment Protection Authority v Caltex which was held by the majority to be effective as a notice to produce documents. It is, accordingly, open to this Court to adopt the approach of Gleeson CJ in Caltex v State Pollution Control Commission in this Court. In my opinion, this Court should do so. This approach would support my answer to question (c) above, on an alternative basis. 158 The question which Gleeson CJ posed in this respect was whether the statutory power, absent any applicable court procedure could be used "for the sole purpose of obtaining evidence or information for use in current criminal proceedings". (Caltex v State Pollution Control Commission supra at 132 B-C.) His Honour expressly confined his decision to a situation in which that was the "sole purpose" of a notice, whilst acknowledging there may be other such circumstances. (See 133 C-D, G.) The addition by James J of the reference to a dominant purpose is, in my opinion, appropriate. The issue raised by questions (e) and (f) is whether a broader formulation of the test should be adopted. 159 For the reasons I have given above when dealing with question (c), absent a clear statement that the accusatory system is to be abrogated, a statutory power should be read as not authorising steps to compel an accused, the subject of extant charges, to provide information for purposes of those proceedings. 160 Indeed, the Authority acknowledged the force of such considerations by conceding that it could not issue such a notice once a trial, in the sense of a hearing, had commenced. It propounded the relevant restriction in terms of a fair trial. But that principle is not limited in its application to the actual hearing. It extends to many pre-trial procedures, for example, provision of particulars, presentation of the Crown brief etc. The formal presentation of a charge is a critical step in the criminal justice process. As I have indicated above, a prosecuting authority must be taken to assert that, at that point, it is able to establish guilt beyond reasonable doubt. From that point the accusatory nature of our criminal process should be given full effect and, in that regard, would lead to the same conclusion as the application of the doctrine of contempt. 161 Accordingly, Parliament should be taken not to have intended to impinge upon the accusatory nature of our system of criminal justice, after charges are lain, in the absence of express words or necessary intendment. However, the legislative scheme under consideration creates a regulatory system where such an intention can be inferred with respect to pre-charge investigation. 162 I have already set out at [69], [71], [72], [85] and [95] above authoritative statements about the difficulties involved in proving contravention of regulatory statutes by corporations. These statements are, in my opinion, applicable to the Food Act and, specifically, to the powers in s 37. The Parliament did not intend to restrict the exercise of these powers with respect to the investigation of contraventions of the Act because information could be supplied by a person already accused of a contravention which may give the prosecution an indirect advantage in the trial of the existing charges. 163 James J expressly held that information supplied in answer to the four notices could not be used directly in the trial of the extant charges. The information can only be used, directly, to lay additional charges. That finding is not in issue on the Stated Case. Nutricia's contention seeks to prevent indirect deployment of the information to the advantage of the prosecution in the extant proceedings. This is often referred to in cognate contexts as 'derivative use'. 164 Is the accusatory system of criminal justice infringed by the exercise of a statutory power which is capable of having an effect that confers an advantage upon the prosecution? Is an indirect consequence, ie derivative use, sufficient to constitute a relevant alteration or abridgement of the accusatory system? 165 The position is reasonably clear where derivative use impinges upon a rule of substantive law, such as the privilege against self-incrimination or the law of contempt. (C/f Rank Film Distributors Ltd v Video Information Centre (a firm) [1982] AC 380 at 443; Sorby v The Commonwealth (1983) 152 CLR 281 at 294, 310; Reid v Howard (1995) 184 CLR 1 at 6-7.) The accusatory system is not such a rule. 166 There is some support for the contentions of Nutricia in recent authoritative statements of the High Court which use the language of an accusatory system as the basis for the privilege against exposure to penalties and which distinguish that privilege from the privilege against self-incrimination. 167 In Daniels Corporation International Pty Ltd v The Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, determined that a substantive rule of law, relevantly the doctrine of legal professional privilege, was subject to the line of authority commencing with Potter v Minahan, and s 155 of the Trade Practices Act would be read down so as to permit the service of a notice to produce which impinged upon such a privilege. 168 In contrast their Honours, when they turned to the civil penalty immunity, adopted the precise language of an accusatory system at 599: "Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. (See Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129, per Burchett J.) However there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly no decision of this court says it should be so recognised, much less that it is a substantive rule of law." 169 This reasoning was adopted in the joint judgment of the High Court in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 esp at [23]-[24]. 170 The penalty privilege has been held to be a sufficient basis for a court to refrain from exercising its powers to compel steps usually taken in civil proceedings, such as discovering or filing of witness statements, even where what is apprehended is only derivative use. (See Rich v ASIC supra esp at [39], Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132, [2003] 130 FCR 37 esp at [14], [29], [34]; MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304; (2007) 65 ACSR 299 esp at [64]-[71].) Nutricia did not rely on this approach by way of analogy to apply it to the statutory power under consideration. 171 In my opinion, the significant role in protecting the public that is served by the exercise of the powers in s 37(1)(o) and (q) of the Act is such that this Court should conclude that Parliament necessarily intended that the powers could be exercised for purposes of determining whether charges should be lain and to do so even if the prosecution may obtain an indirect advantage in extant criminal proceedings. 172 Issues of derivative use raise questions of fact and degree. Before James J and in this Court, there was no precise identification of any derivative use that could be said to impinge in a significant respect on the accusatory nature of the process under way on the existing charges. 173 There is an important difference between an appeal and a Stated Case. Nothing appears on the materials before this Court to indicate that his Honour's reasons contain any error of law with respect to derivative use of information supplied in answer to the first four notices. 174 I would, accordingly, answer questions (e) and (f): "No". 175 Had I been of a different opinion in this regard, the answer to each of these questions should have been: "Inappropriate to answer". 176 As noted above, Nutricia has answered the notices before the Stated Case was heard in this Court. Such derivative benefit as the prosecutor could obtain has already been obtained. There was no identification in this Court as to how, if at all, this effect could be unravelled. 177 Nutricia's submission in this respect was that the provision of information in answer to an invalid notice could lead to a contention before the trial judge that material should not be admitted into evidence in the extant proceedings. However, James J has held that each notice is subject to an implied (and in one case express) undertaking, that material cannot be admitted into evidence. In the absence of any suggestion as to what could be done with such derivative use as might have occurred, it would not have been appropriate to answer questions (e) and (f) positively.

The Contempt Issue (Questions (d) and (g)) 178 In De Vonk, Hill and Lindgren JJ said at 586 that the "question to be addressed where contempt is raised is whether there is a substantial risk of serious injustice". This formulation was adopted from the judgment of Mason J in the Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 98, 99. (See the equivalent formulations of a risk of prejudice that is "serious or real substantial", adopted by Wilson J at 137 and the formulation "real risk … that justice will be interfered with" adopted by Gibbs CJ at 56 and repeated by his Honour and Mason J in Hammond supra at 196 and 198.) This is the test for contempt in Australian law. The test probably finds its contemporary origins in the judgment of Lord Reid in Attorney-General v Times Newspapers [1974] AC 273 at 298-299, but the principle was clearly stated in John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370. (See also Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695 at 697-698 per Samuels JA.) 179 Although in De Vonk, Hill and Lindgren JJ adopted the "real risk" test, on three occasions their Honours suggested that a contempt would be made out, not if there was such a risk but if there might be such a risk. Their Honours said: · "The asking of questions might nevertheless bring about a substantial risk of serious injustice" (at 585E). · Whether the statutory power to interrogate under consideration in that case "might tend to constitute a real risk of interference with the administration of justice" (at 588E). · The legislature did not authorise "compulsory interrogation … where so to do might constitute an interference with the administration of justice, civil or criminal (at 588-589) (Emphasis added). 180 I do not understand their Honours to have applied a test of mere possibility of a risk. If I am wrong in that belief, then this is a respect in which I am satisfied to the requisite degree that this is in error and should not be followed. (See Farah Constructions supra at [113].) The test for contempt is whether there is a "substantial risk of serious injustice", not whether there might be such a risk. The element of possibility is inherent in the word "risk" itself. There was no suggestion in this Court that James J applied any other test. 181 The nature of the relevant risk on the facts of this case was not clearly identified in the submissions in this Court. There is an assumption in the various statements in the case law relied upon that once a dispute has been formally committed to judicial decision-making then the Court should be taken to have an exclusive authority in relevant respects. 182 Plainly, any party to proceedings, including judicial proceedings, is entitled to conduct whatever investigations it likes and obtain evidence in whatever manner it likes, for purposes of those proceedings. It is, however, contended that only the court, once seized, relevantly, of criminal proceedings, should exercise the governmental power to compel persons to answer questions or produce documents. Subject to constitutional restraints and valid legislation, this approach raises a separation of powers issue. The proposition that there can never be any overlap states the case too broadly. (See the observations of McHugh J set out at [54] above). 183 The reference in the judgment of Hill and Lindgren JJ in De Vonk at 586 to the reasons of Lord Diplock in Attorney-General v Times Newspapers Ltd, supra, is of assistance in identifying the relevant boundary. His Lordship adopted the terminology of "usurpation" after he referred to a number of characteristics of what is required by the due administration of justice when he said at 309: " … once [a] dispute has been submitted to a court of law, [citizens] should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice … [this requirement] or to undermine the public confidence that they will be observed is contempt of court." 184 The language of usurpation of a judicial power has most frequently been applied in Australia in constitutional cases with respect to Chapter III of the Australian Constitution. This terminology was originally applied by the Privy Council in the context of the Constitution of Ceylon in Liyanage v The Queen [1967] 1 AC 259 at 289. 185 In the Australian constitutional case law there have been a number of formulations of the test for determining when there has been a legislative usurpation of, or interference with, the judicial power of the Commonwealth including: · Legislation that "constituted a marked interference with a judicial process" (The Queen v Humby; Ex parte Rooney (1973) 129 CLR 231 at 250). · "[I]nterference with the governance of the trial and distortion of its predominant characteristics" (Nicholas supra at 232 [145]). · Legislation which "interferes with the judicial process itself" (Builders Labourers' Federation supra at 96). 186 Although these observations were made in the quite distinct context of the constitutional separation of powers, the statutory interpretation context of the present case is cognate, albeit not identical. The terminology is very similar to the terminology deployed in the non-constitutional case law discussed above, for example, Pioneer Concrete, Hammond and De Vonk. 187 The test applied by James J is a specific example of usurpation ie an advantage not available under court procedures. However it cannot be said that any advantage constitutes a usurpation. (See the observations of McHugh J at [54] above). 188 In the constitutional context it is accepted that, where the relevant aspect of the exercise of judicial power involves a conflict between public policy considerations, the fact that the legislature struck the balance in a different way to the common law is not an impermissible usurpation of judicial power. (See, for example, Nicholas supra at [35]-[36], [55], [159]-[160], [164], [234], [238] and [244]; Lodhi v The Queen [2007] NSWCCA 360 at [57]-[68].) 189 In the law of contempt there are also occasions when it is necessary to balance conflicting considerations, such as the public interest in the administration of justice and the public interest in freedom of speech. (See Hinch v Attorney-General (Vic) (1987) 164 CLR 15; Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653.) 190 In the present case also there are conflicting public interests: the integrity of the administration of justice on the one hand and the objects to be served by the enforcement of the Act on the other hand. I have set out above s 3 which contains those objects. The difficulties of enforcing a regulatory scheme designed to serve the public interest are also emphasised in the cases. (See, for example, at [71], [72], [85] and [95] above.) 191 In my opinion, it is not possible to answer the question: does the exercise of a statutory power to compel the provision of information constitute a contempt, without conducting such a balancing exercise. 192 Of significance for present purposes is this Court's conclusion, by majority, in Attorney-General (NSW) v X supra that the balancing exercise required by the Bread Manufacturers defence does not involve a question of law. Accordingly, balancing is not an appropriate issue to be raised by a Stated Case. 193 In any event, I am satisfied that James J conducted such a balancing exercise and committed no legal error when doing so. 194 Neither party submitted that the test for contempt which his Honour applied was not an appropriate test. Nor, in my opinion, was any error of law identified. 195 James J's conclusion with respect to the first four notices referred to Nutricia's submission that a statutory power should not be interpreted so as to apply when its exercise may have the effect of securing an advantage to the prosecution in extant proceedings. His Honour rejected this submission as follows: "[107] It was submitted by counsel for the defendant that, even if answers to questions asked in the first four notices were not admitted into evidence on the trial of the present charges, it was inevitable that the Food Authority would derive some advantages in the current prosecutions from knowing the defendant's answers to the questions in the first four notices. I accept that this would be so, but I consider that what Austin J said in para 79 of his judgment in ASIC v Elm Financial Services, mutatis mutandis, is apposite. His Honour said:- 'In all probability, a substantial amount of the information gathered in ASIC's further investigation will be relevant to the proceeding and potentially evidence against one or more of the defendants. To that extent, I agree with counsel for the applicants that the information sought in the notices is "clearly relevant" … to the issues in the proceeding … but that level of connection and overlapping does not itself mean that the continuation of the investigation will amount to a misuse of the statutory powers or a contempt of court.' [108] I decline to grant any relief in relation to the first four notices." 196 Accordingly, his Honour found, on the facts of this case, (as Austin J found in ASIC v Elm, in a passage which I have set out in full at [94] above), that there was no contempt. No error of law has been suggested to have been made in the course of the process of fact finding with respect to the first four notices. 197 Just as Austin J approached the issue in ASIC v Elm, as expressly adopted by James J, the degree of connection between the exercise of the statutory power and extant proceedings is an important element in determining whether there is a contempt or abuse. Matters of fact and degree are involved, particularly where, as here, only derivative use arises on the findings of James J. No error of law has been identified. 198 In the case of the two notices which his Honour did set aside, I have quoted from [90] of his Honour's judgment at [15] above. His Honour went on to hold that the fifth and sixth notices fell within the test ie they were issued for the sole or dominant purpose of obtaining evidence in such a way as to confer an advantage not otherwise available. Again this involves a factual finding and no error of law was identified with respect to this process of fact finding. 199 Questions (d) and (g) should be answered: "No".

Answers to the Stated Case 200 The questions on the Stated Case are to be answered as follows: (a) No; (b) No; (c) No; (d) No; (e) No; (f) No; (g) No. 201 HIDDEN J : I agree with Spigelman CJ. 202 LATHAM J: I agree with Spigelman CJ. **********

16/03/2009 - Lauri v Renad [1892] 3 Ch 402 at 421 - Paragraph(s) [130] 16/03/2009 - r 11(4)(a) - Paragraph(s) [40], [42]

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