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.