Relevant authorities
74The starting point for a discussion of the applicable law is the decision of the High Court in Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188. Hammond had been charged with conspiracy in breach of a Commonwealth law arising from his involvement in the meat export industry. After he was charged he was called to give evidence before a Royal Commission which was inquiring into whether malpractices had occurred in the handling of meat. It was clear that the questions he was to be asked at the Commission related to the alleged conspiracy upon which he had been committed for trial. The Royal Commission hearings were to occur in camera.
75Hammond successfully moved in the High Court for an injunction to restrain the Commission from examining him. His primary submission was to the effect that there was "a real risk, as opposed to a remote possibility, that justice would be interfered with."
76In his reasons for judgment Gibbs CJ emphasised that the application had of necessity been dealt with urgently, a matter which was later commented on by Dawson J in Hamilton v Oades [1989] HCA 21; 166 CLR 486 at 508. The Chief Justice accepted that the hearing would take place in private and the answers which Hammond gave could not be used at his trial. However, the record of the argument indicates that although the proceedings were to be held in private the Royal Commission had decided to permit the transcript to be made available to the Crown. Derivative use of Hammond's evidence was accordingly a possibility if not a reality.
77In the circumstances the Chief Justice concluded that "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" (at 196). This finding was critical to the court's reasoning.
78In his reasons for judgment Brennan J emphasised that "it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt or innocence of an offence with which he has been charged."
79Deane J said (at p 206):
"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. "
80When considering the relevance of the decision for present purposes it is important to firstly appreciate that Hammond was concerned with questioning of a person using the powers of a Royal Commission. Subsequent cases have considered similar issues but in the context of a particular statute authorising a particular inquiry. Secondly, and for present purposes of greater significance Hammond concerned an application to restrain the process of the inquiry. It was not concerned with and did not consider whether the prospective trial of Hammond could, or if the Commission had proceeded, would be stayed.
81Similar issues were considered in Hamilton v Oades & Anor which was concerned with the examination of a company director under s 541(3) of the Companies (New South Wales) Code. That section empowered the Supreme Court to order that a director of a company be examined in matters relating to the affairs of the company. Subsection (12) provided that a person may not refuse to answer a question on the ground that the answer might tend to incriminate him but, provided objection was taken the answer was not admissible against the person in criminal proceedings.
82The High court reversed the decision of the NSW Court of Appeal and held that the provision of the Companies Code, which provided for the court to give directions with respect to the examination, did not empower the court to relieve a person from an obligation to answer questions on the ground that they may incriminate him. However, questions which required the company director to disclose his or her defence to a charge could be rejected.
83Mason CJ said at 498:
"The court retains its power to give directions and to restrain questions in cases where the examination is being conducted for an improper purpose or constitutes an abuse of process: s.541(5). Thus if a liquidator were to conduct an examination directed to compel the examinee to disclose defences or to give pre-trial discovery, or to establish guilt, this examination may be restrained as an abuse of process: Hugh J. Roberts, at p 541; Huston v. Costigan (1982) 45 ALR 559, at p 563; Re Gordon. But this is not the present case. "
84With respect to the "right to silence" and the "right" not to disclose a defence Mason CJ said:
"There are two other matters to be mentioned. The Court of Appeal referred to the respondent's right not to disclose his defences to the pending charges. Except in the sense that a witness enjoys what is known as the right to silence, the respondent has no relevant right, either at common law or by virtue of statute. The privilege against self- incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge. The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed. In some instances there is such a specific requirement, for example, in relation to alibi defences. And there is implicit in the general words of s.541 such a general requirement. The possibility of disclosure of a defence is, accordingly, not a matter in respect of which a witness needs to be protected, except perhaps in the most exceptional circumstances."
85The reasons for judgment of Toohey J are also instructive in the present context. I have included below his Honour's discussion of the issue in which he draws upon the judgment of Barwick CJ in Mortimer v Brown [1970] HCA 4; 112 CLR 493:
"A useful starting point in the consideration of the relevant law, given the existence of s.541(12), is the decision of this Court in Mortimer v. Brown. As already noted, the decision concerned a public examination under s.250 of The Companies Acts, 1961 to 1964 (Q.). Section 250(3) empowered the Court to "put or allow to be put such questions to the person examined as the Court thinks fit". There was no provision comparable to s.541(12) of the Code. In the view of this Court, an examinee could not decline to answer a question on the ground that the answer might tend to incriminate him.
The main judgment was given by Walsh J., with whom Barwick C.J., Windeyer and Owen JJ. agreed. But a passage from the judgment of Barwick C.J., at p 495, is particularly apposite here:
'As appears from the reasons of my brothers the language of the statute makes the answering of every question imperative. The Parliament has made it abundantly clear that the so-called right to be silent which the common law sought to protect was not to be available to the examinee: and, as both my brother Kitto and my brother Walsh observe, the very purpose of the inquiry makes such a course inevitable if that purpose is not frustrated and the inquiry rendered nugatory. The common law cannot maintain a right in the citizen to refuse to make incriminating answers in the face of a statute which by its expression clearly intends, as does the present, that all questions allowed to be put shall be answered.
...
In my opinion, it being the question and not the answer with which (the judge) is primarily concerned, the mere circumstances that a question appropriate to the nature and the stage of the particular inquiry might or certainly would incriminate the examinee could rarely, if ever, be itself a reason for disallowance of the question. But, of course, the question may be so peripheral, or seek merely confirmation of facts of which proof is already firmly in the hands of the liquidator or that some other circumstance exists that it would be oppressive or unjust to place the examinee in the position of being bound by his answer to incriminate himself, or even placed in jeopardy of doing so."
I respectfully agree with those observations. A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s.541(12). And that is so notwithstanding the qualification expressed in the words "concern those facts which constitute the ingredients of the offences ...". The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the Court by s.541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick C.J. pointed out in Mortimer v. Brown, a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category. See also Huston v. Costigan (1982) 45 ALR 559, at p 563. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s.541(12) allows so that the affairs of the company may be relevantly investigated."
86Similar issues were considered by the High Court in Victoria v Australian Building Construction Employees and Builders Labourers Federation [1982] HCA 31; 152 CLR 25. By majority (Murphy J dissented) the court held that in the absence of a contrary law the Crown may appoint a Commission of Inquiry into whether an individual has committed an offence. However, if not authorised by a particular statute an inquiry which involves a tendency to interfere with the administration of justice may be in contempt of court ( p 54).
87The issue was again considered in Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 in which the High Court distinguished the decision in Hammond. Gibbs CJ said at (at 298):
"Similarly, it is no necessary impairment of federal judicial power that a person who may subsequently come to be tried has been compulsorily interrogated before the trial. Hammond v. The Commonwealth [1982] HCA 42; (1983) 152 CLR 188 is distinguishable. That was a case in which the plaintiff, who was called to give evidence before a Royal Commission, was awaiting trial for a criminal offence, and there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with. Under s. 6A, as now in force, a person who is the subject of a pending charge before a court is not denied the privilege of refusing to answer before a Commission questions that might incriminate him of the crime with which he is charged, and neither plaintiff in the present case has been charged. In Kempley v. The King (1944) ALR, at p 252 Latham C.J. said that there was no substance in the argument that it was beyond the legislative power of the Commonwealth to alter the common law as to incriminating questions. I am in agreement with that statement. There is in my opinion no doubt that s. 6A was validly enacted. (at p299)
88Accordingly, the position is generally that an executive inquiry with compulsory powers will not constitute an interference with the administration of justice and be liable to be restrained as a contempt of court where no charges have yet been laid. Clough v Leahy (1904) 2 CLR 139 at 161. The Parliament may authorise an inquiry which requires a person to answer questions relating to an offence and even disclose elements of their defence to a charge.
89However, an executive inquiry with powers of compulsion directed towards the establishment of guilt of an accused who has been charged with the relevant offence raises different considerations. In McGuinness v AG of Victoria [1940] HCA 6; 63 CLR 73 it was determined that such an inquiry has a tendency to interfere with the administration of justice because its purpose is to make the finding which the court is charged with making (see also Victoria v BLF at 54).
90In the present case the examination took place after charges had been laid. However, there was no evidence and no finding by the trial judge to the effect that the ACC's examination was directed towards establishing the guilt of CB. Her Honour's findings were that a central purpose of the examination was to gather information into the subject of the criminal proceedings which her Honour said was "presumably for the purpose of furthering the prosecution." But there was no suggestion that the ACC would proceed to make findings with respect to matters concering CB's prospective guilt.
91The most recent consideration of the issue and in the context of the ACC is the decision of the Full Federal Court in Australian Crime Commission v OK (above). Again it is important to be mindful of the fact that the court was considering an application to restrain the conduct of the ACC not the stay of a criminal prosecution. The majority Emmett and Jacobson JJ concluded that the Act permits an examination to continue on a subject matter directly relating to a pending criminal charge so long as the protective prohibitions contemplated by s 25A(3) and (9) have been put in place. Their Honours said:
"[105] To succeed in obtaining an injunction on the ground that further examination of a person charged with an offence would constitute contempt of court, it is necessary to establish that there is a 'real risk', as opposed to 'a remote possibility', that justice would be interfered with, if examination of the person continued with questions about the alleged offence. That is to say, before the Court should intervene, the tendency of the proposed examination to interfere with the course of justice must be a 'practical reality': a theoretical tendency' is not enough (see Hammond's Case 152 CLR at 196).
[106] In Hammond's Case the High Court considered that, once it was accepted that Mr Hammond would be bound to answer questions designed to establish that he was guilty of the offence with which he was charged, there was a real risk that the administration of justice would be interfered with. While the examination would take place in private, and the answers may not be used in the criminal trial, the High Court considered that the fact that Mr Hammond had been examined, in detail, as to the circumstances of the alleged offence, was likely to prejudice him in his defence. The High Court considered that, if during the course of an inquiry into allegations that a person had been guilty of criminal conduct, a criminal prosecution were commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court. In those circumstances, the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings (see Hammond's Case at 198-199).
[107] A significant difference between the circumstances of Hammond's Case and the circumstances of the present case is the regime that is now provided for in s 25A of the Commission Act. Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge. On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and 25A(9) have been put in place. Such principle as might relevantly be drawn from Hammond's Case is displaced by the express provisions of the Commission Act.
[108] The duty and power imposed by s 12(1) on the CEO and the Commission must be read as being subject to the protective prohibition in s 25A(9). Further, the authority given to the CEO under s 59(7) to give information is qualified by reference to action contrary to a law of the Commonwealth. Clearly enough, where a direction under s 25A(9) is in force, giving information contrary to that direction would be giving information contrary to a law of the Commonwealth that would otherwise apply. A direction under s 25A(9) would also operate in relation to the other powers and authorisations dealt with in s 59. Thus, s 25A, and provisions such as ss 12 and 59, dealing with the assembling and giving of evidence and the dissemination or furnishing of information, are capable of working harmoniously so as to ensure that investigation into serious organised crime and the dissemination of intelligence gathered by the Commission proceed in a timely manner, without prejudicing the fair trial of an accused person.
[109] The objects of the Commission Act could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid. The public interest requires the investigation of a federally relevant criminal activity to continue. The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured. The public interest in the administration of justice, in particular to the right to a fair trial, is preserved by the statutory safeguards referred to in [43] above. In this way the legislation achieves a balance between the public interest in the investigation of federally related criminal activity and the public interest in the right of an accused person to a fair trial. Compromise, if any, would occur by reason of the deployment or dissemination of information obtained in a way that poses a real risk to a fair trial. A non-publication direction made under s 25A of the Commission Act remains operative unless and until it is varied or revoked. Such a direction binds the Board, the Commission and the CEO when disseminating, under s 12 or s 59, any information gathered at an examination conducted subject to such a direction.
[110] The coercive powers conferred on examiners do not come to an end on the laying of criminal charges. The provisions of s 25A clearly contemplate examinations continuing in the face of pending charges. The provisions confer on an examiner, and on the CEO, powers to ensure that there is no real risk to a fair trial. That is to say, the terms of the provisions expressly contemplate that the examiner must give a direction if the failure to do so might prejudice the fair trial of a person who has been charged with an offence. Further, the CEO must not vary or revoke a direction once made, if the CEO forms the view that the revocation or variation might prejudice the fair trial of a person who has or may be charged with an offence.
[111] Although s 12 is not qualified in the same way as s 59(7), imposing, as it does, a mandatory obligation on the CEO to assemble and give evidence to persons and agencies, including prosecuting authorities, it is capable of working harmoniously with s 25A. A direction given under s 25A(9) is effective, and overrides the statutory obligation imposed by s 12 or s 59 on the Commission, the CEO or the Board to assemble and give evidence or disseminate and furnish information or reports. In other words, while the CEO, the Board and the Commission are at all times required to perform their respective statutory obligations to assemble and give evidence and to disseminate or furnish information, that requirement must be understood as being subject to the provisions that they do so in a manner that is not inconsistent with a direction under s 25A(9). For example, the CEO, the Commission and the Board would be able to disseminate information gathered at an examination to relevant agencies if they were satisfied, on the basis of appropriate evidence, that appropriate safeguards were in place, to ensure that the investigating and prosecuting teams in the relevant agencies dealing with pending charges could not be given access to that information. The dissemination obligations arising under the Commission Act can be complied with without risk to a fair trial.
[112] Section 51, dealing with secrecy, does not cut across that analysis. Section 51 imposes an obligation of secrecy quite separate and apart from any obligation arising from a direction given under s 25A(9). In so far as there is an exception to the obligation imposed by s 51, to the extent that a person may, for the purposes of a relevant act, divulge or communicate information, that is merely an exception to the obligation imposed by s 51. It is not an exception to the obligation arising from a direction given under s 25A(9).
[113] The application of the safeguards of s 25A(9) in the circumstances of the present case means that there is no real risk to the fair trial of the Witness. There is no reason to suspect that the CEO or any member of the Commission or the Board would act contrary to such a direction. There is no practical reality that the course of justice and a fair trial for the Witness would be interfered with by reason only of the witness being required to answer questions, so long as an appropriate direction is in force under s 25A(9). Whether a contempt of a criminal court might occur is a matter for that court. In the light of the analysis set out above, there is no real risk that the continuing questioning of the Witness would constitute a contempt. In those circumstances, the primary judge erred in concluding that there was a real risk that compelling the Witness to answer questions directly relating to the subject matter of the Charge against him under the State Act would result in a prejudice to his fair trial or interfere with the course of justice or constitute a contempt."
92Similar reasoning to that of Emmett and Jacobson JJ is found in the judgment of Jessup J in ABC v Sage [2009] FCA 170;175 FCR 319 at 331 [29]-[31]:
"I accept the submissions made on behalf of the respondent with respect to this point. The provisions of the ACC Act referred to are manifestly calculated to reduce to the minimum the prospect that evidence given in an examination will find its way into the hands of authorities or persons other than those to whom, in accordance with directions given by an examiner, it is limited. On the facts of the present case, I consider that the directions given by the respondent, and the administrative steps taken by the Commission, are such as would eliminate any real, as distinct from theoretical, risk of an interference with the administration of justice, should the applicant answer the question put to him as required. I am particularly influenced by the direction given under s 25A(9) of the ACC Act. Save to refer to subs (12) of s 25A, counsel for the respondent was unable to suggest any means by which that direction would not, as a practical matter, produce its intended effect, namely, of protecting the fair trial of the applicant from being prejudiced by the leakage of details of the applicant's evidence given in the examination. With respect to subs (12), I accept the respondent's submissions that this court ought not lightly anticipate that the court to which evidence might be available under that subsection would allow that evidence to be further disseminated in a way that might prejudice the fair trial of the applicant.
The facts of the present case are quite different from those which led to the judgment of the High Court in Hammond v The Commonwealth. In that case, police officers involved in the investigation upon which the forthcoming prosecution was based were permitted to be present during the administrative examination (see 152 CLR at 194). Here, by contrast, not only are those police officers not present (and not permitted to be present), but the respondent has taken the steps contemplated by the ACC Act to make it as certain as may be that those involved in the prosecution of the applicant will not come to learn of the substance of his evidence in the examination.
I take the view, therefore, that the continuation of the examination of the applicant by the respondent, including the respondent's requirement that the applicant answer the question to which he objected, would not present a real risk of an interference with the administration of justice and would not, therefore, be in contempt of court. That conclusion makes it unnecessary for me to consider the respondent's related points, namely, whether, as a matter of balance, the public interest in the continuation of the Commission's work in the special investigation outweighs the public interest in avoiding risks of interference with the administration of justice, and whether, as a matter of construction, the provisions of the ACC Act to which I have referred evince a legislative intention to tolerate the existence of risks to the administration of justice, either absolutely or in circumstances where directions have been given."
93Spender J dissented in OK. His Honour said:
"[9] In my judgment, the High Court held (a reference to Hammond) that it was the questioning and the compulsion to answer about the charge that was very likely to prejudice him in his defence (per Gibbs CJ), and would constitute an interference with the due administration of criminal justice (per Deane J), and that the continuance of the inquiry would amount to a contempt of court. A parallel inquisitorial enquiry by the executive, when the person summoned is compelled to be sworn as a witness, and is subject to questioning about a pending criminal charge, constitutes in itself injustice and prejudice to the person summoned who has been charged with that criminal offence. An accused person is entitled to reserve his or her defence until that person is on trial."
94And later:
"[12] In my opinion, the appeal from the judgment and orders of Justice Mansfield should be dismissed. I agree with the reasons that Mansfield J gave for his conclusions, except that, in my respectful opinion, it is irrelevant whether, notwithstanding confidentiality directions, there would still be a risk of disclosure to the investigation and/or prosecution authorities of the questions asked and the answers given by the summoned person. Mansfield J seems to suggest that there was such a risk, whereas the majority conclude that there was no such risk of disclosure to those authorities."
95The primary judge in the present case was of the view that the approach of the majority in OK failed to give adequate recognition to three matters:
"(a) first, the respondent's "right to silence" and his "right to reserve one's defence until trial" which was undermined by the examination;
(b) second, that the examination subverted the adversarial nature of a criminal trial, with its obligations of proof on the prosecution and the rights and privileges it accords to the accused; and,
(c) third, a concern on the part of the accused and the informed public that information may have been disseminated "undermining confidence in the impartiality of the criminal justice process" and the "prosecuting authorities" (at [84])."
96It is important to appreciate as the ACC submitted that the so called "right to silence" expresses not a single right, but is a shorthand description of an amalgam of immunities the most prominent of which, for present purposes, are the immunity of an accused from being required to answer questions or provide information which is incriminating, from being compelled to give evidence at their own trial and (to some extent) from having adverse comment made on his or her failure to give evidence or provide information.
97In some respects, the ACC Act abrogates a number of immunities associated with the shorthand description of "right to silence." It obliges persons summonsed to appear at an examination to answer questions (see section 30(2)) and abrogates the privilege against self-incrimination (section 30(4)). However, by reason of the retention of "use immunity" in section 30(5) of the ACC Act in relation to answers given at an inquiry over an objection based on self-incrimination and the confidentiality provisions in sections 25A(9) and 29A of the ACC Act designed to protect the fairness of trials of persons who have been or may be charged with an offence, it is clear that the ACC Act operates to protect the fairness and integrity of extant trials by preserving them from the effect of its qualification of the "right to silence".
98In NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456 ("Nutricia") Spigelman CJ identified the "accusatory system" (which is synonymous with what the trial judge referred to as the "adversarial nature" of criminal trials) as a "fundamental element of the traditional method of determining criminal guilt" (at 490, [155]). In Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74;178 CLR 447 (EPA v Caltex) at 503 Mason CJ and Toohey J identified two aspects of the "accusatory system" of criminal justice: first, that the onus of proof beyond a reasonable doubt rests on the Crown and, secondly, that "an accused person cannot be required to testify to the commission of an offence charged."
99In Nutricia Spigelman CJ concluded that a power of a prosecutor to require an accused the subject of extant charges to answer questions to "provide information for the purposes of those charges" was an abrogation of the accusatory system (at 491, [159], emphasis added). In contrast, in EPA v Caltex Mason CJ and Toohey J considered that a statutory power to require an accused to produce documents did not compromise the accusatory system. Similarly, in Nutricia Spigelman CJ concluded that an exercise of a statutory power which required an accused the subject of extant charges to provide information which could be derivatively (but not directly) used against the accused did not necessarily impinge the accusatory system (at 492, [164] - 493, [172]).
100With respect to the ACC Act where an accused the subject of an extant charge is summonsed to appear at an examination under s 28 of the ACC Act but is protected against direct use of any answers given over an objection based on the privilege against self-incrimination by reason of section 30(4) and protected from derivative use by reason of confidentiality directions given pursuant to section 25A(9) and section 29 of the ACC Act, there is no possible compromise of the accusatory system of criminal justice. The onus of proof still lies on the prosecution. The accused cannot be made to testify in or in connection with the trial to the commission of the offence charged. The accused's rights and privileges at the trial are preserved.
101To my mind the primary judge's statement (at [84(1)]) that "[a]n accused person should not be tried twice; first by secret coercive examination and then in open court where the accused enjoys rights and protections" cannot be accepted. An executive inquiry or investigation which does not and cannot lead to any findings of guilt, any conviction or any punishment is not, in any sense of the term, subjecting the accused to a "trial": Victoria v BLF at 52 - 53, 152 - 153.
102With respect to the issue of public confidence the trial judge found that the evidence provides no basis to conclude that statutory directions protecting the confidentiality of the contents of an examination conducted under the ACC Act and preventing its disclosure to prosecuting authorities have not been observed. An apprehension of impartiality on the part of prosecutors can provide a basis to exclude those prosecutors from participation in a trial: R v MG [2007] NSWCCA 57; 69 NSWLR 20 at 41, [65] - 48, [100]. However, I am not aware of any authority to support the proposition that such a concern would support a conclusion that a contempt of court had occurred, or that a permanent stay of the proposed trial was appropriate.
103The primary judge concluded that "reposing the product of a collateral executive examination of an accused person upon matters of which he or she is accused in the discretion of a prosecuting or investigating officer fatally weakens the operation of criminal courts in accordance with the rule of law" (at [84(2)]). I do not share her Honour's view. The purpose of the confidentiality obligations in s 25A(9) and s 25A of the ACC Act is to prevent the information obtained during the examination from being used by prosecuting or investigating authorities in the trial of a person who has or may be charged with an offence. Furthermore, where a failure to make such an order might prejudice the fair trial of such a person, there is no discretion as to whether such confidentiality obligations are to be imposed. Section 25A(9)(c) imposes that obligation.
104The ACC submitted that in this respect her Honour's approach to the concept of the rule of law was misplaced. With respect to her Honour this submission should be accepted. As Dawson J pointed out in Hamilton v Oades (at 509) concepts such as the due process of law or the rule of law derive their "meaning only from the law, whether common law or statute law, as it exists, from time to time". The ACC Act forms part of the "rule of law" as much as any other element of the common law or statute law.
105At [102] of OK Emmett and Jacobson JJ referred to the principle expressed by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71] concerning the need to construe a statute harmoniously; where conflict appears, adjusting the meaning of the competing provisions to best give effect to the purpose and language of the provisions, while maintaining the unity of the statute as a whole and, where necessary, identifying the leading provisions and subordinate provisions in the statute.
106Applying these principles to the interaction of the confidentiality provisions in sections 25A(9) and 29A of the ACC Act and the obligations and powers of disclosure of the CEO and the Board of the ACC in sections 12(1) and 59(7) of the ACC Act, Emmett and Jacobson JJ in Australian Crime Commission v OK at 277, [108] - 278, [111] reasoned as provided in their judgment at [108], [109] and [111] which I have included above.
107The primary judge expressed doubt as to this reasoning (at [78]) and concluded that it "may well be wrong" (at [82]) The primary judge did not develop her reasons for that conclusion. In this regard, the primary judge appeared to prefer the reasoning of the primary judge, Mansfield J in OK v Australian Crime Commission (at [69]).
108I do not share the primary judge's doubts. The reasoning of Emmett and Jacobson JJ in Australian Crime Commission v OK is an appropriate application of the direction in Project Blue Sky v Australian Broadcasting Authority to construe statutory provisions harmoniously, giving prominence to the leading provision and subservience to the subordinate provision while maintaining the unity of the statutory scheme as a whole. Neither the primary judge nor Mansfield J in OK v Australian Crime Commission attempted the task mandated by Project Blue Sky v Australian Broadcasting Authority.
109The identification of sections 25A(9) or 29A(2) (and a direction made pursuant to it) as the leading provision to which the duties and rights of disclosure in sections 12(1) and 59(7) of the ACC Act are subservient is indicated by:
(a) first, the fact that section 25A(9) of the ACC Act is a special provision and sections 12(1) and 59(7) are general provisions;
(b) second, the fact that sections 25A(9) or 29A(2) of the ACC Act are concerned to protect a fundamental common law right, being the right to a fair trial of a criminal charge: Nutricia at 486, [129] - 487, [136];
(c) third, the fact that the CEO of the ACC has a specific power in section 25(10) to vary or revoke a direction made under sub-section (9), but which power is ousted when to vary or revoke the direction would prejudice the fair trial of a person who has been or may be charged with an offence.
110Accordingly, in my opinion the conclusion of Emmett and Jacobson JJ in Australian Crime Commission v OK to the effect that a confidentiality direction made sections 25A(9) and 29A of the ACC Act overrode the obligations and powers of disclosure of the CEO and the Board of the ACC in section 12(1) and 59(7) of the ACC Act is correct. In the result, those directions having been made in relation to the examination of CB, he was effectively immunised from any direct or derivative use of the contents of his examination in his pending criminal trial.
111Provided the knowledge of the proceedings in the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution.
112The primary judge determined that she was not bound by the decision of the Full Court of the Federal Court having formed the view that it was plainly wrong. In so doing her Honour referred to the decision of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89. Her Honour provides no specific reference to any statement in that decision to support this position. Her Honour also referred to, but provided no analysis of, a speech by Rares J, "The Role of the Intermediate appellate Court after Farah Constructions."
113Farah Constructions concerned the authoritative reach of decisions of intermediate appellate courts as between those courts. Her Honour was not sitting as a member of such a court but was sitting as a trial judge in the NSW District Court exercising Federal jurisdiction. It seems to me that there would be profound difficulties in the proper functioning of the Australian judicial system if a District Court judge exercising Federal jurisdiction was free to decide that a decision of the Full Court of the Federal Court on the same issue is wrong, much less plainly wrong.
114Of course, a judge of the District Court is bound by a decision of a single judge of the Supreme Court or a decision of the Court of Criminal Appeal or Court of Appeal on a point of law, given that the "administration of justice within the hierarchy of courts is an ordered discipline": Fleming v White [1981] 2 NSWLR 719 at 725-726.
115However, the present position on that issue appears to be that in the joint judgment of the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 when Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
"uniformity of decision in the interpretation of uniform national legislation ... is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that the interpretation is plainly wrong." (p 492)
See also Farah Constructions Pty Limited v Say-Dee Pty Limited at 151-152 [135].
116Although the decision in Farah Constructions has generated some controversy the approach taken by the High Court to the task of an intermediate appellate court closely follows the approach which intermediate appellate courts must take to their own decisions. Similarly a trial judge may depart from the decision of another trial judge of the same court if satisfied that the decision is plainly wrong but must follow a decision of the intermediate appellate court to which its decision may be appealed. If as the High Court says there is a common law of Australia it would seem logical and to my mind irresistible that a trial judge of any court determining an issue under a statute of the Commonwealth should be bound to follow a decision of an intermediate appellate, state or Federal which has considered the same issue.
117However, the resolution of this case does not depend upon whether her Honour was bound by OK. To my mind a finding that the decision of the majority in OK was plainly wrong was not open. I believe it was correct. The primary judge's reliance on Hammond does not sufficiently recognise the significance of the protections provided by the ACC Act which were not available to Hammond and which are central to the reasoning of the majority in OK.