Person 27
20 As I have said, Person 27 was called as a witness by the applicant. He was cross-examined by counsel for the respondents and then his cross-examination was adjourned. Although he was allowed to leave the witness box, he was not released while the respondents sought, by subpoena, the production of the transcript of his interview by the Assistant IGADF. A redacted transcript of his interview was subsequently produced by the IGADF and there was then further cross-examination of Person 27 by reference to that transcript by counsel for the respondents. In particular, Person 27 was asked about the evidence he had given before the Assistant IGADF compared with the evidence he had given before this Court. At the conclusion of Person 27's cross-examination, counsel for the respondents sought to tender the transcript of interview. Counsel for the applicant asked that the issue be deferred so that he could consider whether there was a basis to oppose the tender having regard to the decision of the Full Court of this Court in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 400 ALR 56 (Herron), handed down on 29 April 2022. I deferred the tender of the transcript.
21 The parties made submissions as to the tender of the transcript of Person 27's interview by the Assistant IGADF on 3 June 2022 and on 24 June 2022. Counsel for the respondents pressed the tender and it was opposed by counsel for the applicant. Counsel for Person 27 sought and was given leave to be heard on the tender of the document. Person 27 opposed the tender of the transcript of interview.
22 Person 27 was represented by counsel during the course of his evidence. That counsel sought and was given leave to withdraw at the hearing on 24 June 2022 and a different counsel appeared for Person 27 on that date. The first counsel sought leave to withdraw because he had sworn an affidavit which Person 27 sought to rely on at the hearing on 24 June 2022. As it happened, the argument to which that affidavit, which was marked for identification, was directed was not advanced by the respondents. In those circumstances, I reject the tender of the affidavit on the basis that it is not relevant. The argument advanced by Person 27 against the tender of the transcript of his interview by the Assistant IGADF is essentially the same as the argument advanced by the applicant.
23 The issue dealt with in Herron which is of present relevance is whether evidence given or a document produced to a Royal Commission under the Royal Commissions Act 1923 (NSW) was subject to the protection in s 17(2) of that Act in circumstances where the person giving the evidence or producing the document is a witness, but not a defendant in a subsequent proceeding. Section 17 of the Royal Commissions Act was in the following terms, relevantly:
(1) A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate him, or on the ground of privilege, or on any other ground.
(2) An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.
(3) Nothing in this section shall be deemed to render inadmissible:
(a) any answer, document or other thing in proceedings for an offence against this Act,
(b) any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),
(c) any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
(4) This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.
24 The Court in Herron held that the prohibition against admissibility in s 17(2) applied to, inter alia, a person who is a witness and not merely to a person who is a defendant in subsequent civil or criminal proceedings. It is not necessary to discuss that aspect of the reasoning in Herron because no party made a submission that Herron could be distinguished from the circumstances of this case. Person 27 as a witness in this proceeding is entitled to the protection afforded by s 124(2CA). The issue in this case is the extent of that protection.
25 The respondents submit that the extent of the protection in s 124(2CA) of the Defence Act is commensurate with the privilege against self-incrimination. The submission is that it is the privilege against self-incrimination which is abrogated by s 124(2AB) of the Defence Act and s 32(1) of the IGADF Regulation and it is with respect to evidence otherwise privileged that the protection in s 124(2CA) applies and no further. In other words, the respondents submit that only evidence before the Inquiry where the privilege might otherwise be taken is protected. It follows, on the respondents' argument, that the test for the application of s 124(2CA) requires the Court in subsequent proceedings to characterise the evidence before the Inquiry as evidence in respect of which, had the privilege against self-incrimination been available, the privilege could have been successfully claimed.
26 It should be noted that unlike s 32(1) and (2) of the IGADF Regulation where there is a link between the matters dealt with in the subsections, in other words, the abrogation and the protection (provided at least by the word, "However"), s 124(2CA) of the Defence Act is expressed in terms wide enough to protect any statement or disclosure before the Assistant IGADF whether it might otherwise have been privileged or not. However, neither the applicant, the respondents nor Person 27 argued that the subsection was to read other than in the context of and by reference to an abrogation of the privilege against self-incrimination. I consider that approach to be correct.
27 The applicant and Person 27 nevertheless submit that the test postulated by the respondents is not the correct test. They submit that the protection afforded by s 124(2CA) of the Defence Act (and indeed, s 32(2) of the IGADF Regulation, had that been relevant) is a blanket one because, but for the notice pursuant to s 23(3) of the IGADF Regulation, Person 27 would not have attended at the Inquiry and there would be no evidence of any nature admissible against him. In other words, even if the evidence is not evidence in respect of which the privilege against self-incrimination could otherwise have been claimed, it is not admissible by reason of s 124(2CA).
28 The applicant and Person 27 rely on what Rares J said in Herron (Wigney J agreeing at [237]) in support of their submission that the protection provided is a blanket one. They referred to the observations at [133]-[140]. In particular, they point to the following passages (at [88] and [138]):
88 Even though, as discussed in Lee J's reasons, the consequence of ss 8 and 56 of the Evidence Act is that s 17(2) of the NSW Act did not have any operative effect in this Court, Mr Herron and Dr Gill gave evidence and produced documents to the Royal Commission under the compulsion of s 17(1) and in the circumstances that they could expect that s 17(2) would apply to that evidence and those documents in the future. Indeed, at the time they did so, the enactment of the Evidence Act was over 5 years in the future.
…
138 It follows that the proper construction of s 17(2) is the same as Brennan J held for s 6DD (154 CLR at 228), namely:
The occasion for its application is the tendering against a witness (i.e., a witness who has given evidence before a Commonwealth commission) of evidence of what the witness stated or disclosed in the course of giving his evidence before the commission. The section requires the court to refuse admission in evidence of any such statement or disclosure.
(emphasis added)
The observations of Brennan J (as his Honour then was) referred to in [138] in Herron were made in Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212.
29 In my opinion, Herron does not provide the answer to the issue which I am now considering. The Full Court made it clear that a witness ought to have the same protection as they would have had they been asked the question(s) for the first time before the Court. On that basis, the protection extends no further than evidence which might otherwise be privileged. For example, Rares J said (at [111], [115] and [135]):
111 … But, the wording of both s 6DD of the Commonwealth Act and, importantly here, s 17(2) of the NSW Act, is not limited to prevent the subsequent admissibility of the evidence of, or a document produced by, the witness before a Royal Commission in a criminal proceeding against the witness. That is because each section proscribes use of the witness' evidence or document that he or she produced under compulsion to a Royal Commission in both criminal and civil proceedings. Moreover, the witness may not be the accused or defendant in the subsequent curial proceeding, but a witness in it who, surely, must be able to retain the right to invoke his or her privilege against self-incrimination if asked about what he or she said in giving evidence, or whether he or she produced a document, to a Royal Commission under compulsion.
…
115 It cannot have been the legislative intention that the witness who gave the compelled evidence or produced the compelled document to a Royal Commission could not object in other proceedings, on any ground that s 17(1) of the NSW Act or its analogues had abrogated, if subsequently he or she is called to give evidence, or required to produce or identify himself or herself as the source of, or being connected to, the compelled production of the document to the Royal Commission: cf Sorby 152 CLR at 294-295, 300 per Gibbs CJ, 305, 310-311 per Mason, Wilson and Dawson JJ, 311-312, 313 per Murphy J and see too at 324 per Brennan J.
…
135 The policy purpose of s 17(1) of the NSW Act, and its analogue in the Commonwealth Act, is to enable a witness to be compellable to give evidence to the Royal Commission that he or she could not, or as a matter of discretion would not, be compelled to give in any judicial proceeding because the person could assert a common law or statutory privilege, such as legal professional or client legal privilege, the privilege against self-incrimination or self-exposure to a penalty, the privilege attaching to without prejudice communications to settle disputes, the rules of law and equity protecting confidential information, trade secrets, the identity of informers and the common law rule of practice known as "the newspaper rule", now found in ss 126J and 126K of the Evidence Act, protecting the disclosure of a journalist's sources of information: see McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346.
30 I am unable to discern anything in the text of the relevant provisions which supports the argument advanced by the applicant and Person 27. The construction advanced by the respondents is supported by the use in s 124(2CA) of the word "against" in the phrase "admissible in evidence against the witness" and is logical and coherent and, although from time to time there may be difficult questions as to the evidence which might otherwise have been the subject of a claim for the privilege against self-incrimination before the Inquiry, that prospect is not a reason to reject the construction advanced by the respondents.
31 As it happened in this case, no party or person contended that Person 27 could otherwise have claimed the privilege against self-incrimination with respect to his evidence to the Assistant IGADF and, in those circumstances, s 124(2CA) does not stand in the way of the evidence being tendered.
32 The evidence is admissible and MFI R265 will become Exhibit R265.