Rolfe v The Territory Coroner & Ors [2023] NTCA 8

Coroners Act 1993 (NT) s 38, s 39, s 41

Attorney General (NSW) v Borland [2007] NSWCA 201, Australian Apple & Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Balog v Independent Commission against Corruption [1990] HCA 28; (1990) 169 CLR 625, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, Decker v State Coroner of New South Wales [1999] NSWSC 369; (1999) 46 NSWLR 415, Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1, Deputy Coroner of SA v Bell) [2020] SASC 59, Domaszewicz v State Coroner [2004] VSC 528; (2004) 11 VR 237, Grollo v Bates (1994) 53 FCR 218, Hunter Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296, Lansley v Knight; Ex parte Murphy (1992) 110 FLR 295, Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196, Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455, Malika Holdings v Stretton (2001) 178 ALR 218, Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560, McKerr v Armagh Coroner [1990] WLR 649, Migration Agents Registration Authority v Frugniet [2018] FCAFC 5; (2018) 259 FCR 219, Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, Priest v West [2012] VSCA 327; (2012) 40 VR 521, Public Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397, Pye v Butterfield [1864] EngR 803; (1864) 122 ER 1038, Pyneboard v Trade Practices Commission (1983) 152 CLR 328, R v Lefroy (1873) LR 8 QB 134, R v South London Coroner; Ex parte Thompson [1982] 126 SJ 625, Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139, Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129, Rola Co (Aus) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185, Stephens v R [2022] HCA 31; (2022) 404 ALR 367, The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, referred to.

Fourth Respondent: I Freckelton AO KC with A Burnnard

Second Respondent: Solicitor for the Northern Territory

Third Respondent: North Australian Aboriginal Justice Agency

Fourth Respondent: Northern Territory Police Fire & Emergency Services Legal

Rolfe v The Territory Coroner & Ors [2023] NTCA 8

[1] The questions arising on this appeal are whether there is a common law privilege against exposure to disciplinary and other civil penalties which would ordinarily have application in Northern Territory coronial proceedings; and, if so, whether s 38 of the Coroners Act 1993 (NT), together with the other facilitative powers in that legislation, has abrogated or qualified that privilege such that the appellant may be compelled to answer questions in the course of a coronial inquest currently in train.

[2] On 5 September 2022, the Territory Coroner ('the Coroner') commenced an inquest into the death of Kumanjayi Walker on 9 November 2019 at the Yuendumu Police Station. The deceased died after being shot by the appellant in the course of an attempted arrest. The appellant was subsequently charged with the murder of the deceased. On 11 March 2022, the appellant was acquitted by a jury of murder and two alternative charges of manslaughter and engaging in a violent act causing death.

[3] On 24 October 2022, a police officer who had been called as a witness at the inquest objected to giving evidence on the basis that penalty privilege afforded an immunity from examination in respect of any matter that might tend to expose him to a disciplinary penalty under the Police Administration Act 1978 (NT). The appellant and the sixth respondent to this appeal made submissions in support of the objection.

[4] On 25 October 2022, the Coroner dismissed the objection on the basis that the application of penalty privilege had been modified by s 38 of the Coroners Act.

[5] On 8 November 2022, the Coroner provided written reasons for the determination which concluded that to the extent that penalty privilege is a substantive common law right inherently capable of application in an inquest under the Coroners Act, that privilege had been abrogated by s 38 of the Coroners Act and replaced by the scheme in that provision.[1]

[6] Section 38 of the Coroners Act provides:

(a) a person summoned to attend at an inquest as a witness declines to answer a question on the ground that his or her answer will criminate or tend to criminate him or her; and

(b) it appears to the coroner expedient for the purposes of justice that the person be compelled to answer the question;

the coroner may tell the person that, if the person answers the question and other questions that may be put to him or her, the coroner will grant the person a certificate under this section.

(2) A person who has been offered a certificate under subsection (1) is no longer entitled to refuse to answer questions on the ground that his or her answers will criminate or tend to criminate him or her and, when the person has given evidence, the coroner must give the person a certificate to the effect that the person was summoned to attend at an inquest as a witness, the person's evidence was required for the purposes of justice and the person gave evidence.

(3) Where a person is given a certificate under this section in respect of evidence given at an inquest, a statement by the person as part of that evidence in answer to a question is not admissible in evidence in criminal or civil proceedings, or in proceedings before a tribunal or person exercising powers and functions in a judicial manner, against the person other than on a prosecution for perjury.

[7] In accordance with that ruling, the Coroner offered the police witness a certificate under s 38 of the Coroners Act and ordered that he be compelled to answer questions in the inquest. It is apparent from the issue of the certificate, and the reasons for the ruling that the Coroner concluded that the reference to 'criminate' in the provision extended beyond criminal liability to answers which might expose a witness to a disciplinary or other civil penalty.

[8] On 25 October 2022, the sixth respondent to this appeal, who had also been served with a summons requiring him to appear as a witness at the inquest, commenced proceedings in the Supreme Court by originating motion seeking an injunction restraining the Coroner from requiring him to give evidence or answer questions on matters that gave rise to a claim for penalty privilege. The sixth respondent also sought declarations that penalty privilege had not been abrogated by s 38 of the Coroners Act, and that the Coroner did not have power to compel a person to answer questions pursuant to s 38 of the Coroners Act in breach of penalty privilege. The appellant was subsequently joined as a plaintiff in those proceedings, and the second, third, fourth and fifth respondents to this appeal were joined as interveners.

[9] During the course of the proceedings before the Supreme Court, the second, fourth and fifth respondents adopted essentially the same position in relation to the claim for penalty privilege. That position was, in essence, that: (1) penalty privilege is not a substantive common law right which inheres until statutorily abrogated by express words or necessary intendment; (2) a coronial inquest is not a proceeding of a kind to which penalty privilege would ordinarily have application; (3) penalty privilege is in any event excluded by ss 38, 39 and 41(1)(c)[2] of the Coroners Act; and (4) to the extent penalty privilege would otherwise apply, s 38 of the Coroners Act confers a privilege coherently and consistently with the operation of the privilege against self-incrimination, both of which are qualified by the Coroner's power to provide a certificate and compel answers. That remains the position of the second, fourth and fifth respondents in this appeal. That position proceeded on the basis that the term 'criminate' in s 38 of the Coroners Act extends to the exposure to a disciplinary or other civil penalty, and operates beneficially to permit the issue of a protective certificate in those circumstances.

[10] The third respondent adopted a somewhat different position in the proceedings before the Supreme Court. That position is predicated on interpretive considerations said to arise from the nature of penalty privilege and the legislative history of the Coroners Act. On the commencement of the Coroners Act in 1994, s 38 provided:

A person shall not, under this Act, be compelled to answer a question that may tend to incriminate the person.

[11] The provision was amended to substantially its current form in 2002. The third respondent's position was that prior to the amendment, the provision had application only to the privilege against self-incrimination and in its terms had no application to penalty privilege. That is because penalty privilege has no operation in coronial inquests because they are not curial proceedings which can give rise to penalty. Accordingly, as originally enacted, the Coroners Act did not purport either to abrogate or to preserve penalty privilege by either express words or necessary intendment because it was unnecessary to do so.

[12] In the third respondent's submission, the mischief to which the 2002 amendment was directed was the impediment which the privilege against self-incrimination presented to the Coroner's ability to ascertain the truth, and the abrogation and consequent beneficial use immunity has application only to that subsisting privilege. On that position, the change from the use of the word 'incriminate' to 'criminate' is of no consequence as the terms are synonymous, and s 38 of the Coroners Act in its present form does not contemplate either a claim for penalty privilege or the issue of a protective certificate in respect of such a claim. That remains the position of the third respondent in this appeal.

[13] The Supreme Court determined that the construction pressed by the third respondent was correct. In doing so, the Supreme Court characterised penalty privilege as a principle which had its origin in the rules of equity relating to discovery and interrogatories, and which was not a fundamental common law right of the same nature as the privilege against self-incrimination or legal professional privilege.[3] The Supreme Court considered that it was obliged[4] to follow the reasoning of the plurality in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[5], as expounded by the Full Federal Court in Migration Agents Registration Authority v Frugniet in the following terms:[6]

... The starting point for the privilege against self-incrimination is that it exists and applies unless abrogated. However, that is not the starting point for penalty privilege, which is not, following Daniels and Rich, a substantive rule of law, let alone an important and fundamental common law immunity having, as it does, a very different origin and history. In each setting where penalty privilege is claimed, the opening question is whether that privilege applies in the first place, not whether it has been abrogated. ...

[14] Accepting that characterisation and approach, the Supreme Court determined that, unlike the privilege against self-incrimination, penalty privilege does not apply as a matter of course unless abrogated by statute. Rather, the relevant statutory scheme must be analysed to determine whether, in context, the legislature intended that there should be an entitlement to penalty privilege in the subject proceedings.[7] In undertaking that consideration, the Supreme Court made reference to the decision of the Victorian Court of Appeal in Priest v West[8] for the proposition that a coroner should not be constrained from doing 'everything possible to determine the cause and circumstances of death'. The Supreme Court concluded that by conferring the power under s 39 of the Coroners Act to hold an inquest in a manner which the coroner reasonably thinks fit (together with the other broad facilitative powers in the legislation), 'Parliament has removed all inhibitions on the collection and consideration of material which may assist in the task'.[9] The import of that finding was that common law penalty privilege has no application in coronial proceedings conducted under the Coroners Act.

[15] The Supreme Court then went on to hold that even if it was wrong in that conclusion, and that penalty privilege is available in coronial proceedings, it had been abrogated by s 38 of the Coroners Act, the purpose and effect of which was to abrogate both the privilege against self-incrimination and penalty privilege, and to apply the same claim and certification procedure to both.[10] That was said to be because:[11]

One cannot discern a legislative intention to partly abrogate the important and fundamental privilege and to leave intact the less important, but related, penalty privilege. It would be an absurd result. Further, ... it would subvert the whole purpose of s 38 since, in the case of police officers and other public officials, almost all criminal acts would also have potential disciplinary consequences with the result that the Coroner could almost never require police officers (and others) to answer such questions on the provision of a certificate under s 38(2).

[16] In the result, the plaintiffs' application for declarations was refused.

[17] The appellant has now brought an appeal from that decision asserting error on the part of the Supreme Court on three bases. The first error asserted is the holding that penalty privilege is not a right of a kind which engages the principle of legality requiring express words or necessary intendment for its abrogation, and the related finding, following Frugniet, that the relevant question is whether the legislature intended there should be an entitlement to claim penalty privilege. The second error asserted is the holding that an inquest under the Coroners Act is not a curial proceeding for the purpose of determining the question whether penalty privilege is available. The third error asserted is failing to hold that there is no basis in the text and structure of the Coroners Act on which to conclude that it abrogated penalty privilege by express words or necessary intendment.

[18] Having regard to those grounds and the positions propounded by the parties, the questions to be determined on this appeal are:

(a) whether common law penalty privilege was available in coronial proceedings immediately prior to the commencement of the 2002 amendment to s 38 of the Coroners Act; and

(b) if the privilege was available prior to the 2002 amendment, whether it remains available after the amendment or whether s 38 of the Coroners Act has abrogated the privilege and in what way; and

(c) if the privilege was not available prior to the 2002 amendment, whether s 38 of the Coroners Act has now created a statutory form of penalty privilege qualified by the Coroner's power to provide a protective certificate and compel answers.

The common law privilege against exposure to penalties

[19] Penalty privilege, or the privilege against exposure to penalties, is a 'rule of the common law'[12] under which a person cannot be compelled to answer a question if the answer would tend to expose him or her to 'any kind of punishment' or 'anything in the nature of a penalty'[13]. The privilege had its origin in the rules of equity relating to discovery, but 'has long been recognised by the common law'[14] such that it is no longer simply a rule of equity. Because the principle was developed in that context, it was referred to in the earlier cases in terms of an exemption adopted and applied in the courts of equity and common law.[15]

[20] Pyneboard is the first case in which the High Court gave any detailed consideration to the question of penalty privilege and its availability in non-curial proceedings. The question presented was whether a person served with a notice to produce information under s 155 of the Trade Practices Act 1974 (Cth) could refuse to answer questions in reliance on the privilege against exposure to civil liability to penalties. The plurality made reference to the English cases in which the principle had developed and stated at the outset that:[16]

... the privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a civil penalty is (a) not confined in its application to discovery and interrogatories; (b) available at common law as well as in equity; and (c) distinct from, though often associated in discussion with, the privilege against exposure to conviction for a crime.

[21] The plurality then went on to consider the question whether penalty privilege is confined in its application to judicial proceedings and is therefore inherently incapable of application in non-judicial proceedings. Their Honours recognised that there were conflicting streams of authority on that issue, and concluded:[17]

In the light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O'Toole [1977] HCA 41; (1977) 137 CLR 150.

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.

[22] It may be seen that the conclusion that the privilege is not inherently incapable of application in non-judicial proceedings, carried with it an understanding that penalty privilege is a common law right which will not be abrogated by statute unless there is a clear legislative intent to do so by express words or by necessary implication. In the subsequent discussion, the plurality treated penalty privilege on the same footing as the privilege against self-incrimination in determining whether there was a discernible legislative intention to abrogate the privilege. In the final result, the plurality determined that s 155 of the Trade Practices Act abrogated the privilege on the following basis:[18]

Sub-section (1) confers a power on the Commission to require the provision of information, the production of documents or the giving of evidence relating to contravention, or possible contravention, of the Act. It is significant that sub-s. (5) makes it an offence for a person to refuse or fail to comply with a notice under sub-s. (1) "to the extent that the person is capable of complying with it" for these words in themselves are quite inconsistent with the existence of a privilege entitling the recipient of a notice to refuse to comply, whether on the ground that compliance might involve self-incrimination or otherwise. Moreover, it 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] HCA 4; (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).

[23] In coming to that conclusion, the plurality noted that s 155(7) of the Trade Practices Act expressly abrogated the privilege against self-incrimination, but provided an immunity from the use of any information provided in pursuance of a notice in criminal proceedings other than proceedings under the Act itself. The significance of that provision was described by the plurality in the following terms:[19]

Finally, attention should be drawn to the bizarre consequences of the appellants' construction. The privilege against self-incrimination would be excluded, but not the privilege against exposure to a civil penalty. True it is that the amount of a civil penalty under Pt IV is very substantial. Even so, it is irrational to suppose that Parliament contemplated that a person could be compelled to admit commission of a criminal offence yet be excused from admitting a contravention of the Act sounding in a civil penalty.

[24] Justice Murphy saw no reason for recognising a privilege against self-exposure to penalties outside judicial proceedings, and said in addition that it would be absurd to read s 155 as expressly denying the privilege against self-incrimination but impliedly allowing the privilege against self-exposure to penalties. Justice Brennan drew a distinction between privilege as a principle applicable to judicial procedure and the area of investigation by a law enforcement agency, and concluded that s 155 would be rendered 'relatively valueless' if a privilege against exposure to a penalty were allowed as a ground of non-compliance. The statutory exclusion of self-incrimination merely confirmed a person's obligation to furnish the information or produce the document, rather than giving rise to an implication that penalty privilege remained available. Unlike the plurality, Brennan J's conclusion did not involve an approach by which penalty privilege may only be abrogated by express words or necessary intendment. On Brennan J's analysis, a positive legislative intention that penalty privilege should have application in the proceedings was required.

[25] The next detailed consideration of penalty privilege by the High Court was conducted in Morris. The question in that case was whether two police officers were properly found by the Police Discipline Board to have disobeyed a lawful order in refusing to answer questions during the course of an inquiry into the performance of their duties. In that case, Gibbs CJ accepted that penalty privilege applied to disciplinary penalties under police legislation, and applied Pyneboard as authority for the proposition that penalty privilege is capable of application in non-judicial proceedings:[20]

There is an obvious distinction between criminal offences and breaches of discipline and it is necessary to insist upon that distinction for some purposes - see, e.g., Reg. v. White; Ex parte Byrnes [1963] HCA 58; (1963) 109 C.L.R. 665, at p.670. Nevertheless, although the penalties provided by s.88 are disciplinary penalties, they are nonetheless penalties, and it is old law, confirmed by modern authority, that a person cannot be compelled to answer a question whenever the answer would tend to expose him to "any kind of punishment" - "anything in the nature of a penalty": see Phillipps and Arnold, A Treatise on the Law of Evidence, 10th ed. (1852), vol.2, p.487; Greenleaf on Evidence, 11th ed. (1863), vol.1, p.621; Bray on Discovery (1885), p.313; In re Westinghouse Uranium Contract (1978) A.C. 547, at pp.563-564 (a statement not challenged on appeal - see at pp.612, 627, 632, and 647) and Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 57 A.L.J.R. 236; 45 A.L.R. 609. Moreover it is now accepted that the privilege is capable of application in non-judicial proceedings: Pyneboard Pty. Ltd. v. Trade Practices Commission, at p.240 (p.617 of A.L.R.), Sorby v. Commonwealth of Australia [1983] HCA 10; (1983) 57 A.L.J.R. 248, at p.260; [1983] HCA 10; 46 A.L.R. 237, at p.258.

[26] Having found that the penalty privilege was capable of application in a police disciplinary investigation, Gibbs CJ then went on to consider the question whether the Police Regulation Act or the Police Regulations provided 'either by express words or necessary implication that the intention of the legislature was that the privilege should not be available'. It is clear in posing that question that his Honour considered penalty privilege to be one of those species of rights which could not otherwise be abrogated. His Honour concluded that the legislative provision requiring police officers to obey lawful orders indicated 'both that the application of the privilege would be inappropriate and that the obligation to obey lawful orders is not intended to be subject to any unexpressed qualification'.

[27] That conclusion was reinforced by the fact that if privilege was claimed in the course of a disciplinary investigation, the validity of the claim would fall to be determined by an unqualified person unless and until it subsequently came before a court by way of prosecution. The position would be different if the investigation was being conducted before the Police Discipline Board chaired by a stipendiary magistrate, but in the statutory framework under consideration the availability of penalty privilege could only come before the Board for belated determination on the hearing of a charge for failing to obey a lawful order on that basis.

[28] Justices Dawson and Wilson agreed with the Chief Justice's conclusions that penalty privilege is capable of application in non-judicial proceedings, and that the content and subject matter of the statute necessarily excluded any privilege against answering questions which might disclose misconduct or tend to incriminate despite the lack of any express provision to that effect. Justice Brennan came to the same conclusions, but with additional reference to the impairment of discipline in the police force which would result if penalty privilege was available in the circumstances. Justice Murphy adhered to the approach he had adopted in Pyneboard that the only operative privilege was against self-incrimination, which did not extend to breaches of a disciplinary code.

[29] Some of the reasoning in Pyneboard and Morris has been cast in doubt by the subsequent decision in Daniels. The latter case also involved notices to produce information under s 155 of the Trade Practices Act, but the claim in question was for legal professional privilege rather than penalty privilege. Despite the different privilege under consideration, the plurality made a number of observations in relation to the decision in Pyneboard on the issue of penalty privilege. First, although the plurality in Pyneboard was not prepared to hold that penalty privilege is inherently incapable of application in non-judicial proceedings, that did not amount to a holding that the privilege is available in non-judicial proceedings.[21] Second, the plurality in Pyneboard proceeded on the basis that penalty privilege was a common law right which could only be abrogated expressly or by necessary implication, while Brennan J took a different approach which required the discernment of a legislative intention that penalty privilege should have application in the proceedings.[22] Third, although the finding in Pyneboard that penalty privilege had been abrogated should not be followed for the purpose of determining whether legal professional privilege had been abrogated, the implication that s 155(1) of the Trade Practices Act abrogated penalty privilege could be supported by reference to the absurdity that would result if that privilege could be claimed and the privilege against self-incrimination could not.[23] Fourth, the modern purpose of penalty privilege is to ensure that those who allege criminality or other illegal conduct should prove it. Given that purpose, the plurality in Daniels identified the following further basis on which the finding in Pyneboard could have been sustained:[24]

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.

[30] In separate reasons for decision, McHugh J also said relevantly that the decision in Pyneboard could be justified on the ground that the express abrogation of the privilege against self-incrimination gave rise to a necessary implication that s 155 also abolished any right to claim that production of required documents might expose a person to civil penalty; but that it had nothing to say about legal professional privilege.

[31] The High Court had occasion to consider the issue once again in Rich v Australian Securities and Investments Commission.[25] The question arising in that case was whether penalty privilege had application in relation to an order for discovery in proceedings brought by the Australian Securities and Investments Commission seeking, amongst other declarations and orders, orders for disqualification from managing corporations. There was a provision in the governing legislation requiring the court to 'apply the rules of evidence and procedure for civil matters' when hearing proceedings for relief of that type. In the face of that provision, the Commission did not argue that penalty privilege had been abrogated. Rather, the Commission argued that the appellants were not relevantly exposed to penalties because no pecuniary penalty order was being sought in the proceedings.

[32] In the course of its reasons for decision, the plurality in Rich endorsed what had been said by the plurality in Daniels to the effect that penalty privilege is not a substantive rule of law like legal professional privilege which had application beyond judicial proceedings;[26] although that question did not arise for determination in the circumstances under consideration because any exposure to penalty would arise under the order of a court. The plurality also noted that it had been held that exposure to loss of office is exposure to a penalty or forfeiture, and, by reference to the decision in Morris, that exposure to dismissal from a police force was also a form of penalty.[27] The plurality concluded on that basis that exposure to a disqualification order was exposure to a penalty for the purposes of the privilege, and that the application for discovery should have been refused.

[33] Although Kirby J was in dissent in the result in Rich, his Honour's view reflected the observation made by the plurality in Daniels to the effect that penalty privilege is something less than a substantive rule of law or a fundamental common law right which can only be abrogated by a clear legislative intent:[28]

However, the privileges involved in Daniels were those against self-incrimination and suggested derogations of legal professional privilege. Those privileges are different from the penalty privilege invoked in this case. Compared to the penalty privilege, each of those privileges has a longer history in the law. Each is more fundamental to its operation. Each is reflected in universal principles of human rights. The penalty privilege is not. The penalty privilege is of a lower order of priority. It has a more recent and specialised origin and purpose in our law. It should not be blown into an importance that contradicts or diminishes the operation of the Act and the achievement of its purposes.

[34] It was against that background that the Full Court of the Federal Court came to consider the operation of penalty privilege in Frugniet. The question for determination in that case was whether penalty privilege had application in proceedings before the Administrative Appeals Tribunal for the review of a decision of the registration authority cancelling the respondent's registration as a migration agent. The directions subject to challenge required the respondent to provide a statement of his own evidence and statements from any witnesses he proposed to call, all documents on which he intended to rely, and a statement of facts, issues and contentions.

[35] At intermediate level, a single Judge of the Federal Court had determined that the obiter statements in Daniels and Rich had not displaced the decisions in Pyneboard and Morris in relation to the applicability of penalty privilege outside judicial proceedings. The Full Court determined at the outset that the correct approach was to endeavour to give effect to 'seriously considered dicta' uttered by a majority of the High Court, and even to comments falling short of that characterisation, about the meaning of prior decisions of that Court.

[36] The Full Court then conducted a review of the High Court authorities. In relation to Pyneboard, the Court observed that the majority was not prepared to find that penalty privilege was inherently incapable of application in non-judicial proceedings, but ultimately determined that it had no application in the particular circumstances of that non-curial setting. On that analysis, the determination proceeded on an assumption that penalty privilege did apply for the purpose of determining whether it would nevertheless be excluded or inapplicable as a matter of statutory construction.[29]

[37] The Full Court observed that in Morris, however, Gibbs CJ took the statement from Pyneboard as a positive assertion that penalty privilege did apply in non-judicial proceedings and assumed a correspondence between penalty privilege and the privilege against self-incrimination in that respect. That assumption was also adopted by Wilson, Dawson and Brennan JJ. The Full Court concluded that the highest the ratio proposition in Morris reached was that penalty privilege is capable of applying to a non-curial process if the terms of the statute in question permit that conclusion.[30]

[38] The Full Court considered that following the treatment in Daniels, all that is left of Pyneboard in relation to penalty privilege is the result, predicated on the absurdity that would ensue if a person was able to claim penalty privilege but not the privilege against self-incrimination. The alternative, and 'more secure', predicate for the decision in Pyneboard which was offered in Daniels was that penalty privilege does not have application outside judicial proceedings.[31] As to Rich, the Full Court considered that the plurality's reasons confirmed that the availability of penalty privilege is not determined by whether there has been a statutory abrogation of that privilege. Rather, the question is whether the privilege is engaged in the first place. That requires a consideration of whether the proceedings expose the claimant to penalties imposed by a court.[32]

[39] The Full Court concluded that it was not at liberty to disregard the observations made in Daniels, and that obiter dicta expressed the clear view that penalty privilege will ordinarily not apply to non-curial proceedings.[33] On that analysis, penalty privilege could never have applied in Morris because of the absence of any provision in the legislation for its application in the disciplinary setting. That result could have been reached without need to conclude that the privilege against self-incrimination had also been excluded by implication.[34] So far as questions of general principle were concerned, as opposed to the result in the particular case, the Full Court ultimately concluded:[35]

The passage from Daniels set out at [38] above [that penalty privilege should not be recognised outside judicial proceedings and is not a substantive rule of law] effectively determines the meaning that can be given to Pyneboard and Sorby for the purposes of this case. In particular, it is not open to regard Pyneboard as continuing to be authority, if it ever truly was, for the proposition that the starting point is that penalty privilege is capable of applying in a non-curial setting, subject only to statutory interpretation leading to its non-application or abrogation. Following Daniels, if penalty privilege is to apply in a non-curial setting, it must be found to do so from the language of the provisions in question. Such a finding must be found in the face of the view of a majority of the High Court in Daniels doubting that penalty privilege ordinarily applies in a non-curial setting at all. Daniels must be regarded as a seminal decision of the High Court, the correctness of which has never been doubted. Its clear terms are "seriously considered dicta" which are therefore binding on this Court. Even if regarded as no more than comments made, they cannot lightly be put to one side. This Court must endeavour to give effect to them.

In particular, Daniels makes it reasonably clear that penalty privilege is not even a substantive rule of law of a kind that must be found not to apply or be abrogated in a non-curial setting, but, rather, a protection that must have a foundation for applying in the first place as a matter of statutory construction ...

The task of implying that penalty privilege does apply in a non-curial setting may not face as high a hurdle, derived from the rule in Potter v Minahan, of concluding that privilege against self-incrimination does not apply. But there must be some basis to be found in the language of the statute for penalty privilege to apply to a non-curial proceeding or setting.

[40] Attention has also been drawn in the course of this appeal to two decisions of Australian superior courts which deal specifically with the application of penalty privilege in coronial proceedings. The first in time is Attorney General (NSW) v Borland,[36] which was decided after Daniels and Rich but before Frugniet. In that matter a police officer argued that penalty privilege applied in coronial proceedings despite the fact that the privilege against self-incrimination had been expressly abrogated under the New South Wales legislation. In the course of its reasons, the Court of Appeal noted the obiter dicta in Daniels and Rich to the effect that penalty privilege is not a substantive right.[37] However, the Court was not required to determine at the more general level whether penalty privilege had application to coronial proceedings, because s 33AA of the Coroners Act 1980 (NSW) expressly conferred a qualified form of that privilege which rendered witnesses compellable upon the grant of a certificate conferring direct use immunity. That conferral was in relation to evidence which may 'tend to prove that the witness has committed an offence or is liable to a civil penalty'.

[41] The decision in Deputy Coroner of SA v Bell[38] is the other authority dealing specifically with the application of penalty privilege in coronial proceedings. That case was decided two years after the decision in Frugniet. The plaintiff in that case was a prison officer, and the coronial inquest was in relation to a death in custody. The Court in that case was not required to decide whether penalty privilege was available in disciplinary proceedings brought by the prison authorities. The sole question was whether penalty privilege was available in an inquest under the South Australian coronial legislation. After reviewing the authorities, Blue J said:[39]

There is an obvious tension between the decisions of the High Court in Pyneboard Pty Ltd v Trade Practices Commission, Sorby v The Commonwealth and Police Service Board v Morris on the one hand and the "seriously considered obiter" remarks by the High Court in Daniels. It is preferable that this tension be resolved by an authoritative decision of the High Court. As it is not essential for me to decide the question, I do not do so.

[42] The Court determined the matter on the basis that s 23(5) of the Coroners Act 2003 (SA), which provided expressly that a person was not required to answer a question or produce a document if it 'would tend to incriminate the person of an offence' or 'would result in a breach of legal professional privilege', did not thereby evince a statutory intention to abrogate penalty privilege. His Honour said in that respect:[40]

Most lawyers, let alone laypersons, would be unable to list the different common law privileges and immunities that (absent statutory abrogation) entitle a person to decline to answer a question or produce a document to a court. It is a very unlikely intention to impute to Parliament that it intended by section 23 to abrogate all personal common law privileges and immunities unless Parliament had first identified all such privileges and immunities and made a deliberate policy decision that they should all be abrogated, apart from self-incrimination and legal professional privilege. Conversely, if it is imputed that Parliament was aware of all personal common law privileges and immunities and intended to abrogate all but two, one would expect Parliament to have effected the abrogation expressly.

Turning to context, there is nothing in the context of section 23 that points to abrogation of common law privileges apart from two. Section 23 does not create an offence of failing to answer a question or produce a document. Rather, subsection 23(4) provides that a person who, amongst other things, fails without reasonable excuse to comply with a summons issued to produce documents or refuses to obey a lawful direction of the Court commits a contempt of the Court. The fact that the section adopts the common law procedure and sanction of contempt is consistent with a lack of intention on the part of Parliament to abrogate common law privileges.

Sections 10 and 11 create and constitute the Court as a court of record, which is also a common law concept. The fact that Parliament chose to create the Court as a court, and that courts traditionally recognise common law privileges, is consistent with a lack of intention on the part of Parliament to abrogate common law privileges.

[43] With respect, it is not entirely clear whether the Court considered it unnecessary to resolve the tension between the decisions of the High Court because the coronial inquest was a curial proceeding, or because it was obliged to apply Pyneboard and Morris unless and until they were overruled by an authoritative decision of the High Court. However, it is clear that the Court's ultimate conclusion was based on an assumption that penalty privilege existed and applied in the coronial inquest unless expressly or implicitly abrogated. In the adoption of that approach, the reasons do not explore the issue whether, having regard to statements in Daniels, the rule in Potter v Minahan is implicated in determining whether or not penalty privilege has been abrogated in the context of curial proceedings, or whether some less stringent test of legislative intention is sufficient for that purpose.

[44] Like the Full Court of the Federal Court in Frugniet, we also do not consider ourselves at liberty to disregard the observations made by the plurality of the High Court in Daniels, and we feel bound to conclude that penalty privilege will not apply to non-curial proceedings unless there is a foundation for applying it on proper construction of the statute which governs the conduct of the proceedings.[41] Daniels, Rich and Frugniet no doubt state that penalty privilege is not a substantive rule of law or common law immunity which has operation outside judicial proceedings. However, those decisions do not contain anything which states that, in judicial proceedings, penalty privilege is not a common law right (or rule) which may only be abrogated expressly or by necessary implication. The characterisation of penalty privilege as something other than a substantive rule of law might suggest that it is not a 'fundamental' right or immunity which attracts the operation of the legality principle, in which case there would be the weaker presumption that a constructional choice consonant with that lower order of common law right should be preferred.[42]

[45] Even if there is no 'fundamentality' requirement in order for the principle of legality to have application to a common law right, and the rule in Potter v Minahan is implicated in that context, the requisite clarity of the legislative intention will vary according to the nature of the right or immunity in question,[43] and it is important not to overstate the stringency of the test. As Gageler and Keane JJ observed of the principle of legality in Lee v New South Wales Crime Commission:[44]

The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

[46] Although many of the authorities speak of the principle of legality being rebutted by 'clear and unambiguous language', there is no doubt that the presumption against interference with common law rights may be rebutted by necessary implication.[45] In the application of that test, necessary intendment may be discerned if the operation of penalty privilege would contradict or diminish the operation of the legislation and the achievement of its purposes.

[47] The original role of the coroner was administrative in nature and involved an investigation and finding of the cause of death on the verdict of a jury under the direction of the coroner. In cases of suspected homicide, the role developed further to allow the naming of a suspect which operated as a bill of indictment, but the process remained inquisitorial. The coroner's function has now evolved to include the conduct of quasi-judicial inquiries into the circumstances of deaths and disasters with an emphasis on making recommendations directed to avoiding like occurrences in the future. In the performance of that function, coroners exercise wide investigative powers and where necessary, conduct inquests to receive evidence before recording findings and comments. In the conduct of inquests, the inquisitorial aspect is maintained by the fact that coroners are generally not bound to observe the rules of procedure and evidence which apply in courts of record. However, it is now well-recognised that coroners must act judicially in the use made of evidence of low probative value or of a probative value that cannot be properly evaluated without applying the relevant rules of evidence.

[48] Against that historical background, the Coroners Act was enacted in 1993 and commenced on 3 April 1994. It provided that every person who is a magistrate (now styled 'Local Court judge') shall be a coroner and that a particular magistrate could be appointed as the Territory Coroner.[46] The jurisdiction conferred was to investigate or to hold an inquest into a death or disaster.[47] A coroner was clothed with the same protection and immunity as a magistrate in the performance of their duties.[48] A coroner was required to keep a record of findings, evidence and comments in relation to each investigation into a death or disaster,[49] but the coroner was not expressly constituted as a court of record as is the position in some other jurisdictions.[50] A coroner may report to the Attorney-General on a death or disaster, including making recommendations in relation to public health and safety or the administration of justice, and a coroner may report to the Commissioner of Police and the Director of Public Prosecutions if the coroner believes that a crime may have been committed in connection with a death or disaster.[51]

[49] As described above, s 38 of the Coroners Act as originally enacted expressly preserved the privilege against self-incrimination. Otherwise, s 39 provided that a coroner holding an inquest was not bound by the rules of evidence and may be informed, and conduct the inquest, in a manner the coroner reasonably thinks fit.[52] The powers at inquest include the issue of a summons to give evidence or produce documents, and to order a witness to take an oath or affirmation or to answer questions.[53] The failure to comply with a summons or order of that nature is not punishable in accordance with the common law procedure for contempt. Rather, the legislation creates the offence of failing to obey a summons, order or direction.[54] The legislation also creates the offence of contempt by insulting a coroner, interrupting an inquest or creating a disturbance near a place where an inquest is being held.[55] Those two offence provisions cover the common law notions of contempt by disobedience and contempt in the face of the court, and the implication would seem to be that a coroner does not have power to punish contempt of court in the coronial process, and that the common law procedure in sanction of contempt has been displaced.[56]

[50] Having regard to those provisions and considerations, it falls to determine whether coronial proceedings under the Coroners Act are properly characterised as a 'judicial proceeding' or a 'curial proceeding' as those terms are comprehended in cases such as Daniels, Rich and Frugniet. Neither is a term of art with a technical and well-defined meaning, and there are various indicia operating on either side of the question of characterisation. That is because, as the Supreme Court observed, a coroner exercises an 'anomalous ... jurisdiction'[57].

[51] Even where not constituted as a 'court' by statute, the coroner's function was considered at common law to be exercised by a court of record by reason of the requirement to record findings and the nature of the powers exercised, including the power to punish for contempt.[58] Persons appointed as coroners are generally stipendiary magistrates (or, as in the Northern Territory, the Local Court judge equivalent), but their jurisdiction in the coronial context is conferred by statute.[59] Some legislative provisions define the term 'judicial proceeding' to mean not only proceedings before a court, but also proceedings before a statutory body in which evidence may be taken on oath.[60] A coroner clearly satisfies that description, but a statutory definition in different legislation enacted for a specific purpose does not necessarily inform the meaning of the term in other contexts.

[52] On the other side of the argument, although coroners may be bound to act judicially, that does not preclude the classification of the function being exercised as administrative, or at least something other than judicial in nature.[61] The requirement to act judicially is only to carry out a decision-making function rationally and reasonably, rather than arbitrarily.[62] The essence of judicial power, and the conduct of judicial proceedings, involves a process culminating in a binding and authoritative determination which imposes liability or otherwise affects the rights of the parties to those proceedings, and which may be enforced by the body making that determination.[63] The argument is that, therefore, coroners do not exercise judicial power, because coronial investigations and inquests do not involve a relevant legal or rights dispute between parties, the coronial function does not involve any final judgment settling issues on adjudication, and the prescribed procedure is not that applicable to judicial proceedings.[64] The fact that coroners hold appointment as stipendiary magistrates does not alter that characterisation. Committal proceedings are also conducted by stipendiary magistrates, but that is a function of an administrative character and does not involve the exercise of judicial power.[65]

[53] Given the manner in which penalty privilege developed and was applied, we have concluded on balance that 'curial proceedings' and 'judicial proceedings' in this context are properly considered to be references to proceedings in which judicial power is exercised in accordance with the ordinary rules of procedure and evidence, including discovery and interrogation processes. Coronial inquests are proceedings which by their very design and purpose eschew the ordinary rules of procedure and evidence in favour of a system directed to discovering the causes, both direct and systemic, of a death or disaster. As Lord Lane observed in R v South London Coroner; Ex parte Thompson:[66]

Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.

[54] Similarly, in Mirror Newspapers Ltd v Waller, Hunt J observed:[67]

The other section of the Coroners Act to which I referred in this context was s 33, which provides that the coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law. The need for such a departure from the rules of procedure is obvious, because an inquest or an inquiry does not have parties, and there are no pleadings, charges or indictments which define the issue to be tried. Although usually there are legal representatives for the interested parties, the coroner must consider the interests not only of those parties but also of other persons as well. It is often left to the coroner himself to maintain a vigilant eye upon the relevance of evidence, and objections to the evidence are not always readily apparent. The absence of defined issues is of paramount importance in relation to this question. Their absence necessarily requires the adoption of different procedures to those applicable to proceedings before the ordinary courts of law.

[55] The process remains essentially inquisitorial, and the facility to proceed other than in accordance with the rules of evidence and procedure which apply in curial and judicial proceedings militates against the conclusion that penalty privilege had application in proceedings under the Coroners Act as originally enacted, subject only to abrogation by clear words or necessary intendment.

[56] The appropriate starting point is that there must have been something in the language and provisions of the Coroners Act which on proper construction operated to import penalty privilege into the process. The purpose of the legislative scheme is to permit a full investigation into deaths and disasters, including making reports and recommendations directed to public health and safety and the administration of justice. A coroner is given broad powers for that purpose, including the power to compel the production of materials and answers to questions. Given that the subject matter of coronial inquests will often involve the conduct of police, medical practitioners and other persons subject to vocational disciplinary regimes,[68] the efficacy of that process and the achievement of the legislative purpose would no doubt be hampered in some circumstances if penalty privilege did have application. On the other hand, there is nothing express or implicit in the legislation which would demonstrate a legislative intention that penalty privilege was intended to have application to coronial proceedings.

[57] Under the legislation as it stood prior to the 2002 amendment, only the privilege against self-incrimination was expressly preserved. The express mention of that privilege does not sustain a relevant and necessary legislative intention concerning other forms of privilege or immunity.[69] That there was no express preservation of legal professional privilege does not lead to the conclusion that it was intended to be abrogated, and certainly not having regard to the decision in Baker v Campbell,[70] which predated the enactment of the legislation, and the subsequent characterisation of that privilege in Daniels. Equally, that there was no express preservation or abrogation of penalty privilege does not sustain an inference that it was intended to be imported into the coronial process. In fact, if it is assumed that the legislature acted on the basis adopted in Pyneboard and Morris that penalty privilege is of a relevantly similar nature to the privilege against self-incrimination, the express preservation of the latter privilege might if anything be seen to sustain the inference of an intention to abrogate the former. On the other hand, had the legislature appreciated and adopted the approach in Daniels it would presumably have made express provision for penalty privilege had it been intended to have application.

[58] For these reasons, we have concluded that at the time of the enactment of the Coroners Act penalty privilege was not imported into the conduct of coronial proceedings under that legislation. In coming to that conclusion, we have not adopted the view that penalty privilege cannot apply to coronial proceedings because they are incapable of exposing a witness to penalties and forfeitures. Although a coroner does not have any jurisdiction or power to impose penalties generally, and although the type of penalty apprehended in this case is one which could only be imposed in the course of police disciplinary proceedings, it would seem to be accepted that penalty privilege may be claimed - assuming it has otherwise been found to have application to the proceedings - notwithstanding that the penalty could not be imposed in those proceedings but might be imposed in different proceedings.[71]

[59] Even if we are wrong in the conclusion that coronial proceedings are not curial or judicial in nature, with the consequence that penalty privilege therefore had application in proceedings under the Coroners Act unless abrogated expressly or by necessary intendment, for the reasons which follow, penalty privilege was abrogated by the 2002 amendment to s 38 of the Coroners Act.

[60] As already described above, the Coroners Act as originally enacted expressly recognised and preserved the privilege against self-incrimination in coronial proceedings by reference to an answer which 'may tend to incriminate the person'. The 2002 amendment to s 38 of the Coroners Act speaks in terms of an answer which 'will criminate or tend to criminate him or her'. On one argument propounded in this appeal, the word 'criminate' has a wider meaning than 'incriminate' and extends to include exposure to the imposition of a civil penalty. On that argument, even if penalty privilege would otherwise apply, a witness would not be entitled to refuse to answer questions by operation of s 38(2) of the Coroners Act. The corollary to that constructional argument is that the 2002 amendment to s 38 of the Coroners Act imported a qualified form of penalty privilege into coronial proceedings subject to the claim and certification process.

[61] It is apparent that the use of the word 'criminate' in the Northern Territory provision was adopted from s 47 of the Coroners Act 1996 (WA), on which s 38 of the Coroners Act was closely modelled. Section 47 of the Western Australian Act provided:

(1) If a person called as a witness at an inquest declines to answer any question on the ground that his or her answer will criminate or tend to criminate him or her, the coroner may, if it appears to the coroner expedient for the ends of justice that the person be compelled to answer the question, tell the person that if the person answers the question and other questions that may be put to him or her, the coroner will grant the person a certificate under this section.

(2) After a person has been offered a certificate, the person is no longer entitled to refuse to answer questions on the ground that his or her answers will criminate or tend to criminate him or her, and if the person gives evidence to the satisfaction of the coroner, the coroner must give the person a certificate to the effect that the person was called as a witness in the inquest and that the person's evidence was required for the ends of justice and was given to the coroner's satisfaction.

(3) Where a person is given a certificate under this section in respect of any evidence given at an inquest, a statement by the person as part of that evidence in answer to a question is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceedings.

[62] Quite apart from the textual similarities between the amended form of s 38 of the Coroners Act and s 47 of the Western Australian legislation, the provenance of the current Northern Territory provision is confirmed by the Northern Territory Law Reform Committee report which dealt with the privilege against self-incrimination in coronial inquests and was provided to the Attorney-General in October 2021.[72] Reference was made in that report to a draft Bill to be presented to the Territory legislature which was based in its relevant aspects on the Western Australian legislation. An appendix to the report comprising a survey of Federal and interstate legislation also set out s 47(1) of the Coroners Act 1996 (WA) as a model provision. However, the report did not draw a distinction between 'criminate' and 'incriminate', or suggest or recommend that the word 'criminate' should be used to cure an identified mischief in the use of the word 'incriminate'.

[63] An examination of the Western Australian legislative history discloses that the word 'criminate' was not purposefully used in the Coroners Act 1996 to denote a privilege which extended in scope beyond self-incrimination. The Coroners Act 1996 repealed the Coroners Act 1920 (WA). That antecedent legislation did not contain any provision similar to s 47 of the Coroners Act 1996, did not use the word 'criminate', and in fact made no reference to self-incrimination at all. However, the term 'criminate' was used in the Evidence Act 1906 (WA), s 8 of which made a person charged with an offence a competent but not compellable witness, who could not be called 'except upon his own application' (s 8(a)), and further provided in s 8(1)(d):

A person charged and being a witness in pursuance of this section may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged.

[64] The word 'criminate' was also used in ss 11(1) and (2) of the Evidence Act 1906 as follows:

(1) Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the Judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.

(2) Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the Judge, the Judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding, and that his evidence was required for the ends of justice, and was given to his satisfaction.

[65] The legal consequences of a certificate issued pursuant to s 11 were set out in s 13 of the Evidence Act 1906 as follows:

If any person called as a witness or interrogated under sections eleven or twelve receives the certificate therein mentioned (but not otherwise) he shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures and punishments to which he was liable for anything done before that time in respect of the matters touching which he is so examined:

Provided that nothing herein contained shall make such certificate pleadable in bar of any indictment or information brought against such person for perjury committed in such proceeding as aforesaid.

[66] The structure of the first two sub-sections of s 11 of the Evidence Act 1906 and s 47 of the Coroners Act 1996, and the similarities in drafting, provide a clear indication that s 47 has its origins in s 11 of the Evidence Act 1906.[73] However, receipt by the witness of a certificate under s 13 of the Evidence Act 1906 as originally enacted 'freed' the witness not only from criminal prosecutions and penal actions, but also from 'all penalties, forfeitures and punishments', whereas s 47 of the Coroners Act 1996 provides only that an incriminating answer would not be admissible in evidence in criminal proceedings. That is because by the time the Coroners Act 1996 was enacted, the Evidence Amendment Act 1990 (WA)[74] had inserted the following subsection after s 11(2):

(2a) Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.

[67] The Evidence Amendment Act 1990 also made a consequential amendment to s 13 of the Evidence Act 1906 by deleting the words 'called as a witness or interrogated under sections 11 or 12' and substituting 'examined as a witness under section 12'.[75] That amendment reflected the fact that the legal consequences of a s 11(2) certificate were now dealt with by the newly inserted s 11(2a). The effect of the amendments was that the protection afforded by the certificate no longer extended to 'all penalties, forfeitures and punishments' and was limited to criminal prosecution.[76]

[68] To the extent that a certificate under the Evidence Act 1906 as originally enacted had application to penalties, that was achieved by the extension of the protection to 'all penalties, forfeitures and punishments' rather than by the use of the word 'criminate'. The reference to 'penalties, forfeitures and punishments' described the extent of the immunity rather than the nature of the privilege. So much is apparent from the fact that, following the 1990 amendments, a certificate has no operation in relation to civil penalties and forfeitures notwithstanding the continued use of the word 'criminate'. The same conclusion must be drawn in relation to the operation of s 47 of the Coroners Act 1996, because it was enacted after the 1990 amendments to the Evidence Act 1906. A comparison of s 11 of the Evidence Act 1906, as amended, and s 47 of the Coroners Act 1996 demonstrates that the latter was very closely modelled on the former.

Section 11 of the Evidence Act 1906 (WA), as amended by No. 47/90

Section 47 of the Coroners Act 1996 (WA)

(1) Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the Judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.

(2) Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the Judge, the Judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding, and that his evidence was required for the ends of justice, and was given to his satisfaction.

(2a) Where in a proceeding a person is given a certificate under subsection 2 in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.

(1) If a person called as a witness at an inquest declines to answer any question on the ground that his or her answer will criminate or tend to criminate him or her, the coroner may, if it appears to the coroner expedient for the ends of justice that the person be compelled to answer the question, tell the person that if the person answers the question and other questions that may be put to him or her, the coroner will grant the person a certificate under this section.

(2) After a person has been offered a certificate, the person is no longer entitled to refuse to answer questions on the ground that his or her answers will criminate or tend to criminate him or her, and if the person gives evidence to the satisfaction of the coroner, the coroner must give the person a certificate to the effect that the person was called as a witness in the inquest and that the person's evidence was required for the ends of justice and was given to the coroner's satisfaction.

(3) Where a person is given a certificate under this section in respect of any evidence given at an inquest, a statement by the person as part of that evidence in answer to a question is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceedings.

[69] As already described, s 38 of the Coroners Act was modelled in turn on s 47 of the Western Australian legislation, including the adoption of the term 'criminate'. Given the legislative history and the operation of the Western Australian legislation at the time the 2002 amendments to the Coroners Act were being developed, it cannot be inferred from the use of the term 'criminate' that the legislature intended s 38 of the Coroners Act to operate in relation to penalty privilege as well as the privilege against self-incrimination. That is so even having regard to those cases referred to by the Coroner and the Supreme Court which might be seen to suggest that the term 'criminate' was historically also used in contemplation of exposure to civil penalties or forfeitures.[77] The most that can be said is that the term is neutral in that respect. If there is a legislative intention to apply s 38 of the Coroners Act to penalty privilege it must be discerned elsewhere in the text and structure of the legislation.

[70] The second, fourth and fifth respondents say that intention may be discerned from the text of s 38(3) of the Coroners Act, which provides that the statements the subject of a certificate are not admissible in evidence in both criminal and civil proceedings, including in proceedings before a tribunal or person exercising powers and functions in a judicial manner. As the scope of that protection would extend to proceedings which might have disciplinary action or the imposition of other civil penalties as a consequence, it is said that s 38 of the Coroners Act must operate in relation to penalty privilege in the same manner as the privilege against self-incrimination. That conclusion is said to be supported by the extrinsic materials, and in particular the Law Reform Committee report referred to earlier.

[71] The report stated that the 'policy behind the [proposed] amendment is to get to the truth', and that, because 'many witnesses at inquests are more concerned about civil liability than criminal charges and guilt, the policy may be more likely fulfilled if the certificate were extended to include "any criminal, civil or other proceedings"'.[78] That issue was then picked up in the second reading speech on the Bill which introduced the amendments to s 38 of the Coroners Act in 2002. In that speech, the Attorney-General said:

The objective of the coronial inquest is to find the truth about all circumstances of the death. In recent cases in the Territory this objective has been frustrated by witnesses refusing to answer questions.

The making of sensible recommendations in relation to public health or safety, or the administration of justice, may also be frustrated where medical practitioners refuse to answer questions on the basis of self-incrimination. It may be that in these cases, the concern for these witnesses may not be that he or she may be charged with a criminal offence, but that civil or disciplinary proceedings may result from the giving of the evidence. It is important to emphasise that the effect of the amendment is not to provide an indemnity from prosecution or protection against civil action or disciplinary action. The witness could still be charged with a criminal offence following the inquest, or investigations taken with regard to civil or disciplinary action. It is just that the actual evidence given to the coroner cannot be used in subsequent proceedings.

The policy behind the amendment is to get to the truth.

[72] We accept the submissions made by the third respondent to the effect that these extracts from the report and the second reading speech do not suggest an intention on the part of the legislature to confer a qualified form of penalty privilege. The reference to medical practitioners claiming the privilege against self-incrimination due to a concern about the use of answers in civil proceedings did not suggest that the amendment would extend to incorporate some form of qualified penalty privilege. Answers which might suggest the witness had committed a criminal offence sufficient to ground a claim for privilege against self-incrimination might equally be deployed in disciplinary proceedings or in civil proceedings claiming damages. Rather, the reference to that concern explains why the scope of the use immunity under the qualified privilege against self-incrimination was extended to both criminal and civil proceedings, including disciplinary tribunal proceedings.[79]

[73] We also respectfully agree with the Supreme Court's conclusion that, on proper construction, s 38 of the Coroners Act is concerned only with the qualification of the privilege against self-incrimination, and did not import a modified form of penalty privilege into coronial proceedings.[80] If it is accepted, as we have found, that penalty privilege had no application to coronial proceedings prior to the 2002 amendment, there is nothing in the text of the amended provision which confers a right on a witness to the provision of a certificate granting use immunity on a claim for penalty privilege on the apprehension of disciplinary proceedings, as opposed to a claim for the privilege against self-incrimination. There is certainly no express provision referring to objection 'on the ground that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty', as was the case in the legislation under consideration in Attorney General (NSW) v Borland.[81]

[74] There is also no discernible legislative object or intention to confer an immunity of that sort. The mischief which led to the enactment of the 2002 amendment was that coronial proceedings were being stultified by witnesses claiming the privilege against self-incrimination, which was expressly preserved by s 38 in its original form, and refusing to answer questions on that basis. The remedy for that was to abrogate that privilege and replace it with a procedure which gave a coroner the power to require a witness to answer, while at the same time providing the witness with the protection of a use immunity. That remedy was directed only to the subsisting privilege against self-incrimination. To adopt Brennan J's formulation in Pyneboard, the statutory abrogation of self-incrimination merely confirms a person's obligation to furnish the information or produce the document, rather than giving rise to an implication that penalty privilege is or remains available.

[75] Finally, even if coronial proceedings are properly considered to be curial or judicial in nature, and penalty privilege therefore had application in proceedings under the Coroners Act unless abrogated, the 2002 amendment to s 38 of the Coroners Act operated to abrogate penalty privilege by necessary intendment. It is common ground that s 38 of the Coroners Act partially abrogates the privilege against self-incrimination by permitting a coroner to sustain or overrule a claim of the privilege upon the offer of a certificate where 'it appears to the coroner expedient for the purposes of justice that the person be compelled to answer the question'. It would lead to an absurd result if the legislature had abrogated the privilege against self-incrimination but left penalty privilege in place. As the plurality observed in Daniels at [30]:[82]

The implication that the privilege against exposure to penalties was abrogated by s 155(1) can be supported by reference to the absurdity that would result if that privilege could be claimed and, pursuant to s 155(7), the privilege against self-incrimination could not.

[76] While it is true that observation is obiter dicta, and was directed specifically to the operation of the Trade Practices Act, it reflects the principle underpinning the findings in both Pyneboard and Morris. It is also consistent with McHugh J's observation in Daniels that the decision in Pyneboard could be justified on the ground that the express abrogation of the privilege against self-incrimination gave rise to a necessary implication that any right to claim penalty privilege was also abolished.

[77] As the Full Court said in Frugniet, after the treatment in Daniels all that is left of Pyneboard in relation to penalty privilege is the result, predicated on the absurdity that would result if the person was able to claim penalty privilege but not the privilege against self-incrimination. That is because it would allow a coroner to compel a witness exposed to potential criminal proceedings whilst providing a complete immunity from questions giving rise to civil or disciplinary consequences, an outcome which was described by the High Court in Pyneboard as 'irrational' and 'bizarre'[83]. Moreover, that result would frustrate the abrogation of the privilege against self-incrimination because a claim of penalty privilege would in many instances also extend to questions, evidence and statements which would also otherwise be subject to the qualified privilege against self-incrimination.

[78] At a somewhat higher level of abstraction, the conclusion that the abrogation of the privilege against self-incrimination impliedly excludes the operation of penalty privilege is consistent with the result in Morris. There the exclusion was said to arise from the inconsistency between a provision requiring officers to obey lawful orders, and the detrimental impact which the operation of penalty privilege would have on discipline in the police force. Just as it was inappropriate to subject the obligation to obey lawful orders 'to any unexpressed qualification', the requirement to answer questions in coronial proceedings is directed in large part to the conduct of public authorities and should be similarly unfettered. The continued operation of a penalty privilege after the abrogation of the privilege against self-incrimination would contradict or diminish the operation of the coronial legislation and the achievement of its purposes.

[80] Consistent with these reasons, the notices of contention filed by the second respondent and the fourth respondent are dismissed.

__________________________

[1] Inquest into the death of Kumanjayi Walker (Ruling No 5) [2022] NTLC 024.

[2] Sections 39 and 41(1)(c) of the Coroners Act respectively provide that: a 'coroner holding an inquest is not bound by the rules of evidence and may be informed, and conduct the inquest, in a manner the coroner reasonably thinks fit'; and a 'coroner may ... subject to s 38, order a witness to give evidence on oath'.

[3] Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [67]- [69].

[4] In its unanimous decision in Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135], the High Court stated: 'Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.' An example of the application of the principle is Narain v Euroasia [2009] VSCA 290; 26 VR 387 at [44], per Nettle J: 'Strictly speaking, Santow and Campell JJA's remarks in Elkofairi were obiter, but I take them to be 'seriously considered' obiter and, with respect, I am not persuaded that they are plainly wrong.'

[5] The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission ('Daniels') [2002] HCA 49; 213 CLR 543 at [30].

[6] Migration Agents Registration Authority v Frugniet ('Frugniet') [2018] FCAFC 5; 259 FCR 219 at [76]- [77].

[7] Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [71].

[8] Priest v West [2012] VSCA 327; (2012) 40 VR 521 at [6].

[9] Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [65].

[10] Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [72]- [73].

[11] Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [74].

[12] Public Service Board v Morris ('Morris') [1985] HCA 9; (1985) 156 CLR 397 at 402 per Gibbs CJ.

[14] Pyneboard v Trade Practices Commission ('Pyneboard') (1983) 152 CLR 328 at 336 per Mason ACJ, Wilson and Dawson JJ; Daniels at [13] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[15] See, for example, Pye v Butterfield [1864] EngR 803; (1864) 122 ER 1038; Redfern v Redfern [1890] UKLawRpPro 60; [1891] P 139 at 147 (in relation to ecclesiastical courts).

[22] Daniels at [11] and [16], with reference to Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.

[25] Rich v Australian Securities and Investments Commission ('Rich') [2004] HCA 42; 220 CLR 129.

[36] Attorney General (NSW) v Borland [2007] NSWCA 201.

[37] Attorney General (NSW) v Borland [2007] NSWCA 201 at [10]- [11].

[38] Deputy Coroner of SA v Bell ('Bell') [2020] SASC 59.

[42] Balog v Independent Commission against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 635-636; Malika Holdings v Stretton (2001) 178 ALR 218 at 224 per McHugh J; Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499; Price v McCabe; Ex parte Price [1985] 2 Qd R 510.

[43] Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [159], cited with approval in Stephens v R [2022] HCA 31; (2022) 404 ALR 367 at [34]; Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1 at [98].

[44] Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at 310 [313].

[45] See, for example, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 438 (Mason CJ, Brennan, Gaudron and McHugh JJ), 446 (Deane and Dawson JJ); X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at 109 [24] (French CJ and Crennan J): 'clear words or necessary implication', 603 [119], 604 [125] (Hayne and Bell JJ): 'by express words or necessary intendment'; Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at 466 [31] (French CJ, Crennan, Kiefel, Bell and Keane JJ): 'clear words or those of necessary intendment'.

[46] Coroners Act, s 4.

[47] Coroners Act, s 6(1).

[48] Coroners Act, s 7.

[49] Coroners Act, s 11.

[50] See, for example, Coroners Act 2003 (SA), ss 10, 11. Although s 42(1) of the Coroners Act provides that a coroner shall conduct an inquest in 'open court', that appears to be a reference to the conditions under which an inquest is to be conducted rather than to the character of the proceedings.

[51] Coroners Act, s 35.

[52] It may be noted that is the obverse of the position obtaining in the circumstances under consideration in Rich, in which there was a provision expressly requiring the Court to apply the rules of evidence and procedure.

[53] Coroners Act, s 41(1).

[54] Coroners Act, s 41(3).

[55] Coroners Act, s 46.

[56] The position at common law was that a coroner constituted an inferior court of record, the powers of which were relevantly limited to contempt committed in the face of the court: R v Lefroy (1873) LR 8 QB 134.

[57] Decker v State Coroner of New South Wales ('Decker') [1999] NSWSC 369; (1999) 46 NSWLR 415 at [20].

[58] Decker at [6], citing Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 381, 386; John Fairfax & Sons Ltd v Gill (1988) 12 NSWLR 77 at 80-81.

[59] Decker at [15]. Section 6(2)(b) of the Coroners Act preserves the jurisdiction conferred by the common law, but that preservation does not add anything to the proper characterisation of coronial proceedings as either 'judicial' or 'non-judicial'.

[60] See, for example, Crimes Act 1914 (Cth), s 39.

[61] Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296.

[62] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367.

[63] Hunter Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330; Australian Apple & Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77 at 83; Rola Co (Aus) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185 at 198. It may be noted by way of example that a coroner is expressly precluded from including in any finding or comment a statement that a person is or may be guilty of an offence: Coroners Act, s 34(3).

[64] Domaszewicz v State Coroner [2004] VSC 528; (2004) 11 VR 237 at [37]; Grollo v Bates (1994) 53 FCR 218.

[65] Lansley v Knight; Ex parte Murphy (1992) 110 FLR 295.

[66] R v South London Coroner; Ex parte Thompson [1982] 126 SJ 625; cited in McKerr v Armagh Coroner [1990] WLR 649 at 655.

[67] Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 16.

[68] The conduct of an inquest is mandatory in relation to deaths occurring where the deceased was held in care or custody, or during or as a result of an anaesthetic: Coroners Act, s 12(1).

[69] On the issue of express mention of one privilege and the omission of another as giving rise to the inference of an intention to abolish the privilege in the application of the expressio unius principle: see Suzanne McNicol, Law of Privilege, Sydney: Lawbook Co, 1992 at 122-123; and Corporate Affairs Commission (NSW) v Yuill (l991) [1991] HCA 28; 172 CLR 319 at 335.

[70] Baker v Campbell (1983) 153 CLR 52. That decision held that the doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings. Until that decision, the law was thought to be that a claim of legal professional privilege was not available in other circumstances.

[71] See Bell at [149], citing Refrigerated Express Lines (Australasia) v Australian Meat and Livestock Corporation (1979) 42 FLR 204 at 207-208; Trade Practices Commission v Abbco Iceworks Pty Limited [1994] FCA 1279; (1994) 52 FCR 96 at 127-129; Construction Forestry Mining & Energy Union of Australia v Inspector Alfred [2004] FCAFC 36; (2004) 135 FCR 459 at [50].

[72] Northern Territory Law Reform Committee, Privilege Against Self-Incrimination, Report No.23, October 2001, 5-6, 9.

[73] The Evidence Act 1906 (WA), s 11 was taken from the Protection of Witnesses Act 1875 (WA), 39 Vict, No.6, s 2. The Evidence Act 1906 (WA), s 13 was taken from the Protection of Witnesses Act 1875 (WA), 39 Vict, No.6, s 3. It may be noted that s 24 of the Evidence Act 1906 (WA) also used the word 'criminate': 'Except as hereinbefore provided, nothing in this Act shall render any person compellable to answer any question tending to criminate himself.'

[74] Evidence Amendment Act 1990 (WA), No. 47 of 1990, s 4.

[75] Evidence Amendment Act 1990 (WA), No. 47 of 1990, s 6.

[76] The Evidence Amendment Act 1990 was enacted to remedy an identified mischief and anomaly, namely the circumstances in which one co-accused gave evidence under protest of self-incrimination in the trial of another co-accused claiming sole responsibility for a crime. The consequence of that evidence was that the other co-accused was acquitted, and the witness was entitled to a s 11 certificate precluding him or her from being tried for the offence: see Second reading, Evidence Amendment Bill, Hon J M Berinson (Attorney-General), WA Legislative Council, 26 September 1990.

[77] Short v Mercer (1851) 20 LJ Ch 289, 290; Marton v Treacher (1886) 16 QBD 507; Paxton v Douglas [1809] EngR 431; (1809) 16 Ves Jun 239, 240, 241, 243. The use of the term 'criminate' in those speeches might be seen only to reflect the fact that penalty privilege and the privilege against self-incrimination are based on the same general principle.

[78] Northern Territory Law Reform Committee, Privilege Against Self-Incrimination, Report No.23, October 2001 at 9.

[79] This construction was also accepted by the Supreme Court: see Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [52], [54]-[55].

[80] Bauwens & Anor v The Territory Coroner [2022] NTSC 92 at [51], [55].

[81] Attorney General (NSW) v Borland [2007] NSWCA 201.