Sorby v Commonwealth

The second main issue in the case concerns the question whether the search and seizure of the plaintiffs' property was lawful, and whether the Commissioner was entitled to take possession of the goods and documents seized, and to retain them and to make copies of such as are documents. The warrants under which the search and seizure was effected are before the Court, and they appear in form to satisfy the requirements of the statutory provisions under which they were respectively issued, viz. s. 10 of the Crimes Act 1914 Cth, as amended, s. 679 of the Criminal Code Q. and s. 131A of the Health Act 1937 Q., as amended. It was not suggested that the conditions which are laid down in those sections as necessary to be satisfied before warrants may be issued were not fulfilled. Most of the warrants are indorsed with a direction by a justice that the property seized by virtue of the warrant be retained by the Royal Commission until such time as its investigations are completed. Nothing was made of the fact that some of the warrants bear no indorsement; for all that appears nothing may have been seized under the warrants that are not indorsed. The directions appear to have been given under, or by analogy to, s. 682 of the Criminal Code, which requires a person seizing anything under the Code to carry it forthwith before a justice, who, "may cause the thing so seized or taken to be detained in such custody as he may direct, taking reasonable care for its preservation, until the conclusion of any investigation that may be held with respect to it; and, if any person is committed for trial for any offence committed with respect to the thing so seized or taken, or committed under such circumstances that the thing so seized or taken is likely to afford evidence at the trial, he may cause it to be further detained in like manner for the purpose of being produced in evidence at such trial". Things seized under s. 131A of the Health Act 1937 Q., as amended, may, under s. 130M(3) of that Act, be retained for a period of twelve months unless it is sooner established to the satisfaction of the Attorney-General that at the time of seizure and retention no offence against any provision of that Act in relation to that thing had been committed (in which case the thing shall be returned to the person from whom it was seized) or within that period proceedings for an offence against that Act in relation to that thing, or, in which that thing may be used as evidence, have been instituted (in which case the thing shall be retained until the final determination or other disposal of those proceedings). Section 10 of the Crimes Act 1914 Cth, as amended, makes no express provision as to the retention of things seized.

It was submitted on behalf of the plaintiffs that the Royal Commissions Act 1902 Cth, both before and after its amendment by the Amendment Act of 1982, and the Commissions of Inquiry Act of 1950 Q., as amended, contain provisions empowering a Royal Commissioner to obtain and retain documents, and that the Commissioner has no other power of search and seizure. By ss. 2 and 6F of the Commonwealth Act before its amendment, and by ss. 5 and 19 of the Queensland Act, power was given to the Commissioner to summon a person to produce books, documents and writings and to retain and to copy them when produced. By the Amendment Act, a Commissioner acting under the Commonwealth Act has now further powers; he may summon a person to produce things other than documents (s. 2) and, s. 6F has been amended to refer to things as well as documents; reference will later be made to its provisions. If the Commission is a "relevant commission" (i.e. a Commission established by letters patent that declare that the Commission is a relevant Commission for the purposes of the provision in which the expression appears - s. 3 of the Amendment Act) it may procure the issue of search warrants (ss. 4 and 5). However, ss. 4 and 5 of the Amendment Act are not relevant to the present question, since they were not in force when the warrants were issued and the searches and seizures were made. The argument on behalf of the plaintiffs was that in the light of these specific provisions it cannot have been intended that a Commissioner could ensure the production of documents, and acquire a right to retain them when produced, by arranging for a constable or other officer to procure the issue of a search warrant under the general statutory provisions mentioned and to obtain a direction from a justice of the peace that the documents and things seized be delivered to the Commissioner.

Two separate questions are involved in the plaintiffs' argument. The first is whether the searches and seizures were valid. Although the declaration claimed in the statement of claim speaks of search and seizure by officers of the Royal Commission, it is nowhere alleged that the officers who effected the seizure were authorized to do so by the Royal Commissioner or were acting within the scope of any authority given to them by the Royal Commissioner. In any case, no facts have been alleged that would show that the searches and seizures were not lawfully made. There is nothing to suggest that the warrants were not in due form or that all statutory conditions of their issue were not complied with. It is not possible to construe the provisions of the legislation, either Commonwealth or State, which empowers a Commissioner to obtain the production of documents by the issue of a summons, as having the effect of rendering unavailable the provisions of the Crimes Act, the Criminal Code and the Health Act where, according to their own terms, those statutes were applicable. There is no inconsistency between a statute which empowers a Royal Commissioner to summon a person to produce documents, and one which authorizes a police officer to obtain and execute a warrant entitling him to search and seize documents and other things, even if the things seized are intended to be delivered to a Royal Commission. It is hardly necessary to point out that in some circumstances the execution of a search warrant may prove effective when a summons for production would be of no avail.

The second aspect of the matter is whether the Commissioner, having been given the documents, may retain and use them. It seems that the power given to a justice under s. 682 of the Criminal Code to direct the retention of a thing seized until the conclusion of an investigation is intended to enable the thing to be held pending an investigation by the police into a suspected crime. In the present case there is nothing to say whether or not such an investigation is now proceeding. However, the statement of claim does not allege wrongful detention by any person except the Royal Commissioner. By s. 6F of the Royal Commissions Act before its amendment, it was provided, inter alia, that a Commissioner "may inspect any documents, books, or writings produced before the Royal Commission, and may retain them for such reasonable period as it or he thinks fit, and may make copies of such matter as is relevant to the inquiry or take extracts from them". Section 19(1) of the Commissions of Inquiry Act confers a power in similar terms. Section 6F of the Royal Commissions Act now gives the Commissioner power to inspect and retain documents or other things produced before or delivered to the Royal Commission. The power of retention is now expressed to be "for so long as is reasonably necessary for the purposes of the inquiry to which the documents or other things are relevant". These statutory provisions were not necessary to enable a Commission to inspect documents produced before it which it deemed to be relevant, because a power to inquire necessarily includes a power to have regard to any material relevant to the inquiry. The statutory provisions were however necessary to give the Commission power to retain documents against the will of those entitled to possession of them, and perhaps also a power to make copies.

In the present case the documents and other things, having been lawfully seized, were produced before the Commission. The Commissioner therefore had, and has, authority under both the Commonwealth and State legislation to retain for a reasonable period the documents thus produced, and to make copies of or extracts from them, providing of course that they are relevant, which is not put in issue. It may have been doubtful, before 1 February 1983, whether the Commissioner could have retained, against the will of those entitled to possession, things other than documents, but that is now an academic question. There is no allegation that any demand was made for the return of any such things before the Amendment Act was passed, and the Commissioner may now retain them, for the purpose of the Commonwealth inquiry, even if a demand is made. The Commissioner would not however be entitled by the Commissions of Inquiry Act to retain things, other than documents, if they were relevant only to the purpose of the inquiry under the State letters patent and not to the purpose of the inquiry under the Commonwealth letters patent. Although, by s. 19(2) of that Act, a Commissioner is entitled to inspect goods and other things, he is given no power to retain things other than documents. It is not alleged that the Commissioner has retained things relevant only to the State inquiry. Even if the Commissioner had no right to retain such things it does not appear from the facts pleaded that the plaintiffs would be entitled to their return, having regard to the provisions of s. 682 of the Criminal Code and ss. 130M(3) and 131A of the Health Act.

For these reasons the demurrer of the Commonwealth must succeed entirely. The demurrer of the Attorney-General for Queensland should succeed in part, i.e. in relation to the seizure and retention of documents and other things, but not in relation to the question of privilege. Mr. Justice Stewart did not enter a demurrer and very properly submits to any order that the Court may make.

I would order: (1) that the demurrer of the Commonwealth be allowed, (2) that the demurrer of the Attorney-General for Queensland be allowed in respect of pars. 6, 6(a), 7 and 8, and claims C and D, of the statement of claim, and that otherwise the demurrer be overruled.

The Chief Justice has set out the facts, the issues and the relevant statutory provisions in his reasons for judgment.

Privilege against Self-incrimination under the Commonwealth Act.

As we agree with the Chief Justice's conclusion that the new s. 6A, introduced by Act No. 139 of 1982, validly abrogated the privilege from the time when the amending Act came into operation, we have no need to examine the effect of the Commonwealth Act as it stood before the amendment.

We reject the argument that s. 6A speaks only to Royal Commissions established after the amending Act came into operation. Its language reflects no hint of such a qualification. In terms it applies to the examination of a witness taking place after that date, without regard to the date when the Commission was established. It is therefore appropriate to apply the general rule that an amending Act changes the text of the principal Act from the date when the amending Act comes into operation.

There is no basis for the suggestion that the provisions of the amending Act disclose a general scheme governing the conduct of Commissions to be established in the future. And such a scheme, if it were to operate sensibly, would need to be coupled with provisions which continue the operation of the repealed sections of the Principal Act in relation to Commissions established before the amending Act came into operation. Yet the amending Act contains no such provisions. Repealed sections of the principal Act such as s. 2 (summoning of witnesses), s. 3 (administration of oath), s. 4 (affirmations), s. 5 (penalty for failure to attend and produce documents), s. 6D(3) and (4) (power to restrain publication) and s. 6F (power to inspect and retain documents) thus have no application to Commissions which continue in operation after the amending Act came into force. On the plaintiffs' interpretation the new provisions of the amending Act do not cover this situation.

Even if s. 7AA does not apply to Commissions already established, as the plaintiffs submit, a submission with which we are not inclined to agree, this provides no sufficient reason for giving s. 6A a similar construction. Section 7AA is a special provision enabling a State, with the consent of the Minister, to confer powers and functions on a Commissioner. On the plaintiffs' argument s. 7AA is incapable of applying to a Commission previously established. As we have seen, it is otherwise with s. 6A.

The plaintiffs then argue that s. 6A is beyond the competence of the Parliament because it constitutes an impermissible interference with the exercise of the judicial power and, alternatively, that it infringes s. 80 of the Constitution. The first submission seems to be based on the comment of Deane J. in Hammond v. The Commonwealth [47] that it is "clear that neither the Parliament nor the Executive Government of the Commonwealth or of a State is competent to prevent or prejudice the judicial exercise by a court of part of the judicial power of the Commonwealth by the type of interference with the due administration of justice in a particular case which would ordinarily constitute contempt of court".

In Hammond , prior to his examination by the Commissioner, the plaintiff had been committed for trial on a charge of conspiring to export a prohibited export. The Court held that the Commissioner's examination of the plaintiff with respect to matters touching the pending criminal charge constituted an improper interference with the due administration of justice in the proceedings and amounted to contempt of court. However, the next step in the plaintiffs' argument is to say that s. 6A effects an impermissible interference with the administration of justice because a witness under examination at the Commission who, unlike the witness in Hammond , has not been charged can be compelled by the Commissioner to answer questions relating to an offence in respect of which a decision has already been made to charge him.

It is of the essence of contempt of court, except contempt scandalizing the court, that it be committed in relation to proceedings. For this purpose "proceedings" includes pending proceedings and this expression must be given a sufficiently broad meaning in criminal cases to cover a person who has been arrested and charged: James v. Robinson [48] ; R. v. Daily Mirror; Ex parte Smith [49] . But it may not be sufficient that the institution of proceedings may be imminent or expected. In James v. Robinson, articles which were such as to tend to prejudice the fair trial of Robinson were published in a newspaper on 10 February 1963. At the time of publication, Robinson was then at large and being sought by police officers in connexion with two killings which occurred on 9 February 1963. He was subsequently arrested and charged with wilful murder. It was held in this Court that the articles were not punishable as a contempt because there were no pending proceedings. After a lengthy examination of earlier cases, including R. v. Parke [50] in which Wills J. remarked obiter that it "is possible very effectually to poison the fountain of justice before it begins to flow" [51] , Kitto, Taylor, Menzies and Owen JJ., in a joint judgment, said [52] :

It would be an astonishing state of affairs if a person responsible for a publication were to be held guilty or not guilty of contempt according as proceedings should or should not be commenced thereafter.

We do not think that the very general considerations based upon the notion of poisoning the stream of justice before it begins to flow provide any sound or adequate test for determining what is and what is not contempt of court.

It would seem to us to follow from James v. Robinson that the possibility, or even the strong probability, that a witness called to testify before a Royal Commission will be charged with an offence provides an unlikely basis for a finding of contempt against the Commission in the event that the witness is questioned about matters which are relevant to the offence. He may never be charged. Indeed, any other approach would effectively prevent some Royal Commissions from fulfilling their task. This could be so in the present case, where the terms of reference require the Commissioner to investigate whether a particular person has been engaged in activities which involve contravention of the laws of the Commonwealth or of Queensland. The fact-finding activities of Royal Commissions are often a necessary aid to the executive, the Parliament and the public in bringing to light serious mischiefs which require a remedy, and in some instances an urgent remedy. It would impose a severe restriction on the capacity of the executive and of Parliament to introduce prompt reforms if Commissions were compelled to postpone the examination of witnesses with respect to their possible involvement in criminal offences until such time, if ever, as their criminal liability has been finally determined by the courts. In Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [53] , Gibbs C.J. contemplated that such a postponement would occur in the event of the actual institution of a criminal prosecution in the course of the inquiry. It is unnecessary to pursue this topic because a conclusive answer to the submission is that s. 6A in any event does not attempt to restrict the power of federal courts or courts exercising federal jurisdiction to punish for contempt. The fact that s. 6A(3) preserves the privilege only for a person who has been charged with an offence, but not for a person who has not been charged, would not preclude a court from restraining the Commissioner from examining a witness as to his Commission of an offence if in the particular circumstances of the case that examination amounts to a contempt. 1. (1963) 109 C.L.R. 593, at p. 606. 2. [1927] 1 K.B. 845, at p. 851. 3. [1903] 2 K.B. 432. 4. [1903] 2 K.B., at p. 438. 5. (1963) 109 C.L.R., at p. 607. 6. Ante, p. 25.

In any event the privilege against self-incrimination is not an integral element in the exercise of the judicial power reposed in the courts by Ch. III of the Constitution. It is a privilege that has been abrogated by legislative action in Australia, the United Kingdom and Canada without anyone having previously suggested that it involved the elimination of an integral element in the exercise of judicial power in a democratic society.

As we noted in Pyneboard Pty. Ltd. v. Trade Practices Commission [54] , three members of this Court in Kempley v. The King [55] (Latham C.J. and Starke and Williams JJ.) proceeded on the footing that an abrogation of the privilege by reg. 17 of the National Security (Prices) Regulations 1939 (Cth) would have been valid. There was no suggestion of inconsistency with s. 71 of the Constitution.

And in Canada s. 5 of the Canada Evidence Act 1952 deprived the privilege of substantial content - see Faber v. The Queen [56] ; cf. Batary v. Attorney-General (Saskatchewan) [57] ; E. Ratuschny, Self-Incrimination in the Canadian Criminal Process (1979), pp. 78 et seq. These developments are fundamentally inconsistent with the notion that the privilege against self-incrimination is an integral part of the exercise of judicial power. No doubt, like other features of our system of criminal justice, it has a long history and confers a very valuable protection. But it is quite another thing to say that it is an immutable characteristic of the exercise of judicial power.

1. (1975) 65 D.L.R. (3d) 423. 2. (1965) 52 D.L.R. (2d) 125.

The plaintiffs' alternative argument is that Parliament cannot exclude the privilege against self-incrimination because to do so is inconsistent with the right to trial by jury conferred by s. 80 of the Constitution. This submission was resoundingly rejected in Huddart, Parker & Co. Pty. Ltd. v. Moorehead; Appleton v. Moorehead [58] . As O'Connor J. said in that case [59] :

The principle that a witness shall not be compelled to criminate himself has become a principle of British criminal law, departed from no doubt in special instances, as in the case of offences against the bankruptcy laws, but still maintained and administered as part of the great body of British criminal jurisprudence. But it is no part of the system of trial by jury, and the authority of the Parliament of the Commonwealth to create and punish offences as incidental to the exercise of the powers conferred by the Constitution would certainly extend to the modification of any principle of British criminal law, no matter how fundamental, so long as the modification is not forbidden expressly or impliedly by the Constitution. Griffith C.J. [60] and Isaacs J. [61] also thought that the privilege against self-incrimination was not part of the system of trial by jury and was not the subject of the guarantee given by s. 80. 1. (1909) 8 C.L.R. 330. 2. (1909) 8 C.L.R., at p. 375. 3. (1909) 8 C.L.R., at p. 358. 4. (1909) 8 C.L.R., at pp. 385-386.

It follows that s. 6A validly abrogates the privilege against self-incrimination and that it applies to the examination of the plaintiffs.

The Privilege against Self-incrimination under the State Act.

We reject the submission that the privilege is merely a rule of evidence applicable in judicial proceedings and that it cannot be claimed in an executive inquiry. We adhere to the conclusion we expressed in Pyneboard [62] that the privilege against self-incrimination is inherently capable of applying in non-judicial proceedings. See Kempley [63] ; Ex parte Grinham; Re Sneddon [64] ; Commissioner of Customs and Excise v. Harz [65] .

1. Post, p. 328. 2. [1944] A.L.R. 249., esp. at pp. 253 (per Starke J.); 254 (per Williams J.). 3. (1959) 61 S.R. (N.S.W.) 862. 4. [1967] 1 A.C. 760, at p. 816.

The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pars. 113-116; Pyneboard; Crafter v. Kelly [66] .

Mortimer v. Brown [67] furnishes a compelling illustration of a statute which abrogates the privilege by necessary implication. There it was held that s. 250 of The Companies Act of 1961 Q. excluded the privilege in the public examination by a judge of directors of a company involved in voluntary liquidation. In Pyneboard we concluded that it is less difficult to show that the privilege has been impliedly abrogated in the ordinary case where a statute imposes an obligation to answer questions otherwise than on oath, provide information or produce documents in the course of an administrative investigation than in the case of an examination on oath before a judicial officer whether or not an object of that examination is a preliminary to committal for trial or summary prosecution. As we there said, 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. It is unnecessary to repeat the discussion of the various considerations that we undertook in that case.

Here the State Act makes provision for Royal Commissions generally, without regard to the character of the terms of reference as expressed in the relevant letters patent. Accordingly, it is of no moment that the Commissioner is by his letters patent required to inquire whether persons associated with Terrence John Clarke contravened laws of the Commonwealth and Queensland and to establish the identity of those persons. Nor does it matter that the offences suspected are drug offences, the Commission of which is difficult to discover and establish. The point is that we are seeking to discover whether or not there is an intention in the statute to abrogate the common law privilege and that the statute is directed to Commissions generally, whether concerned with contraventions of the law or not.

The material provisions of the State Act are described in the judgment of the Chief Justice. By s. 9(2)(ii) a witness who refuses to answer a relevant question put to him by the Commission is guilty of a contempt of the Commission. However, s. 10(4) provides in effect that the witness shall not be punished where he establishes that he had a reasonable excuse for his refusal. Section 14(1)(ii) makes it clear that a witness is not obliged to produce any book, document or writing if he has a reasonable excuse for refusing, but says nothing to relieve him from the obligation to answer questions. Section 14(2) provides some protection to a witness who may incriminate himself in answer to a question by rendering his answer, subject to limited exceptions, inadmissible in evidence against him in any civil or criminal proceedings. Section 14(3) assures a witness of the same protection as a witness has in any action or trial in the Supreme Court. As Gibbs C.J. has demonstrated, s. 14(2) in itself does not provide a protection to the witness which is coextensive with the protection given to him by the privilege. This is because the privilege protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character. The contrary conclusion reached by Kaye J. in Attorney-General (Vict.) v. Riach [68] cannot be accepted.

Nevertheless, the presence of s. 14(2) then provokes the question: What purpose is the sub-section intended to serve if it is not to protect the witness from the consequences of abrogation of the privilege? When a legislature abrogates the privilege against self-incrimination it often gives compensatory protection to the witness by providing, as s. 14(2) does, that an answer shall not be admissible in civil and criminal proceedings other than in proceedings for contempt or for an offence under the Act. See, e.g., s. 17 of the Royal Commissions Act 1923 N.S.W., as amended. A striking example of a provision which abrogates the privilege and provides similar protection is s. 5 of the Canada Evidence Act to which we have already referred. If, therefore, the sub-section had stood alone in the context of an Act which imposed an obligation on a witness to answer all relevant questions, there might well be substance in the submission that its presence was consistent only with a legislative intention to abrogate the privilege. However, the sub-section does not stand alone in the State Act. The context furnishes provisions in s. 10(4) and s. 14(1)(ii) which protect a witness in respect both of a refusal to answer questions and to produce documents if he has a reasonable excuse. There is no sufficient indication in the Act that a witness is not entitled to that protection if the reason for his refusal is a well-grounded claim to the privilege against self-incrimination.

Accordingly, in our opinion, the State Act does not abrogate the privilege. This conclusion makes it unnecessary to consider the effect of s. 14(3) in relation to this question.

We agree with the Chief Justice's reasons on these aspects of the case.

We agree with the orders proposed by the Chief Justice.

The privilege against self-incrimination is part of the common law of human rights. Unless excluded, it attaches to every statutory power (judicial or otherwise) to require persons to supply information (Pyneboard Pty. Ltd. v. Trade Practices Commission [69] ). Subject to any constitutional constraint, the privilege may be excluded or qualified by statute. Because the privilege is such an important human right, an intent to exclude or qualify the privilege will not be imputed to a legislature unless the intent is conveyed in unmistakable language.

Until 1983 the Royal Commissions Act 1902 Cth, as amended, contained no such unmistakable language. Section 6DD of that Act, provided that any statement or disclosure by a witness at a Royal Commission was not (except in proceedings for an offence against the Act) admissible as evidence in any civil or criminal proceedings in any Commonwealth, State or Territory court. This did not amount to unmistakable language of intent to exclude the privilege. This section did not prohibit the admissibility of "derivative" evidence; i.e., evidence obtained by using the testimony as a basis of investigation, and so did not remove the exposure to the danger of prosecution and conviction, which would remove the basis for the privilege, at least in its narrow sense (see Pyneboard Pty. Ltd. v. Trade Practices Commission). Even immunity from derivative use is unsatisfactory, because of the problems of proving that other evidence was derivative, and because of the real possibilities of innocent or deliberate breach of the immunity. Hence the trend in the United States has been to "transactional immunity" that is, that once a witness has been compelled to testify about an offence he or she may never be prosecuted for that offence, no matter how much independent evidence may come to light. (See Counselman v. Hitchcock [70] ; Brown v. Walker [71] which approved transactional immunity statutes; Blau v. United States [72] ; Hoffman v. United States [73] ; Malloy v. Hogan [74] .)

1. (1892) 142 U.S. 547 [35 Law. Ed. 1110]. 2. (1896) 161 U.S. 591 [40 Law. Ed. 819]. 3. (1950) 340 U.S. 159 [95 Law. Ed. 170]. 4. (1951) 341 U.S. 479 [95 Law. Ed. 1118]. 5. (1964) 378 U.S. 1 [12 Law. Ed. (2d) 653].

In Ullmann v. United States [75] Frankfurter J. stated that the sole concern of such a privilege is the danger to a witness who is forced to give testimony which might lead to the infliction of criminal penalties upon him or her. "Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases." This was questioned by Black and Douglas JJ. who argued that the Fifth Amendment provided an absolute guarantee that no person "shall be compelled in any criminal case to be a witness against himself" and that this should not be read with the implied qualification "but only if criminal conviction might result" [76] .

1. (1956) 350 U.S. 422, at p. 439 [100 Law. Ed. 511, at p. 525]. 2. (1956) 350 U.S., at p. 443 [100 Law. Ed., at p. 527].

Thus the privilege against self-incrimination was available under the Royal Commissions Act 1902 Cth, as amended, before 1983.

However the Royal Commissions Act 1902 was amended by the Royal Commissions Amendment Act 1982 Cth (which took effect on 1 February 1983). Section 6A of the amended Act excludes the privilege except where the answer (or production of a document) might tend to incriminate the person of an offence with which he has been charged and the charge has not been finally dealt with by a court or otherwise disposed of. On the ordinary rules of interpretation, the amended provisions apply to all proceedings after 1 February 1983 including those in Royal Commissions established under the Act before that date.

The plaintiffs contend that s. 6A is invalid as an unconstitutional interference with the judicial power or trial by jury (s. 80) provisions of Ch. III of the Constitution. Section 6A is presumed valid. It meets the objection to which I referred in Hammond v. The Commonwealth [77] that if under the Royal Commissions Act as it then stood there was no privilege against self-incrimination for Mr. Hammond, whose trial was pending on charges in respect of the circumstances on which the Royal Commissioner wished to examine him, this would infringe his right to trial by jury under s. 80. Also s. 6DD still provides that any statement or disclosure made at a Royal Commission by a witness is not admissible in evidence against the witness. I am not satisfied that the presumption of validity is displaced.

The Commissions of Inquiry Act of 1950 Q. like the Royal Commissions Act 1902 Cth before 1983, does not contain any language which unmistakably excludes the privilege. Therefore as part of the common law of statutory powers, the privilege is available.

I agree with the Chief Justice on search and seizure and with the orders he proposes.

The case arises on demurrers to a statement of claim raising two questions for determination. The first question is whether the third defendant, Mr. Justice Stewart, sitting as a Royal Commissioner, can compel each of the plaintiffs to answer questions over an objection that the answers might tend to incriminate the witness; the second question is whether, upon the facts pleaded, the plaintiffs are entitled to a declaration that the Royal Commissioner is not entitled to retain, copy or use documents seized from the residences of the plaintiffs and their families in execution of certain search warrants. The two questions may be considered separately. The facts pleaded in the statement of claim are set out in the judgment of the Chief Justice which I have had the advantage of reading.

The Commonwealth takes as the ground of its demurrer the statutory power of the Commissioner to compel the plaintiffs to answer questions. The statute relied on is the Royal Commissions Act 1902 Cth ("the 1902 Act") as amended by the Royal Commissions Amendment Act 1982 Cth ("the 1982 Amendment") which came into operation on 1 February 1983. The Attorney-General for the State of Queensland takes as the ground of his demurrer the statutory power of the Commissioner to compel the plaintiffs to answer questions, being a power conferred upon the Commissioner by The Commissions of Inquiry Act of 1950 Q. ("the Queensland Act"). It is not suggested that the fate of either demurrer turns on the Constitution. The Constitution does not contain a guarantee of privilege against self-incrimination similar to the Fifth Amendment in the Constitution of the United States. Nor does the fate of either demurrer depend on the scope of an overriding statutory provision similar to s. 2(d) of the Canadian Bill of Rights 1960 which, prior to the constitutional introduction of the Canadian Charter of Rights and Freedoms, required that no law of Canada should be construed or applied so as to

(d) authorize a court, tribunal, Commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards.

The only but important question for decision on this aspect of the case is the true construction of the particular Commonwealth and State Acts.

Statute apart, a Commissioner appointed by the Crown to enquire into and report upon a matter could not compel the production of documents or the giving of evidence and could not administer an oath (McGuinness v. Attorney-General (Vict.) [78] ). Australian Parliaments, both Commonwealth and State, have conferred these powers upon persons appointed by the Crown to inquire and report, and have thereby trenched upon an immunity which, in the rhetoric of rights, is called the right to silence. The question for decision is the extent to which the Parliaments of the Commonwealth and of the State of Queensland have trenched upon that right.

Section 2 of the 1902 Act conferred upon a Commissioner a power to summon persons to attend and

then and there to give evidence and to produce any books documents or writings in his custody or control which he is required by the summons to produce. A Commissioner was authorized to examine witnesses on oath or affirmation (ss. 3, 4). A person summoned to attend was guilty of an offence if he failed "without reasonable excuse" to attend or to produce documents according to the exigency of the summons (s. 5). Each of these sections was repealed by the 1982 Amendment and new provisions, to which reference will presently be made, were substituted. But s. 6 remains, though with a new penalty:

(1) If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him by any of the Commissioners he shall be guilty of an offence.

(2) The penalty for an offence under sub-section (1) is a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months.

The Commissioner's power to require answers to questions and the reciprocal obligation imposed on a witness to answer are expressed in absolute terms. There is no reference to a privilege which might qualify the power or the obligation. So far as the context of the Act throws any light upon Parliament's intention, the absence of any reference to a privilege against self-incrimination stands in contrast with an exemption to protect disclosure of a secret process of manufacture (s. 6D(1)). One may speculate whether, because of an expectation that self-incriminatory answers might be compelled, s. 6DD, was inserted into the 1902 Act. The present s. 6DD, amended in form, came into operation on 7 May 1982 and is to be found in the bowels of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 Cth (s. 202):

A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory. The use of answers given under statutory compulsion is a matter which arises only after an answer has been compelled. In enquiring whether a qualification of privilege against self-incrimination should be implied in a statute imposing in absolute terms an obligation to answer questions, it is material to consider the use to which incriminating evidence, compulsorily obtained, might be put.

In the United States, where the Fifth Amendment has enshrined the privilege against self-incrimination as a constitutional guarantee, a statute which compels the giving of self-incriminating evidence may withstand constitutional challenge if it gives sufficient protection againt the use of the evidence thus obtained (seeCounselman v. Hitchcock [1] ; Brown v. Walker [2] ; Kastigar v. United States [3] ). The protection accorded by s. 6DD, ascertained as a matter of construction (Commissioners of Customs and Excise v. Harz [4] ), does not prevent the derivative use of incriminating testimony, that is, s. 6DD does not prevent the use of incriminating testimony to search out other evidence to be used against the witness. According to the standard prescribed in Kastigar , therefore, s. 6DD falls short of according the full protection to which a witness would be entitled if there were a constitutional guarantee corresponding to the Fifth Amendment. It falls short of according the full protection which a witness would obtain if he were entitled to a privilege excusing him from the obligation of answering questions. And so it is submitted that, as s. 6DD does not accord full protection against self-incrimination, the privilege should be implied as a qualification upon the obligation to answer questions asked by a Royal Commissioner. The privilege, which Coleridge J. described in R. v. Scott [5] as "a maxim of our law as settled, as important and as wise as almost any other in it", should be held to apply, so the argument runs, unless it is excluded by clear words. The submission recalls O'Connor J.'s citation of Maxwell on Statutes in Potter v. Minahan [6] :

" It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used." 1. (1892) 142 U.S. 547 [35 Law. Ed. 1110]. 2. (1896) 161 U.S. 591 [40 Law. Ed. 819]. 3. (1972) 406 U.S. 441 [32 Law. Ed. 2d 212]. 4. [1967] 1 A.C. 760, at p. 816. 5. (1856) Dears. & B. 47, at p. 61 [169 E.R. 909, at p. 915]. 6. (1908) 7 C.L.R. 277, at p. 304.

This canon of statutory interpretation applies when the scope or operation of a fundamental principle would be affected by the general words of a statute construed in their natural sense. But do the general words of s. 6, if construed in their natural sense, restrict the scope or modify the operation of the common law privilege against self-incrimination? Or is the scope of the privilege at common law limited to proceedings where there is an obligation to testify apart from statute, that is, to judicial proceedings?

In principle, the privilege can have no operation except as a qualification upon a testimonial obligation. To imply a privilege so as to qualify a testimonial obligation created by statute would not apply a common law principle; rather, it would extend the scope of the privilege beyond the area of its common law operation. No doubt the privilege must be implied to qualify a statutory obligation to give evidence where the statutory obligation is substituted for an analogous common law obligation that is itself qualified by the privilege. Naismith v. McGovern [7] and Mitcham v. O'Toole [8] are instances where the privilege was so implied. But there is no warrant for attempting to apply the privilege to a statutory obligation which has no common law analogue.

1. (1953) 90 C.L.R. 336, at p. 342. 2. (1977) 137 C.L.R. 150, at p. 152.

The history of the privilege shows that it is restricted to judicial proceedings. It came to be applied as a rule in the courts of common law and equity after the Court of Star Chamber and the Court of High Commission were abolished in 1641 (16 Car. I c. 10 and 16 Car. I c. 11 respectively). The odious procedure of those Courts in administering the ex officio oath was forbidden to any person "exercising spiritual or ecclesiastical power, authority or jurisdiction" (16 Car. I c. 11, s. 4). Thereafter those officials were forbidden to administer an ex officio oath to a person whereby he or she should or might be obliged

to confess or to accuse himself or herself of any crime, offence, delinquency or misdemeanor, or any neglect, matter or thing, whereby or by reason whereof he or she shall or may be liable or exposed to any censure, pain, penalty or punishment whatsoever . The prohibition was re-enacted in 1661 (13 Car. II c. 12 s. 4). Not only were those officials forbidden to compel self-incrimination under oath, but the judges of the common law courts came (occasionally at first) to apply a like prohibition to their own procedure (see Professor E. M. Morgan, The Privilege Against Self-Incrimination, Minnesota Law Review, vol. 34 (1949) 1, at p. 10). From that time forward, Sir James Stephen says in his History of the Criminal Law of England (vol. 1, p. 358): In some cases the prisoner was questioned, but never to any greater extent than that which it is practically impossible to avoid when a man has to defend himself without counsel. When so questioned, the prisoners usually refused to answer.

Soon after the revolution of 1688, the practice of questioning a prisoner at his trial died out (Stephen, op. cit., p. 440; cf. Wigmore on Evidence (McNaughton rev. 1961), vol. viii, par. 2250, p. 291). Thus was a rule of criminal procedure established, giving effect to the stand taken by John Lilburn who had refused to be sworn before the Star Chamber saying that he regarded the ex officio oath as an oath of inquiry and that he found no warrant in the word of God for an oath of inquiry (Stephen, op. cit., pp. 344-345). Professor Glanville Williams (The Proof of Guilt, 3rd ed. (1963) p. 41)) observes:

The strong insistence, after the abolition of the Star Chamber, that the administration of an oath to a defendant was contrary to the law of God and the law of nature, was a race-memory from those evil days.

The rule of criminal procedure protected the accused from the perils of curial inquisition, as Windeyer J. pointed out in Rees v. Kratzmann [9] :

There is in the common law a traditional objection to compulsory interrogations. Blackstone explained it: "For at the common law, nemo tenebatur prodere seipsum; and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men": Comm. iv, 296. The continuing regard for this element in the lawyer's notion of justice may be, as has been suggested, partly a consequence of a persistent memory in the common law of hatred of the Star Chamber and its works. It is linked with the cherished view of English lawyers that their methods are more just than are the inquisitional procedures of other countries. 1. (1965) 114 C.L.R. 63, at p. 80.

The modern vitality of this rule was illustrated recently in Hammond v. The Commonwealth [10] . There an attempt had been made to require an accused person to testify before a Royal Commission as to matters relevant to a charge upon which he had been committed for trial, but this Court restrained the attempt. If the power to compel testimony under the 1902 Act could be exercised to strip away the protection of an accused from an inquisition as to the crime charged against him, the evils of the ex officio oath would be revived and the adversarial nature of a criminal trial subverted. That was a clear case of reading down s. 6 of the 1902 Act in order to give effect to a fundamental principle and to preserve the general system of law governing criminal trials.

The judges extended the privilege to protect not only the accused at a criminal trial but also persons bound to give discovery and persons bound to testify as witnesses in curial proceedings. The privilege against self-incrimination was extended to witnesses at an early stage by the courts of common law. Wigmore (par. 2250, at p. 290) traces back to Reading's Trial in 1679 [11] the recognition that the privilege against self-incrimination protects a witness who is not a party. And Isaacs J., in R. v. Associated Northern Collieries [12] , showed that the privilege has long qualified the equitable obligation of a party to give discovery whether in proceedings to recover a penalty or in other civil proceedings. Citing the judgment of Hardwicke L.C. in Smith v. Read [13] his Honour said [14] :

"There is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or anything in the nature of a penalty," and the Lord Chancellor added, "Under the rule, a man is not obliged to accuse himself, is implied, that he is not to discover a disability in himself." 1. 7 How.St.Tr. 259, at p. 296. 2. (1910) 11 C.L.R. 738. 3. (1736) 1 Atk. 526, at p. 527 [26 E.R. 332, at p. 332]. 4. (1910) 11 C.L.R., at p. 744.

But the judges did not purport to extend the privilege to qualify an inquisitorial power not under judicial control. The function of examining an accused person and the material witnesses had been undertaken by magistrates from the early fourteenth century and it seems that the practices adopted by them were given statutory sanction in 1554 and 1555 (1 & 2 Phil. & Mary c. 13; 2 & 3 Phil. & Mary c. 10). The examination, reduced to writing, had often furnished cogent confessional evidence of guilt. Gradually the practice changed. Professor Glanville Williams (op.cit., p. 45) describes the change which led to the passing of Sir John Jervis's Act in 1848 (11 & 12 Vict. c. 42), whereby magistrates were both restrained from examining an accused person on his preliminary examination and required to inform him that he was not obliged to say anything if he did not wish to do so:

The exclusion of interrogation at the trial naturally had its effect on the preliminary inquiry, and by Bentham's day some magistrates were making a habit of nullifying the enquiry so far as the accused himself was concerned, by telling him that he was not bound to answer. This was given statutory compulsion in 1848, when it was enacted in effect that the primary function of the justices was to hear the witnesses against the accused, and having done so they should warn the accused that he was not bound to say anything in answer to the charge, though he was invited to do so. The warning is still part of our legal procedure. Apart from this instance of legislative application of the privilege to a magisterial inquiry, the scope of the privilege was limited to judicial proceedings. Professor Morgan (op.cit., p. 18) concluded that "so far as the cases reveal, the privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates".

In the United States, the various constitutional expressions of the privilege have been construed as extending the privilege far beyond its scope at common law and beyond the scope intended by those who drafted the Fifth Amendment or its counterparts in the Constitutions of the several States. Wigmore (par. 2252, p. 324) says:

The probabilities substantially favor the conclusion that the constitutional protections were originally intended only to prevent return to the hated practice of compelling a person, in a criminal proceeding directed at him, to swear against himself. The constitutional guarantee of the privilege was nevertheless extended beyond the common law scope by the Supreme Court, whose extension of the privilege was fervently defended by Judge Frank in United States v. Grunewald [15] . His Honour observed "that creative misunderstandings account for some of our most cherished values and institutions" [16] . And so it has been held that the object of the fifth Amendment was "to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime" (Counselman v. Hitchcock [17] ; emphasis added). 1. (1956) 233 F.(2d) 556. 2. (1956) 233 F.(2d), at p. 581. 3. (1892) 142 U.S., at p. 562 [35 Law. Ed., at p. 1114].

Similarly, in Canada s. 2(d) of the Canadian Bill of Rights cited above also extended the scope of common law privilege. Laskin J. (as he then was) in Curr v. The Queen [18] acknowledged the extension of the privilege to witnesses before non-judicial tribunals by s. 2(d) of the Canadian Bill of Rights:

I cannot read s. 2(d) as going any farther than to render inoperative any statutory or non-statutory rule of federal law that would compel a person to criminate himself before a court or like tribunal through the giving of evidence, without concurrently protecting him against its use against him (emphasis added). There is no similar provision affecting the testimonial obligation imposed by s. 6 of the 1902 Act. 1. [1972] S.C.R. 889, at p. 912.

The common law had no occasion to extend protection to a witness in non-judicial proceedings, and it has no procedure appropriate to the control of a claim of privilege in such proceedings. The claim of privilege, which is made by or on behalf of a witness when the examiner asks him a particular question, is necessarily submitted to the judge for his ruling (see Ex parte Reynolds; In re Reynolds [19] ; Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. [20] ). Judicial control of the claim of privilege is an element in Goddard L.J.'s oft-quoted statement of the rule in Blunt v. Park Lane Hotel Ltd. [21] :

the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for (emphasis added). In a proceeding which is not presided over by a judge, how may a claim of privilege be disposed of? Is a witness obliged under a statute expressed in unqualified terms to answer each relevant question? Napier J. (as he then was) perceived the problem in Crafter v. Kelly [1] , where the Supreme Court held the privilege might be claimed by a person summoned under a statute that imposed an obligation, unqualified in terms, to give evidence although the statute provided no machinery for determining the validity of the claim. Napier J. said [2] : It must be clearly understood that we are not called upon to express any opinion upon the power of the director to insist upon an answer, if he sees no reasonable ground for apprehending danger to the witness. I have no doubt that the validity of the objection must be determined, in the first instance, by the board or person conducting the inquiry. That is, in my opinion, implied in the power to "examine witnesses on oath" (sec. 39 (1) (b)), but it may be debatable whether that determination is final, or subject to review by the Court of summary jurisdiction. With respect, I do not find this solution satisfying. The measure of the testimonial obligation cannot be ascertained by the administrative decision of the person presiding over the non-judicial tribunal unless the statute, either expressly or impliedly, empowers him to do so; and if he is empowered to do so, a court entertaining a prosecution for breach of the statutory obligation cannot hold the obligation to be larger than he held it to be. 1. (1882) 20 Ch.D. 294. 2. [1939] 2 K.B. 395, at pp. 403-404. 3. [1942] 2 K.B. 253, at p. 257. 4. [1941] S.A.S.R. 237. 5. [1941] S.A.S.R., at p. 249.

I conclude that, part from constitutional or statutory extension of the privilege, it is confined by principle and history to judicial proceedings. In Pyneboard Pty. Ltd. v. Trade Practices Commission [3] I have attempted a review of the principal Australian cases which bear upon the application of the privilege to qualify statutory powers of investigation. The better though not unanimous view (cf. Kempley v. The King [4] ) is that an obligation to furnish information to a law enforcement officer is not qualified by the privilege, and there is no material distinction to be drawn in the present context between a testimonial obligation such as that imposed by s. 6 of the 1902 Act and an obligation to furnish information to a law enforcement officer.

To expand the privilege in this country as it has been expanded in the United States would require the Court to attribute to the Parliament an intention to subordinate the public interest served by a Commission of Inquiry to the interests of a witness called to testify before it. Parliament has not expressed that intention. Unless the statute is to be construed according to some vague notion of what Parliament meant to say, the courts are constrained to ascertain the will of Parliament by construing what parliament said. I would express my respectful concurrence with the reasons expressed by Lord Simon of Glaisdale in Black-Clawson Ltd. v. Papierwerke A.G. [5] for the rule that courts seek to ascertain the meaning of what Parliament has said and not what Parliament meant to say. As "a matter of judicial obligation to the Legislature itself" (the phrase of Younger L.J. in In Re Jordison; Raine v. Jordison [6] ) the courts are bound to presume that Parliament intended to give effect to a fundamental principle of law which the statute does not exclude and which would otherwise apply to the subject-matter, though the strength of the presumption depends upon the subject-matter of the statute, the importance of the anterior rule of law and, perhaps in the case of modern statutes, the increase in statutory activity (cf. Maunsell v. Olins [7] ). In the present case there are, in my opinion, no grounds for attributing to the Parliament an intention that the testimonial obligation imposed by s. 6 of the 1902 Act should be qualified by a privilege against self-incrimination. It follows that each of the plaintiffs was obliged to answer questions put by the Royal Commissioner prior to the 1982 Amendment, though the answers may have tended, in the respective cases, to incriminate the witness.

1. [1975] A.C. 591, at p. 645. 2. [1922] 1 Ch. 440, at p. 465. 3. [1975] A.C. 373, at p. 394.

When some dicta in Hammond [8] raised the possibility that the 1902 Act might be held to imply the qualification of privilege, Parliament forthwith enacted the 1982 Amendment. By inserting s. 6A(2) into the Act it was provided:

A person is not entitled to refuse or fail to answer a question that he is required to answer by a member of a Commission on the ground that the answer to the question might tend to incriminate him. 1. Ante, p. 188.

In conformity with the views of this Court expressed in Hammond sub-s. (3) of s. 6A provides:

This section does not apply where the offence in respect of which the production of a document or other thing or the answer to a question might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of.

Section 6A(2) puts beyond argument the obligation of a witness to answer without qualification of the privilege. It was submitted that s. 6A(2) had no operation with respect to Commissions already issued, and that the 1982 Amendment introduced sections which were to apply only in futuro. In my opinion, sub-ss. (2) and (3) made no material alteration to the plaintiffs' respective obligations to answer questions under the 1902 Act. But if that view be erroneous, the operation of s. 6A(2) could not be confined to Royal Commissions issued prior to 1 February 1983. The sub-section operates prospectively, speaking to the occasions which attract its operation. Those occasions do not occur until a witness is asked a question which he is required to answer by a member of a Commission. Unless he is entitled to refuse or to fail to answer a question asked of him, he is obliged to answer when he is asked. Section 6A(2) deprives him of any entitlement he may have had to refuse or to fail to answer on the ground of privilege against self-incrimination, and thus the provision takes effect whenever a question is asked. It follows that the Commonwealth demurrer on this aspect of the case should be allowed.

The Queensland Act is materially different. It confers power upon a Commission of Inquiry to summon witnesses to give evidence and to produce documents (s. 5), and to administer an oath or affirmation to witnesses (s. 6). By s. 9(2)(ii) it is provided that a person who "[b]eing called or examined as a witness before a Commission, refuses to be sworn or to make an affirmation or declaration or refuses or otherwise fails to answer any question put to him by the Commission or any Commissioner relevant to the inquiry" is guilty of a "contempt of the Commission". A contempt of a Commission may be punished by the chairman of the Commission (s. 10(1)). Alternatively, the chairman may "certify the contempt under his hand to the Supreme Court" (s. 10(2)(b) and (3)(b)) whereupon a judge of the Supreme Court may punish as for a contempt of court (s. 10(5)). The penal powers of a chairman who is not a judge of the Supreme Court are restricted to imposing a penalty not exceeding fifty pounds (s. 10(2)(a)) and, in default, execution against goods and chattels or imprisonment (s. 11).

A statement or disclosure made by a witness in answer to a question put by a Commission is not admissible against him in civil or criminal proceedings subject to certain exceptions which are not now material (s. 14(2)). There is no express reference to a privilege against self-incrimination, but it is embraced by the reference to "reasonable excuse" in s. 10(4). By that sub-section, a witness or person summoned to appear as a witness is not liable to punishment for contempt of a Commission where he satisfies the chairman of the Commission or a judge of the Supreme Court (as the case may be) that there is a reasonable excuse for the Act or omission which constitutes the alleged contempt. "Reasonable excuse" in this context is defined to mean "an excuse which would excuse an act or omission of a similar nature by a witness or a person summoned to attend before a court of law as a witness" (s. 3). As the privilege entitles a witness before a court of law to refuse to answer a question when the answer may tend to incriminate him, s. 10(4) imports that privilege as a defence to an allegation of contempt of the Commission. There is no difficulty in applying the privilege under the Queensland Act, for the chairman of the Commission (whether a judge or not) may decide judicially whether the claim of privilege is to be allowed. This conclusion is consistent with the opinion expressed by Gibbs J. (as he then was) when sitting as a Royal Commissioner in The Royal Commission re a Brisbane Hotel [No. 2] [9] , though his Honour reached that conclusion by a quite different path. The demurrer of the Attorney-General for Queensland on this aspect of the case must therefore be overruled.

The second aspect of this case arises upon the allegations made in the statement of claim as to searches of premises and the seizure and disposition of property found therein. The allegations made in the statement of claim are to be taken as the material facts upon which the plaintiffs base their respective claims for declaratory relief (South Australia v. The Commonwealth [10] ). The plaintiffs allege in par. 6 of the statement of claim:

On the 12th day of October 1982 the Plaintiffs had their homes and the homes of their immediate families searched by officers of the Australian Customs Service and the Queensland Police Force together with members [sic] of the Queensland Police Force seconded to act as officer of the Royal Commission of the Thirdnamed Defendant. As a result of that search numerous items were seized and given over to the care, custody and control of the Royal Commission of the Thirdnamed Defendant. 1. (1962) 108 C.L.R. 130, at p. 142.

The prayer for declaratory relief based on these facts is in par. C and is in these terms:

A declaration that the search and seizure of property from the homes of the Plaintiffs and their families by officers of the Royal Commission was ultra vires and null, void and of no effect. It is alleged in par. 7 that the searches and seizures alleged in par. 6 took place in pursuance of search warrants issued under the Crimes Act 1914 Cth, the Criminal Code Q. and The Health Act of 1937 Q.. It is not alleged that the searches were conducted or the property seized by acts done in excess of the authority of those search warrants. Nor is it contended that the operation of the respective Acts under which the search warrants were issued did not make the alleged searches and seizures lawful. Nothing is alleged which would found the making of the declaration sought in par. C of the prayer.

The statement of claim was amended pursuant to leave granted during the hearing by adding par. 6(a):

The Thirdnamed Defendant has retained possession of the items referred to in paragraph 6 of the statement of claim and claims to be entitled to use them and to make and use copies of them for the purposes of his inquiries as a Royal Commissioner.

The means of search and seizure whereby the property taken was given over to the care, custody and control of the Royal Commission of the Thirdnamed Defendant was ultra vires the Letters Patent of the Thirdnamed Defendant.

On these facts, a further declaration was sought in the terms of par. D of the prayer:

A declaration that the Royal Commissioner was not lawfully entitled to take possession of the goods and documents in question and is not entitled to retain them, or copies of them, or use them, or copies of them, for the purposes of the Royal Commission.

Mr. Gleeson, upon whom the duty fell to endeavour to uphold the pleading, submitted that a statutory warrant was needed to make it lawful for the Royal Commissioner to retain, use and make copies of the items given to him that had been seized under the warrants. The argument is that neither s. 6F of the 1902 Act nor the new s. 6F inserted by s. 10 of the 1982 Amendment nor s. 19 of the Queensland Act conferred that authority on the Royal Commissioner in respect of the documents which were seized under the warrants and which were "given over to the care custody and control of the Royal Commission". Section 6F of the 1902 Act provided:

A Royal Commission, a Commissioner or a person thereto authorized in writing by the President or Chairman of the Commission, or by the sole Commissioner, as the case may be, may inspect any documents, books, or writings produced before the Royal Commission, and may retain them for such reasonable period as it or he thinks fit, and may make copies of such matter as is relevant to the inquiry or take extracts from them. Section 6F(1) as substituted by the 1982 Amendment provides:

(1) A Commission, a member of a Commission or a person who is an authorized person in relation to a Commission may -

(a) inspect any documents or other things produced before, or delivered to, the Commission;

(b) retain the documents or other things for so long as is reasonably necessary for the purposes of the inquiry to which the documents or other things are relevant; and

(c) in the case of documents produced before, or delivered to, the Commission - make copies of matter contained in the documents, being matter that is relevant to a matter into which the Commission is inquiring.

Section 19(1) of the Queensland Act provides: A Commission, or any Commissioner, or a person thereto authorised in writing by the chairman, as the case may be, may inspect any books, documents, or writings produced before the Commission, and may retain them for such reasonable period as it or he thinks fit, and may take such copies of or extracts from such books, documents, or writings, as the case may be, as are relevant to the inquiry.

It is not necessary to decide whether the phrase "produced before" in the respective provisions refers only to production by a witness. The statement of claim contains no allegation that either of the plaintiffs has suffered any infringement of his rights by reason of the alleged retention, copying or use. Whether or not the Commissioner had power to compel the production of the documents which were in fact delivered to him, it is not alleged that he committed any tort or breached any statutory duty actionable at the suit of the plaintiffs by taking care, custody and control of the documents delivered to him. Moreover, the facts alleged in par. 8 of the statement of claim clearly allege that the items seized were "delivered to" the Commission within the meaning of that phrase in s. 6F as substituted by the 1982 Amendment. That provision furnishes a clear statutory warrant for the course which the Commissioner allegedly intends to follow. The prayer for a declaration relates to the future retention, copying or use of the seized documents and there are no facts pleaded which would show that s. 6F is not a sufficient authority for that course.

The demurrers must be allowed, except in respect of the demurrer of the Attorney-General for Queensland to those parts of the statement of claim relating to privilege against self-incrimination. That part of the Attorney-General's demurrer should be overruled.