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[2005] FCA 935
Federal Court of Australia
2005-07-08
Kiefel J, Dowsett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 21 and 22 June 2005 the applicant ("Ms Stoten") appeared before the first respondent (the "Examiner") who was conducting an examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) (the "Act"). The examination was for the purposes of an investigation being conducted by the second respondent (the "Commission"). Ms Stoten attended before the Examiner in answer to a summons dated 17 June 2005, which summons was issued pursuant to subs 28(1) of the Act. The summons indicated that Ms Stoten was to give evidence in relation to: '(i) your knowledge of the identity of persons and entities and the nature of their involvement in: i defrauding the Commonwealth contrary to section 29D of the Crimes Act 1914 (Cth) through tax evasion; and/or ii obtaining property or financial advantage by deception contrary to section 134.1 and 135.4 of the Criminal Code Act 1995 (Cth); and/or iii money laundering within the of the Proceeds of Crime Act 1987 (Cth) and the Criminal Code Act 1995 (Cth); and (ii) your knowledge of any involvement of persons and entities, including, but not limited to, Strachans, Strachans SA, Strachans Services Ltd, Philip Jepson Egglishaw, Adam Hargraves, Glenn Hargraves, Daniel Stoten, Galaxy Trust, Dunedin Trust, Gabriel Trust, Amber Rock, The Phone Directories Company and PDC Group, in the commission of any of the abovementioned offences and any State offence having a federal aspect; …' 2 Ms Stoten was married to Daniel Aran Stoten ("Mr Stoten") on 29 December 1995. That marriage has not been dissolved. He is the "Daniel Stoten" named in the summons. 3 It seems that when Ms Stoten appeared on 21 June, she intended to claim that as a spouse, she was entitled to decline to answer questions which might implicate Mr Stoten in the commission of a criminal offence. At that time it was expected that, on 22 June, Kiefel J would deliver reasons for judgment in connection with a similar claim, and so proceedings were adjourned to that day. On 22 June, after consideration of the reasons published by Kiefel J in S v Boulton [2005] FCA 821, the Examiner held that any spousal privilege applied only in judicial proceedings and that, in any event, the Act necessarily abrogated it. He indicated that he would, accordingly, disallow any claim by Ms Stoten to such privilege. In these proceedings, Ms Stoten seeks a declaration that: '… the common law privilege or immunity from spouse incrimination extends to her in relation to the proceedings brought by the Australian Crime Commission in connection with the activities of her husband.' She also seeks other, associated relief. 4 The "privilege" claimed by Ms Stoten is not based upon any statutory provision. In particular, no support for its existence can be found in the statutory regime pursuant to which she is to be examined. The principal sections of the Act which are presently relevant appear in Division 2 of Part II, being ss 24A, 25A, 28 and 30. Those sections are as follows: '24A Examinations An examiner may conduct an examination for the purposes of a special ACC operation/investigation. 25A Conduct of examination Conduct of proceedings (1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit. Representation at examination (2) At an examination before an examiner: (a) a person giving evidence may be represented by a legal practitioner; and (b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner - the person may be so represented. … Witnesses (6) At an examination before an examiner: (a) counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or (b) any person authorised by the examiner to appear before the examiner at the examination; or (c) any legal practitioner representing a person at the examination in accordance with subsection (2); may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation. … 28 Power to summon witnesses and take evidence (1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. (1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. (3) … (4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing. (5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose: (a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and (b) the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination. (6) … (7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.' 30. Failure of witnesses to attend and answer questions Failure to attend (1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not: (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the examiner. Failure to answer questions etc. (2) A person appearing as a witness at an examination before an examiner shall not: (a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement; (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed. (3) Where: (a) a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner; the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made. Use immunity available in some cases if self-incrimination claimed (4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if: (a) a person appearing as a witness at an examination before an examiner: (i) answers a question that he or she is required to answer by the examiner; or (ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and (b) in the case of the production of a document that is, or forms part of, a record of an existing or past business - the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and (c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (5) The answer, or the document or thing, is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; other than: (c) confiscation proceedings; or (d) a proceeding in respect of: (i) in the case of an answer - the falsity of the answer; or (ii) in the case of the production of a document - the falsity of any statement contained in the document. Offence for contravention of subsection (1), (2) or (3) (6) A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. (7) Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent. (8) Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year. Legal professional privilege (9) Subsection (3) does not affect the law relating to legal professional privilege.' 5 The Commission submits that, properly understood, the Act requires that an examinee answer all relevant questions, subject only to the express provisions of s 30. Ms Stoten submits that as a spouse, she has a common law privilege which entitles her to decline to answer any question which may inculpate her husband in the commission of a criminal offence. She further submits that the operation of such privilege is not limited to judicial proceedings, and that it inheres in the absence of any clear statutory intention to abrogate it. 6 Whilst the idea that a person may not be compelled to give evidence against a spouse is deeply entrenched in various aspects of the law and in legal folklore, it is difficult to find any clear statement as to the existence of such a privilege, independent of statute. The Evidence Act 1995 (Cth) (the "Evidence Act") applies to 'proceedings in a federal court'. See subs 4(1). There is no reason to assume that it applies to an examination pursuant to the Act. Nonetheless it is interesting to note that it deals expressly with issues of competence and compellability (in s 17), and compellability of spouses and other family members in criminal proceedings (in s 18). Division 1 of Part 3.10 regulates what is described as "client legal privilege", more commonly called "legal professional privilege". The Act expressly addresses both the privilege against self-incrimination and legal professional privilege but, unlike the Evidence Act, does not mention spousal privilege. 7 Nonetheless Ms Stoten's case is that there is such a privilege at common law. Some support for that proposition is to be found in Cross on Evidence, loose leaf service, at [25150]. In considering the privilege against self-incrimination, the authors observe: 'There is no direct authority, but dicta suggest that the privilege does extent to answers tending to incriminate the witness's spouse. The policy considerations underlying the existence of the privilege - conformity with public opinion and the encouragement of testimony - appear to apply to such a case. However, a witness cannot object to answer questions on the ground that the answer would incriminate strangers. In the absence of any suggestion to the contrary, it may be assumed that there is no privilege against giving answers which might incriminate members of the witness's family other than the spouse.' 8 See also Environment Protection Authority v Caltex Refinery Co Pty Ltd (1992-1993) 178 CLR 477 at 516, n 60. 9 In Cross, at [25190]-[25200], under the heading "Marital Privilege", the authors identify a statutory privilege against disclosure of marital communications. That is not relevant for present purposes. 10 Other Australian authorities take a different approach to spousal privilege. In The Laws of Australia (Law Book Company) vol 16, Part 16.7 at [106], it is said that: 'There is little direct authority, but it is doubtful whether the privilege of self-incrimination would be extended at common law to enable the witness to refuse to answer on the ground that the answer would tend to incriminate the witness spouse (as distinct from the witness himself or herself).' 11 In Halsbury's Laws of Australia (Butterworths) vol 13 at [195-7410], it is said that the privilege against self-incrimination does not extend '… to answers tending to incriminate the witness' spouse …'. 12 The case for spousal privilege is put at its highest in an article entitled 'Is There a Common Law Privilege Against Spouse Incrimination?' by Mr David Lusty (University of New South Wales Law Journal, vol 27, p 1). He concludes that the authorities establish the existence of a common law privilege against spouse incrimination which '…is analogous to, yet separate and distinct from, the privilege against self-incrimination.' Mr Lusty also concludes that 'many factors suggest that [any such privilege] extends to non-judicial contexts.' I need not examine the numerous cases referred to in the article, for its conclusions have been substantially endorsed by the Queensland Court of Appeal in Callanan v B (2005) 29(3) CrimLJ 182. 13 In that case the Crime and Misconduct Commission was conducting an investigation into allegations that a Mr B had produced, supplied and/or trafficked in drugs. His wife was summoned to appear before the Commission. A person so summoned was obliged to answer a question unless he or she had '… a reasonable excuse for not [complying with the requirement]'. Ms B declined to answer questions which might incriminate her husband. The Court concluded that a claim to common law spousal immunity constituted reasonable excuse for not answering. All three members of the Court accepted Mr Lusty's view that there was such a common law privilege. 14 In S v Boulton, Kiefel J concluded that for reasons of comity, she should follow the decision in Callanan, notwithstanding her reservations concerning Mr Lusty's arguments. I should similarly accept the decision in Callanan as authority for the proposition that there is spousal privilege of the kind discussed in Mr Lusty's article. Given the uncertain nature of the authorities, the ultimate decision to recognize or reject spousal privilege is very much a matter of policy. In the absence of statutory intervention, the High Court will eventually consider the matter. For the moment I proceed upon the basis that at common law, a witness may decline to answer a question asked in non-judicial proceedings upon the ground that it may inculpate the witness' spouse in the commission of a criminal offence. I understand that to be the ambit of the privilege claimed in this case. I also accept, for the purposes of this application, that such common law privilege continues to exist in Australia save to the extent that it has been abrogated by the Act. The present question is whether or not the Act has that effect. 15 If, as is suggested in Cross, the privilege is an extension of the privilege against self-incrimination, then cases concerning that privilege may be relevant for present purposes. In Read v Howard (1995) 184 CLR 1 at 11-12, the majority (Toohey, Gaudron, McHugh and Gummow JJ) observed: 'The privilege, which has been described as a "fundamental … bulwark of liberty" …, is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641 …, and, by 1737, it was said that "there [was] no rule more established in equity" … . More recently, the privilege has been described as "deeply ingrained in the common law" … . It operates so that a person cannot be compelled "to answer any question, or to produce any document or thing, if to do so 'may tend to bring him into the peril and possibility of being convicted as a criminal'" … .' 16 In Pyneboard Pty Ltd v Trade Practice Commission (1982-1983) 152 CLR 328, the High Court considered privilege against exposure to civil penalties. Mason ACJ, Wilson and Dawson JJ concluded that such privilege was '… distinct from, though often associated in discussion with, the privilege against exposure to conviction for a crime'. Their Honours seem to have treated the two privileges as sharing common characteristics. Concerning statutory exclusion of the privilege against exposure to penalties, they said at 341-343: '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 intention to do so clearly emerges, whether by express words or by necessary implication … . 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. Thus in Mortimer v Brown …, the Court held that s 250 of The Companies Act of 1961 (Q) excluded the availability of the privilege on the public examination by a judge of directors of a company in a voluntary liquidation. Kitto J after noting "that the evident purpose of the section, primarily even if not wholly, is to enable a suggestion of fraud or concealment of a material fact to be fully investigated" and that such a question must frequently involve consideration of evidence tending to incriminate individuals, went on to say …: "To read down the wide terms of the section so as to allow a danger of self-incrimination as a valid ground for refusing to answer a question would render the provision relatively valueless in the very cases which call most loudly for investigation. By providing in sub-s (7)(c) that notes of a person's examination may thereafter be used in evidence in any legal proceedings against him, the section shows that the possibility of self-incrimination is contemplated as being inherent in the kind of examination that is authorized." Walsh J … said: "The argument for the applicants is that the provision should be construed in a way which restricts its operation so as to preserve the tradition or right or privilege against compulsory self-incrimination, which has commonly been recognized as available to witnesses in judicial proceedings. It is said that in the absence of an abrogation in express terms of this privilege, the provision should be construed as not disclosing an intention to take it away from persons who are required to submit themselves to examination. In my opinion the character and purpose of the provision are such that a construction which would curtail its operation in the manner and for the reasons suggested ought not to be adopted." In King v McClelland … it was held that the terms of the obligation under s 80F of the Motor Car Act 1958 (Vict) on the driver of a motor car to furnish a sample of his breath for analysis by a breath analysing instrument when required to do so by a member of the police force would have impliedly excluded the privilege against self-incrimination if the privilege had had any application to the furnishing of a breath sample … . The obligation was expressed in general terms and the subject matter of the legislation did not suggest that the obligation was intended to be subject to any qualification. That the privileges impliedly excluded in such circumstances is a conclusion which, as we have noted, may be more readily drawn where the obligation to answer questions or provide information does not form part of an examination on oath. The obligation to give an answer not on oath at an executive inquiry provides an illustration. It will be less readily drawn in cases where the obligation to answer questions and produce documents is an element in an examination of oath before a judicial officer whether or not an object of that examination is to ascertain whether an offence has been committed with a view to the institution of a prosecution for that offence.' 17 In Sorby v The Commonwealth (1983) 152 CLR 281, the High Court considered privilege against self-incrimination. At 289-290, Gibbs CJ said: 'Although there are not wanting other statements to the effect that the privilege will not be taken away without express words … it is not correct to say that if the legislature wishes to render the privilege unavailable it must in every case do so expressly. The character and purpose of the statute may indicate that it should not be construed so as to preserve the privilege: … . However, a statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears: … .' 18 At 309-310, Mason, Wilson and Dawson JJ said: '… 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.'
19 Their Honours seem to have treated their observations in Pyneboard concerning privilege against exposure to penalties as applying equally to privilege against self-incrimination. However, in The Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543, the High Court cast doubt upon the correctness of some of the reasoning in the former decision. At [11] Gleeson CJ, Gaudron, Gummow & Hayne JJ said, concerning legal professional privilege that:
'Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.' 20 At [31] their Honours implied that privilege against exposure to civil penalties is not a substantive rule of law and has no operation outside of judicial proceedings, thus challenging some of the reasoning in Pyneboard. Curiously, there is only a passing reference to Sorby (at [13], n 60). In any event, both Daniels and Sorby allow that privilege against self-incrimination may be excluded by necessary implication. 21 I should say something about the historical development of the Act and, in particular, s 30. The National Crime Authority Act 1984 (Cth) was amended and renamed by the Australian Crime Commission Establishment Act 2002 (Cth). As a result of the amendments the National Crime Authority, previously established under s 7 of the Act, was replaced by the Commission, established under the same section in its amended form. The investigative and examination powers previously conferred upon the National Crime Authority passed to the Commission. Prior to the 2002 amendments, s 28 authorized a member of the National Crime Authority to summon a person to give evidence and to produce documents. Section 30 provided as follows: '(1) A person served, as prescribed, with a summons to appear as a witness at a hearing before the Authority shall not, without reasonable excuse: (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by a member. (2) A person appearing as a witness at a hearing before the Authority shall not, without reasonable excuse: (a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement; (b) refuse or fail to answer a question that he is required to answer by the member presiding at the hearing; or (c) refuse or fail to produce a document or thing that he was required to produce by a summons under this Act served on him as prescribed. (3) Where: (a) a legal practitioner is required to answer a question or produce a document at a hearing before the Authority; and (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his capacity as a legal practitioner; the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he shall, if so required by the member presiding at the hearing, furnish to the Authority the name and address of the person to whom or by whom the communication was made. (4) Subject to subsections (5), (7) and (9), it is a reasonable excuse for the purposes of subsection (2) for a natural person: (a) to refuse or fail to answer a question put to him at a hearing before the Authority; or (b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority; that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him. (5) It is not a reasonable excuse for the purposes of subsection (2) for a person: (a) to refuse or fail to answer a question put to him at a hearing before the Authority; or (b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority; that the answer to the question or the production of the document or thing might tend to prove his guilt of an offence against a law of the Commonwealth or of a Territory if the Director of Public Prosecutions has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against him for an offence against a law of the Commonwealth or of a Territory other than proceedings in respect of the falsity of evidence given by the person and the Director of Public Prosecutions states in the undertaking: (c) that, in his opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and (d) the general nature of those grounds. (6) The Authority may recommend to the Director of Public Prosecutions that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Authority or to produce a document or thing at a hearing before the Authority be given an undertaking in accordance with subsection (5). (7) It is not a reasonable excuse for the purposes of subsection (2) for a person: (a) to refuse or fail to answer a question put to him at a hearing before the Authority; or (b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority; that the answer to the question or the production of the document or thing might tend to prove his guilt of an offence against a law of a State if the Attorney-General of that State, or a person authorized by him, being the person holding the office of Director of Public Prosecutions, or a similar office, of that State, has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against him for an offence against a law of that State other than proceedings in respect of the falsity of evidence given by the person and the Attorney-General of that State, or the person so authorized, states in the undertaking: (c) that, in his opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and (d) the general nature of those grounds. (8) The Authority may recommend to the Attorney-General of a State that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Authority or to produce a document or thing at a hearing before the Authority be given an undertaking in accordance with subsection (7). (9) For the purposes of subsection (2): (a) it is not a reasonable excuse for a corporation to refuse or fail to produce a document or thing that the production of the document or thing might tend to incriminate the corporation; and (b) it is not a reasonable excuse for a natural person to refuse or fail to produce a document that is, or forms part of, a record of an existing or past business (not being, in the case of a person who is or has been an employee, a document that sets out details of earnings received by the person in respect of his employment and does not set out any other information) that the production of the document might tend to incriminate the person. (10) Subsections (5), (7) and (9) do not apply where the offence in respect of which the answer to a question or the production of a document or thing, as the case requires, 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. (11) A person who contravenes subsection (1), (2) or (3) is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months.' 22 It might be argued that in s 30 in its earlier form, "reasonable excuse" included only those circumstances identified in subs 30(3) (legal professional privilege) and subs 30(4) (privilege against self-incrimination), subject to the qualifications contained in subss 30(5), 30(7), 30(9) and 30(10). Alternatively, it might be argued that "reasonable excuse" was not exhaustively defined, and that it included all reasonable excuse including, but not limited to, those identified elsewhere in the section. The former interpretation would have abrogated spousal privilege; the latter would not have done so. 23 According to the revised explanatory memorandum which accompanied the bill containing the 2002 amendments, they were intended to: ۰ '… remove the defence of reasonable excuse, replace the use derivative-use indemnity with use-indemnity, and increase penalties for non-compliance with the Act …'; and ۰ 'clarify the application of legal professional privilege and remove the defence of legal duty to disclose …'. 24 The amendments excluded reasonable excuse from a number of provisions, including s 30. At p 6 of the memorandum, it was said that: 'The purpose … is to enhance the investigatory power of the Authority so that it may deal more effectively and efficiently with witnesses. The amendments will limit the ability of witnesses to challenge the legitimate and essential role of the Authority in investigating serious and organised crime. The amendments will also increase penalties for non-compliance with the Act so as to deter those who would otherwise embark on a course of conduct designed to thwart the investigatory process.' 25 Concerning the amendment to s 30, the memorandum stated, at p 8: 'Item 11. This Item omits the defence of reasonable excuse from subsections 30(1) and (2). A person who fails to attend in answer to a summons; fails to attend from day to day unless excused or released; refuses or fails to take an oath or make an affirmation; refuses or fails to answer a question or refuses or fails to produce a document or thing when required to do so, will not be able to claim that he or she has a reasonable excuse for non-compliance. (See Item 1 for the discussion on the removal of the defence of reasonable excuse.)' 26 Many of the 2002 amendments were first introduced into Parliament in 2000. In the relevant second reading speech, on 7 December 2000, it was said that: 'The Authority's task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation. If a person refuses to answer a question in a hearing, it is possible for that refusal to be litigated through the courts, with delays of months or even years. In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold. Even worse, penalties for failure to answer a question at a NCA hearing have regularly been very modest - a few hundred dollars. This is not much of a deterrent where obstructing the Authority can impede an investigation that might have led to a person being gaoled for years for a serious offence such as drug trafficking.' … In addition, the Bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined Criminal Code defences such as an intervening event and sudden emergency. The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the Authority's hearing process by challenging, in the Federal Court, the Authority's decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question.' (See Parliamentary Debates, Senate, 7 December 2000, p 21028.) 27 It seems that passage of the amendments was disrupted by the 2001 election. On 24 September 2001, the amendments were in the House of Representatives. In the second reading speech, the following passage appears: 'The authority's task in investigating organized crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation. If a person refuses to answers a question in a hearing, it has been possible for that refusal to be litigated through the courts, with delays of months or even years. In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold. It was for this reason that the bill that was introduced in the other chamber also contained a contempt regime. The government considers that this would have been an immediate, fair and effective means for deterring and punishing deliberate obstruction of NCA hearings. However, these provisions were removed in the Senate and the government will not pursue them at this time. Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest - a few hundred dollars. This is not much of a deterrent where obstructing the authority can impede an investigation that might have led to a person being jailed for years for a serious offence such as drug trafficking. Accordingly, the maximum criminal penalty for failing to answer a question at a hearing will be substantially increased … . … In addition, the bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined Criminal Code defences such as intervening event and sudden emergency. The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the authority's hearing process by challenging, in the Federal Court, the authority's decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question. The provisions that remove the defence of "reasonable excuse" remove derivative use immunity and increase the penalties for non-compliance with the NCA act that are intended to enhance the overall effectiveness of the authority.' (See Parliamentary Debates, House of Representatives, 24 September 2001, pp 31303-31304.) 28 The references to the Criminal Code are reflected in s 6A of the Act. that section provides that Chapter 2 of the Criminal Code is to apply to all offences against the Act. That chapter is headed 'General Principles of Criminal Responsibility' and includes numerous defences to criminal charges. 29 It is quite clear from the explanatory memorandum and the second reading speeches that, in deleting the concept of reasonable excuse and otherwise amending s 30, Parliament intended to establish a regime in which all questions posed by an examiner were to be answered, subject only to the express provisions of s 30. In any prosecution for a breach of that section, defences available under Chapter 2 of the Criminal Code would be available. Even if spousal privilege be a version of the privilege against self-incrimination, the present regime clearly does not permit reliance upon it. 30 Counsel for the Commission submits that the decision of the Full Court in A v Boulton (2004) 136 FCR 420 establishes that a person who is being examined pursuant to the Act must answer all questions put to him or her. In that case, the Full Court held that the privilege against self-incrimination had been abrogated by the Act. At [59] Kenny J (with whom Beaumont J and I agreed) observed that the language of subs 30(2) '… is apt to create not only a general but also an unqualified obligation to provide answers when required'. I see no reason to differ from that view. It is difficult to see any logical reason for Parliament to have abrogated privilege against self-incrimination but retained spousal privilege. 31 Parliament clearly intended to exclude any basis for declining to answer a question other than as provided in s 30. Of course, questions of good faith may arise, but none has arisen in this case. In those circumstances I decline the relief sought. The application should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate: Dated: 8 July 2005 Counsel for the Applicant: Mr A M Daubney SC Mr D J Walsh
Solicitor for the Applicant: O'Keefe Mahoney Bennett
Counsel for the First & Second Respondents: Mr N M Cooke QC Ms M Zappala
Solicitor for the First & Second Respondents: Australian Government Solicitor
Date of Hearing: 28 June 2005
Date of Judgment: 8 July 2005
Stoten
Sage