Witness "D" v Crime & Misconduct Commission

[2] The application seeks a declaration that the applicant was entitled to claim privilege as he did. That means that the question for determination is whether the privilege against self-incrimination has been abrogated by s 192(2) of the Crime and Misconduct Act 2001 ("the Act").

[3] Section 192 comes within Chapter 4 of the Act which deals with "Hearings and Deciding Claims of Privilege and Excuse". Chapter 4 is divided into 4 parts. Section 192 is found in Part 2 which deals with "Refusals and claims of privilege and reasonable excuse".

(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer.

Maximum penalty--85 penalty units or 1 year's imprisonment.

(b) to refuse to answer the question on a ground of privilege, other than--

(a) the person refuses to answer a question on the ground the answer to the question would disclose a communication to which legal professional privilege attaches; and

(b) the person has no authority to waive the privilege;

the person must, if required by the presiding officer, tell the officer the name and address of the person to whom or by whom the communication was made.

Maximum penalty for subsection (3)--85 penalty units or 1 year's imprisonment."

[5] "Privilege" is defined in Schedule 2 of the Act in the following way:

"privilege, in relation to an answer, information, communication or document, or thing means--

(a) in the context of a crime investigation or the witness protection function--

(c) in the context of a confiscation related investigation--

and, in each context, includes a claim on the ground of confidentiality."

[6] Part 2 Division 2 of Chapter 4 deals with the situation where a witness refuses to produce a document. So far as misconduct investigations are concerned, s 188 deals with a refusal to produce and a claim of reasonable excuse. Subsection 3 provides:

"(3) It is not a reasonable excuse for subsection (2)(b) to fail to produce the document or thing because producing the document or thing might tend to incriminate the person."

[7] Subdivision 2 of Division 3 deals with a refusal to answer and is concerned not with "reasonable excuse", but with claims of privilege. The statutory scheme is well described by White J in Witness A v Crime and Misconduct Commission.[1]

[8] Mr Applegarth SC (for the applicant) submitted that consideration had been given to the proper construction of a similar provision of the Act (s 190) in Callanan v B [2004] QCA 478; [2005] 1 Qd R 348. That case dealt with whether or not spousal privilege still existed and, if so, whether it had been abrogated by s 190. The Court held that spousal privilege still existed and went on to consider the issues that then arose. The reasoning of McPherson JA, which was agreed in by McMurdo P and Jerrard JA, was as follows:

"[10] Here the critical issue therefore is whether the spousal privilege has been abrogated by s 190(2) of the Crime and Misconduct Act 2001. Section 190 is in s 190(1) introduced by the statement that a witness at a commission hearing must answer a question put by the presiding officer. Section 190(2) goes on to provide:

(b) to refuse to answer the question on a ground of privilege, other than legal professional privilege."

If matters had stood there, there can be little doubt that spousal privilege at common law would have been abolished by s 190(2)(b), and that Mrs B was bound to answer the question put to her by Mr Callanan. She, of course, did not remain silent but said she had under s 194(3) a "reasonable excuse" for not answering the question.

[11] The clarity of the provision in s 190(2)(b) is, however, marred by the definition of "privilege" in Schedule 2 of the Act. The term privilege is defined there in the statutory "Dictionary" as follows:

"privilege, in relation to an answer means... privilege recognised at law on the ground of -

Interpreting s 190(2)(b) in the light of that definition by substituting it for the word "privilege" in that provision produces the following result:

(b) to refuse to answer the question [in the context of a crime investigation] on the ground of:-

[12] The result is obviously clumsy; but, in defining privilege in Schedule 2, the provision uses the word "means", and not simply "includes" or some other perhaps less specific or direct expression. It is true that s 32A of the Acts Interpretation Act 1954 declares that definitions in an Act apply "except so far as the context or subject matter otherwise indicates or requires". There is, however, nothing in either the context or subject matter of the Act that indicates or requires that the definition in Schedule 2 is not to apply. It is also true, as Mr MacSporran pointed out, that the Dictionary definition comprises three separate paragraphs (a), (b) and (c) each dealing in a different way with a separate "context", and that this may have been why it was thought necessary to define privilege in the Act. Thus, for example, in the context (b) of a misconduct (as distinct from a crime) investigation, self-incrimination is omitted and public interest immunity and parliamentary privilege are added in; while in the context (c) of a confiscation-related investigation, self-incrimination is once again included. It is evident that some care was taken to define the term privilege differently in each context. There is, however, nothing in any of this to indicate or require that in s 190(2)(b) the term bears a meaning different from its meaning as defined in para (a) of the Dictionary meaning of the word.

[13] It may be accepted that, viewing s 190(2)(b) in isolation, the intention was to abrogate all forms of privilege from answering questions except legal professional privilege. The problem created by the intrusion of the Dictionary meaning is that, possibly inadvertently, it produces a limiting effect on s 190(2)(b). Instead of simply restricting the surviving privilege to legal professional privilege, it incorporates, but only to abolish, another specified ground of privilege, namely self-incrimination. Paragraph (a) says nothing about other forms of privilege recognised at law, such as public interest immunity or parliamentary privilege. What is more, it leaves the stated exception ("other than legal professional privilege") to qualify only legal professional privilege, leaving it with no useful function to perform. Interpreted literally, however, it has the consequence of disentitling a person from refusing to answer a question only on the ground of self-incrimination or legal professional privilege, while allowing other forms of privilege recognised at common law, including spousal privilege, to remain untouched.

[14] It seems improbable that this was the legislative intention. Our attention was called to the provisions of s 4 and s 5 of the Crime and Misconduct Act, in which one of the main purposes of the Act is stated to be "to combat and reduce the incidence of crime", and to arm the Commission with investigative powers not ordinarily available to the police service. This, however, is not to say that all forms of privilege were intended to be abolished, and indeed s 190(2)(b), standing alone, shows it was not the legislative intention. But the superimposition of the definition of privilege in Schedule 2 renders it uncertain precisely which forms of privilege were intended to be abolished and which of them preserved. The Explanatory Notes

to the Bill were relied on. In relation to clause 190 of the Bill, now s 190 of the Act, the Notes state that a witness at a Commission hearing "may only refuse to answer on the ground of legal professional privilege". If nothing more than that had been said, the intention would have been clearly expressed; but it ceases to be so once the definition is applied.

[15] In any event, the question here is not simply one of discerning the legislative intention however obscurely or confusingly it may be expressed. The problem is that the legislative expression in s 190(2)(b) has, by force of the definition of privilege, been rendered ambiguous. Whatever else may be said about it, it is certainly not clear. It follows that the Act cannot be said to have overturned the principle that a wife is not to be compelled to give evidence against her husband by a "clear, definite and positive enactment", to adopt the terms used by Lord Atkinson in Leach v The King [1912] AC 305, 311, and applied by Tomkins J in Hawkins v Sturt [1992] NZHC 228; [1992] 3 NZLR 602, 610. Although there is no specific Australian authority precisely in point, the principle or rule of interpretation applied in those cases accords with the recent statement in the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 553, that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect. The relevant statutory provisions in this instance fall well short of satisfying that prescription."

[9] The principles to be applied when considering whether a statute has abrogated a common law right (such as the self-incrimination privilege[2]) have been enunciated many times. They have been usefully compiled in the reasons of Jacobson J in S v Boulton [3]:

"[121] First, a statute is not to be construed as abrogating important common law rights and privileges except by clear words or necessary implication; Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 289-90, 309, 311, and 316; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [11]; A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at [54]; Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209 at [46].

[122] Second, an intention to exclude a common law privilege may be gleaned from a statute even though express words of exclusion are not used; Sorby at 289.

[123] Third, the question of whether the statute impliedly abrogates a privilege is to be determined upon the proper construction of the statute, considered as a whole, and from its character and purpose; Sorby at 289, 309.

[124] Fourth, important common law privileges are not to be lightly abrogated and the oft cited phrase "necessary implication" requires that there be a high degree of certainty as to the intention of the legislature; the intention must be manifested by unmistakable and unambiguous language; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 495; Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437.

[125] Fifth, what is required is that there be a manifestation or indication that the legislature has directed its intention to the question of abrogation and has consciously determined that the privilege is to be excluded; Coco v R at 437; Plaintiff S 157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [30] per Gleeson CJ.

[126] Sixth, general words will not be sufficient to disclose the requisite intention unless it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Coco v R at 438; Plaintiff S 157 at [30]; Griffin v Pantzer at [53].

[127] Seventh, the presumption that the legislature does not intend to abrogate entrenched common law rights may be displaced by implication if it is necessary to prevent the statute from being rendered inoperative or meaningless or from frustrating the evident statutory purpose; Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 at 495; Coco v R at 438."

[10] It was argued on behalf of the respondent that, in these circumstances, the word "privilege" as used in s 192(2)(b) bears a different meaning from that given in the dictionary of the Act. Mr Farr SC pointed to what he said was an important difference in the expressions used. The dictionary provides that "privilege, in relation to an answer, ... means ..."; whereas, s 192 speaks of a refusal "to answer the question on a ground of privilege ...". The difference, so it was argued, was that a "ground of privilege" is a legal concept, but an answer is not. "Privilege" is, indeed, a legal concept but one cannot read either the dictionary or s 192 by ignoring the context. A claim of privilege - that is, a claim made in answer to a question - refers the reader of the Act to the dictionary definition, as a claim is nothing more than an assertion of a ground upon which privilege is said to exist. The use of the words "in relation to" in the definition indicate that the widest possible connection between the words was to be assumed.

[11] It was also argued that Callanan was not binding authority because the Court did not consider the argument outlined above, nor that the definition in the dictionary was inconsistent with s 190(2)(b) thus creating an ambiguity. To the contrary, the Court did consider those matters and did so by carefully examining: the structure of the Act, the interplay between the dictionary and the operative sections, and the contents of the Explanatory Statement.

[12] I consider that I am bound to apply the reasoning in Callanan to these circumstances. The relationship between the definition of "privilege" and the contents of s 190 is all but identical to the relationship between that definition and s 192. Further, the reasoning in Callanan is consistent with the principles developed in the authorities which are summarised in S v Boulton. It follows, then, that the inevitable conclusion is that s 192(2)(b) works to exclude a claim of privilege on a ground of confidentiality but on no other basis. There are neither the clear words nor the necessary implication[4] which would be necessary to hold that such an important common law right as the privilege against self-incrimination has been abrogated. The applicant was entitled to claim the privilege and I make the declaration sought.

1. [1] [2005] QSC 119 at [4] - [15].
2. [2] "It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself." Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 per Gibbs CJ at 288
3. [3] (2006) 151 FCR 36 at [121] - [127]
4. [4] Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 289-90, 309, 311, and 316