FEDERAL COURT OF AUSTRALIA

Australian Crime Commission v OK [2010] FCAFC 61

CORRIGENDUM

1.                  The appearance for counsel for the respondent should be amended to read “J.F. Bleechmore and R.C. Bleechmore”.

Associate: 

Dated:         15 June 2010

THE COURT ORDERS THAT:

1.         The appeal be upheld.

2.         The orders made on 18 September 2009 be set aside and in lieu thereof it be ordered that the proceeding be dismissed with costs.

3.         The respondent pay the appellant’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

SPENDER J

1                                             I have had the opportunity of reading in draft form the joint judgment of Emmett and Jacobson JJ (the majority), who would allow the appeal from the judgment of Mansfield J, who on 16 September 2009, ordered:

1.         The Australian Crime Commission by its examiner be restrained in relation to the examination from time to time of the applicant pursuant to an examination summons issued under s 28 of the Australian Crime Commission Act 2002 (Cth) [(the Commission Act)] on 5 May 2009 from asking questions which by such questions directly relate only to matters the subject of the charge laid against the applicant on 13 May 2009 in respect of certain conduct alleged to have occurred on 27 April 2009, contrary to s 33(3) of the Controlled Substances Act 1984 (SA), or from requiring the applicant to answer questions to the extent that such answers disclose information directly relating to that charge, such injunction to remain in force until the said charge against the applicant has been finally determined by plea or verdict or by it being withdrawn or dismissed.

2                                             I would dismiss the appeal.

3                                             The majority seem to be of the view that, provided the Australian Crime Commission (ACC) keeps the questions and answers secret from the prosecution and investigation authorities in South Australia, there is no prejudice to a fair trial of a person charged with a South Australian offence by compelling that person to tell what he knows about the offence with which he has been charged to an Examiner armed with compulsory inquisitorial powers.

4                                             The majority think that, “so long as the protective prohibitions contemplated by ss 25A(3) and 25A(9) have been put in place,” there is noreal riskthat the person charged with an offence will be denied a fair trial by being compelled to answer questions put to him by an Examiner of the ACC concerning the offence of which he has been charged.

5                                             In the view of the majority, the judgment of the High Court in Hammond v Commonwealth (1982) 152 CLR 188 (Hammond’s Case) is distinguishable from the present case because “under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness.”

6                                             In my respectful opinion, the majority view is wrong.  It is simply not correct to say, as the majority do, in [109] of their Honour’s reasons:

The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured.

7                                             In my opinion, it is not the inability of the prosecution or investigator of the criminal offence to know of the questions and answers which an Examiner compels of a witness, a result to which the confidentiality directions are directed, which ensures a fair trial and so does not amount to an interference with the due administration of criminal justice.  Of course, the investigatory and prosecutorial personnel would, in any event, be precluded from using those answers, by virtue of the “use-immunity” in s 30(4) of the Commission Act. It is the inquisition by the Executive, combined with the compulsion to answer, which constitutes an interference with the due administration of criminal justice.

8                                             Even if in Hammond’s Case investigators and prosecutions might have been present to hear the questions and answers, the hearing was in private, and the answers could not be used in the criminal trial.  The High Court considered that Commission conduct in seeking to compulsorily examine Hammond as to the circumstances of the alleged offence (which questions he refused to answer) was the reason that Hammond was likely to be prejudiced in his defence to the criminal charges. 

9                                             In my judgment, the High Court held that it was the questioning and the compulsion to answer about the charge that was very likely to prejudice him in his defence (per Gibbs CJ), and would constitute an interference with the due administration of criminal justice (per Deane J), and that the continuance of the inquiry would amount to a contempt of court.  A parallel inquisitorial enquiry by the executive, when the person summoned is compelled to be sworn as a witness, and is subject to questioning about a pending criminal charge, constitutes in itself injustice and prejudice to the person summoned who has been charged with that criminal offence.  An accused person is entitled to reserve his or her defence until that person is on trial.

10                                          The majority say, correctly, at [106] of their Honours’ reasons: 

In Hammond’s Case the High Court considered that, once it was accepted that Mr Hammond would be bound to answer questions designed to establish that he was guilty of the offence with which he was charged, there was a real risk that the administration of justice would be interfered with.  While the examination would take place in private, and the answers may not be used in the criminal trial, the High Court considered that the fact that Mr Hammond had been examined, in detail, as to the circumstances of the alleged offence, was likely to prejudice him in his defence.  The High Court considered that, if during the course of an inquiry into allegations that a person had been guilty of criminal conduct, a criminal prosecution were commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court.  In those circumstances, the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings (see Hammond’s Case at 198-199).

(Emphasis in the original).

11                                          The regime provided by s 25A does not alter the commanding reasoning of the High Court in Hammond’s Case.

12                                          In my opinion, the appeal from the judgment and orders of Justice Mansfield should be dismissed.  I agree with the reasons that Mansfield J gave for his conclusions, except that, in my respectful opinion, it is irrelevant whether, notwithstanding confidentiality directions, there would still be a risk of disclosure to the investigation and/or prosecution authorities of the questions asked and the answers given by the summoned person.  Mansfield J seems to suggest that there was such a risk, whereas the majority conclude that there was no such risk of disclosure to those authorities.

13                                          In my judgment, whether the quarantining of information from those authorities is successfully able to be done is not the determining question.  It is the compulsory interrogation of a person facing a criminal charge about that criminal charge, whether quarantined or not, that constitutes the interference with the administration of justice.

14                                          In Hammond’s Case, by s 6 of the Royal Commissions Act 1902 (Cth), it was an offence for a witness before a Commission to refuse to answer any question relevant to the inquiry put to him by any of the Commission.  Section 6DD of that Act provided that a statement or disclosure made by any witness in answer to any question put to him by a Royal Commission or any of the Commissioners shall not (except in proceedings for an offence against the Act) be admissible in evidence against him in any civil or criminal proceedings.

15                                          The High Court (Gibbs CJ, Mason, Murphy, Brennan and Deane JJ) held that, assuming that under the Royal Commissions Act [and the Evidence Act 1958 (VICT.)] a witness who refused to answer a question relevant to an inquiry is guilty of an offence and that he is not entitled to refuse to answer on the ground that an answer might incriminate him, the continuance of the accused person’s examination before the Royal Commission would interfere with the due administration of justice, even though his answer would not be admissible in evidence against him.

16                                          It was submitted to the High Court by DM Ryan QC, as his Honour then was, for Mr Hammond, at 190:

Section 6DD of the Royal Commissions Act 1902 (Cth) does not prevent the course proposed by the Commission from being an interference with the course of justice.  The fact that a witness can object to answer under s. 7(2) on the ground of self incrimination does not avoid a contempt.  The contempt lies in the usurpation of the functions of the court.  An accused person is entitled to reserve his defence until the trial.  That is why the problem is not avoided by s. 6DD.  He should not be harassed even if he does not have to answer the question.  The opportunity to put questions to the accused of itself creates prejudice.  …

(Emphasis added).

17                                          Gibbs CJ (at 194) said that, when the hearing by the Commissioner resumed on 22 June, 1982:

The hearing was in confidential session but, over the objection of counsel for the plaintiff, the police officers who had investigated the matters upon which the plaintiff was to be examined were permitted to be present.  On 22 and 23 June further evidence was given by Mr. Kennedy and by Mr. R.V. Hammond.  The evidence called plainly related to the alleged conspiracy upon which the plaintiff had been committed for trial.  On 23 June, the plaintiff was called to give evidence and sworn. 

18                                          It does not plainly appear from that report that the police officers who had investigated the matters upon which the plaintiff was to be examined were present on the later days, the 22 and 23 June.  In my judgment, however, even assuming that they were present, the judgment of the High Court did not depend on whether they learnt of any answers that might be given in answer to the questions.  It was plain that any answers that were given concerning the charged offence were subject to the use immunity in s 6DD.  That use immunity related to any answer or question, not the restricted use immunity conferred by s 30(4) of the Commission Act which relates to answers in respect of which a person has claimed that the answer may tend to incriminate him.

19                                          Gibbs CJ, at 196, said:

The first question that arises is whether it would be an interference with the due administration of justice if the examination of the plaintiff were to proceed before the Commission. 

20                                          The Chief Justice gave his answer to that question, at 198:

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with.  It is clear that the questions will be put and pressed.  It is true that the examination will take place in private, and that the answers may not be used at the criminal trial.  Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.

(Emphasis added).

21                                          Mason J agreed with the reasons of the Chief Justice. 

22                                          Justice Murphy, at 201, said:

For the purposes of this case … it is assumed that the plaintiff has no privilege against self-incrimination.  He is awaiting his trial on indictment for conspiracy against the laws of the Commonwealth.  He has a constitutional right to trial by jury (see Constitution, s. 80).  It is inconsistent with that right that he now be subject to interrogation by the executive government or that his trial be prejudiced in any other manner.  I would take this view whether or not he has privilege against self-incrimination.  (Emphasis added)

To maintain the integrity of the administration of the judicial power of the Commonwealth an order should issue restraining the Commissioner from directing the plaintiff to answer any question which would tend to incriminate him in respect of the pending criminal proceedings.

(Emphasis added).

23                                          Brennan J agreed that an injunction should be granted in the terms proposed by the Chief Justice.  Brennan J said, at 202:

It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged.

24                                          At 203, Brennan J said:

An accused person may not be deprived of his immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. 

25                                          It is to be noted that Brennan J is referring specifically to an accused person’s “immunity from interrogation”, not to the quarantining of the information from the prosecution and investigation authorities.

26                                          Brennan J continued, at 203:

Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice.

(Emphasis added).

27                                          Deane J said, at 205:

The basic submission advanced on behalf of the plaintiff is that, in circumstances where the plaintiff has been committed for trial and is waiting the hearing of the criminal proceedings against him, an inquisitorial inquiry of the type being conducted by the Commissioner into the very matters which constitute the basis of the criminal proceedings constitutes an interference with the due administration of criminal justice in his case.

28                                          At 206, Deane J continued:

… it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court.  Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court.  Where a court is exercising the judicial power of the Commonwealth pursuant to s. 71 of the Constitution, such interference involves a derogation of the constitutional guarantees that flow from the vesting of the judicial power of the Commonwealth in courts of law.

(Emphasis added).

29                                          Deane J continued, at 207:

The plaintiff has been compelled to be sworn as a witness and has been subjected to questioning in the course of that inquiry.  Indeed, his refusal to answer questions has led to his being charged, on the information of an officer of the Australian Federal Police, with an offence under the Royal Commissions Act 1902 (Cth).  It is not, in my view, necessary to go beyond these things.  In themselves, they constitute injustice and prejudice to the plaintiff.

(Emphasis added).

30                                          Section 23A(3) and (9) of the Commission Act were introduced in 1984, two years after Hammond’s Case was decided in the High Court.  There was no reference, so we are told by the Solicitor-General, to abrogating the judgment of Hammond’s Case in any of the second reading speeches concerning the introduction of those subsections.  That, in my view, is a most surprising omission, if indeed the effect of them is to overrule the judgment of the High Court in Hammond’s Case. 

31                                          What the High Court considered was the vice in the conduct of the Commission, and why the injunction of the High Court was issued, was the questioning of the witness, with the compulsion to answer.  The injunction granted by the High Court was to restrain the defendants from “examining or resuming the examination on oath of the plaintiff in respect of matters touching and concerning the said charge.”

32                                          It was the questioning and the compulsory obligation to answer that was enjoined, and the reason that was enjoined was because that conduct constituted an interference with the administration of justice, and constituted a contempt of court. 

33                                          The short and central point is that in Australia, when a person is charged with a criminal offence, the onus is on the prosecution to prove its case.  There is no obligation on a person charged with a criminal offence to prove anything.  That person can say nothing, do nothing, and has to prove nothing.

34                                          The Lord Chancellor, Viscount Sankey, in Woolmington v The Director of Public Prosecutions (1935) AC 462, said at 481:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to … the defense of insanity and subject also to any statutory exception. … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Lord Hewart LCJ, Lord Atkin, Lord Tomlin, and Lord Wright each concurred in the judgment of Viscount Sankey.

35                                          In Australia, the right to silence at trial exists as a common law right.  The accused has a choice whether or not to give or call evidence in their defence.

36                                          It has been argued (Kellie, D and O’Sullivan H, “Ethical or Amoral? Is an Unqualified Right to Silence at Trial Defensible from an Ethical Perspective?” (2003) 6 (No 1)  Legal Ethics 73) that :

… in the context of existing rules of evidence, providing an absolute right to silence at trial elevates the interests of the accused over other interests, emphatically and poetically elucidated by Judge Learned Hand in 1923:

“Under our criminal procedure the accused has every advantage.  While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defence.  He is immune from question or comment on his silence; he cannot be convicted when there is at least fair doubt in the minds of any one of the twelve. … Our dangers do not lie in too little tenderness to the accused.  Our procedure has always been haunted by the ghost of an innocent man convicted.  It is an unreal dream.  What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime.” [United States v Garsson 291 F. 646 (SDNY 1923) cited in S I Iessler, “Asymmetry, fairness and criminal trials”, (2001), Michigan Law Review, 6/99.]

37                                          Despite Judge Learned Hand’s eloquent complaints about an accused’s “right to silence”, it is a fundamental right which a person accused of a an offence has.

38                                          In Weissensteiner v R (1993) 178 CLR 217, Mason CJ, Deane and Dawson JJ said, at 229:

The failure of the accused to give evidence is not of itself evidence.  It is not an admission of guilt by conduct.  It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof.

(Emphasis added)

39                                          In Weissensteiner, Brennan and Toohey JJ, at 231 said:

… the present case relates to the non-exercise by an accused of his statutory right to testify in his own defence at his trial.  (Emphasis added)

40                                          Gaudron and McHugh JJ, at 240, said that “the right to silence … is a fundamental rule of the common law.” 

41                                          In RPS v The Queen (2000) 199 CLR 620, at 630, Gaudron ACJ, Gummow, Kirby and Hayne JJ said:

What is presently significant is that a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.  In a trial of that kind, what significance can be attached to the fact that the accused does not give evidence?

42                                          At 643, McHugh J said:

The “right to silence” derives from the privilege against self-incrimination.  That privilege is one of the bulwarks of liberty.  History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming.  Because they hold that belief, often they do not hesitate to use physical and psychological means to obtain the answer they want.  The privilege against self-incrimination helps to avoid this socially undesirable consequence.  Nevertheless, as Professor Wigmore has pointed out:

“In preserving the privilege … we must resolve not to give it more than its due significance.  We are to respect it rationally for its merits, not worship it blindly as a fetish.”

The privilege exists to protect the citizen against official oppression.  We should not use it to bar ordinary processes of reasoning where they are applicable.

(Footnote omitted) (Emphasis added).

43                                          What flows from all of the above is that at the trial of a person of a criminal offence, that person has the right to silence, however that right may be labelled.  Whether, in Hohfeldian terms, it is a “right”, a “privilege”, or an “immunity”, it is a fundamental entitlement at common law.  An accused person does not have to give an answer to the charge before that person’s criminal trial.

44                                          Consistent with the onus of proof being on the prosecution from first to last, and with the presumption of innocence, it is a central feature of a criminal trial that in respect of a charge with which the person is charged, he or she is not obliged to testify: the person charged can say nothing, do nothing, prove nothing.  As Deane J said in Hammond’s Case, an extracurial inquisitorial investigation of the involvement of a person charged with a criminal offence, by the executive arm of government with powers to command the giving of evidence by that person, “constitutes an improper interference with the due administration of justice in the proceedings against him in the criminal courts and contempt of court.” 

45                                          In my judgment, Mansfield J was right to enjoin the Examiner, as set out in [1] of this judgment. 

46                                          The judgment of the High Court in Hammond’s Case has not been modified,  abrogated, or overruled by the insertion of s 25A(3) and s 25A(9).  In my judgment, an essential feature of a criminal trial, namely, the choice by an accused person whether to testify concerning that charge, has been usurped if an accused person is obliged by s 30 to answer questions concerning the charge he is presently facing.  The questioning by an Examiner of a person about a charge he is presently facing, and an insistence on answers with the threat of penal sanctions if not answered, involve a derogation from the rights which an accused has in a criminal court. 

47                                          I refer again to the comments of Deane J in Hammond’s Case at 207, set out in [25] above.  The questioning and compulsory answering constitutes injustice and prejudice to the person summonsed.

48                                          As Murphy J noted in Hammond’s Case, at 201:

He has a constitutional right to trial by jury (see Constitution, s.80).  It is inconsistent with that right that he now be subject to interrogation by the executive government or that his trial be prejudiced in any other manner.  I would take this view whether or not he has privilege against self-incrimination. 

(Emphasis added).

49                                          The injunction Mansfield J ordered is necessary to maintain the integrity of the administration of justice in the criminal courts of South Australia.

50                                          Further, one can rhetorically ask, if the answers about the charge by a person charged with a criminal offence cannot be used in any way, and, in particular where there are confidentiality orders, cannot be conveyed to any prosecuting authority or reported on to anybody other than the persons present when the questions are asked and the answers given, and the information is confined to those persons, what possible utility is there in requiring and compelling the answers to those questions?

51                                          There is nothing I wish to add to the reasons for judgment of Mansfield J concerning his Honour’s analysis of A v Boulton (2004) 204 ALR 598; Mansfield v Australian Crime Commission (2003) 132 FCR 251; A v Boulton (2004) 136 FCR 420; and Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564, with which I respectfully agree.

52                                          I do wish to say something of the judgment of Jessup J in ABC v Sage (2009) 107 ALD 614 (Sage).  The reason for this is that the Examiner in the present case regarded Sage  as authority authorising the questioning and compelling of answers to questions, even though these questions directly concerned the charge the person summoned was facing. 

53                                          Sage, an Examiner under the Commission Act, issued a summons to the applicant which summons indicated that the applicant “would not be examined in relation to charges currently before the Court.”  During the examination, the applicant declined to answer a question on the ground that the answer would reveal an element of his intended defence to serious criminal charges that had been made against him and in relation to which he was then remanded in custody.

54                                          Two of the challenges by the summoned person in proceedings in the Federal Court were that “it was unlawful for the respondent to require him to give an answer which related to charges currently before the Courts” and also that “to answer the particular question to which the applicant objected would have involved him in revealing an element of his intended defence to the criminal charges, and that requirement to answer tended to interfere in the administration of justice and was in contempt of court.”

55                                          Jessup J dismissed the application on all grounds, including the two to which I have referred.

56                                          The summons compelling the attendance of the applicant to give evidence contained the statement, “You will not be examined in relation to charges currently before the Courts.”  In my judgment, any questioning contrary to that undertaking, promise or indication in the summons would constitute in the clearest way a fraud on the power to compel a person to attend to give evidence.

57                                          Jessup J, in rejecting the contention that the requirement to answer would tend to interfere in the administration of justice and was in contempt of court, held that s 30(5) and 25A(9) of the Commission Act were manifestly calculated to reduce to a minimum the prospect of evidence given in an examination would find its way into the hands of authorities or persons other than those to whom, in accordance with directions given by an Examiner, it is limited, and that the directions given by the respondent, and the administrative steps taken by the Commission were such as would eliminate any real, as distinct from theoretical risk, of an interference with the administration of justice should the applicant answer the question put to him as required.

58                                          Jessup J seemed to be of the view that if one could prevent the leakage of details of the applicant’s evidence given in the examination, then the fair trial of the applicant would be protected and would not be prejudiced.

59                                          Jessup J was of the view that Hammond’s Case was distinguishable because those involved in the prosecution of the applicant in Sage would not come to learn of the substance of his evidence in the examination.

60                                          As I have sought to indicate above, that is not the basis on which the fair trial of the applicant was prejudiced in Hammond’s Case.  The basis was that the executive sought compulsorily to examine him in relation to the charges he was presently facing in the criminal court.

61                                          In this respect also, I respectfully disagree with the judgment of Jessup J in Sage.

62                                          For all of the above reasons, I would dismiss the appeal.

63                                          That conclusion has the unhappy consequence that two judges of this Court, Emmett and Jacobson JJ who constitute the majority in this appeal, are of the view that it is permissible for the executive compulsorily to interrogate a person facing criminal charges, if “appropriate confidentiality is ensured.”  The primary judge in this case, Mansfield J, and I are of the opposite view.

64                                          Our view is that compulsory interrogation by the executive of a person facing criminal charges about those charges, even in the circumstances postulated by the majority, is “inconsistent with that person’s right to trial by jury,” prejudices his trial, “is very likely to prejudice him in his defence”, “is an improper interference with the due administration of justice in the proceedings against him in the criminal courts”, and “constitutes a contempt of court,” adopting conclusions by judges of the High Court in Hammond’s Case.

Associate:

Dated:         2 June 2010

REASONS FOR JUDGMENT

EMMETT & JACOBSON JJ:

65                                          This appeal is concerned with the question of whether an examiner of the Australian Crime Commission (the Commission), who is conducting an examination under the Australian Crime Commission Act 2002 (Cth) (the Commission Act), may ask, of a person summoned to appear before the examiner, questions that relate directly to matters that are the subject of criminal charges laid against that person in a State criminal court.  The question involves the possible conflict between provision of the Commission Act requiring the Commission and its officers to disclose information to prosecuting authorities, on the one hand and the protection of the rights of persons charged with offences to have a fair trial of those offences, on the other.  Before outlining the circumstances giving rise to the appeal, it is desirable to say something about the relevant provisions of the Commission Act.

STATUTORY FRAMEWORK

66                                          The Commission is established by s 7(1) of the Commission Act.  The Commission consists of:

·                    the Chief Executive Officer of the Commission (the CEO), who is appointed by the Governor-General under s 37 of the Commission Act;

·                    examiners, who are appointed by the Governor-General under s 46B;

·                    the members of the staff of the Commission, consisting of persons engaged under the Public Service Act 1999 (Cth), persons participating in a Commission operation or investigation or a member of a task force established by the Board of the Commission.

The functions of the Commission are specified in s 7A.  They include:

·                    collecting, correlating, analysing and disseminating criminal information and intelligence and maintaining a national data base of that information and intelligence;

·                    undertaking intelligence operations;

·                    investigating matters relating to federally relevant criminal activity;

·                    providing reports to the Board on the outcomes of such operations and investigations.

67                                          The Board of the Commission is established under s 7B.  The Board consists of:

·                    the Commissioner of the Australian Federal Police;

·                    the Secretary of the department under which the Commission Act is administered;

·                    the Chief Executive Officer of the Australian Customs Service;

·                    the Chairperson of the Australian Securities and Investments Commission;

·                    the Director-General of the Australian Security Intelligence Organisation;

·                    the Commissioner or head of the police force of each State and Territory;

·                    the CEO.

The functions of the Board are specified in s 7C.  They include the following:

·                    authorising the Commission to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;

·                    determining whether such an operation is a special operation or whether such an investigation is a special investigation;

·                    determining the class or classes of persons to participate in such an operation of investigation;

·                    establishing task forces;

·                    disseminating to law enforcement agencies or other agencies of the Commonwealth, a State or a Territory, strategic criminal intelligence assessments provided to the Board by the Commission.

Under s 7C(2) the Board may determine that an intelligence operation is a special operation.  Under s 7C(3), the Board may determine that an investigation into matters relating to federally relevant criminal activity is a special investigation.  Federally relevant criminal activity is defined for the purposes of the Commission Act to include serious organised crime.

68                                          Section 8(1) establishes an Inter-Governmental Committee (the Committee) consisting of a member to represent the Commonwealth and a member to represent each participating State.  Under s 9, the Committee’s functions include monitoring the work of the Commission and the Board, receiving reports from the Board for transmission to the Governments represented on the Committee and such other functions as are conferred on the Committee by the Commission Act.  Under s 9(2), the Committee may request the Chair of the Board to give further information to the Committee in relation to a determination under s 7C(2) or s 7C(3).

69                                          Division 2 of Part II of the Commission Act, which consists of ss 24A to 36 inclusive, deals with examinations.  Under s 24A, an examiner may conduct an examination for the purposes of an investigation into matters relating to federally relevant criminal activity that the Commission is conducting and that the Board has determined to be a special investigation. 

70                                          Under s 28(1), an examiner may summon a person to appear before the examiner to give evidence.  Before issuing a summons, the examiner must be satisfied that it is reasonable in all the circumstances to do so and the examiner must record in writing the reasons for the issue of the summons.  A summons requiring a person to appear before an examiner must be accompanied by a copy of the determination of the Board that the investigation into matters relating to federally relevant criminal activity is a special investigation. 

71                                          Section 30(1) provides that a person served with a summons to appear as a witness at an examination before an examiner must not fail to attend as required.  Section 30(2) provides that a person appearing as a witness at an examination before an examiner must not refuse or fail to answer a question that he or she is required to answer by the examiner.  A person who contravenes those provisions is guilty of an indictable offence.

72                                          However, s 30(5) limits the use that can be made of an answer given at an examination before an examiner.  Subject to exceptions not presently relevant, such an answer is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty.  That limitation only applies if the person answers a question that he or she is required by the examiner to answer and, before answering the question, the person claims that the answer might tend to incriminate the person or make the person liable to a penalty.  Clearly enough, general law rules against self-incrimination are abrogated to the extent contemplated by s 30.  However, some of the consequences of that abrogation are ameliorated by the provisions of s 25A.

73                                          Section 25A deals with the conduct of an examination by an examiner.  Under s 25A(1), an examiner may regulate the conduct of proceedings at an examination as the examiner thinks fit.  Under s 25A(2), a person giving evidence may be represented by a legal practitioner.  Sections 25A(3) and 25A(9) are of critical importance to the issues in the appeal.  The former deals with the persons who may be present at an examination.  The latter deals with confidentiality. 

74                                          Under s 25A(3), an examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination.  However, s 25A(4) provides that nothing in such a direction prevents the presence, when evidence is being taken at an examination, of a person representing the person giving evidence.  Under s 25A(5) a person must not be present at an examination unless the person is entitled to be present by reason of a direction given by the examiner under s 25A(3) or by reason of s 25A(4).  A person who is present at an examination in contravention of that provision is guilty of an offence. 

75                                          Under s 25A(9), an examiner may direct that any evidence given before the examiner must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies.  The examiner must give such a direction if the failure to do so might prejudice the fair trial of a person who has been, or may be, charged with an offence.  A person who makes a publication in contravention of a direction given under s 25A(9) is guilty of an offence.  Under s 25A(10), the CEO may vary or revoke a direction under s 25A(9).  However, the CEO must not vary or revoke a direction if to do so might prejudice the fair trial of a person who has been, or may be, charged with an offence. 

76                                          Section 12 of the Commission Act deals with the performance of functions.  Section 59 deals with the furnishing of reports and information.  The question in the appeal is whether the protection afforded by s 25A(3) and s 25A(9) is qualified by those provisions.

77                                          Section 12 provides that, where the Commission, in carrying out an investigation into matters relating to federally relevant criminal activity, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, the CEO must assemble the evidence and give it to a relevant law enforcement or prosecuting authority of the Commonwealth, a State or Territory.  Where the Commission has obtained particular information in the course of performing one of its functions, the Commission may make use of that information in performing any of its other functions. 

78                                          Under s 59(1), if the Minister requests the chair of the Board to provide information concerning a specific matter relating to the Commission’s conduct in the performance of its functions, the Chair must comply with the request.  Section 59(1A) has a similar effect in relation to a request by a State minister.  Under s 59(4) the Chair of the Board must, subject to certain exceptions, furnish a report of the findings of any special operation or special investigation conducted by the Commission.  Such a report is to be transmitted to governments represented on the Inter-Governmental Committee. 

79                                          Under s 59(7), the CEO may give to any law enforcement agency any information that is in the Commission’s possession that is relevant to the activities of that agency, if it appears to the CEO to be appropriate to do so and to do so would not be contrary to a law of the Commonwealth, or a State or a Territory that would otherwise apply.  Under s 59(8) the CEO may, whenever it appears to be appropriate to do so, furnish to authorities and persons responsible for taking civil remedies by or on behalf of the Commonwealth, a State or a Territory, any information that has come into the possession of the Commission that may be relevant for the purpose of so taking such remedies in respect of matters connected with, or arising out of, offences against the laws of the Commonwealth, a State or a Territory.  Section 59(10) provides that a report under the Commission Act that sets out any finding that an offence has been committed, or makes any recommendation for the institution of a prosecution in respect of an offence, is not to be made available to the public unless the finding or recommendation is expressed to be based on evidence that would be admissible in the prosecution of a person for that offence.

80                                          Section 51 of the Commission Act, which deals with secrecy, may have some significance.  Section 51 applies to the CEO, a member of the Board, a member of the staff of the Commission and an examiner.  Any such person who, either directly or indirectly, makes a record of any information or divulges or communicates to any person any information, being information acquired by reason of, or in the course of, the performance of the person’s duties under the Commission Act, is guilty of an offence.  However, there is an exception where the making of a record or the divulging or communicating is for the purposes of a relevant Act, or otherwise in connection with the performance of that person’s duties under a relevant Act.

81                                          Relevant Act includes the Commission Act and a law of a State under which the Commission performs a duty or function, or exercises a power, in accordance with s 55A.  The main object of s 55A is stated to be to give legislative consent to the conferral, on the Commission, the Board, members of the Board, the CEO, examiners, members of the staff of the Commission and the Federal Court, of certain duties, functions and powers under State laws.  Section 55A(2) provides that a law of a State may confer on the Commission specified duties, functions and powers.  Under s 55A(4), a law of a State may confer on the Board, a member of the Board, the CEO, an examiner or a member of the staff of the Commission, specified duties, functions and powers.  Such a State law could conceivably authorise or direct the dissemination of information gleaned in an examination in a way that could prejudice the fair trial of a witness charged with an offence.

THE CIRCUMSTANCES GIVING RISE TO THE APPEAL

82                                          On 27 July 2005, the Board made Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005.  On 1 May 2009, the Board made Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) 2009.  By those determinations, the Commission was authorised to conduct a special investigation in respect of certain federally relevant criminal activity described in the determinations (the High Risk Crime Special Investigation).

83                                          On 5 May 2009, a summons was issued by an examiner of the Commission to the respondent to the appeal (the Witness), pursuant to s 28(1) of the Commission Act.  The summons required the Witness to attend before the examiner for examination on the subject of the High Risk Crime Special Investigation.  The Witness duly attended for examination on 12 May 2009.  The examination commenced and the Witness was examined by the examiner.  The examiner made an order under s 25A(9) preventing any communication in relation to any of the matters that had arisen relating to the examination, other than to persons present at the examination or to a legal practitioner acting for the Witness.  The examination was adjourned to 19 May 2009. 

84                                          On 13 May 2009, the Witness was arrested by the South Australian Police and charged with a major indictable offence.  The charge against the Witness (the Charge) was that, on 27 April 2009, at an Adelaide suburb, the Witness manufactured a controlled drug and intended to sell that controlled drug to another person, contrary to s 33(3) of the Controlled Substances Act 1984 (SA) (the State Act).

85                                          Certain officers of the Commission, but not necessarily the examiner who issued the summons to the Witness, were aware of the intention of the South Australian Police to arrest the Witness for taking part in the manufacture of a controlled drug.  Steps were taken by the Commission to ensure that any members of the South Australian Police involved in the arrest or the investigation or prosecution of the Charge under the State Act were excluded from the Commission’s examination process.  No information concerning the examination or information thus far obtained by the examiner, has been made available, to the South Australian Police.

86                                          On 19 May 2009, the examination resumed.  Counsel who had been appearing for the Witness withdrew and the examination was further adjourned to 9 June 2009.  On 9 June 2009, the Witness attended for the adjourned examination, when he was represented by different counsel.  On that day, the Witness was further examined in relation to matters relevant to the High Risk Crime Special Investigation.  In the course of the examination, he was asked questions in relation to matters concerning the Charge laid against him under the State Act.  He declined to answer them on the ground that the questions derogated from his rights generally as a charged person and more specifically to his right to a fair trial and conduct of his own defence, and that the inquisition was liable to amount to a contempt of the State criminal court.  The examiner directed the Witness to answer the questions, notwithstanding the objection.  When the Witness maintained his objection, the examination was further adjourned to allow him to apply to the Federal Court to determine whether the examiner could require him to answer the questions, over his objection.  A proceeding was then commenced in the Court on 12 June 2009. 

THE DECISION OF THE PRIMARY JUDGE

87                                          In the proceeding, the Witness sought review, under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), of the decision of the examiner to direct the Witness to answer questions put to him in the examination on 9 June 2009.  The Witness claimed an order that the examiner may not lawfully require answers to questions relating to charges currently before the criminal courts of South Australia, or that may affect or derogate from the Witness’ rights as a charged person or that may otherwise constitute a contempt of court.  The Witness contended that the examiner has no power to require an answer to questions that touch on factual matters that are part of current charges before the criminal courts of South Australia and that requiring answers to such questions would constitute a contempt of the criminal courts of South Australia.

88                                          The Commission opposed the relief claimed by the Witness, on the following bases:

·                    the Commission Act, by necessary implication, has provided that there should be no constraint on an examiner asking questions directly related to matters the subject of a criminal charge against a witness;

·                    in any event, in the particular circumstances of this case, there was no real risk that the questions of the Witness, or his answers, on matters directly relating to the subject of the Charge under the State Act would interfere with the administration of justice by impairing his opportunity for a fair trial.

89                                          On 16 September 2009, a judge of the Court made an order that the Commission be restrained, in relation to the examination from time to time of the Witness, from asking questions that directly relate only to matters the subject of the charge and from requiring the Witness to answer questions to the extent that such answers disclose information directly relating to the Charge.  The injunction so ordered was to remain in force until the Charge has been finally determined by plea or verdict or by being withdrawn or dismissed. 

90                                          The Commission has appealed to the Full Court from the orders of the primary judge.  It is convenient to say something about his Honour’s reasons before dealing with the issues raised by the appeal.

THE REASONS OF THE PRIMARY JUDGE

91                                          The primary judge accepted that, by necessary implication, s 30 of the Commission Act abrogates the privilege against self-incrimination.  Thus, s 30(2), when read in conjunction with s 30(5), clearly indicates a parliamentary intention to abrogate the privilege.  However, the abrogation is not absolute, in so far as s 30(5) provides for a “use immunity”, whereby a person being examined may, before answering a question, claim that the answer might tend to incriminate that person, in which event the answer will generally not be admissible in evidence against that person in a criminal proceeding.  While the primary judge observed that s 30(5) limits, in that way, the use of certain answers given during an examination, his Honour concluded that s 30(5) does not evidence a legislative intention to compel the answering of questions under s 30(2), where there is a real risk that such questions, or the answers, would interfere with the administration of justice.  His Honour did not consider that s 25A(9), in the context of the provisions of the Commission Act, including s 30, necessarily implies that the principle that a witness cannot be asked questions that are directly related to matters the subject of a criminal charge has been abrogated. 

92                                          The primary judge considered that, while the function of s 25A(9) is directed generally to preventing injustice in a range of circumstances, it is not an absolute power to prohibit or restrict the publication of evidence:  if it were, that may frustrate, in respect of evidence subject to such an order, the purpose of the relevant special investigation, because information relevant to it would not be available to the head of the investigation or operation, or be subject to the CEO’s overall responsibilities under the Commission Act, including, in particular, those under s 12 to assemble evidence and give it to prosecuting authorities.  His Honour concluded that, in the circumstances of the case, there was a real risk that questioning the Witness on matters directly relating to the Charge against him under the State Act may interfere with the administration of justice. 

93                                          The primary judge placed considerable reliance on the reasons of the High Court in Hammond v Commonwealth (1982) 152 CLR 188 (Hammond’s Case).  Hammond’s Case was concerned with the conduct of a Royal Commission.  A judge of the Federal Court was appointed as a Commissioner to inquire into a number of matters involving malpractices alleged to have occurred in the handling of meat for export and for human consumption in Victoria.  The letters patent authorised the commissioner to defer any inquiry into any matter that was the subject of a police investigation or of criminal proceedings in a court. 

94                                          An information was laid against Mr Hammond, charging that he had conspired with others to commit an offence against a law of the Commonwealth, namely the export of a prohibited export.  Such a conspiracy would have constituted an offence under the Crimes Act 1914 (Cth), for which Mr Hammond, if convicted, would be liable to be imprisoned.  Mr Hammond was committed to be tried in the County Court in Melbourne. 

95                                          Following the committal, the royal commissioner resumed hearing in confidential session.  Over the objection of counsel for Mr Hammond, police officers who had investigated the matters upon which he was to be examined were permitted to be present.  Mr Hammond was then called to give evidence.  He objected to giving evidence on the ground that he might incriminate himself.  The royal commissioner directed him to answer the questions asked of him.  He was then asked a series of questions as to facts directly relevant to issues to be litigated on the hearing of the conspiracy charge against him.  He refused to answer them.

96                                          Mr Hammond then sought, inter alia, an injunction restraining the Commonwealth and the royal commissioner, until the hearing and determination of the trial before the County Court of the charge of conspiracy against Mr Hammond, from examining or resuming the examination of Mr Hammond in respect of matters touching and concerning that charge.  He also claimed an injunction restraining the royal commissioner, until the hearing and determination of the trial, from further inquiring into or reporting on matters touching and concerning that charge.  The ground of the application for the injunctions was that the further examination of Mr Hammond, and the making of a report, would constitute a contempt of the County Court.  The High Court granted that injunction.

97                                          The primary judge rejected the Commission’s submission that the decision in Hammond’s Case is distinguishable from the circumstances of the present case.  His Honour considered that the only point of clear distinction between Hammond’s Case and the present case is that, in the present case, the criminal prosecution of the Witness is being conducted by the State of South Australia whereas, in Hammond’s Case, the prosecution was by the Commonwealth.  His Honour did not regard that as a relevant distinction, particularly because s 12 of the Commission Act contemplates the provision of evidence to a prosecuting authority, such as to the South Australia Police for the purposes of a prosecution. 

98                                          The primary judge then dealt with the Commission’s contention that the Commission Act has, by necessary implication, qualified the principle established by Hammond’s Case, such that the Witness was obliged to answer questions directly relevant to the Charge against him under the State Act.  His Honour accepted that the public interest in the due administration of justice, including an accused person’s right to a fair trial, is balanced in the Commission Act against the public interest in the investigation, by the Commission, of federally relevant criminal activity, such as serious organised crime.  On the one hand, the Commission has a significant role to perform in the public interest.  On the other hand, s 25A(3) recognises the due administration of justice by ensuring that any examination is held in private and s 25A(9) ensures, inter alia, the fair trial of a person who has been, or may be, charged with an offence. 

99                                          The primary judge considered that the balancing of interests was also apparent in ss 28 and 29A of the Commission Act.  That is to say, s 28(1A) requires an examiner to be satisfied that it is reasonable in all the circumstances to issue an examination summons and s 28(3) reflects a balancing of the interests of the public in the Commission appropriately investigating the federally relevant criminal activity with the interests of the proposed witness in being informed about the purpose of the examination.  Section 29A reflects an awareness that the disclosure of the summons may be detrimental to the special investigation or operation but confines the circumstances in which non disclosure may be imposed.  Section 29A(2) requires, relevantly, consideration of the fair trial of a person or the effectiveness of the operation or investigation.

100                                       While the primary judge considered that s 30 exhibits a legislative intention to strike a balance by the “use immunity”, preserved in the circumstances catered for by ss 30(4) and 30(5), his Honour did not consider that s 30 expressly covers the circumstances in which a witness, at the time of examination, has been charged with a criminal offence and where the examination relates directly to that offence, such that there is a real risk that the administration of justice may be impaired because the witness may not secure, or the court hearing the charge may not provide, a fair trial.  Further, his Honour did not consider that, in the context of the Commission Act, including s 30, s 25A(9) necessarily implies that the principle espoused in Hammond’s Case has been abrogated. 

101                                       The primary judge concluded that there is, in the circumstances of the present case, a real risk that questioning the Witness on matters directly relating to the Charge under the State Act may interfere with the administration of justice.  His Honour considered that there are routes by which information arising from the examination, being information directly relevant to the Charge under the State Act, may be made available to the prosecuting authorities.  The first route is by action pursuant to s 12 of the Commission Act.  The second route is not entirely clear but appears to be related to the exception to the secrecy provisions in s 51 in relation to the performance of duties under a relevant Act.

THE APPEAL

102                                       The appeal raises questions of the construction of the Commission Act and its effect in the present circumstances.  The primary object of the construction of a legislative instrument is to ensure that each relevant provision will be given a meaning and effect that is consistent with the language and purpose of all of the provisions of the instrument.  That is to say, each provision must be construed by reference to the language of the instrument viewed as a whole, on the assumption that its provisions are intended to give effect to harmonious goals.  A statutory instrument should be construed in such a way as will ensure, as far as possible, that all of its provisions are useful and pertinent, none of its provisions is superfluous, void or insignificant.  If there is conflict between the language of different provisions, the conflict is to be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve a result that will give effect to the purpose and language of the provisions, but at the same time maintain the unity or harmony of the instrument as a whole.  That will sometimes require a determination of what are the leading provisions and what are subordinate provisions, such that one must give way to another.  By determining the hierarchy of the provisions, it will often be possible to give each provision a meaning that best gives effect to its purpose and language, while maintaining the unity and harmony of the scheme of the instrument (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] – [71]).

103                                       Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts.  Thus, the evidence gathering procedures of a party are not limited to the use of court procedures.  There is no interference with the processes of the courts, or the course of justice, merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation.  The use of such a power of itself, during the pendency of litigation, is not a contempt of court, even if the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation.  To constitute contempt, the party must exercise the power in a way that interferes with the course of justice.  For example, if the exercise of a statutory power would give a party advantages that the rules of procedure would otherwise deny the party, that may be a contempt; something more is required than that the party exercising the power merely does so for the purpose of obtaining the evidence for use in pending litigation (see Environment Protection Authority v Caltex Refining Co (1993) 178 CLR 477 at 558-559).

104                                       A statute expressed in general terms should not ordinarily be construed so as to authorise the doing of an act that amounts to a contempt of court.  A provision, cast in general terms, which does not address itself to the question of contempt of court, should not be read as authorising action that would amount to such a contempt.  On the other hand, that does not necessarily lead to the conclusion that any action that might amount to a contempt would necessarily be beyond a power conferred in general terms.  It may be possible to read a provision as conferring a power to act in accordance with the terms of the provision, but subject to the law of contempt, such that action taken under the provision is subject to the exercise by the relevant court of its contempt powers.  Questions of power and questions of contempt involve different considerations.  The mere fact that an exercise of power may constitute a contempt of court in some circumstances does not necessarily mean that the power should be read down to that extent (see Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 473). 

105                                       To succeed in obtaining an injunction on the ground that further examination of a person charged with an offence would constitute contempt of court, it is necessary to establish that there is a real risk, as opposed to a remote possibility, that justice would be interfered with, if examination of the person continued with questions about the alleged offence.  That is to say, before the Court should intervene, the tendency of the proposed examination to interfere with the course of justice must be a practical reality: a theoretical tendency is not enough (see Hammond’s Case at 196). 

106                                       In Hammond’s Case the High Court considered that, once it was accepted that Mr Hammond would be bound to answer questions designed to establish that he was guilty of the offence with which he was charged, there was a real risk that the administration of justice would be interfered with.  While the examination would take place in private, and the answers may not be used in the criminal trial, the High Court considered that the fact that Mr Hammond had been examined, in detail, as to the circumstances of the alleged offence, was likely to prejudice him in his defence.  The High Court considered that, if during the course of an inquiry into allegations that a person had been guilty of criminal conduct, a criminal prosecution were commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court.  In those circumstances, the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings (see Hammond’s Case at 198-199). 

107                                       A significant difference between the circumstances of Hammond’s Case and the circumstances of the present case is the regime that is now provided for in s 25A of the Commission Act.  Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness.  The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge.  On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and 25A(9) have been put in place.  Such principle as might relevantly be drawn from Hammond’s Case is displaced by the express provisions of the Commission Act. 

108                                       The duty and power imposed by s 12(1) on the CEO and the Commission must be read as being subject to the protective prohibition in s 25A(9).  Further, the authority given to the CEO under s 59(7) to give information is qualified by reference to action contrary to a law of the Commonwealth.  Clearly enough, where a direction under s 25A(9) is in force, giving information contrary to that direction would be giving information contrary to a law of the Commonwealth that would otherwise apply.  A direction under s 25A(9) would also operate in relation to the other powers and authorisations dealt with in s 59.  Thus, s 25A, and provisions such as ss 12 and 59, dealing with the assembling and giving of evidence and the dissemination or furnishing of information, are capable of working harmoniously so as to ensure that investigation into serious organised crime and the dissemination of intelligence gathered by the Commission proceed in a timely manner, without prejudicing the fair trial of an accused person. 

109                                       The objects of the Commission Act could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid.  The public interest requires the investigation of a federally relevant criminal activity to continue.  The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured.  The public interest in the administration of justice, in particular to the right to a fair trial, is preserved by the statutory safeguards referred to in [43] above. In this way the legislation achieves a balance between the public interest in the investigation of federally related criminal activity and the public interest in the right of an accused person to a fair trial.  Compromise, if any, would occur by reason of the deployment or dissemination of information obtained in a way that poses a real risk to a fair trial.  A non-publication direction made under s 25A of the Commission Act remains operative unless and until it is varied or revoked.  Such a direction binds the Board, the Commission and the CEO when disseminating, under s 12 or s 59, any information gathered at an examination conducted subject to such a direction. 

110                                       The coercive powers conferred on examiners do not come to an end on the laying of criminal charges.  The provisions of s 25A clearly contemplate examinations continuing in the face of pending charges.  The provisions confer on an examiner, and on the CEO, powers to ensure that there is no real risk to a fair trial.  That is to say, the terms of the provisions expressly contemplate that the examiner must give a direction if the failure to do so might prejudice the fair trial of a person who has been charged with an offence.  Further, the CEO must not vary or revoke a direction once made, if the CEO forms the view that the revocation or variation might prejudice the fair trial of a person who has or may be charged with an offence.

111                                       Although s 12 is not qualified in the same way as s 59(7), imposing, as it does, a mandatory obligation on the CEO to assemble and give evidence to persons and agencies, including prosecuting authorities, it is capable of working harmoniously with s 25A.  A direction given under s 25A(9) is effective, and overrides the statutory obligation imposed by s 12 or s 59 on the Commission, the CEO or the Board to assemble and give evidence or disseminate and furnish information or reports.  In other words, while the CEO, the Board and the Commission are at all times required to perform their respective statutory obligations to assemble and give evidence and to disseminate or furnish information, that requirement must be understood as being subject to the provisions that they do so in a manner that is not inconsistent with a direction under s 25A(9).  For example, the CEO, the Commission and the Board would be able to disseminate information gathered at an examination to relevant agencies if they were satisfied, on the basis of appropriate evidence, that appropriate safeguards were in place, to ensure that the investigating and prosecuting teams in the relevant agencies dealing with pending charges could not be given access to that information.  The dissemination obligations arising under the Commission Act can be complied with without risk to a fair trial. 

112                                       Section 51, dealing with secrecy, does not cut across that analysis.  Section 51 imposes an obligation of secrecy quite separate and apart from any obligation arising from a direction given under s 25A(9).  In so far as there is an exception to the obligation imposed by s 51, to the extent that a person may, for the purposes of a relevant act, divulge or communicate information, that is merely an exception to the obligation imposed by s 51.  It is not an exception to the obligation arising from a direction given under s 25A(9). 

113                                       The application of the safeguards of s 25A(9) in the circumstances of the present case means that there is no real risk to the fair trial of the Witness.  There is no reason to suspect that the CEO or any member of the Commission or the Board would act contrary to such a direction.  There is no practical reality that the course of justice and a fair trial for the Witness would be interfered with by reason only of the witness being required to answer questions, so long as an appropriate direction is in force under s 25A(9).  Whether a contempt of a criminal court might occur is a matter for that court.  In the light of the analysis set out above, there is no real risk that the continuing questioning of the Witness would constitute a contempt.  In those circumstances, the primary judge erred in concluding that there was a real risk that compelling the Witness to answer questions directly relating to the subject matter of the Charge against him under the State Act would result in a prejudice to his fair trial or interfere with the course of justice or constitute a contempt. 

CONCLUSION

114                                       The appeal should be upheld.  The orders made by the primary judge should be set aside.  In lieu of those orders, there should be an order that the proceeding be dismissed and that the Witness pay the Commission’s costs of the proceeding.  The Witness should pay the Commission’s costs of the appeal. 

Associate: 

Dated:         2 June 2010