FEDERAL COURT OF AUSTRALIA

Anderson v XLVII [2014] FCA 1089

THE COURT ORDERS THAT:

1.    The respondent’s challenges to the jurisdiction of this Court to hear and determine the application of the applicant are dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This judgment concerns a challenge to the jurisdiction of the Court to deal with persons for contempt of the Australian Crime Commission (ACC).

2    Section 34A(a) of the Australian Crime Commission Act 2002 (Cth) (ACC Act) provides that persons appearing as witnesses at an examination before an ACC examiner are in contempt of the ACC if, amongst other things, they refuse or fail to answer a question which they are required to answer by the examiner.

3    If an examiner is of the opinion that a person is in contempt of the ACC during an examination, the examiner may apply to this Court or to the Supreme Court of a State or Territory for the person to be dealt with in relation to the contempt: s 34B(1). If the Court finds the contempt proved, it may “deal with” the person “as if the acts or omissions involved constituted a contempt of that Court”: s 34B(5).

4    By s 34C(2) of the ACC Act, proceedings in a Court under s 34B are to be instituted, carried on, heard and determined in accordance with the laws, including the relevant rules of Court, which apply to the punishment of contempts of that Court, and by subs (3), a certificate setting out the grounds of the application and the evidence in support of it is prima facie evidence of the matter specified in the certificate.

5    The applicant is an examiner appointed under s 46B of the ACC Act. He alleges that the respondent is in contempt of the ACC by reason of his refusal during examinations under the ACC Act on each of 5 February and 13 March 2014 to answer four separate questions. The four questions on each occasion were in essentially the same terms.

6    The applicant seeks an order that the respondent be punished for his contempts.

7    The respondent contends that, by reason of the following, this Court has neither jurisdiction nor power to punish him for the alleged contempts:

(a)    The power of the Court arising from Ch III of the Constitution to punish for contempt cannot be invoked as it is available only in relation to contempts of this Court. Those powers cannot be invoked to punish persons for “contempts” of the executive, such as contempts of the ACC.

(b)    Section 51 of the Constitution does not authorise the enactment of legislation providing for the involuntary detention of a person by the process contemplated by s 34B of the ACC Act.

(c)    Even if s 34B is otherwise within the legislative power of the Commonwealth, it is incompatible with the requirements of Ch III of the Constitution in that:

(i)    it seeks to conscript the power of this Court to procure the detention of a person by a process which departs in serious respects from the usual judicial process, and involves Court-imposed detention other than as an incident of the adjudication and punishment of criminal guilt;

(ii)    it requires the Court to give effect to the decision of an executive authority as if it were a judicial decision of the Court.

(d)    Sections 34A and 34B have the effect of creating an offence against a law of the Commonwealth. This means that s 80 of the Constitution requires trial by jury but ss 34A-34C do not contemplate such a trial.

8    I directed that the challenge to the Court’s jurisdiction to hear and determine the charges in the application filed on 14 March 2014, including the matters arising under the Constitution, be heard and determined in advance of the other issues in the application and adjourned the remaining issues to a date to be fixed.

9    As the respondent’s contentions raised matters arising under the Constitution or involving its interpretation, the respondent gave notice of the proceedings under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth, the States and the Territories. Only the Attorney-General for the State of South Australia exercised the right of intervention pursuant to s 78A of the Judiciary Act.

10    Before addressing the respondent’s contentions, it is appropriate to address some matters more generally.

Contempts of this Court

11    This Court is a creature of statute. Section 19(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that the Court has “such original jurisdiction as is vested in it by laws made by the Parliament”. Accordingly, the Court has such jurisdiction and powers as are conferred by valid legislative provisions made in accordance with the relevant constitutional requirements.

12    The power of this Court to punish contempts is both statutory and inherent. Section 31 of the FCA Act provides:

(1)    Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

(2)    The jurisdiction of the Court to punish a contempt of the Court committed in the face or hearing of the Court may be exercised by the Court as constituted at the time of the contempt.

13    The effect of s 31 is that this Court has the same power to punish contempts as is possessed by the High Court in respect of contempts of that Court. The power relates only to contempts of this Court’s power and authority.

14    Section 24 of the Judiciary Act provides that the High Court has the same power to punish contempts of its power and authority as was possessed at the commencement of the Judiciary Act by the Supreme Court of Judicature in England. That Court had power to impose penalties for both civil and criminal contempts.

15    The inherent power of this Court to punish contempts is informed by the decision of the High Court in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 concerning the power to punish contempts vested in the Family Court by s 35 of the Family Law Act 1975 (Cth). That section is expressed in relevantly identical terms to s 31 of the FCA Act. In Re Colina, the majority considered that the Family Court, as a Ch III Court, had an inherent power to punish contempts and that s 35 was declaratory of that power. The following propositions, adapted to the circumstances of this Court, can be derived from Re Colina:

(a)    The power of the Court to deal with contempts is inherent and (citing Isaacs J in Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 443) “is a power of self-protection or a power incidental to the function of superintending the administration of justice” (Gleeson CJ and Gummow J at [16], Hayne J agreeing at [108]-[109]);

(b)    Provisions such as s 31 of the FCA Act and s 24 of the Judiciary Act should be read as declaratory of an attribute of the judicial power of the Commonwealth vested in those courts by s 71 of the Constitution (Gleeson CJ and Gummow J at [16], Hayne J agreeing at [113]; McHugh J at [50] to the contrary);

(c)    Accordingly, the power to deal with contempts does not turn on the conduct in question being an offence against a law of the Commonwealth, but has its source in Ch III of the Constitution (Gleeson CJ and Gummow J at [16]-[19], Hayne J agreeing at [113]; McHugh J at [35]-[37], [45]-[46] and Kirby J at [80] to the contrary);

(d)    Provisions such as s 31 of the FCA Act and Part 42 of the Federal Court Rules 2011 (Cth) (FCR) contemplate that contempts will be dealt with in a summary way. At least with respect to contempts of a Ch III Court, s 80 of the Constitution does not guarantee trial by jury (Gleeson CJ and Gummow J at [20], [24]-[25], McHugh J at [50], Hayne J at [108], Callinan J at [126]-[136]; Kirby J to the contrary at [95]). Gleeson CJ and Gummow J considered it unnecessary to reconsider the authorities indicating that s 80 did not provide such a guarantee: at [24]-[25].

16    As noted earlier, an examiner may apply either to this Court or to the Supreme Court of a State or Territory to have a person dealt with for an alleged contempt. The summary just given relates only to this Court. It was not suggested that separate attention need be given for present purposes to the contempt powers of the Supreme Courts of the States and Territories.

17    The common forms of punishment for contempts are fines and, in serious cases, imprisonment, but the Court is not confined to these forms of sanction. In Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138], R D Nicholson J noted that the penalties available to the Court for a contempt include:

(a)    The committing of the contemnor to prison for an indefinite period of time;

(b)    The imposition of a fine for wilful breach of an order or undertaking;

(c)    The imposition of daily fine;

(d)    The sequestration of the assets of the contemnor;

(e)    The suspension on condition of any sentence of imprisonment which may be imposed.

See also Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319 at [55]. When imprisonment is imposed, it may be for a fixed term, until the happening of a contingency (usually the purging of the contempt) or until further order.

18    The jurisdiction of courts to punish for contempt has been described as sui generis. In former times, a distinction was drawn between civil and criminal contempts: see the discussion by Buss JA in relation to the Western Australian counterpart to the ACC in Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [61]-[79]. But the distinction between these two kinds of contempts seems now largely to be historical. In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, Gibbs CJ, Mason, Wilson and Deane JJ referred at 107 to the “unsatisfactory” nature of the distinction between the classes of contempt and concluded at 109 that there was “much to be said for the view that all contempts should be punished as if they are quasi-criminal in character.” Further, in Witham v Holloway (1995) 183 CLR 525, Brennan, Deane, Toohey and Gaudron JJ concluded (at 534):

[N]othing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive”. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. …

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. … [T]he illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear … that all proceedings for contempt “must realistically be seen as criminal in nature”.

(Citation omitted)

19    In the present case, the respondent emphasised the punitive nature of sanctions for contempt.

The Australian Crime Commission

20    The ACC Act establishes the ACC. It has the functions specified in s 7A of the ACC Act. Those functions include the collection, correlation, analysis and dissemination of criminal information and intelligence (subpar (a)); the maintenance of a national database of that information and intelligence (subpar (a)); the undertaking, when authorised by the Board of the ACC, of “intelligence operations” (subpar (b)); and the investigation, when authorised by the Board, of matters relating to “federally relevant criminal activity” (subpar (c)). The term “relevant criminal activity” is defined in s 4 to mean any circumstances implying, or any allegations, that a “relevant crime” may have been, or may be committed against a law of the Commonwealth or of a State or Territory. The term “relevant crime” is defined in s 4 to mean “serious and organised crime” or “indigenous violence or child abuse”. Criminal activity has the character of being “federally relevant crime activity” if the relevant crime is an offence against a law of the Commonwealth or of a Territory, or an offence against a law of a State which has a “federal aspect” (s 4). The concept of a federal aspect to a State offence is elaborated in s 4A.

21    By s 7C the Board of ACC may determine that certain operations are “special operations” and that certain investigations are “special investigations”. A determination of either kind must describe the general nature of the circumstances or allegation constituting the federally relevant criminal activity, identify that the relevant crime or crimes are or include an offence or offences against a law of the Commonwealth or of the State or Territory, and set out the purpose of the operation or investigation.

22    When the ACC, in carrying out an “ACC operation/investigation”, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory which would be admissible in a prosecution for the offence, its CEO must give that evidence to the Attorney-General of the Commonwealth or the State, or to a relevant law enforcement authority (s 12(1)).

23    The ACC may discharge its functions in a variety of ways. In particular, examiners appointed under Division 3 of Part 3 of the ACC Act may require the production to them of specified information or documents (ss 20-21); and examiners or police officers on the staff of the ACC may obtain and execute search warrants (s 22).

24    It is evident that the examination of persons by examiners is an important means by which the ACC may obtain information relevant to the discharge of its functions. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30.

25    An examiner may obtain a warrant for the arrest of a person summonsed if there are reasonable grounds to believe that the person is likely to leave Australia for the purpose of avoiding giving evidence, or has absconded or is likely to abscond: s 31. It is also an offence for a person at an examination to give evidence that is to his or her knowledge false or misleading in a material particular: s 33.

Contempt of the Australian Crime Commission

26    Sections 34A, 34B and 34C, summarised at the commencement of these reasons, provide as follows:

34A Contempt of the ACC

A person is in contempt of the ACC if he or she:

(a)    when appearing as a witness at an examination before an examiner:

(i)    refuses or fails to take an oath or affirmation when required to do so under section 28; or

(ii)    refuses or fails to answer a question that he or she is required to answer by the examiner; or

(iii)    refuses or fails to produce a document or thing that he or she was required to produce by a summons or notice under this Act that was served to him or her as prescribed; or

(b)    is a legal practitioner who is required to answer a question or produce a document at an examination before an examiner, and both of the following apply:

(i)    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;

(ii)    he or she refuses to comply with the requirement and does not, when required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made; or

(c)    gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular; or

(d)    obstructs or hinders an examiner in the performance of his or her functions as an examiner; or

(e)    disrupts an examination before an examiner; or

(f)    threatens a person present at an examination before an examiner.

34B Federal Court or Supreme Court to deal with contempt

(1)    If an examiner is of the opinion that, during an examination before the examiner, a person is in contempt of the ACC, the examiner may apply to either of the following courts for the person to be dealt with in relation to the contempt:

(a)    the Federal Court;

(b)    the Supreme Court of the State or Territory in which the examination to which the contempt relates is being conducted.

(2)    Before making the application, the examiner must inform the person that the examiner proposes to make the application.

(3)    The application must be accompanied by a certificate that states:

(a)    the grounds for making the application; and

(b)    evidence in support of the application.

(4)    A copy of the certificate must be given to the person before, or at the same time as, the application is made.

(5)    If, after:

(a)    considering the matters specified in the certificate; and

(b)    hearing or receiving any evidence or statements by or in support of the ACC; and

(c)    hearing or receiving any evidence or statements by or in support of the person;

the Court to which the application was made finds that the person was in contempt of the ACC, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court.

(6)    For the purposes of determining whether a person is in contempt of the ACC under subsection (1), Chapter 2 of the Criminal Code applies as if:

(a)    contempt of the ACC were an offence; and

(b)    references to a person being criminally responsible for an offence were references to a person being responsible for contempt of the ACC.

34C Conduct of contempt proceedings

(1)    This section applies if an application for a person to be dealt with in relation to a contempt of the ACC is made to the Federal Court or to the Supreme Court of a State or Territory under section 34B.

(2)    Proceedings in relation to the application are, subject to this Act, to be instituted, carried on, heard and determined in accordance with the laws (including any Rules of Court) that apply in relation to the punishment of a contempt of the Court to which the application was made.

(3)    In proceedings in relation to the application, a certificate under subsection 34B(3) is prima facie evidence of the matters specified in the certificate.

27    As can be seen, s 34A defines the circumstances in which a person will be in contempt of the ACC. It is s 34A(a)(ii) which is pertinent presently.

28    Section 34B both authorises an examiner to apply to the Federal Court or a Supreme Court to have a person dealt with in relation to a contempt (subs (1)) and vests the Court with jurisdiction to “deal with” the person if it finds the contempt is established (subs (5)). The respondent submitted that ss 34B and 34C do not “in their terms” confer jurisdiction and power on this Court. That may be so but the vesting of jurisdiction is implicit in subss (1) and (5) of s 34B: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 155, 165; Hooper v Hooper (1955) 91 CLR 529 at 535-8. In Barrett at 155, Latham CJ said:

[I]t is within the power of the Commonwealth Parliament, when legislating upon a subject matter within its constitutional competence, to provide that a court may make orders which are incidental to carrying into effect the legislative scheme, and that a proceeding to obtain such an order is a matter arising under the Federal law. A right is created by the provision that a court may make an order, and such a provision also gives jurisdiction to the court to make the order.

Section 15C of the Acts Interpretation Act 1901 (Cth) is also pertinent presently:

Where a provision of an Act, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter:

(a)    that provision shall be deemed to vest that court with jurisdiction in that matter;

…

29    Accordingly, on its face s 34B is a provision of the kind to which s 19 of the FCA Act refers, being a law made by the Commonwealth Parliament vesting jurisdiction in the Court. The jurisdiction which it grants is statutory, although its exercise is informed by the inherent jurisdiction of this Court to punish contempts of its own power and authority.

30    The right of an examiner to apply to the Court under s 34B(1) is conditioned on the examiner forming the opinion that, during an examination before the examiner, a person has acted in contempt of the ACC in one of the ways specified in s 34A. The respondent has foreshadowed a possible challenge to the applicant’s formation of that opinion in this case as he proposes to contend that the applicant’s examination of him was conducted without, or in excess of, jurisdiction. However, those issues are not to be addressed at this stage of the trial.

31    Sections 34A, 34B and 34C contemplate an integrated scheme by which courts may deal with the defined contempts of the ACC. Section 34A defines the contempts and, with s 34B(6) and Ch 2 of the Criminal Code, identifies the elements of a contempt. Section 34B vests particular courts with jurisdiction to deal with the contempts, specifies who may invoke the jurisdiction, regulates some aspects of the procedures and, by subs (5), identifies by reference the kinds of penalties which may be imposed when a contempt is proved. Section 34C regulates further aspects of the proceedings and provides in subs (3) a means of prima facie proof of the matters alleged by the examiner.

32    Section 34D adds to the scheme by providing means by which the subject of the application may be detained until an examiner’s application has been determined.

33    The ACC Act does not purport to make a contempt of the ACC a contempt of this Court or of a State or Territory Supreme Court. This is evident in s 34A itself and in s 34A(5) which authorises the Court to deal with the person in contempt “as if” the acts or omissions of that person constituted a contempt of the Court. Section 34B(5) thereby indicates, and bestows on the Court, the powers which may be exercised when the Court finds a contempt proved. It is also evident that the ACC Act does not purport to rely on s 31 of the FCA Act as the source of this Court’s jurisdiction to deal with a contempt of the ACC. As indicated, that jurisdiction is found in s 34B of the ACC Act in conjunction with s 19 of the FCA Act.

34    Section 34B(6) establishes a fiction in relation to the determination of whether a person is in contempt of the ACC. It provides, that for that purpose, Ch 2 of the Criminal Code applies “as if” contempt of the ACC were an offence. Ch 2 of the Criminal Code contains the general principles of criminal responsibility which apply to any offence (cl 2.1). In order to facilitate the application of Ch 2 of the Code, s 34B(6)(b) specifies that Ch 2 applies as if references in the Code to a person being criminally responsible for an offence are references to a person being responsible for contempt of the ACC. As indicated earlier, the effect of s 34A, s 34B(6) and Ch 2 of the Criminal Code is to establish the elements of a contempt of the ACC.

The special operation

35    On 4 September 2013, the Board of the ACC made an instrument under s 7C of the ACC Act entitled “Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motor Cycle Gangs) 2013” (the Determination). The Determination authorised an intelligence operation to determine whether groups described as “Outlaw Motor Cycle Gangs” had engaged, were engaging, or may in the future engage, in federally relevant criminal activity, including serious drug offences contrary to Pt 9.1 of the Criminal Code, the unlawful importation, possession or dealing in illegal drugs within the meaning of the Crimes Act 1914 (Cth) or the Customs Act 1901 (Cth), cross-border firearms trafficking in contravention of Pt 9.4 of the Criminal Code, and money laundering within the meaning of s 81 of the Proceeds of Crime Act 1987 (Cth).

36    By a summons dated 22 January 2014, the applicant summonsed the respondent to appear before him for examination for the purposes of the special operation to which the Determination referred. A copy of the Determination was attached to the summons.

Not a contempt of the Court’s own powers and authority

37    The respondent’s first contention is that the inherent power of the Court, and the power under s 31 of the FCA Act, to punish for contempt is available only for the protection of the Court’s own power and authority. This follows from the power being an attribute of the judicial power of the Commonwealth, ie, “a power of self-protection or a power incidental to the function of superintending the administration of justice”: Re Colina at [16], [108]-[109]. This limitation is also made plain by s 31(1) of the FCA Act which refers to the Court’s power to punish contempts “of its power and authority”.

38    For the reasons given earlier, this contention of the respondent should be accepted. Neither the inherent power of the Court nor s 31 of the FCA Act permit the Court to punish contempts of other entities or of the Executive considered more generally. Section 31 of the FCA Act cannot be regarded as a source of this Court’s jurisdiction to punish contempts of the ACC.

39    I note that in X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 603-4, Mahoney JA referred to the possibility that the jurisdiction of a superior court with respect to contempt may also extend to contempts of courts or tribunals over which the court has a supervisory role. That question does not arise for consideration presently.

Legislative power and punitive detention

40    The respondent’s next submission was that, subject to recognised exceptions, it is beyond the legislative competence of the Commonwealth Parliament to enact legislation authorising the punitive detention of a person unless by judicial order following the adjudication and punishment of criminal guilt. In addition, the Commonwealth Parliament lacked the competence, it was submitted, to confer power on a court to punish by punitive detention “contempts” of an executive process. The first seemed to be a submission about process and the second a submission about subject matter.

41    The respondent did not argue that the ACC could not be authorised to undertake the special operation to which the Determination related. He did not challenge the applicant’s submission that the special operation was justified by reference to, at least, the powers in s 51(i), (v), (xii) and (xiii) of the Constitution. The respondent accepted that it is within the competence of the Commonwealth Parliament to create, and to authorise the investigation of, the offences to which the Determination referred. He also accepted, at least tacitly, the proposition stated by Emmett J in S v Australian Crime Commission [2006] FCAFC 5; (2006) 149 FCR 361 at [41]:

The provisions of the [ACC] Act that empower the Commission to investigate offences are supported by as many heads of power as are applicable in the particular circumstances in which the coercive powers are exercised.

42    The respondent’s submission about process was more confined, but nevertheless involved several facets. It was, in part, a submission that the Australian Constitution does not authorise the enactment of legislation containing a process for the adjudication and punishment of conduct other than by the conventional criminal process; in part, a submission that the Commonwealth Parliament cannot authorise involuntary detention for punitive purposes unless by curial order following an adjudication of criminal guilt; and in part a submission that, having established the offence of failing or refusing to answer an examiner’s question, it was not open to the Parliament to legislate for a means of enforcement involving punishment by detention on the basis that the conduct in question did not constitute an offence. The latter submission was that, putting to one side the implications arising from Ch III of the Constitution, the establishment of a “parallel criminal process” could not be justified by the incidental power as it is not reasonably connected with the underlying power.

43    The contentions of the respondent were based on two related premises: first, that the sanctions contemplated by s 34B(5) are punitive in nature and, secondly, that, other than in the case of the recognised exceptions, sanctions of that kind may be imposed only by curial order. Both premises are sound.

44    As to the first, the passage from the reasons in Witham v Holloway quoted earlier in these reasons indicates the punitive nature of sanctions imposed for contempt of court. So does the observation of Deane J in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 49:

It should no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding of contempt of court cannot be justified otherwise than as a punishment for past or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor … must realistically be seen as essentially criminal in nature … In any event, it is plain that the offences of which the present appellants were found guilty and for which they have been sentenced were, even on traditional classification, criminal contempts and that the proceedings giving rise to the present appeals were … criminal in nature.

(Citation omitted)

45    In relation to the second, the respondent referred to passages in decisions of the High Court concerning forms of involuntary detention at the behest of the Executive. He referred first to the statement of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27:

In exclusively entrusting to the courts designated by Ch. III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that it is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

(Emphasis added)

Brennan, Deane and Dawson JJ noted (at 28) that a number of recognised forms of involuntary detention are not punitive in nature: detention following arrest while awaiting trial, and detention in cases of mental illness or infectious disease. Their Honours then noted that, apart from the power of the Parliament to punish for contempt and the power of military tribunals to punish for breach of military discipline, “the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.”

46    The Court in Lim held that the power of the Commonwealth Parliament vested by s 51(xix) with respect to aliens authorised legislation permitting the Executive to detain in custody an alien for the purposes of expulsion or deportation and that legislation to that effect did not contravene the investment of the judicial power of the Commonwealth in Ch III courts.

47    In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, the High Court, by majority, upheld the validity of legislation authorising the indefinite detention by the Executive of a stateless person whose removal from Australia was not reasonably practicable. The respondent referred to the reasons of McHugh J at [44]:

Nor does the continued detention of a person who cannot be deported immediately infringe Ch III of the Constitution. Chapter III is always infringed where the detention of a person other than by a curial order — whatever the purpose of the detention — is authorised by a law of the Commonwealth and imposes punishment. However, a law authorising detention will not be characterised as imposing punishment if its object is purely protective. Ex hypothesi, a law whose object is purely protective will not have a punitive purpose. That does not mean, however, that a law authorising detention in the absence of a curial order, but whose object is purely protective, cannot infringe Ch III of the Constitution. Even a law whose object is purely protective will infringe Ch III if it prevents the Ch III courts from determining some matter that is a condition precedent to authorising detention.

(Emphasis in the original)

48    The respondent emphasised the statement that Ch III of the Constitution is infringed whenever a person is detained, other than by curial order, for the purposes of punishment.

49    Next, the respondent referred to the judgment of Gaudron J in Kruger v The Commonwealth (1997) 190 CLR 1, in which Her Honour suggested that, subject to recognised exceptions, s 51 of the Constitution should not be regarded as authorising the enactment of legislation involving the involuntary detention of persons in custody divorced from any breach of the law. Gaudron J said at 110-1:

I do not doubt that there is a broad immunity similar to, but not precisely identical with that enunciated by Brennan, Deane and Dawson JJ in Lim. In my view, however, it does not derive from Chapter III. Rather, I am of the view that the true constitutional position is that, subject to certain exceptions, a law authorising detention in custody, divorced from any breach of the law, is not law on a topic with respect to which s 51 confers legislative power.

50    The decision in Kruger concerned the validity of Northern Territory legislation permitting the forced separation by the Chief Protector of Aboriginals and, later, the Director of Native Affairs of Aboriginal children from their parents.

51    Gaudron J had also raised this possible limitation on legislative power in Lim at 55-57. I note that in Al-Kateb, Gummow J at [130]-[132] considered that the reasons of Brennan, Deane and McHugh JJ in Lim were to be preferred to those of Gaudron J.

52    Finally, the respondent referred to passages in the reasons of Gummow J in Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575. In that case, the Court considered the validity of legislation authorising the Supreme Court of Queensland to make an order for the indefinite detention for protective purposes of persons considered to be an unacceptable risk of committing a serious sexual offence if released into the community. Gummow J referred at [77] to the proposition stated by Brennan, Deane and Dawson JJ in Lim quoted above, and to the observation of Kirby J in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 at [56] that, “loss of liberty as a punishment … is ordinarily one of the hallmarks reserved to criminal proceedings conducted in the courts, with the protections and assurances that criminal proceedings provide”. Gummow J then continued at [80]:

I would prefer a formulation of the principle derived from Ch III in terms that, the “exceptional cases” aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.

53    The respondent contended that the quoted passages indicate that, other than in the case of the recognised exceptions, the imposition of the sanction of imprisonment requires an exercise of the judicial power. I accept that that is so. Adjudging and punishing criminal guilt is an exclusively judicial function: Magaming v The Queen [2013] HCA 40; (2013) 302 ALR 461 at [47]. I also accept that proceedings for the punishment of a contempt, whether of this Court itself or as contemplated by s 34B, are criminal in nature.

54    However, the soundness of these premises does not establish the lack of legislative competence for which the respondent contended. Plainly, the punitive sanctions contemplated by s 34B may be imposed only by curial order. For the respondent’s submission to succeed, it requires, in addition, acceptance of the proposition that the curial order may be made only after a finding of “criminal guilt” in proceedings having the hallmarks of a criminal trial. None of Lim, Al-Kateb or Kruger concerned that question.

55    As the Solicitor-General for South Australia noted, the respondent’s claim involves not only a contention that the Constitution permits punishment for contempts of the ACC to be imposed only by an exercise of the judicial power, but also a contention that it requires that that power be exercised only in accordance with a particular procedure. He submitted that the Court was thereby being invited to “constitutionalise” criminal procedure, so as to hold that it was not open to the Commonwealth Parliament to enact a procedure which is sui generis or which departs in some respect from the conventional hallmarks of a criminal trial.

56    In my opinion, there is force in this critique and it should be accepted. The implications and assumptions arising from Ch III of the Constitution and from the right to trial by jury in respect of indictable offences established by s 80 of the Constitution which bear on these questions are to be considered in the next two sections of the these reasons and can be put to one side for present purposes. The present limitations on the legislative power of the Commonwealth for which the respondent contended were said have their basis in Ch I of the Constitution. However, apart from the reference to the passage in the reasons of Gaudron J in Kruger to which I referred earlier, the respondent did not point to any basis upon which the legislative powers of the Commonwealth should be regarded as restricted in the way for which he contends. The approach of Gaudron J has not commanded majority support in the High Court.

57    The respondent did not attempt to identify the particular elements of the “conventional criminal process” in respect of which the legislative power of the Commonwealth Parliament is said to be confined.

58    It is true that the Commonwealth has no general legislative power in relation to criminal law. Nevertheless, it can create criminal offences in the areas of its enumerated legislative powers, provided that the creation of the criminal offence is sufficiently connected to a legislative power: S v Australian Crime Commission [2006] FCAFC 5; (2006) 149 FCR 361 at [40]. To like effect, Murphy J said in Viro v The Queen (1978) 141 CLR 88 at 161:

The Commonwealth has full power (which it has freely exercised) to make criminal as well as non-criminal law with respect to the subjects on which it is empowered to legislate.

59    The Commonwealth’s power with respect to criminal law can be exercised to provide different modes of trial. This power is exercised when the Parliament provides that an offence is indictable (thereby entitling the accused to trial by jury) or that it is a summary offence, with the consequence that it can be charged and determined in a summary way: Kingswell v The Queen (1985) 159 CLR 264.

60    I will refer later to the reasons of Brennan J in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 concerning the power of the Parliament to make laws prescribing matters of criminal evidence, practice and procedure in respect of those subject matters over which it has legislative competence. The exercise of that power is readily apparent in the provisions of the Crimes Act 1914 (Cth) and in the Criminal Code forming the Schedule to the Criminal Code Act 1995 (Cth) prescribing particular procedures for the investigation, prosecution and adjudication of criminal guilt. The recognition of that power militates against the legislative power of the Commonwealth Parliament being limited in the way for which the respondent contends.

61    The provisions in several enactments with respect to civil pecuniary penalties are another illustration of the exercise of legislative power to provide for a punishment, and the means of its imposition, which departs from the conventional criminal process.

62    There may of course be some departures from the conventional criminal process which are so significant as to indicate that the power which the courts are intended to exercise cannot reasonably be regarded as judicial at all. The respondent did not contend that the present was such a case. Having regard to the features of the process contemplated by ss 34A-34C, to which I will refer shortly, such a submission would, in any event, have been difficult to sustain.

63    As indicated, the respondent also relied on the circumstance that a witness’ refusal or failure to answer a question which an examiner requires him or her to answer is an offence. He submitted that, having so provided, it was not open to the Parliament to establish a “parallel system” for the punishment of the same conduct.

64    Section 30 of the ACC Act contains relevant offence provisions:

(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.

(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.

….

(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.

….

As can be seen, subs (1) provides that a summonsed witness shall not fail to attend as required by the summons. Subsection (2) provides that the witness shall not, amongst other things, “refuse or fail to answer a question that he or she is required to answer by the examiner”. A person who contravenes those requirements is guilty of an indictable offence punishable by fine or imprisonment (subs (6)).

65    Sections 33 and 35 are also pertinent. Section 33(1) proscribes the giving of evidence at an examination before an examiner which the person knows is false or misleading in a material particular and provides that a contravention is an indictable offence. Section 35 provides:

(1)    A person must not:

(a)    obstruct or hinder:

(i)    the ACC in the performance of its functions; or

(ii)    an examiner in the performance of his or her functions as an examiner; or

(b)    disrupt an examination before an examiner; or

(c)    threaten any person present at an examination before an examiner.

(2)    A person who contravenes subsection (1) 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.

…

66    It is to be observed that the provisions in s 34A establishing the contempts which may be committed by a witness do not replicate entirely the offences as specified in ss 30, 33 and 35. The conduct of failing to attend to which s 30(1) refers has no counterpart in s 34A. Nor does the hindering or obstruction of the ACC itself, as distinct from the hindering or obstruction of an examiner, have a counterpart in s 34A. It is apparent therefore that s 34A contemplates that only certain forms of criminal conduct will also constitute a contempt of the ACC.

67    There are distinctions in principle between the offences established by s 30 and a contempt of the ACC. In a case like the present, it is the contempt of the ACC involved in the refusal or failure to answer the required question which is to be dealt with under s 34B, and not just the refusal or failure by itself. Although the considerations bearing on the appropriate punishment for that conduct will have much in common with punishment for a contravention of s 30(2), those considerations will not be identical. The latter is directed to the punishment of past conduct but the former is directed in addition to the defendant’s future conduct. As King CJ observed in Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118 in an analogous context:

The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation.

See also the discussion by Dodds-Streeton J in Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 at [25]-[42].

68    The legislative enactment of two or more criminal sanctions for conduct of the same or substantially the same kind is not uncommon. The power of this Court to punish for contempts of its own power and authority recognised by s 31 provides an example. The conduct constituting such contempts may also constitute an offence of the kind established in Division 3, Part II of the Crimes Act 1914 (Cth) such as intimidation of a witness (s 36A), corruption of a witness (s 37), deceiving a witness (s 38), destroying evidence (s 39), or preventing witnesses from attending court (s 40). Similarly, conduct constituting offences of the kind established by ss 147.1 and 147.2 of the Criminal Code (causing harm or threatening to cause harm to a Commonwealth public official) may be a contempt of this Court. Other forms of conduct may be both a criminal offence and contempt of this Court.

69    In addition, there are numerous circumstances in which a person may be subject to punishment for past conduct under two regimes. Conduct constituting an offence under both State and Commonwealth laws provides an example, and s 35A of the ACC Act contemplates such a possibility in relation to offences under that Act. Further still, as Gageler J observed in his dissenting judgment in Magaming v The Queen at [69], there is nothing unusual about the prosecutorial discretion as to the choice of charge or as to the mode of trial which may affect the maximum penalty which a court might ultimately impose on an individual as a result of a determination of criminal guilt.

70    This particular submission of the respondent seems to involve the notion that, once the Commonwealth Parliament has legislated for a particular criminal sanction and the means by which that sanction may be imposed, its powers are exhausted, with the effect that it is not open to it to enact an alternative sanction and the means by which that alternative sanction may be imposed. Again, the respondent did not point to any authority for this limitation on the Commonwealth’s legislative power. In my opinion, no basis for such a limitation can be found in the Constitution.

71    Of course, notions of abuse of process or of double jeopardy in the event that both regimes for punishment are invoked in relation to the same conduct may arise in a given case, but that does not go to the legislative competence of the Parliament.

72    Finally, I refer to the submission that the Parliament may not enact legislation providing for contempt of an executive process. I did not understand the respondent to develop this submission in any detail.

73    In my opinion, the power of the Parliament to provide for punishment of contempts of executive processes can properly be regarded as an incident of the substantive powers granted to it, or as granted by the incidental power in s 51(xxix) of the Constitution. It is a means by which the Parliament may ensure respect for, and compliance with, executive processes. I note that there are several instances of the exercise of a power of this kind: for example, ss 372 and 434 of the Migration Act 1958 (Cth) (contempt of the Migration Review Tribunal and the Refugee Review Tribunal); s 6O of the Royal Commissions Act 1902 (Cth) (contempt of a Royal Commission); s 63 of the Administrative Appeals Tribunal Act 1975 (Cth) (contempt of the Administrative Appeals Tribunal); s 89 of the Defence Act 1903 (Cth) (contempt of service tribunals); and s 66 of the Australian Securities and Investment Commission Act 2001 (Cth) (contempt of the Australian Securities and Investment Commission).

74    This aspect of the respondent’s submissions regarding an absence of legislative power fails.

75    For these reasons, I consider that the respondent’s challenge to the legislative competence of the Commonwealth Parliament to enact ss 34A-34C fails.

Incompatibility with the requirements of Ch III

76    The respondent contends that, to the extent that ss 34A-34C of the ACC Act circumscribe the exercise of this Court’s jurisdiction with respect to a finding of criminal guilt or breach of a statutory offence, they contravene the terms of an implication to be drawn from Ch III of the Constitution. In particular, the respondent contends that the legislative scheme of these provisions seeks to conscript the powers of the Federal Court to procure the indefinite detention of persons by a process which departs in serious respects from the usual judicial process.

77    Although the respondent’s submissions seemed to refer to the exercise by this Court of a criminal jurisdiction generally, he did not refer to any legislative provisions vesting such a jurisdiction in this Court. His submissions concerned only the jurisdiction vested by ss 34A-34C.

78    In support of his submission on this topic, the respondent referred to several of the decisions concerning the assumptions on which Ch III of the Constitution rests concerning the continuing existence and essential characteristics of State courts as part of a national judicial system, including: State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181; Fardon v Attorney-General (Qld); K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; Nicholas v The Queen and Gypsy Jokers Motor Cycles Club Incorporated v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532.

79    The present case does not concern the limitations on the competence of State Parliaments to legislate with respect to Ch III Courts but, nevertheless, some of the principles emerging from these authorities are of assistance. The respondent emphasised the following:

(a)    The question of whether functions, power or duties cast upon a court are incompatible with its institutional integrity as a court is to be answered by an evaluative process involving consideration of a number of factors. The evaluation process required is not unlike that in involved in deciding whether a court can be said to be exercising judicial power: K-Generation at [90].

(b)    Legislation which requires a court exercising federal jurisdiction to depart in a significant degree from the methods and standards which have characterised the exercise of judicial power in the past may be repugnant to Ch III: Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [111].

(c)    Legislation which purports to direct courts as to the manner and outcome of the exercise of their jurisdiction is apt to impair impermissibly the character of courts as independent and impartial tribunals: Totani at [70]; Gypsy Jokers at [39].

(d)    Laws which require a court to give effect to a decision of executive authority, as if it were a judicial decision of the court, are inconsistent with the subsistence of judicial decisional independence: Totani at [70].

80    The respondent contended that these principles were infringed in the present case. He contended that the effect of ss 34A-34C is, in effect, to allow the finding by an examiner that a contempt has occurred to be conclusive of that contempt and to lead to orders which may include the indefinite detention of the witness. The respondent contended that the process contemplated by ss 34A-34C departs from the usual judicial process in serious respects including:

(i)    Punishment for a contempt which is not contempt of the court;

(ii)    Indefinite detention may be ordered other than after a finding of criminal guilt;

(iii)    An examiner’s certificate is to have prima facie evidential effect.

In addition, he contended that public confidence in the institutional integrity of this Court is likely to be undermined by the exercise by the Court of a power to imprison persons at the behest of the Executive without a trial according to law.

81    For the reasons which follow, I consider that none of these contentions indicates that ss 34A-34C infringe the provisions of Ch III. The institutional integrity and authority of this Court is not undermined by the process contemplated by ss 34A-34C; the Court is not “conscripted” to order the detention of persons at the behest of the Executive; and orders for the imprisonment of a witness may be made only after a curial finding of guilt, ie, a finding that the person has committed the contempt charged. The process may be sui generis but, the possibility of trial by jury apart, it does involve a trial of a recognised kind with the essential features of the conventional criminal process. The judicial power is appropriately engaged.

82    Section 34C(2) requires that contempt proceedings under the ACC Act are to be instituted, carried on, heard and determined in accordance with the laws, including any rules of court, which apply in relation to punishment of a contempt of the court. Those laws and rules are well adapted to ensuring that persons are not penalised for contempts without a proper articulation of the alleged contempt, a curial hearing and a finding of guilt.

83    Part 42 of the Federal Court Rules 2011 (Cth) (the FCR) contains rules relating to proceedings in which a person is said to be in contempt of this Court. Those rules are incorporated by s 34C(2). Having regard to the content of ss 34B and 34C, Pt 42 and the general principles relating to charges of contempt, the following matters are evident. After giving the person said to be in contempt notice of his or her intention to do so, an examiner must file an application in this Court (s 34A(1) and (2)); the application must be accompanied by a certificate stating the grounds of the application and the evidence in support of it (s 34A(3) and (4)); the charged person must be served with the application, certificate and supporting evidence (s 34B(4), r 42.13); there is to be a hearing (s 34A(5), r 42.15); at that hearing both the ACC and the person charged are entitled to present evidence and to make submissions (s 34B(5), r 42.15); the charged person may give evidence and adduce evidence from others without previously having filed any affidavits in answer to the charge (r 42.15); the examiner carries the onus of establishing the contempt charge to the criminal standard (Witham v Holloway); and this includes the establishment of the physical and fault elements of the alleged contempt (s 34B(6) and Ch II of the Criminal Code). In short, the contemplated process accords with that involved in summary trials. There is no suggestion that trials of that kind involve some infringement of the judicial power of the Commonwealth.

84    In the above summary, I have not referred to the requirement of r 42.12 that an application alleging a contempt be accompanied by a statement of charge specifying the contempt with sufficient particularity to allow the person charged to answer the charge and by affidavits on which the person making the charge intends to rely to prove the charge. It is possible that this requirement is inapplicable to proceedings under s 34B. That is because the operation of s 34C(2) is made subject to the ACC Act. It may be that ssubs 34B(1)-(4) are a sufficient indication that a different procedure is contemplated. That issue seems unlikely to arise in this case as the application was in any event accompanied by a document entitled “Statement of Charges” which particularised in a seemingly conventional way the charges of contempt brought by the applicant against the respondent.

85    The respondent’s submission relied in part on the prima facie evidence provision in s 34C(3). A certificate provided under s 34C(3) is “prima facie evidence of the matters specified in the certificate”.

86    The legislative provision of evidentiary aids to proof of this kind are not uncommon, do not detract from the institutional integrity of the Court or from the independent exercise by the Court of its functions, and are within the legislative competence of the Parliament. The judgment of Brennan CJ in Nicholas v The Queen contains a statement of many of the applicable principles:

[20]    … A law that purports to direct the manner in which the judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion. …

    ….

[23]    … The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. ….

[24]    In The Commonwealth v Melbourne Harbour Trust Commissioners, Knox CJ, Gavin Duffy and Starke JJ said:

    A law does not usurp judicial power because it regulates the method or burden of proving facts.

And in Williamson v Ah On, Higgins J said that “the evidence by which an offence may be proved is a matter of mere procedure” ….

The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates. Rich and Starke JJ held that a grant of power to make laws for the peace, order and good government of a territory carried the power “to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases … and it is not for the Courts of law to say whether the power has been exercised wisely or not”.

(Citations omitted)

87    In Orient Steamship Navigation Co Ltd v Gleeson (1931) 44 CLR 254 the Court considered the validity of a provision providing that a member of a ship’s crew reported to have deserted or to have absented himself without leave was deemed, until the contrary was proved, to be a prohibited immigrant. Starke J held at 259-60 that the provision “affects the burden of proof and is merely evidentiary” and was accordingly valid. Dixon J held at 263 that, with respect to subject matters over which the Commonwealth has power, the Parliament may place the burden of proof upon either party to proceedings, because the location of the burden is a mere matter of procedure. Evatt J made observations to like effect at 264.

88    These authorities indicate that the kind of certificate contemplated by s 34C(3) may be validly enacted by the Parliament.

89    In my opinion, the jurisdiction of this Court is not invalidated by any implications derived from, or assumptions underpinning, Ch III of the Constitution.

Section 80 of the Constitution

90    Section 80 of the Australian Constitution provides that the trial “on indictment” of any offence against any law of the Commonwealth shall be by jury. It is established that s 80 guarantees trial by jury only when the accused is charged on indictment: Kingswell v The Queen; Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248.

91    Section 30(6) of the ACC Act provides that a person who contravenes subss (1), (2) or (3) is guilty of “an indictable offence”. Similarly, ss 33(2) and 35(2) provide that a person contravening subs (1) in each case is guilty of “an indictable offence”. Each of s 30(7), s 33(3) and s 35(3) permit a court of summary jurisdiction to hear and determine a charge of such an offence but only if the court is satisfied that it is proper to do so and both the defendant and the prosecutor consent to that course. Thus a person charged with an offence under s 30(1), s 33(1) or s 35(1) will be entitled to be tried by a jury.

92    The respondent sought to rely upon s 80 in two ways. First, he contended that, having established a refusal or failure to answer a question required by an examiner to be answered as an indictable offence and therefore one to be tried in accordance with s 80, it was not open to the Parliament to characterise the offence differently with the effect that the charged person would be denied the benefit of the constitutional guarantee. This was also one aspect of the respondent’s submission concerning the inability of the Parliament to provide for a parallel system for the punishment of criminal guilt.

93    In support of his submission, the respondent referred to the oft-cited passage of Fullagar J in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258:

The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorise the making of law with respect to anything which is, in the opinion of the law-maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-General is a lighthouse is another thing.

94    The second way in which the respondent sought to invoke s 80 was by his contention that, in substance, ss 34A-34C established a contempt of the ACC as an offence and, furthermore, an offence exposing a person to imprisonment of indefinite duration which by definition, included imprisonment for a period exceeding 12 months. The respondent then referred to s 4G of the Crimes Act 1914 (Cth) which provides:

Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.

The respondent argued that there was no contrary intention evident in ss 34B-34C with the effect that a charge of contempt of the ACC should be made on indictment and that he was thereby entitled to trial by jury.

95    In my opinion, this latter submission does not succeed. The ACC Act does contain a clear indication to the contrary of the kind contemplated by s 46. That is seen in the provision in s 34B(5) that the court may deal with a person found to be in contempt of the ACC “as if” the conduct in question constituted a contempt of the court. I referred earlier to the passages in Re Colina in which the court held that provisions such as s 31A of the FCA Act and Pt 42 of the FCR contemplate that contempts will be dealt with in summary way and that, at least with respect to contempts of a Ch III Court, s 80 of the Constitution does not guarantee trial by jury. Section 34B(5) may be understood as an indication that the same procedure should apply with respect to charges of contempts against the ACC. The same implication may be drawn from s 34C(2).

96    I also consider that the respondent’s submission that s 80 is infringed by a prescription that conduct said to constitute an indictable offence does not constitute such an offence cannot be accepted. The submission fails to have regard to the distinction between a s 30(2) offence, on the one hand, and the contempt under s 34A, on the other. The distinguishing feature is that conduct under s 34A is liable to punishment because of its character as a contempt of the ACC. It is not just that a refusal or failure to answer a question contravenes the ACC Act, but that that conduct also has the character of a contempt of the ACC which attracts the application of ss 34A-34C. Although, as indicated earlier, the considerations bearing on the appropriate punishment for a contempt will have much in common with punishment for a contravention of s 30(1), they will not be identical.

97    Accordingly, I consider that resort to the principle stated by Fullagar J does not assist the respondent presently. The respondent’s invocation of the constitutional guarantee in s 80 fails.

98    There may in any event be a further reason why s 80 does not assist the respondent. That is that a contempt of the ACC may not be an “offence” to which s 80 refers. Were it otherwise, it would not have been necessary for s 34B(6) to specify that Ch 2 of the Criminal Code applies “as if” contempt of the ACC was an offence. This is not of course conclusive of the meaning of the word “offences” in s 80, but it does indicate that the application of s 80 cannot be assumed. I note that in Hannaford v HH at [51]-[70], Dodds-Streeton J considered whether a contempt of the ACC constitutes an offence to which the Crimes Act 1914 applies, but ultimately did not consider it necessary to come to a final view. As I am satisfied for other reasons that s 80 is not infringed presently, it is also not necessary for me either to express a concluded view on this issue.

Conclusion

99    For these reasons, the respondent’s challenges to the jurisdiction of this Court to hear and determine the examiner’s application are dismissed. I will hear from the parties as to costs and as to the arrangements to be made for the trial of the action.

Associate:

Dated:    10 October 2014