FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Registered Organisations Commissioner (No 7) [2019] FCA 195

ORDERS

THE COURT ORDERS THAT:

1.    Mr Davies give evidence on matters relating to:

(a)    what knowledge, if any, he had of the search warrants executed on the premises of the Australian Workers’ Union prior to their execution and any associated knowledge or involvement in any notification to the media of their pending execution; and

(b)    what communications, if any, Mr Davies had with the Honourable Michaelia Cash, Minister for Small and Family Business, Skills and Vocational Education, on 25 or 26 October 2017 in relation to the matters in paragraph (a) above.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    Mr Ben Davies was at all relevant times the Chief of Staff of the Office of Senator the Honourable Michaela Cash, now Minister for Small and Family Business, Skills and Vocational Education (“the Minister”). Mr Davies is in the process of giving evidence in chief, having been called under a subpoena issued at the instance of the applicant, the Australian Workers’ Union (“the AWU”). In the course of that examination, Mr Davies has made an objection to giving evidence on matters relating to:

(a)    what knowledge (if any) he had of the search warrants executed on the premises of the AWU (“search warrants”) prior to their execution (and any associated knowledge or involvement in any notification to the media of their pending execution); and

(b)    what communications (if any) Mr Davies had with the Minister on 25 or 26 October 2017 in relation to the matters in paragraph (a) above.

2    The basis for the objection made is that any evidence given in relation to the subject of the objection may tend to incriminate Mr Davies. It is in that context that the question presently before me arises. That question is whether, pursuant to s 128(4) of the Evidence Act 1995 (Cth) (“Evidence Act”), I should require Mr Davies to give the evidence he has objected to giving. Section 128 of the Evidence Act relevantly provides:

Privilege in respect of self-incrimination in other proceedings

(1)    This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a)     has committed an offence against or arising under an Australian law or a law of a foreign country; or

   (b)    is liable to a civil penalty.

(2)     The court must determine whether or not there are reasonable grounds for the objection.

(3)    Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:

(a)    that the witness need not give the evidence unless required by the court to do so under subsection (4); and

   (b)    that the court will give a certificate under this section if:

(i)    the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii)    the witness gives the evidence after being required to do so under subsection (4); and

    (c)     of the effect of such a certificate.

(4)    The court may require the witness to give the evidence if the court is satisfied that:

   (a)    the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

     (b)     the interests of justice require that the witness give the evidence.

(5)    If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6)    The court is also to cause a witness to be given a certificate under this section if:

   (a)    the objection has been overruled; and

(b)    after the evidence has been given, the court finds that there were reasonable grounds for the objection.

 (7)    In any proceeding in an Australian court:

(a)    evidence given by a person in respect of which a certificate under this section has been given; and

(b)    evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(8)    Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

…

3    It was not in contest and I have already ruled that, by declining to answer, Mr Davies “objects to giving particular evidence” within the meaning of s 128(1) of the Evidence Act and that, applying s 128(2), there are reasonable grounds for the objection. However, the basis for the fear held by Mr Davies that the evidence in question may be incriminating needs to be mentioned.

4    There are two aspects. First, reliance was placed on s 70 of the Crimes Act 1914 (Cth) (“Crimes Act”). Section 70(1) (as applicable at the relevant time) was in the following terms:

70    Disclosure of information by Commonwealth officers

            (1)    A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

...

5    Additionally, by reference to s 3BA of the Crimes Act and the offence provisions in Part 2.4 of the Criminal Code Act 1995 (Cth) (as applicable at the relevant time), counsel for Mr Davies adverted to what, broadly speaking, may be said to be an extension of criminal responsibility in relation to conduct which is or may be caught by other provisions in the Crimes Act including s 70.

6    The second basis raised by Mr Davies in support of his fear that evidence he objects to giving may incriminate him is a contempt of Parliament. In this respect, my attention was drawn to s 4 of the Parliamentary Privileges Act 1987 (Cth) (“Parliamentary Privileges Act”) which is in the following terms:

Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.

7    It was contended by senior counsel for Mr Davies that the provision of misleading information to a member of Parliament which leads to Parliament being misled could amount to “an improper interference in the free exercise by a House or Committee of its authority or functions”, within the meaning of s 4 of the Parliamentary Privileges Act.

8    Section 7 of that Act empowers the Houses of Parliament to impose penalties of imprisonment or fines in relation to an offence against a House. Senior counsel for Mr Davies relied on ss 4 and 7 of the Parliamentary Privileges Act and said that, taken together, those provisions give rise to the offence of contempt of Parliament.

9    I have doubt as to the correctness of that submission. In particular it seems to me that s 4 of the Parliamentary Privileges Act operates to identify an essential element of an offence under that Act rather than itself provide for an offence. Nevertheless, I can see a reasonable basis for Mr Davies’ fear of being charged with contempt of the Parliament based on conduct which may have involved providing misleading information to a member of Parliament in relation to evidence then given before a House or Committee.

10    Having been informed of the matters addressed by s 128(3) of the Evidence Act, Mr Davies told the Court that he was unwilling to give the evidence the subject of his objection. Consequently, the question arose as to whether under s 128(4) of the Evidence Act I should require Mr Davies to give that evidence. The only relevant and applicable consideration under s 128(4) to the circumstances at hand is that addressed in sub-para (b) – namely, whether the Court is satisfied that “the interests of justice require” that Mr Davies give the evidence.

11    As the party seeking to elicit the evidence from Mr Davies, the AWU bears the onus of satisfying me that the interests of justice require Mr Davies to give the evidence the subject of his objection.

12    A number of considerations were referred to by the AWU and by Mr Davies. First, there were competing submissions made as to the relevance and importance of the evidence that Mr Davies can give. The AWU contended that the evidence that it sought to elicit from Mr Davies goes to an important part of its case as it has relevance to events in the Minister’s office and events involving the Registered Organisations Commissioner (“ROC”) and his representatives, including his delegate Mr Christopher Enright. It was Mr Enright who made the decision to commence an investigation into the affairs of the AWU, being the decision which the AWU’s case seeks to impugn for the reason that it was motivated by or involved an improper purpose.

13    On the other hand, it was contended for by senior counsel for Mr Davies that the evidence he could give on the subject of his objection is not relevant or has limited probative value.

14    In order to determine this application, it is necessary that I say something globally on the issue of relevance. I do so having not heard the ROC on the question of the relevance of any particular evidence which may be sought to be elicited from Mr Davies should he be compelled to give evidence on the subject matter of his objection. In that respect, I note that the ROC has reserved its position.

15    The basis for the submission put for Mr Davies is that evidence of any matter which occurred after the date on which Mr Enright decided to investigate the AWU and to which Mr Enright was not privy, can be of no or little relevance.

16    I disagree.

17    The AWU’s case is substantially about Mr Enright’s purpose for commencing the investigation. In particular, the AWU’s case raises for determination whether an improper purpose was held by Mr Enright.

18    As a general proposition there can be no doubt that events occurring subsequent to the making of a particular decision have the capacity to be probative of the purpose or purposes for a decision earlier made. To give an example from the allegations made in this case, the AWU alleges that through his representative, the ROC was involved in informing the Minister’s office and specifically Mr Davies that the search warrants would be executed in the afternoon of 24 October 2017. It is also alleged and there is some evidence already before the Court that a person in the Minister’s office conveyed that information to various media outlets prior to the time of the execution of the search warrants. The involvement of a representative of the ROC in events which led to the media being alerted to the execution by the Australian Federal Police of search warrants obtained by the ROC upon the AWU has, if other allegations made by the AWU are established, and depending upon the nature, purpose and extent of that involvement, the capacity to be probative of whether or not Mr Enright held the improper purpose for which the AWU contends.

19    I have already given an outline of the AWU’s case in prior reasons for judgment (Australian Workers’ Union v Registered Organisations Commissioner (No 5) [2019] FCA 188 at [9]-[10]) which need not be here repeated but, briefly, the relevant context is that the AWU’s case is that Mr Enright took steps to accommodate or assist the Minister in the knowledge that the Minister had the political purpose of discrediting, embarrassing or politically harming the Honourable Bill Shorten. At the time of the commencement of the investigation Mr Shorten was the Leader of the Opposition. Mr Shorten was the Secretary of the AWU at the time of the events that are the subject of the ROC’s investigation.

20    The nature and extent of the alleged political purpose of the Minister as alleged by the AWU, is capable of being established by evidence of events which occurred both prior to and consequent upon the making of Mr Enright’s decision. The nature and extent of the steps alleged to have been taken by Mr Enright or other representatives of the ROC to accommodate or assist the Minister are also matters upon which events subsequent to the decision to commence the investigation may be probative of Mr Enright’s purpose in commencing the investigation.

21    Of course, the importance of the evidence Mr Davies may give is difficult to ascertain at this juncture. That importance will largely be a function of the evidence (if any) that Mr Davies does give in the context of evidence given by other witnesses.

22    I am clearly unable to say, at this juncture, that the evidence that Mr Davies may give on the subject of his objection will not be probative of, or lead to a train of inquiry probative of, whether Mr Enright held or took into account the improper purpose for which the AWU contends. Nor am I able to say, at this juncture, that the evidence that Mr Davies may give will not be probative of, or lead to a train of enquiry probative of, whether the Minister had the political purpose alleged by the AWU, the nature and extent of that purpose and the extent to which that purpose was known to Mr Enright and taken into account by him.

23    It seems to me that the issues which underpin the evidence sought to be elicited from Mr Davies are significant issues in the proceeding and that the evidence that may be given by Mr Davies which is the subject of his objection may be important to the resolution of those issues.

24    On that basis, I consider this consideration does not support the position of Mr Davies but tends to support the AWU’s position that the evidence may be both probative and important.

25    A second basis put in support of the position of Mr Davies was that, broadly speaking, Mr Davies will be asked to give the same or similar evidence to that already given by Mr David De Garis. It was contended that, in that context, the interests of justice are not advanced at all by compelling Mr Davies to give this evidence.

26    I accept that the availability of other evidence is a relevant consideration: Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696 at [33] (Spender J). I cannot however conclude that the evidence that may be given by Mr Davies on the subject of his objection will be common with the evidence already given by Mr De Garis and will add little or nothing to or advance the AWU’s case. In one important respect, the evidence of Mr De Garis that the information that led him to alert the media of the impending execution of the search warrants was provided to him by Mr Davies, brings the train of inquiry necessary to advance the AWU’s case directly to Mr Davies, and in particular to the evidence that Mr Davies may be able to give as to his source for that information. In that respect, I note that the AWU alleges that the source of Mr Davies’ information was a representative of the ROC. In that context it seems clear that the AWU’s case is capable of being advanced by evidence as to Mr Davies’ alleged source as well as evidence as to the circumstances in which, any information was conveyed to Mr Davies.

27    Furthermore, not only am I unable to say that there will be substantial commonality of subject matters as between the evidence that may be given by Mr Davies and that already given by Mr De Garis, as the AWU has submitted, a very large number of questions put to Mr De Garis were not able to be answered by him on the basis of his professed lack of recollection.

28    Senior counsel for Mr Davies sought to counter any need for the AWU to advance its case by reference to evidence of the source of Mr Davies’ knowledge of the impending execution of the search warrants, by suggesting that alternative evidence is available upon which the AWU could rely. In that respect, I was taken to a witness statement which was said to be a statement of Mr Davies (“Mr Davies’ witness statement”) in which a statement about the source of Mr Davies’ information about the impending execution of search warrants is included. Mr Davies’ witness statement is part of the Court Book but has not been tendered. Counsel for Mr Davies contended that despite its hearsay character, the witness statement could be tendered by the AWU in circumstances where Mr Davies was not required pursuant to s 128(4) of the Evidence Act to give the evidence to which he objects.

29    Assuming for present purposes that, as senior counsel for Mr Davies contended, the witness statement will be admissible at the instance of the AWU, I do not accept that the AWU’s capacity to tender Mr Davies’ witness statements and rely upon the content to which I have been referred, may be regarded as an acceptable alternative to the evidence that may be elicited from Mr Davies.

30    I note at the outset that the suggestion made by Mr Davies that his witness statement could be tendered as an alternative to him being compelled to give evidence, is an unattractive submission. Mr Davies seeks to support his position that he should not be compelled to give evidence that may have a tendency to incriminate him by inviting the reception of evidence that would also have a tendency to incriminate him. The submission serves to undermine Mr Davies’ position for reasons to which I will return.

31    In any event, I consider the submission lacks merit. First, the submission tends to assume that it is only the fact of the conveyance of the information which is capable of advancing the AWU’s case. As I have indicated, both the fact of the information conveyed as well as the circumstances in which it was conveyed are capable of advancing the AWU’s case. As the AWU submitted, I should not presume that Mr Davies’ witness statement provides a fulsome account of the event in question. Second, the AWU also intends to call the witness that it asserts provided the information to Mr Davies. It is possible that the evidence of that witness will differ with the evidence of Mr Davies. In circumstances where the evidence of the particular event in question may be contentious and questions of credibility may arise, there is good reason for the Court to make the findings it may need to make on the best available evidence.

32    A further consideration relied upon by Mr Davies was made by reference to a brief observation made by Spender J in Lifetime Investments at [33]. In dealing with whether a witness should be required to give evidence under a predecessor to s 128(4) of the Evidence Act, his Honour determined not to do so including because “there is the fundamental distaste of compulsion to disclose information that may be relevant to the commission of criminal offences”. I do not doubt that his Honour’s concern was based on the fact that, to a significant extent, s 128 of the Evidence Act abrogates a basic common law right. I accept that the consideration referred to by Spender J is relevant, but the significance to be attached to it needs to be weighed in the balance of considerations suggested by the purpose of s 128. As I said in Australian Workers’ Union v Registered Organisations Commissioner (No 5) [2019] FCA 188 at [16]:

[Section] 128 seeks to balance the interests of the deponent and, in particular, the deponent’s right to a fair trial should the deponent be charged or be the subject of a proceeding, against the need for the due and just determination of the proceeding in which the deponent has been called on the basis of the best available evidence.

33    Whilst the consideration to which Mr Davies points is to be weighed in the balance, the Court must also give weight to the fact that, if Mr Davies is required to give the evidence, the certificate which the Court is required to issue pursuant to s 128(5) of the Evidence Act provides very substantial, although not necessarily complete, protection.

34    The extent of the protection that may be provided by such a certificate was raised by senior counsel for Mr Davies who contended that so far as any charge which may be brought against Mr Davies for an offence against Parliament, there is no certainty that Mr Davies can rely on any certificate that may be issued.

35    The first basis relied upon by Mr Davies for that submission is that a proceeding before the Senate (or a Committee of it) in relation to an offence is not a “proceeding in an Australian court” within the meaning of s 128(7) of the Evidence Act.

36    Counsel for Mr Davies drew attention to the definition of “Australian court”, defined in the Dictionary of the Evidence Act as follows:

Australian court means:

    (a)    the High Court; or

    (b)    a court exercising federal jurisdiction; or

    (c)    a court of a State or Territory; or

    (d)    a judge, justice or arbitrator under an Australian law; or

    (e)    a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

    (f)    a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.

37    It was submitted that the only part of the definition of “Australian court” that could arguably capture the Senate or another body of the Parliament would be sub-para (e). The AWU contended that the Senate is “a body authorised by an Australian law…to hear, receive and examine evidence” within the meaning of that sub-paragraph.

38    Plainly, for the purpose of s 128(7) of the Act, “an Australian court” is a term that includes more than traditional courts of law. The question is whether a body of the Parliament, and in particular the Senate or a Committee of the Senate, is a “body authorised by an Australian law, to hear, receive and examine evidence”.  It was not in dispute that sub-paras (a) – (d), and (f) of the definition are not applicable. 

39    The reference to “evidence” at the conclusion of sub-para (e) may be regarded as a reference to evidence in its ordinary or generic sense as information, or a report of information, in contrast to the technical legal sense contemplated by sub-para (f) which refers to the “laws of evidence”.  

40    There is a clear acceptance in legal commentaries that the Houses of the Federal Parliament have power to undertake inquiries and to authorise inquiries to be made by Committees of their members, including by hearing, receiving and examining evidence.  The learned authors of Odgers’ Australian Senate Practice (14th Ed) state at 78:

Each House of the Parliament has the power to require the attendance of persons and production of documents and to take evidence under oath.  This power supports one of the major functions of the Houses: that of inquiring into matters of concern as a necessary preliminary to debating those matters and legislating in respect of them.  The power has long been regarded as essential for a legislature.  The power is, in the last resort, dependent upon the power to punish for contempts, in so far as that penal power is the means by which the Houses may enforce the attendance of witnesses, the answering of questions and the production of documents.

The power to conduct inquiries by compelling the attendance of witnesses, the giving of evidence and the production of documents is conferred by section 49 of the Constitution.

See further: Campbell, Enid, 2003, Parliamentary Privilege, at 152-176; Carney, Gerard, 2000, Members of Parliament: law and ethics, at 169-195.

41    In my view, s 49 of the Constitution is the Australian law which, for the purposes of sub-para (e) of the definition of “Australian court”, provides the necessary authorisation for the hearing, receiving and examining of evidence in a proceeding for an offence against Parliament.

42    The AWU also contended that the Parliamentary Privileges Act is an Australian law which authorises the hearing, receiving or examining of evidence. I would agree that various provisions of the Parliamentary Privilege Act indicate that, where a contravention of those provisions constitutes an offence, evidence may be received in considering that contravention. That inference arises from the specification of the nature and character of the offences provided for (for example s 12 dealing with the protection of witnesses). It also arises from the terms of s 4 of the Parliamentary Privileges Act which set out an essential element of all offences. Further, s 9 is to the same effect in so far as it requires that the resolution of the House imposing a penalty of imprisonment as well as a warrant committing the offender to custody “shall set out particulars of the matters determined by the House to constitute that offence”.

43    However, rather than providing a basis for the conclusion that the Parliamentary Privileges Act impliedly authorises the hearing, receiving or examination of evidence, the better view is that the Parliamentary Privileges Act operates on the basis that the power is elsewhere conferred, a conclusion which is consistent with the power being conferred by s 49 of the Constitution.

44    Senior counsel for Mr Davies also relied on s 10 of the Evidence Act in support of his contention that a certificate was or may be ineffectual because a House or Committee of Parliament may not fall within the definition of Australian court. The submission sought to suggest that in a proceeding for an offence in a House or Committee of Parliament, s 10 would operate to override the effect of a certificate issued under s 128 of the Evidence Act.

45    Section 10 of the Evidence Act is as follows:

Parliamentary privilege preserved

(1)    This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

(2)    In particular, subsection 15(2) does not affect, and is in addition to, the law relating to such privileges.

46    The fundamental function of the Evidence Act is to provide the rules of evidence applicable to proceedings to which the Act applies. The function of s 4 of the Evidence Act is to identify the proceedings to which the Evidence Act applies. A proceeding in a House or Committee is not such a proceeding.

47    Properly understood in its context, including the definition of the courts and the proceedings to which the Evidence Act applies as set out in s 4, s 10 provides that in proceedings to which the Act applies, the Evidence Act does not affect the application of the law relating to the privileges of the Parliament or any House of the Parliament. Consistent with this purpose, s 10(2) states that the laws in s 15(2) of the Evidence Act are in addition to the law relating to the privilege of Parliament. Section 15(2) in turn addresses the compellability of a member of a House of the Parliament to attend court to give evidence.

48    In my view, s 10 is designed to preserve the operation of Parliamentary privilege laws in proceedings to which the Evidence Act applies and to clarify that nothing in the operation of the Evidence Act, as it applies to such a proceeding, affects those laws. Put another way, s 10 operates to preserve the capacity for evidence to be rendered inadmissible in court proceedings on the basis of parliamentary privilege, and protects other parliamentary privileges as they arise in a proceeding before a court to which, pursuant to s 4, the Evidence Act applies.

49    Section 10 is not directed to proceedings in Parliament. The rules of evidence provided by the Evidence Act do not apply to those proceedings. That conclusion is fortified by consideration of the Law Reform Commission Report No 38 on Evidence, 1987, which at paragraph [224] states that (emphasis added):

Reservation of Existing Law: The Commission has not addressed the operation of parliamentary privileges as they affect for presentation and admission of evidence. The whole topic of parliamentary privileges has been, and is under, active consideration by the Commonwealth Parliament. In all the circumstances, the appropriate course is to preserve existing law for the time being.

50    Accordingly, I do not consider that s 10 has any impact upon the effectiveness of a s 128 certificate in relation to a proceeding in a House or Committee of Parliament.

51    Lastly, as to the proper construction of s 128(7) of the Evidence Act, reference was made to the Explanatory Memorandum to the Evidence Amendment Bill 2008 which introduced s 128(8) into the Evidence Act. At paragraph 187, the introduction of that subsection was said to be necessary:

…to ensure that the policy of section 128 is carried into effect, the witness must be certain of being able to rely on that certificate in future proceedings.

52    The terms of s 128(8) as well as the policy of s 128 just referred to confirm, in my view, that s 128(7) of the Evidence Act is to be interpreted broadly so as to effectuate its beneficial purpose.

53    I need finally to return to the suggestion made by Mr Davies that the tender of the Davies’ witness statement is a suitable alternative to him being required to give evidence. That issue is of further relevance in this way. If Mr Davies was required to give the evidence in question and did so, he would have the protection of a certificate. If he did give evidence, the Davies’ witness statement may not be tendered and if it is tendered through him, it would likely be covered by the certificate.

54    The alternative scenario postulated by Mr Davies is that because he was not required to give evidence, the basis for the AWU to tender the witness statement would be available. Through that process, a statement which would tend to incriminate Mr Davies for the same reasons he says giving his evidence will, may be put into evidence. If so, that evidence would not be covered by a certificate.

55    Whether in that potentiality Mr Davies is better protected by being required to give evidence than not being required to do so, is a matter I ought not speculate upon. However, the point is that whilst it may be assumed that the provision of a certificate may not provide perfect protection to Mr Davies if he is required to give evidence, it may also be assumed that not requiring Mr Davies to give evidence may not provide him with perfect protection either.

56    Taking account of all of those considerations and applying the balancing process which s 128 envisages, I am satisfied that the interests of justice require that Mr Davies give the evidence the subject of his objection.

Associate:

Dated:    26 February 2019