Australian Crime Commission v Stoddart & Anor [2011] HCATrans 44

[2011] HCATrans 44

[2011] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B71 of 2010

B e t w e e n -

AUSTRALIAN CRIME COMMISSION

Appellant

and

LOUISE STODDART

First Respondent

WILLIAM MCLEAN BOULTON (EXAMINER AUSTRALIAN CRIME COMMISSION)

Second Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 MARCH 2011, AT 10.16 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR B. LIM for the appellant.  (instructed by the Australian Government Solicitor)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MS N.A. MARTIN and MR T.F.N. PINCUS, for the first respondent.  (instructed by Bernard Bradley & Associates)

FRENCH CJ:   A submitting appearance has been filed for the second respondent.  Yes, Mr Solicitor.

MR GAGELER:   Your Honours, we advance three propositions.  The first concerns the non-existence, as part of the common law of Australia, of the privilege against spousal incrimination recognised by the Queensland Court of Appeal in 2004 in Callanan v B and accepted by the Full Court of the Federal Court in 2006 in S v Boulton and again by the Full Court of the Federal Court in the present case.

The second concerns the status of that common law privilege, assuming it to exist, for the purpose of the quite separate common law principle of statutory interpretation known as the principle of legality. The third concerns the abrogation of the common law privilege again, assuming it to exist, by section 30 of the Australian Crime Commission Act.  In that respect, in our submission, the judgment of Justice Greenwood in dissent in the present case is to be preferred.

Your Honours, on the topic of the non‑existence as part of the Australian common law of the privilege against spousal incrimination, your Honours have and have no doubt looked at the judgment of Justice McPherson in Callanan v B, the judgments in the Full Court and Federal Court in S v Boulton, particularly there the judgment of Justice Jacobsen, and the article by Mr Lusty published in the University of New South Wales Law Review ‑ ‑ ‑

GUMMOW J:   Now, it was not every principle of English common law that was received here, as the cases show with the early years of this Court.

MR GAGELER:   That is right.

GUMMOW J:   Is there not a threshold question which is perhaps overlooked by the Court of Appeal and the Full Federal Court as to ‑ ‑ ‑

MR GAGELER:   Whether this principle, assuming it to have been floating around England in Napoleonic times, migrated to Australia?

GUMMOW J:   Yes.

MR GAGELER:   Yes, your Honour.  I will come to some observations in Riddle that might bear upon that in due course.  Whether it is a threshold question or not, it is something that will be incorporated into my submissions.

Your Honours, can I move immediately to answer, at least in part, the thesis that is put most succinctly in our learned friend’s written submissions in paragraph 8.  This is the thesis distilled that you see in the materials that I have just referred to.  The thesis goes something like this – it is that there is and has always been a specific and concrete common law right, privilege or immunity for one spouse not to incriminate another spouse that has, partly it seems because of a wrong turn taken by Lord Coke in 1628 ‑ ‑ ‑

HEYDON J:   His name is not Lord Coke.

MR GAGELER:   I am sorry, your Honour.

HEYDON J:   In what year was that lawyer given a peerage?

MR GAGELER:   I do not have the answer to that question, your Honour.

GUMMOW J:   He never was.  He was just a knight.

MR GAGELER:   I am sorry. 

GUMMOW J:   He was the last person James I was going to make a peer.

MR GAGELER:   I will drop the Lord, your Honour.

GUMMOW J:   It is causing an endless trouble in the Kings Bench.

MR GAGELER:   In any event, the thesis precedes that.  For the last four centuries or so this common law right has been seen through a glass dimly, imperfectly articulated and imperfectly understood.  To that, your Honours, we say essentially two things.  We say that the historical foundation is weak at best and within the period in which we normally locate the common law as received into Australian law really boils down to two pieces of dictum to which I will come.

We say that in the light of that weak historical foundation the recognition of the privilege in the early 21st century in Australia simply should not occur.  Your Honours would not, in our respectful submission, join the dots and lend colour to an apparition that is really nothing more than an historical relic at best.  Your Honours, the historical foundation for the thesis if we leave out the arguments that one can see in some of the academic writings about what did or did not occur in the 16th and 17th centuries and whether that was at that time a desirable development of the common law, the foundation rests principally, although we would accept not exclusively, on three strands of authority. 

The first strand concerns what might be gained by way of generalisation or extrapolation or perhaps interpolation from the common law principle firmly recognised by a majority of the House of Lords in Hoskyn only in the 1970s that a spouse, if competent, cannot be compelled to give evidence adverse to another spouse in that spouse’s criminal trial.  I will come to that in a moment.  That involves looking at Riddle, Leach and Hoskyn, but the other two ‑ ‑ ‑

KIEFEL J:   When you are doing that though, do you say that those cases deal with the wider principle of the rule however - call it a rule to be neutral about it, but do those cases actually deal with what is potentially an exception from the general incompetency rule that either spouse cannot give evidence against the other, and the exception is in a case involving what is now called domestic violence, and the question that those cases were directed to was whether or not a wife, considered to be competent under the exception, could nevertheless be compellable.

MR GAGELER:   That is exactly what I sought to put.

KIEFEL J:   Which may underscore the whole notion that the common law preceded from a notion of competence.

MR GAGELER:   Yes, the common law had the general rule of incompetence and to the extent ‑ ‑ ‑

KIEFEL J:   What were being discussed were exceptions.

MR GAGELER:   Were exceptions to that, yes, and the exceptions being discussed were exceptions that went to the compellability of the witness and not further.  That is the way in which we would deal with those cases.

KIEFEL J:   Putting it slightly differently, once you say that there is an exception for the position of a wife where her husband is guilty of an offence of violence towards her, that exception makes her competent rather than incompetent to give evidence.

MR GAGELER:   Yes.

KIEFEL J:   Once the question of competence is out of the picture, the question then turns to one of compellability.

MR GAGELER:   One of compellability; yes, your Honour.

KIEFEL J:   It is in that area that those cases are concerned.

MR GAGELER:   That is right.  I will come to them, but I will be saying little more about them than what your Honour has already said.  The other two strands of authorities are these, and I will deal with these first, if I may.  One is the quite often stated principle that derives from a statement of Lord Eldon in Cartwright v Green in 1803 to the effect that a wife cannot be compelled to give discovery or to answer interrogatories that would tend to incriminate her husband.  There is a stream of statements in the cases to that effect and I need to deal with that.

The third source is the principle that is sometimes suggested to derive from a statement of Justice Bayley in the All Saints Case in 1817 to the effect that a wife cannot be compelled, even in civil proceedings to which her husband is not party, to answer a question where to do so would tend to incriminate her husband.  So the latter two of those – that is, the Cartwright v Green dictum and the All Saints dictum and what has flowed from those are what I need to deal with.  So far as Cartwright v Green 32 ER 412 is concerned, your Honours could look at it but it is extremely shortly reported. There is a very short statement by Lord Eldon at ‑ ‑ ‑

GUMMOW J:   What is the nature of this case?  I do not think there is anybody fronting in the witness box in this case, is there?

MR GAGELER:   No, it is a demurrer to discovery, to a bill for discovery, where the husband and the wife were parties, both defendants, and where the wife had, it seems, been the agent of the husband and all you get from the bottom of page 413 is a statement:

This demurrer therefore must be allowed.  Here the wife, if the act was a felony in the husband, would be protected : at all events she could not be called upon to make a discovery against her husband –

Now, we have dealt with this in our written submissions at paragraph 19.  It is dicta.  It is, insofar as it refers to the wife at all events not being able to be called upon to make discovery against her husband, obiter dicta given that the wife herself was a party and could not be exposed to a penalty if her husband could not be exposed to a penalty, but it is in any event – and your Honours will see this in our submissions – probably explicable on the basis that the wife was no more than an agent of the husband.

Whether or not that is so, insofar as the case has been taken for the more general principle which I mentioned earlier, the statements of that principle that have come down through the ages or through the 200 years since Cartwright v Green, appear to us all to be no more than statements of the principle, not applications of the principle so far as the wife is concerned.  There are two quite apparently strong statements that one sees in the cases and these are mentioned by Justice Jacobsen in S v Boulton.  One of them is a statement of Justice Stephen in Lamb v Munster (1882) LR 10 QB 110 at 112 to 113. Your Honours need not turn to it.

GUMMOW J:   1882 is the very year of the passage of the Married Women’s Property Act.

MR GAGELER:   That is right.  That will take me in due course to an obvious submission, your Honours, and that is that things have changed in 200 years, but there is that statement in 1882 and uncritically it is repeated by Chief Justice Bowen in the Federal Court in the Intercontinental Development Case (1975) 1 ACLR 253 at 259, and it is repeated in a number of other cases and texts uncritically. We are not aware of any reported case in which the existence of a privilege on the part of the wife in respect of discovery or interrogatories has been tested and we are not aware of any case, although one would perhaps assume that in practice, given those frequent statements in texts, where the privilege has been applied.

CRENNAN J:   Or analysed.

MR GAGELER:   Certainly not analysed.

CRENNAN J:   Certainly not analysed.

MR GAGELER:   Never analysed.

CRENNAN J:   Just mentioned as a sort of en passant.

MR GAGELER:   En passant in dealing with privilege in self‑incrimination, but so far as we can see, not in any reported case even applied.  So far as All Saints is concerned, again your Honours could look at it but probably need not. It is in 105 ER 1215 and the statement of Justice Bayley is at the bottom of 1217 to the top of 1218. This is, of course, clearly obiter dicta and is somewhat ambiguous as to whether it was directed to the circumstance of objection being taken to be examined at all, in which case it could be seen to go to compellability, or the circumstance of demurring to a particular question in which case it might be seen to go to privilege.

It seems that the best 19th century understanding of that statement of Justice Bayley is in the treatise by Mr Taylor that informed the High Court’s understanding of the law in this area in Riddle 12 CLR 622. I will take your Honours to Riddle in a moment but your Honours have also been given a copy of Taylor.  Your Honours have been given two complete chapters of Taylor.  This is from the 10th edition 1906.  It was this edition that was referred to in the High Court and that is why we have gone to this.

Your Honours have been given Chapter II which is headed, “The Competency of Witnesses”, beginning at page 956.  Your Honours have also been given, beginning at page 1000 - sorry the numbering has gone slightly awry on some pages, but beginning at page 1000 your Honours have Chapter III which is headed, “Examination of Witnesses” and that ambiguity as to the focus or width perhaps of the statement of Justice Bailey flows through.  Within the chapter dealing with the competency of witnesses, at page 973 you see in paragraph 1368 this statement:

But although, by the common law rule of Incompetency, the wife may be permitted to give evidence which may indirectly criminate her husband, it by no means follows that she can be compelled to do so; and the better opinion –

as he puts it -

is that under it she may throw herself upon the protection of the court, and decline to answer any question which would tend to expose her husband to a criminal charge.

Then you have in the footnoted reference just the two cases, All Saints and Cartwright v Green, and there is a reference to post 1453. If you go to 1453 which is at page 1053 you see we have moved from Chapter II dealing with competency to Chapter III dealing with examination. At the bottom of page 1052 within paragraph 1453 it is said:

It has already been observed, that there are some questions which a witness is not compellable to answer.  First, this is the case where the answers would have a tendency to expose the witness, or, as it seems, the husband or wife of the witness, to any kind of criminal charge –

et cetera and the footnoted reference loops back, your Honours will see, to the earlier reference. 

So far as this text is concerned which was treated in the House of Lords in Hoskyn and in the High Court in Riddle as about as authoritative as you could take it you get, so far as compellability is concerned, a statement of the better opinion and so far as what might now be termed privilege is concerned, or an ability to resist an answer to a particular question, a slightly less certain statement than probable it is as it seems.

KIEFEL J:   There are just two things - in All Saints the husband was not charged with anything in the proceedings in which Ann Willis gave evidence.

MR GAGELER:   That is right.

KIEFEL J:   She was already in the witness box and I think Justice Bayley in that passage identifies her as a competent witness so that the first hurdle or the first question that the common law usually addressed was dealt with and the focus then shifted to compellability.

MR GAGELER:   That is right.

KIEFEL J:   The evidence that she could have given might have led to charges later against her husband for bigamy.  I think that would have been the effect of her evidence.

MR GAGELER:   Possibly.  That seems to be the assumption anyway that the dictum proceeds upon, at least that possibility, yes.

KIEFEL J:   The question that was at issue in Riddle was a statutory provision and whether or not it reflected the common law and in turn whether the common law said if competent therefore compellable.

MR GAGELER:   Yes.  If your Honours go to Riddle 12 CLR 622 the question was one of statutory construction and the case proceeded upon an acceptance, or as the headnote probably puts it more correctly, an assumption as to the common law as stated in Taylor.  If your Honours go to page 628 you will see at the bottom of the page the quotations from Taylor by Chief Justice Griffith. 

Clearly enough, for the purposes of the case before him being as a question of statutory construction, he did not need to come to a completely firm view.  If you turn over the page you will see some statements that suggest that what you found in those particular passages in Taylor came as perhaps a revelation to his Honour, particularly the bracketed words that appear in the third sentence at page 629.  All he takes from Taylor really, though, is that, “The better opinion is . . . that a wife was not compellable” and it was compellability only that was the question in that case.

So if you take the law as it had emerged and was perceived in the High Court in 1911, so far as compellability was concerned, it could be said that probably the better opinion as stated in Taylor was that the wife was not compellable and so far as the existence of anything that might now be termed a common law privilege is concerned, not addressed but one could take it no higher than the statement in Taylor that it seems that that may be the case on one view of what Justice Bayley was saying.

KIEFEL J:   Justice O’Connor in Riddle at page 639 has a useful or interesting short summary of the general rule in the first complete paragraph, “The general rule of the common law”, et cetera.  The first sentence appears to be one of lack of competence at all.  Their evidence was not to be admitted.

MR GAGELER:   There is just no doubt that the ‑ ‑ ‑

KIEFEL J:   The second sentence is the exception I referred to earlier, “criminal personal injury to his wife”, so that she would become competent.  Then the question then follows from that, if competent, whether compellable?

MR GAGELER:   That is right.

KIEFEL J:   In his Honour’s discussion which follows, the exception is founded upon this theory of necessity, which seems to be the term used in those days to say that they would allow a wife to actually give evidence that she had been injured.

MR GAGELER:   That is right.  In fact, that term is used in precisely that context in a judgment of Lord Mansfield, your Honour, that may well be noted, I am not sure.

KIEFEL J:   And then leaves it on the basis, at about point 8, that whether or not it is left to the wife as to her wish to avail herself of the protection.

MR GAGELER:   Yes.

KIEFEL J:   If we are dealing with an exception in these cases in favour of a wife because of her personal circumstances arising out of the marriage and we have moved beyond some of the sources for the so‑called rule at common law, unity of the marriage, if there is some privilege or right to the wife not to answer particular questions as in a privilege, I suppose that still leaves the question of the status of the wider common law rule because this is part of an exception to the rule, it is not the rule itself.

MR GAGELER:   Yes, your Honour, and this entire exercise, indeed, the ‑ ‑ ‑

KIEFEL J:   As is Hoskyn and as is Leach, so those cases only tell us about an exception to the rule.

MR GAGELER:   Yes, that is right.  They say you start with the rule of absolute incompetence and you create, either by the common law in the case of violence against the spouse or by statute, which surprisingly occurred only 1898, an exception as to incompetence, where does it leave compellability, and it was not necessary to authoritatively determine the common law as to compellability in Riddle in 1911.  It came up the next year in Leach in the House of Lords where there are some strong statements that you find in a particularly Edwardian context as to perceptions of social policy at the time, but again it came up there in the context of a statutory construction.  It came before the Court of Appeal in England as a common law question in ‑ ‑ ‑

GUMMOW J:   Just before you leave Riddle, at 628 Chief Justice Griffith sets out what I think is the vital passage from All Saints and it is evident, looking at that passage, that Mr Justice Bayley regarded the whole subject as resting upon objections that arose out the policy of the law.

MR GAGELER:   Definitely.  Any privilege is the embodiment of a social policy and runs against the fundamental policy of the law.

GUMMOW J:   What was the policy of the law which founded the non‑compellability proposition?  Do we know?

MR GAGELER:   As at 1817?

GUMMOW J:   Well, I wonder, yes.

MR GAGELER:   Well, there was, you see in the cases, around that time perhaps an evolution.

GUMMOW J:   Well, a married woman could not sue, could she, in common law?  Different in Chancery, I think.

MR GAGELER:   A married woman could not sue.  It seems she could be a defendant.

CRENNAN J:   A risk of perjury might have been one consideration.

MR GAGELER:   Well, there were a range of considerations.  You started off with the principle that existed in civil proceedings until 1843 and in criminal proceedings until 1898, strangely, but that is the truth, that a party could not be a witness in their own cause and you see in the very early – late medieval statements of the principle that a wife could not give evidence in a cause in which her husband was a party simply the notion that the husband and the wife were one flesh and if the husband could not evidence, then nor could the wife.

GUMMOW J:   That disappeared in 1857 with the modern law of divorce, so that is gone.

MR GAGELER:   That disappeared by 1857, but your Honour was asking me about 1817.

GUMMOW J:   Yes.

MR GAGELER:   So I am trying to give a historical answer.  So you see that coming through.  Then later you see, towards perhaps the middle or the end of the 18th century, a wider justification and that is you take the common law rule that not only could a party not give evidence, but a person with an interest in the outcome could not give evidence and therefore even if the husband and the wife were no longer properly seen as one flesh, then the wife would ordinarily be seen to have an interest with the husband.  Then you get even overlaying that, again perhaps as an attempt at justification for a rule that had long existed, the notion that there might be a tendency to perjury and that there might be a tendency to marital disharmony.  All of those things are floating around by about 1817, your Honour.  Your Honour said some of these concerns had disappeared by the end of the 19th century.  There is absolutely no doubt ‑ ‑ ‑

GUMMOW J:   What was left?

MR GAGELER:   Nothing.

GUMMOW J:   What was left of the traditional supports in the policy of the law?

MR GAGELER:   I think nothing. 

GUMMOW J:   Other than the doctrine of precedent, I suppose.

MR GAGELER:   That is all, and what is there to found the doctrine of precedent?  We have got the snippet from Lord Eldon in 1802 and the snippet from Justice Bayley in dicta in 1817, that is it.  By 1827, you see this in one of the footnotes in Wigmore, you get Bentham writing disparagingly about the entire law in this area and by 1853 in the second report of the commission of inquiry into the process, practice and system of pleading in the superior courts of common law there is a recommendation, quite a strong recommendation, that a wife should be not only competent but compellable in all cases.

GUMMOW J:   The Australian colonies by the 1890s there is a female franchise been given.

MR GAGELER:   Definitely.

GUMMOW J:   I think one of the grounds of ineffective opposition was that the wives would be under the direction of their husbands as to how they voted.  It is akin to the perjury fear.  That did not prevail.

MR GAGELER:   No, of course not.

FRENCH CJ:   Lord Forrest introduced it in Western Australia.  He thought it would be to his political advantage to enhance his vote on the coast as distinct from the goldfields.

MR GAGELER:   I think the South Australians may have been just in front.

GUMMOW J:   The reason why I am asking you these questions is that in Thompson v ACT Television, which is a case about release of joint tortfeasors, a world away from this case, in 186 CLR 574 at 577 Justice Dawson in the course of argument made a point which turned out to be very important, namely, the case was all about releases of joint tortfeasors and at 577 Justice Dawson refers to the Latin maxim cessante ratione legis cessat ipsa lex, namely, that the common law doctrine – if the common law doctrine in relation to releases depended upon something which has disappeared, well, the common law doctrine disappears. 

So in that case we referred to the effect of the Married Women’s Property Act on the litigious standing of wives as feme soles in relation to torts committed during joint cohabitation and the common law rule in Brown v Holloway (1909) 10 CLR 89, just before Riddle I think, this Court said that the common law rule had gone – the reason for the common law rule had gone with the Married Women’s Property Act.  Now, these are ideas that were in play at the time of Riddle.

MR GAGELER:   Yes, your Honour, which really brings me to this.  What I have identified is about as much as could be said about this supposed common law rule as at the turn of the 20th century as emanating from England and as observed, no more than observed, by the High Court in Riddle.  Should it have been recognised then as a common law rule in Australia was not a question that arose.  The question arises in the early part of the 20th ‑ ‑ ‑

GUMMOW J:   Well, counsel was canvassing the possibility, were they not, in their arguments in Riddle?

MR GAGELER:   No more.  There was certainly no holding to that effect and in any event the case was directed to compellability, not to the precise question of privilege.  So the question arises now should there be recognition of this supposed common law rule in Australia and ‑ ‑ ‑

KIEFEL J:   For those who seek to carry it forward, and I think Mr Lusty might fall into this category, there seems to be reliance placed upon the privilege against self‑incrimination combined with the older bases for the rule, although the privilege against self‑incrimination might be the more modern of the bases.  But that seems to be the way in which it is sought to be carried forward.

MR GAGELER:   Yes, but they wanted a little both ways on that.  They want it to be like the privilege against self‑incrimination for the purpose of carrying it forward but unlike the privilege against self‑incrimination for the purpose of abrogation so that it stands as a distinct privilege Mr Lusty says with distinct origins.  He really wants those earlier origins that he wishes to trace back to the 16th century and even earlier, your Honour.

KIEFEL J:   Just returning for a moment to that passage from All Saints referred to in Riddle 12 CLR 628, is it not the privilege against self‑incrimination that Justice Bayley is referring to there. It is said that if she had thrown herself on the protection on the court on the ground that her answer to the question put to her might criminate her husband and then says the question might have arisen but goes on to say:

But as she did not object, I think there was no objection arising out of the policy of the law, because by possibility her evidence might be the means of furnishing information -

There is no objection to the information that is furnished by the wife which seems to suggest that his Honour thought that at those times, on one reading, the policy of the law did not extend to her simply furnishing information which might later be used.

MR GAGELER:   All I can say is your Honour is possibly right.  That is probably a ‑ ‑ ‑

KIEFEL J:   It is difficult reading the old authorities.

MR GAGELER:   A third possible reading of this statement that on any view is itself just canvassing possibilities because it does not form part of the ‑ ‑ ‑

CRENNAN J:   It is also interesting, I think, at page 630 of Riddle that the Chief Justice, at the top of the page, is talking in terms of there being a doubt as to the law and one way to resolve it is to adopt what the textbooks say is the better opinion.  It does not suggest any unambiguous existence of a common law principle or anything like that.  Then, of course, his Honour notices the way in which England resolved the doubt a different way.

MR GAGELER:   That is right.

CRENNAN J:   Then his Honour feels compelled in the circumstances he is facing of construction not to depart from the literal meaning of the words that he is considering.

MR GAGELER:   Yes.  That is about as much as ‑ ‑ ‑

CRENNAN J:   I think that is all interesting in the context of what you are saying.

MR GAGELER:   That is right.  He is not drawing any firm rule at all.

CRENNAN J:   No, he does not seem, to me anyway, to be adopting an emphatic position about the existence of the privilege at common law.

MR GAGELER:   No.  Again, your Honour, this is all in the context of compellability, not privilege.

CRENNAN J:   Of compellability, yes, I understand that.

MR GAGELER:   Even in that context of compellability, the English Court of Appeal in 1931 took the view that the wife was compellable to give evidence against her husband.  That was only overturned in Hoskyn.  There was no certainty as to the common law position until the House of Lords had the final say quite late on compellability and then it was only talking about compellability.

BELL J:   Again, before you leave Riddle, at 627 one gets the statement that one finds Hale’s Pleas of the Crown.  I know there is some controversy about this, but the suggestion there seems to be a number of things; firstly, that a married woman is not a lawful witness against her husband in a case of treason.  I think there is some issue about when that was a right statement of the law by Sir Matthew Hale, but the point being made there is addressed to the question of competence.  Then there is the exception related to offences of personal violence involving Lord Castlehaven’s Case.  Then the author goes on to say:

But a woman is not bound to be sworn or to give evidence against another in case of theft, &c., if her husband be concerned, though it be material against another and not directly against her husband.

Now, that seems to be looking at a different idea.  This is not concerned with her competence to give evidence at a trial of a third person, but rather with the capacity to compel her to give evidence in a case where that evidence would have a tendency to criminate the husband.

MR GAGELER:   Possibly.  I would say possibly and possibly on that reading it is consistent with a reading of what Justice Bayley was saying.  I need to accept that, your Honour, as a possibility.  Of course, precisely what being bound to be sworn or to give evidence would have meant at the time, it was written in Hale’s Pleas of the Crown is difficult for us to appreciate.

KIEFEL J:   Possibly, though, it meant that she would not be compelled by the Court to take the witness box at all and not just be directed to answering particular questions at her election and at her claim.

MR GAGELER:   As we have said in our written submissions, that is the better understanding, in our submission, of what Justice Bayley was saying.  He was talking about compellability to give evidence at all if he was seeking to lay down any rule and that, in our submission, would also be the preferable view of Hale’s Pleas of the Crown.  But, your Honours, we do not pretend to be sufficient legal historians to be definitive as to what the content of those ancient statements may have been and we note Wigmore on that precise topic has pages of quite dense and difficult reasoning, your Honours, which goes off on another track to which I’ll come in a moment.

KIEFEL J:   Wigmore’s chapter is entitled “Privilege”.

MR GAGELER:   Well, I will not come to it in a moment.  I will deal with it now.

KIEFEL J:   You are going to deal with that.  I am just curious about what the answer is there.

MR GAGELER:   It is this.  Wigmore wrote first, I think, in 1904, or at least he published his treatise in 1904, and what he said there, as we understand it, then influenced the development of American law in the 20th century.  Most of the cases it seem involve undoing bits of the law as constructed by Wigmore, but what Wigmore did was he took the basic common law rule that a spouse was incompetent to testify for or against the other spouse in any civil or criminal matter.  That is the basic rule, with some exceptions.  He took that rule and he turned it into two rules without any real explanation as to why he was doing it.  He just turned it into two rules.

He took that rule and he turned it into two rules, without any real explanation as to why he was doing it.  He just turned it into two rules.  He said that there was a disqualification from testifying for the spouse and he dealt with that in one chapter.  Then he said that there was a privilege against testifying against the spouse, and he dealt with that in another chapter.  Now, an immediate conceptual problem he had with this privilege notion he recognised.  He said, well, if it is a privilege it needs to be able to be waived because that is what privileges are. 

He found an old case in England where it had been held that this incompetence to testify against a spouse could not be waived and he said that old case is not well reported and should be put to one side.  The truth is it seems to be as well reported as any of the other sources in this field.  Your Honours see that point in Wigmore which I assume that your Honours have.  In any event, your Honours see that in Wigmore at pages 256 to 257.

KIEFEL J:   Is this from the 1961 McNaughton revision?

MR GAGELER:   Yes, the Chadbourn revision, the one that was mentioned in the letter from the court, page 256 under the heading “Waiver of the privilege” and that is the source of my error, Justice Heydon.

HEYDON J:   I am sorry, Professor Wigmore is wrong and Mr Justice Holmes was wrong.  A lot of people are wrong, but one must try and extirpate error wherever one finds it, Mr Solicitor.

MR GAGELER:   I accept the correction.  In any event, he says in the sentence that follows ‑ ‑ ‑

GUMMOW J:   He did it to Sir Matthew Hale, as well, I think.  He labelled him too.

MR GAGELER:   He says in the next sentence:

A privilege without a waiver becomes a vain use of words -

He is saying that there cannot be a privilege without a waiver.  He says in the sentence at the bottom of the page:

In a few instances, it has been denied or doubted that the privilege can be waived.

This is what he describes as the privilege against testifying against a spouse.  He goes through the few instances which actually go on for quite a way in the footnote but in England, which is the position noted at page 257 in the footnote, left‑hand column, he refers to Barker v Dixie which he puts to one side on the basis that it is a case too confusedly reported to be of any value.

As I said, it is no more confusing than the other sources in this field but it is a case that quite clearly addressed the question where the husband was quite happy for the wife to testify against him in a criminal trial and the wife was willing to do it and the court said it could not be done.  It is a case that is just inconsistent with the notion of there being a privilege of the kind that Wigmore was suggesting.  The problem is that this  ‑ ‑ ‑

CRENNAN J:   The other odd thing was that it seemed to be suggested that it was not only the wife’s privilege but the husband’s privilege as well.

MR GAGELER:   Well, you see, there is this construct that comes from Wigmore that the Supreme Court goes through about 50 years of unwinding and so there is this problem of waiver, but there is also the problem that Wigmore sees it as being the privilege of both spouses and the Supreme Court took that to be the position as late as 1958 in a case called Hawkins 358 US 74 and that position was only changed by the Supreme Court in 1980 in a conscious change in the law to reflect modern developments in a case called Trammel 445 US 40 where it was said that this privilege was that of the testifying spouse alone. So those really quite late developments and, as I said, quite conscious changes in the law as received through Wigmore and is perceived in the United States ‑ ‑ ‑

GUMMOW J:   In the Supreme Court decisions in the US, are they applying – I suppose what I am really asking is, how does this common law question get into the Supreme Court?

MR GAGELER:   Federal prosecutions and I am not sure, your Honour, whether this is one of those areas where there is still seen to be an operative federal common law.  I think it is actually.  I think in Trammel it was seen to be a federal common law.

GUMMOW J:   Yes, that may be right.

MR GAGELER:   What has occurred, in our submission, is that there is simply a divergence between the law in England, and we say certainly in Australia, and the law in the United States and it is probably attributable to Wigmore’s thesis at the turn of the 20th century.  But the law in this very, very broad area developed differently in the United States in other respects as well.  For example, the Supreme Court of the United States in 1951 in a case called Blau v United States 340 US 332 accepted the existence of a common law privilege in spousal communications.

GUMMOW J:   In?

MR GAGELER:   In communications between spouses and that common law privilege has never been recognised in Australia and was rejected by the House of Lords in 1962 in the case of Rumping v DPP [1964] AC 814. This is just an area where the United States law has gone on a different track, rightly or wrongly, it is just different. Your Honours, can I return to the question of what does one do at the beginning of the 21st century in Australia with the weak stream of authority from those two pieces of Georgian dicta and what one does is this.

One does not recognise privilege against spousal incrimination even as a rule of evidence, in our submission, and one certainly does not recognise that privilege as a substantive rule of the common law.  In those respects we just make the following points.  The first is that any privilege rests on a view as to public policy, and any privilege impedes the ascertainment of truth.  If there is any doubt, in our submission, the policy of the law favours the non‑recognition or confinement of the privilege.  In that respect we note and draw your Honours’ attention to two useful discussions.  One is the judgment of Justice Dixon in McGuiness 63 CLR 73, particularly at page 102, and the other is in the case of Young 46 NSWLR 681 at ‑ ‑ ‑

GUMMOW J:   What do we get out of McGuiness?

MR GAGELER:   The theme of McGuiness, your Honour, is that privilege rests on public policy and privilege impedes the ascertainment of truth and the law has been jealous, generally, to confine privileges and you get a more full discussion along those lines in the judgment of Chief Justice Spigelman with an extensive citation of authority, 46 NSWLR 681, this is the case of Young, at paragraphs 72 to 98.  It is a very long discussion - at paragraph 93 in particular, your Honours.

FRENCH CJ:   That is the recognition for new category of privilege.

MR GAGELER:   We apply that to the firming up of a doubtful category of privilege, your Honour.

FRENCH CJ:   Well, let us suppose it is not doubtful, let us suppose it is properly regarded as a privilege and made the trip to the colonies, is it open to this Court to say that its foundations no longer exist and it should no longer be recognised?

MR GAGELER:   There has to be an element of, dare I say it, realism at some point in the development of the common law, your Honour.  The Court is called upon now to determine whether there should be recognition.  The Court in making that choice as a matter of common law now should take into account the strength of the precedent.  It should take into account the policy that underlay such precedent as exists and it should take into account the continuing acceptability of that policy in the light of developments.

FRENCH CJ:   By reference to what, community values?

MR GAGELER:   To the extent that community values informed the early statements of the rule, yes.  More than that you take into account changes in the structure of society and changes in the legal structure which include the Married Women’s Property Act which include the franchise female suffrage and which include the multifarious changes in law which have changed both the status of women and the perceptions of the status of marriage in society.  So, yes, you do take all of those into account.

HEYDON J:   What has that got to do with the status of women?  Privilege cuts both ways.  Husbands can claim it to protect their wives as well as wives to protect their husbands if it exists.

MR GAGELER:   No doubt.  Your Honour is right, but the early statements are all in the context of the wife giving the testimony.

BELL J:    Does that not involve some level of confusion between the principle that may have informed questions of competence which included biblical notions of husband and wife being one flesh and the later statements of the principle which are concerned with matrimonial harmony?  To the extent that non-compellability is justified among other bases on the unfortunate social consequences of forcing a wife to criminate her husband and vice versa, there is nothing about the changes in the status of women that bears on that consideration.  Society might still place a value in marital harmony regardless of the Married Women’s Property Act and the like.

MR GAGELER:   Society, undoubtedly, places great emphasis on domestic harmony, but whether society places relevantly greater emphasis on marital harmony than it does on familial harmony or de facto harmony is a debatable question.

If your Honours look at page 121 of the appeal book in the judgment of Justice Logan at paragraph 159, my point in this area is perhaps made - paragraph 159, page 121.  You see his Honour quoting from the Earl of Halsbury in Leach and then, of course, the passage, and I do not ask your Honours to turn back to it, in Leach is introduced by the Earl of Halsbury saying he is expressing a personal view – nevertheless, it is a strong personal view which his Honour, Justice Logan, goes on to say:

While it might today be expressed in gender neutral terms, I doubt that, a century later, most Australians would disagree with this sentiment ‑ ‑ ‑

HEYDON J:   It seems to me be an utterly irrelevant remark, with all due respect to Justice Logan.

MR GAGELER:   To the extent that something is sought to be drawn from it, your Honours, we respectfully submit that it simply cannot be assumed that the sentiments expressed by the Earl of Halsbury would confidently be taken to be the sentiments of the Australian community.  Indeed, legislative changes that have occurred in the last part of the 20th century and the early part of this century suggest to the contrary.

We have given your Honours a table of legislation which simply notes the current legislation dealing with competence and compellability of spouses in various Australian jurisdictions. The full citations for the legislation we give in paragraph 29 of our submissions in‑chief. But as a reflection perhaps of the trend of Australian society, to the extent that that is relevant to the determination of whether this supposed common law rule should now be recognised, your Honours will note that in four States we now have the uniform evidence legislation, and the way in which the uniform evidence legislation deals with compellability is in section 18 to give the spouse, the de facto partner, the parent or the child of a defendant, an ability to object, and that objection is then dealt with by a judge who determines whether or not the objector is to be compelled by going through a balancing exercise.

Subsection (6) and subsection (7) deal with that and in two jurisdictions, which are the Northern Territory and Queensland, a spouse is, in every case, competent and compellable.  The situation in South Australia and Western Australia is a little more complex.

What we get from that is really two things.  One is that if one wants to look for changes in perceptions of spousal incrimination, that is a good guide, that is, it is no different from de facto or parent or child incrimination, but more than that, in our submission, what you see in this legislation is a trend towards compellability which would be completely undermined by the recognition now of a privilege against spousal incrimination.  It would be an odd result if, having gone through the objection process, having gone through the balancing process and having determined that the desirability of receiving evidence from this witness outweighs the likelihood of any harm, that a court would then say, in response to an objection to giving a particular question, yes, there is a common law privilege.

FRENCH CJ:   When you speak of recognition of a spousal privilege, do you mean acknowledgment by reference to precedent, an authority that there is such a privilege?

MR GAGELER:   Correct.

FRENCH CJ:   Or some more creative activity?

MR GAGELER:   No.  Your Honours declare the common law and until Callanan v B in 2004 the common law had not been declared on this topic.  Your Honours would not declare the common law, in our respectful submission, in those terms.  In respect of the point that I have just made, can I refer your Honours to the very useful discussion in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.

GUMMOW J:   Starting with Lord Diplock at paragraph 24, I suppose.

MR GAGELER:   Paragraph 24, yes.  That is really what I wanted to draw your attention to, Lord Diplock quoted in paragraph 24.  So your Honours, in our submission, would not ‑ ‑ ‑

HEYDON J:   What about paragraph 25?  Are we not operating against this background that this examination which led to the objection which has led to this litigation was taking place in Queensland?

MR GAGELER:   Yes, exactly.

HEYDON J:   The Evidence Act 1995 in its various manifestations is irrelevant because it only applies to in‑court behaviour to start with and no good was involved.

MR GAGELER:   That is right.

HEYDON J:   Do you not take into account, if you are looking at trends in legislation and non-legislation, to see what the position is in Queensland and Queensland has not adopted anything like the Evidence Act 1995?

MR GAGELER:   The position in Queensland is even more strong, your Honour, because under the Evidence Act in Queensland the spouse is compellable in a criminal trial against the other spouse.

HEYDON J:   Which section of that Act abolished the non‑existent common law privilege we are talking about?  Do you dispute that if the privilege exists at common law it exists in Queensland?

MR GAGELER:   It exists as part of the common law of Australia.  It exists in Queensland just as it exists elsewhere in Australia.

HEYDON J:   Yes, save to the extent that it has been taken away by statute in Australia?

MR GAGELER:   Correct.

HEYDON J:   And it has not been taken away by statute in Queensland, has it, because if it has, we have wasted the last hour and a half?

MR GAGELER:   Your Honour, can I answer your Honour’s question this way.  If the privilege exists, then it must apply to proceedings in a court because that is the core area of the privilege.

HEYDON J:   Yes, but that is not the only question.

MR GAGELER:   Then there is a debatable question about whether it has a wider application.

HEYDON J:   Correct.

MR GAGELER:   That would be its core area.  Now, in relation to the proceedings in a court the wife is in every case compellable to give evidence against the husband in a criminal trial.  That is the statutory position in Queensland.  That leaves the possibility, your Honour, that the privilege is a privilege at common law that extends beyond court proceedings and it leaves the possibility that although abrogated in one respect perhaps in Queensland in relation to criminal proceedings against the other spouse, the privilege continues to exist more widely.  I accept those as theoretical possibilities, your Honour.

HEYDON J:   We started this merely by the fact that you referred to paragraph 24 in Esso and I referred to paragraph 25.

MR GAGELER:   That is right.

HEYDON J:   Does not the present position in Queensland in relation to our problem fall within the teachings of paragraph 25, not Lord Diplock’s teachings?

MR GAGELER:   No, the question is one of degree, your Honour.  Lord Diplock stated a general principle that is more easily applied in circumstances of a unitary State where the Parliament of that unitary State has legislated consistently or in accordance with a trend.  It is more difficult to apply, I accept, in a federation, and that is what is said in Esso.  It is not said in Esso that it is inapplicable and, indeed, if you look at the later paragraphs in Esso where there is extensive reference to the methods of reasoning adopted in the Supreme Court of the United States, it is noted that frequently the Supreme Court will say the trend of State legislation is this way, the federal common law should be developed consistently with the trend of legislation.

All I am saying is that the trend of legislation in Australia, although not uniform, the legislation is not uniform, there is a trend towards compelling the spouse to give evidence.  There is a trend towards accommodating other forms of close personal relationship to the same position as the spouse and I was making the further point that the results, the statutory results – that legislation would be to a significant extent undermined by a common law privilege now being recognised that would apply to the actual giving of the evidence even where, according to the statute, the witness is compellable.

GUMMOW J:   How did this dispute start off in terms of the operation of the Crime Commission Act?  I know it started off in the Federal Court as an application for an injunction.

MR GAGELER:   Yes, that is right, to prevent the requirement to answer.

GUMMOW J:   What was to be enjoined?

HEYDON J:   She objected to answering questions about Mr Stoddart and the injunction sought to restrain the examiner from questioning her in relation to matters concerning Mr Stoddart.

MR GAGELER:   Thank you, your Honour.  I was just trying to turn up the precise form of the injunction.

GUMMOW J:   Yes, but in the exercise of what statutory power by the person asking questions, that is what I am trying to find out.  The injunction has to be on the ground of some apprehended illegality for the non‑existence of a statutory power or abuse of a statutory power.

MR GAGELER:   It is not precisely identified, I think.

GUMMOW J:   Exactly.

MR GAGELER:   But it would have to be section 25A(6).  I was going to come to the statute in due course, your Honour.  I was not ignoring it.

GUMMOW J:   I see.

FRENCH CJ: That has to be read with section 30, has it?

MR GAGELER: Read with section 30, but if your Honour is asking me for the source of the power, the exercise of which would be constrained by the injunction it would be ‑ ‑ ‑

GUMMOW J:   The source of the power, the exercise of which is sought to be enjoined.

MR GAGELER:   Enjoined.  It would be that power, section 25A(6).

FRENCH CJ:   It would not be the power to put the question.  It is the obligation to give the answer that is the problem, is it not?  Anybody can ask a question and the wife does not have to answer, or she can answer if she ‑ ‑ ‑

MR GAGELER:   That would be a question of where the hypothetical privilege bites within the statutory scheme.  I am still at the point, your Honours, of denying the privilege.

GUMMOW J:   Now, does this create an offence, this failure on the part of a witness an offence?

MR GAGELER: Yes. You then go to - section 25(6) is the questioning, then you go to section 30(2)(b). You start in section 25A(6), so the examiner may examine “on any matter that the examiner considers relevant” ‑ ‑ ‑

GUMMOW J: Do you not start with section 30(2)(a)?

MR GAGELER:   Well, yes.  I am sorry, I was going to do this systematically in due course.

GUMMOW J:   All right.

MR GAGELER:   I was attempting to respond to your Honour’s precise question earlier.

FRENCH CJ:   The witness was not refusing to answer all questions because there are a number of questions that were actually put which, when a crunch question came out, the objection was taken to answering.

MR GAGELER:   That is right.

FRENCH CJ:   In relation to some particular invoice or something like that.

MR GAGELER:   That is right.  So there was no point taken that there was no power to compel by the summons under section 28.

GUMMOW J:   And the offence provision?

MR GAGELER: The offence provision, section 30(2)(b) is the requirement to answer, and then the offence provision is subsection (6) of section 30.

GUMMOW J:   Right.  And subsection (9) specifically refers to legal professional privilege.

MR GAGELER:   Subsection (9), yes, and it expressly refers to legal professional privilege, the contemplation being that it continues, and subsection (3) indeed operates to facilitate the ‑ ‑ ‑

GUMMOW J:   Now, this privilege for which your opponent contends, is that, as you understand it, said to be something of a substantive right in the nature of legal professional privilege?  In other words, something that operates outside courts?

MR GAGELER:   It has to be.

GUMMOW J:   Was any decision ever held that that is so?

MR GAGELER:   Not until Callanan v B.  So, your Honours, we have put the position that this common law privilege against spousal incrimination should not be recognised even as a rule of evidence, but even if that is not accepted, it should not be extended to become a substantive rule of law, as was legal professional privilege and as was ‑ ‑ ‑

GUMMOW J:   That only happened with legal professional privilege after some acute diversion of opinion in the court, did it not?

MR GAGELER:   It was only Baker v Campbell, and even the privilege against self‑incrimination, treating that as something that operated outside the curial context was something that only developed in Pyneboard, Sorby and Caltex.  These were all very late developments, and if you look at the reasoning – I will not go to those cases, your Honours, your Honours are very familiar with them, but the sort of considerations that led to the conscious extension of the privilege beyond the courtroom were notions that the privilege, wether it be legal professional privilege or the privilege against self‑incrimination, was fundamental to the operation of the adversary system or a bulwark against tyranny.  That is the sort of language that you see in those cases.  This privilege, even if it exists or should be seen to exist as a rule of evidence or as applicable in proceedings in a court, just is not in that category.  It is a historical relic, in our submission.

FRENCH CJ:   Just going back for a moment to the question of the relief, I think at 124 of the appeal book the Full Court did not substitute for Justice Reeves’ dismissal of the application any injunctive relief.  It made a declaration and then an order setting aside the examiner’s ruling which was really a ‑ ‑ ‑

MR GAGELER:   Yes, another way of doing it.

GUMMOW J: The foundation of all this has to be section 75(v) of the Constitution, does it not? The declaration would be appendant to the injunctive jurisdiction.

MR GAGELER:   Of course, yes.  I think this was section 39B of the ‑ ‑ ‑

GUMMOW J:    Yes, that is how it gets into the Federal Court, I suppose.  But the root is 75(v), is it not?

MR GAGELER:   ‑ ‑ ‑ Federal Court Act and we would certainly take no point about the availability of declaratory relief if an injunction is bona fide sought, your Honours.

GUMMOW J:   The declaration is parasitic to the 75(v) jurisdiction – it had to be.

MR GAGELER: Yes, but I have been subjected to declarations in the past, your Honours, without any section 75(v) orders being made and I ‑ ‑ ‑

GUMMOW J:   For some reason they decided not to grant an injunction but to “set aside”, whatever that might mean.

MR GAGELER:   We do not take any procedural point about that.

GUMMOW J:   All right.

FRENCH CJ:   I suppose the 39B(1A)(c) a matter “arising under a law made by the Parliament” coupled with the general powers of the court might be another route to the same result.

MR GAGELER:   Yes, that would give rise to the same procedural possibilities.  Your Honours, I will come to the detail of the Act in just a moment but can I say this about the principle of legality.  It is one thing in our submission to recognise a common law privilege or immunity.  It is quite another thing to elevate that common law privilege or immunity to the status of a fundamental or basic or important common law privilege or immunity for the purpose of the principle of legality.

GUMMOW J:   I am sorry to persist about this, could the Federal Parliament in exercise of its incidental legislative powers remove this privilege if it existed insofar as it would affect the operations of this Crime Commission body?  I would have thought so.

MR GAGELER:   Yes, of course, no doubt about that.  I mean, to the extent - your Honour recalls the debate in Sorby about the ability to remove the privilege against self‑incrimination, so yes, obviously, in our submission, it could.  Your Honours, the principle of legality as restated most recently in Saeed is to the effect that there are some rights – not all rights – that are so fundamental, so well established that Parliament is taken to have been aware of them and not to have intended to abrogate them in the absence of clear words or necessary intent.

FRENCH CJ:   Did you equate fundamental to well established?

MR GAGELER:   Yes.  The presumption is that Parliament knows about them and the presumption is that they are so important that Parliament should not be taken to have excluded them.  But it is not all common law rights, your Honours.  That point is well made in the passage in Electrolux that gets picked up in Saeed as the source of the most recent statement.  Electrolux is 221 CLR 309. The discussion of Chief Justice Gleeson at pages 328 to 329 is the source of the Saeed statement and, in particular, it is the end of paragraph 21 that is quoted in Saeed – that is:

The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis –

et cetera.  Importantly, that occurs in the context where his Honour is saying that is the presumption, but the presumption does not apply to these rights that were taken away in this case.  You go back to paragraph 19 where his Honour says:

Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation.  The generality of that assertion of principle requires some qualification.  It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms . . . However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights.  The assistance to be gained from a presumption will vary with the context –

He says at the end of paragraph 22 in the last sentence:

The rights of action taken away –

by the provisions in issue in this case –

are common law rights of a kind frequently modified by statute in the industrial context with which the legislation is concerned.

He is saying that this is not a case where the presumption applies.  Sure they are common law rights, but they are not rights of this ‑ ‑ ‑

FRENCH CJ:   The problem with the use of terms like “fundamental” is they may shift in their content with the times.  I think the origin of the passage in Potter v Minahan from Maxwell can be traced back to Chief Justice Marshall in a case on bankruptcy priorities in 1805 – Fisher, I think it was.  So what is fundamental for one age ‑ ‑ ‑

MR GAGELER:   Your Honour has taken the words out of my mouth because I was going to refer your Honours as well just in passing to Justice McHugh’s observations in Malika Holdings v Stretton 204 CLR 290 at 298 where, consistently with what he said in Gifford that influenced Chief Justice Gleeson here, he made the point that for the purpose of Potter v Minahan, in his language:

But times change.  What is fundamental in one age or place may not be regarded as fundamental in another age or place.

It would be pretty tough on the Parliament to be presumed to have had this common law right or immunity squarely in mind in circumstances where the Australian Law Reform Commission in 1985 had described its existence as doubtful.  Mr Lusty notes that at page 36 where Mr Lusty himself in the scholarly article in 2004 on the first page notes that the position was unresolved and he set about to resolve it, and where Justice McPherson, a true legal historian, in 2004 in Callanan v B at paragraph [6] said that he “would have been disposed” to think that the privilege did not exist if he had not been educated by Mr Lusty.

HEYDON J:   It does not matter what Parliament’s knowledge was.  Is it not really a question of what the words say?

MR GAGELER: I am about to go to what the words say, your Honour. If you read the words without any presumption in mind, the words are clear as a bell; the spouse has to answer. The question is whether you read the words with a presumption drawn from the principle of legality. What I am seeking to point out here is that the pre‑condition for the application of the principle of legality, that is, fundamentality, which necessitates, in our submission, knowledge and importance, is missing. So if you go to the words and you go to the words of section 30(2) of the Act, which we were looking at before ‑ ‑ ‑

GUMMOW J:   Just before you do that, Mr Solicitor, looking at this Queensland section you took us to, section 8(2), in that bundle of materials, clearly enough the competence is directed to proceedings in courts.

MR GAGELER:   Yes.

GUMMOW J:   Do any of these sections purport to speak to proceedings – they must exist in Queensland under Queensland statutes just as much as they do under the Crime Commission Act – whereby statutory bodies can compel people to appear?

MR GAGELER:   These provisions are concerned only ‑ ‑ ‑

GUMMOW J:   Provisions like this, yes.

MR GAGELER:   ‑ ‑ ‑ with proceedings in court, your Honour, yes.  These are concerned only with the competence and compellability of spouses.

GUMMOW J:   In court.

MR GAGELER:   In court, yes.

GUMMOW J:   So if there is a substantive right which is wider than court evidence, it has not been touched upon by these statutes?

MR GAGELER:   No.

FRENCH CJ:   Because you would need to look at things like Crime and Corruption Commission and ICAC statutes and the Queensland equivalent.

MR GAGELER:   It was in that sort of context that the question came up in Callanan v B, yes.

GUMMOW J:   Do any of those statutes, do you know, address this particular question we have with the Crime Commission Act?

MR GAGELER:   Your Honour is asking me expressly?

GUMMOW J:   Yes.

MR GAGELER:   Do they expressly purport to abrogate a privilege?

GUMMOW J:   Yes.

MR GAGELER:   My learned junior, who has read through a large number of statutes, says that he is unaware of any Australian statute that expressly abrogates spousal privilege, assuming it to exist.

CRENNAN J:   What you do you commonly enough is an abrogation of the privilege against self‑incrimination coupled with an immunity in relation to derivative use.

MR GAGELER:   Yes.

CRENNAN J:   Use or derivative use?

MR GAGELER:   That is right.  Not always coupled with that. 

CRENNAN J:   No, not always.

MR GAGELER:   But often coupled with it, yes.  One could speculate about the intentions of the legislatures, but one would ‑ ‑ ‑

KIEFEL J:   Legislation in Callanan v B, the Crime and Misconduct Act 2001 provided by section 190(2) that:

The person is not entitled –

. . . 

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

Justice McPherson said that if it had stood there, that would have been an answer to the question, but it went on to provide in section 194(3) that there might be a reasonable excuse for answering the question.  I think that is the context in which the question arose for his Honour.

MR GAGELER: Yes. Thank you, your Honour, I had not picked up that. Of course, part of the statutory history here that is noted by Justice Greenwood in his judgment is that there was a reasonable excuse exception in an earlier version of this Act and it was removed. So, your Honours, if you go to the words – and I will start here and that I will look more widely within the Act – and if you couple the generality of the questions that can be asked in section 25A(6) with the duty to answer in section 30(2)(b), the criminal consequence in section 30(6) and the application of Chapter 2 of the Criminal Code by section 6A, you get, in our submission, a pretty clear result, and that is, if I can use the words of Justice Kenny in A v Boulton 136 FCR 420 at paragraph 59, you get, in our submission, from section 30(2) the creation of not only a general but an unqualified obligation to provide answers when required and it is only by the application of some presumption that that obligation could be confined.

The only way to do that is through the common law principle of legality engaging with the common law privilege, assuming it to exist.  We have said already that common law privilege should not be found to exist.  Even if it does exist, the principle of legality ought not engage with it but my submissions now have to assume both of those things against me.  Even there, in our respectful submission, the majority in the court below misapplied the principle of legality, that is, they got the question wrong quite apart from the answer, and you can see the wrong question being asked by Justice Spender at paragraph 26 and by Justice Logan at paragraph 157.  In paragraph 26, Justice Spender says:

the common law privilege of spousal privilege, if it is to be abrogated, requires there to be a high degree of certainty as to the intention of the legislature.  In my opinion, there is nothing to suggest that the legislature directed its attention to the question of abrogation of spousal privilege, and consciously determined that the privilege was to be excluded.

To very similar effect at paragraph 157 directed himself particularly to the secondary materials - Justice Logan said that:

If anything, what they really reveal is that Parliament did not turn its mind to spousal privilege at all.

Perhaps I am unduly critical of Justice Logan but certainly Justice Spender appears to have proceeded on the basis that the application of the privilege required some degree of certainty that – I am sorry, the application of the principle of legality required some degree of certainty that the Parliament actually confronted the privilege and intended to abrogate the privilege.  In our submission, putting it that way really conflates the principle of legality with the justification for the principle of legality in that what is required is no more than a high degree of certainty that the legislature intended to achieve a result that is incompatible with the continued existence of the privilege.

FRENCH CJ:   That is something which comes out of an examination of the language, not from the search for some sort of collective mentality.

MR GAGELER:   Yes, that is right.  It is best put, for present purposes, in our submission, in the joint judgment in Pyneboard Pty Ltd v Trade Practices Commission (1982) 152 CLR 328 – if your Honours would go to that. This was subjected to some criticism in Daniels 213 CLR 543 at paragraphs 26 to 30 but not in a way that bears upon this passage. There is some criticism of the Pyneboard reasoning, your Honours, but not as we read it that bears upon this particular statement.  At the bottom of page 341 in Pyneboard it is said:

In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve.  The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification.

The ultimate question was is the result Parliament sought to achieve discerned as a process of objective statutory interpretation inconsistent with the maintenance of the privilege. For that purpose your Honours will need to go to, very briefly, to locate section 30(2) within the scheme of the Act and I will do that really quite briefly.

The examiner is appointed under section 46B and is made part of the Commission by section 7(2)(b).  The functions of the Commission are set out in section 7A and the functions of the Board of the Commission are set out in section 7C.  To understand those functions there are a couple of definitions that are usefully noted, one of them in section 4 is “federally relevant criminal activity”.  Another is “intelligence operation” and another is “special ACC operation/investigation”.

If you go to section 7A then which deals with the functions of the Commission, relevantly the functions are (b) and (c).  Within section 7C, which deals with the functions of the Board and feeds into the functions of the Commission, to which I have referred, your Honours note subsection (1)(c), subsection (2) which deals with special operations and particularly the second sentence of subsection (2), subsection (3) which deals with special investigations and again the second sentence of that subsection.

You then go to section 24A which locates the conduct of the examination by the examiner within the context of a special ACC operation or investigation.  This is where ordinary methods of criminal investigation do not seem to be working - section 24A.  Then you go to section 25A which concerns the conduct of the examination.  I have drawn your Honours’ attention to subsection (6) already, particularly the language at the end of subsection (6) “examine or cross-examine any witness on any matter”. 

Your Honours will note that in the context of section 25A that privacy or confidentiality is dealt with in two ways.  One is by limiting the persons present at the examination – that is subsection (3) – and the other is the ability for a direction as to confidentiality by subsection (9). 

You then go to section 28, which is concerned with the summoning of witnesses.  Your Honours will note here subsection (1), which is the power to summon; subsection (2), which is a qualification on that power; subsection (4), which refers to the production of a document by a person summonsed; subsection (5), which allows for the taking of evidence on oath; and subsection (7) that limits everything to the purposes of a special ACC operation/investigation.

Then section 29(1), which is a separate power to obtain documents, subsection (1)(b) requiring the production of a document or thing being a document or thing that is relevant to a special ACC operation/investigation. So it is in that context that you then come to the requirements of section 30.

CRENNAN J:   May I just ask you -  there is a process, I assume, for authorising examiners – a statutory process.

MR GAGELER:   To link them to a particular ‑ ‑ ‑

CRENNAN J:   Yes, a particular investigation or operation.

MR GAGELER:   A particular investigation.

CRENNAN J:   Also pursuant to which they exercise their various powers.

MR GAGELER:   The examiner is appointed under section 46B ‑ ‑ ‑

FRENCH CJ:   But not for any particular matter.

MR GAGELER: Not for any particular matter. It then forms part of a commission. There is an administrative process, your Honour, that links an examiner or a number of examiners to a particular investigation, but I do not think that there is a separate statutory process, nor is one necessary. So in section 30 there is subsection (1) which requires attendance and there is no doubt that the reference to “person” there means any person.

Subsection (2) your Honours have already seen but, again, in our submission, subject only to the qualifications that follow in section 30 you read “person” as meaning any person, you read “question” as meaning any question within the scope of the questions that can be asked under section 25A and you read “document” as any document, again within the scope of the documents that fall within the description in section 29.

Now the one qualification that we have already touched upon is that subsection (9) expressly contemplates the maintenance of legal professional privilege, and subsection (3) provides a procedural mechanism to facilitate the claiming and preservation of that privilege.  You see from subsections (4) and subsection (5) an implicit abrogation of the privilege against self‑incrimination and that is through subsection (5) operating to limit the incriminating use that can be made of an answer or a document in circumstances where the preconditions in subsection (4) are met. 

Now, the main argument of the first respondent on this aspect of the case is, and really the main point in the judgments in the majority below, particularly in the judgment of Justice Spender at paragraph 21, and in the judgment of Justice Logan at paragraph 160, is to say, well, it would be incongruous to construe section 30 as also abrogating the privilege against spousal incrimination without conferring an equivalent use immunity of the kind that you see in subsection (5).

To that we have a quite detailed answer in our written submissions in reply in paragraph 9, but leave that detailed answer to one side. In our submission, there is nothing incongruous at all in treating the language of section 30 as manifesting an intention to abrogate any and all privilege against any and all incrimination, and in treating it as directed to evidence given or documents produced by a spouse, in the same way as it undoubtedly is directed to evidence given or documents produced by a sibling, a parent, a child or a de facto.

I think I already mentioned in answer to a question, there is something to be drawn from the history noted by Justice Greenwood at pages 85 to 92 of the appeal book, the point being the one that his Honour makes at paragraph 64 at page 87, that is, when you trace through the detail section 30, as framed before 2001:

cast obligations on a person conditioned by the qualification that the witness might refuse performance of those obligations with reasonable excuse.

That qualification, as your Honour Justice Kiefel points out, an important qualification in the Queensland case was removed in 2001 for quite considered reasons which you see particularly in the second reading speech at page 90, paragraph 69.  Your Honours, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Walker.

MR WALKER:   Your Honours, I hope I may start with some remarks that are intended to show common ground and differences between the parties before you in light of what has fallen out this morning before I embark on the course which our three‑page document seeks to map.  First of all, of course, we accept that the task presented to a court interpreting a statute whose general words arguably or putatively abrogate a common law privilege or immunity is the anterior question, what did the common law say at the time the statute was enacted?  Second, of course, in this country that is the Australian common law; and third, its roots came with the first settlers.

GUMMOW J:   No, 1828, New South Wales and Queensland, was it not?

MR WALKER:   Well, they came with the settlers because of who the settlers were, and they come at different times for different colonies.

GUMMOW J:   Yes, but Queensland is the same as New South Wales, is it not, relevantly?

MR WALKER:   It is.

GUMMOW J:   It is 9 George IV.

MR WALKER:   The key, however, in our submission, is that before one comes to this Court at the apex making the Australian common law it is clear, in our submission, from the considered statements of the first Justices of this Court in the arguably obiter remarks in Riddle – I will come back to whether it truly should be seen as obiter – that the considered opinions of each of their Honours was that the common law as it was in the colony of New South Wales at the time of important amending statutes with respect to both rules of evidence and competence to give evidence was such as to include such a privilege or immunity.  I will come back to that in the course of argument as mapped by our outline.

It is also clear from the 1922 South Australian first instance decision to which we have drawn attention, namely, Phillips [1922] SASR 276, that so far as the matter appeared to Mr Justice Angas Parsons at that time and upon the argument before his Honour in the passage at page 278, the foot of the page, that the privilege or immunity had been received in South Australia when the common law came to South Australia.

So those are two statements in the precedents which addressed what we accept is, of course, a critical question, what is the relevance to the Australian position of the position as it had been pronounced in England both before and after the respective dates of common law reception in this country?  In our submission, we have this on our side, that is, there is no countervailing example, that is, resisting on grounds of incompatibility with conditions on this continent of the considerations, to which I will have to come, of course, in more detail and more elaborately, that were said to justify at various times, including particularly in the 19th century, the existence at common law of the immunity or privilege.

In particular, we indicate the probably not separate but related aspects that we would respectfully submit is the best version of a modern statement by the judges of a justification for the rule; the rationale which continues permitting the rule to continue.  It is that there should not be the tension or conflict created for either spouse, man or woman, with respect to the fate either directly in proceedings in which the spouse is an accused or perhaps more indirectly as a result of investigations that may be started and assisted by answers given by the witness spouse or, in this case, a spouse who is being examined out of the court. 

In our submission, the cases show that shorn of what may now – I stress “may now” – be seen by some, query most, it is an impossible ballot to conduct, has more poetry than law, namely, religious or other views concerning the unity of spouses and certainly regardless of the anachronism now of an hierarchy within a marriage whereby the husband is the head, regardless of that having gone, the importance socially – and that is according to the policy of the law perhaps formally dubbed as public policy – of the relationship of marriage is one which, in our submission, cannot be seen to the slightest degree to have become something that has fallen into disuse or ceased to have a pre-eminent claim to regard by judges considering precedents on matters affected by it.  In our submission, one will see that in a sequence of cases, all 20th century, which start with the Australian Riddle, goes to the English Leach almost immediately and then returns to the English Hoskyn.  The passages in ‑ ‑ ‑

GUMMOW J:   Now, supposing at the relevant time your client had been living separately and apart from her husband, does that alter anything?

MR WALKER:   No, because, for reasons that Justice Kiefel has invited my friend to consider and I am about to embrace in some further remarks in a moment, there is the world of difference between competence and compellability and extending for a long time there was, of course, an objection to lack of competence on the basis that – not least in domestic violence cases – there was no shortage of women only too eager and willing to give sworn evidence against a brutal husband and that raised a question of policy which was ultimately addressed by legislators in various ways, sometimes limiting according to offence or the witness as victim, sometimes more general, but while ever that was the position at common law, then of course one could see the world of difference between the question of competence and the question of compellability.

If my client – may I add to Justice Gummow’s example so as to deal with the relationship question – was estranged and hostile from her husband, though they were not divorced, in our submission, in the event that she chose to give evidence that would simply be an exercise by a failure to exercise the privilege of her right to choose what we ‑ ‑ ‑

CRENNAN J:   Be a waiver?

MR WALKER:   Yes, in the nomenclature of privilege a waiver, in the nomenclature of what Wigmore somewhat scornfully dubs this right to elect, it would simply be the choice being made whether to give evidence and then to use the language of compellability, it would simply be to do voluntarily what she could not be compelled to do.

KIEFEL J:   Such an approach would deny the older understanding of the rule which would give each of the husband and wife an interest, albeit a different interest, in the privilege but it would not be suggested in the older cases that the privilege, if it be called thus, was held by one and could be waived against the other.

MR WALKER:   Without any doubt, that raises that very issue.  One sees the way – and my learned friend, with respect, has dealt with it adequately for my purposes at least in which that particular claim by the party testified about rather than testifying to be able to veto or prevent the testimony – was dealt with in the United States and it is the common law of the conduct of federal prosecutions that was in question in those cases.

May I make clear that whether or not one is talking about rules and exceptions – and I have to come back to that matter raised by Justice Kiefel with my friend – we do take this position, namely, that the cases show fairly clearly in the 19th century that it was not for the husband indicted, say, for attempted murder to claim a right to prevent his wife, herself only too willing to give evidence because she was the victim of the attempted murder, from doing so.  So that the old law, if I can use an inexact expression, it (a) suggests that it is easily dated, (b) that it can be seen as a monolithic whole, neither of which is true, the old law that Justice Kiefel asked me about certainly was not operating so as to permit accused husbands, if I could stereotype for a moment, from preventing domestic violence allegations against them to the harm of their wife from being proved against them by the wife’s choice once competence was put to one side. 

Now, that is unquestionably why, that is extirpating that aspect of the old law, mid‑19th century statutes to which I will come, the texts of which your Honours have I think exhaustively in the authorities and the submissions, made plain that it was, regardless of the option or position of the spouse testified against, that the competence, the newfound statutory competence, could be exercised.  That, of course, is quite a difference concept from compellable, that is, the contest between the power of the State at the instance of a party of prosecutor and the liberty or immunity of the witness. 

So there are at least three concepts, and it may be seen that one crude scheme of the historical evolution has the first of them, competence, in effect, covering the field and rendering the others moot or perhaps not even though of.  If a woman or a man was not competent to testify against his or her spouse, then the question of compelling him or her never arose and, in particular, the question whether there could be prevention at the instance of the object of the proposed evidence would never arise.  Then exceptions, truly regarded obviously at the time and in the scholarly writers since, as exceptions to that question of competence were raised.  It is difficult to put it as more than raised because take one that one might have thought would have a very urgent claim in public policy, or the policy of the law, or social imperative, to be clear.  That is the case of treason that your Honours have seen. 

Strangely from one point of view – and I stress “from one point of view” – only, strangely, that does not seem to have been – I think I was about to say “clear to demonstration”.  I do not want to suggest that “clear to demonstration” is the minimum before the court can see what the common law was in the sense of the better view of what the holdings and words of the judges now add up to – but if, say, the better view was that treason was an exception, I would be so bold as to suggest that it was self‑evident that the reason was because of the nature of the treason offence that in terms of the organised society, the polity, it had some greater claim, with which many might disagree of course, compared, say, to murder.  When I say “murder”, I mean ordinary murder rather than murder of the sovereign.

CRENNAN J:   It might have picked up on the idea that you could not have a unity of interest as between husband and wife in the context of treason.

MR WALKER:   That may be because of what I will call an overarching or paramount allegiance question.  That, of course, then gets tangled up in what might be called a petty or domestic allegiance question of wife to husband, not spouse to spouse but wife to husband, of a kind which we accept should play, could play no role in ascertaining the common law now.

However, there are historical elements of that and I, with respect, accept what Justice Crennan has suggested, that the claim of unity to be a complete answer might understandably have flagged somewhat in face of a treason case.  But I said only from one point of view it might be surprising.  From another point of view it is, of course, notorious that really awful consequences might be visited upon a person who is convicted of treason.  There the spectacle of a spouse being the instrument by which someone might be subjected to those consequences may be enough to supply the, again, self-evident explanation for why an opposite view might be taken.

That possibility of two quite opposite views in relation to the importance from a social point of view of the outcome of the proceedings, be they curial or extra curial, and the possible damage to or in a relationship, including principally the individual whose testimony is in question rather than the individual against whom the testimony is to be offered, that is a theme that continues way past the 16th century, way past the early 17th century, either statements or misstatements of the position, and continues well into the modern era.

GUMMOW J:   When you say “testimony” ‑ ‑ ‑

MR WALKER:   I did not mean that technically, curially only.

GUMMOW J:   ‑ ‑ ‑ that carries with it the notion of oath, does it not?

MR WALKER:   I am sorry, your Honour?

GUMMOW J:   Does that not carry with it the nature of oath?

MR WALKER:   It does.

GUMMOW J:   And insofar as you are then talking about extra curial questioning, the question would be one of the competence of the body to administer an oath, would it not?

MR WALKER:   Administer an oath, yes, it does.

GUMMOW J:   Do we know anything about this?  Is this just a historical void?  There are bodies like poor law commissioners who I imagine went round interrogating people who probably should not have been on relief and so on.  What happened?

MR WALKER:   I think there is a reference, All Saints, I will dig that out.  From recollection there is a reference to an oath being administered there.  I will check that, your Honour.

GUMMOW J:   That will require a statutory backing.

MR WALKER:   Absolutely, yes, as it still does.  There is no executive power to serve an obligation to take an oath.  Now, your Honours, what Justice Gummow has raised has another different implication for our opening remarks apart from what his Honour raised with me.  That is, of course, at the times which are the earliest where the historical materials have been assembled for your Honours, and almost consistently thereafter, there is, in this area, a similar concern, nowhere near so vigorously expressed with the tension within an individual’s conscience, in former times concern for his or her immortal soul, faced with the choice between perjuring a mortal sin or confessing and eternal life arriving sooner than it might otherwise.  So, that tension, framed and plainly as to the rationale, the cessation of which may bring an end to a rule, plainly expressed as a rationale for a long period in relation to the privilege against self‑incrimination, does not exist for many people while no doubt it also continues to exist for many people.

That has never been suggested as a reason why the privilege against self‑incrimination might be thought to use for the first time one of the metaphors my friend used of a continuum might be thought to be subject to some kind of trend, or as we would put it, slippery slope.  There is no trend or slippery slope in relation to privilege against self‑incrimination at common law.  It has to be dealt with by statutes in such a way as to abrogate and, of course, it frequently is nearly always with trade-offs which themselves reflect a legislative judgment as to what I will call the fundamental importance of that kind of right.

Now, I have said “that kind of right” because I am going later in part of my argument but in the place where the outline suggests it should be, I am going to attempt to link the privilege against self‑incrimination in relation to the proper understanding of section 30 of our statute with what we submit is the common law privilege against spousal incrimination, in particular as to its consequences given this statute.

GUMMOW J: Does section 30 carry a power to administer an oath or an affirmation?

MR WALKER:   No, there is another section that does that, your Honour, which is section ‑ ‑ ‑

HEYDON J:   Section 28.

MR WALKER:   Yes, section 28.  I wonder if I might just, so as to keep in mind the framework - my learned friend, I think, took you to most of the provisions that we wish to have in your Honours’ minds as we put our submissions both about the common law and the statute, but could I add that there is in a not unfamiliar way an alternative course to prosecution on indictment for failure to answer.

There is also the contempt, statutory contempt, which is created by section 34A(a)(ii), which then feeds into the substantive – I should say it is defined in that provision. Section 34B gives jurisdiction to the federal or local Supreme Court to entertain prosecutions, or I should say, dealing with such contempt. In relation to the oath in particular, your Honours will have seen that the first possible offence by somebody who has at least attended is that contained in section 30(2)(a), so that it is compulsory, on pain of penalty and punishment, for contempt as well to be on oath.

Now, your Honours, the next point that, in our submission, may be said about the historical phases, at the great risk of schematising over‑crudely, is that there came first of all by common law exceptions to the rule about competence – that is, lack of competence – there came to be what can be accepted as exceptions where somebody was competent.  It gave rise, of course, to questions about compellability, but none that in any number reached the books until the cases that have been pressed upon you by both sides, and have been exhaustively ploughed over by not only Mr Lusty, but the judges in the three Full Courts that have been drawn to your attention.  We therefore can say that whether or not it is clear that where there was competence, a wife was compellable, the better view would appear to be that before statutes began to stake out the territories in which the judges have to make decisions about either surviving or background common law, that the common law itself seemed, in effect, to give a choice to a spouse – alas, mostly a wife – to give evidence against a husband.  There are two aristocratic rapes, for example, that your Honours have seen in the record, not by the spouse physically, but by the spouse as criminally liable for another’s actions, in which it would appear that the woman had a choice, this so‑called election.

The common law obviously changes according to circumstances and it must be that that very change I have talked about, the making of an exception, was a response to the circumstance of horror, as it were, that the alleged malefactor had, as head of the household and as one flesh with the woman whose flesh he had been criminally abusing, had the means to escape all worldly justice for that conduct.  That must have been the impulse that led to those exceptions, so‑called.

KIEFEL J:   I am not sure that it might have been so much horror.  A little more cynically it might have been more for the appearance of what the law was giving to women rather than for the true effect of them taking it up.

MR WALKER:   Yes, although, with respect ‑ ‑ ‑

KIEFEL J:   I think it was called a necessity to allow women to take this course probably with the knowledge that very few would.

MR WALKER:   Your Honour, that is not and old‑fashioned observation about whether women would press allegations of brutality against husbands that they continued to live with or continued to be frightened of.  In our submission, the necessity in the context of those statements is because of the imperative of the doing of justice that alleged crime where sufficient colour is given to commit, for example, to trial should not be stymied – my word, not the authorities – should not be stymied.  That is not the necessity.  It is not, as it were, a face‑saving or appearance colouring necessity, not a cynically political necessity but a necessity in order that there not be a woeful gap in the administration of criminal justice.

KIEFEL J:   But I suppose one point that comes out of it is that you simply do not have this body of case law where you can see the question whether or not a woman wishes to give evidence.  I mean, there is just, one, not the quantity.  You get a few cases and that is all we have to talk about the question of compellability.

MR WALKER:   Your Honour, this must be one of the few areas where it would appear that you can count, if not on two hands, not many more digits, you can count the authorities.

KIEFEL J:   It would be nice to be grateful for that, but in this case we are not.  We would like more.

MR WALKER:   Yes, it would be.  Your Honours have a job because of it and, with respect, I should also volunteer not so much against myself as about the topic, that many of them are – it is stretching it to call them “authorities”, but they are precedent decisions and they do enable the territory to be mapped, not by filling in dots of some incoherent kind but by what, in our submission, was by the end of the 19th century a most clear, confident statement, however revisionist the rationale may have been compared to, say, the 16th century and, who knows, compared to what may or may not have been the case two centuries before that, and we do not really know, subject, of course, to the way in which Justice Jerrard in Callanan draws on Mr Lusty’s work in ways that we do not need to do more simply than note. 

Your Honours, then we have the era of the reforming statutes which addressed both civilly and criminally, one might say generally and then with exceptions for crime, though the difference does not matter, in stages over about half a century the questions of competence of parties and competence of spouses, a matter which had been wrapped up in the common law abhorrence of those with a particular kind of interest with their temptation to lie by reason of that, being able to give evidence, and a complete reversal of that rationale and, in particular, the detailed provision made in varying ways, but certainly so as to show something that my friend might call a “trend”, with respect to the giving of evidence that might incriminate the spouse.

Until the 20th century the history can be described as, at first, the cautious step of not even bestowing competence in crime, then to variants that need not trouble us concerning the possibility that some crimes perhaps involving the wife as victim would be exceptional, the schedule statute, the schedule offences that one sees in the statutes and then finally, the competence regardless of the will of the accused.  Now, that shows the three concepts at play; competence or lack thereof, compellability or lack thereof and veto by the person about whom the evidence would be given or lack thereof.

GUMMOW J:   Then more recently, in some Australian jurisdictions, compellability as well, at least in curial proceedings.

MR WALKER:   Yes, is the answer, let me develop it in just one moment.  The position, in our submission, is, in fact, clear notwithstanding its origins might be described as obscure.  Is that a state of affairs which is either alarming, puzzling or unusual in relation to the common law, and the answer is no.

CRENNAN J:   One point might be - it is not so much that the origins are obscure but it is like the question of how many swallows does it take to make a summer.  In other words, what do you really make of the dicta, such as they are, where you could say that there is a firm statement made in the 19th century coupled with what happens in relation to the statutes.  I suppose, does it all add up to what you are asserting is the common law privilege or, in fact, you describe it in even different language as a fundamental right of some sort?

MR WALKER:   They are different steps and I have to take both for the reasons my friend points out and that is common ground between us.

KIEFEL J:   At each point, I think, when the cases are talking about a witness would not be compelled, you have to somehow make that equate to the personal right that you are asserting and therein lies another distinction ‑ ‑ ‑

MR WALKER:   Your Honours will have noted that I have used from time to time a compendious phrase “privilege or immunity or immunity or privilege”.  I should say that I do need to deal with this notion of right, if there be any relevant distinction.  I am ultimately going to submit there is not, but I accept that I have to deal with it in the language of right as well.  In fact, all three words are found, just as the word “rule” and the word “principle” is also found.

KIEFEL J:   What I am trying to say is that in the cases that we are trying to deal with, particularly the older cases, just because the court says that a witness might not be compelled may not amount to a recognition of a right, privilege or immunity residing in that person of the kind that is now being put forward.  The question about whether or not to compel the witness may have come from a viewpoint of the court of exercising its power to control a witness in the context of the incompetence as the first step and exception from incompetence, but the court is still controlling its own processes.  It may not have had in mind at all something in the nature of a right that might be put forward.  It might have been, at most, a request by a witness.  There are still all these sorts of problems to be addressed.

MR WALKER:   Yes, I am going to argue to the contrary of what your Honour has suggested, that the better reading is that what was in question was the power ultimately of the State manifested by direction from the judge or the issue of process such as a subpoena or summons, and the contempt sanction against those who had refused to answer questions permitted to be put by the court.  Now, that last phrase certainly does bring up this notion of a court’s control of proceedings before it, but here there is nothing in the nature of indulgence by a judge saying, “I can make you, but because you are weeping I will not”.

Now, I am not suggesting there is anything wrong with a judge taking that position, though there may, of course, with parties in very sharp contest that may not be able to rest there.  But, no, these authorities are not – and take Mr Justice Bayley in All Saints in particular, they are not about indulgence, they are about that which is the right – and I will throw another word in – or the liberty unconstrained by the sanction of punishment to say, “No, I will not answer that” or sometimes, “I will not get into the box at all”.

GUMMOW J:   Are they assuming some status flowing from marriage?

MR WALKER:   Yes, they are.

GUMMOW J:   They are not assuming some de facto status, are they?

MR WALKER:   No.

GUMMOW J:   There were plenty of void marriages around in the 19th century, as we know, from the private international law cases.

MR WALKER:   Yes.  Your Honours, the passages from Wigmore ‑ ‑ ‑

GUMMOW J:   It would not matter that these people had been living together for 30 years, notwithstanding that something had gone wrong earlier and there was a bigamy.

MR WALKER:   Your Honours, there are mariages blancs.  That is not the point.  To put it crudely, a man might rely on his wife being incompetent but not his mistresses.  They might know a lot more incriminating about him.

If I may so, with great respect, the repeated entertainment and enjoyment of reading the Wigmore passages partly at least derives from the rhetorical power of his excoriation of what might be called, in either late 19th century or very early 20th century, a logical view of things, a progressive view of things, the nonsense or nonsensical ramifications of the positions taken whereby, for example, one has the conundrum of the bigamy case where the offence is actually created by the second purported marriage but because it obviously could not be effected, she was not incompetent.  In our submission, it is status.  It cannot be relationship in what I am going to call a real individuated described sense.  It is not whether it is a good relationship, a warm one, or anything else.

GUMMOW J:   But if you say insofar as it rests on status, the nature of the status has changed profoundly since 1857, which is one of the things that run on against you.

MR WALKER:   Quite so.  I understand that and our short answer is, but not so as to even touch any of the essential features of the status which provide the statements which are forceful for their brevity, which are comprehensive for their apparent universality made by the judges in question concerning the fundamental importance of not posing this threat to marriages generally, never mandating an investigation into the particular marriage.  Now, we do know that the legislatures who originally enacted and then took up the uniform Evidence Act in this country have interestingly mandated just such inquiry.  I will come to that in due course.

FRENCH CJ:   We might go to that after lunch, Mr Walker.

MR WALKER:   If it please the Court.

FRENCH CJ:   Adjourn till 2.15 pm.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, before coming to the cases that we say speak clearly on the existence at common law of the privilege, may I note this about the two sources of criticism said, we think, to be if not the foundation, certainly the largest expression of the difficulty or obscurity or lack of clarity which it is said by the appellant characterises the supposed common law principle.  Now, we contest that there is any such lack of clarity. 

I refer, of course, in date order to Bentham and Wigmore and it is no doubt true that there are striking and sharply expressed criticisms, root and branch, in Bentham’s case and wellnigh in Wigmore’s case, about the supposed privilege, but with all the greatest respect properly to be paid to both of those writers, they do not make the common law.  Their commentary upon it, their criticisms of it, in particular Bentham, no doubt inspired some generations of legislators, but they do not make the common law.

HEYDON J:   They establish the common law by attacking.  If it takes 100 pages to demonstrate the fallacy of something, it rather shows that it exists.

MR WALKER:   Your Honour anticipates my next point.  Their target was something that they perceived to be, particularly in Bentham’s case, a real phenomenon standing in the way of what, as a matter of policy and urging on the part of that thinker, should have been a more favoured or strongly expressed preference for the ascertainment of truth, et cetera.  I do not mean by that to be dismissive of the values involved in the policy debate but to point out it was a policy debate. 

Insofar as, however, the criticisms justly refer to what might be called the fading or the loss of vigour as some of the rationales or supposed bases of the privilege I have said what I wanted to say both in writing and in address before the luncheon adjournment.  I should add, however, a more recent writer, with respect, not in the same orbit but Professor Stone’s manuscript which was revised by Justice Wells and published in 1991 “Evidence - Its History and Policies” includes a discussion on these points at the passage from pages 606 to 610 which we have copied for your Honours.  I will not, of course, take you in detail to it.  It suffices to note that there are in that discussions of the interrelationship and distinction between questions of competence and compellability and, in particular, there is discussion of the historical evolution already written before your Honours and the subject of my friend’s and my address concerning the role for some time of what I call a veto in a spouse to prevent the other spouse testifying against him or her.

At the foot of page 606 and on the top of page 607 – I will not read it – there is a passage in which Professor Stone expresses with moderation disagreement with at least the vehemence of Bentham and Wigmore and refers to a matter that I was addressing in answering one of Justice Gummow’s questions just before the break, namely, at common law it does not have to do with what Professor Stone calls a concrete family by which I would understand it means an actual describable set of individuals related by family ties, but to what he calls the idea of the family which society at large has built up.

It may or may not be significant, it does not matter for our present purposes, that he uses the expression “family” rather than “marriage”.  But I do have to deal with the question that, for example, in quite a different context this Court addressed in Calverley v Green in relation to presumption of advancement where the common law said one thing about marriage and the question was did it now – that is, at that time – also say something about de facto relationships.

In our submission, there is continued currency in the common law of that which we say the authorities through to and including 2005 show - there is continued currency notwithstanding so many people live in marriage‑like relationships which are not marriage, that is, if I can butt up against section 78B of the Judiciary Act not marriage within the meaning of the Constitution.

However, in our submission the very fact that there are statutes to deal with that position just as in Calverley v Green the Family Law Act dealt specially with married persons’ properties differently from the way in which they were dealt with otherwise rather underscores than removes the distinction between relationships which have psychological and social features in common but are not the same.

It is for those reasons, in our submission, that there is in fact continued utility in the common law using something which is plain status, that is, plain to be seen status. It remains, with great respect, the legislators in question, it remains to be seen just how invidious voir dire decisions will have to be under section 18 of the 1995 uniform Evidence Act where particular persons and particular relationships are required to be gone into and, furthermore, to be gone into against the hypothesis of evidence being given of an incriminating kind. 

I refer here in the bundle of material my friends gave your Honours to section 18 of the uniform Act, subsection (6) which removes any right, so it abolishes a right to claim a privilege to assert an immunity and in its place it substitutes a right to make an objection and obtain, no doubt, and argue for, a ruling under subsection (6). Now, I get a number of matters out of this for our investigation of what the common law, what is the policy of the law that informs that for present purposes today in Australia, as follows. It can be seen that there has not been a wholesale departure of statute law in what might be called a pattern – we would eschew the word “trend” – a pattern that shows that a value, given effect to as a policy of the law on the common law, has fallen into either disrepute or complete disuse.

Rather, it could be seen that the value of concern for the rupture or tension in relation to the marital relationship, in our submission, is perceived by the Parliament, considering curial restrictions and liberties of giving evidence, and one sees that in the balance to be struck under subsection (6). The fact that the Parliament and the Parliaments who followed the Commonwealth Parliament, in subsection (6) of section 18, does make it, in Professor Stone’s words, a question for a concrete family. That does not mean that the value underlying the concern, namely, that there is a relationship of a kind which it is accepted, for what Stone calls socio‑psychological reasons, to have an importance and a claim to regard in the policy of the law, does not mean that is being abolished. To the contrary, this is a manifestation of an enduring concern for it.

FRENCH CJ:   What do you say about the statement at 607 that:

The privilege only exists where the spouse is charged with crime in the very proceeding in which the evidence is sought to be used.

MR WALKER:   It does not appear that historically that is accurate.  You have already seen the references in the authorities we have drawn to attention to the privilege being available when the accused was someone else and questions were asked about the husband though he not be the accused.  So we say that is not strictly correct historically.

KIEFEL J:   Could not that, though, explain the view of competence in All Saints Case?  She was competent because she was giving evidence in the pauper’s proceedings, not in proceedings against the husband for bigamy.

MR WALKER:   Quite so, absolutely, and that is how before the 1853, before the competence question was dealt with, as it were, across the board or began to be dealt with across the board, that is how it could arise from time to time.  Perhaps I can come directly to All Saints now, it is the one I wanted to come to next.  All Saints itself, however, shows that there is no necessity for the husband to be a criminal accused but criminating is more than simply giving evidence in a proceeding held for the purpose of adjudicating guilt of a charged offence.

In fact, there was a question asked by Justice Kiefel of my learned friend concerning whether or not there was a possibility that the husband would be charged in All Saints. It is not clear beyond doubt. Sorry, the citation is (1817) 6 M & S 194, 105 ER 1215. Could I take you first to ‑ ‑ ‑

GUMMOW J:   What is the nature of the proceeding in that case?

MR WALKER:   The proceeding is ‑ ‑ ‑

GUMMOW J:   She had been removed from the parish.

MR WALKER:   Yes.  It is a question of which parish and whose funds will be ‑ ‑ ‑

GUMMOW J:   Who had to look after her?

MR WALKER:   ‑ ‑ ‑ will be responsible for her and that turned upon whose, if anyone’s, wife she was.

GUMMOW J:   Is this under Elizabethan Poor Law?  What is the source of responsibility of a parish?

MR WALKER:   Yes, your Honour it is an aspect of that scheme of legislation.  I cannot find any discussion of anything statutory.

CRENNAN J:   She may have fallen on the parish of her husband, as it were.

MR WALKER:   Yes.  That is what made it relevant to determine whose husband ‑ ‑ ‑

CRENNAN J:   Yes, that is right.

KIEFEL J:   It is a question of whether she is entitled to return to a settlement which might have been affected by marriage.  There is a reference to her maiden settlement in the headnote.

MR WALKER:   The order was for the removal of – if I may use the first names – Esther from Cheltenham to All Saints.  So she had been removed, as it were, from being a call on the funds of Cheltenham as I understand the position, your Honours.  Now, your Honours have been taken to the passage that we claim as authority.  I will not stay to read that again.  The passage I had in mind when pursuing the question that Justice Kiefel had asked my learned friend is found at the top of 1218 in the nominate report page 201:

But as she did not object –

Now, that means did not object to particular questions – you see that from the top of the page –

I think there was no objection –

He is using the word quite differently, he means no problem in law –

arising out of the policy of the law, because by possibility her evidence might be the means of furnishing information, and might lead to enquiry, and perhaps to the obtaining of evidence against her husband.  It is no objection to the information that it has been furnished by the wife.

It is the kind of thing that we might call nowadays derivative use.  At that point his Lordship is quite plainly contemplating with equanimity that a wife who has chosen to answer a question to which she could have objected, an objection which he would have upheld, may provide information and thereafter it will not lie in the mouth of the husband who finds himself at the wrong end of future process that that information was got in that fashion.  It is her right to object, she did not object, she gave the information, he cannot complain, it will not invalidate or vitiate any future proceeding against him based upon that; there will be no objection to that use of the information.  That is how we read that passage.

Could I draw to attention Mr Justice Abbott’s nominate report page 203 at the foot of English Reports 1218 where his Lordship says – and this appears to have been influential on this part of the case in his Lordship’s reasons:

Her evidence upon this occasion can never be received against her husband, nor can the decision of the sessions be used against him.

I interpolate that is not quite, of course, derivative use – his Lordship goes on –

They can found neither a charge nor the evidence of any charge against him.

Perhaps that is tending to derivative use –

So that it may properly be said of her evidence that it has not any tendency to criminate him, provided that expression be understood with the limitation which I affix to it, that is, to criminate him in the course of some proceeding in which a crime is imputed to him.

Now, it is to be recalled that what Mr Justice Bayley had decided, of course, in the passage that has been oft quoted, was that:

the protection of the Court –

would be available –

on the ground that her answer to the question put to her might criminate her husband -

Their Lordships are using the words differently as between each of their Lordships.  Mr Justice Bayley is obviously using it in the broader sense in a way that we would understand it, both in and out of court, when a spouse is not himself or herself an accused.

CRENNAN J:   This is, of course, in the days when there was the offence of vagrancy, so you had the itinerant poor moving between parishes and so on, and the offence being committed may well have been leaving the wife charged to a particular parish.

MR WALKER:   Yes, quite.  You will have seen that in the statement of the facts in nominate report page 195 at the top of page 1216, yes.  Your Honours, before we come then to the beginning of the 20th century, as has been observed in matters raised by your Honours with my learned friend this morning, there was the exceedingly large historical pivot of the statutes that I will call the Married Women’s Property Acts.  The 1882 consolidation and amendment of that is the one that Professor Stone referred to in the passage to which I gave you the compendious reference, and simply to remind your Honours, quite apart from what was said in relation to the dignity of property accorded by these statutes, there are quite specific provisions referred to by Professor Stone.

I draw to attention sections 12 and 16, and have supplied a copy, limited accordingly, and in particular, in section 12, I will not read it at any length, it is after all not the common law, you see one of the very important provisions in relation to competence, including bars on taking criminal proceedings, by private information presumably, in the proviso of section 12, and what might be called a vice versa provision in section 16.  So those were developments, if I may put it this way, of a social kind having produced legislation as well as of concerns based upon the so‑called necessity of the matter in relation to common law exceptions to the competence rule, which set the stage for what came about when the flurry of statutes to which your Honours’ attention have been draw, both in England and Wales, and in the Australian colonies, brought about a situation where there was, if not universal, approaching universal competence for spouses, and also – as well as for parties of course – and the question arose of compellability, sometimes dealt with in statutory fashion, and sometimes in provisions, as I noted before the adjournment, which referred to the necessity or not for the consent of the spouse against whom, or about whom, the evidence would be led.

It means that the stage was set for a common law decision to be made.  Now, adopting what my learned friend says and continuing what my learned friend put in relation to the declaratory approach to finding the common law it was because, as it were, the blanket of lack of competence is removed that questions arose not for the first time but more broadly and in different situations from what had been considered in the past concerning compellability.  The way in which we put it with the modification we have noted in paragraph 2 of our three‑paged outline of our written submission is that there is an underlying value.  We do accept the stricture expressed against us in our learned friend’s written submissions.

Obviously, there is no question of right involved in not being competent to give evidence.  However relieved one might be not to be competent it would not be, usually, assistance to analysis to call it a right.  Nonetheless, there are similar or perhaps the identical value, a concern for rupture of or tension in a relationship which is itself valued and which is recognised by a status rather than by ad hoc exploration of individual people.  And, so, we come to Riddle. We have been responsible, if not alone, for describing what Sir Samuel and his brothers wrote in that case as obiter. When I come to the end of my remarks upon the decision which is (1911) 12 CLR 622 I will be putting that it is either not obiter or it is of a most weighty kind, given the role it played in the decision.

This is, of course, a question of statutory interpretation and it arose in a rather odd way which I think is no longer current on the face of any current statutes but, in our submission, it plainly involved, and according to their Honours, required an understanding of the common law that existed not only when they were considering the position but had existed at the time of the New South Wales decision R v Stocks 5 SR 628 referred to at the beginning at Chief Justice Griffith’s reasons starting at page 625.  The statutory text is stated – the one which raises the question for the Court’s consideration – was stated by the Chief Justice at the foot of 625 to the top of 627 and immediately his Honour says that that involves the correctness of Stocks and that that – that is, the correctness of Stocks – depends entirely upon the construction of the 1900 New South Wales statute:

“Every accused person in a criminal proceeding –

so there is the party –

and the husband or wife of such person, shall be competent, –

a reversal of the common law –

but not compellable, to give evidence in such proceeding in every Court.”

Having noted there “prima facie unambiguous,” it is then that statements as of the common law in our submission become part of the ratio because he is dealing with an argument needing to be dealt with and disposed of for his decision, namely, how do those provisions stand to be interpreted bearing in mind the common law as it stood immediately beforehand.  That goes back to the 1898 Act.  Your Honours see in particular that the general rule clearly modelled on what was thought to be the common law was that competence involved compellability but subject to section 7, again reflecting the common law apparently having exceptions to that as well.  Then one has:

husband or wife of any such accused, shall be compellable.

Then there was the proviso which caused all the difficulty:

“Provided that this section shall not apply to any person who, but for this Act, would be at common law or by any Act or Imperial Act compellable to give evidence in such proceeding.”

His Honour then, in a passage that has been sufficiently covered from me not to deal in any more detail with it, canvassed authorities being those which have been raised with your Honours in writing and in address and by the time one comes to page 629 his Honour is prepared to conclude that those are the authorities, as my learned friend quoted, he adopts the better opinion as stated by Judge Taylor.  I cannot forebear the wit of the parentheses that appears in the next few lines of Sir Samuel’s reasons.  It is apposite to the argument today because if the common law can be found, then the common law is as it is found.  As it happens, we submit there is not an obscurity, at least not least because Sir Samuel delivered these reasons.  It is not enough to say that something does not exist in the common law because it may involve careful consideration of disparate threads of jurisprudence in order to discern it. 

Your Honours, could I then show you without trying not repeat things already drawn to attention top of page 630.  The passage that my learned friend referred to with respect to a doubt is not a doubt in or of the judges but a doubt supposed to be resolved in and by the legislature.  It is recorded the antipodean solution was different from the one in England.  His Honour concludes the reasoning that Stocks was wrong because the premise was wrong – the logic thereafter the premise was right but the premise was wrong and, in our submission, this is ratio not obiter, and I apologise for having called it so. 

In our submission, there is nothing to the contrary of that in Mr Justice Barton but I am bound, given what I have said about doubtfulness in the common law, to draw your Honours’ attention to the passage you find at the top of page 633.  As a whole, including the passage I should draw to your attention, it reads:

I cannot find it laid down anywhere that the spouse is not only allowable to testify –

that is competent –

but compellable.  At the lowest, then, it was very doubtful whether at common law the wife in circumstances of this kind was compellable to testify, and, to that extent –

et cetera.  That is not as clear as the Chief Justice.  Mr Justice O’Connor at page 639 in the passage to which Justice Kiefel gave reference during my friend’s address could I draw to attention about point 5 on that page:

There is no statement of the common law –

in relation to the exception as his Honour calls it –

in any judgment or in any text-book which states it as extending farther than to render the wife a competent witness, or, as it is put in some authorities, an admissible witness.  No authority can be found which extends the exception so far as to make the wife a compellable as well as a competent witness

et cetera.  Then the general principle is referred to –

That certainly does not follow.  In the case of husband and wife it is not at all clear that the necessity which is the foundation of the exception in such cases goes beyond securing to the wife the protection of the law against her husband’s criminal violence where it is her wish to avail herself of the protection.

There are references to a case in England.  In our submission, it is clear that at the heart of their Honours’ reasoning was a careful and decided – that is, not doubtful – decision that there had been error made concerning a very important premise in reading a statute that affects matters covered by the common law, namely, what was the common law when the enactment in question was made.  That, in our submission  ‑ ‑ ‑

KIEFEL J:   Justice O’Connor goes on at the top of page 640 to say:

the authorities will allow, the proposition cannot be expressed more widely than this:—Husbands and wives in such cases are competent witnesses against each other, but it is doubtful whether they are compellable.

That is the extent to which his Honour thinks the law stands.

MR WALKER:   Yes, your Honour.

KIEFEL J:   Just in terms of the level of certainty we are dealing with, I suppose, Mr Walker.

MR WALKER:   No, it does not stay there.  The beginning of that sentence, your Honour, is that this is a sentence for the purpose of argument.  Putting the position at common law in the most favourable way to the view of the learned judges – that is, the learned judges in Stocks – that the “authorities will allow, the proposition cannot be expressed more widely than this” is not what his Honour is embracing.  That is what he is saying - that is the most favourable you can get from the authorities, but that is “impossible to uphold the reasoning of the learned Judges . . . in that condition of the common law”.

In any event, in our submission, the reasons taken as a whole, including the other parts of his Honour’s judgment, do not permit one to be left in doubt as to the compellability of the spouse.  He, she, was not compellable, hence the reason, hence the decision of the case.  That case and its reasoning was apparently either not available to or was not drawn to the attention of the law lords who decided Leach in 1912, a circumstance which was regretted decades later by Lord Salmon in Hoskyn.  Leach is [1912] AC 305, and again your Honours have been taken to the key passages.

It is, in our submission, of no significance, to pick up a remark against us in the written reply to us, to fasten upon particular expressions in the argument of counsel for the appellant as if they contain material alien to the reasoning of the judges.  First of all, and in general terms, the argument is reported so as to allow readers to understand what the issues in the case were and what the arguments calling for determination, whether by being ignored, out of charity or being determined, were.  We of course do not rely upon anything in the words of counsel as being authoritative, but they certainly enable one to understand the issue or controversy which was debated and therefore probably the usual case was decided.

Certainly compellability, in the sense of could you refuse, could you choose not to give evidence, could you choose not to answer, was the issue in the case.  See counsel for the appellant at the top of page 306 and counsel for the respondent an inch and a half down on page 308.  Obviously enough, in the speeches we call in aid Leach, not merely for the clarity of the ex tempore decision in favour of what we call the privilege, but also the language, the vehemence or emphasis that we call in aid as showing that it has the fundamental character necessary for the approach to statutory interpretation that my friend has assembled under the rubric “the principle of legality”.  Hence, one has the Lord Chancellor, page 309, an inch into his reasons, referring to:

a fundamental and old principle . . . that you ought not to compel a wife to give evidence against her husband in matters of a criminal kind.

Then a statement that may be a little more difficult to fit with the policy of law:

It is not our duty to‑day to consider consequences at all.

On page 310 the relation between competence and compellability is referred to by the Lord Chancellor at the beginning of that first full paragraph on the page:

if it had not been for that 4th section –

which has the expression “may be called without consent of the person charged”, his Lordship said:

the wife could not have been allowed to give evidence –

That is the competence question overturned by section 4 -

and the result of that –

that is, of not being competent –

was that the wife could not have been compelled to do so –

The greater comprehending the lesser -

and was protected against compulsion.

Interesting language, perhaps suggesting why some may see something in the nature of a right in a lack of competence.  Then his Lordship refers to “The difference between leave to give” competence and compulsion, compellability, and then in the last sentence of his Lordship’s reasons there is as his core reasoning the requirement for –

a definite change of the law in this respect, definitely stated in an Act of Parliament, before the right of this woman can be affected –

In our submission, it would not be appropriate to convict his Lordship of loose language when using that language of right.  The Earl of Halsbury dealt in similar, and perhaps even more emphatic terms, and in a phrase that I am sure, had the facts been different, would have been extended to the expectation of English women in relation to husbands, not only English men and wives, makes the normative statement, which colloquially is a fair way to give expression to what might be called the policy of the law, and the language is striking:

a wife ought not to be allowed –

et cetera.  That is a language of competence, but it is carried forward in the next paragraph, and then the matter is described as of “that supreme importance”.  In the next paragraph the question of finding in the Act of Parliament something that definitely says you may compel her to give evidence, his Lordship’s language is:

because since the foundations of the common law ‑

I hope no one on the Bench will ask me when that was –

it has been recognized that that is contrary to the course of the law.”

That imaginary dialogue, perhaps, was a little fast and loose with the history.  His Lordship went on:

If you want to alter the law which has lasted for centuries and which is almost ingrained in the English Constitution –

I do not have to associate myself with the full force of that language which, with great respect, borders on Faustian, nonetheless to show that it is ‑ ‑ ‑

GUMMOW J:   These were unreserved speeches, were they not? 

MR WALKER:   Extempore.

GUMMOW J:   It was all over and done with on 26 February 1912.

MR WALKER:   As your Honour would expect, my response to that is, such was the clarity of the issue and the imminent nature of the principles being pronounced in the hallowed halls that it did not take time to think further.

KIEFEL J:   Unimpeded as they were by any further research.

MR WALKER:   Yes.

HEYDON J:   Mr Justice Hamilton, of course, never delivered a reserve judgment in his celebrated three years in the commercial list in London.  Sir George Jessel hardly ever delivered a reserve judgment.  There is nothing wrong with extempore judgments.

MR WALKER:   No.

GUMMOW J:   However, were they referred to anything else other than Lush’s Law of Husband and Wife, the top of page 306?

MR WALKER:   No, it is uncluttered by citation, your Honour.

GUMMOW J:   Does anyone have that text, Lush’s Law of Husband and Wife, referred to in argument at 306?

MR WALKER:   No, your Honour.

GUMMOW J:   Well, what did Firebrass v Pennant decide, I wonder?  Did you see ‑ ‑ ‑

MR WALKER:   That was for the proposition that ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ what had been put to their Lordships ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ they are one person in law.

GUMMOW J:   Yes, exactly.

MR WALKER:   Yes.

GUMMOW J:   That is what had been put to them, which they accepted.

MR WALKER:   Well, when your Honour says they accepted, they have expressed their reasons.  It is certainly true that the further back in time you go the more prominent is the two souls in one flesh notion, but, with respect, that does not show that that is the reasoning which in 1912 was being regarded as underlying the importance of maintaining until definitely abrogated that which had been so long established.  Everything that is long established is likely to have a rationale which has become outmoded, quaint to some eyes, fiercely protected by a minority rather than assumed by a majority after the lapse of some centuries.  However, not only because of stare decisis but also because of the value that stare decisis serves, namely, the stability of the slower moving common law compared to the mercurial statute law, it is our submission important and a merit in favour of pronouncing the rule to be as the judge has thought it was in 1911 in this country, in 1912 in England and Wales, as they said it had been for a long time.

KIEFEL J:   What is it to be inferred from Leach as the basis for the rule or privilege at common law, apart from the fact that it has always been thus?

MR WALKER:   No, it is much more than that.  It is the repugnance of the position.  I was about to come to that next passage.  The Earl of Halsbury puts it in this fashion and it is, with respect, captured in an infinite variety of phrases, including by that which Professor Stone used, but at page 311 at about point 6, again with one of these imagined statements, his Lordship says:

To call a wife against her husband is a thing that cannot be heard of –

In other words, it is repugnant to the expectations of people in society.  Now, one either individually agrees or disagrees with the proposition, Wigmore did not agree with it.

KIEFEL J:   I think he called it sentimental, did he not?

MR WALKER:   Sentimental, exactly.  One man’s sentiment is another man’s value.  With respect, the purpose of criticism by someone who is not making the common law but seeking to influence it from off the Bench is quite different from the statements of reasoning on the Bench.

KIEFEL J:   That is 1912.  What do we say now about this idea of repugnance?  It is obviously not repugnant in our society to have people called and compelled, or at least for them to be required to satisfy ‑ ‑ ‑

MR WALKER:   With great respect, your Honour has no sure foundation for that statement ‑ ‑ ‑

KIEFEL J:   Apart from the evidentiary statutes.

MR WALKER:   ‑ ‑ ‑ if it depends upon legislation.  Nothing would be more dangerous than to take lawyer’s law ‑ ‑ ‑

KIEFEL J:   Well, you say that the legislation is not reflective of the societal view?

MR WALKER:   I absolutely say that.  Of course, it is not reflective of societal view – neither the Budget Acts nor the Crimes Act.  Some of the provisions of both would be, but to say that they reflect societal view is to make a statement about the relation of people of whom a subset of voters, of whom a further subset voted for the party in question, with whom a further subset had their decisions influenced by the possibility of the legislation in question being enacted in the form it was enacted, the representative theory cannot be taken so far.

KIEFEL J:   I take the point.  Legislation is made with other purposes in mind, but the 1912 statements are the statements of ‑ ‑ ‑

MR WALKER:   Judges, as judges – also legislators in that country, but they were speaking as judges.

KIEFEL J:   Men and a particular age might also be something that might be attributed to them.

MR WALKER:   I accept they are all men and they are of another age, although ‑ ‑ ‑

KIEFEL J:   They could not help that and there were some very good lawyers too.

MR WALKER:   Men and lawyers, but 1912 – if I may be so bold – ought not to be seen as the remote past in the common law concerning the giving of evidence, the compelling of evidence, criminal process, inquisitorial procedure out of court and family relations, particularly that of spouses.

GUMMOW J:   Family relations?  This is a case about incest.

MR WALKER:   Your Honour, that only really makes the point.  Incest is a crime precisely because of a view about family relations.

GUMMOW J:   This privilege seems to have placed the interests of the spouses above that of the child.

MR WALKER:   Your Honour, that is one of the constant themes of those who have inveighed against the common law, and with real success in terms of legislative reform, yes.  It ought not to be a source of protection.  That is one of the reasons why the shift from compulsion to compellability is important.

GUMMOW J:   It might have shocked Lord Halsbury in one direction and it might have shocked a lot of other people in another direction.

MR WALKER:   Yes, is the short answer to that.  I am going to come to a passage in Lord Wilberforce in Hoskyn which really puts it exactly thus.  With respect, all the less reason for this Court to, as it were, choose sides in something which has a history of something established in vehement terms and a legislature which is well capable of doing something about it if there is a legislative judgment that can and should be made.

KIEFEL J:   I know that you are going to take us to the next House of Lords decision, but in the meantime, it is not that far distant from 1912.  Is it 1934 that Leach is not followed?

MR WALKER:   Yes.

KIEFEL J:   The scene is set for many years – 30 or 40 years – for an understanding which is contrary to Leach.

MR WALKER:   Quite, and that is all thoroughly then ploughed over in 1979, and error of a radical kind detected in 1931 or 1934.

KIEFEL J:   Well, you were going to take us there.

MR WALKER:   Yes, I am going to.  Your Honours, I should, of course, draw to your attention the language of Lord Atkinson.  In our submission, no doubt pithy, but the proposition that something is deep seated at the common law of this country is, in our submission, a description of something which is fundamental in the sense necessary for the statutory interpretation method in question.  I should say, pithy and none the worse for that. 

Your Honours, not jumping over the 1930s but in order to come to the end of that story, can I now come to Hoskyn v Metropolitan Police Commission [1979] AC 474 where, as Justice Kiefel has pointed out a return was made to what had been temporarily the quietus of Leach administered in Lapworth [1931] 1 KB 117.

KIEFEL J:   Then again I think restated by Lord Goddard in Algar [1954] 1 QB 279.

MR WALKER:   That is right.  Unlike in Leach argument in Hoskyn – one sees this at 479, letter D – drew to attention the Australian and Canadian cases starting with Riddle.  Can I come directly to Lord Wilberforce’s speech.  In terms of the mid-19th century developments to which we have referred, could I draw to attention the observation his Lordship makes at 483 just above letter H with respect to the law reform proposal that had been made, that is:

competent and compellable . . . inferentially accepting that the law was otherwise.

Page 484, broad generalisations are made by his Lordship and as such between letters C and D and I draw to attention his Lordship’s reference to:

the repugnance likely to be felt by the public seeing one spouse testifying against the other.

One of those statements individually contestable, but, in our submission, deriving meaning from (a) being made and (b) being repeated by judges over a long stretch of time transcending one election campaign, et cetera. 

There are references then to Wigmore’s criticisms, upon which I need not dwell.  Page 485, letter D, one sees his Lordship referring to the question of compellability emerging to be dealt with, and then there are citations which are important, but your Honours already have, and I will not go over them again.  Page 486, letter B, his Lordship turns to the word and concept of “compellability”, and records the rejection of “competent and therefore compellable” with reference to the curious relationship between section 2 of the 1851 Act which positively made parties and spouses competent and compellable, but in section 3 in criminal proceedings said they were neither competent nor compellable.

His Lordship refers to the course of legislation to which both parties before your Honours have drawn attention, and then at the foot of page 486 noted Leach as what his Lordship calls “the important case”.  Page 487, letters F to G is a passage which, with great respect, we would invite your Honours to doubt as to its correctness in this sense.  It said in Leach:

it is certain that their Lordships were dealing with a point of statutory construction . . . that they were not called upon to pronounce upon the position at common law, and that anything they said, expressly or by implication, as to the latter would be outside what they were called on to decide.

That would appear, with respect, to be at odds with an understanding adumbrated by this Court for example in Daniels including, with respect, to the criticism of the approach taken in Pyneboard by Justice Brennan, that it is part and parcel of the statutory interpretation exercise to consider the question of the state of the common law in order to understand the meaning and effect of the words of the statute.  It is, I hope, not much more than a quibble, but it is of fundamental importance.  It does not affect the cogency of Lord Wilberforce’s reasons, with respect, but it is a difference between what his Lordship saw as the role of the common law in what Leach had decided and how we would put it.  It is similar to the way in which I have changed our position concerning Riddle being obiter. 

That whole passage starting at 487 F, which I will not read aloud, is, in our submission, a passage which, again, using the rhetorical device of imagined words by, in this case, the law lords from 1912, transposed to 1979, it concludes with this:

the considerations which led the law to treat her as competent do not in any way weaken the force of the principle we have stated that a wife ought not to be forced into the witness box, a principle of general application and fundamental importance.

That is what Lord Wilberforce was saying about it, imagining himself back into 1912, but their Lordships into 1979 as well, a useful and striking way of demonstrating that the policy of the law is to be perceived more by long‑run, long duration observations than by snapshots informed by reactions to particular statutes.

Then begins the demolition with respect of Lapworth, including by identification of what his Lordship calls the “complete non sequitur” identified and demolished as such by letter D on page 488.  I will not read the whole of it but it is, with respect, compelling.  The notion of repugnancy is further developed in refutation of Lapworth.  In particular I draw to attention the passage on page 488 between lines E to F:

This is because of the identity of interest between husband and wife and because to allow her to give evidence would give rise to discord and to perjury and would be, to ordinary people, repugnant.

The identity of interest there cannot be treated as being either the one flesh or the control of the property point, this is interest in a more modern sense, the, what might be called without sentimentality, the hand‑in‑hand approach of life partners, the notion of driving a wedge between which is, we submit, to ordinary people repugnant. 

Then Leach was rehabilitated, 488G to H.  It is said at the foot of page 488 that Riddle was obiter.  I have said what I wanted to say about that.  Viscount Dilhorne is to the same effect, including by reference to Riddle, see page 494D.  Lord Salmon - and can I draw to attention particularly page 495 just between letters F and G to the bottom of that page and over where his Lordship canvasses the various possibilities from enthusiastic willingness to extreme reluctance in the midst of which it is said:

It seems to me altogether inconsistent with the common law’s attitude towards marriage that it should compel such a wife to give evidence against her husband and thereby probably destroy the marriage.  It is indeed remarkable that if a wife were a compellable witness, no single authority to that effect (prior to Rex v. Lapworth [1931] 1 K.B. 117) has been drawn to the attention of this House . . . It is perhaps worth pointing out that at common law, spouses are not the only persons who are competent but not compellable . . . the common law’s regard for the comity of nations. There is however no reason to believe that it has any less regard for the institution of marriage and the special relationship between husband and wife.

GUMMOW J:   Do we know who was sitting in the Court of Criminal Appeal in Leach? It is reported in 7 Cr App R 84.

MR WALKER:   I will just get that turned up, your Honour.  Now, speaking in 1979, true, in England, but a country which would be regarded as very germane to the position in Australia concerning marriage and the effect of compelled incrimination, Lord Salmon makes again, we would submit at the appropriate time interval, approval of not something that was regarded as outmoded but was regarded by his Lordship as being in accordance with a longstanding policy of the law likely to display longevity given the social institution in question, namely, marriage and hence, the encomium to Mr Justice Bayley that you see at 496E.  In Leach the Bench was the Chief Justice, Lord Alverstone and Justices Hamilton and Bankes.

In the second half of page 497 of the 1979 Appeals Cases, quoting from Leach, a somewhat different approach to the role of the statement of common law was taken by Lord Salmon compared to the comment that I invited your Honours to doubt in Lord Wilberforce’s speech.  Lord Wilberforce was 487F.  Here we are at 497G to H and Lord Salmon saying:

Although their Lordships were only construing a statute, their ratio decidendi was based largely on their opinion as to the effect of the common law and therefore cannot in my view be regarded as merely obiter dicta.

With great respect, we adopt and urge that as well in relation to Riddle.  His Lordship then went on to describe Leach’s Case:

as a binding authority for the proposition that a wife can never be a compellable witness against her husband unless expressly made so by statute.

That, in our submission, again, is drawing on material which very deliberately arches over at least two centuries in just the way one would expect for a fundamental common law principle.  I am not saying that the common law is beyond childbearing in the sense of something may become fundamental which presently exists but is not seen as fundamental, or that something that presently exists may not come into existence in the future and be fundamental, but it has to be said the chances are getting against it bearing in mind the activities of parliaments and the democratic impulse to allow policy choices to be framed mostly by legislators rather than by judges.

GUMMOW J:   Now this phrase “competent and compellable” is rather tantalising, but what do you say about the argument put in Hoskyn at page 481, down at letter G. To understand it, you have to understand the rules of evidence and equity in the common law. One will have to look at that I suspect ‑ ‑ ‑

MR WALKER:   Your Honours have had submissions pressed upon you in writing and in addresses which have looked to the 1851 and 1853 Acts and the matters Mr Du Cann is referring to at 481 G to H include matters that I and my friend have drawn to attention.

GUMMOW J:   What is the meaning of his submission:

It places parties in the common law courts in the same position as in courts of equity.

MR WALKER:   I do not know, your Honour.

GUMMOW J:   Then the reference to Holdsworth, and to Shenton v Tayler.

MR WALKER:   I do not know, your Honour.  It certainly gives the impression, and that is all I can say at the moment, that virtue was seen in that approach in equity at the time of Lord…..Act being devised and enacted, but what I cannot say, being ignorant of the matter is what it was in the equity practice or rules which may have held out such a virtue. 

Now, your Honours, I do not need to go at all to Callanan, not because it is, with respect, not useful, but because it has been sufficiently canvassed already in written submissions and in my friend’s address.  Nothing is to be made, however, of the disarming comment, with respect, of Mr Justice McPherson to the effect that at first sight and uninstructed by authority, his Honour would have held as the appellant would have this Court hold.

The whole point is, as my learned friend handsomely acknowledged, that legal scholar and historian sitting as a judge, came to a very clear conclusion, and one could be permitted this comment, it is not an unlikely explanation for points of doctrine at this level and of this kind, not to come up daily or even very often at all, if at all, because they are bright line rules.  If you cannot compel a wife, you do not try to compel a wife, and the question only arises where a statute arguably abrogates that privilege.

BELL J:   Except here you are contending for a privilege running in parallel with non‑compellability but distinct so that the question does arise, save for the 1831 instance in Tasmania, of the absence of any occasion when a husband or wife giving evidence in some proceeding, not a criminal proceeding against the spouse, invokes the privilege not to answer a question in that proceeding on account of the tendency of the answer to criminate the husband or wife, as the case may be.

MR WALKER:   Yes, but it is in our favour.  After all, that is really what All Saints shows.  It was not going to incriminate in that proceeding and one of the judges at least thought never at all, but a fair objection taken to a question, not to getting into the box.  That had gone into Taylor on Evidence.  Taylor on Evidence has the currency that your Honours all appreciate, and neither in the colonies nor after federation in the country does one find authority that says Mr Justice Bayley was wrong or has been misinterpreted and we may compel wives to answer questions because (a) they have waived any provision that existed by simply getting into the box and starting to answer questions on the matter generally or (b) because there is no such privilege in any event. 

Either of those would have sufficed to be the reasoning for the disposition of a case which would have shown that what we are saying is simply wrong as a matter of the record.  This tells very strongly in our favour.  It is the nature of something like the compellability of a spouse against another spouse either to be compelled to go into the box or to answer questions, individual questions, that is in the nature of a bright line matter.  If, as it did, Taylor on Evidence said the better view was – that means not the worst view – the better view was, the one to be preferred – that means by practitioners including the judges – is that there was a privilege not to answer the question which would criminate/incriminate the spouse. 

The lack of decision is, first of all, obviously not a correct statement when one looks at both sides of the question because the only decisions are our way.  The fact that there are not more we would urge on reflection actually strengthens the fact that this is a thoroughly accepted in the skin matter.  Those who practice where compelling evidence is not much in question may not think about it much but that does not mean it falls into disuse for those who practice where witnesses do have to be compelled.  So, in our submission, what is really significant is there are just no authorities in favour of the appellant’s position on this. 

That then brings me obviously enough to – I was about to say it brings me obviously enough to the statute.  Before I go to the statute, could I remind your Honours that in McGuinness (1940) 63 CLR 73, to which my learned friend took your Honours, there is a passage in Mr Justice Dixon’s reasons at 102 which, in our submission, entirely chimes with what we are saying concerning the importance of the relationship signified by the status of marriage for the purposes of questions of privilege including privilege against being forced to disclose. One sees this very telling language about an inch and a half up from page 102:

Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege –

and there is a reference to “husband and wife” at the beginning of that list.  Now, it is true that in context a fair reading may be that his Honour had in mind either solely or primarily the confidential communication privilege. but the point we seek to make is that it is the relationship, or the relations, I should say, as his Honour puts it, at the head of the list of which appears husband and wife that is referred to again in terms redolent of the fundamental common law importance of the matter which, in our submission, really cannot sensibly be identified as having fallen away into disrepute or disuse since 1911.

GUMMOW J:   What is the place in this universal discourse of the absence of a common law rule of privilege protecting marital communications per se?  Because quite often that is what this evidence is going to be about.

MR WALKER:   I think the short answer to your Honour’s question is there is no significance to the question of the privilege against spousal crimination.  Confidential spousal communication – I should hesitate before I finish this because I have something in mind, your Honours, that I have – how shall I put it – I know that I have forgotten it.  I do not want to commit myself to the proposition that the law cares less or does not care at all ‑ ‑ ‑

GUMMOW J:   That is what is worrying me, Mr Walker.

MR WALKER:   Yes, I am so sorry I cannot give you a crisp answer to that.  But the particular answer in argument to your Honour’s question is this.  There will be many overlapping situations where conduct, including reported speech, of the spouse not being questioned will of course attract the privilege in question here, that is, anything in the nature of an incriminating admission, which is also pillow talk, will of course fall within the privilege for which we contend.  What I am anxious not to mislead your Honours about – I am sorry, I would need to supplement that answer.  I wonder if I might have leave to do so, with a tiny note, concerning the confidential communication matter.

GUMMOW J:   Yes.  It might be useful to look at Shenton v Tyler [1939] Ch 620 in the very detailed judgment of Lord Greene at 626 through to 635.

MR WALKER:   Yes.  Your Honours, what I anticipate, however, is that this will reinforce what we are saying about the relationship signified by the status of being married without looking at the individual case, but just given that status, what does the policy of the law say about the – I will call it “imputed” relationship?  In our submission, it will pull in the same direction as the privilege question in this case.

Your Honours, one further point.  My learned friend was asked questions about what might be called very important steps in the amelioration of former disabilities of women generally and married women in particular.  Just to select two – which of course did not occur like a thunderclap everywhere at the same time – reforms such as are seen in the Married Women’s Property Act and adult suffrage.  Of course, they signify large differences as the exigencies no doubt required.  There is, with respect, bearing in mind the perfect mutuality, the unqualified vice versa equivalence of the privilege for which we contend, and in the old books, not just in modern nomenclature, because of that it can hardly be said that it is necessary in order to mark or continue or not to subvert changes which are not the business of the common law, with respect, to the status of women by such statutes and the suffrage, by requiring them to incriminate their husbands, and the mutuality is enough to show that that simply is an intolerable form of reasoning about what most people would call social amelioration.

If it were true for women, it should be true for men, but why would it be said that women’s suffrage, or the Married Women’s Property Act carry in their train something which the common law should take cognisance of in order to eliminate what was formerly a privilege, and in our submission, looked at whether socio‑psychologically according to Professor Stone, or historically or according to the long run policy of the law considerations that this Court considered, for example, in Cattanach v Melchior, looked at in any of those ways it would be surprising and implausible to suppose that those statutes, the Married Women’s Property Acts and suffrage for women, removed the privilege against compulsion to incriminate the spouse.  Nothing had changed in relation to the importance of the link and connection which is marriage and preserving that link or connection.  Nothing is changed about the wedge that might readily be understood to be driven into that relationship by such compulsion.

GUMMOW J:   Were you going to say something to us about Calverley v Green?

MR WALKER:   I did mention it earlier.  I simply wanted to say this about Calverley v Green.  The way in which the court reasoned, the plurality reasons concerning whether to extend the presumption of advancement to de facto relationships, very heavily turned on the differences manifest in the Family Law Act and thus founded in the Constitution between the way in which the property of married persons might be adjusted or seen and what light that cast upon what I will call the expectations of people entering into a marriage, that is, formal marriage about their property which – I don’t remember the page – their Honours regarded as by no means axiomatic with respect to those who were living together – cohabiting I think the expression was, but not as married people. It is simply an example in a way that lends no support whatever to the appellant as to what considerations might be necessary in considering what some may say is an outmoded articulation of a common law principle. Such an argument was, of course, rejected in Calverley v Green in that respect. 

Your Honours, can I now come to, finally on the common law question, to how statutes have affected it.  With great respect, we adopt as propositions in our argument some matters raised by Justice Heydon from my learned friend’s consideration, in particular, concerning the greater appositeness of paragraph 25 of the reasons of Chief Justice Gleeson and Justices Gaudron and Gummow in Esso v Federal Commissioner of Taxation 201 CLR 49 at 62. The fact is, we do not need to labour the point, legislation around the country is disparate and, in critical respects for our present argument, radically so concerning legislative choices. I need hardly remind you that legislative choices can be unmade almost as soon as they are made. They stand in stark contrast from the approach of the common law.

Who knows with the kind of competitive federalism that might be being exhibited among the Evidence Acts what informed thought or at least influential organisers of government business in various legislative chambers might think in 10 years about which are the better models.  They are, in our submission, a weak read or really no support at all for either side in the argument.  They are, of course, the point of departure for the next step in the argument, namely, given the susceptibility of the common law to complete abrogation by statute, has it, in this instance, been done? 

Before I leave those statutes more generally, can I add these specific comments.  There is nothing in this notion of a trend towards compellability.  For a start, the pattern does not distribute all on one side of the axis, so to speak.  Second, it simply cannot be said that compellability is a simple proposition which, in this case, would sweep away any notion of a continuing common law privilege.

I have already said everything I want to say about the uniform Evidence Act, section 18(6), the terms and concerns of which exhibit rather than repel a concern for the relationship of marriage, about which I have said enough.

Then when one comes to the Queensland position – that is, the Evidence Act 1977 (Qld), your Honours have been told sections 7 and 8, respectively, are the abrogation of the competence common law for parties and spouses – that is, section 7 in civil law – and the competence and compellability of parties and spouses, or accused and spouses, in criminal proceedings – that is, section 8.

All that may be observed about the Queensland statute is that it is completely different from the uniform Evidence Act in that regard, leaving no safe guide as to what the common law is.  In our submission, it would be wrong to allow the common law to be nudged in any way by one or other of these current manifestations of trade‑offs, and that is what they are, trade‑offs.

Your Honours, could I then finally come to what I will call – no doubt tendentiously – the Daniels question? By that, of course, I mean whether the undoubtedly general words of compulsion to be found in section 30 and the surrounding provisions which bolster that by sanctions of offence and contempt, whether those words “undoubtedly general” should in accordance with the approach illustrated in Daniels be treated as having abrogated the privilege for whose existence we contend at common law.

I do not wish simply to rehearse that which your Honours have already read. In particular, may I single out what we submit would be a result of subversion of the careful express trade‑off in relation to self‑incrimination were the appellant’s arguments to be accepted? Let me explain. Under section 30(4)(b), two privileges are recognised by the explicit dealing with them by the trade‑off chosen. The one is the privilege against self‑incrimination and the other is the privilege against exposure to penalties. Subsection (5) answers the description of use immunity – not an a priori or natural category, but a useful tag for such provisions.

You see that the use in question is in a criminal proceeding, a proceeding for the imposition of penalty, other than some pretty important proceedings but not covering those which would punish for offences exposed by the answers or the production.  So confiscation proceedings are unaffected, and the material may be used in them and the falsity of the answer and the falsity of statements contained in produced documents; both of those are preserved in a very familiar fashion.

So we have the limited use immunity and we have the two privileges being recognised in subsection (4)(c).  It means that if somebody who claims that protection, and you will see that there must be a claim, see paragraph (c) and it must be timely, it means that such a person is, so far as production by himself or herself or words of his or her own, protected from conviction and punishment of the offending that might thus be revealed. 

On the other hand, on the appellant’s construction of this provision in its context, the spouse of such a person who will often, one might even say nearly always, live with the person in question, who will often, many would say nearly always will know a lot about that person’s affairs, who will nearly always often be in converse with the person and it is not unknown in a country that has politics devoted to the advancement of family business, it is not unknown for spouses to be formally in business relations with each other, working in the same enterprise, it is in the nature of things, not mere incidental or fluke or by chance, it is in the nature of things that the field of possibilities will be that, on the appellant’s version, the statements that could be protected under section 30(5) of, say, the wife, can be extracted by interrogating the husband who may claim privilege only at peril of being imprisoned for refusing to answer, in other words, has no good claim of privilege.

In that respect, accordingly, the scheme devised by Commonwealth Parliament apparently appears, on the arguments of the appellant, as being,

we will give you this use immunity with respect to the answers you give for which you are responsible, where you cannot blame anybody else for having to say these things – if they are the truth about your doings then you are owning up to your doings – but when it comes to a person who is under pressure of giving up their husband or wife, that person has no rights, must answer, and there is no use immunity at all.  In our submission, this is a subversion by rendering quite hollow not of any real use to protect one against adverse impact in the future the self‑incrimination privilege. 

It is a very odd, quite socially startling schema to be attributed to those who devised, if that is not too deliberate a notion, the effect of section 30 upon pre‑existing common law privileges and immunities. We have nothing to do with and do not wish to be identified with any argument that cares less about what is in the actual minds of the actual legislators or, for that matter, what can be seen in travaux preparatoires in or out of the chamber in terms of legislative history or even the pre-history of that. What matters is the text and, in our submission, when the text includes subsection (3) of section 30 with its studied and explicit attention to legal professional privilege and a trade-off, you have got to give up the name and address of the person who could authorise the release, and subsection (4) with its studied and explicit trade-off of the self-incrimination and penalty privileges, it is odd that there is simply no reference to what could have been found in such clear terms in volume 12 of the Commonwealth Law Reports.

It is for those reasons, in our submission, that if Daniels is to be regarded as it surely must be as a contemporary guide to the way in which one evaluates general words of compulsion in relation to what Justice McPherson called freestanding privileges such as legal professional privilege or this privilege, then, in our submission, the answer can only be that nothing in the Act, let alone section 30, did what the appellant seeks and that the majority in the Full Federal Court were correct, in effect, to call on Parliament to speak much more clearly before that effect would be achieved. May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Solicitor.

MR GAGELER:   There is strictly one point in reply and one point by way of attempted answer to your Honour Justice Gummow’s question about the notion of compellability at common law.  Some guidance on that is perhaps found, at least implicitly, in discussion in EPA v Caltex.

GUMMOW J:   Sorry, in Caltex?

MR GAGELER: 178 CLR 477 at 528 where this point is made, that at common law the courts generally had no power to compel a witness to attend. There were, under the Marian Committal statute, some particular powers to compel prosecution witnesses to attend, but that seemed to be it. There was an ability to approach equity to obtain a subpoena, but that when the common law courts were given a power to use a subpoena – a power conferred by statute, it seemed, in 1562 – the common law courts exercised that power “consistently with Chancery practice”.

GUMMOW J:   You have to understand that before you can start to grapple with this notion of compellable.

MR GAGELER:   Of compellability, yes.  There is a reference to an unpublished thesis which we do not have.  Holdsworth, though, is quite useful on that point.  Your Honours, the point in reply is this.  It was suggested that the 19th and 20th century writers, by their criticism, confirmed the existence of this common law privilege which is asserted by the first respondent.

That is not so.  Bentham writing in 1827, before the significant 1843 reform, had as his target the common law principle of incompetence.  The Royal Commission Report in 1853 had as its target the lingering incompetence in criminal proceedings and non‑compellability in civil proceedings.

GUMMOW J:   Have we got a copy of that in the materials?

MR GAGELER:   We will provide you with a copy.  We have it; your Honours have not been given it.

GUMMOW J:   There is a reference to pages 12 and 13 of that report.

MR GAGELER:   It is quite a short report; we will give you the entire thing.

Wigmore, when he came to publish in 1904, criticised what he identified as a privilege, but so far as we can see, as I submitted in‑chief, he was the first to identify a privilege and the privilege he identified is not the privilege that our learned friends seek to assert.  The privilege he identified was a privilege against adverse spousal testimony in civil and criminal proceedings, but he narrowed the scope of that privilege significantly. 

Professor Stone perpetuated Wigmore, and your Honour the Chief Justice asked my learned friend about a sentence in the 1991 World’s revision of Stone at page 607, which was to this effect, the privilege only exists where the spouse is charged with crime in the very proceeding in which the evidence is sought to be used.  That is Stone perpetuating Wigmore.  If your Honours still have Wigmore to hand and go to page 630 – this is the privilege as Wigmore saw it – and according to Wigmore at page 631, in the paragraph containing the italicised language, he said that:

its scope was restricted to such testimony only as disfavors the other spouse’s legal interests in the very case in which the testimony is offered.

So Wigmore’s privilege is a very different privilege from the one that is currently asserted. 

GUMMOW J:   There seems to be an idea, too, that the other spouse had to be a party.

MR GAGELER:   That is what Wigmore is saying, yes.  In fact, he deals with All Saints interestingly on the next page.  He sees All Saints, the actual holding in All Saints as confirming that principle.

CRENNAN J:   That is right, he really draws that principle, I think, from Cartwright v Green and All Saints.

MR GAGELER:   He does, yes.

CRENNAN J:   On one view that is a very wide conclusion to draw from those cases.

MR GAGELER:   It is interesting.  Americans seem to  ‑ ‑ ‑

CRENNAN J:   Just stated with the confidence with which he states it.

MR GAGELER:   Yes.  Americans focus on holdings not dicta and that is what he is doing here or he is seeing  ‑ ‑ ‑

GUMMOW J:   That passage in Wigmore, I think, is supported by Lord Greene in Shenton [1939] Ch 627 where he says this rule – the rule we are talking about “only came into operation in the case where the other spouse was a party”.

MR GAGELER:   Yes.  I am not sure what he was talking about, but the rule Wigmore is talking about is this privilege against adverse spousal testimony which had this narrow operation according to Wigmore.  So it is a very, very different beast from the one that is asserted against us.  If your Honours please, those are our submissions in response.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision ‑ ‑ ‑

MR WALKER:   Your Honour, I am sorry.  I wonder if I could – rather than do it by deferral – could I simply give a reference to complete my answer to Justice Gummow’s question?

FRENCH CJ:   Yes.

MR WALKER:   Could I simply give you the reference earlier in Stone revised by Wells– the passage I do not have it with me – but the reference is pages 601 to 605.  In particular, in relation to Shenton v Tayler there is a discussion commencing “For the moment the law is settled by” at the foot of page 602 in which at page 603 ‑ ‑ ‑

GUMMOW J:   We do not have this, do we?

MR WALKER:   No, it is the pages preceding the passage I gave your Honours.  There is a reference to the long and learned judgments of Sir Wilfred Greene and Lord Justice Luxmoore to which Justice Gummow has made reference and at page 604 a comment by the learned author that it cannot be denied that the result reached on the facts in Shenton v Tayler was a just one and then that it was submitted by the learned author that the reasoning in Shenton v Tayler should not be followed if and when for reasons there set out.

In our submission, without repeating what I have said earlier, the privilege was not so limited as Wigmore said, therefore Sir Wilfred Greene held and the matter clearly, in our submission, the law in the area of confidential communications evinced a concern.  What we cannot say is that it showed there was a privilege.  It was caught up as the authors point out – it was caught up in the welter of law reform following the removal of lack of competence.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr Walker.  The Court will reserve its decision and we will adjourn until 10.15 tomorrow morning.

AT 3.54 PM THE MATTER WAS ADJOURNED