CONSTITUTION – Australian Crime Commission Act 2002 (Cth) – abolition of privilege against self-incrimination and grant of use immunity – whether impermissibly interferes with State courts.
STATUTES – amending or abrogating the common law – one Australian common law – limited legislative competence of Commonwealth and State Parliaments to abrogate the common law – effect of abrogation by the Commonwealth Parliament
STATUTES – Statutory duty to record reasons for a decision – person summoned to appear at examination under Australian Crime Commission Act 2002 (Cth) – whether statute impliedly confers a right on a witness to be given the record – purpose of the statutory provision – no right to reasons under the Administrative Decisions (Judicial Review) Act 1977 (Cth)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Barnes v Boulton [2004] FCA 1219
Case
[2004] FCA 1219
Decision Date
CaseChat Overview and Summary
Barnes v Boulton involved a legal challenge concerning the Australian Crime Commission (ACC) investigation into the activities of the Darwin Chapter of the Hells Angels Motorcycle Club. The applicant, Ms Barnes, the partner of the president of the Darwin Chapter, was required to give evidence about her knowledge of the club’s activities. Ms Barnes sought to argue that certain sections of the ACC Act were unconstitutional, but these arguments were ultimately rejected by the court. The key issue before the court was whether section 30(5) of the ACC Act was a valid exercise of Commonwealth legislative power, which provides that answers or documents produced during an examination before an examiner are not admissible in certain proceedings against the person if they claim that the answer or production might tend to incriminate them. The court held that the provision was valid, rejecting the applicant's argument that it was unconstitutional. The court also dismissed the applicant's contention regarding the continuing applicability of the National Crime Authority (Territory Provisions) Act 1985 (NT), finding it irrelevant to the proceeding. The application was dismissed with costs awarded to the respondent.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Background
Background to the litigation
Section 30, which is at the centre of this proceeding, provides insofar as presently relevant, that:“(2)A person appearing as a witness at an examination before an examiner shall not:…(b)refuse or fail to answer a question that he or she is required to answer by the examiner;…(4)Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:(a)a person appearing as a witness at an examination before an examiner:(i)answers a question that he or she is required to answer by the examiner; or (ii)produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and (b)in the case of the production of a document that is, or forms part of, a record of an existing or past business – the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and (c)before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (5)The answer, or the document or thing, is not admissible in evidence against the person in: (a)a criminal proceeding; or (b)a proceeding for the imposition of a penalty; other than:(c)confiscation proceedings; or (d)a proceeding in respect of: (i)in the case of an answer – the falsity of the answer; or (ii)in the case of the production of a document – the falsity of any statement contained in the document.”THE FACTUAL BACKGROUND The essence of this has been foreshadowed. It can be described briefly. The ACC is conducting a “special ACC investigation” into the activities of the Darwin Chapter of Hells Angels Motorcycle Club. Ms Barnes is the partner of Ian Hogan, the current president of the Darwin Chapter. She has lived with him in the Northern Territory and has been interstate with him. The summons Mr Boulton issued required her to give evidence in Darwin in relation to her knowledge of the activities of Ian Hogan. Annexed to the summons, as required by s 28(2), was a copy of the necessary s 7C determination of the Board of the ACC. An exceptionally lengthy list of criminal activities constituting “federally relevant criminal activity” was contained in a schedule to the annexure. Clause 7 of the annexure noted explicitly that:“The serious and organised crime to which this Instrument applies includes offences against a law of the Commonwealth, a law of a State or a law of a Territory.”I note this clause because the ACC has suggested, albeit faintly, that the examination in reality would only involve the risk of self-incrimination against either Commonwealth laws or laws of the Territory and hence would not give rise to the constitutional issues raised by the applicant. Though Ms Barnes attended the examination and was sworn, the examination was adjourned after both counsel had agreed there was no utility in the examination proceeding without the examiner dealing with the two submissions made by Ms Barnes’ counsel. I should note the circumstances leading to this adjournment. At the opening of the examination Mr Boulton indicated to Ms Barnes that she was obliged to answer questions, including incriminating questions, but that by availing of the procedure in s 30(4) of the ACC Act she could attract the use immunity of s 30(5). He then observed:“I could insist that for each such question that exposes you to that risk (i.e. self-incrimination] that you make the claim but it is the Commission’s general practice that that would bog down proceedings unnecessarily. So I take the view that you can make a claim for the privilege at the outset of your examination if you choose and that you will be protected then for all of your evidence, having made that claim and when you make that claim, if you do, I will repeat for the record the effect of your having made that claim.”
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FINN J
In any event, as I have earlier indicated, I am bound to reject the applicant’s contention that s 30(5) is not a valid exercise of Commonwealth legislative power. CONCLUSION It is unnecessary to deal with the final issue raised by the applicant relating to the continuing applicability of the National Crime Authority (Territory Provisions) Act 1985 (NT). It is premised, it seems, on the invalidity of s 30(2) and (5) of the ACC Act. I only note that the ACC does not rely upon the Northern Territory Act and contends that it is irrelevant to this proceeding. The application will be dismissed with costs.