Barnes v Boulton

Case [2004] FCA 1219


FEDERAL COURT OF AUSTRALIA

Barnes v Boulton [2004] FCA 1219

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)

Commonwealth Constitution pl 51, 106, 122
Australian Crime Commission Act 2002 (Cth) ss 4, 7A, 7C, 24A, 28, 29A, 30, 46B, 54, 55, 57, 59
Judiciary Act 1903 (Cth) s 78B
National Crime Authority (Territory Provisions) Act 1985
Australian Crime Commission Establishment Act 2002
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, Schedule 2
Intelligence Services Act 2001 (Cth)
Royal Commissions Act 1902 (Cth)
Defence Force Discipline Act 1982 (Cth)
Foreign Evidence Act 1994 (Cth)

Mansfield v Australian Crime Commission [2003] FCA 1059 cited
A v Boulton [2004] FCA 56 cited
A v Boulton [2004] FCAFC 101 applied
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230 cited
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 cited
Harper v Costigan (1983) 72 FLR 140 cited
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 cited
R v Young (1999) 46 NSWLR 681 cited
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 cited
Re Tracey; Ex parte Ryan (1989) 166 CLR 518 considered
Sorby v The Commonwealth (1983) 152 CLR 281 referred to
Hamilton v Oades (1989) 166 CLR 486 cited
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 cited
The Attorney-General of the Commonwealth v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644 cited
Bercove v Hermes (No 3) (1983) 51 ALR 109 cited
Ross v Costigan (1982) 41 ALR 319 cited
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 cited
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 cited
Kable v Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 cited
Western Australia v The Commonwealth (1995) 183 CLR 373 cited
Blunden v Commonwealth of Australia (2003) 203 ALR 189 cited
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 cited
Lipohar v The Queen (1999) 200 CLR 485 applied
O’Neill v Mann (2000) 101 FCR 160 cited
Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 referred to
Re Australian Education Union;  Ex parte Victoria (1995) 184 CLR 188

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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

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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.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

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