Comptroller-General of Customs v Disciplinary Appeal Committee

[1992] FCA 254

Re: COMPTROLLER-GENERAL OF CUSTOMS
And: DISCIPLINARY APPEAL COMMITTEE and SHANE ANTHONY DAY
No. G195 of 1992
FED No. 254
Administrative Law - Evidence
(1992) 107 ALR 480
(1992) 61 A Crim R 120
(1992) 27 ALD 687 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Administrative Law - application for review of decision of Disciplinary Appeal Committee under Merit Protection (Australian Government Employees) Act 1984 - Committee reinstated at lower rank Customs officer dismissed for refusing to comply with direction by authorised person - whether privilege against self-incrimination available - whether decision upon claim of privilege involves question of law - whether variation of penalty should be set aside.

Evidence - privilege against self-incrimination - whether privilege applies in disciplinary proceedings in the Australian Public Service - whether privilege excluded by express words or necessary implication - whether reg. 18 of Merit Protection (Australian Government Employees) Regulations exhaustive statement of availability of privilege - officer need only obey "lawful and reasonable" directions - applicability of principles relating to members of disciplined services - whether in non-judicial proceedings privilege has to be "claimed" - whether sufficient material to conclude that officer relied on privilege in refusing to obey direction.

Judiciary Act 1903

Crimes Act 1914

Public Service Act 1922

Income Tax Assessment Act 1936

Administrative Decisions (Judicial Review) Act 1977

Merit Protection (Australian Government Employees) Act 1984

National Crime Authority Act 1984

Cash Transaction Reports Act 1988

Dried Fruits Act 1934 (S.A.)

Federal Court Rules

Public Service Regulations

Merit Protection (Australian Government Employees) Regulations

The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

Sorby v The Commonwealth of Australia (1983) 152 CLR 281

The Queen v Quinn; ex parte Consolidated Foods Corporation (1977) 138 CLR 1

Miller v TCN Channel Nine Proprietary Limited (1986) 161 CLR 556

Pyneboard Proprietary Limited v Trade Practices Commission (1983) 152 CLR 328

Police Service Board v Morris (1985) 156 CLR 397

Hamilton v Oades (1989) 166 CLR 486

National Crime Authority v S. (1991) 29 FCR 203

Warnecke v Pope (1950)' SASR 113

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

The Queen v De Simoni (1981) 147 CLR 383

HEARING

SYDNEY

#DATE 8:5:1992

Counsel and solicitors Mr Peter Hastings instructed
for the applicant: by The Australian Government Solicitor.

Solicitor for the The Australian Government Solicitor.
first respondent:

Counsel and solicitors Mr J.S. Coombs QC and
for the second respondent: Mr R.B. Wilson instructed

by Leitch Hasson and Dent.

ORDER

(1) The application be dismissed.

(2) The applicant pay the costs of the respondents, the costs of the

first respondent to be limited to those of a submitting party.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

Introduction

This is an application for an order of review under the

Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The application was filed on 10 April 1992. On that day I granted certain interlocutory relief which continues until further order.

1. For some 25 years, the second respondent has been an officer of the Australian Customs Service, stationed in Sydney. The first respondent ("the Committee") is established in accordance with Sub-Division C of Division 2 of Part II of the Merit Protection (Australian Government Employees) Act 1984 ("the Merit Protection Act"). It discharges functions specified in Divisions 6 and 6A of Part III of the Public Service Act 1922 ("the Public Service Act"). Division 6 is headed "Discipline" and Division 6A is headed "Forfeiture of Office". Section 10 constitutes the Australian Public Service by officers and employees. The chief object of the statute is to constitute a public service for the efficient, equitable and proper conduct of the public administration of the Australian Government, in accordance with sound management practices (including personnel management practices). The Public Service Act is to be construed accordingly: s. 6.

2. On 8 March 1989, the second respondent was convicted at the St James Local Court, Sydney, on three charges under s. 29B of the Crimes Act 1914. He was fined $350 on each charge. An appeal to the New South Wales District Court was dismissed on 28 March 1990. Section 29B makes it an offence for any person to impose or endeavour to impose upon the Commonwealth or any public authority of the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or other benefit or advantage.

3. The charges were laid after officers of the Australian Federal Police on 31 March 1988 executed a search warrant on the office furniture used by the second respondent at his place of work in Sydney. From the search, the police located various Medicare cards and a quantity of banking and building society documents, for the period 6 June 1984 to 15 March 1988, in names other than the name of the second respondent. Seven apparently false names had been used by the second respondent in the conduct of 49 accounts with banks and building societies. Substantial sums (apparently in cash) were dealt with in these accounts. The three charges of imposition were narrowly framed and concerned three Medicare cards issued in the names "Sam H. Travis", "James F. O'Brien" and "Shane A. Daniels". The appearance of the second respondent on these charges was reported in "The Sydney Morning Herald".

4. This litigation is concerned with administrative decisions taken as a sequel to the conviction of the second respondent on these charges. The path taken by events is somewhat complex.

5. The applicant, the Comptroller-General of Customs, is aggrieved by decisions of the Committee dated 3 April 1992. The decisions are contained in a 34 page document and followed a hearing by the Committee conducted on 25 and 26 September 1991, and 20 and 21 November 1991. The second respondent was represented by counsel. He gave oral evidence and was cross-examined by counsel for the Australian Customs Service. Written submissions were received after the hearing. The decisions in respect of which the applicant seeks an order of review are those:
   

(a) to vary the decision of John William Pritchard (a delegate of the applicant) of 25 July 1991 that the second respondent be dismissed from his employment with the Public Service for four breaches of s. 56 (e) of the Public Service Act, by deciding in lieu thereof that he be transferred to position No. 707, Customs Officer Band 3, and

(b) to set aside the decision of the said delegate of 25 July 1991 that the second respondent be dismissed from the Public Service for breaches of s. 56 (a) of the Public Service Act.

1. It is necessary to turn to the terms of some of the relevant legislation.

2. Section 56 of the Public Service Act relevantly provides that an officer shall be taken to have failed "to fulfil his duty as an officer" if and only if:
   

"56 (a) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply;

(b) . . .

(c) . . .

(d) he engages in improper conduct as an officer;

(e) he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute;

(ea) . . .

(f) . . . or

(g) . . ."

Paragraph (c) of reg. 8A of the Public Service Regulations states that an officer shall:

"comply with any lawful and reasonable direction given by a person having authority to give the direction."

The applicant was said by Mr Pritchard to have contravened this regulation and para. 56 (a) by failures to answer adequately written questions put to him in February 1991 in the course of an "administrative inquiry" following the recording of the convictions against him.

1. Section 61 of the Public Service Act provides for the institution of procedures for disciplinary action by the charging, in writing, of the officer with failure to fulfil his duty as an officer. Section 62 requires, without undue delay, the holding of an inquiry into the charge by the Secretary of the Department in connection with which or in which the officer is employed, or by an officer appointed for the purpose by the relevant Secretary. In this case, as I have indicated, the officer was Mr J.W. Pritchard. If the officer holding the inquiry is of opinion that the officer charged has failed to fulfil his duty as an officer he may, as described in sub-s. 62 (6), direct that various action be taken including causing a sum not exceeding $500 to be deducted from the salary of the officer, transferring the officer and dismissing him from the Service.

2. Section 63D provides for "appeals" to a Disciplinary Appeal Committee, the first respondent being one such Committee. If the decision appealed from relates to a charge of misconduct, the appeal may be brought on either or both grounds that the charge should have been dismissed, and that the action directed to be taken in relation to the charge is unduly severe: sub-s. 63D (2). Reasons in writing must be given for the Committee's decision (sub-s. 63D (7)). The Committee may confirm, vary or set aside the decision against which the appeal is made (sub-s. 63D (3)). The Convenor of a Committee must be a legal practitioner of at least 5 years' standing, and at its hearings evidence may be taken on oath or affirmation (the Merit Protection Act, ss. 17 (2), 18).
   The Conduct of the Inquiries

3. Section 63 of the Public Service Act applies, inter alia, where a Court has convicted an officer of a criminal offence. It empowers the relevant Secretary, in the circumstances detailed in the section, and after giving the officer an opportunity to furnish to him, in writing, any statement he desires to furnish in relation to the offence, to direct that the officer in question be dismissed from the Service. On 11 May 1990 steps under s. 63 were commenced, but after the receipt of advice from the Australian Government Solicitor on 2 August 1990, the applicant decided to desist from further action under s. 63. It also should be noted that the matter apparently proceeded on the footing that before the coming into operation of s. 24 of the Cash Transaction Reports Act 1988, the opening and operation of accounts in false names did not constitute an offence against the laws of the Commonwealth. Section 24 commenced on 1 July 1988. However, in respect of the moneys in various accounts opened and conducted by the second respondent, but in the names of other persons, notices were issued pursuant to s. 218 of the Income Tax Assessment Act 1936. The moneys in the accounts then were apparently paid to the Commissioner of Taxation.

4. In the course of the inconclusive action taken under s. 63, the second respondent was handed on 23 May 1990 a list of 10 questions to be answered in writing within 7 days. In his initial response, by letter dated 28 May 1990, the second respondent said that following his initial perusal of the 10 questions he was of opinion "that you are not entitled to direct me to answer at least seven (7)". In his fuller response, dated 31 May 1990, the third respondent acknowledged that he might well be obliged to questions 1, 5 and 6, but as to the remaining 7 questions he contended that there was no obligation for him to provide answers "as the subjects of the questions have no relevance whatsoever to the convictions to which you are addressing your decision (sic)". He asserted that his activities in relation to the bank and building society accounts and the moneys relating thereto were "legally acceptable and related totally to my private life".

5. Questions 7 and 8 asked whether the third respondent had ever applied for a Medicare card or cards using an assumed name or names, in addition to the three cards, the subject of the previous criminal prosecution. In his written response of 31 May, the second respondent said that "as the questions require answers which could potentially be self incriminating, I am not obliged to respond".

6. On 12 September 1990, the second respondent was handed a 5 page notice from Mr J.D. McIntyre, Chief Inspector, Internal Affairs Unit of the Australian Customs Service ("the IAU"). It recited that Mr McIntyre was conducting "an administrative investigation into information" received concerning documents "located at your work station on 31 March 1988 and other matters". Mr McIntyre stated that it was his responsibility to investigate and establish whether there was any connection between the second respondent's position with the Australian Customs Service, and the 49 accounts, to which I have referred, "which might adversely reflect on, or conflict with the interests of, the Australian Customs Service". One of the stated objectives of the IAU was to report to the applicant any dishonest practices, activities and procedures with a potential for diminishing the integrity of the Australian Customs Service and its officers. Mr McIntyre stressed that the investigation was an administrative one into discipline within the Service and was not concerned with any criminal matter. The notice concluded with a direction that the second respondent submit within 7 days a comprehensive written report detailing his answers to 13 questions which were then set out.

7. In his written response of 26 September 1990, the second respondent gave some answers but went on to express the view that the action taken might reasonably be seen as "an effort to unfairly coerce me into providing information I may not have been prepared to divulge". Before the written questions were put to him on 12 September 1990, the second respondent had, on 3 September 1990, attended at the offices of the IAU and answered various questions put orally. In its reasons for decision, the Committee later described the attitude of the second respondent throughout these procedures as one of steadfast refusal to give many details requested, with his assertions that he had done nothing wrong in opening and maintaining the accounts, that this had been done as a favour to friends, and that it was a private matter which should not concern the Department.

8. Matters now approached their climax. On 4 February 1991, the second respondent was handed a notice in which Mr McIntyre stated that in order to finalise his investigation he directed the second respondent to submit within 7 days a comprehensive written report detailing his answers to 8 questions. The text of these questions differed from those set out in the notices of 12 September 1990 and 22 May 1990, although there were some common elements of substance.

9. The second respondent was given an extension of time in which to respond. In his later cross-examination before the Committee he said he had been "in a position of uncertainty and I sought legal advice". The second respondent's solicitors responded for him by letter dated 14 February 1991. They asked, amongst other things, for clarification of the entitlement of Mr McIntyre to require their client to answer the questions. In response, they were referred to provisions of the Public Service Act, s. 6, paras. 56 (a), (e) and reg. 8A (c). This was done in a letter to the solicitors dated 19 February 1991. The letter included the following:
   

"Given the nature of Mr Day's duties at the time of the police action on 31 March 1988 his possession of such a large number of account records, containing in aggregate such a large sum of money, in names other than his own, gives rise to the most serious questions as to the manner in which Mr Day may have been performing his duties.

Although Mr Day has provided answers to written questions put to him on 12 December 1990 (an error for 12 September 1990), I am far from satisfied that his answers are either candid or truthful. Mr McIntyre's direction dated 4 February 1991 directs Mr Day to answer questions which will allow me to test the credit of his earlier answers."

On 20 February 1991, the solicitors responded by asking that "as a matter of procedural fairness to Mr Day" the purpose and parameters of the inquiry be stated "fully and unambiguously". They also said that it was not conceded that there was any authority to conduct an "administrative enquiry" of the kind "vaguely outlined in your correspondence" or "to direct Mr Day to answer questions of the kind contained in your minute".

1. The letter continued by asserting a willingness of the second respondent to comply with "any lawful and reasonable direction with which it is his duty to comply" and went on "without waiving any of our client's rights or objections" to give an answer to question 8 but to stigmatise questions 1 to 7 as "oppressive, ambiguous, unfair and irrelevant". Counsel for the applicant stressed that there is in this letter no express reliance upon any privilege against self incrimination and submits that indeed the only such reference throughout the whole of these dealings is that which I have mentioned in relation to questions 7 and 8 of the set of questions dated 23 May 1990. This was the first of the three sets of questions.
   The Charges

2. On 27 February 1991, the second respondent was charged, pursuant to s. 61 of the Public Service Act, with three counts of having failed to fulfil his duty as an officer within the meaning of para. 56 (a), one count of having failed to fulfil his duty as an officer within the meaning of para. 56 (d), and four counts of having failed to fulfil his duty as an officer within the meaning of para. 56 (e). The inquiry by Mr Pritchard was then conducted under s. 62. In the course of this inquiry, written representations were made by the second respondent and by solicitors retained by him.

3. The charge in respect of para. 56 (d) arose from the incident where the Australian Federal Police found three Medicare cards in false names in a drawer of the second respondent's desk during the search of his work station on 31 March 1988. Upon this charge, a direction was given under s. 62 (6) that an amount of $40 be deducted from the salary of the second respondent. There was no appeal against that direction.

4. The four charges under para. 56 (e) were:
   

(i) that on or about 4 July 1985 the second respondent made a deliberately false statement to the Health Insurance Commission when he lodged a Medicare enrolment application form with it in which he stated that his name was James Frederick O'Brien;

(ii) that on or about 8 July 1985 he made a deliberately false statement to the Health Insurance Commission when he lodged a Medicare enrolment application with it in which he stated that his name was Shane Anthony Daniels;

(iii) that on or about 1 July 1985 the second respondent made a deliberately false statement to the Health Insurance Commission when he lodged a Medicare enrolment application form with it in which he stated that his name was Sam Henle Travis;

(iv) that on 5 February 1986 he opened a bank account in the name of Sam Travis by falsely representing that he was Sam Travis, having presented himself at the offices of Citibank at 1 Margaret Street, Sydney and presented to a Citibank employee two items of identification in the name of Sam Travis, namely a Medicare card and a Commonwealth Savings Bank Passbook.

1. The charges based upon para. 56 (a) arose out of the conduct of the administrative inquiry which had led to the preferring of the other charges. They were concerned with alleged wilful disobedience to a written direction given to him on 4 February 1991 requiring answers to certain questions by 11 February 1991.

2. The first of these charges was with respect to a question in the following terms:
   

"(1) What was the source of funds amounting to $20,000.00 which you deposited in a Fixed Term Deposit at Citibank on 4 February 1986, using the assumed name of Sam Travis?"

1. The second charge concerned question 2:
   

"(2) What was the source of the funds amounting to $5,800.00 which you deposited in a Cash Management Account at Citibank on 5 February 1986 using the assumed name of Sam Travis?"

1. The remaining charge was in respect of questions 3 - 7 as follows:
   

"(3) On 31 March 1988, the Australian Federal Police seized from your possession documents relating to forty-nine (49) accounts with various banks and building societies totalling $349,452.00 (excluding interest). On whose behalf (give names, addresses and telephone numbers) did you have possession of documents relating to the said accounts for safe keeping?

(4) What was the precise nature of your involvement in the opening and operating of the accounts referred to in question (3)? In particular, did you open all or any of the accounts in names other than your own by producing any items of identification in names other than your own?

(5) Who were the close friends as favours for whom you opened and operated the accounts referred to in question (3)? Give names, addresses, and telephone numbers.

(6) On what basis were you satisfied that the funds referred to in question (3) were not illegally obtained?

(7) Give the names, addresses and telephone numbers of the persons to whom you dispersed funds, withdrawn from the accounts referred to in question (3)."

1. In respect of the alleged breaches of para. 56 (a), on 25 July 1991 Mr Pritchard directed pursuant to sub-s. 62 (6) of the Public Service Act that in relation to each charge the second respondent be dismissed from the Australian Customs Service. Further, in respect of the alleged breaches of para. 56 (e), he directed that in relation to each charge the second respondent should be dismissed from the Australian Customs Service. The directions were communicated by a 12 page statement in writing which also advised the second respondent of his rights of appeal under s. 63D of the Public Service Act to a Disciplinary Appeal Committee.
   The Appeal to the Committee

2. The second respondent availed himself of those rights. He contended that each charge should have been dismissed and that the action taken was unduly severe. As I have indicated, the present proceeding is instituted by the Comptroller-General in respect of the decisions of the Committee on the appeal. They were dated 3 April 1992 and were favourable to the second respondent. He was awarded his costs in the sum of $15,000. The Committee only dealt with two of three charges of breach of para. 56 (a), but it was agreed that this was an oversight and that the reasoning of the Committee would be equally applicable to all three of these charges.

3. In accordance with The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-6, the Committee did not adopt the role of a protagonist before this Court. The protagonists were the applicant and the second respondent. The same solicitor appeared for the applicant and first respondent, but in the circumstances it did not appear necessary to give leave under O. 45 r. 2 of the Federal Court Rules.

4. In respect of the charges based upon para. 56 (a), those dealing with the refusal to answer questions put on 4 February 1991, the Committee said in its decision that a threshold issue was whether the second respondent could rely upon the privilege against self incrimination as a reason for not answering the questions. After dealing with various authorities, the Committee concluded that legislation should not interpreted to exclude "this common law right" unless there is "a clear indication that it is intended to do so" and that the provisions of the Public Service Acts with which it was dealing did not present such a clear indication.

5. The Committee then turned to consider the second respondent's "refusal to answer the questions". The Committee said:
   

"That he was claiming the privilege is beyond doubt, as is the fact that the nature of the questions was the reason for such a claim. By not answering the questions the appellant was certainly penalised. The Committee believes that the appellant and the Department had good reason to expect that any answer might tend to expose the appellant to a penalty."

Later the Committee summed up its conclusions as follows:

"It is clear that the wording of s. 56 (a) of the Act and Regulation 8A (c) of the Public Service Regulations are general and cannot be construed as limiting a public servant's privilege against incrimination as defined by the common law.

The Committee also believes that the evidence demonstrates that in answering these questions the Department and the appellant were likely to have believed that the appellant might be exposed to a penalty of the type contemplated by the common law regarding privilege. The Committee upholds the claim of privilege and sets aside the decision to dismiss the appellant.

In non-legal terms the Department has charged the appellant with refusing to provide it with the evidence that he was guilty of misbehaviour when it was not legally entitled to do so. In so deciding the Committee is in no way judging the propriety or otherwise of the conduct of the appellant in opening and maintaining these bank accounts. Those who have the power to amend the Act and Regulations may take the view that amendments are called for so that future claims of privilege in such circumstances cannot be maintained, although the common law right of privilege against incrimination is so well established that any future legislative abrogation should never be considered lightly.

It is also the view of the Committee that the questioning of a suspect public servant should be considered after all other avenues of investigation have been completed. In this instance it seems that the officers of the Internal Investigat-ions Unit considered only the investigations of the police which related to the obtaining of the false Medicare cards and then attempted their interrogations. The appellant effectively identified the beneficiaries of the accounts when giving evidence on 21 November. It appears that no-one from the Unit attempted to interview any of them before the Committee reconvened on 13 December."

1. The Committee then dealt with the charges of contravention of s. 56 (e), those dealing with the application for Medicare cards in false names, and the opening of the account of Citibank in a false name. As I have indicated, the Committee decided that the penalty should be varied by transferring the second respondent to position No. 707, Customs Officer Band 3.

2. It will be appropriate to deal further with this branch of the case after dealing with the treatment of the charges under s. 56 (a), and with the question of privilege.
   The Privilege Against Self-Incrimination

3. As the common law is understood in Australia, the privilege extends to the making of a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character: Sorby v The Commonwealth of Australia (1983) 152 CLR 281 at 291-2 (Gibbs C.J.), 310 (Mason, Wilson, Dawson JJ.). The privilege to decline to answer a question is only available, as Gibbs C.J. put it, if there is reasonable ground to apprehend danger of incrimination to the individual concerned if he is compelled to answer: Sorby at 290.

4. Before this Court, despite the "administrative" nature of the proceedings under the Public Service Act, submissions of the applicant and the second respondent proceeded on the footing that if the common law privilege existed and had not been relevantly abrogated by the legislation, it would have been open to the second respondent to rely upon it. However, the applicant submitted that the legislation abrogated the privilege and, that, in any event, the conduct of the second respondent and his solicitors fell short of what was necessary for him to claim the privilege. The applicant further submitted that in reaching contrary conclusions on both of these matters, the Committee had fallen into reviewable error so as to attract a remedy under the ADJR Act.

5. In providing for the establishment and conduct of the Australian Public Service, the Public Service Act and the Regulations thereunder create and control valuable rights enjoyed by officers and employees of the Service. The sections dealing with discipline of officers contained in Division 6 of Part III may, as is indicated by the terms of ss. 62 and 63D, lead to the dismissal of an officer by administrative procedures. These do not require the intervention of a court and the exercise of the judicial power of the Commonwealth. The Parliament may validly legislate in this way. The legislation is an illustration of the kind referred to by Barwick C.J. in The Queen v Quinn; ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 5, of rights being given under statute with a power of modification or destruction conferred by the provisions of the statute itself and without any necessary recourse to the judicial power. There is involved none of what Jacobs J., in the same case (at 11), described as basic rights necessarily judged by an independent judiciary. The judicial power is engaged only in the limited function of judicial review; cf. Miller v TCN Channel Nine Proprietary Limited (1986) 161 CLR 556 at 614-5.

6. On the other hand, the privilege against self incrimination is not an integral element in the exercise of the judicial power reposed in courts exercising federal jurisdiction pursuant to Chapter III of the Constitution: Sorby at 298-9, 306-8. Both that case and Pyneboard Proprietary Limited v Trade Practices Commission (1983) 152 CLR 328 supply authority for the propositions that (i) the privilege is ingrained in the common law and as such is applicable to executive action pursuant to s. 61 of the Constitution and action taken in execution of the laws of the Commonwealth, (ii) the privilege is not inherently incapable of application in non-judicial proceedings, and (iii) the operation of the privilege may, either expressly or by necessary implication, be qualified or abrogated by statute. As to propositions (i) and (ii), where the privilege is taken in non-judicial proceedings, it follows that s. 79 of the Judiciary Act 1903 can have no operation to pick up the law of any State. The relevant common law is that of Australia. This is so whether one takes the view that "(t)he common law comes first and federal measures operate in and upon the legal order ordained by the common law", or that the new system of law established by the Constitution incorporated "by assumption the substratum of the common law upon which it was built": Breavington v Godleman (1988) 169 CLR 41 at 107 (Brennan J.), 120 (Deane J.) respectively.

7. Police Service Board v Morris (1985) 156 CLR 397 at 402-3, 408, establishes that the "penalties" with which the privilege is concerned extend to disciplinary action such as that provided for in sub-s. 62 (6) of the Public Service Act. There is an issue as to the standing of the common law privilege where it was alleged that the second respondent failed to fulfil his duty as an officer by wilful disobedience to a direction with which it was his duty as an officer to comply (within the meaning of sub-s. 56 (a)), namely a "lawful and reasonable direction" within the meaning of reg. 8A (c) of the Public Service Regulations to answer certain questions. May a "lawful and reasonable direction" be given which requires the addressee to answer questions, against which he would otherwise have the protection of the common law, upon pain of a charge under s. 61 of the Public Service Act? The issue before this Court is whether the Committee fell into reviewable error in answering that question favourably to the second respondent.
   Was The Privilege Excluded?

8. Does this legislation reveal clearly either by express words or necessary implication that the intention of the Parliament was that the privilege should not be available or, put somewhat differently, does consideration of the language and character of the legislation, set in the context of the purpose which the provisions are designed to achieve, yield unequivocally the conclusion that the legislature intended to exclude the privilege: Police Service Board v Morris supra at 404 (Gibbs C.J.), 408 (Wilson, Dawson JJ.) respectively? The phrase "necessary implication" imports a high degree of certainty as to legislative intention, and the privilege is not lightly abrogated: Hamilton v Oades (1989) 166 CLR 486 at 495 per Mason C.J.

9. In the present case there are no express words in any of the provisions immediately relevant which exclude or qualify the privilege. Counsel for the applicant pointed to reg. 18 of the Merit Protection (Australian Government Employees) Regulations, which was inserted by Statutory Rule No. 380 of 1985. Regulation 18 states:
   

"18 (1) Subject to sub-regulation (2), a person summoned to attend at a proceeding before a Disciplinary Appeal Committee shall not, without reasonable excuse -

(a) fail (in the case of a person other than an officer or employee, after tender of reasonable expenses) to attend or to produce documents in accordance with the summons;

(b) at that proceeding refuse to be sworn or to make an affirmation; or

(c) at that proceeding refuse to answer a question, relevant to that proceeding, that the Chairman of that Committee requires that person to answer.

Penalty: $40.

(2) Nothing in these Regulations shall be construed as requiring a person to answer a question where the answer to that question would tend to incriminate that person."

It will be apparent that reg. 18 is concerned with procedures before the Committee, not those adopted by an officer charged with the holding of an inquiry into misconduct pursuant to s. 62 of the Public Service Act or an anterior "administrative inquiry" in the course of which a direction is given that questions be answered. It is true that a Disciplinary Appeal Committee may be called upon pursuant to s. 63D of the Public Service Act to deal with an appeal against a decision made upon an inquiry into misconduct allegedly constituted by a failure to answer such questions. In that event, reg. 18 will apply to the procedures then adopted by the Committee. In the present case, as I have indicated, the second respondent gave oral evidence and was cross-examined before the Committee; he did so without invoking sub-reg. 18 (2) and did not refuse to answer questions. But the Court presently is not directly concerned with this.

1. In my view, the circumstance that in delegated legislation made under the Merit Protection Act specific provision is made, apparently for more abundant caution, to preserve the privilege in proceedings before the Committee, does not assist the argument that, at the anterior stage of a direction under reg. 8A of the Public Service Regulations, the privilege is abrogated. Regulation 18 should not be treated as an exhaustive statement of the circumstances in which the privilege may be relied upon in the course of the chain of investigation with which this litigation is concerned. As Lockhart J. pointed out when dealing with a comparable argument concerning the treatment of legal professional privilege by the National Crime Authority Act 1984, a provision such as this is best read as doing no more than stating one particular circumstance in which the common law right may be invoked: National Crime Authority v S. (1991) 29 FCR 203 at 208-9.

2. In their joint judgment in Pyneboard, supra at 342-3, Mason A.C.J., Wilson and Dawson JJ. explained that the conclusion that the privilege is impliedly excluded will be less readily drawn in cases where the obligation to answer questions and produce documents is an element in an examination on oath before a judicial officer. They also said in this passage:
   

"That the privilege is impliedly excluded . . . is a conclusion which, as we have noted, may be more readily drawn where the obligation to answer questions or provide information does not form part of an examination on oath. The obligation to give an answer not on oath at an executive inquiry provides an illustration."

Earlier (at 340) their Honours had said:

"There is in addition the problem of deciding whether it is for the authority requiring the answer, production of documents or the provision of information, or the court in subsequent proceedings by way of prosecution for an offence, to decide whether the claim for privilege is correctly made. It is difficult to suppose that the determination is to be left to an unqualified person. And there are practical problems in leaving the determination of the correctness of the claim for privilege to a court in proceedings by way of prosecution for the offence of refusing to answer questions, provide information or produce documents."

This passage was referred to by Gibbs C.J. when reiterating the point in Police Service Board v Morris supra at 404-5.

1. However, in the present case, in response to the reliance by the applicant upon these passages, counsel for the second respondent made two submissions, both of which should be accepted. The first was that difficulties of the kind referred to are perhaps inevitable once it be accepted, as it must be, that the privilege extends beyond the conduct of judicial proceedings. In Ligertwood "Australian Evidence", 1988, para 5.69, the following is said:
   

"Outside judicial proceedings the existence of privilege creates a huge practical problem where a person subject to investigation refuses to answer. Where the investigation is through a royal commission or other quasi-judicial tribunal a claim can be made to that body and prerogative remedies sought in cases of dispute. Where the investigation is through officials with no particular qualifications the person investigated must either refuse disclosure and await prosecution or seek to have the investigation set aside."

Counsel's second submission was that in investigations of the kind with which the present dispute is concerned, the position is alleviated by the pattern in which the legislation has been cast. Section 62 of the Public Service Act will come into play where the alleged failure to comply with reg. 8A and s. 56 (a) leads to a charge under s. 61 of misconduct. Section 62 relies heavily upon a procedure involving written statements, rather than oral interrogation. Sub-sections 62 (3), (4) and (5) provide as follows:

"62 (3) In an inquiry for the purposes of subsection (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.

(4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer.

(5) An officer who has been charged with misconduct under section 61 shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter."

Further, if the right of appeal under s. 63D to a Disciplinary Appeal Committee is exercised on the grounds that the charge should have been dismissed or that the action directed to be taken in relation to the charge is unduly severe, the Committee, as in the present case, must include a legal practitioner of not less than five years' standing as the Convenor. The result is that within the administrative structure established by the Public Service Act and the Merit Protection Act, there can be no final administrative determination upon an inquiry under s. 62 concerning misconduct by reason of failure to comply with a lawful and reasonable direction under reg. 8A, without the opportunity for consideration by a legally qualified person of any question of privilege against self incrimination as a reason for failure to comply with the direction.

1. Counsel for the applicant also stressed the width of the terms in which reg. 8A (c) is expressed. That may be conceded, but the phrase "lawful and reasonable" contains words of limitation which are consistent with the preservation of the privilege, even if, of themselves, they do not compel the conclusion that the privilege is not abrogated.

2. Like reg. 8A (c), the regulation at issue in Warnecke v Pope (1950) SASR 113 spoke of disobedience or failure to comply with "any reasonable direction", given in this case by an officer or inspector under the Dried Fruits Act 1934 (S.A.) or the regulations thereunder. Provision was made for a penalty not exceeding one hundred pounds. Of this regulation, Napier C.J. and Abbott J. said (at 118-9) that the word "reasonable" was introduced for the protection of the interests of the party interrogated and of third parties. Their Honours continued:
   

"It would be difficult to think of any other word which leaves so much to the discretion or opinion of the individual who has to apply it, but it seems to us that if the legislature regards the usage of the common law as unreasonable, it ought to say so. Until some other discrimen is provided for our guidance, we think that we should follow the usage of the general law, and say that an inquiry is unreasonable, if the purpose of the officer is to obtain admissions incriminating the person interrogated. So also we think that we should hold an inquiry unreasonable if it is pressed beyond the point at which the tendency to self-incrimination becomes apparent. But on the other hand it is necessary to notice that the word 'reasonable' qualifies the inquiry, and not the refusal to answer, and (once more following the usage of the law) we think that this would justify a question, which is put in good faith for the purpose of ascertaining whether there has been any contravention of the Act, up to the point at which objection is taken and the tendency to self incrimination has become apparent."

1. Counsel for the present applicant also submitted that those responsible for reg. 8A must have intended that any cause for suspicion touching the performance of his duties by an officer could be the subject of questions directed to him by a superior officer, and that there would be an obligation to answer to the questions so put, whether or not they would tend to incriminate the officer. Counsel for the applicant, in support of that submission, referred to various passages in Morris, supra at 404, 410, 411-2. But a perusal of those passages indicates there is some force in the contrary submission of the second respondent that the High Court was particularly concerned in Morris with the impairment of discipline in the Police Force if a police officer might claim the privilege when, whilst on duty, he was ordered to give information about his activities to a superior officer.

2. It has for some time been considered that legislation relating to members of disciplined services is perhaps in a particular category; see Ex parte Grinham; re Sneddon (1959) 61 SR (NSW) 862 at 872. On the other hand, whilst allowing for the importance given by the legislature to the question of discipline for the efficient equitable and proper conduct spoken of in s. 6 of the Public Service Act, as evinced by the extensive provisions of Division 6 of Part III, there will be many areas of responsibility which are not of the same gravity as those with which the legislation the subject of Morris was concerned.

3. In all the circumstances, I do not consider that the applicant has made out its case of showing that the privilege is abrogated as a matter of necessary implication by the legislation under consideration. The result is that the Committee in deciding the point against the applicant did not fall into reviewable error of law within the meaning of para. 5 (1) (f) of the ADJR Act.
   "Claiming" the Privilege

4. There remains the issue whether the Committee committed a reviewable error in deciding that the claim for privilege had been taken by the second respondent. The Committee decided that it was beyond doubt that the second respondent had claimed the privilege, and that the nature of the questions put to him was the reason for the claim.

5. The question of whether the privilege was claimed would, in my view, ordinarily be considered a question of law. There was some discussion in submissions as to whether what was under challenge were factual findings by the Committee, which were antecedent to the decision upon the question of law. But even if that were so, the avenue of judicial review would not be closed. This was not really disputed by either side before me. It is true that it is now settled, for the purposes of the ADJR Act, that in ordinary circumstances a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than step along the way to an ultimate determination. Nevertheless if a statute requires or authorises a decision-maker to determine an issue of fact as an essential preliminary for the taking of ultimate action or the making of an ultimate order, there will be a reviewable decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

6. In the present case, s. 63D of the Public Service Act required the Committee to determine whether or not the charges against the second respondent should have been dismissed in the inquiry under s. 62. Two of the central issues in that determination were (i) whether the privilege subsisted and (ii) whether it had been claimed. The review of the factual matter upon which the Committee based its conclusion that the privilege had been claimed was not merely a step along the way in a course of reasoning leading to an ultimate decision and thus something not ordinarily a reviewable decision, in the sense described in Australian Broadcasting Tribunal v Bond supra.

7. As counsel for the applicant points out, in the earlier portions of its reasons for decision the Committee set out extracts from the materials conveying the response to the first set of questions, those handed to the second respondent on 23 May 1990. It was in response to questions 7 and 8 of that set of questions that the second respondent stated that the questions required answers "which could potentially be self incriminating". As I have indicated, counsel for the applicant submits that this was the only express reference to that privilege in all of this material and that the subject of the misconduct with which the second respondent was charged arose out of his treatment of the third set of questions, delivered 4 February 1991. However, it is apparent that the Committee relied generally upon the response to the three sets of questions. It said:
   

"The (second respondent) steadfastly refused to give many details requested but always asserted he had done nothing wrong in opening and maintaining the accounts, that he had done it as a favour to friends and that it was a private matter which should not concern the Department. He also claimed in correspondence by himself and his solicitors with the Department a legal basis for refusing to provide the information, some of which is worth quoting as it is relevant to the principal point of law involved . . ."

There followed not only an extract from the correspondence dealing with questions 7 and 8, but also extensive extracts from later correspondence. This included the letter dated 20 February 1991 from the second respondent's solicitors, which I dealt with earlier in these reasons.

1. Counsel for the second respondent submitted that there was before the Committee sufficient material for it to conclude that, in relation to the questions with respect to which the three charges under s. 56 (a) were laid, his client had been relying upon the privilege against self incrimination, that this was so even if in the correspondence his solicitors did not use the phrase itself, and even if other complaints had been made at the conduct of the inquiry at its various stages. I accept those submissions.

2. No particular form of words is necessary to claim the privilege, provided language is used which may reasonably be expected to be understood as an attempt to invoke the privilege: Quinn v United States 349 U.S. 155 at 162-3, and other authorities cited in "Wigmore on Evidence", McNaughton Revision, Vol. VIII, para 2268. (The cogency of what is there said is not diminished by the transcendent effect given the privilege in the United States by the Fifth Amendment; cf. A.T. and T. Istel Ltd v Tully (1992) 2 All E.R. 28 at 39.) Further, a person invoking the privilege may do so at whatever stage of the inquiry he chooses to claim it and whether or not he has already answered the question in part or not at all: Regina v Garbett (1847) Denison's Crown Cases 236 at 258.

3. The further submission was also made for the second respondent that, in any event, it would have been sufficient for his client's case before the Committee that at the earlier stage of the inquiry the privilege had existed and he then had refused to answer the written questions to which it related. It would then have been open to the Committee to uphold the privilege, as in effect happened. Had it been necessary to do so, I would have accepted that upon this additional footing there should be no order of review of the Committee's decision upon the charges under s. 56 (a).

4. It is often said that the privilege against self incrimination must be "claimed" so that in judicial proceedings the Judge may rule on the question of whether the witness can refuse to answer or whether a document may not be produced, without the commission of a contempt. On the other hand, the fundamental right involved is what Sir Alexander Cockburn L.C.J. described as "the privilege of silence": R. v Boyes (1861) 30 LJQB 301 at 303. The point was further developed in Warnecke v Pope supra at 117, where Napier C.J. and Abbott J. said:
   

"The basic principle of the common law is 'freedom within the law', and it follows that the common law right of the individual is wider than any privilege against self-incrimination. It is the right to do as he pleases - to speak or to hold his tongue - unless the questioner can point to some power, given by the law, as his authority for requiring an answer: Clough v Leahy (1905) 2 CLR 139 at 157 . . .

The proper bearing of the maxim nemo tenetur seipsum accusare, is as a rule of procedure, which limits the power of the courts of the land to compel answers to the questions which can be put to the witnesses who appear before them. This power of compulsion is exceptional, and wherever it is given by the common law, the privilege against self-incrimination stands as the limitation - an exception upon the exception."

This brings me to the second branch of this case.

The Section 56 (e) Charges

1. In its reasons for decision, the Committee dismissed shortly the argument that these charges had not been made out. It then moved to consider the question of penalty. The second respondent had contended the penalty imposed had been unduly severe. The Committee said that it viewed the misconduct of the second respondent with which these charges were concerned as serious and deserving a considerable penalty. It referred to the serious nature of the misrepresentations made to the Health Insurance Commission, the disrepute into which his activities had brought the Customs Service. The Committee said:
   

"It is particularly relevant that the (second respondent) was an employee of a revenue collecting Department which, because of the nature of its work, will have to work harder than other departments in maintaining its reputation. It undermines the credibility of this Department and the trust the public should have in it."

The Committee then continued:

"However the Committee has taken into account the (second respondent's) 25 years of otherwise unblemished service in the Customs service which included a period of acting as a Customs Officer Band 6.

It has also considered the considerable drop in salary for an officer who has been in receipt of a Band 5 or Band 6 salary for so many years and the consequent resulting deterioration of his lifestyle.

For an officer who has worked for so long in the Department and reached a point nearly twice as high as the position to which he is to be demoted it will be a considerable humiliation

(sic).

There was also evidence before the Committee that after he was suspended without salary he developed a stress-related illness for many months that was sufficient for the Department to put him on sick leave for that time. This has resulted in him using and losing sick leave entitlements that he had accrued during his 25 years of service.

Lastly the Committee has taken into account the fact that the (second respondent) never obtained these Medicare cards for the purpose of defrauding Medicare but to open bank accounts at a time when it was legal to do so and that the misconduct did not incur during or in connection with the course of his employment. The Committee varies the penalty imposed to transferring the (second respondent) to Position No. 707, Customs Officer Band 3."

The applicant submitted three grounds upon which this decision as to the variation of penalty should be set aside. First, he contended that insofar as he succeeded in setting aside the decision of the Committee as regards the s. 56 (a) charges, it ought, as a "domino effect" to reassess its treatment of the penalty in respect of the charges under s. 56 (e). Secondly, it was submitted that there was a "considerable potential for inconsistency" to have on the one hand a penalty of reduction in rank on the s. 56 (e) charges whilst there would remain the possibility of dismissal if the Committee were properly to redetermine the s. 56 (a) charges after the making in this proceeding of an appropriate order of review. Both these grounds are contingent upon the success of the applicant on the other branch of this application, an event which has not come to pass. There remains, therefore, only the third ground that was put forward by the applicant.

1. The applicant fixed upon the penultimate paragraph in the extract set out above from the Committee's decision. Counsel submitted that in assessing the gravity of the conduct of the second respondent in relation to the issue of the Medicare cards, there needed to be, but had not been, a decision by the Committee as to the true nature of the activities of the second respondent so that a proper assessment might be made of the gravity of his conduct.

2. Sub-section 63D (3) empowered the Committee to "confirm, vary or set aside the decision against which the appeal (was) made". Counsel referred to the requirement in sub-s. 63D (6) of the Public Service Act that the Committee take into consideration any evidence given on the hearing of the appeal of matters relating to the general character of the appellant. The sub-section provides:
   

"63D (6) Where an officer appeals to a Disciplinary Appeal Committee under subsection (2) against a decision on the ground that the action directed to be taken in respect of him is unduly severe, the Committee shall take into consideration any evidence given on the hearing of the appeal:

(a) of matters relating to the previous employment history and general character of the appellant;

(b) if the officer was, under section 63B, suspended without salary in respect of the misconduct or offence to which the decision relates - of any loss of earnings arising from that suspension; and

(c) if the officer is to be transferred to another office - of the expenses that will be incurred by the officer in connexion with that transfer."

In relation to this third ground, counsel for the applicant relied, as a ground of review under the ADJR Act, upon para. 5 (1) (e) together with para. 5 (2) (b), namely a failure to take into account a relevant consideration, being "the propriety of the general activity of the second respondent". This ground of review can only be made out if the decision-maker fails to take into account a consideration he was found to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 per Mason C.J. Those matters may be expressly stated or appear by implication from the subject-matter, scope and purpose of the legislation: Peko-Wallsend supra at 39-40 (Mason C.J.) 56 (Brennan J.). There was no attempted recourse to Wednesbury principles, as to which see Allars "Introduction to Australian Administrative Law", para 5.50 - 5.60.

1. The Committee was obliged by sub-s. 63D (6) (a) to take into consideration any evidence given at the hearing of the appeal of matters relating to the previous employment history and general character of the second respondent. Plainly, in my view, it did so. In the circumstances of the case, the Committee was not bound to take into account to any greater extent than it did the propriety or impropriety of the "general activity of the second respondent" in relation to the conduct of the bank accounts, particularly when, as counsel for the second respondent emphasised, the three criminal charges upon which the second respondent was convicted were limited in the fashion described earlier in these reasons. I am left with the impression that in substance the applicant seeks on judicial review the re-exercise on the merits of the discretion involved in the decision of the Committee to vary the decision under appeal for alleged undue severity.

2. Indeed, there is some strength in the submission for the second respondent that if the Committee had conducted itself as the applicant would have it act, it would have erred in the exercise of its powers under sub-s. 63D (3) as to the disposition of the appeal. Counsel referred, by way of analogy, to what was said by Gibbs C.J. in The Queen v De Simoni (1981) 147 CLR 383 at 389-91 as to the long established principle at common law that circumstances of aggravation not alleged in the indictment could not be relied upon for the purposes of sentence if those circumstances could have been made the subject of a distinct charge, but this was not done.

3. In any event, the Committee had received a substantial body of evidence going to the conduct of the second respondent and including such topics as the operation of the bank accounts. Earlier in its decision, the Committee said:
   

"At the proceedings before the Committee the (second respondent) gave sworn evidence about all these matters and was subjected to extensive cross examination. He said it was a private matter. He wrote the names of the seven beneficiaries on a piece of paper and orally identified them by their first names and the first initial of their surnames. He said he opened the first account for a close relative who was having matrimonial problems. The others were friends and former rugby league players who each heard of other beneficiaries for whom he opened accounts. One wanted a punting account and he suspected others needed it to disperse payments relating to playing or coaching rugby league or promotions flowing therefrom. He stated he never asked them why they wanted the accounts and never believed that there was anything untoward in the actions or motivations of the seven. He said there could be good reasons why rugby league players would not want others involved in the game to know details of their earnings.

He stated he made enquiries of the Tax Department who told him there was no problem with opening such accounts in false names provided tax was paid on the interest earned thereon. He stated he advised each of the seven to declare the tax. He called evidence to demonstrate that opening bank accounts in false names was not illegal during the relevant period although it has more recently become illegal. He further stated that he knew directly or indirectly persons in all the banks where he opened the accounts but for Citibank which was the only occasion he used one of the Medicare cards.

He called one of the beneficiaries to give evidence who said he requested the (second respondent) to open an account for him after he heard of the account the (second respondent) had opened for his close relative with matrimonial problems. This witness was also having domestic problems. The witness said that his (the witness's) brother subsequently got the (second respondent) to open an account for him. He said that the monies deposited by himself and his brother were quite legitimate. The (second respondent) disputed telling the police 'it's only a tax thing' but said 'at worst there could be a tax implication'. Some time after he had been maintaining the accounts the beneficiaries approached the (second respondent) and suggested that he take some of the interest earned thereon. Although this benefit accrued to the (second respondent) he never took any such money before the police seized the relevant documents and the Taxation Commissioner seized the residue of monies in the accounts."

What the Committee later said when dealing expressly with penalty has to be understood against this background.

1. The application for an order of review also fails as regards this branch of the case.
   Conclusion

2. The application should be dismissed and the applicant should pay the costs of the respondents. I have already indicated the limited basis upon which the Committee participated in the proceeding in this Court. The Committee's costs should be limited to those of a submitting party.