D151 v New South Wales Crime Commission

[2017] NSWCA 143

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143

Hearing dates:

24 February 2017

Decision date:

21 June 2017

Before:

Beazley ACJ at [1];
Basten JA at [2];
Simpson JA at [43]

Decision:

Q1. Upon its proper construction, does s 35A of the Crime Commission Act 2012 (NSW) (“Act”) confer a power upon the Supreme Court to grant leave to the New South Wales Crime Commission to take evidence from a person who is the subject of a current charge against the laws of the Commonwealth?

 

Answer:   Yes.

 

Q2. If yes, is s 35A of the Act invalid to that extent, on the ground that to permit such leave to be granted in those circumstances:

 

(a) would contravene Ch III of the Constitution by reason that it would purport to authorize a contempt of a State court exercising federal criminal jurisdiction thereby impairing the institutional integrity of that court as a repository of judicial power of the Commonwealth; or

 

(b) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:

 

(i) essential features of the judicial power of the Commonwealth, namely the accusatorial nature of a criminal trial (as considered in X7 v Australian Crime Commission (2013) 248 CLR 92); or

 

(c) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial … by jury’ on an indictment for an offence against a law of the Commonwealth?

 

Answer:   No.

 

Q3. If yes, should s 35A of the Act be read down to avoid any operation that would be constitutionally invalid?

 

Answer:   Does not arise.

 

Q4. If yes, how should s 35A of the Act be read down?”

 Answer:   Does not arise.

Catchwords:

CONSTITUTIONAL LAW – respondents charged with federal criminal offences – power of court to grant leave to State body to examine person about the subject matter of pending federal criminal charges – power conferred by Crime Commission Act 2012 (NSW) s 35A – whether provision invalid because it (a) contravenes Constitution Ch III (b) interferes with essential features of judicial power to control abuse of process and the adversarial nature of a criminal trial or (c) alters fundamental features of a trial by jury under Constitution, s 80

 

CRIME – Crime Commission Act 2012 (NSW) s 35A – whether provision confers power on court to grant leave to authority to examine a person subject to pending federal criminal charges

 

STATUTORY INTERPRETATION – whether reference to an “offence” in a State statute covers an offence under federal law – application of Interpretation Act 1987 (NSW), s 12(1) – whether contrary intention appears in substantive Act – Interpretation Act, s 5(2)

WORDS AND PHRASES – “offence” – Crime Commission Act 2012 (NSW) –whether “offence” in s 35A includes federal offences

Legislation Cited:

Constitution, ss 80, 109; Ch III
Australian Crime Commission Act 2002 (Cth), 24, 25, 28, 29, 30
Judiciary Act 1903 (Cth), ss 68, 78B, 79, 80
Costs in Criminal Cases Act 1967 (NSW), ss 2, 4
Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
Crime Commission Act 2012 (NSW), ss 4, 5, 10, 11, 12, 13, 17, 18, 21, 21A, 24, 25, 29, 35A, 39, 39A, 45, 50, 57
Crime Commission Legislation Amendment Act 2014 (NSW) Sch 1[6].
Criminal Appeal Act 1912 (NSW), s 5
Criminal Assets Recovery Act 1990 (NSW), ss 6, 31D
Drug Misuse and Trafficking Act 1985 (NSW), ss 24 to 29
Interpretation Act 1987 (NSW), ss 5, 12, 33, 34
Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45
Elzein v Commissioner of Australian Federal Police [2017] NSWCA 142
Felton v Mulligan (1971) 124 CLR 367
Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42
Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
Re Macks; ex parte Saint (2000) 204 CLR 158; [2000] HCA 62
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41
Seaegg v The King (1932) 48 CLR 251
Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Category:

Principal judgment

Parties:

D151 (First Applicant)
D152 (Second Applicant)
D154 (Third Applicant)
New South Wales Crime Commission (Respondent)
Attorney General (New South Wales) (Intervener)

Representation:

Counsel:
Mr P Lange/Mr A Ahmad (First and Second Applicants)
Mr G Jones (Third Applicant)
Ms W Abraham QC/Ms J Williams (Respondent)
Mr M G Sexton SC SG/Ms J Davidson (Intervener)

  Solicitors:
Zahr Partners (First Applicant)
Korn MacDougall Legal (Second Applicant)
R F Bergagnin & Co (Third Applicant)
NSW Crime Commission (Respondent)
Crown Solicitor’s Office (Intervener)

File Number(s):

2016/360126

 Referred questions 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Date of Decision:

29 November 2016

Before:

Rothman J

File Number(s):

2015/283656

headnote

[This headnote is not to be read as part of the judgment]

On 29 November 2014, the applicants were arrested by the Australian Federal Police and charged under the Criminal Code (Cth) with offences involving the possession or attempted possession of unlawfully imported drugs. In December 2015, an officer of the New South Wales Crime Commission (“the Commission”) made an ex parte application in the Supreme Court seeking leave to examine the applicants in relation to the subject matter of the federal offences.

On 3 December 2015, ex parte orders were made in closed court prohibiting the disclosure of matters including the names of the applicants, and granting leave to the Commission under s 35A of the Crime Commission Act 2012 (NSW) to question the applicants pursuant to s 24, and to require them to produce documents pursuant to ss 24 and/or 29.

On various dates in December 2015 and April 2016, the Commission issued summonses to the applicants requiring them to appear before the Commission to give evidence and to produce any required document or thing. In early May 2016, the applicants sought to set aside the ex parte orders made on 3 December 2015.

On 29 November 2016, orders were made, by consent, for the separate determination of specified questions and the removal of the proceedings into this Court.

Shortly stated, the questions for determination were:

(a) Does s 35A of the Crime Commission Act confer a power upon the Supreme Court to grant leave to the Commission to take evidence from a person who is the subject of pending federal charges?

(b)   If yes to (a), is s 35A invalid to that extent, on the ground that to permit such leave to be granted in those circumstances would contravene Ch III of the Constitution?

The Court (Beazley ACJ, Basten JA and Simpson JA) held:

In relation to (a):

1. There is no reason in principle why the State legislature cannot provide protection from questioning in the exercise of executive power of persons charged with offences of any kind, whether involving contraventions of state or federal law: [24].

2. The reference to “a person who is the subject of a current charge for an offence” includes a person who is subject to a charge arising under federal law: [33], [94].

Seaegg v The King (1932) 48 CLR 251; [1932] HCA 47, discussed; Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, applied; Re Macks; ex parte Saint (2000) 204 CLR 158; [2000] HCA 62; Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45, discussed.

In relation to (b):

3. In granting leave under s 35A(5) the Supreme Court is not exercising a function which is incompatible with the essential characteristics of a court in which federal jurisdiction may be vested. Nor does the State Parliament lack power to pass laws which touch upon the exercise of federal jurisdiction by State courts. The subject matter of the proceeding in the Supreme Court is the proposed exercise by the State authority of its compulsory powers of investigation: [37]. Whether, in a particular case, the exercise of the power, with leave, may be thought to give rise to an unfair trial, will be determined within the State court system. It is not necessary to decide whether, for this purpose, in circumstances where the requirement for leave results from the laying of a charge under federal law, the State court is exercising federal jurisdiction: [39].

4. Section 35A is not constitutionally invalid. It confers power on a Supreme Court judge to determine whether the Commission may undertake the exercise of compulsory powers with respect to a person charged with a federal offence. Whether, in a particular case, leave should be granted is within the discretion of the judge. That is a conventional exercise of judicial power: [40].

5. The point of s 35A was to state explicitly that cases holding that to compel answers to questions about the subject matter of pending charges would be a contempt of court were not to apply to the exercise of the power of examination with respect to the subject matter of “offence[s]” as used in that section: [103]-[107].

Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, discussed.

Judgment

1. BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Basten JA and Simpson JA. I agree with their Honours’ respective reasons and the answers to the questions proposed by Basten JA.

2. BASTEN JA: On 29 November 2014, a number of individuals, including the present applicants, were arrested by officers of the Australian Federal Police and charged under the Criminal Code (Cth) with offences of possessing or attempting to possess unlawfully imported drugs, being methylamphetamine and MDMA. The identities of the applicants were anonymised for the purposes of the present proceedings, while the criminal proceedings are pending.

3. In December 2015 an officer of the New South Wales Crime Commission (“the Commission”) made an ex parte application in the Supreme Court for leave to examine each of the applicants in relation to the subject matter of the federal offences. The Commission was acting pursuant to a reference under s 51(1)(a) of the Crime Commission Act 2012 (NSW) to investigate illegal drug trafficking contrary to ss 24 – 29 of the Drug Misuse and Trafficking Act 1985 (NSW), and related money laundering activities.

4. On 3 December 2015 Adamson J made orders ex parte in closed court:

1. prohibiting disclosure of certain matters, including the names of the defendants, who were given the identifiers indicated in the title to this proceeding;

2. granting leave to the Commission pursuant to s 35A of the Crime Commission Act 2012 (NSW) to question each of the applicants pursuant to s 24, and to require the applicants to produce documents, pursuant to ss 24 and/or 29 of the Crime Commission Act.

5. On various dates in December 2015 and April 2016, the Commission issued summonses directed to each of the applicants requiring him to appear before the Commission to give evidence and to produce any document or thing required by the executive officer presiding at the hearing. Each summons stated:

“The general nature of the matters in relation to which the Commission intends to question you is your knowledge of and involvement with drug syndicates and persons suspected to be involved in the importation, storage and supply of prohibited drugs.”

6. The summons, together with accompanying documents, served on each applicant included a notice stating that the Commission had obtained leave from the Supreme Court and a copy of the orders made by the Supreme Court. Each applicant was also notified of his right to seek review of the grant of leave under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”). The notice was accompanied by a statement issued by the New South Wales Crime Commission Management Committee referring matters to the Commission for investigation. In early May 2016, each of the applicants filed a notice of motion seeking to set aside the orders made by Adamson J. (Although they were defendants in the proceedings commenced by the Commission, all parties adopted the convention of referring to the persons against whom the orders were sought as “the applicants”, because they were applicants on the motions challenging the orders; it is convenient to continue that nomenclature.)

7. On 29 November 2016, orders were made by consent for the separate determination of specified questions and removing the proceedings into this Court. The questions were as follows:

“1. Upon its proper construction, does s 35A of the Crime Commission Act 2012 (NSW) (“Act”) confer a power upon the Supreme Court to grant leave to the New South Wales Crime Commission to take evidence [from] a person who is the subject of a current charge against the laws of the Commonwealth?

2. If yes, is s 35A of the Act invalid to that extent, on the ground that to permit such leave to be granted in those circumstances:

(a) would contravene Ch III of the Constitution by reason that it would purport to authorize a contempt of the Federal court before which the current charge is pending; or

(b) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:

(i)   essential features of the judicial power of the Commonwealth, namely the court’s inherent power to control abuse of process or the adversarial nature of a criminal trial (as described in X7 v Australian Crime Commission (2013) 248 CLR 92); or

(ii)   the manner in which a criminal trial takes place before a court exercising the judicial power of the Commonwealth; or

(c) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial … by jury’ on an indictment for an offence against a law of the Commonwealth?

3. If yes, should s 35A of the Act be read down to avoid any operation that would be constitutionally invalid?

4. If yes, how should s 35A of the Act be read down?

5.   Did her Honour err in not determining the matter inter partes?

6. Did her Honour err, when granting leave pursuant to s 35A(2) of the Crime Commission Act 2012 (NSW) in concluding that the affidavit of Tuckerman met the requirements?”

8. This Court indicated in the course of the hearing that it would not provide answers to questions 5 and 6. Those questions reflected a false premise, namely that an application under r 36.16 requires the party challenging an order made in his or her absence to demonstrate error on the part of the primary judge. The proceeding is not by way of an appeal, but by way of an application pursuant to UCPR, r 36.16(2)(b), to “set aside or vary” the judgment and orders which have been entered. Pursuant to that rule, the parties are entitled to a review of the facts and circumstances which gave rise to the orders. That is an appropriate matter to be dealt with by a judge in the Division, and should not be addressed for the first time by this Court.

9. There was also a technical problem in the phrasing of question 2(a); the current charges are not pending in the Federal Court (or a federal court), but rather in a State court exercising federal jurisdiction.

10. Following the hearing, the parties agreed upon the following amended questions, which remedied those difficulties:

“1. Upon its proper construction, does s 35A of the Crime Commission Act 2012 (NSW) (“Act”) confer a power upon the Supreme Court to grant leave to the New South Wales Crime Commission to take evidence from a person who is the subject of a current charge against the laws of the Commonwealth?

2. If yes, is s 35A of the Act invalid to that extent, on the ground that to permit such leave to be granted in those circumstances:

(a) would contravene Ch III of the Constitution by reason that it would purport to authorize a contempt of a State court exercising federal criminal jurisdiction thereby impairing the institutional integrity of that court as a repository of judicial power of the Commonwealth; or

(b) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:

(i)   essential features of the judicial power of the Commonwealth, namely the accusatorial nature of a criminal trial (as considered in X7 v Australian Crime Commission (2013) 248 CLR 92); [1] or

(c) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial … by jury’ on an indictment for an offence against a law of the Commonwealth?

3. If yes, should s 35A of the Act be read down to avoid any operation that would be constitutionally invalid?

4. If yes, how should s 35A of the Act be read down?”

1.    Former subpar (ii) was deleted, leaving only (i).

11. The amended questions broadly reflect the questions raised in the companion matter of Commissioner of Police v Elzein, [2] which was heard together with these applications. However, the circumstances differ in that the present questions relate to the construction and validity of a State law, and not a Commonwealth Act.

Construction of s 35A, Crime Commission Act

2. [2017] NSWCA 142.

12. The issue identified in question 1 concerns the scope of the word “offence” and, in particular, whether, when used in a State Act, the word encompasses only an offence under State law, or extends to an offence under federal law.

13. It goes without saying that that question must be considered in its statutory context. The immediate context is s 35A which provides as follows:

35A   Leave of Supreme Court to take evidence from accused person about the offence

(1)   This section applies to a person who is the subject of a current charge for an offence, and relates to the taking of evidence from the person in relation to the subject matter of the offence.

(2)   The person cannot be:

(a)   questioned under section 24 at a hearing before the Commission, or

(b)   required under section 24 or 29 to produce a document or thing,

in relation to matters relating to the subject matter of the offence without the leave of the Supreme Court.

(3)   Evidence obtained pursuant to leave granted for the purposes of this section cannot be used against the person in any civil or criminal proceeding (other than a proceeding for an offence against this Act or an offence relating to the falsity of evidence given by the witness) or in any disciplinary proceeding, but is not inadmissible as against other persons.

Note. See section 39A (3) and (4) for derivative evidence.

(4)   The Commission may apply to the Supreme Court ex parte for leave supported by an affidavit of an officer of the Commission stating:

(a)   that the officer:

(i)   believes that the questioning or requirement is in the public interest notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offence, and

(ii)   suspects that the questioning or requirement is necessary to fully investigate the matter referred to in the copy of a notice accompanying a summons issued to the person, and

(b)   the grounds on which the belief and suspicion are based.

(5)   The Supreme Court may grant leave if it is satisfied that any prejudicial effect that is likely to arise to the person’s trial from the proposed questioning or requirement is outweighed by the public interest in using the Commission’s powers to ensure that a matter referred to in the copy of a notice accompanying a summons issued to the person is fully investigated.

(6)   Leave may be granted unconditionally or subject to conditions imposed by the Supreme Court.

(7)   If leave is granted, the Commission must, before the person is questioned in relation to matters the subject of the grant of leave, serve on the person notice of the grant of leave.

(8)   The notice must inform the person of any right under another law to seek a review of the grant of leave and of the right to make an application for assistance under section 42.

(9)   Nothing in this section limits the application to an application for leave of any of the functions and procedures of the Supreme Court in relation to proceedings that may be dealt with ex parte before that Court.

14. The section was introduced by the Crime Commission Legislation Amendment Act 2014 (NSW), [3] together with further amendments relating to derivative evidence obtained as a result of questioning pursuant to a grant of leave (s 39A) and further controls on disclosure of evidence.

    3. See Sch 1[6].

15. The Minister’s Second Reading Speech on the 2014 Bill noted that the amendments followed the judgments of the High Court in X7 v Australian Crime Commission [4] and Lee v New South Wales Crime Commission. [5] The purpose of the amendments was to express with clarity the intention to permit examination of, and production of documents by, persons charged with criminal offences. A further purpose was to ensure control by the Supreme Court of the exercise of the Commission’s powers in that respect. Accordingly, s 35A(2) is in the form of a qualified prohibition on questioning a person charged with an offence “in relation to matters relating to the subject matter of the offence.” (The variation to this language as between subss (1) and (2) was not treated as significant for the purposes of this case.)

    4. (2013) 248 CLR 92; [2013] HCA 29.

    5. (2013) 251 CLR 196; [2013] HCA 39.

16. The applicants’ submissions sought to limit the operation of s 35A, so that it did not apply to a person the subject of a current charge for a federal offence. The result would appear to be anomalous, because it would deprive the accused person of a level of protection. It is clear that the reference in subs (2) to “the subject matter of the offence” relates back to the reference in subs (1) to “the subject of a current charge for an offence”. If the section does not apply to federal offences, the prohibition in subs (2) does not operate and there is no requirement for the grant of leave by the Supreme Court. It may be that the applicants were content with that outcome, on the basis that a state law could not authorise the examination of any person charged with a federal offence, in relation to the subject matter of that offence and that they would be protected under Ch III of the Constitution. However, it is necessary to address the question of statutory construction before considering constitutional validity, although, as will become apparent, those questions overlap. [6]

    6. See generally Elzein at [26].

17. The starting point for the applicants’ submissions was s 12(1) of the Interpretation Act 1987 (NSW):

12   References to New South Wales to be implied

(1)   In any Act or instrument:

(a)   a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b)   a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

18. It may be accepted, as the applicants submitted, that the language of s 12(1)(b) is apt to restrict a reference to “an offence” in a New South Wales Act to an offence under the laws of New South Wales. However, whether that is so in relation to the Crime Commission Act depends upon the use of the term “offence” in that Act. So much is recognised by s 5(2) of the Interpretation Act, which states that “[t]his Act applies to an Act … except in so far as the contrary intention appears in this Act or in the [other] Act”. The Interpretation Act therefore provides a starting point for the inquiry, but does not dictate the answer.

19. Section 12 reflects a general principle to be applied in construing the statutes of a polity within a federal system, as explained in Seaegg v The King. [7] The issue in Seaegg was whether an offender “convicted on indictment” in a State court, but for a federal offence, could appeal under s 5 of the Criminal Appeal Act 1912 (NSW). The question was whether the Criminal Appeal Act conferred such a right, or whether the operation of s 5 with respect to federal offences depended on it being picked up and applied in federal jurisdiction by a Commonwealth Act. The High Court, dealing with the construction of the State Act, said: [8]

“We do not think that the State enactment by these general words intends to refer to prosecutions on indictment preferred by the law officers of the Commonwealth for offences against the laws of the Commonwealth. … Apart from the general rule of construction requiring an interpretation which would restrain the general words so that they would not apply to Federal proceedings so regulated and would confine the State enactment to State proceedings, the State statute contains specific references to the Attorney-General of the State and to the Minister of Justice which place its meaning beyond doubt … and show that the right of appeal it confers is limited to convictions upon indictment preferred according to State law.”

7. (1932) 48 CLR 251.

8.    Seaegg at 255.

20. The applicants supported their contention that s 35A should be understood to apply only to offences under State law by reference to the reasoning in Solomons v District Court of New South Wales. [9] A person acquitted of an offence under a federal law, dealt with in a State court exercising federal jurisdiction, had sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) (“the Costs Act”) by which he might obtain payment of his costs from State Consolidated Revenue. The question was whether the phrase “proceedings relating to any offence” included an offence under federal law.

    9. (2002) 211 CLR 119; [2002] HCA 47.

21. The importance of Solomons to the applicants was, in part, the conclusion that s 2 of the Costs Act did not apply to a federal offence. Solomons applied the general rule of construction to reach the conclusion that “the offences in question do not include offences under a law of the Commonwealth.”[10] Accepting that, “[s 2] of the Costs Act is not to be construed in isolation from the balance of the legislative scheme of which it forms part,” [11] the joint judgment nevertheless concluded that the legislative structure told against giving a broader construction to the language of s 2. [12]

“Provision for payment under a costs certificate is made in s 4 of the Costs Act. A person to whom a certificate has been granted may apply to the Under Secretary of the Attorney-General's Department for payment from the Consolidated Revenue Fund of costs incurred in proceedings to which the certificate relates (s 4(2)). There is no right conferred upon the holder of a certificate to receive payment from the Consolidated Revenue Fund. The making of a payment is conditioned by s 4(5) upon the formation by the Treasurer of the opinion ‘that, in the circumstances of the case, the making of a payment to the applicant is justified’, and upon the consequent determination by the Treasurer of the amount of costs that should be paid. [13] Payments from the Consolidated Revenue Fund of the amount specified in the determination may be made without further appropriation than by the Costs Act (s 4(6)). Section 5 confers upon the Under Secretary a right of subrogation to the rights of the applicant to recover costs and requires payment to the Consolidated Revenue Fund of moneys recovered by the Under Secretary.”

10. Solomons at [9].

11.    Solomons at [15] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).

12.    Solomons at [12] (citation omitted).

13. Section 4(5) of the Costs Act stated: “Where the Treasurer, after receiving the Under Secretary's statement relating to any such application, considers that, in the circumstances of the case, the making of a payment to the applicant is justified, the Treasurer may pay to the applicant his or her costs or such part thereof as the Treasurer may determine.”

22. While the statutory scheme considered in Solomons was far removed from that provided by the Crime Commission Act, the approach to statutory construction is applicable.

23. Addressing circumstances closer to the present case, Re Macks; ex parte Saint [14] explained that State Acts could validly identify the rights and liabilities of persons by reference to ineffective judgments of the Federal Court because they did not purport to affect those judgments, or validate them; rather, the ineffective judgments were the legislative criterion upon which new rights and liabilities were conferred or imposed. [15]

    14. (2000) 204 CLR 158; [2000] HCA 62.

    15.    Re Macks at [25] (Gleeson CJ), [59]-[60] (Gaudron J), [107] (McHugh J), [208] (Gummow J) and [347]-[348] (Hayne and Callinan JJ).

24. By way of further example, Baker v The Queen [16] involved a challenge to State legislation which imposed stringent conditions on the rights of particular individuals serving a life sentence to apply to the Supreme Court for the determination of a minimum term. The individuals the subject of the constraints were those who had been the subject of a “non-release recommendation” by the judge who imposed the life sentence. [17] As the joint reasons explained, “there is nothing repugnant to the notion of judicial power in the taking of such a past recommendation as a legislative criterion for the operation of a subsequent regime”. [18]

    16. (2004) 223 CLR 513; [2004] HCA 45.

    17.    Baker at [43] (McHugh, Gummow, Hayne and Heydon JJ).

    18. Baker at [49].

25. The reference to “an offence” in s 35A(1) of the Crime Commission Act is to be understood as a part of the adjectival phrase describing a person who is “the subject of a current charge for an offence”. Being the “subject of a current charge for an offence” is a legislative criterion or “factum” selected by the Parliament as the trigger for a particular legislative consequence. There being no constitutional constraint on a State legislature taking an ineffective Federal Court judgment as the legislative criterion to establish rights and liabilities of individuals, there is no reason in principle why the State legislature cannot provide protection from questioning in the exercise of executive power of persons charged with offences of any kind, whether involving contraventions of state or federal law.

26. Further, there is every reason to think that the legislation was intended to have a broad operation in order to serve its protective purpose. That is because, although it may be the primary function of the Commission to investigate criminal activity involving contraventions of New South Wales law, there will be numerous occasions on which persons may be involved in both federal and state offences. The alleged drug dealing the subject of the present matter provides a paradigm example; importation of drugs is prohibited under federal law, but the possession and supply of the same drugs in New South Wales are prohibited under State law.

27. One possible consequence of this interpretation of s 35A(1) may be that the term “offence” has different meanings in different parts of the Act. Thus, the principal functions of the Commission are set out in s 10:

10   Principal functions of Commission

(1)   The principal functions of the Commission are as follows:

(a)   to investigate matters relating to a relevant criminal activity or serious crime concern referred to the Commission by the Management Committee for investigation,

…

(b)   to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions,

(c)   to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned,

…

(g)    with the approval of the Management Committee, to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory … as the Commission considers appropriate….

28. Accepting that the Director referred to in par (b) is the NSW Director of Public Prosecutions, the concept of “a relevant offence” (as defined in s 5) is one that is punishable under State law. That conclusion is supported by reference to par (c), which deals with evidence obtained in the course of investigations relevant to the prosecution for an offence against a federal law or the law of another State or Territory. In that paragraph, the reference to “indictable offence” is to any such offence against the law of a part of Australia not being New South Wales. Without attempting to identify the various provisions in which there is reference to a “law enforcement agency” it is expressly provided that that phrase includes not only the NSW Police Force, but any other Australian police force.

29. Further, while the phrase “relevant criminal activity” in par (a) is defined in s 4(1) by reference to a “relevant offence”, the second term, “serious crime concern” is more broadly defined:

serious crime concern means any circumstances implying, or any allegations, that relevant offences of a particular type or class are being, or are likely to continue to be, committed in an organised, systemic or sustained way so as:

(a)   to have, or be likely to have, a significant impact on the community, or

(b)   to involve, or be likely to involve, substantial proceeds (within the meaning of the Criminal Assets Recovery Act 1990) of illegal activity (within the meaning of that Act).

30. As the Solicitor General noted, the last definition picks up the concept of “illegal activity”, as defined in the Criminal Assets Recovery Act 1990 (NSW). That definition reads as follows:

4   Definitions

(1)   In this Act:

…

illegal activity means:

(a)   a serious crime related activity, or

(b)   an act or omission that constitutes an offence (including a common law offence) against the laws of New South Wales or the Commonwealth, or

(c)   an act or omission that occurs outside New South Wales, is an offence against the law of the place where it occurs and is of a kind that, if it had occurred in New South Wales, would have been an offence referred to in paragraph (b).

31. The construction of par (a) in s 10 of the Crime Commission Act, inserting the relevant definitions, is complicated. However, if it be accepted that the term “offence” is used consistently, it must include conduct constituting an offence against the laws of the Commonwealth. Although charges in relation to such conduct would be laid by a Commonwealth law enforcement agency, the functions of the Commission extend to the investigation of such conduct.

32. There are indications that the Commission was intended to function as one part of the administration of law enforcement on a national level. Thus, the Management Committee, responsible for referring matters to the Commission for investigation, includes the Chair of the Board of the Australian Crime Commission, a federal authority. [19] Consistently with that understanding, a principal function of the Commission (with the approval of the Management Committee) is to co-operate with authorities of the Commonwealth and other States and Territories. [20]

    19. Crime Commission Act, s 50(1)(c)

    20. Crime Commission Act, s 10(1)(g).

33. It is thus apparent from the subject matter and structure of the Crime Commission Act that s 12(1) of the Interpretation Act, providing a presumption of local reference, is subject to numerous qualifications in the Crime Commission Act. These indications, confirmed by reference to practical considerations as to the operation of the Act, support the conclusion that a narrow construction should not be given to the operation of s 35A. Accordingly, and subject to any qualification flowing from potential invalidity which might require the language of the section to be read down, the applicants’ submissions as to construction should be rejected.

34. The reference to “a person who is the subject of a current charge for an offence” includes a person who is subject to a charge arising under federal law. The answer to question 1 is, “Yes”.

Whether s 35A, so construed, is unconstitutional

35. The form of the questions in this matter reflects that in the companion matter of Elzein. The general approach to the operation of Ch III of the Constitution with respect to possible statutory interference with principles governing the administration of criminal justice has been set out in Elzein and need not be repeated. The particular issue in this case concerns the manner in which a State law might operate to interfere with the administration of criminal justice in federal jurisdiction.

36. The underlying question relates to the power of the State legislature to authorise the questioning of an alleged federal offender, with respect to conduct the subject of federal charges. In other words, even if it were open to the Commonwealth Parliament to pass legislation authorising a Commonwealth authority to question a person charged with federal offences (as held in Elzein), it does not follow that the State has similar legislative power. On the other hand, in circumstances where the charges have been laid in a State court, with the result that any trial, and the imposition of sentences in the event of convictions, will occur in a State court, the issue might be somewhat differently formulated. The State court dealing with the criminal charges will be exercising federal jurisdiction; except to the extent that federal law otherwise provides, relevant State law as to the conduct of the trial will be picked up by s 68 of the Judiciary Act 1903 (Cth) so that it will apply in the exercise of federal jurisdiction, not of its own force, but as applicable federal law. (Although s 68 does not contain the formula used, for example in s 79(1), “except as otherwise provided by the Constitution or the laws of the Commonwealth” or, in s 80, dealing with the common law, “so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth”, s 68 is, nevertheless, to be read as subject to a similar qualification. [21] )

    21. Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 at [41] (Gummow and Heydon JJ, Callinan J agreeing).

37. It is true, however, that while the provisions of the Crime Commission Act, and in particular s 35A, may have an effect on the conduct of proceedings in a court exercising federal jurisdiction, they are not laws which govern the trial. The principal function of the Crime Commission Act is to confer power on an executive agency of the State. That agency does not exercise judicial power. Section 35A, however, has a dual function in that it both limits, conditionally, the powers of the executive agency and confers jurisdiction on the Supreme Court to grant leave for the agency to conduct an examination and require the production of documents or things.

38. In granting leave under s 35A(5) the Supreme Court is not exercising a function which is incompatible with the essential characteristics of a court in which federal jurisdiction may be vested. [22] Nor does the State Parliament lack power to pass laws which touch upon the exercise of federal jurisdiction by State courts. Although the State court will be exercising federal jurisdiction if the source of a right claimed by one party, or a defence asserted by another, is found in a federal statute,[23] that is not the case in relation to an application under s 35A, even if the satisfaction of the condition which engages the provision is the laying a federal charge. In the language of Cardozo J, adopted by Windeyer J in Felton v Mulligan,[24] “[t]he most one can say is that a question of federal law is lurking in the background”. [25] The subject matter of the proceeding in the Supreme Court is the proposed exercise by the State authority of its compulsory powers of investigation. The closest that the matters come to an exercise of federal jurisdiction is the claim by the accused person that the subject matter of the investigation involves the subject matter of the charge laid under a federal law and may lead to an unfair trial of that charge.

    22. Cf Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51.

    23. Felton v Mulligan (1971) 124 CLR 367 at 388 (Windeyer J); LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.

    24.    Felton v Mulligan at 388.

    25. Gully, State Tax Collector for Mississippi v. First National Bank in Meridian 299 US 109 (1936) at p 117.

35. There is no Commonwealth law identified by the applicants which might give rise to inconsistency with the State Act under s 109 of the Constitution. There will be many circumstances where State and Commonwealth authorities exercise executive power concurrently. The investigation of criminal offences is one such area. The circumstances in which invalidity could arise could in principle include, (a) the conferral of a jurisdiction on the Supreme Court which was inconsistent with its essential characteristics as a court capable of exercising federal jurisdiction, applying the principles stated in Kable, or (b) an inconsistency with a law of the Commonwealth which shall prevail, pursuant to s 109 of the Constitution.

36. The manner in which the questions were formulated did not in terms invoke either of these principles. Rather, they relied upon the propositions, variously stated in question 2, that what the State legislature sought to do was inconsistent with either the express terms of, or implications derived from, Ch III of the Constitution. Applying the principles discussed in the companion case of Elzein, the legislative scheme in this case is not invalid as an impairment of any jurisdiction conferred under Ch III of the Constitution. Whether, in a particular case, the exercise of the power, with leave, may be thought to give rise to an unfair trial, will be determined within the State court system. It is not necessary to decide whether, for this purpose, in circumstances where the requirement for leave results from the laying of a charge under federal law, the State court is exercising federal jurisdiction. Nothing was said to turn on that possibility.

37. In these circumstances, there is no reason to suppose that s 35A of the Crime Commission Act is invalid. On its construction, identified above, it operates in the present circumstances (involving a charge laid under federal law) but validly confers power on a Supreme Court judge to determine whether the Commission may undertake the exercise of compulsory powers with respect to a person charged with a federal offence. Whether, in a particular case, leave should be granted is within the discretion of the judge. That is a conventional exercise of judicial power. It is, appropriately, the highest court in the State judicial structure which has power to ensure the fairness of trials in State courts, whether exercising State or federal jurisdiction.

38. Accordingly, question 2 should be answered “No”. Questions 3 and 4 should each be answered, “Does not arise”.

39. SIMPSON JA: By s 24(1) of the Crime Commission Act 2012 (NSW) (“the Act”) a suitably qualified executive officer of the NSW Crime Commission (“the Commission”) is authorised to summon a person to appear before the Commission at a hearing to give evidence and produce such documents or other things as are referred to in the summons. By sub-s (7) the Commission may, at a hearing, take evidence on oath or affirmation, and, for that purpose, the person presiding at the hearing may require the person to take an oath or affirmation. The balance of s 24 contains further provisions, which need not here be detailed, regulating the exercise of the power conferred by sub-s (1).

40. By s 21(1) a hearing before the Commission is to be held in private and the Commission is empowered to give directions as to who may be present during all or part of the hearing.

41. By s 25 of the Act a person who fails to attend in accordance with a summons issued under s 24, or who refuses or fails to take an oath or make an affirmation, to answer a question he or she is required to answer, or to produce a document or thing required by the summons to be produced, is guilty of an offence.

42. By s 29(1) a suitably qualified executive officer of the Commission may by service of a production notice, require a person to attend before the Commission at a specified time and place and produce to the officer a document or thing specified in the notice (being a document or thing that is relevant to an investigation). By ss 29(2)-(8) and 30 further provision is made with respect to production as required in a production notice. By s 29(9) a person who, without reasonable excuse, refuses or fails to comply with a production notice is guilty of an offence.

43. By s 39(1) a witness summoned to attend or appearing before the Commission at a hearing is not (except as subsequently provided by s 40) excused from answering any question or producing any document or thing on any ground of self-incrimination, privilege or duty of secrecy. By sub-s (2) an answer made, or document or thing produced at a hearing, is not admissible against the person in any civil, criminal or disciplinary proceedings (with certain presently immaterial exceptions). By s 45(1) the Commission is empowered to give non-publication, or limited non-publication, directions. By s 45(2) the Commission is obliged to give such a direction if the failure to do so might prejudice the safety or reputation of a person, or prejudice the fair trial of a person who has been or may be charged with an offence.

44. In 2013 in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 by a majority of three out of the five participating justices, the High Court of Australia held that similarly framed provisions in parallel Commonwealth legislation (the Australian Crime Commission Act 2002 (Cth) – “the ACC Act”) did not permit the compulsory questioning of a person charged with a Commonwealth indictable offence about the subject matter of the charge. As a result of that decision, the Parliament of NSW amended the Act by inserting s 35A and related provisions (Crime Commission Legislation Amendment Act 2014 (NSW) – “the 2014 Amendment Act”). Section 35A is in the following terms:

“35A  Leave of Supreme Court to take evidence from accused person about the offence

(1)  This section applies to a person who is the subject of a current charge for an offence, and relates to the taking of evidence from the person in relation to the subject matter of the offence.

(2)  The person cannot be:

(a)  questioned under section 24 at a hearing before the Commission, or

(b)  required under section 24 or 29 to produce a document or thing,

in relation to matters relating to the subject matter of the offence without the leave of the Supreme Court.

(3)  Evidence obtained pursuant to leave granted for the purposes of this section cannot be used against the person in any civil or criminal proceeding (other than a proceeding for an offence against this Act or an offence relating to the falsity of evidence given by the witness) or in any disciplinary proceeding, but is not inadmissible as against other persons.

Note. See section 39A (3) and (4) for derivative evidence.

(4)  The Commission may apply to the Supreme Court ex parte for leave supported by an affidavit of an officer of the Commission stating:

(a)  that the officer:

(i)  believes that the questioning or requirement is in the public interest notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offence, and

(ii)  suspects that the questioning or requirement is necessary to fully investigate the matter referred to in the copy of a notice accompanying a summons issued to the person, and

(b)  the grounds on which the belief and suspicion are based.

(5)  The Supreme Court may grant leave if it is satisfied that any prejudicial effect that is likely to arise to the person’s trial from the proposed questioning or requirement is outweighed by the public interest in using the Commission’s powers to ensure that a matter referred to in the copy of a notice accompanying a summons issued to the person is fully investigated.

(6)  Leave may be granted unconditionally or subject to conditions imposed by the Supreme Court.

(7)  If leave is granted, the Commission must, before the person is questioned in relation to matters the subject of the grant of leave, serve on the person notice of the grant of leave.

(8)  The notice must inform the person of any right under another law to seek a review of the grant of leave and of the right to make an application for assistance under section 42.

(9)  Nothing in this section limits the application to an application for leave of any of the functions and procedures of the Supreme Court in relation to proceedings that may be dealt with ex parte before that Court.”

49. Section 39A deals with “any further information, evidence, document, or thing” (called “derivative evidence”) obtained as a result of the compulsory questioning of a witness under s 24, or the compulsory production under ss 24 or 29 of any document or thing (the “original evidence”). By sub-s (1) the derivative evidence is not inadmissible in any civil, criminal or disciplinary proceeding. Specifically, by sub-s (2) the derivative evidence is not inadmissible (inter alia) on the grounds that it had to be given or produced, or that it might incriminate the witness. However, by sub-s (3) the derivative evidence is not admissible where the witness was questioned or required to produce the document or thing pursuant to leave granted under s 35A in relation to the subject matter of the offence for which the witness was charged. An exception is, by sub-s (4), provided where the derivative evidence could have been obtained, or its significance understood, without the testimony of the witness.

50. Section 21A further amplifies the directions to be given where a hearing before the Commission involves a person the subject of a current charge for an offence. By sub-s (2) a direction must not be given under s 21 for a person to be present at any part of the hearing unless the Commission (or the person presiding at the hearing) is of the opinion that the presence of that person is reasonably necessary to assist the Commission to exercise its functions properly. By sub-s (3) a direction must not be given permitting the presence at a hearing of a person who is a member of an investigative agency and is involved in the investigation of the charged person in relation to the offence, while the charged person is being questioned about the subject matter of the offence.

51. The questions involved in these proceedings concern:

• the proper construction of s 35A, in particular whether the word “offence” as it appears in sub-ss (1) and (2) extends to or includes an offence against a law of the Commonwealth; and

• if “offence” is construed to include an offence against a law of the Commonwealth, the constitutional validity of the provision.

The relevant facts

52. The relevant facts may be stated briefly. On 29 November 2014 each applicant (codenamed D151, D152 and D154 respectively) was arrested and charged with two offences against the Criminal Code (Cth), of attempting to possess a commercial quantity of unlawfully imported border controlled drugs.

53. By summons filed on 3 December 2015, the Commission applied, ex parte, to the Supreme Court for leave under s 35A(2) of the Act, to question each of the applicants under s 24, and, under s 24 and/or s 29, to require each applicant to produce specified documents or things in relation to matters the subject of the offences with which the applicants were charged.

54. The application was supported by an affidavit sworn by Robert Neil Tuckerman, an officer of the Commission. There is no present issue that the affidavit complied with the requirements of s 35A(4).

55. After hearing the application in closed court and in the absence of the applicants, Adamson J made orders in accordance with the summons. The relevant order she made was:

“Leave is granted pursuant to s 35A of the Crime Commission Act 2012 to [the Commission], its officers and legal practitioners engaged or employed by it, to question and make requirements of [the applicants] during a hearing before the Commission pursuant to ss 24 and/or 29 of the Crime Commission Act 2012 in relation to the subject matter of offences he is currently charged with, namely two offences contrary to s 307.5(1), with ss 11.1(1), and 11.2(1) of the Criminal Code 1995 (Cth).”: NSW Crime Commission v D150 [2015] NSWSC 1842.

56. She also made non-disclosure and non-publication orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

57. Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 36.16, each applicant, by notice of motion, sought an order setting aside the orders of Adamson J. By r 36.16 such an order may be made, inter alia, where (as here was the case) the order in question was made in the absence of a party.

58. On 29 November 2016, with the consent of the parties, Rothman J made orders for the separate trial of specified questions and removed the proceedings to this Court. Since question 2 as then formulated involved a matter arising under the Constitution, notices as required by s 78B of the Judiciary Act 1903 (Cth) were given to the Attorneys General of the Commonwealth, the States and Territories. The Attorney General of NSW exercised the right to intervene. A hearing took place on 24 February 2017. During the course of the hearing it was agreed that the questions as then formulated required refinement. On 3 March 2017 the parties provided an agreed set of amended questions. The reformulated questions are:

“1. Upon its proper construction, does s. 35A of the Crime Commission Act 2012 (NSW) (‘the Act’) confer a power upon the Supreme Court to grant leave to the New South Wales Crime Commission to take evidence from a person who is the subject of a current charge against laws of the Commonwealth?

2. If yes, is s. 35A of the Act invalid to that extent, on the ground that to permit such leave to be granted in those circumstances:

a) would contravene Chapter III of the Constitution by reason that it would purport to authorise a contempt of a State Court exercising Federal criminal Jurisdiction thereby impairing the institutional integrity of that Court as a repository of judicial power of the Commonwealth; or

b) would contravene Chapter III of the Constitution by reason that it would be an impermissible interference with:

(i) the essential features of the judicial power of the Commonwealth, namely the accusatorial nature of a criminal trial (as considered in X7 v Australian Crime Commission (2013) 248 CLR 92); or

c) would contravene s. 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of “trial … by jury” on an indictment for an offence against a law of the Commonwealth?

3. If yes, should s. 35A of the Act be read down to avoid any operation that would be constitutionally invalid?

4. If yes, how should s 35A of the Act be read down?”

59. Question 1 involves the construction of s 35A of the Act. Question 2 involves its constitutional validity. Questions 3 and 4 arise only if Question 2 is answered affirmatively.

Question 1

60. The issue posed by Question 1 is one of pure statutory construction. It does not raise issues concerning any limits on the legislative power of the NSW Parliament.

61. The question is simply the meaning to be ascribed to the word “offence” as it appears in ss 35A(1) and (2). The Commission’s contention is that it is not confined to offences against NSW law, but, in its context, extends also to offences against Commonwealth law.

62. If the Commission’s construction is correct, the prohibition on questioning of a person charged with an “offence” imposed by sub-s (2) extends to a person charged with a Commonwealth offence (as well as a person charged with a State offence); equally, the power conferred on the Supreme Court to grant leave to question a person charged with an offence extends to a person charged with a Commonwealth offence (as well as a person charged with a State offence). In making the orders that she did, Adamson J accepted the Commission’s construction.

63. The applicants advanced a contrary contention – that, on its proper construction, “offence” as it appears in s 35A is confined to offences against NSW law. If their construction is correct, the prohibition imposed by sub-s (2) would not protect them from compulsory questioning or production under s 24 or s 29, and no grant of leave under s 35A would be available (or required) that could expressly authorise such questioning. The applicants would, however, contend (and with considerable force) that the decision in X7 would operate to render such questioning unlawful.

64. The construction proposed by the applicants is, they contended, a consequence of the application of s 12(1)(b) of the Interpretation Act 1987 (NSW), which provides:

“(1)  In any Act or instrument:

(a)  …

(b)  a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.”

65. However, s 12(1)(b) must also be read in the light of s 5(2) of the Interpretation Act, which provides:

“This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.”

66. That the application of s 12(1)(b) to s 35A (and the Act generally) would restrict the meaning of “offence” to a state offence was not seriously contested by the Commission, and is amply supported by authority. As long ago as 1932, the High Court held (without reference to the Interpretation Act) that a right of appeal against conviction or sentence created by a State Act (the Criminal Appeal Act 1912 (NSW)) was confined to convictions and sentences under the laws of the State and did not extend to convictions or sentences under Commonwealth law: Seaegg v The King (1932) 48 CLR 251; [1932] HCA 47.

67. In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, Mr Solomons was charged with, and acquitted (by direction) of Commonwealth offences. He sought a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Costs Act”) which, if issued, might have entitled him to some contribution out of State coffers to the costs of his trial. He was refused a certificate, and appealed to this Court and then to the High Court. Two issues were identified. The first was whether a State court was empowered by the Costs Act to grant a certificate in circumstances where the offence with which the acquitted person was charged was a Commonwealth offence. The second issue was whether the provisions of the Judiciary Act 1903 (Cth) rendered s 2 of the Costs Act applicable. In that case, the first issue went by default, as Mr Solomons conceded that s 2 of the Costs Act did not, of itself, apply to Commonwealth prosecutions. The issue litigated was whether the Judiciary Act provisions applied.

68. Nevertheless, the High Court gave its imprimatur to the concession made by Mr Solomons. In a joint judgment Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said:

“9  There is a ‘general rule of construction’ which would confine the State enactment to State proceedings and officers [citing Seaegg] … The power conferred by s2 ‘was clearly intended to be conferred on all New South Wales courts, at whatever level, exercising criminal jurisdiction’. The ‘Court[,] Judge [and] Justices’ identified in s2 of the Costs Act, and the phrase therein ‘any proceedings relating to any offence’, do not extend to federal courts created by the Parliament under Ch III of the Constitution or to this Court or to judicial officers of the Commonwealth, and the offences in question do not include offences under a law of the Commonwealth. This follows as a matter of construction of s2 of the Costs Act in the light of s12(1) of the Interpretation Act.” (some internal citations omitted)

69. In a separate judgment, McHugh J said:

“33 The question in this case is whether a New South Wales court, invested with federal jurisdiction, has the jurisdiction and power to grant a costs certificate under the [Costs Act] to a person acquitted of a federal offence in that court. In my opinion, a court exercising federal jurisdiction has no jurisdiction to issue a costs certificate under that Act because upon its proper construction the Costs Act applies only to State offences and neither the Judiciary Act 1903 (Cth) nor any other federal Act purports to apply it in federal jurisdiction.

…

37 The trial judge and the Court of Appeal correctly held that the Costs Act does not purport to apply to criminal proceedings in federal jurisdiction. It is a long recognised rule of statutory construction [citing Seaegg] that a reference to courts, matters, things and persons in the legislation of a State is a reference to courts, matters, things and persons in that State. In New South Wales, that rule of construction is enshrined in legislation [citing s 12 of the Interpretation Act]. Consequently, the Costs Act applies of its own force only to offences against the laws of New South Wales. In this Court, the appellant did not dispute this proposition.”

70. The applicants’ contention that, by reason of s 12(1)(b) of the Interpretation Act, “offence” as it is used in the Act is confined to offences against the law of NSW must be accepted, unless a contrary intention can be identified.

71. The issue, therefore, in the present case is whether the NSW Parliament had evinced, within the meaning of s 5(2) of the Interpretation Act, an intention to expand the meaning of “offence” in such a way as to encompass offences against Commonwealth law. It was the Commission’s case that it had.

72. It is a general (though readily rebuttable) rule of statutory construction that, where a word is used consistently in a single piece of legislation, it should be given a consistent meaning unless there is reason to do otherwise: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41.

73. The word “offence” has been used, in various ways, throughout the Act. It was the contention of the Commission that, having regard to the overall context of the Act, references to “offence[s]” includes reference to offences against Commonwealth law. It is to be noted that the Commission’s submissions were directed to the use of the word in the Act as a whole, and did not address any separate proposition that the word as used in s 35A should be given a different meaning to the meaning given to it in other parts of the Act.

74. It appeared to me that five, possibly six, arguments were addressed to supporting the extended construction of “offence” in the Act. The arguments did not differentiate between “offence” as generally used (in the Act), and “offence” as used in s 35A.

75. In considering these arguments, it is convenient to begin with the statement of the principal functions of the Commission (see s 33 of the Interpretation Act; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70]). That is to be found in s 10(1) of the Act. That subsection provides as follows:

“10  Principal functions of Commission

(1)  The principal functions of the Commission are as follows:

(a)  to investigate matters relating to a relevant criminal activity or serious crime concern referred to the Commission by the Management Committee for investigation,

(a1)  to investigate matters relating to the criminal activities of criminal groups referred to the Commission by the Management Committee for investigation,

(b)  to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions,

(c)  to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned,

(d)  to reinvestigate matters relating to any criminal activity that were the subject of a police inquiry (being an inquiry referred for reinvestigation to the Commission by the Management Committee) and to furnish its findings to the Committee together with any recommendation as to action the Commission considers should be taken in relation to those findings,

(e)  to furnish in accordance with this Act reports relating to organised and other crime, which include, where appropriate, recommendations for changes in the laws of the State,

(f)  to provide investigatory, technological and analytical services to such persons or bodies as the Commission thinks fit,

(g)  with the approval of the Management Committee, to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory (including any task force and any member of a task force) as the Commission considers appropriate.”

76. To understand the functions stated, particularly that in par (a), it is necessary to go to the definitions of “relevant criminal activity” and “serious crime concern”. Section 5(1) of the Act provides:

“(1)  In this Act:

‘relevant offence’ means an offence that is punishable by imprisonment for life or for a term of 3 or more years (other than an offence the time for the commencement of a prosecution for which has expired).”

77. In s 4 “relevant criminal activity” is defined as:

“any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, or may in the future be, committed.”

78. “Serious crime concern” is defined in s 4 as:

“any circumstances implying, or any allegations, that relevant offences of a particular type or class are being, or are likely to continue to be, committed in an organised, systemic or sustained way so as:

(a)  to have, or be likely to have, a significant impact on the community, or

(b)  to involve, or be likely to involve, substantial proceeds (within the meaning of the Criminal Assets Recovery Act 1990) of illegal activity (within the meaning of that Act).”

79. There is nothing in these definitions that lends any support to the proposition that the matters to be investigated by the Commission are other than matters relating to offences against State law, nor anything that lends any support to the proposition that the Parliament intended a departure from s 12(1)(b) of the Interpretation Act.

80. There are two functions identified in s 10(1) that give pause for thought. By s 10(1)(c) one of the functions of the Commission is to “furnish” evidence obtained in the course of its investigations to the Attorney General or appropriate authority of the Commonwealth (or another State of Territory) of Australia. By s 10(1)(g), it is a function of the Commission (with the approval of the Management Committee) to work in co-operation with appropriate persons or authorities of the Commonwealth (or another State or Territory).

81. Notwithstanding the submissions of the Commission, neither of these persuades me that the references in the Act to “offence” go beyond references to offences against State law. In my opinion, they emphasise that, while the Commission is expected to engage in inter-jurisdictional co-operation and information sharing, it remains a body dealing with State issues. I do not read anything in s 10 as conducive to the argument that “offence” where referred to in the Act generally encompasses Commonwealth offences. Indeed, in s 10(1)(c), where it was intended to refer to Commonwealth offences, the phrase “indictable offence against the law of the Commonwealth” is used. That is also the case in other (pre 2014 Amendment Act) provisions: see, for example: s 17(2)(d)(i), s 18(2)(b), s 57(3)(b).

82. The Commission also relied on s 13 of the Act, which empowers the Commission (in accordance with any guidelines issued by the Management Committee) to share information and intelligence with other jurisdictions, and to co-operate and consult with “such persons or bodies” as the Management Committee thinks appropriate.

83. Again, I do not read this as doing anything more than reinforcing the notion of inter-jurisdictional co-operation. It is inevitable that a body with the functions of the Commission will encounter instances of matters to be investigated that will, at times, include possible offending against Commonwealth law. That is not sufficient to displace the presumption contained in s 12(1)(b).

84. Another argument advanced on behalf of the Commission was that, by s 11 of the Act, the Commission may exercise a function conferred or imposed upon it by the Criminal Assets Recovery Act 1990 (NSW) (“the CARA”).

85. The CARA (as its short title suggests, and the long title confirms) is designed to provide for the confiscation of interests in property that are the proceeds of “serious crime related activities”. “Serious crime related activity” is defined in s 6(1) of the CARA (I paraphrase) as “serious criminal offence[s]”, which, in turn, is defined to include “prescribed” indictable offences against a law of the Commonwealth (sub-s (2)(c)), and “an offence under the law of the Commonwealth or a place outside [NSW] (including outside Australia) which, if the offence had been committed in [NSW], would be a serious criminal offence referred to in [other paragraphs of s 6(2)]”, each of which, with one exception (s 6(2)(c)), is a State offence.

86. Again, it seems to me that, far from supporting the Commission’s argument, if anything relevant can be drawn from the CARA, it contradicts the Commission’s position. It was considered necessary by the legislature to specify that certain offences against the Commonwealth law are encompassed in the State legislated concept of “serious crime related activities”, for the purpose of proceeds of crime recovery legislation. That does not suggest to me an intention to construe “offence” as other than offences against State law, except where specified.

87. The Commission also relied upon the Second Reading Speech delivered to Parliament introducing the 2014 Amendment Act. The speech emphasised the cross jurisdictional nature of serious crime, and the need for co-operation with other jurisdictions. The Second Reading Speech was, obviously, directed to the amendments to be made to the Act following, and to deal with the perceived consequences of, the decision in X7. It is highly relevant to the construction of s 35A, but casts no light on the construction of “offence”, or the Act generally, prior to the amendments.

88. I conclude that references to “offence” and related terms in the Act as it existed prior to the 2014 amendments, are, in accordance with s 12(1)(b) of the Interpretation Act, references to State offences. I see no contrary intention as contemplated by s 5(2) such as would expand that meaning to include Commonwealth offences.

89. It is important to note, however, that there is nothing in s 24 or s 29 that limits the questioning permitted, or the nature of documents or things required to be produced to questioning or production relevant to an offence or offences. There is nothing in either section, therefore, that excludes questioning on the subject matter of Commonwealth offences, or the production of documents or things relevant to Commonwealth offences. Given that the functions of the Act include cross-jurisdictional co-operation, and given cross-jurisdictional nature of crime, it might be expected that an examiner conducting a hearing under s 24 would seek information from an examinee that touched upon possible Commonwealth criminal activity.

90. Notwithstanding my conclusion with respect to the construction of “offence” in the pre-amendment Act, there remains a question concerning the concept of “offence” as it is used in the 2014 Amendment Act, specifically in its enactment of s 35A. The 2014 Amendment Act was passed in an environment different to that which existed prior to the decision in X7. Section 24 did not preclude questioning on matters concerning Commonwealth criminal law; it was not known to preclude questioning of examinees who were subject to criminal charges. It may be that a legislative intention to depart from the s 12(1)(b) presumption can be read into the 2014 Amendment Act. I have come to the conclusion that it can.

91. In this respect, the secondary materials to which reference is permitted by s 34 of the Interpretation Act are instructive. The Explanatory Note states the objects of the Bill as being:

“to amend [the Act] so as:

(a)  to address issues raised in decisions of the High Court in connection with the compulsory examination of persons about an offence for which they have been charged, and

(b)  to provide for the referral for investigation, and oversight, by the [Management Committee of the Commission] of matters arising from work done in co-operation with a person or authority of the Commonwealth, the State or another State or Territory …

(c)  …

(d)  …”

92. The Second Reading Speech was to the same effect.

93. Sections 28 and 30 of the ACC Act (the subject of the decision in X7) were in similar, if not identical, terms to ss 24 and 25 of the Act. As mentioned above, in X7 the High Court held that an examiner conducting an examination under s 28 of the Act could not lawfully require an examinee to answer questions about the subject matter of offences (Commonwealth) with which he had been charged but not tried, absent a clear expression of intent in the relevant legislation. No such intent was to be found in the ACC Act. As the NSW Parliament recognised in enacting the 2014 Amendment Act, the same reasoning must apply to ss 24, 25 and 29 of the Act. It could not be said that s 24 explicitly purported to authorise questioning of an examinee subject to charge (whether State or federal) on the subject matter of the offence or offences with which he or she was charged. But, on the authority of X7, it can plainly be said that the prohibition that results from the conclusion in X7 applies to such questioning. That does not emerge from the construction of the word “offence” (which only appears in s 24 in a quite different context – sub-s (2)(a), and does not bear upon the present question).

94. Although I have rejected the proposition that the provisions of the Act concerning co-operation with other jurisdictions permit a construction of “offence” as it appeared generally in the Act pre-amendment so as to include Commonwealth offences, they are nevertheless relevant in considering the subject matter of an examination under s 24. They give a clear indication that the scope of questioning might include matters relating to Commonwealth offences, and that any information obtained as a result could be expected to be shared with Commonwealth prosecuting authorities.

95. To be clear:

(i)  absent (or prior to the enactment of) s 35A, it could be expected that a person charged with Commonwealth offences might be subject to examination under s 24, and that the examination might include questioning on the subject matter of the charged offence or offences; and

(ii) s 35A(2) prohibits such questioning; but

(iii) s 35A(2) also empowers a Supreme Court judge to grant leave, in accordance with the requirements of the section, to the Commission to question an examinee on the subject matter of the charge or charges.

96. I am of the view that sufficient basis exists to depart from the rule of consistent construction and give the word “offence” as it appears in s 35A(1) a meaning different from that which it bears in other provisions of the Act. I am further of the view that, as contemplated by s 5(2) of the Interpretation Act, s 35A(1) evinces an intention that s 12(1)(b) of the same Act is displaced.

97. Accordingly, for these reasons I would answer Question 1 “Yes”.

98. An alternative approach to construction advanced by the applicants depended upon application of the decision of the High Court in Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42. This was a somewhat diluted version of the argument advanced in relation to Question 2, in which the applicants, relying on Hammond, assert constitutional invalidity of s 35A.

99. It is worth spending a moment on the facts of Hammond. Mr Hammond was, in October 1981, charged with conspiracy to commit an offence against a law of the Commonwealth (the export of a prohibited export). A Royal Commission had recently been established by the Commonwealth and Victorian governments, and was in progress; its task was to inquire, inter alia, into malpractice in the handling of meat for export. In April 1982 Mr Hammond was committed for trial to the County Court of Victoria. A witness in the Royal Commission was a principal witness in the committal proceedings against Mr Hammond. The Royal Commissioner refused an application to adjourn further hearing of evidence until after Mr Hammond’s trial, the application being made on the express basis that further investigation would constitute contempt of the court in which the trial was to take place. The Royal Commissioner did, however, direct that the further evidence be taken in private. Evidence was given (in confidential session) that “plainly related” to the alleged conspiracy on which Mr Hammond was to stand trial. On 23 June 1982, Mr Hammond was called to give evidence, and was sworn, but objected to giving evidence on the ground that he might incriminate himself. The Royal Commissioner directed him to answer the questions, which were directly relevant to the issues to be litigated in the trial. He refused to answer. The Royal Commissioner directed that the circumstances be referred to the appropriate authorities for consideration as to whether proceedings ought to be taken in relation to his refusal to answer questions.

100. The High Court unanimously granted an injunction restraining the Royal Commissioner, and the Commonwealth and the State of Victoria and others from examining or resuming the examination on oath of Mr Hammond “in respect of matters touching or concerning” the charge of conspiracy. The basis on which Mr Hammond sought the injunction was that his further examination, and any delivery by the Royal Commissioner of a report, would constitute a contempt of the County Court in which the conspiracy charge was pending.

101. All members of the High Court agreed that an injunction ought to be granted. Gibbs CJ said:

“The ground of the application for the injunction is that the further examination of [Mr Hammond], and the making of the report, would constitute a contempt of the County Court before which the criminal proceedings against [Mr Hammond] are pending. To succeed in obtaining an injunction on that ground, [Mr Hammond] must establish that there is a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention. The tendency of the proposed actions to interfere with the course of justice must be a practical reality – a theoretical tendency is not enough.

…

Once it is accepted that [Mr Hammond] will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that [Mr Hammond] has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.” (pp 196,198)

102. The other members of the Court gave reasons to similar effect.

103. Significant reliance was placed on the decision in Hammond in X7 by Hayne and Bell JJ ([127]-[137]), and Kiefel J (as she then was (at [161])). In that case, Hayne and Bell JJ accepted (at [125]) that Parliament (in that case, the Federal Parliament) had the legislative authority to alter the fundamental features of a trial, but, held that if it were to do so, it had to do so “clearly by express words or by necessary intendment”. In the absence of a clearly expressed statute to that effect, “compelling answers to questions about the subject matter of the pending charge would be a contempt”.

104. On the basis of Hammond, the applicants argued that questioning them with respect to matters the subject of the charges they face would amount to contempt of the court in which the charges are pending (the District Court of NSW) unless there was a clearly expressed statute that authorised such questioning. That is, were the Commission to proceed with questioning as authorised by the orders of Adamson J, there would be a real risk of interference with the administration of justice and, therefore, a contempt of the court.

102. In Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 a majority of four judges of a bench of seven held that Hammond did not stand in the way of a construction of s 31D of the CARA that would permit compulsory examination on the subject of criminal charges faced by the examinee. Although there is some tension between X7 and Lee, X7 has not been overruled and stands as authority for the propositions stated.

103. It is to be noted that, in their submissions with respect to Question 1, the applicants did not argue for the invalidity of s 35A; since Question 1 raises only a question of construction, they could not do so. The applicants accepted (for the purposes of the argument in relation to Question 1), that the legislature has the power to pass a law that permits conduct that impinges on fundamental features of a criminal trial such that, absent an authorising law, would amount to contempt. Such a law, however, must be expressed in clear and unambiguous terms.

104. Nor did the applicants contend that s 35A was insufficiently clearly expressed to permit examination of persons charged with State offences; their contention was confined to an assertion of lack of clarity as to whether it was intended to permit examination of persons charged with Commonwealth offences with respect to the subject matter of those offences.

105. Once it is accepted that “offence” in s 35A(1) extends to Commonwealth offences, the argument evaporates. The very point of the enactment of s 35A was to state, explicitly, that principles such as those stated in Hammond were not to apply to “offence[s]” as the word is used in s 35A(1).

106. I agree with Basten JA that Question 2 should be answered “No”. Accordingly, Questions 3 and 4 do not arise.

107. I would answer the questions as follows:

Question 1:  “Yes”.

Question 2:  “No”.

Question 3:  “Does not arise”.

Question 4:  “Does not arise”.

**********

Endnotes

Amendments

14 February 2018 - [73] - Replace "Crown" with "Commission".

[75] - Replace "(1988)" with "(1998)".

08 February 2018 - Correcting spelling of counsel for Intervenor - Coversheet

03 July 2017 - Correcting typographical errors in [48], [82], [93], [103], [106], [108]. Adding [77] inserting definition of "relevant criminal activity" with following consequential paragraph numbering changes.

Decision last updated: 14 February 2018