Environment Protection Authority v Caltex Refining Co Pty Limited

[1992] HCATrans 354

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S74 of 1992

B e t w e e n -

ENVIRONMENT PROTECTION

AUTHORITY

Appellant

and

CALTEX REFINING CO PTY LIMITED

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

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TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 DECEMBER 1992, AT 10.19 AM

(Continued from 8/12/92)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Horton.

MR HORTON:  Your Honours, the immunity from

self-incrimination, we would submit, is a vital

link in a number of rights and privileges that not

only individuals but companies have. It is

critical, we would submit, to the survival of what

is popularly called the right to silence before

trial; not answering the policeman's questions. It

is also critical to the right of the accused to

stay out of the witness-box and, further, it is critical to the right he has that no comment be made on failure, as it is styled, to give evidence.

Now, the reason why, of course, it is critical

to the right to stay out of the witness-box is that

if a confession or even a partial recitation of

facts which tend towards the proof of the State's
allegations are extracted from the witness, and it

matters not whether the evidence of the police is

as false as you like, or is perfectly true, in

either case the accused is forced into the

witness-box; depending, of course, upon the

strength of the incriminating statement. If it

were minor and mild he may take the risk I suppose

and stay out of the witness-box but, if

significant, he is forced into the witness-box,

there is no alternative for it.

Say, in spite of having no privilege, he

remained mute and as sometimes
happens - Your Honours have had to deal with it

from time to time over the last few years - a

confession is manufactured. Again, he is forced

into the witness-box. There is no voir dire to

examine whether the confession is true or false.

And, of course, his right to silence when the

investigatory process is going on beforehand is

severely impeded.

Short of punitive fines or some sort of physical pressure, of course, if he is strong
willed enough he can remain silent.	One can either

do that in totalitarian countries, I suppose. But

if he remains silent when he has no right to,

refuse an explanation or the like, the fact of his
silence can be led in evidence against him, and the

jury would be asked to draw the necessary

inference. If he is not stalwart in his

determination to remain silent and he is told he

has no right to be quiet, to give no information,
he is quite likely, particularly if he is innocent,
not an experienced rogue, to, if I may use a vulgar

phrase, to babble on.

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We all know how perhaps even well-educated

people, even lawyers perhaps, when in the hands of
the police may, out of pure nervousness, say much
more than is appropriate, say it inaccurately.

Most people do give inaccurate accounts of what

they have been doing recently.

So there are all these problems that flow from

the removal of the privilege, and if you remove it

from companies, the American experience shows that

it is not long before it is removed from

individuals.

DEANE J: But they are really two distinct things, are they

not, Mr Horton? I mean one is the absence of

compulsory interrogation which is the mainstream;

the other is this principle or whatever you call

it, that if somebody elects to say nothing, nobody

can say anything about it. Well, the second, which

I think has been referred to as the "fox-hunting

principle", that really has no terribly deep basis in principle, has it? It has been suggested it is

simply the result of a misapprehension underlying

the Judges Rules in England.

MR HORTON: Well, perhaps, Your Honour, but - - -

DEANE J:  I mean, if somebody is given a chance of

explanation and says "I am going to stay silent",

what is the great principle that says nobody can

comment on the fact that he saw fit not to offer

any explanation?

MR HORTON: Well, Your Honours have struggled to find it in

various cases, I appreciate it, and much more

deeply versed in it than I can ever hope to be,

and it is not a satisfactory answer to say to

Your Honours, it is an aspect of fairness, because

"fairness" is a very unruly sort of word.

DEANE J: But it is an area you do not really need to get

involved in, in this case, where what is involved

says that somebody who does not want to give an	is not, whether there is any great principle that
explanation, cannot subsequently have it said that he did not give an explanation. This case is concerned with the principle relating to subjection
to compulsory interrogation.

MR HORTON:  Yes, Your Honour, but if you have no right to

remain silent it is much harder to justify a ban

upon comment on the silence. If you have a right

all - - -

DEANE J: But why should you be concerned about a ban on not

being able to say the obvious, and that is when he

was arrested and when he was told that there was

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evidence connecting him with this, instead of doing

the obvious thing if he was innocent and giving an

explanation, he just clammed up.

MR HORTON:	Yes.
DEANE J:	What is the great principle that says, "You cannot

say that"?

MR HORTON:  Your Honour, I am not sure that I can tell

Your Honour what the great principle is.

DEANE J: All I am trying to say is, I do not see why you

are getting involved in these doubtful areas to

some about rights to silence, when what is involved

here is compulsory interrogation.

MR HORTON:  Indeed. I do not want to do more than to say it

is generally accepted, at the moment, and it is

presently the law, like it or not, as some people

did. But you have a right to silence and it is not

my purpose to either defend it or otherwise, I

merely say that that is as things are, and if you

have that one has it presumably because more people

think it is a good thing than those who do not,

more people that matter, that is to say.

Now, if it be therefore an assumed good thing,

as soon as you remove the privilege against having

to give an explanation and so on, you immediately improve the argument of those who would say there

is no basis for the right to silence, because if

you are not exercising a right given to you by the

common law when you say, "I will say nothing", the

obvious explanation or inference that will be asked

to be drawn from saying, "I will say nothing", is

that you have nothing to say that will help you and

that you have no explanation. Whereas if you have

a right it is equally possible that you are

exercising your right, and the onus being what it

is in criminal cases, if there are equal

possibilities, one cannot draw the inference which
is adverse to the accused, of course.	So that is

why we say that this writing and self incrimination

does bear upon these other so-called rights.

TOOHEY J:  Mr Horton, are you asking this Court to declare,

in the case of corporations, a right which

presently does not exist, or to give express

recognition to a right which you say does exist, in

the case of corporations?

MR HORTON:	The latter, Your Honour.
TOOHEY J:	When you put it that way do you mean a right

which is recognized by existing authority?

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MR HORTON:	Yes, Your Honour.	It is recognized by Triplex,

by Associated Northern Collieries, by - - -

TOOHEY J: Yes, I was not asking you to take us to those

cases, but simply to identify the object of the

present argument.

MR HORTON:	Yes, Your Honour.
MASON CJ:	How far does the recognition of the right go

back? What is the earliest recognition of the

privilege?

MR HORTON:  Qua corporations, does Your Honour mean, or generally?

MASON CJ: Corporations.

MR HORTON:  The earliest case that we have been able to

find, Your Honour, is called the King of the Two

Sicilies v Willcox, (1849) 7 St Tr. It is referred to in our submission at the end of the historical

matter, at page 10.

MASON CJ: Yes, I did have a quick look at the case. My

impression was it was not a very clear recognition

of the existence of the privilege.

MR HORTON:  No. Your Honour is right. It is not very

clear, but what we have said about it on page 10 is

that the decision in that case preceded -

paragraph 14 on page 10 - upon the basis that the

corporation would have been entitled to the

privilege had there been a hazard, a risk, of it

being incriminated, because the court in that case,

which is in Your Honour's folder at page 45 of the

folder of unusual cases - that is to say that the

relevant passage is at page 45 - the report

actually - - -

MASON CJ: This is in remarks of Vice-Chancellor Shadwell,

is it not?

MR HORTON:  Yes, Your Honour. Does Your Honour see, in the

right-hand column - - -?

MASON CJ: Yes.

MR HORTON:  He took the view, apparently, that because it

could not be indicted for a crime, therefore, the

claim to privilege was unnecessary really.

BRENNAN J: It could not exist.

MASON CJ: It could not exist, the implication being that if

it did exist at all it existed only in relation to

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a matter in respect of which the corporation could

be guilty of a criminal offence.

MR HORTON:  Yes, that is so. And therefore there was no

discussion. It was assumed that if it could have

been guilty of a criminal offence, the privilege

inhered in it. That is the way we use it,

Your Honours.

MASON CJ: That is why I said to you it did not seem to me

to be a very clear recognition of the existence of

the privilege as applying to a corporation.

MR HORTON: Well, I could not agree more, Your Honour, but

the existence of privilege - - -

MASON CJ: Well now, apart from the King of Two Sicilies,

what can you take us back to?

MR HORTON: Historically, Your Honour, there is nothing in

England that we are aware of until one gets to

Triplex.

MASON CJ: What about in learned writings? Is there

recognition of the existence of the privilege in

learned writings?

MR HORTON:  Not in times past, Your Honour. There is no

debate about it one way or the other.

BRENNAN J:  And that for the reason that corporations were

regarded as acting beyond their powers if anything

were done which offended the criminal law.

MR HORTON: Well, that is true because in the last

BRENNAN J:	And the liability, if any then, was on the corporators who were responsible.
MR HORTON:	Yes, and indeed, the very old cases back in the

17th century are cases where the corporators - I do

Royal Charter in the main - the corporators were	not mean a limited company, a corporation formed by
always charged, not -

BRENNAN J: That is what makes it so curious, the notion

that the corporation can claim as an existing right

the right to silence, because it is only in modern

times that it has been thought that a corporation

is capable of breaching the criminal law when the

breach is in excess of its statutory powers.

MR HORTON: That is so, Your Honour.

BRENNAN J: Well then, it must be that your argument is that

now that it has been held that a corporation can be

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in breach of a statute that for that reason the

privilege should attach.

MR HORTON:	Yes.
BRENNAN J:	So it is a new development.
MR HORTON:	No, Your Honour.  The only new development is

that corporations, since towards the end of last century and the early part of this century, have

gradually been seen to be capable of committing

crimes. That is the only part of a new

development. But the privilege in relation to

persons who are capable of committing crimes has

existed, certainly from the early part of the

17th century. And if, for example, somebody passed

a law saying that an infant of two years old could

commit a crime, then that was a new development.

It would be very strange if the infant did not have

the immunity. So that the immunity follows the

necessity, and the necessity arises when it is
recognized that some entity which is, to all

intents and purposes, equivalent to a citizen, I do

not mean a human being, but a citizen subject to

the law, once it is seen that it is liable to be

convicted of a crime, it is entitled to whatever

immunities the law attaches to someone who is in

the path of such a risk.

BRENNAN J: Well it may be that the relevant risk is the

liability to suffer a particular penalty, rather

than a liability to conviction.

MR HORTON: That is possible, Your Honour, but if that was

so, individuals who were not liable to be

imprisoned or executed would not have the immunity,

and nobody has ever suggested that. So that there

does not seem to be any rational reason for denying

the link between the privilege and the liability to
conviction. That is why it exists, of course. If

there is no liability to conviction, plainly enough

- and Your Honours are perfectly familiar with the

way it all works - there is no privilege, and hence

that is why when the claim is made by the person to rely upon his privilege, the judge has to determine

whether there is a reasonable apprehension of risk.

So that once you have a reasonable apprehension of

risk, the privilege attaches as a concomitant, as a natural consequence of the liability to conviction,

and we - - -

DEANE J:  Mr Horton, I do not want to divert you but there

is another way of seeing this, and I am not

suggesting it is right, but may not one approach be

that it is by now fundamental to our system of

administration of criminal justice that a person

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accused of crime is not subjected to compulsory interrogation?

MR HORTON:  Indeed, Your Honour.

DEANE J: ·That is something which I would have thought

nobody could gainsay, well, since, what is it, the

Bishop's case or whatever it was? If that is so,

why does that not cover what you are concerned with

in this case?

MR HORTON:  It does, Your Honour, precisely, at too great a

length for which I apologize to all of

Your Honours.	I have been endeavouring to
draw - - -

DEANE J:  I could be leading you into dangerous and

unhelpful grounds, I just do not know, but I am

view. just, in other words, expressing a question not a

MR HORTON:  No, Your Honour. If it is a dangerous or

unhelpful ground it is ones that we have staked out

for ourselves as a way in which we wish to argue

this case anyhow, Your Honour, because it is what I

was endeavouring to say yesterday. · If one accepts
that in this country and, really, for centuries the

obligation on the State or the prosecutor is to

prove his case and that he cannot do it by

extracting confessions so as to turn the process into accusation, confession, conviction in three

easy steps, if one accepts that then it follows

that except in special cases where the legislature

has enacted a statute to change the course of the

practice of the court, that that is the way in

which proceedings have to be brought in order to

get a conviction under the criminal law and,

indeed, to recover a penalty, if that matters.

That we have sought to explore in the paper

that we have proffered to Your Honours, in several

places. But Your Honours may care to glance in due

course when Your Honours have a moment at what we
have said at pages 62 through to 64.	I will not

take Your Honours' time to read it now but as I

mentioned yesterday, really, from the days of Magna

Charta, as re-enacted right up until the times of

Charles I, that has been the course of the court

and thus the course of the law. From that springs

the rights of the individual - and associated

remarks we make on page 34.

Now, Your Honours, a person accused or liable to be convicted as a description of someone who

must rely upon the way the law is administered by

the courts to protect him, necessarily includes, we

would submit, someone who may be accused in the

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future for something that he has already done, so

that you do not need actual accusation by the State

or by a prosecutor in order to attract the

privilege. It is something that inures in every

citizen. It is there as a bulwark, as Your Honours

said in Pyneboard, I think it was, against which he

can shelter in the event of him being accused let

alone of committing a crime. It is part of his

citizen's armour that he carries with him ready to

protect him in the event of him either committing a

crime or being accused of one. And when one finds

that an entity, particularly entities which are so

common as companies, the whole of the commercial

life, to all intents and purposes of this country,

is conducted by company. Being an entity which can

commit a crime there is no reason in principle, we

would submit, why that corporate citizen should not

have as part of his rights the same bulwark against

the power of the State. Your Honours see - I do

not want to go on too much about this, but the

power of the State becomes unlimited if you remove

this right.

Of course, the instant this right is removed, what you have is not only the removal of a

protection to the citizen but you have a

commensurate increase in the power of the State.

And at the same time, and which is just as

important these days, particularly in view of

Your Honours' judgment yesterday which I had the

pleasure of reading some passages and if I may be

so bold as to say so, immediately have a reduction

in the protective power of the courts, and all

those things are extremely serious and all of them

flow from the removal of the privilege.

Your Honours, the next suggestion I make I do with some hesitation because I am by no means sure

that it is rightly based, but it is a consideration

that perhaps Your Honours may care to ponder on.

One wonders whether, if you remove the privilege,

the rule that the onus of proof rests throughout on	the Crown is somewhat shaken, because the rule that
the onus of proof rests on the Crown throughout
involves, as I understand it, with my somewhat
imperfect knowledge of criminal law, a requirement that innocent explanations be negatived.
Now, it may well be that that requirement of criminal procedure would be weakened and may be
destroyed. If the immunity from self-incrimination
is removed, one would think that there might be
something to be said for the Crown then being able
to suggest that if there were an innocent
explanation, there being no right in the accused to
stand mute, one would have thought he would have
furnished it. I do not know, Your Honours, but it

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is a consideration and I put it forward only to

suggest, Your Honours, that when one starts to

tamper, if I may put it that way, with the common

law, it is not easy to see where it will lead.

May I then, Your Honours, look at some of the

suggested bases or reasons for the privilege.	They
are set out in Their Honours' judgments in the
Court of Criminal Appeal.	The easiest place to

find them, if Your Honours would be so good as -

page 200 of the appeal book, but I do not propose

to be very long about this because all of these

suggested bases seem to be culled by

Professor Wigmore, or his various editors, from

articles and speeches and the like, written by all

manner of people from Bentham up to the present,

and no doubt it is very interesting to hear what

these commentators have to say, but it is not

necessarily something that one would accept as

being a proper explanation for the privilege.	The
first one is said to be:

It protects the innocent accused from

convicting himself by bad performance as a

witness.

That is not entirely right, of course, because he
does not have to give evidence, but it presupposes,

I suppose, some compulsion to give evidence if

there is a compulsion to confess and that picks up

what I was putting to Your Honour some minutes ago,

and to that extent is a persuasive reason, because

he is practically compelled to give evidence if an

admission is made. But even if he is a good

performer in the witness-box he still suffers

because he is exposed to cross-examination.	The
second one is said to be:

It avoids burdening the court with false testimony.

This seems to suggest that accuseds will lie

when they confess, or lie when they give evidence.

Maybe they will, but that does not seem to be a

particularly valid reason for giving them an

immunity to avoid being shocked by the lies from

the rogue.

The third one, it encourages third parties to

testify. Well, there is something in that, if I

may say so, that they can be compelled by subpoena

anyhow, and the only reason that one can see why

they might be encouraged to testify would be if
they were fearful of being asked a question,

probably in cross-examination, as to their

unsavoury past or the like, on questions of credit.

So I suppose, there might be something in that.

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Then 4, is really similar to No 2, but it

seems to be that whoever crafted this reason seems

to suggest that:

truthful self incriminating answers cannot be

compelled.

That seems really to be a somewhat complicated

reason, seems to contain within it a suggestion

that lying answers can be compelled, but is a

reason that is not very attractive, we would

suggest. The fifth, that:

privilege prevents procedures of the kind used

by the Star Chamber and the

Court of High Commission.

But the requirement of the Star Chamber in the High

Commission Court was to answer on oath, and the

present day procedure is also to answer on oath if

there is no privilege. But, of course, the

privilege is not designed to prevent the springing

up of Star Chambers, even if they could be brought

into existence again in the light of the

Statute of Charles which absolutely forbids them

being reconstituted, and can hardly be suggested as

a basis for the ordinary aspect of the common law

privilege. Then 6:

It is justified by history;

and tradition is a good thing, and no doubt

that is right but it does not help us much to

understand the basis of it.

7, we would suggest, is partly right:

The privilege preserves respect for the

legal process -

And we would suggest the efficiency in the real

preserved, but whoever thought of this reason	sense of the word, of the judicial process is
suggested that it was based upon avoiding
situations which are likely to degenerate into
undignified, uncivilized and regrettable scenes.
Well, we would think there is not much in
preventing unseemly conduct in court as a basis for the - it spurs the investigators on to do a
complete competent and independent investigation,
and we would suggest that that is a good reason. It was one of the reasons advanced by Sergeant Hardres
in Mico's case in 1648, which is referred to in our
paper.

The rest of them, except for the last one, we

would suggest, are not convincing. Take 9:

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The privilege aids in the frustration of 'bad

laws' and 'bad procedures' -

but equally, if you are an enemy of it, it aids in

the frustration of good laws too. 10 would seem to

destroy itself. One just has to read it. 11

prevents torture, well, of course it does not. You

can torture someone whether he claims the privilege

or not. Probably more likely to if he is claiming

the privilege. And 12:

The privilege contributes towards a fair state

- individual balance by requiring the

government to -

prove its case, in short.

McHUGH J:  You dismissed 11 rather quickly but,

historically, there is much to be said for it, is

there not? Once you accept that a person can be

required to answer, it is but a small step then to think that you have the right to take the means to force him to answer.

MR HORTON:  I suppose, Your Honour, but if one is going to

stoop to that one would stoop to it whether he had

the right or not, we would suggest, and perhaps

more readily because at least he thinks he has got

the right to remain quiet, so you extract it from

him.

But, Your Honour, may I just give Your Honour a reference to Penn and Mead's case, one of the

early ones, which is in the book at page SO, and

for two reasons - well, for three, really: it is an

amusing report in a sense, although a bit

horrifying, but the other reason is that it is an

absolutely appalling report of a trial held in
1670. But the significant thing about it is,
appalling though the trial was, when Your Honours

look at the case, they none the less - it was in

the Mayor's Court in London - did not seek to force

the accused to confess and granted them the

privilege when it was claimed.

Your Honours only need to look at page 52,

just for a moment, Your Honours, on the right-hand column, near the top of the page. The accused are brought into court and they took off their hats and

the mayor, who was presiding in the court said,

"Who told you to take off your hats? Put them back

on.", which they did, or they were put back on by a
court orderly. And half-way down they are
convicted of contempt of court for not taking their

hats off and fined 40 shillings. That is how

things started and they went from bad to worse.

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On the next page, 53, in our volume, the left-

hand column, at the foot of the page, Mr Mead is

asked by the recorder:

What say you, Mr Mead, were you there?

Mead. It is a maxim in your own law, 'Nemo

tenetur accusare seipsum,' which if it be not
true Latin, I am sure it is true English,

'That no man is bound to accuse himself.'	And
why dost thou offer to insnare me -

and so on. At the top of the next page, the

recorder says -

Sir, hold your tongue, I did not go about to

insnare you -

and the question was desisted in. If one goes over
to pages 56, for example, and 57 and 58 and 59,

Your Honours will come upon passages where the

court, when they sent the jury out to consider its

verdict, the jury came back after a time with a

verdict in some detail that the charges in the

indictment were not made out and the court sent the

jury out no less than five times telling them they

wanted a verdict of guilty.

The jury was adamant and would not bring in a

verdict of guilty, and ultimately what happened was

that the court sent the two defendants who had been

found not guilty in terms repeatedly by the jury to

gaol, and sent the jury to gaol too. The Court of

Common Pleas issued writs of habeas corpus - - -

TOOHEY J:  Mr Horton, I am losing the thread of this a bit.

I thought you were at some pains to bring down the

justifications offered by Wigmore -

MR HORTON:  Yes.

TOOHEY J:  - - - and is that because they are thought to be

only referable to individuals as opposed to
corporations?

MR HORTON:  No, Your Honour. I was going to go back over

them.

TOOHEY J:	But how does it advance your argument to destroy the justifications offered by Wigmore, unless those
justifications can be shown to be referable only to
human beings as opposed to corporations, because
the Court of Appeal took the view that a number of these justifications were equally practicable to corporations as to individuals?

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MR HORTON:  And in so far as they are, of course, we accept

them, but -

TOOHEY J: But in so far as they are not, what follows?

MR HORTON:  Then we say they are not a substitute for what

we say is the real basis for it, which is the

preservation of due process according to law.

TOOHEY J: Well, I understand that argument, but you did not

seem to me to be advancing the argument a great

deal to seek to demolish the justifications that

Wigmore offered.

MR HORTON: Well, only this, Your Honour, that in so far as

they relate to individuals only and not

corporations, if they are valid they can be used,

and indeed are used, by Wigmore to justify the Hale

v Henkel approach in America - - -

TOOHEY J: Yes, I understand that.

MR HORTON:  - - - saying, "Well, you can't torture

corporations; therefore they've got no privilege."

So my purpose was to show that these are not really

the basis for the privilege at all when one

examines it, and to set them up as the basis, then

say, "Well, they only apply to individuals, ergo,

non-individuals don't have the privilege" is a

false way of reasoning. That was why I was dealing

with them, Your Honour.

Your Honours were asking me earlier what cases held that, back before Triplex, of course, the

privilege applied to corporations. In this country

the earliest one we have come across is R v

Associated Northern Collieries,

(1910-11) 11 CLR 738. It should be said, of

course, that this was a case relating to penalties

in the same way as some of the cases that

Your Honours have dealt with under the Trade

Practices Act relate to penalties, but the

principle is analogous to the one of immunity from

self-incrimination.

MASON CJ: What are we going to get out of this case?

MR HORTON:  Only that this was a case in which the principle

applied to companies, Your Honour. It is not

necessary to take Your Honours to the detail in

Mr Justice Isaacs' judgment, who had collected all

the earlier cases on the existence of the

privilege, much the same as Your Honour

Mr Justice Deane did in Refrigerated Express Lines

some - I have forgotten now, about ten years ago,

Your Honour, in the supreme court. But the point

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of the case for present purposes is that the

companies were granted privilege.

BRENNAN J: But this is of course a civil action, is it not?

MR HORTON: Yes, but to recover a penalty, Your Honour under

the precursor of the Trade Practices Act.

BRENNAN J: Yes. But in Naismith v McGovern, I see in

90 CLR 342 where this judgement is discussed, the

Court observed that it was:

held that in a civil action for penalties, in

the absence of statutory provision -

et cetera.

MR HORTON:	Yes.
BRENNAN J:	So the classification is not unimportant to the application of the principle.

MR HORTON:  We would submit not, Your Honour. It is true

that the privilege against self-incrimination is

not precisely the same as the privilege to exposure

to penalties. But it is said by my learned friend,

and we agree with this, that the equitable

principle of not requiring a discovery, for

example, of matter which would lead to a penalty,

was a consequence of equity following the law in

relation to the privilege against incrimination.

Penalties, of course, from the point of view of the

accused or defendant, assuming that it does not

amount to imprisonment or execution, have the same

consequence. He has lost his money or he has lost

his position or he has lost his land.

Mr Justice Isaacs, Mr Gleeson reminds me, at

page 744 of the Associated Collieries case, 11 CLR,

and quoting from a decision of Lord Chancellor

Hardwicke given in 1736 said:

"There is no rule more established in equity,

than that a person shall not be obliged to

discover what will subject him to a penalty,

or anything in the nature of a penalty".

And then:

"Under the rule, a man is not obliged to

accuse himself -

so you have got the language of the common law and

of crime -

is implied, that he is not to discover a

disability in himself."

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So, the Lord Chancellor in 1736 seems to have drawn

the rule against exposure to a penalty out of the

rule as stated in the Latin phrase against

admissions tending to incrimination.

BRENNAN J:  You make the immunity from having to answer a

question, the answer to which might tend to

incriminate, simply part of the wider rule which is

expressed there and here on discovery, namely, "a

person is not obliged to answer so as to expose

himself to any punishment by judicial or competent

authority or to any penalty or forfeiture or

disability in the nature of penalty."

MR HORTON:  Yes, Your Honour. That, of course, is written,

I suppose in the equity context, because in those

days one needed - 1836, I am not quite sure - I

think probably one still had to go to equity at
that date to get discovery, so that is what the

author is talking about, I suppose, but the

principle must, we would submit, be the same at law

and in equity. And, of course, it has never been

suggested that companies do not have the privilege

ag~inst exposing themselves to a penalty. Maybe

one day it will be, but so far it has not been

suggested and there have been numerous cases,

Refrigerated Express Lines before Your Honour, when

Your Honour was on the supreme court, is one.

There is a recent one by Mr Justice Foster in the

Federal Court in Metroplaza, decided only a few

months ago - Metroplaza v Girvan, (1992)

ATPR 41-187, and although His Honour did not refer

to the Court of Criminal Appeal's decision in this
case, or to Refrigerated Express Lines, which was
the first of the cases under the Trade Practices

Act on this point, he referred to a number of

others and concluded that a corporation - he saw no

question - he says:

The applicable principles in relation to this

privilege may be regarded as well established.

BRENNAN J: Well, one could understand the corporations

might readily be entitled to whatever protection

there is in equity against discovery -
against ..... of discovery - where there may be

something in the nature of a penalty to be feared,

but that seems to me to have little to do with the

application to corporations charged with criminal
offences of an immunity to answer a question if

there be a prima facie statutory power requiring it

to do so.

MR HORTON:  Your Honour, if - and this echoes, I think, a

view that Your Honour took in Sorby's case, that is
that if a statute suggests that some

instrumentality, or officer, is entitled to ask you

Environment 107 9/12/92

questions or ask for your documents, Your Honour's

view in Sorby was that that carried with it an

implied abrogation of any right to refuse. But, if

I may say, with respect, Your Honour either changed

Your Honour's view, or at least announced that you were adhering to the majority view when Your Honour

came to Your Honour's judgment in Pyneboard a

little later.

BRENNAN J:  I have accepted the proposition that the

privilege is not now, under the rulings of this

Court, to be regarded as restricted to evidentiary

matters before a tribunal or a court. But, it

seems to me that even if one extends it to

statutory powers which are extra-curial or

extra-tribunal, one still is looking for an

underlying principle which justifies the reading

down of a broad statutory provision.

MR HORTON:	Yes, Your Honour.
BRENNAN J:	I can understand that one might say, "These

broad statutory terms are to be read down so as not

to compel a person, prima facie, subject to them,

to the requirement to incriminate himself". But to

make that work in this case, one must say that, at

common law, if a corporation is charged, that the

corporation has a privilege.

MR HORTON: Quite, one must.

BRENNAN J: That is looking to operation, one would have

thought, of the general rules of the common law in

relation to criminal prosecutions.

MR HORTON:	Indeed, Your Honour.
BRENNAN J:	So that I do not find much assistance in looking

at the general equitable rules about the limitation

and the right to discovery.

MR HORTON:

Your Honour, only that it recognizes that penalties, and there are many cases in which that

corporations have the privilege in relation to

has been held. There is no reason why one would

say corporations have the privilege in respect of

penalties but not in respect of incrimination

except the matter that, I think, Your Honour

the Chief Justice raised earlier this morning, and
that is that it is only in recent times - the last

one hundred years or so, give or take a decade -

that corporations have seen to be capable of
committing crimes, of a statutory nature, that is
to say, and in more recent times, as the
Solicitor-General explained to Your Honours

yesterday, there has been - I think in the Ferry

case, I have just forgotten the name of it -

Environment 108 9/1292

Zebruggen's case - the extension, of course, to

manslaughter and the like. But I am going to be

repeating myself if I go on about that.

Your Honours, the oft-stated principle is that

if there is a privilege, it can only be taken away

either by express words in a statute or by

necessary intendment, not by a side wind, as it

were. In nearly every statute in which the

legislatures have endeavoured to require production

of documents and answering questions and the like -

not in all of them but in nearly every one of

them - there is either an express restriction of

the privilege, whether it be against exposure to a

penalty or risk of incrimination or it is one which

you can see springs by necessary intendment out of

the words of the section.

That of course leads one into another consideration, and that is that if the legislature

have repeatedly in recent times attended to the

question of abrogating in whole or in part, mostly

in part, a privilege against incrimination, that by

itself is a strong indication in the light of the

fact that there have been cases in which the

privilege existing in corporations has been

recognized - my friend says without argument, and

that is right in many cases - it is a recognition

by the legislature that the privilege indeed exists
in corporations, otherwise why bend their efforts

to restricting it. And then Your Honours see that

in most of the cases where it is expressly removed,

not in cases where it is impliedly removed, which

might perhaps in another case be an argument

against removal by implication, I suppose, but in
cases where it is expressly removed, nearly always
there is a substitution of a statutory protection,

usually to the effect that the answers given or the

documents produced shall not be used in any other,

sometimes, or just criminal, sometimes, proceedings

against the person who has been compelled to answer

And usually it follows, except they can be used in	or the company which has been compelled to produce.	a prosecution for failure to obey the command to
produce.

Now that leads me, Your Honours, to what we

have said on page 39 of our paper and if

Your Honours will be kind enough just to glance at

that, it will be quicker than me endeavouring to

state it. And what we have to say on this topic

goes over to page - - -

DAWSON J:  Mr Horton, could I, just before you deal with

that, ask you this? We, really, in relation to

corporations are only talking about discovery in

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one form or another, are we not, in the context of

privilege against self-incrimination?

MR HORTON: Except, Your Honour, in the case of something a

corporation has done by its controlling mind, the
organic theory that Your Honour - - -

DAWSON J: But even so, you can call the officers of the

corporation. They cannot claim privilege on behalf

of the corporation.

MR HORTON: Well, Your Honour - - -

DAWSON J: You can seize documents of the company and you can

call an officer to prove them.	We really are only
talking about discovery.

MR HORTON:  Your Honour, certainly it is the principal area

in which the problem would arise.

DAWSON J:	The only area I am putting to you.
MR HORTON:	No, Your Honour, we would not concede that.

DAWSON J: Well, where else can it arise?

MR HORTON:  It can arise in interrogatories, which is an

aspect of -

DAWSON J: That is a form of discovery.

MR HORTON:  - - - discovery. I follow what Your Honour

means. It can also arise, we would submit, these

days where the organic theory holds sway.

DAWSON J:	Have you any authority for that?
MR HORTON:	No, I have not, Your Honour, none. That is why I preface it by saying it could arise these days
where the organic - - -

DAWSON J:  The officer of the company gets into the

witness-box and said, "I am not here as X, Y, z.	I
am an organ of the company, and as an organ of the
company I claim on its behalf privilege against
self-incrimination."

MR HORTON: For the company.

DAWSON J:  Do you know if that has ever been done?

MR HORTON:  No, Your Honour, but it probably would not be done that way. He would be put into the

witness-box in order to be asked questions by

someone, no doubt not in his camp I suppose, or

maybe it arises in cross-examination if he is

giving evidence, and then counsel would make the

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claim for the company because as Lord Coke said in

the Sutton Hospital case, and as the Crimes Act

itself says, companies appear by counsel and it is

the only way they can. So the privilege is then

claimed by counsel as the representative of the

company while the managing director is in the

witness-box, because we would suggest that if the

organic theory holds sway, and it may retreat, but

the likelihood, one might apprehend, is that it

would tend to expand as most new theories do in the

law.

What he would be asked would be questions

probably going to the question of mens rea, because

where it is an absolute offence what he thought or did or had in mind, intended, and so on, would not

matter. If he is selling adulterated milk, well, there it is. Nobody is concerned about mens rea.

So probably, Your Honours, it would arise in a mens rea type prosecution. If mens rea has to be

proved rather than merely inferred, which is a
possibility, then there may have to be some

evidence about it or the Crown may seek to educe
that evidence. That would be an occasion when

privilege could be claimed, we would submit,

assuming companies have the privilege.

So we would not wish to restrict our submissions to questions of discovery. For our

purposes in this case that would be sufficient, but

I am apprehensive as to what may happen in future

cases were I to make the concession that it was

restricted to discovery at this stage,

Your Honours.

BRENNAN J: That raises an interesting problem, does it not,

because if the managing director were being

cross-examined in the way in which you have just

postulated, the managing director may wish to

answer, and yet counsel would object to the answer?

MR HORTON:	Yes, well then he could not, Your Honour.
BRENNAN J:	So then you would have one witness who is

competent and compellable, but yet in the box in a

state where he is competent but not compellable.

Which view would prevail?

MR HORTON: That is a situation that he might find himself

in even before he got into the witness-box because

he might be bursting to disclose documents which
have the umbrella of legal professional privilege

over them, belonging to the company, and he has no

right to disclose them. It would be a breach of

his duty to do so; the same thing when he is in the

witness-box.

Environment 111 9/12/92

BRENNAN J: But when he is in the witness-box he is

competent and he has the power to do so.	In
relation to the discovery of the company's
documents he has no power.

MR HORTON:  We would submit he has got no right,

Your Honour.

BRENNAN J:	No power.
MR HORTON:	And no right, we would add.
BRENNAN J:	Be it so.
MR HORTON:	No right.  They are not his documents. He must

deal with them and hold them for the company, and

if he ceased to be managing director yesterday and

is in the witness-box today, no doubt if the

question is admissible and is not subject to the

company's privilege, he could be asked what he knew

about the affairs of the company, but not always
could he reveal that, except by an order of the

court because it would be a breach of confidence.

Now, in many cases courts preserve confidence

even though allowing a question to be answered, so

that while he is the managing director he must act

for the company, we would submit. Now, if the

company is compellable, in a sense of not having an

immunity, then he is the organ of the company for
the purpose of this part of the argument, is
equally compellable. But if he is there as the

voice of the company and the company is allowed to

stand mute then he must be allowed to stand mute,

otherwise the whole privilege is an empty thing, it

is a fiction, and that cannot be so, we would

submit. However, I have digressed a little and

only because I do not wish to make a concession

which I might regret on another occasion.

Now, Your Honours, over on page 40 -

Your Honours may have glanced at that, I do not

want to take time to read it - there is more

material on this aspect of the abrogation in part
by parliaments, and the significant thing, as my

learned friend the Solicitor-General, I think, drew

some comfort from the recent amendment to the

Corporations Law by the Corporation Legislation

Evidence Act which was passed in May of this year, but when one understands it, we would suggest, properly, it bolsters our case because here you

have a recognition five or six months ago by the

Federal Parliament of the existence of the

privilege in corporations. And the abrogation of it totally for a specific purpose of examinations

by liquidators, and partly for other purposes, but

even then restricted it to being abrogated in

Environment 112 9/12/92

relation to prosecutions for what are called

corporation law criminal matters.

So the Parliament, tutored by the select

committees recommendations that my friends took

Your Honours to yesterday, were careful not to

attack the privilege with a broad sword. They

dissected it very carefully so that it was

restricted only in areas which were regarded as

being necessary, for the reasons that Your Honour

Mr Justice McHugh mentioned yesterday, that these

days there is seen a need to pursue what are called

generally corporate crooks, and that was what the

Parliament was about. So it dealt specifically

with the specific problem.

Hence, when you find that happening so

recently but yet another example of the way not

only the Federal Parliament but certainly the

Parliament in New South Wales, and I apprehend of

other States as well, have dealt case by case and

detail by detail with the privilege, you get inevitably driven to the conclusion that the

parliaments have repeatedly recognized the

existence of the privilege incorporation and when

it is to be interfered with they do it carefully

and for particular purposes.

That suggests, we would submit to

Your Honours, a need for great caution in the

approach to a wholesale abolition of the privileges

which is what the Solicitor-General contends for.

It is true that he shrinks going the full distance

that the United States courts have travelled, and

for good reason.

He would have Your Honours declare that the

privilege does not apply to corporations in any

matter, to do with corporate roguery or not. But

he does not want - because he can see how

unattractive it would be to Your Honours no doubt	and how dangerous it would be to the community, I	suppose - to extend it as has happened in the
United States, to removing privilege of trade
unions and no doubt other associations of people
and of partners, even the partners of a partnership
long since wound up, as happened in Bellis or of family trustees, husband and wife as trustees for a
family trust. He does not want to go that far, and
for obvious reasons.

So that my learned friend does not adopt the

US theory that any organized entity is not entitled

to privilege and wishes to restrict the

annihilation of it to corporations. But

corporations are just as much organized entities as

any other vehicle for conducting a business

Environment 113 9/12/92

activity or the like. It just happens that there

is a statute which has grown and grown and grown

over the years and now is extremely large which

deals with what they can do and what will happen to them and so on and so forth but, critically, all it

really does is to provide a legislative machinery

for incorporating something which could have been

done and was done for hundreds of years by the

sovereign by the use of his prerogative.	He merely
granted a charter.

So, that is not appropriate any longer for

pretty obvious reasons, and you do a similar sort

of thing by statute. But there is no reason, just

because people are associated together in a company

and have to be associated together before they can

Corporations Law, to suddenly say, "This

even form it, for the reasons I mentioned to of the

right that you had, granted by the common law, is

now annihilated."

Now, another aspect, Your Honours, is that

here you have Parliament in the various guises of

Federal and State, from time to time addressing the problem and addressing it in recent· times. That

has the consequences, on my friend's approach, that

I have mentioned but, what my friend is inviting

the Court to do is to accelerate past Parliament,

which has acknowledged and recognized the privilege

as existing in corporation, and tp say it is

annihilated in all cases. That is to say that

corporations no longer have the bulwark against

encroaches on their liberties.

Now, Your Honours, in the centuries from about

the thirteenth to the seventeenth it was Parliament

that resisted encroachment by the executive on the

liberties of the people, as well as did the courts.

At some times, in the early parts of the reign of

Charles I, and indeed in the reign of James II when

Monmouth's rebellion with great savagery, one would Judge Jeffreys was putting down the Duke of	be permitted perhaps to say that the courts were
not, regrettably, standing between the State and the executive and the individual, but Parliament did because Charles lost his head and James found a
revolution on his hands a little later on.

But today one realistically has to accept, we

would submit, that modern parliaments in this

country - I say nothing about the United States, or

indeed England - are to a large extent in the

thrall of the executive. It is perhaps the party

system - there is no need to perhaps find out

precisely why, but the Government, really, the

executive, to all intents and purposes controls

Environment 114 9/12/92

Parliament, except in strange and unusual

circumstances where you have an independent, and

even then there are pressures on the independents

by the executive, by virtue of giving them offices

and the like, which tends to enhance the power of

the executive.

So what you are left with these days is not

Parliament standing between the executive and the people at all, but only the law and the courts and therefore Your Honours would be cautious, we would submit, in acceding to the request by the

Solicitor-General for New South Wales that a

wholesale abrogation of the privilege be carried

out, and not even Parliament, in the thrall of the
executive, as I say, have attempted to do that.

Your Honours may perhaps think there is a deal

of force in the observation made by the
Court of Appeal at page 203 to the effect that

modern companies are frequently reminded that they

have duties of citizenship, but the court also

considered they have rights of citizenship and the

holding of a proper balance between these rights

and the power of the State is a concern of the

courts, and very much a concern for the reasons I

have just been attempting to express.

Now, Your Hone.. .: , I was not proposing, unless

Your Honours wish me to, because I know
Your Honours have commitments elsewhere tomorrow,

and so I am concerned about the time, to go into

the American cases, because we have said what we

want to say about them in the written material in
detail, except to say this, that the one that

started it all, Harlan in Hale, proceeded on the

basis that companies were granted franchises by the

legislature, and because it was a franchise, they said, that carried with it the power to appoint a

visitor, as it were, and you have a visitatorial

basis for the annihilation of the privilege.

But, Your Honours, the courts in the

United States, we submit, misunderstood what a

franchise is. The two cases, which I will not ask

Your Honours to look up, about what is a franchise,

are, Re: Sheffield & South Yorkshire Building

Society (1889) 22 QBD 470 AT 476 and

DPP v Kent & Sussex Contractors Limited, (1944)

1 KB 146 at 145, and it is plain that unless

franchise has some odd meaning in America, I do not

mean to mean the modern meaning of McDonalds

outlets and the like, had some odd meaning in

America in the early part of this century, it is

impossible to agree with the US Supreme Court in

saying that "having a company formed under a State

law is the grant of a franchise", and from that, of

Environment 115 9/12/92

course, unsteady foothold they erected the
visitatorial justification for annihilation of the

privilege against conviction of breach of a federal

statute by reason of the fact that the State which

had incorporated the company had some power to

investigate its affairs. With all respect to

Their Honours, I am forced to submit to

Your Honours that the reasoning is confused, to say

the least.

Then of course, when they came later in Bellis

to look at it again, they had to concede that a

visitorial basis was hopeless as a basis for the proposition. And then you had the invention of the organized entity basis. Just out of thin air.

And, of course, what Your Honours said in Pyneboard

- Your Honours in the majority I mean to say,

Mr Justice Murphy was again with the Americans -

what Your Honours said in Pyneboard was exactly

right, that what has happened in America is

traceable to the provisions of the constitution,

because what they found themselves was that the

enthusiasm of the founding fathers has been a bit

too much, because they have written these

immunities into the federal constitution, together

with the 14th Amendment, which we have not gone to

in any detail, but which absolutely prohibits the

States doing anything in relation to legislation of

the type we have been talking about, at all so that
the only way they can possibly have Acts like the

Corporations Act, investigation of affairs of

companies, the only way in which they can have

notices under the Trade Practices Act equivalent,

or notices under the Clean Waters Act of any sort,

would be by amending the Constitution, and I do not

know what the view is as to how difficult it is,

but you need a two-thirds majority in Congress and
the Senate, and then you need two-thirds of the

States in convention, whatever precisely that means, I am not quite sure, in order to get an

amendment through, and maybe it is rather

path which the US Supreme Court has set itself on.	difficult. So, hence the temptation to follow the
And, of course, we do not have that here,
fortunately, there is no problem about it at all,
and the legislatures deal with it case by case.

Now, Your Honours, can I then come to the

section 29 notice. The page where Your Honours

will find the section most conveniently in the

appeal book is at pages 206 and 207. There is no

need to ask Your Honours to look in any detail at

all at section 28 except to observe that that gives

a power to the Commission itself by written notice

to require information as to discharge of wastes

and the like from premises, and to see

Environment 116 9/12/92

subsection (3) of the section, which is at the foot
of 206, which says that:

Any information furnished ..... shall not, if the person furnishing the information -

objects to furnishing -

on the ground that it might tend to

incriminate him, be admissible in evidence in

any prosecution ..... for any offence.

So it is the traditional partial abrogation of the

privilege. You find that in section 28 dealing

with requirements by the Commission itself.

Section 29 is the section Your Honours are

concerned with directly in this case, and that

gives "an authorised officer" certain powers that I

will come back to in a moment, but there is no

abrogation at all of the privilege. And the fact

that in sections cheek by jowl with each other you
find abrogation of the privilege in part in one

section, therefore a recognition of the existence

of the privilege necessarily to be implied, and in

the next section no abrogation of the privilege is,

we would submit, a strong indication that the

privilege remains undiminished in relation to

section 29.

Your Honour, that approach where you had two

sections in the same Act, one abrogating the

privilege and one not, found favour with

Mr Justice Bryson as a reason for concluding the

privilege remained intact.	We have set that out at
page 55 of our paper.	The case - perhaps I should

do it for the transcript - the case His Honour's

judgment appears in is Green v Purdon,

(1987) 12 ACLR 336, and we have set out the

relevant part of His Honour's judgment at pages 55

and 56 of our paper.

Your Honours, that direct, and we would

suggest, fairly attractive approach to the

construction of section 29 was not accepted by Their Honours in the Court of Criminal Appeal. They took the view that section 29 abrogated the

privilege by implication, and so I must deal with

that.

BRENNAN J: Before you leave that, could I just ask you in

relation to section 29(l)(c)(iii): does an

authorized officer entering premises pursuant to

that provision have power to examine the company's

books under the power to make -

such examination and inquiry ..... as he

considers necessary -

Environment 117 9/12/92

et cetera?

MR HORTON:	We would submit not, Your Honour, because of subsection 2(a) at the top of page 208.	He can
require teh occupier to produce -

reports, books, plans, maps -

and then at the end at about line 20 -

and may take copies of any such reports -

and so on. So that one finds the power in

subsection (2), so far as books and taking copies

is concerned, we would submit.

BRENNAN J: Yes, thank you.

DEANE J:  Mr Horton, you say that section 28 takes away the

privilege. Is the only reason you say that because

of subsection (3)?

MR HORTON:	Yes, that is so, Your Honour.
DEANE J:	I notice that Chief Justice Gibbs in Sorby said

that a provision such as subsection (3) did not

suffice to take away the privilege.

MR HORTON:  Did he, Your Honour? I must say

DEANE J: Well, as I read him. It is in 152 CLR 295.

MR HORTON:  I am obliged to Your Honour. May I just look at

that?

DEANE J:  I do not know what the relevance of it is or

whether it is correct but I recalled having seen

it.

MR HORTON:	Yes, I am obliged to Your Honour.
DEANE J: But do not let me delay you. It is a bit hard to

see why it would not indicate a legislative intent

to take away the privilege.

HIS HONOUR:  Yes. May I, with all of Your Honours' leave,

have a look at that at the luncheon adjournment and

if I need to say something after that address on

it?

MASON CJ: But in this context a provision such as

subsection (3) would have significance in contrast

with its omission in section 29.

MR HORTON:  Yes, that is what I was endeavouring to express,

Your Honour.	Of course, that is our first point on
section 29.	Coming to the implied abrogation which

Environment 118 9/12/92

the Court of Criminal Appeal found, could I just

suggest to Your Honours there are some significant

parts of 29.

First of all, 29 only operates when an

authorized officer enters because it starts off

saying he "may enter any premises". Now, once he

is in, at line 21 or thereabouts, you see what he

can do and it says:

may therein -

(i) examine and inspect any apparatus,

equipment or works .....

(ii) take and remove samples of any

wastes .....

(iii) take and remove such samples and make

such examinations and inquiry and such tests

as he considers necessary to ascertain whether

the provisions of this Act or of any

requirement ..... are being or have been

complied with; and

(iv) take such photographs -

but they have got to be photographs connected with

the Act.	So that is what he can do when he has got
into the premises.	Then subsection (2) says:

An authorised officer may, by notice in

writing -

now these are the written requirements that he is

allowed to make. He requires -

(a) the occupier of any premises -

not just anyone but the person in occupation -

from which pollutants are being or are usually

discharged into any waters to produce to that	authorised officer any reports, books, plans,
maps or documents relating to the discharge -

and coming down to line 20 -

and may take copies of any such reports,

books, plans, maps or documents.

Every authorised officer shall be provided

with a certificate of his appointment, and on

applying for admission -

he will produce it if he is asked for it. And (4)

provides that:

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any person who wilfully delays or obstructs an

authorised officer ..... or who, being the

occupier -

so that relates back to 2(a) -

of any premises, refuses to permit or to

assist an authorised officer to do, perform or

carry out the matters or things ..... is guilty

of an offence ..... and is liable to a penalty.

Now, what one gets, we would submit, from a reading

of 29 is that it is directing its attention to what

an authorized officer may do when he is on the

premises. It says, first of all, he can enter,

then it says he can give notices and he can take

copies, and in the next breath but in the same

section, it says when he is applying for admission

he has got to produce his card to show who he is.

And then (4) is the prohibition on the occupier

refusing to permit the authorized officer to do

what he is permitted to do.

So the thrust of the section is what an

authorized officer does on the site, we would

submit. That, by itself, if that is the true

construction of it, means that he cannot wait

months and months and months and int~ the next

year, and just before the hearing is ~bout to

start, the proceeding has been commenced long

before, serve a notice which, as my friend frankly

admits and admitted at the hearing, was only for

the purpose of trying to procure evidence to make

the charges at.

So, that is the first thing about it. The

next thing about it is that it is strange, we would

submit, that a privilege against incrimination is
said to be impliedly removed only when the officer

has knocked on the door and come in with his card, had a look at the books and taken some copies, and

it is impliedly abrogated in those circumstances.

And yet when the Commission deliberately sets out	to ask for information under 28 and serves a
notice, the legislature thought it desirable,
indeed necessary, to specifically abrogate the
privilege.

Your Honours see that an authorized officer

may be doing his rounds. I suppose they do. He

does not just sit, I would imagine, in the office,
and he might call once a month or at irregular
intervals one does not know, but what he does is he

comes on the premises and has a look at what is

going on and sometimes, no doubt, he will take

samples I suppose and sometimes he will ask to look

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at books but not necessarily always, by any means,
one would think.

So, that is what one might call a routine inspection, whereas 28 is plainly something that

the Commission things about, first of all, prepares

a written document and serves it, because when

Your Honours look at section 31, which is in my

friend's blue book, volume 2, Your Honours will

find at page 212, it says:

Any notice under section 15 -

which does not matter -

or 28 -

which is the one we contrast with 29 -

may be served -

(a) by delivering it personally -

and so on, and:

(b) by delivering it to the last ..... place of

abode ..... or,

(c) by posting it -

and the usual sort of service provisions.

Now, there is nothing at all anywhere about

service of a notice under 29 which again suggests

that that is something done by the officer while he

is on site. He presumably writes it out on a form,

if there is one, or in a notebook and tears if off

and hands it to the occupier. So, there was seen

to be no need, indeed, an incongruity in suggesting

a particular mode of service should be inserted in

section 31 in relation to an authorized officer's

notices.

So that the Court of Criminal Appeal none the

less concluded that there was, by implication,

applying the several cases, mostly in 152 CLR where

Your Honours have dealt with this question of

implied abrogation - Pyneboard and Sorby and the

like, and Hammond - there was implied abrogation of

the privilege. But in all of the cases that

Your Honours have decided on this aspect in recent

years, it is on the basis that the purpose of the section is apparent, on its face, and it includes either discovering matter for the purpose of

establishing that an offence has been committed, or

some other breach, in the case of the Companies Act

cases, of the Companies Act has been committed or,

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in the case of the Trade Practices cases, that a

penalty under Part IV which, after all, is really

only a substitution as we all know for a fine, has

been incurred. Every one of them are cases like

that.

So, one therefore infers that because the

whole purpose of the inquisition is to discover

criminality or breach of the Act, one can then

infer that it is not to be set at nought by saying,

"Aha" to the inquirer, "you want to find out

whether I've committed a crime? That means I'm at

risk, I now claim the privilege."

So the section achieves nothing, and it is

perfectly obvious in those cases, as Your Honours

have made clear on a number of occasions, that

there is a necessary abrogation, but that is not so

in 29 at all. These are routine inspections; not

designed to discover a breach of the Act at all,

but to discover how the methods of pollution
control are working because this proceeds on the

basis that there is pollution emanating from the

premises, as emanate it must if the community is

going to survive in anything like its present

state.

So that there is by no means to be found in

the section only the object of discovering a crime or breach of the Act because my friend has set out

and so have we, in our paper, and I will not weary Your Honours with going to it - there are numerous

sections in these connected Act, Clean Waters Act

and the Pollution Act and so on, which make it

perfectly plain that the object of setting up this

Commission, which is the prosecutor, is not just to

catch people and fine them and so on, but it is to

try to find ways to stop blackening the air with

smoke and polluting the ocean and killing trees and

grass and all the things that are now the object of

both governmental and popular attention.

BRENNAN J:  How do these two provisions work, Mr Horton?

If, under 29(2)(a), the authorized officer, making

an inspection of premises, sees that there is

something amiss and gives a notice and, as a result

of the production of the report, ascertains that

there is a prosecutable breach, can he then act on

that report or is that report available as evidence

when 28(l)(c) gives the Commission itself a power

which is qualified by subsection (3)?

MR HORTON:  We would submit not, Your Honour. If the

Commission suspects that there is an offence then

obviously it is given power to get the detail, and

that is what 28 does, but the legislature that

gives them the power also preserved, in part, the

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right of the defendant. Now, to go round in the

other way and say, "We are not going to serve that

notice by posting it", or whatever the mode of

service is one selects, "We will send our

authorized officer out and he can just give a
notice", or "We will not even send him out, we will
have him sit in his office in the city and write
out a notice and post it or hand it over in court,

to the defendant", cannot stand, we would

submit - - -

BRENNAN J:  I understand the force of what you say about

that, but it is an odd thing to think that the
authorized officer would have powers that are

untrammelled by the limitations that are on the

Commission's powers. But, how does it work if the

officer, taking this case, if the authorized
officer was conducting an inspection on Caltex

premises on one of the days which is laid in the

charges, and perceiving something to be amiss, he

was minded to exercise the powers in 29(2)(a), do

you say that Caltex would be entitled to refuse to

comply because compliance might expose it to

liability to conviction?

MR HORTON:  Yes, Your Honour.

BRENNAN J: Well that really means that 29(2)(a) is a dead

letter, does it not?

MR HORTON:  No, Your Honour, because there might be many

things that are going on from day to day when there

are no oil spills, to use a - - -

BRENNAN J: But the condition is that pollutants are being,

or are usually, discharged into.

MR HORTON:  But pollutants are always discharged.

BRENNAN J: Yes, that is right.

MR HORTON:  From these and every other premises into which

authorized officers usually go, because they are

all licensed, Your Honour sees. In a perfect

world, perhaps there would not be any pollutants

but there is no possibility, as I understand it,

and hence you have all these provisions, of making

all manner of manufactured goods without

polluting, and so the object is not to stop

pollution, but to control it, which one gets from

looking at the sections of the various Acts. And

also to improve the controls, so that one would go

in and find that company A has this sort of

machine, or an instrument for cleaning the smoke in

its smokestay, and one would perhaps want to look

at the plans of it to find out who manufactured it,

so when you went to company B, you could make a

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recommendation or even put it into company B's

licence, if you wanted to be heavy handed about

it - - -

BRENNAN J: But what you are saying comes to this, does it

not, that if he goes in to the company and says,

"What is the rate of discharge of your oil

pollutants today?" The company officer who has the

records or the tests, the hour to hour reports of the discharge, might say to him, "Here they are", or alternatively, "We are having a bad day today

and your powers do not extend because if I were to

comply, the answer might tend to incriminate".

MR HORTON:  Yes, he might not put it quite like that,

Your Honour, but more or less, yes.

BRENNAN J:  So that the power stops short at the point where

the answer might tend to incriminate.

MR HORTON:  Yes. That, of course, might not be the end of

it, for obvious enough reasons. The authorized

officer would then, no doubt, go back to his

office, and if he was sufficiently concerned about,

tell the Commission that he would draw up a notice

under 28 and say, "Give us the records for

yesterday or whenever it was, and we will have a

look at them and see whether there is cause for

concern." We would have to do that. But we would

have the modified privilege given to us by 28. There does not seem to be a reason for

partially restricting the effect of a commission's

considered - no doubt there is a body of people who

sit and think about these things - demand and yet

allowing an authorized officer who just happens to

be on the premises to get them willy-nilly. "Why

bother", one asks, "with 28 at all?", it is so much simpler to give the authorized officer his identity card and send him out there. But not even that

happened in this case.	Months and months
afterwards and for the purpose of the litigation -

of course they knew they could not subpoena us -

they attempted to use the authorized officer.

Your Honours, there is thus, we would submit,

strong reason for concluding that given the

existence of the privilege it is intact,

notwithstanding 29. Your Honours will find the

reasons that Their Honours below thought that 29,

by implication, abrogated the privilege. I was

just going to ask Your Honours to look at page 212

and Your Honours will find what the court below

said as to why 29 abrogated the privilege. First

of all, at line 6, Their Honours say:

it is a power to police compliance with laws -

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so it is a policing power -

and thus falls within the principle just

mentioned.

That is to say, the principle just mentioned was in

Pyneboard where they referred to Your Honours' judgment and said that:

if the object of imposing the obligation to

answer questions or produce documents is to
enable an authority or agency to ascertain

whether an offence has been committed ..... that

is a strong reason for concluding -

We submit that while in Pyneboard that was clearly

the case and in a number of other of the cases

Your Honours have dealt with, it is not so in

relation to 29.

Secondly, one of the duties of the Commission

is to deal promptly with emergencies, such as

oil spills, and it would seriously inhibit the

proper discharge of that duty if an officer,

seeking records ..... could be denied access to

them on the ground that they are

incriminating.

What Their Honours do there is to postulate that

there will be emergencies and, no doubt,

occasionally there will be, such as oil spills, I
suppose. But because there are emergencies

occasionally and from time to time, they conclude

that you abrogate the privilege at all times,

whether in the presence of an emergency or not and
we would submit that one cannot leap from that

premise to the conclusion because it necessarily
follows in cases and in times when there are no
emergencies the privilege is abrogated and that

cannot be right, we would submit.

The other thing is that there was just no

evidence because of the way in which this case came
to Their Honours about whether there ever were

emergencies or if there were whether they required

something to be done instantly or what it was that

had to be done instantly. Even the example given

by Their Honours, there was no evidence at all

about that. One would only be speculating if one

said that looking at a book is not going to help

you clean up an oil spill, one would have thought,

or stop it from running out of a pipe.

So that this is, with all respect, we would

submit, mere speculation and we say that that is an

unsteady foothold from which to annihilate a common

law right. Now, next in relation to 29, we submit

Environment 125 9/12/92

that Their Honours were right in concluding that

the notice under it was given for an improper

purpose in that it was given solely and avowedly to

get around the inability of the prosecution to
issue a subpoena in this criminal case, and it was
given therefore in order to defeat the

determination by the court in accordance with due

process of the charge against Caltex, and that
being so, we submit that on the authorities from

Associated Northern Collieries up through

Brambles v The Trade Practices Commission, that

that was a misuse of the power, being an

interference of the court.

An alternative way of looking at it - an

alternative that Your Honour Mr Justice Mason, I

think, mentioned in Pyneboard, is that it ~snot a

proper exercise of the power because the power is

given for the purposes of the administration, as my

friend rightly said, but he would add also for
prosecution of offences under the Act. But, even

allowing him the full reach of what he says, that

it is a power relating to prosecution too, and

assuming against me, that 29 annihilates by

implication the privilege, the prosecution, as a

head of power, as it were, or purpose of 29, is to

find ou~ whether an offence has been committed in

order to determine whether to prosecute or charge,

whatever the appropriate word is, and that is all.

No doubt one could then, between prosecution or charge or issue of the summons and the case

coming on for trial, make further inquiries - that

would seem to be fairly obvious - and maybe give

further notices. But you cannot use that power to

get around the common law and the procedure of the

court because that is never what Parliament

intended when it gave the power, plainly enough we

would submit, and consequently it is a distortion

and a misuse of the power. Now, my friend says,

"Well it was a contempt of court", and probably it

was, and he says, "This is tantamount to an appeal	against a dismissal by the trial judge,
Mr Justice Stein, of a charge of contempt, and you
cannot appeal against an acquittal."

Well, we deliberately did not charge the

officer with contempt of court, for a number of

reasons. One, it meant we would shoulder the

criminal onus and, two, we were not sanguine of our

chances before Mr Justice Stein and we knew there

would be no appeal. So, we were careful not to

charge him with contempt. So there is nothing in

my friend's point on that, we would submit.

My friend says, as part of his submission,

that this is a State exercise of judicial power and

Environment 126 9/12/92

that Brambles and Associated Northern Collieries

were in Federal Courts, and thus Chapter III of the be supported on a Chapter III of the Constitution
Constitution overshadows the whole point, and that

point.

Now, Your Honours, Brambles was not decided on

the judicial power point. Indeed, I recollect,

because I was in it, that it was never mentioned by

anybody. It was conducted simply as a case of

interference with the due procedures of the court. Chapter III is not referred to at all as the basis

for Associated Northern Collieries.

MASON CJ: Chapter III must have been the only point not

mentioned in Brambles?

MR HORTON:  There were one or two, Your Honour, yes. Now,

Your Honours, that then leads me to this submission that even if it be right to say, as it probably is, that there is nothing in the written Constitution

of New South Wales which is the equivalent of
Chapter III of the Commonwealth Constitution, so

that you do not have the same formality in the

separation of judicial legislative executive power.

But none the less, we would submit, that it is part

of the law in New South Wales that judicial power is separate from executive and legislative power, and that an attempt by the executive to interfere

with the exercise of judicial power is forbidden as

much in the realm of the court States as it is in

courts exercising federal jurisdiction.

If one needs to one would appeal again to

Magna Carta and the Statute of Charles I, 16

Charles I, which are not only part of the common

law but are part of the statute law of New South

Wales having been confirmed by the Imperial Acts

Application Act, and we suggest that it necessarily

follows from those statutes that there is as much a

separation of powers in New South Wales as there is

in the federal sphere.

Before I come to deal with my friend's

submissions, can I come back, if I may, to a remark

of Your Honour Mr Justice McHugh yesterday?

Your Honour said or suggested that if the managing director is a mere witness to a conversation, not

as managing director of the company, the company

cannot stop the evidence by asserting a claim to

privilege, and we would say that that is almost

certainly right what Your Honour said. But it may

not be so in a mens rea case in which the
conversation, if it is a conversation, may go to
the issue of mens rea. Probably there would be

other things other than conversations which would

Environment 127 9/12/92

go to that issue, and it probably would not also be

entirely accurate to say that there is no claim to

privilege where the fact of which evidence has been

given is a decision of the managing director as

managing director and as an organ of the company.

That repeats a bit what I was saying earlier and I

do not want to elaborate any further except to

direct my attention to Your Honour's question

yesterday.

Now, if I can come to the Solicitor-General.

My friend, as I understand him, does not suggest

that there is no privilege in relation to answering

interrogatories by a corporation, but he denies

that the privilege exists in relation to documents,

and by "corporation" I take him to mean limited

companies. He then stopped short of the full

reach of the American doctrine but provides, as

Your Honours see in relation to his limited attack

on the privilege, no rationale for insisting that

it does not shield documents, but does shield

interrogatories, does shield other collective

entities, including no doubt corporation sole.	He
does not really attempt to tell Your Honours why

the privilege should exist in the one case and not

in the other.

He says that the basis of privilege is

privacy. What we would want to say about that is

that there are myriads of aspects of privacy,
whether of individuals or corporations, which are
not sheltered by any privilege at all. In nearly

every court in the land private matters are gone

into every day, and it is only the sort of privacy

which relates to matters which would incriminate

which gets protection, which is an odd sort of

discrimen to apply to the protection of privacy.
All one's thoughts and acts, so far as they are

relevant to an issue in a case, provided they are not criminal, can be aired to the light of day in the press and the public, but only where it may

tend to incriminate you suddenly you have a right

of privacy. We would submit that just cannot be

right. If anything, one would have thought that

your right of privacy would be less if you had been

breaking the law, if that is the touchstone to

apply to privilege, than a right of privacy if you

have not been breaking the law.

In any event, if a citizen has a right of privacy, why refuse it to a corporation? After

all, many corporations have much more valuable

secrets than the odd man on the Clapham omnibus

whose secrets are, generally speaking, of a

domestic nature, whereas corporations have secrets

which they really want to keep secret, their

Environment 128 9/12/92

confidential information, their know how and the

like.

Then my friend says that documents do not

attract the concern of the right to immunity, and

he says that without qualifying, as I understand

it, by reference to the fact that they are

corporation's documents. He just says documents

ought not to be privileged. Well, that must mean

that an individuals documents are not privileged

either, and that cannot be right.

In Controlled Consultants, 156 CLR at

page 391, in the middle of the page, three of

Your Honours said:

Section 8(A) of the Code makes explicit

production of books may be exercised for the purpose of establishing an offense under the	the intention that the power to require the of incriminating the person required to
produce the books. That is clearly
inconsistent -

say Their Honours -

with the privilege, which, apart from the

statue, would extend protection against the

production of books which may of themselves
provide evidence of an incriminating character

or may lead to the discovery of other real
evidence of such a character: see Sorby's

case.

And over on the next page at about point 4,

Their Honours say:

there is a significant distinction, because an

explanation may be testimonial in character

and the books themselves are in the nature of

real evidence which speaks for itself,

although the privilege would, as we have said,

extend to the production of the books unless

it is excluded.

Now, my friend spent a little time

endeavouring to persuade Your Honours that there is

a distinction between what he called, testamentary

evidence, and what he described as real evidence.

We would submit the passages that I have just from

Controlled Consultants demolish anything my friend gets out of that attempted separation of the

problem.

Environment 129 9/12/92

If my friend is right, then not only would

Your Honours have to re-examine what was said in

those passages in Controlled Consultants, but also what was said in Rochfort's case, which I will not

weary Your Honours by going back to but the passage

in Rochfort is at page 147, about point 7, and we

would submit that nothing my friend has said

suggests that that ought to happen.

Now, my friend's allegation that business

documents are, or are analogous to, real evidence,

we would submit is a submission that does not lead

to any conclusion. All evidence, if it is

relevant, is real evidence. So perhaps my friend

is drawing the distinction between something that
is tangible, in the sense it is a piece of paper

with writing on it, or something that is a

recitation of an oral admission made. But we would

submit in either case, leaving aside weight and

those sort of considerations, those two types of

evidence are in precisely the same situation so far

as the ability to extract them from an accused are
concerned, and so far as the ability to tender them

in evidence are concerned.

Now, Your Honours, Walpole, which is a

decision of, I think, Sir Lawrence Street, if I

remember rightly - I am not sure whether it is on

the list that Your Honours' tipstaves will have in

court, Walpole - - -

MASON CJ:  I have it in (1979) 1 A Crim R.

MR HORTON:  I am obliged to Your Honour. In that case

Their Honours in the Court of Criminal Appeal were

concerned with a question of whether a contract,
which tended to prove the offence was properly

judge and what happened in that case was that there was an objection to production of the contract, but

admissible in evidence. It came to Their Honours,

the prosecution happened to have, because it had

been in the relevant company's papers, the

counterpart of the contract, and the court held -
obviously enough, we would suggest - that the
counterpart of the contract was admissible. But it

is to be observed that Their Honours allowed the

privilege to the party, claiming he might be

incriminated by producing the contract, and yet the

contract, not the counterpart of it, was

undoubtedly real evidence, and undoubtedly a

document, of course.

So, that is a case in which clearly the

privilege was seen to attach to what my friend

styled real evidence. I understood him to say, I

hope correctly, that he used testimonial in the

Environment 130 9/12/92

course of his submissions to Your Honours in two

senses. Sometimes he used it, as I understood him,

as evidence before a judicial or a quasi-judicial

body and that that, he said, was what was protected

by the privilege. If that is his submission

Pyneboard answers it because Pyneboard has

established that it is not limited to evidence

before judicial or quasi-judicial bodies. So, by

calling the privilege a privilege in relation to

testimony does not advance the matter very much.

Alternatively, he seemed to use the phrase, or the word, to describe the act of handing over the

document in answer to a subpoena or the like as
being the testimonial act, whereas the actual

document, he would have us accept, is in a

different category - it is real evidence as opposed
to testimonial evidence.

The testimonial act, that is to say an announcement by the witness that, "Yes, I do

produce the incriminating document.", is privileged

even leaving aside Braswell's impact on the law in

the United States would have been privileged in the

United States.

Your Honours will observe, if Your Honours have occasion to read Hale v Henkel or the other

cases that, in fact, there is a statute in the

United States which is called - there is, in

effect, an immunity statute passed around about the

time of Hale v Henkel for the very purpose of

getting over the privilege relating to production

of documents.	So that one has to bear that in
mind.

But in the absence of that statutory substituted immunity which you get in the United

States or in the absence of waiver, we would submit

that the privilege clearly extends to the

documents, as well as to the act of announcing that

one answers the subpoena and produces them. It is

to be observed, of course, that the appropriate

procedure, when one is subpoenaing documents from a

company, is to address the subpoena to the company

by its proper officer. Your Honours said as much

in Rochfort's case and unusually that is the

procedure.

So the subpoena is to the company and the

company, if it has the privilege, could claim it at

the time of production and claim it at the time of

access being sought by the party issuing it from

the judge. So, also, of course, the messenger, if

I can call him that, the proper officer would and may have his own privilege which he is entitled to

Environment 131 9/12/92

claim in respect of the very same documents. But

that is by the way for present purposes.

Of course, it is not only incriminating

material in the document which is privileged but
matter in the document which would provide what is
often called a link in the chain or a path of
inquiry, which is also privileged. And yet one may

be pardoned for saying that it is not entirely

accurate to describe mere links in the chain or
suggestions of a path of inquiry as being real
evidence. After all, the matter which suggests the

line of inquiry may be utterly inadmissible and not

evidence at all and yet it is privileged.

In relation to perhaps the claim by my friend

is, as I have said, somewhat restricted, because he

shrinks from adopting the whole reach of the

American theory. But even so, even restricting as

he does to make it more palatable to Your Honours,

the measure that he advocates is far too wide, even

given the supposed evil that my friend would say is

needed to counter.

One can only guess at it, of course, but I do

not suppose that I would be saying something that

was entirely fanciful to suggest that if one were

to guess that 99 per cent of companies are not

going around behaving like rogues, and only about

1 per cent are, one would not be too far from the

mark and yet my friend, in order to justify, by showing a need, which the, common law, he would

say, ought to meet, justifies the annihilation of

the privilege for 99 just men, as it were, in order

to catch one rogue. It is an inversion. It is an

inversion of the way in which the courts and the
criminal law has worked for centuries, that is to
say, that it is regarded as better that several

rogues escape the hangman's noose than that one

innocent man be convicted and hence - - -

MASON CJ: Well, I think you made this point yesterday. I

think there is little advantage to gain by, as it

were, treading water again.

MR HORTON:  No, I accept Your Honour's - can I come back to

a question that one of Your Honours raised

yesterday and that is - I think it was Your Honour,

Mr Justice McHugh, but it may have been one of the other of Your Honours - as to a search warrant. I

think it was Your Honour. A search warrant validly

issued does not, it seems, raise a question of

self-incrimination. No doubt, what is found, the

drugs or pistols or whatever it is that is found,

are as incriminating as one likes, but the

privilege does not arise because it is not

self-incrimination. There is a reference, I think

Environment 132 9/12/92

to that topic in Controlled Consultants at the

bottom of page 392 and top of 393, where

Their Honours say you cannot read down the right to search, "by reference to the privilege against

self-incrimination", and I think that is probably

the only reference I need to give on that point.

Of course, if it matters, section 29, which we

are concerned with here, in contrast again to

section 28, is in part a search warrant-type power,

because it says if he has got his card with him or

his identification disc, he can enter and he can
search out and take samples and the like, so that
is akin to a search warrant power and, no doubt, in

respect of the search aspect of it, one could not

complain about self-incrimination. But in respect

of the other aspect of it, one could. Section 28,

of course, is not a search warrant-type power at

all. It is an interrogation power with the

privilege, in part, maintained in respect of it.

Can I then come to my friend's adoption of the

new theory, or the new earth theory in the

United States which has been discovered by

Their Honours there, in order to try to find some other basis other than the discarded visitatorial basis for the annihilation of the privilege?

That is what is called in the United States,

and my friend so described it in shorthand, and if

I may use that too, "the required records" power.

So that the United States courts seem to be getting

towards - although it is not entirely clear the

precise nature of this principle, but they seem to
be getting towards saying that if records are

required to be kept, then the person who is
required to keep them must produce them to the
institution or the like which requires the keeping

of them.

Well now, as a principle that is obviously too

wide because many individuals are required to keep

records for income tax purposes, if for nothing

else. Many partnerships are required to keep

records for the same reason, so they have no

privilege if this required records theory holds

sway.

It follows inevitably, of course, that if the

theory depends upon the nature of a record and not
upon the nature of the keeper, it operates
indiscriminately whoever it is, individual,

partnership, company or the like. And so that

theory strikes across the privilege entirely, not

just selecting carefully the corporation as the

mark. But in any event, it is one that while it

Environment 133 9/12/92

might be useful in order to dance around the Constitution in the United States, it is not

necessary here, and therefore not appropriate

because if it be that a required record principle

were to be introduced, it would be introduced

because a statute or regulation would say, "You are

required to keep records thus and thus". And if a

statute says it and says it for the purpose of the

body that has control of the relevant affairs

looking at the records, you would expect that by

express words, or if not express words, maybe

necessary implication, the statute would in part

abolish the privilege because there is no point in

saying, "Keep records for me to look at" if you

cannot look at them.

So you get a section like section 28 in the present Act which does abrogate the privilege in

part, and that would be the sort of thing that you

would expect to see in a so-called required record

statute.

Your Honours, can I say a word about the two

Istel v case of Director of Serious Fraud Office; Ex parte

recent English cases, that is to say,

Smith; Istel, (1992) 3 WLR 344, the headnote at

page 344, at the foot of the page:

That although the privilege against

self-incrimination subsisted and could only be

removed or altered by Parliament there was no

reason to allow a defendant in civil
proceedings to rely on it, thus depriving a

plaintiff of his rights, where the defendant's own protection was adequately secured by other

means.

The other means, in this case, at all events, by

the time it got to the Lords, was affected by a

letter written which, in effect, promised not to

use the material in criminal proceedings. That had

not struck the Court of Appeal as being sufficient

substitute for the common law privilege but the

Lordships in the majority thought it was.

That means then that much of what

Their Lordships said in relation to the basis of the privilege or what they thought about its desirability was, of course, obiter because they

were of the view that the substituted protection

meant that there was no apprehension of a risk of

incrimination.

However, my friend, naturally enough, relies

upon what Lord Templeman said at 349 and over

Environment 134 9/12/92

to 350. At the foot of the page, His Lordship said

that in his opinion:

the privilege can only be justified on two

grounds, first that it discourages the

ill-treatment of a suspect and secondly that

it discourages the production of dubious

confessions. Neither of these considerations

applies to the present appeal. It is

difficult to see any reason why in civil

proceedings the privilege against self-

incrimination should be exercisable so as to

enable a litigant to refuse relevant and even

vital documents ..... and which speak for

themselves. And it is fanciful to suggest

that an order on Mr Tully to say whether he
has received Abbey's money and if so what has

happened to that money could result in his

ill-treatment or in a dubious confession.	I
regard the privilege against
self-incrimination exercisable in civil
proceedings as an archaic and unjustifiable

survival from the past when the court directs
the production of relevant documents and

requires the defendant -

and so on. His Lordship is saying he regarded the

privilege exercisable in civil proceedings as

archaic and unjustifiable. With all respect, that

cannot be right. His Lordship seems to be saying he does not so regard it in criminal proceedings.

But if in civil proceedings you are compelled to

disclose material which incriminates you, then
leaving aside the fact that if on discovery the

confidential nature of discovery may prevent other

people getting at it, as it were, you are

invariably going to be revealing material which can

be used against you. So that if, as His Lordship

seems by necessary implication to be saying, he

regards it as justified in criminal proceedings, it

cannot stand with that conclusion that it is

archaic and unjustifiable in civil proceedings.

In any event, His Lordship thought there were

only two grounds: ill treatment of an accused,

which has never been a basis put forward in any of

the cases, although Wigmore has it as one of his

possible bases; and production of dubious

confessions. I am not quite sure what His Lordship

means by that. If you have no privilege and you

are bound to confess, it is dubious whether what

you have confessed is true or whether it is a

voluntary confession. It cannot be the latter,

because you have no privilege; willingness to

confess is by the way. So presumably it is the

quality of the confession itself that His Lordship

is alluding to. Why, when you have no privilege,

Environment 135 9/12/92

the confession that you make of your criminal

activity would be more doubtful, whereas if you do

have the privilege but none the less confess, it

would not, is a little hard to see.

Lord Griffiths, at page 354, said:

the privilege against self-incrimination is in

need of radical reappraisal. It is however

deeply embedded in English law and can only be

removed or moderated by Parliament. As the

speeches of your Lordships show Parliament has

in recent years made many inroads into the

privilege in a number of statutes.

That, of course, we would wish to criticize, with

all respect to His Lordship. He says it is in need

of radical reappraisal, then he recognizes that

Parliament has on countless occasions in recent

years made inroads to the privilege. So the reappraisal is not apparently a case by case

reappraisal, as Parliament embarks upon in

Lord Griffiths' view, but a wholesale reappraisal,

and this, be it noted, in a privilege relating to

an individual. So we would suggest that

Your Honours would not readily adopt the view of

Lord Griffiths.

Then when one gets to Lord Ackner on 355D,

Your Honours see in the second paragraph, he says:

The plaintiffs' contentions under this

heading do not seek to cut down or erode or

encroach upon the privilege against

self-incrimination. Existence of that
privilege is not put in issue.

So that everything that their earlier Lordships had said about being no friend of the privilege is

plainly obiter. May I come very shortly to Smith's

case after the luncheon adjournment.

MASON CJ:	I take it you will not be much longer?
MR HORTON:	No, very short, Your Honours.
MASON CJ:	How long will you be, Mr Solicitor, in reply?

MR MASON: Perhaps 20 minutes, Your Honour.

MASON CJ: Court will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

Environment 136 9/12/92

UPON RESUMING AT 2.19 PM:

MASON CJ: Yes, Mr Horton.

MR HORTON:  ..... granted by a separate statute, so that the

whole thing was rather academic. That appears at
page 66 of the report, on page 89 of Your Honours'
volume of the American et cetera cases. At

page 66, in answer to the appellant invoking the

protection of the Fifth Amendment, Their Honours

said:

The answer to this is found in a proviso

to the General Appropriation Act of

February 25, 1903, that "no person shall be

prosecuted or be subjected to any penalty or

forfeiture for or on account of any

transaction, matter or thing concerning which

he may testify or produce evidence,

documentary or otherwise, in any proceeding,

suit, or prosecution under -

the Anti Trust Law. And the judges concluded that

a Grand Jury inquiry which was had or arose was a

"proceeding". Hale v Henkel foundations are a

little rickety, if I may say so.

In relation to what I call the Brambles v TPC

point, can I give Your Honours a reference to

Your Honour the Chief Justice's judgment in

Hamilton v Oades,-166 CLR at page 498, where

Your Honour said:

if a liquidator were to conduct an examination
directed to compel the examinee to disclose

defences or to give pre-trial discovery, or to

establish guilt, this examination may be

restrained as an abuse of process.

And that was said in the context of a majority

decision by Your Honours, to the effect that the
carrying on of the liquidator's examination prior

to conclusion of criminal proceedings could not be

restrained; none the less a misuse of the

examination could be.

Your Honour Mr Justice Deane mentioned an

observation by Sir Harry Gibbs in Sorby before the

adjournment, and I told Your Honour I would have a

look at it which I have done and I am grateful to

Your Honour for the reference.

The distinction between the view that Sir Harry Gibbs took of the section in Sorby before

it was amended, and Your Honours were dealing with

Environment 137 9/12/92

the amended section so that it was only

peripherally relevant perhaps, was that it did not

exclude the privilege because it was not in

sufficiently precise terms aimed at incrimination,

apart from incrimination by giving evidence because

you incriminate yourself by starting a train of

inquiry and the like. The passage is at page 295

in 152 CLR. The rest of Your Honours did not deal

with that aspect because you concluded that it was

only necessary to read the Act as it was.

MASON CJ: Yes.

MR HORTON:  However, whilst we would not wish for one moment

to dispute the approach taken by Sir Harry Gibbs it

is, perhaps, distinguishable from the present

because section 28 contains within it the very

suggestion or requirement that one will claim the

privilege against self-incrimination, be forced to

answer, and then get the modified protection,
whereas in the section prior to the ones

Your Honours were dealing with in Sorby, the reference to incrimination or claim of privilege

was omitted and that was possibly the distinction

that exists.

Your Honours, the only other matter is in our notice of contention in relation to the notice to

produce. It is simply too dreary for words to
burden Your Honours with all the rules and the

sections, and all that we wish to say about it is

set out under that heading in our written

submissions, and if Your Honours come to that we

would be obliged if Your Honours would take that as

our submission on the notice to produce point.	We
are obliged to Your Honours.

MASON CJ: Thank you, Mr Horton.

MR HORTON: Before I sit down, Your Honour, I could not

resist having looked up the reference to the

Reichstag fire. It is in a very interesting speech

by Mr Hannon KC of the South Australian bar given

to the first law convention in 1936. And if

Your Honours ever have time to glance at it it is

to be found in Volume 10 of the Australian Law

Journal starting at page 9 of the supplement, which was the supplement relating to the law convention.

Thank you, Your Honours.

MASON CJ: Thank you. Yes, Mr Solicitor.

MR MASON:  Your Honours, the construction of section 29,

which is set out at page 207 of the yellow book and

its inter-relation with section 28 was raised by my

learned friend. If I could make some specific

submissions about section 29. The first is that it

Environment 138 9/12/92

is not confined to polluters who are licensed.

29(l)(a), for example, makes that plain. Secondly,

it is not confined to current polluting activities.

29(l)(b) speaks of premises from which it is

reasonably suspected pollutants:

have been, are being or are likely to be,

discharged -

It obviously includes an evidence-gathering role, see especially the provision I have just read when

it speaks of pollutants have been discharged, and

29(2)(a) itself, its purpose is, we would submit,

patent as being one that has evidence gathering as

one of its role, not necessarily its only role but,

we submit, one cannot divide the various functions

of the Commission.

29(l)(c)(iii) to which Your Honour

Justice Brennan made reference, would, in our

submission, extend to examination of records and

inquiry about them. For example, such

examination would, even if one construed the

section as confined to administrative functions, be relevant to find out what that horrible black stuff

in the water was. The records may be the only

source of showing what that was. Section 29(2)(a)
at 208, unlike section 28, is confined to occupiers

of premises with polluting capability and that may

be an explanation for the absence of 28(3) in 29.

My learned friend draws attention to section 28(3) and argues that firstly that is the

reason why the privilege is overturned in 28, and

secondly, one draws a contrary inference when one

looks at 29 where there is no similar provision.

whose absence from 29 is explicable by the fact	rather that 28(3) confers an evidentiary benefit We would submit that the proper approach is
that 29 is looking at what one might call more
serious activities by those with polluting
capabilities. But there are a number of cases
which have looked at provisions with or without a
provision such as 28(3) and said, firstly, that one
can exclude the privilege by a provision that
excludes 28(3), and secondly, have described a
provision such as 28(3) as being not itself
directed at the exclusion of the privilege.
Could I give Your Honours the series of references, then I will take Your Honours just to
two if I may: Mortimer v Brown, (1970) 122 CLR 493 at 498; Sorby v Commonwealth, (1983) 152 CLR 281
at 310 and 311; Pyneboard v Trade Practices Commission, (1983) 152 CLR 328 at 343, 344 and 357;

Environment 139 9/12/92

Hamilton v Oades, (1989) 166 CLR 486 at 508 and
514, and Reg v Director of the Serious Fraud
Office; Ex part Smith, (1992) 3 WLR 66 at 83 and

84, especially 84C.

Your Honours, in Mortimer's case, there was no

provision equivalent to 28(3), and yet the

privilege was held abrogated, having regard to the

compulsion and the requirement that the answers be

given in the public examination. The relevant

passage is at page 498 where the statutory material

is set out and the nub of the reasoning of

Mr Justice Walsh. That, perhaps like the present

case, was a situation that did not say, "This is
exclusively for criminal purposes", because a
post-liquidation public examination serves a dual

function, gathering information relevant to the

further administration of the deceased company, and

gathering evidence and information relevant to

civil or criminal proceedings that would flow. But

it was held that the breadth of the power and the

terms in which they were expressed were sufficient

to exclude the privilege.

In Pyneboard, 152 CLR at pages 343 and 344,

the passage commencing about point 3 on the page in

the joint judgment of Justices Mason, Wilson and

Dawson, address the construction of section 155 of

the Trade Practices Act and, in particular,

subsection (7) of that provision. Subsection (7)

is referred to in the headnote at 329 and it is the

counterpart of, one might say, 28(3) and at the

very bottom of page 343 Your Honours, in effect,

having followed Mortimer and said, in effect, that

the compulsive provision would be rendered
valueless if the privilege could be erected, then
addressed, "Well, what purpose did subsection (7)

serve?", and that is discussed in the paragraph at

the bottom of the page and going over to, including
the first full paragraph at 344.	To similar effect

in the judgment of Justice Brennan at 357.

This matter was addressed in Hamilton v Oades

and I will not read the passages that I have given.

In the Smith case, the particular passage at

page 84C, (1992) 3 WLR, points out that many of the provisions that - perhaps I could endeavour to make

this plain:  I am not saying that 28(3) would not

itself justify a holding that there was an

abrogation of privilege but I am submitting that it

is not of the essence of the abrogation in

section 28 alone. In the Smith case, at 84C, after

discussing various legislative techniques for

abrogating the privilege in whole or in part,

Lord Mustill points out that:

Environment 140 9/12/92

Most of them are concerned with admissibility of evidence -

which is not in issue here. And really, 28(3) is

more concerned with that than the basis for
withholding the information in the first place.

Your Honours, just a brief word about the notice to produce which is at page 3 of the appeal

book and the statutory context in which the power

to issue that notice arises. Just to show

Your Honours how the power to issue a notice to

produce arises in these proceedings, section 46 of

the Land and Environment Court Act, page 1 of the

bundle, provides that:

Subject to this Act and the rules, the

practice and procedure of the Supreme Court in

relation to ..... trial of accused persons on

indictment apply to ..... the summary

jurisdiction -

The Land and Environment Court Rules, Part 6

rule 2, provide that:

The provisions of Division 2 of Part

75 ..... apply to proceedings in Class 5 -

which these are. And 2(e), with such adaptations

as are necessary including -

a reference to a plaintiff shall be construed

as a reference to a prosecutor -

One then goes to the Supreme Court Rules, Part 75

rule 6(d). Rule 6 is in Division 2 of Part 75,

dealing with the summary criminal jurisdiction and

6(d) provides that:

In addition to the rules -

the following apply -

(d) Part 36 rules 13 and 16 -

and those rules follow. Part 36 is about three

pages from the back of the bundle, rule 13:

Where the Court, by subpoena or otherwise,

orders any person to produce any document or

thing, and any person makes and substantiates

sufficient lawful objection to production on

grounds of privilege, the Court shall not

compel production -

and rule 16 is the power, in effect, to issue a

subpoena inter partes, in other words without the

Environment 141 9/12/92

need to take it to the court and have it issued,

that it operates as a subpoena.

Your Honours, the validity of the notice to

produce, of course, raises nakedly the issue of

whether a corporation has the privilege and we

certainly accept that. But we do submit that the

mere fact that a company may be prosecuted does not answer the question and a great deal of my friend's submission, really, seemed to elide the two

propositions.

My friend, in relation to the American

material, questioned the logical basis for the
distinction drawn between the Fourth and the Fifth

Amendments with respect to corporations. In fact, the proposition that a corporation has the benefit of the Fourth Amendment, about unreasonable search

and seizure, is a very qualified one. May I give

the Court a bundle of extracts from American cases,

which I will not read, where there is discussion as

to the rationale upon which some of the privileges

of the Bill of Rights apply to corporations and

others do not.

The latest is at page 28 of the bundle, it is

in a dissenting judgment of Justices O'Connor and

Stephen under the heading B, where there is a

collection of authorities discussing the principles

as to which guarantees are regarded as personal and
therefore inapplicable to corporations and which apply to them generally. I will not, unless the

Court wishes, read those passages.

There are two other matters. My learned

friend submitted that if the managing director of a
corporation were called as a witness then if that

person were called, perhaps as to a matter of mens

take the Fifth with respect to any evidence that rea, the corporation through its solicitor could person may give. We would submit that is not the

case and it overlooks the basis upon which the

person is giving evidence.

In 117 DLR (3d) there is the report of

R v Paterson & Sons, judgment of the Supreme Court

of Canada, 117 DLR (3d) 517 at 525 and 526, where

the distinction between discovery by a corporation

and evidence by the directing mind of the

corporation is drawn, and at the bottom of page 525

in the judgment of the court, being given by

Justice Chouinard, His Lordship said that:

In my opinion, the fact that the manager

like any other employee or agent of the

operator who does any act or thing directed to

the commission of an offence is himself a

Environment 142 9/12/92

party and guilty of the offence, rather tends

to show that the manager is, for the purposes
of prosecution, a distinct person who could of
course, as acknowledged by the appellant, seek
for himself the protection of s. 5.

And then His Lordship adopted the reasoning of an earlier judgment of Justice Arnott who, in the

passage set out at page 526 in the second paragraph

of that, pointed out that a witness who is called

to give evidence is not speaking:

"for" the corporation.	He is not its
"mouthpiece".	He is required to testify as to

all relevant facts within his knowledge, whether those facts were acquired by him

during his employment or -

in an unrelated matter.

He is in no different position from a witness

who had been in complete charge of the

corporation's affairs for many years, but has

retired before the charge against it was laid.

Both must tell what they know, so far as it is

relevant and admissible.

Both have the protection as witnesses.

Finally, Your Honours, my friend said that in

passing the Corporations Legislation (Evidence)

Amendment Act 1992 the Federal Parliament was

recognizing that the privilege existed.

The extract from the parliamentary debate set

out at page 12 of the blue materials book

demonstrates, we submit, that on the contrary

Parliament was acknowledging that there was

uncertainty about the matter and while moving to

resolve that in favour of abrogation was in no
sense acknowledging its existence.	And whilst the

provision is limited in that it does not extend

obviously to the facts of this situation, because

it is in the context of Corporations Law itself and

embodies that policy at the heart of the law that

defines how corporations function in society, and

because it is a relevant statutory analogy such as

the Court had regard to in recent

David Security cases and has on other occasions, it

is appropriate, we would submit, that the Court can

have regard to it in expounding the common law in

this area. If the Court pleases

MASON CJ:  Thank you, Mr Solicitor.

MR HORTON: Will Your Honours just just allow me to give my

friend's section 46 of the Land and Environment

Environment 143 9/12/92

Court point to save Your Honours searching for it

in our summary. Page 69 of our summary deals with

that point that my friend took.

MASON CJ: Yes, thank you. The Court will consider its

decision in this matter and will adjourn until

9.30 am in Sydney tomorrow.

AT 2.43 PM THE MATTER WAS ADJOURNED SINE DIE

Environment 144 9/12/92