Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2)
[2017] FCCA 2759
•14 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v NSW MOTEL MANAGEMENT SERVICES PTY LTD & ORS (No.2) | [2017] FCCA 2759 |
| Catchwords: EVIDENCE – Objection by second and third respondents – privilege against self-incrimination – s.128 Evidence Act 1995 (Cth) – whether objection properly made. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 90, 323, 550, 739 Federal Circuit Court of Australia Act 1999 (Cth), ss.13(7), 88J(1) |
| Cases cited: Cornwell v R [2007] HCA 12 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | NSW MOTEL MANAGEMENT SERVICES PTY LTD |
| Second Respondent: | MICHAEL PARKES |
| Third Respondent: | ROWENA SIOCO PARKES |
| File Number: | MLG 661 of 2016 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 1 November 2017 |
| Date of Last Submission: | 1 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2017 |
REPRESENTATION
| Senior Counsel for the Applicant: | Mr O’Grady QC |
| Counsel for the Applicant: | Mr Avallone |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondents: | Mr Albert |
| Solicitors for the Respondents: | Stonier & Associates |
ORDERS
The objection made on behalf of the second and third respondents is refused.
The interim order made 1 November 2017 be discharged and the amended application in a case filed 4 September 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 661 of 2016
| FAIR WORK OMBUDSMAN |
Applicant
And
| NSW MOTEL MANAGEMENT SERVICES PTY LTD |
First Respondent
| MICHAEL PARKES |
Second Respondent
| ROWENA SIOCO PARKES |
Third Respondent
REASONS FOR JUDGMENT
These reasons concern an interlocutory application made by Michael Parkes and Rowena Parkes (the “respondents”). The application was heard on 1 November 2017.
At the hearing, and without objection, I made an order under s.13(7) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCC Act”) excluding from the Court all persons other than the parties and their legal representatives. I also made an interim order under s.88J(1) of the FCC Act that until further order the evidence that was tendered and submissions made in support of the application in a case and amended application in a case would remain confidential so that application could be determined.
I indicated to Counsel that in the reasons for judgment dealing with the interlocutory application I would consider whether that interim order should be continued.
For the reasons set out below that interim order should be discharged, the amended application in a case should be dismissed and the application by the respondents whether it is for a certificate pursuant to s.128 of the Evidence Act 1995 (Cth) or an objection on the grounds of self-incrimination is refused.
Background
On 31 March 2016 the Fair Work Ombudsman (“the applicant”) commenced proceedings in this Court against NSW Motel Management Services Pty Ltd (“the first respondent”), Michael Parkes and Rowena Sioco Parkes (“the respondents”).
In the substantive proceedings the applicant alleges the above named respondents contravened, or were involved in contraventions by the first respondent of various provisions of the Fair Work Act 2009 (Cth) (“the FW Act”), the Fair Work Regulations 2009 (Cth) and applicable modern awards arising from the employment of four Philippine Nationals between 2013 and 2014 at three motels operated by the first respondent in Halls Gap, Queanbeyan and Taree.
By its defence filed 14 June 2016 and a Statement of Agreed Facts filed 22 December 2016, the first respondent admitted a number of the alleged contraventions, including underpayments of two of the employees concerned.
However the respondents otherwise maintained the defence in relation to the remainder of the alleged contraventions. Those issues included the award coverage of two of the employees, the alleged underpayment of those two employees, and alleged unlawful adverse action by the first respondent against two of the employees. Additionally the second and third respondents denied that they were “involved” in alleged contraventions within the meaning of section 550 of the FW Act.
Pursuant to orders made 10 March 2017 the proceedings were listed for trial beginning 2 August 2017. Mr Avallone of Counsel appeared on behalf of the applicant and Mr Albert of Counsel appeared on behalf of all the respondents. Over the course of 2 and 3 August 2017 the applicant led evidence from its witnesses and by agreement of the parties the respondents interposed a number of their witnesses who gave evidence via video link. In doing so Counsel for the respondents made plain his clients had yet to open their case.
At the close of the applicant’s evidence Counsel for the respondents indicated he had an application to make. As this was without notice to the applicant and the Court, not contemplated in any of the existing orders and directions (which had seen the respondents file detailed affidavit material) and the nature of the proposed application appeared to raise issues on which the applicant needed to get instructions the trial was adjourned part heard.
Directions were made for the respondents to file an application in a case and the proceedings were adjourned for further directions on 23 August 2017.
The respondents filed an application in a case on 11 August 2017, supported by an affidavit of Sally Stonier (their solicitor) along with an outline of submissions to which it will be necessary to return.
The application in a case filed by the respondents on 11 August 2017 sought the following orders:
“1.Pursuant to its inherent jurisdiction and / or s 15 of the Federal Circuit Court Act 1999 (Cth), that each of the Respondents be referred to only by a pseudonym allocated to each of them, in any document, communication or hearing relating to their objection to giving evidence under s 128 of the Evidence Act (Cth).
2.Such further or other order as the Court sees fit.”
(emphasis added)
On 15 August 2017 the respondents filed a Notice to Admit pursuant to Rule 15.31(1) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
When the proceedings returned to Court on 23 August 2017 the Court made orders for the parties to file any further affidavits and submissions and extended time for the applicant to file any Notice of Dispute pursuant to Rule 15.31(2) of the Rules and adjourned the respondent’s application in a case to 1 November 2017.
On 1 September 2017 the respondents filed “Submissions on the Application for a Pseudonym Order and Part 6A” of the Rules.
On 4 September 2017 the respondents filed an amended application in a case which sought the following orders:
“1. Pursuant to Part 6A of the Federal Circuit Court of Australia Act 1999 (Cth) or alternatively, pursuant to its implied power, that the names of each Respondent, the relevant country and the relevant four employees be replaced by pseudonyms in all documents relating to the objection by the Second and Third Respondents under s 128 of the Evidence Act 1995 (Cth).
2.Order 1 is made on the ground set out in s 88G(1)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) and operates until
a.the death of both the Second and Third Respondents, or
b.the completion of any trial and appeals in respect of the relevant offences in the relevant foreign country,
whichever is sooner.
3.Such further or other order as the Court sees fit.”
(emphasis added)
The applicant filed a Notice of Dispute for the purposes of Rule 15.31(2) of the Rules on 25 September 2017.
As provided for in the orders of 23 August 2017 the applicant filed submissions in response to the amended application in a case on 9 October 2017 to which it will also be necessary to return.
On 26 October 2017 the respondents filed submissions in reply to the applicant’s submissions to which I will also turn presently.
At the hearing on 1 November 2017 Mr Albert of Counsel appeared on behalf of the respondents. Mr O’Grady QC and Mr Avallone of Counsel appearing on behalf of the applicant.
Counsel for the parties identified the material their respective clients relied on and made submissions before the Court (to which I will return) supplementing the written material their clients relied on. At the conclusion of the hearing the Court reserved its decision.
In considering the orders sought in the amended application in a case and the ‘objection’ made on behalf of the respondents I have had regard to those submissions and the material the parties relied on.
It would appear that the genesis of the concerns that motivated the respondents’ interlocutory application arises from the prospect that inter alia they may be exposed to proceedings for contravention of a Philippine statute dealing with people trafficking.
Privilege against self-incrimination/s.128 objection
Respondents’ submissions
In submissions which were filed in support of the application in a case on 11 August 2017 the respondents’ position was:
“1.On 3 August 2017, Mr and Mrs Parkes, through counsel, objected ‘to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law or a law of a foreign country’. By so doing, they engaged their privilege against self-incrimination, as codified in s 128 of the Evidence Act 1995 (Cth).
Mr and Mrs Parkes are entitled to make this objection even as parties to the proceeding[1] and even in circumstances where they have had pleadings filed on their behalf.[2]
[1] Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1192; 217 ALR 719 [6]
[2] Clayton Utz (a firm) v Dale [2015] VSCA 186; 47 VR 48 [214]
2.Section 128 sets out a scheme for dealing with such objections. It displaces, but largely maintains, the position as it was at common law.[3] Relevantly, that scheme involves the following steps:
[3] Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1192; 217 ALR 719 [4]
a.First, ‘the court must determine whether or not there are reasonable grounds for the objection’ (subsection 2);
b.Second, if so satisfied, the Court must explain the significance of, and offer the witness the opportunity to give the evidence subject to, a certificate which would have the effect that any evidence covered by the certificate ‘could not be used against the person… in any proceeding in an Australian court’ (subsections 3 and 7).
c.Third, the witness elects whether or not to give the evidence willingly.
d.Fourth, if they will not give it willingly, the Court determines whether it will require the witness to give evidence by reference to two statutory criteria, namely that:
i. the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
ii. the interests of justice require that the witness give the evidence (subsection 4).
3.If either the third or fourth steps eventuate, the Court is then required to give a certificate to the witness and that evidence is then given subject to it being un-usable in other Australian court proceeding (subsection 5 and 7). If neither of the third or fourth steps eventuate, the privilege operates to prevent the evidence being given.
4.Put another way, there are four possible outcomes under s 128.
a.The Court overrules the objection. In this scenario, a certificate can still be issued if the Court’s view changes subsequently and in light of the received evidence (subsection 6).
b.If the witness gives the evidence willingly, the Court gives that witness a certificate.
c.If the witness is required by the Court to give the evidence, the Court gives that witness a certificate.
d.If none of the above apply, the privilege prevails and no evidence can be obtained by the Court from that witness in respect of which the privilege is claimed.
5.Mr and Mrs Parkes’ submission is that the evidence the subject of cross-examination of either of them falls into the last category. That is, the objection has a reasonable basis, they are not willing to give the evidence and the court cannot and/or should not require it to be given under s 128(4).
6.The first two possibilities set out above at paragraph 0 can be quickly dealt with in this case.
a.Mr and Mrs Parkes explain why there are reasonable grounds for the objection below. In light of those submissions, the objections cannot be overruled. Even if it is and given that the objection has now been made, the Court can issue a certificate with retrospective effect pursuant to s 128(6). While this is far from the course Mr and Mrs Parkes urge on this Court, it remains an option for the court for as long as it is not functus officio in this matter.
b.Mr and Mrs Parkes instruct that, in any event, they are not willing to give evidence under cross-examination in this proceeding. It follows that s 128(3)(b)(i) combined with subsection 5 has no scope for operation in this proceeding.
7.At this stage, the only issue for determination is whether the conditions for the Court to require Mr and Mrs Parkes to give evidence subject to a certificate exist. Mr and Mrs Parkes submit that they do not and that, as a result, the privilege operates and they cannot be called to give evidence under cross-examination on the relevant topics.
No certificate should be issued in this case and the objection is reasonable
8.Mr and Mrs Parkes primarily object to giving evidence under cross-examination because that evidence will ‘tend to prove that [each] witness has committed an offence against… a law of a foreign country’.
9.The rationale for the privilege being protected unconditionally (or without a certificate) by the statutory scheme in s 128 is that
…as an Australian court cannot guarantee that any certificate of immunity issued by it will be respected in a foreign jurisdiction, the court should not use its discretion to overrule a legitimate claim of privilege in this regard… The underlying policy of s 128 is that the privilege against self-incrimination should only be overridden when an immunity is available to the witness in relation to other proceedings.[4]
[4] Australian Law Reform Commission, Uniform Evidence Law (ALRC Report 102, 2006) para 15.104-5
10.The question for this Court is whether the evidence that will be elicited under cross-examination will ‘tend to prove’ a foreign offence. The Court does not have to be satisfied that it will prove, nor that it will prove on the balance of probabilities nor that it will prove beyond reasonable doubt. It need not reach any state of satisfaction about whether the foreign charge will be issued nor pursued. Tendency to prove is a lower threshold than any of these. It covers, for example, seemingly innocuous evidence which, in combination with other evidence, might lead to the incrimination of a witness.[5]
[5] Application concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614 [34-36]
11.In essence, it is the Court’s task to make an educated guess at two things. First, what will be the subject of cross-examination by the Applicant. Second, what evidence would a Filipino court regard as relevant in respect of a criminal law of the Philippines.
a.Guessing at the subject of cross-examination is relatively easy in this case. The Applicant’s primary role is to prove the allegations it alleges and to gather evidence in support of those and the extensive submissions it has made. Since all the alleged Fair Work Act offences are said to have been committed with the ‘involvement’ of Mr and Mrs Parkes (for the purposes of s 550 of the Fair Work Act), the Applicant can be expected to be seeking evidence which shows their personal knowledge and actions giving rise to the allegations it makes.
b.Guessing at the evidence a Filipino court would regard as relevant to the offences under Filipino law is far harder. As this Court well knows, it is an Australian court, not a Filipino court, and the lawyers before it are Australian lawyers, not Filipino lawyers.[6] However, Australian case law makes it clear that the court need not descend to (and probably will not be able to) making relevance determinations under foreign criminal law. The relevant obligation in s 128 falls on the person claiming the privilege. The obligation is only to identify a class of laws of a foreign jurisdiction under which the relevant offences arises.[7]
[6] Affidavit of Sally Stonier dated 11 August 2017 [11-13]
[7] Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 [308-310]
12.In this case, Mr and Mrs Parkes can be and are far more specific. The relevant offence is trafficking in persons under the Philippines Republic Act No 9208 (“the principal Act”), as amended by Republic Act 10364. Section 4 of the principal Act relevantly states:
It shall be unlawful for any person, natural or juridical, to commit any of the following acts:…
(j)To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Section 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either:
(1) To believe that if the person did not perform such labor or services, he or she or another person would suffer serious harm or physical restraint; or
(2) To abuse or threaten the use of law or the legal processes…
(l)To organize or direct other persons to commit the offenses defined as acts of trafficking under this Act.
The means defined in s 3 of the Act referred to in s 4(j) above are:
threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits.
13.Each of the acts set out in s 4(j) above is also defined in s 3 of the principal Act. Those are, relevantly:
(d)Forced Labor – refers to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of, force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt-bondage or deception including any work or service extracted from any person under the menace of penalty.
(e)Slavery – refers to the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
(f)Involuntary Servitude – refers to a condition of enforced and compulsory service induced by means of any scheme, plan or pattern, intended to cause a person to believe that if he or she did not enter into or continue in such condition, he or she or another person would suffer serious harm or other forms of abuse or physical restraint, or threat of abuse or harm, or coercion including depriving access to travel documents and withholding salaries, or the abuse or threatened abuse of the legal process….
(i)Debt Bondage – refers to the pledging by the debtor of his/her personal services or labor or those of a person under his/her control as security or payment for a debt, when the length and nature of services is not clearly defined or when the value of the services as reasonably assessed is not applied toward the liquidation of the debt.
In respect of the final definition, it is worth bearing in mind that it is an agreed fact that ‘the First Respondent deducted $150 each pay from Ms Virata between the period of 11 February 2013 and 14 July 2013.’[8] The Applicant’s evidence is that this was to repay a debt incurred in the Philippines by Ms Virata to one or more of the Respondents.[9]
[8] Statement of Agreed Facts [109]
[9] Affidavit of Maricar Virata dated 3 February 2017 [29, 108] and dated 9 May 2017 [39]
14.Section 10 of the principal Act states that a person found guilty of any of the above offences ‘shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00[, being about AUD$25,000]) but not more than Two million pesos (P2,000,000.00[, being about AUD$50,000]).’ That is, the penalty is not a period of imprisonment up to 20 years, but imprisonment of 20 years. It is also not a penalty of imprisonment or a fine, but imprisonment and a fine.
15The offences in s 4 of the principal Act can be committed entirely outside the Philippines, by operation of s 26A of that Act. It provides:
The State shall exercise jurisdiction over any act defined and penalized under this Act, even if committed outside the Philippines and whether or not such act or acts constitute an offense at the place of commission, the crime being a continuing offense, having been commenced in the Philippines and other elements having been committed in another country, if the suspect or accused:
(a) Is a Filipino citizen; or…
(c) Has committed the act against a citizen of the Philippines.
It is an agreed fact in this proceeding that the Third Respondent is a dual Filipino citizen and the employees are all Filipino citizens.[10]
[10] Statement of Agreed Facts paragraphs 5(a) and 12
16.Section 8 of the principal Act provides that ‘[a]ny person who has personal knowledge of the commission of any offense under this Act, the trafficked person, the parents, spouse, siblings, children or legal guardian may file a complaint for trafficking.’ This provision appears to allow any of the four employees to initiate the process in the Philippines by which Mr or Mrs Parkes might be charged. Given the known interest of at least Ms Virata and Mr Gagate to pursue criminal charges ‘regarding the trafficking aspects of this case that they believe exist’,[11] this is a real possibility.
[11] Affidavit of Lara Hurrell dated 3 February 2017 at Exhibit 1 Tab 1 p 3
17.Australia and the Philippines are parties to a joint extradition treaty which applies to any offence punishable in either country by imprisonment of at least one year.[12] It follows that a person charged under any provision in the principal Act can be liable to extradition from Australia to face those charges in the Philippines.
[12] Treaty of Extradition between Australia and the Republic of the Philippines, done at Manila on
7 March 1988, Article 118.By operation of s 10(g) of the principal Act, if a person described as a ‘foreigner’ commits the offence, they will be ‘deported’ at the conclusion of the term of imprisonment and ‘be barred permanently from entering the country’. Mr Parkes would plainly fall within this category and Mrs Parkes – as a dual citizen - may well do so too. Since both have family in the Philippines, the effect of any term of imprisonment under the principal Act would result in them being prevented from visiting their family in the Philippines for life.
19.The consideration above makes it plain that this is a case that clearly surpasses the hurdle set out in s 128(2), namely that the objection is based on reasonable grounds. That threshold merely requires a:
…danger [which was] real and appreciable, with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.[13]
[13] Australian Crime Commission v Stoddart [2011] HCA 47; 244 CLR 554 [80], quoting R v Boyes (1861) 1 B & S 311 at 330 [121 ER 730 at 738].
20.From the analysis in this case above it is also clear that Mr or Mrs Parkes are likely to be asked questions which might ‘tend to prove’ the Filipino offences. The threshold of relevance of evidence for the purposes of Filipino law is not something on which the parties, nor the Court, are equipped to determine. As a result, a cautious approach, respecting the privilege of Mr and Mrs Parkes that is recognised by Australian law, ought to be taken. To achieve this end, the objections under s 128 of the Evidence Act should be allowed and any question in cross-examination by the Applicant which might ‘tend to prove’ any of these Filipino offences should not be allowed to be answered.
21.The Court might be minded to consider some ancillary matters in coming to its decision in this regard. These are detailed next for the purposes of clarity.
Status of foreign law in this Court for the purposes of s 128
22.To make good the privilege objection, Mr and Mrs Parkes rely on Filipino law. For the purposes of Australian law in some contexts, foreign law must be proved as a fact. However, the foreign laws relevant to s 128 do not have to be proven in evidence as a question of fact where it is, for example, ‘highly likely having regard to experience and common sense’ that such acts will be prohibited.[14]
[14] Versace v Monte [2001] FCA 1572 [11]
23.In any event, Mr and Mrs Parkes tender the relevant law in a form permitted by s 174(1)(b) of the Evidence Act, namely ‘a… publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information.’ If needs be, the Court can be satisfied on this evidence that the statute provided is a foreign law based on the evidence of Ms Stonier that the website from which it was sourced identifies itself as follows:
Lawphil is a legal web site project of Arellano Law Foundation thru its Information Technology Center.
Arellano Law Foundation is a non-stock non-profit institution specializing in legal education.
Realising the essence of making the law accessible and understandable not only to the legal community but to all sectors of society, Arellano Law Foundation has embarked to digitize and make available through the internet all Philippine laws, statutes, jurisprudence, presidential decrees, executive orders, administrative orders, lawyers' tools and other legal materials.
The Arellano Law Foundation derives its name from its association with the Arellano University School of Law, which is in the Philippines.[15]
[15] Affidavit of Sally Stonier dated 11 August 2017 [16]
24.On the evidence, the Court can be satisfied that the law set out above is the law of the Philippines for the purposes of making a ruling on the objection under s 128.
No evidence from Mr and Mrs Parkes is currently before the Court
25.Mr and Mrs Parkes have each filed affidavits with this Court in this proceeding pursuant to a court order. However, neither affidavit is yet in evidence. An affidavit, which is filed on the Court file, is not evidence until it is read[16] in the sense that the filing party formally reads (or, as has been the practice in this trial, ‘tenders’) that affidavit as evidence.
[16] Manson and Others v Ponninghaus [1911] VLR 239 at 241; Giurina v DPP & Anor [2017] VSC 289 [42(a)] and the authorities there cited. See also Robertson, A, "Affidavit evidence" (FCA) [2014] FedJSchol 3 under the heading ‘what an affidavit is’
26.At the hearing at which the objection was made, the Court observed that this claim of privilege against self-incrimination might be inconsistent with the statement of agreed facts which has been filed. With respect, this is not correct. Not only is the claim itself consistent, but it is supportive of the co-operative approach the Respondents have taken to this proceeding. In fact, by the statement of agreed facts Mr and Mrs Parkes, indirectly, contributed to the efficient disposition of the vast bulk of the issues in this proceeding by a means which does not expose them to risk of self-incrimination.
27.The statement of agreed facts is not the evidence of Mr and Mrs Parkes. It does not bear either Mr nor Mr Parkes signatures. It is not sworn by anyone. It is a creature of statute, namely s 191 of the Evidence Act. It is, expressly, prepared and filed by the parties for the discrete purpose of satisfying that provision of the Evidence Act. The filing of the statement of agreed facts does not enliven or engage s 128 for these reasons. It is not the sworn evidence of either Mr or Mrs Parkes.
28.It follows that neither Mr nor Mrs Parkes are currently in evidence about any matter arising in this proceeding.
Interests of justice also not served by requiring evidence of either witness
29.Although the above is a sufficient basis for the Court to be satisfied that it should not require either witness to give evidence under cross-examination, it could be so satisfied alternatively or additionally on the basis that doing so would not be in the interests of justice.
30.It would not be in the interests of justice to require either witness to give evidence because that evidence could be used against either of them to build criminal prosecutions against them under Australian law also. As Brennan J stated of the privilege against self-incrimination:
The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender... The tenderness of the law towards a natural person charged with an offence strikes a traditional balance between law enforcement and personal liberty.[17]
[17] Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 477 [10]
31.To be clear, it is not the Respondents position that they committed any of these offences. The Respondents acknowledge though that the evidence they may be questioned on in cross-examination could be (mis)used to support a charge under the provisions discussed below.
32.Further, the authorities are clear that the making of the objection under s 128 cannot be the basis for any inference by the Court in this proceeding.[18] It follows that the Court cannot have regard to these objections, whatever the outcome, when it comes to assess the admissible evidence in this proceeding nor the way it will be treated.
[18] See, for example, Clayton Utz (a firm) v Dale [2015] VSCA 186; 47 VR 48 [195], Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1192; 217 ALR 719 [4] and Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206 at 222-216.
33.In respect of any evidence sought under cross-examination concerning whether Ms Virata or Ms Monleon acted as a motel manager, the interests of justice are not served by requiring the evidence. Both women entered and worked in Australia on a visa which was subject to condition 8107. That is, they were required not to ‘work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted’. In both cases the position in relation to which the visa was granted was ‘Hotel or Motel Manager’.[19]
[19] Exhibit RSM 2 to the first affidavit of Rhea Monleon at pp 9 and 12
34.If, as the Applicant submits, either woman was not working as a manager at any time, Mr and Mrs Parkes are at risk of criminal sanction under the Migration Act. Section 245AC of the Migration Act 1958 (Cth) provides that:
(1)A person (the first person) contravenes this subsection if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
(b) the worker is a lawful non-citizen; and
(c) the worker holds a visa that is subject to a work-related condition; and
(d) the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a).
(2)Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.[20]
[20] The relevant regulation referred to in s 245AC(2)(b) is regulation 5.19H of the Migration Regulations 1994 (Cth). It is unlikely to apply in this case because the First Respondent – of which the other respondents are director – was the sponsor of the same visa which, on the Applicant’s case, had conditions breached.
(3)A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: 2 years imprisonment.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(4)For the purposes of subsection (3), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person.
(5)A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 90 penalty units.
Note: It is not necessary to prove a person's state of mind in proceedings for a civil penalty order (see section 486ZF).
(6)A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.
35.Section 493 of the Migration Act states that ‘the state of mind of a body corporate’ can be established by reliance on the conduct and state of mind of a director. That director can then be personally convicted for aiding and abetting the body corporate to commit the offence.[21]
[21] See, for example, Kartawidjaja v Rowe [2016] VSC 176
36.The likelihood of this offence being pursued is high. The Court can be satisfied of this on the basis of evidence already before it. Tab 1 of the exhibit to the first affidavit of Lara Hurrell is an email from an officer of the Department of Immigration and Border Protection dated 18 August 2014. That email states, in terms, that the Department is putting on hold its own investigation pending the outcome of this proceeding. That department administers the Migration Act.
37.In addition to the above, it is in the interests of justice to allow the privilege to be exercised because the evidence given under cross-examination might also tend to prove another domestic criminal offences. The Criminal Code 1995 (Cth) includes offences which are similar to those under Philippines law, set out above at paragraphs 0 and 0.
38.Section 270.7 of the Criminal Code relevantly provides as follows:
A person (the recruiter) commits an offence if:
(a)the recruiter engages in conduct; and
(b)the recruiter engages in the conduct with the intention of inducing another person (the victim) to enter into an engagement to provide labour or services; and
(c)the conduct causes the victim to be deceived about:
(i) the extent to which the victim will be free to leave the place or area where the victim provides the labour or services; or
…
(iii) the extent to which the victim will be free to leave his or her place of residence; or
(iv) if there is or will be a debt owed or claimed to be owed by the victim in connection with the engagement—the quantum, or the existence, of the debt owed or claimed to be owed; or
(v) the fact that the engagement will involve exploitation…
Penalty:
(a)in the case of an aggravated offence (see section 270.8)—imprisonment for 9 years; or
(b)in any other case—imprisonment for 7 years.
Section 270.10 of the same Code provides that:
(1) For the purposes of proceedings for a slavery‑like offence [including s 270.7], the trier of fact may have regard to any of the matters covered by subsection (2) in determining whether a person (the alleged victim) against whom the offence is alleged to have been committed has been coerced, threatened or deceived.
(2)The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim and the alleged offender;
(b) the terms of any written or oral contract or agreement between the alleged victim and the alleged offender;
(c) the personal circumstances of the alleged victim, including but not limited to:
(i)whether he or she is entitled to be in Australia under the Migration Act 1958; and
(ii)his or her ability to speak, write and understand English or another language; and
(iii)the extent of his or her social and physical dependence on the alleged offender.
(3)Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant proceedings; or
(b) limit the manner in which evidence may be given or the admissibility of evidence.
39. Section 271.2 of the same Code relevantly provides:
(1)A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first person obtaining the other person’s compliance in respect of that entry or proposed entry or in respect of that receipt.
Penalty: Imprisonment for 12 years…
(1B)A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) in organising or facilitating that entry or proposed entry, or that receipt, the first person is reckless as to whether the other person will be exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 12 years.
40.Again, the likelihood of this offence being pursued is high. The Court can be satisfied of this on the basis of evidence already before it. Tab 1 of the exhibit to the first affidavit of Lara Hurrell is an email which records that Ms Virata and Mr Gagate ‘indicated [to an Australian government official] that they would be approaching the AFP regarding the trafficking aspects of this case that they believe exist.’
41.The evidence the Applicant might seek to elicit under cross-examination may also ‘tend to prove’ or support a prosecution of either or both of Mr and Mrs Parkes under these provisions also. For this reason too, it is not in the interests of justice that either be required to give oral evidence. Their privilege against self-incrimination should be protected against such risk of future use…”
Applicant’s submissions
In submissions filed 9 October 2017 the applicant set out why it opposed the respondents’ objection under s.128 or otherwise.[22] The applicant, in my view, accurately summarised the respondents’ position/s on the issue of self-incrimination or the s.128 objection (at least as it was contained in written submissions) as follows:
36.The Respondents’ Submissions traverse between three possibilities as to the s.128 Objection:
(a)Mr and Mrs Parkes do not intend to read their respective affidavits into evidence and object to giving evidence in toto;[23] or
(b)Mr and Mrs Parkes will give evidence in chief by reading their affidavits, but they object to giving any evidence under cross-examination;[24] or
(c)Mr and Mrs Parkes will give evidence in chief by reading their affidavits, and do not object to cross-examination, except that they object to giving evidence in cross-examination on particular (yet unspecified) matters ‘which may yield an answer’ that tend to prove offences under certain foreign or Australian laws.[25]
[22] See paragraphs 9 to 90.
[23] See Respondents’ Submissions at [41] (‘For this reason too, it is not in the interests of justice that either be required to give oral evidence’).
[24] See Respondents’ Submissions at [6(b)] (‘Mr and Mrs Parkes instruct that, in any event, they are not willing to give evidence under cross-examination in this proceeding’), [8] (’Mr and Mrs Parkes primarily object to giving evidence under cross-examination because…’) and [30] (‘…for the Court to be satisfied that it should not require either witness to give evidence under cross-examination’).
[25] See Respondents’ Submissions at [20] (‘the objections under s 128 of the Evidence Act should be allowed and any question in cross-examination by the Applicant which might ‘tend to prove’ any of these Filipino offences should not be allowed to be answered’) and [49(b)] (‘…allow Mr and Mrs Parkes to rely upon the privilege against self-incrimination in respect of any question which may yield an answer that ‘tends to prove’ the offences under Filipino or Australian law set out above.).
In summary, in opposing the objection or claim to privilege made by the respondents, the applicant submitted inter alia:
a)the respondents were under no compulsion to give evidence and therefore s.128 is not enlivened;[26]
b)an “objection” required by s.128 had not been made;[27]
c)should the respondents elect to give evidence (and this has not been made clear) a blanket objection to cross examination was not open and they were required to identify particular topics the subject of any objection;[28]
d)on the basis there was an objection it was made without reasonable grounds;[29]
e)in any event the Court could be satisfied the evidence does not tend to prove they committed an offence under a law of a foreign country and it was in the interests of justice they be required to give evidence;[30]
f)furthermore the respondents had in any event waived their respective privilege against self-incrimination.[31]
[26] See paragraphs 15 to 33.
[27] See paragraphs 54 to 40.
[28] See paragraphs 51 and 60.
[29] See paragraphs 51 to 60.
[30] See paragraphs 61 to 78.
[31] See paragraphs 79 to 90.
Respondents’ submissions in reply
In their submissions in reply filed 26 October 2017 the respondents’ position was:
“2. The Respondents agree with the repeated position of the Applicant that neither Mr nor Mrs Parkes have yet given any evidence in this proceeding.[32]
[32] Submissions of the Applicant dated 9 October 2017 (Applicant’s submissions) at paragraphs 16, 24, 27-29
3. While neither Mr nor Mrs Parkes will have read into evidence any part of the affidavits filed in their names in this proceeding,[33] as independent parties to this proceeding who wish to defend their position on the relatively small number of issues still in dispute, they expect to still give oral evidence in this proceeding one way or another.[34] Relying on indications given on behalf of the Applicant during the trial that the Applicant would seek to question both Mr and Mrs Parkes, the objection was raised by them at the trial prior to giving any evidence. If it is the case that the Applicant will not ask any questions of Mr or Mrs Parkes, the Respondents may need to reconsider their position on the objection based on the privilege against self-incrimination.
[33] The Applicant speculates to the contrary at Applicant’s submissions paragraphs 28 and 46.
[34] The Applicant speculates to the contrary at Applicant’s submissions paragraph 122.
4. Mr and Mrs Parkes do not claim the privilege against self-incrimination against every question that may be asked under cross-examination[35] – there is no ‘blanket’ claim, to use the terminology of the Applicant.[36] The ‘particular matters’ (for the purposes of s 128(1) of the Evidence Act) in respect of which they object are only those matters which ‘tend to prove’ the offences specified and explored at length in the primary submissions of the Respondents, and most especially the Filipino offence. This is made plain at least at paragraphs 20 and 49(b) of those submissions.
[35] Contra Applicant’s submissions paragraphs 12(c), 16, 34, 36, 38 and 89
[36] Applicant’s submissions paragraphs 17, 41
5. In their written submissions, the Applicant adopts a self-contradicting position on their understanding of the scope of Mr and Mrs Parkes objection. The Applicant’s submissions quote those submissions of Mr and Mrs Parkes noted above on the precise scope of the objection (at footnote 25) and then profess no knowledge of or confusion about the claimed scope at paragraphs 12(c), 16, 34, 36, 38 and 89.[37] In any event, the scope has been defined since the first submissions and is unchanged.
[37] Some or all of this analysis seems to be premised on taking half of a sentence out of context, namely from paragraph 41 of the Respondent’s submissions, as relied upon at paragraph 36(a) of the Applicant’s submissions. On its plain terms, that statement is in respect of any evidence given in response to questions under cross-examination from the Applicant. It is not a claim to a privilege against giving any evidence, as the Applicant speculates.
6. In that regard, the Respondents agree with the Applicant that ordinarily the appropriate course is for any objection to be raised question by question.[38] The Respondents submit that the issue in this case is that the basis for the objection and the evidence that can be expected to be sought under cross-examination by the Applicant overlap so significantly that the more efficient course is to consider the objection at the outset. If the alternative question-by-question course is adopted, it is likely to be a much longer, more laborious and time-consuming method to achieve the same outcome. It is for this reason that the Respondents respectfully agree with the approach suggested by the Court that this be dealt with by proper submissions and evidence at this stage, and be the subject of judicial consideration before the matter proceeds question by question.
[38] Applicant’s submissions 42, 45, 48, 90
7. On this theme, the Applicant engages in further self-contradiction of note. At paragraph 48, it implores the Court not to determine the objections ‘in the abstract’ but then at paragraph 50(a) and following invites the Court to determine, in the abstract, that the answers to unspecified questions will not tend to prove the specified offences. It then goes on to observe that there is not yet any ‘proper articulation of the questions that are being posed’. Such questions would come from the Applicant. Despite an invitation to do so, those have not been provided.[39]
[39] Applicant’s submissions paragraph 38
8. In any event, there is nothing abstract about determining what evidence the Applicant will seek to elicit by asking any questions of Mr or Mrs Parkes at trial. The Applicant has opened and closed its case. The Court knows full well what case the Applicant is seeking to prove on the small number of remaining issues in dispute. No abstraction is required.
Foreign law
9. The submissions of the Applicant on the operation of s 128 and 174 of the Evidence Act proceed from a few important misconceptions.
10. Expert evidence is no longer needed to prove foreign law, contrary to the submissions of the Applicant at paragraphs 57(a) and 63. Section 174 of the Evidence Act makes that clear. It is as notable though that the Applicant has led no contrary evidence to that filed on behalf of the Respondents at all, despite seeking a particular order for the purpose of doing so. As explained in the previous submissions of the Respondents, foreign laws relevant to s 128 do not have to be proven in evidence as a question of fact where they are, for example, ‘highly likely having regard to experience and common sense’ that such acts will be prohibited.[40] The relevant offences in this case fall within this category. Further, the obligation on the party raising the objection is only to identify a class of laws of a foreign jurisdiction under which the relevant offences arises.[41] The Respondents have gone significantly further than this in this instance. Mr and Mrs Parkes can and do also call in aid of their position the common law presumption that foreign law is the same as Australian law, including on questions of interpretation.[42]
11. Contrary to the Applicant’s submissions, the test for the engagement of s 128 is not whether the witness is ‘subject of attention or under investigation… or may be under such investigation’ in the future.[43] The test the Court must apply is to ask whether the evidence may ‘tend to prove’ the foreign offence. Engaging in the speculation that is urged by the Applicant would be legally erroneous. Regardless, the Applicant’s submissions ignore the evidence they filed in this proceeding that bears directly on this question, namely the records of conversations with Ms Virata and Mr Gagate to the effect that they are interested in criminal charges ‘regarding the trafficking aspects of this case that they believe exist’.[44]
12. Mr and Mrs Parkes do seek a certificate under s 128,[45] contrary to the Applicant’s assertion at paragraph 59. But, this is not what they primarily seek, as is made plain in the remainder of the Respondents’ submissions.
13. Section 555 of the Fair Work Act 2009 (Cth) does not provide the Respondents with protection for even the Australian criminal charges.[46] This is so because these proceedings, and the information and documents gathered for them, are not solely in respect of a proceeding ‘against the individual’. They were also gathered for a proceeding against the First Respondent, being a company. Further, there is nothing certain about the prospective criminal charges being regarded as being based on ‘substantially the same’ conduct as the alleged conduct in this case. It is therefore at least arguable that this provision does not provide the protection that a certificate under s 128 of the Evidence Act does.
Waiver
14. The Applicant’s submissions on the question of waiver should not be accepted for at least the following reasons.
a. Case law makes it clear that Mr and Mrs Parkes are entitled to make this objection even as parties to the proceeding[47] and even in circumstances where they have had pleadings filed on their behalf;[48]
b. Mr and Mrs Parkes have not yet opened their case in this proceeding;[49]
c. Mr and Mrs Parkes’ lawyers had no knowledge of the relevant Filipino offence until shortly before it was raised at trial and so they could not have advised Mr and Mrs Parkes on it. In those circumstances, the doctrine of waiver sits uncomfortably – being concerned, as it is, with fairness[50] - where a witness did not know, and was not presumed to know,[51] of the existence of the law that later turns out to be the law that gives rise to a real risk of evidence from them being criminally incriminating. There was no strategy in taking steps in this proceeding and then claiming the privilege late, as the Stonier affidavit makes clear. No waiver of the privilege was express nor can be implied in that context.”
(emphasis added)
[40] Versace v Monte [2001] FCA 1572 [11]
[41] Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 [308-310]
[42] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 [125]; see also Moti v The Queen [2011] HCA 50; 245 CLR 456 [39, 51]: contra Applicant’s submissions paragraphs 64 - 67
[43] Applicant’s submissions paragraph 58
[44] Affidavit of Lara Hurrell dated 3 February 2017 at Exhibit 1 Tab 1 p 3
[45] Respondent’s submissions dated 11 August 2017 paragraph 6(a)
[46] Contra Applicant’s submissions paragraph 59
[47] Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1192 [6]
[48] Clayton Utz (a firm) v Dale [2015] VSCA 186; 47 VR 48 [214]; see also CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 1141 [14-18]
[49] Transcript p 126 line 9 – 13, p 127 line 13, p 190 line 13
[50] See passage cited by the Applicant at Applicant’s submissions paragraph 86; see also Attorney-General (NT) v Maurice (1986) 161 CLR 475, especially per Mason and Brenan JJ at [12]
[51] The presumption of knowledge of domestic law (Iannella v French [1968] HCA 14; (1968) 119 CLR 84) does not extend globally.
Submissions before the Court
Counsel for the respondents told the Court (notwithstanding the impression open on the written submissions filed on behalf of his clients) that an s.128 certificate was not sought. Counsel for the respondents told the Court there were 5 “core” reasons for the objection as it was made. These were:
a)the respondents wanted to avoid giving evidence which could be used against them particularly in relation to (possible) proceedings under Philippine law;
b)a s.128 certificate would not provide any protection against evidence in a Philippine court;
c)it was “already clear” what evidence the applicant would seek to elicit in cross examination of the respondents;
d)the respondents had not given any evidence in these proceedings yet; and
e)the applicant’s own evidence includes records of interviews with the respondents which showed the applicant was “interested” in whether the respondents were involved in people trafficking.
Counsel for the respondents submitted the “objection” was driven by concern evidence from his clients would “tend to prove” liability under a class of laws of a foreign jurisdiction and it was in the interests of justice (as a certificate under s.128 would not help) to uphold it.
Senior Counsel for the applicant noted that it was now clear in light of the respondents’ submissions before the Court that they were asking the Court to determine a “hypothetical”.
Senior Counsel for the applicant referred to the reference by Counsel for the respondents during submissions before the Court to the first respondent engaging separate Counsel and that, even in light of all the respondents’ submissions, it had now been acknowledged not only were they not under compulsion but it was not possible to say what their evidence would be. Given this it was submitted it was premature to consider any objection.
Senior Counsel for the applicant took issue with the submissions made on behalf of the respondents to the approach to foreign law and said that in any event the Court could only determine the objection in the context of a particular question when the respondents were under compulsion. Senior Counsel for the applicant told the Court the respondents’ objection was premature and the Court could not provide a blanket ruling.
Finally, in reply Counsel for the respondents acknowledged there was an “air of unreality” to the objection, his clients’ objection may be premature but he was keen to avoid these proceedings “ending in farce”. It was for that reason the Court was told that, notwithstanding it was now acknowledged it was not the time to make it, that he took the position taken on behalf of his clients.
Consideration – Privilege against self-incrimination/s.128
The submissions filed by the parties and upon which they relied addressed the relevant authorities which for the sake of brevity won’t be rehearsed.
Section 128 of the Evidence Act 1995 (Cth) provides:
“Privilege in respect of self-incrimination in other proceedings
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c)of the effect of such a certificate.
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6)The court is also to cause a witness to be given a certificate under this section if:
(a)the objection has been overruled; and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7)In any proceeding in an Australian court:
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence...”
The abstraction level of the respondents’ objection under s.128 or otherwise was the subject of criticism in the applicant’s submissions which I accept. The flaw in the respondents’ submissions (and the various iterations of the positions they took in those submissions) is that they never attempted to conceal the strength of the opposing case.
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550 Bromberg J, in the context of an application for a certificate pursuant to s.128, considered the issue of “objects to the giving of particular evidence” so as to engage s.128(1).
Bromberg J also considered the privilege against self-incrimination and the issue of whether there were reasonable grounds for the objection as required by s.128(2) in Ewin v Vergara (No.2) [2012] FCA 1518.
The decision of Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620 which dealt with the privilege against self-incrimination concerned an interlocutory dispute. The directors filed defences in response to ASIC’s claim and ASIC sought orders for further and better particulars in relation to the defences filed. The directors argued that the privilege against self-incrimination relieved them of their obligation to provide further and better particulars. In dismissing ASIC’s application Finkelstein J at paragraphs 7 to 9 stated that:
“…the privilege against self-incrimination is a "fundamental... bulwark of liberty" (Pyneboard Pty Ltd v Trade Practices Commission[1983] HCA 9; (1983) 152 CLR 328, 340) that "protects personal freedom, privacy and human dignity" (Caltex Refining[1993] HCA 74; 178 CLR 477, 500) and is "deeply ingrained in the common law" (Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 309). It applies in curial proceedings, including procedures related to curial proceedings, and non-curial proceedings: Pyneboard[1983] HCA 9; 152 CLR 328, 340-341; Sorby[1983] HCA 10; 152 CLR 281, 309...
In the case of self-incrimination privilege the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked: Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547, 574; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, 392; Sorby [1983] HCA 10; 152 CLR 281, 290 and 294.”
In this case it was acknowledged there was no evidence filed by the respondents in support of the objection.
In Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, at 421 to 422, Kirby J said:
“The test traditionally applied is whether the person claiming the privilege genuinely and reasonably apprehends a danger from being compelled to answer the question objected to: R v Boyes [1861] EngR 626; (1861) 1 B & S 310; 121 ER 730.
… Where a question arises as to whether the claimed privilege is not claimed bona fide or whether the danger apprehended is without substance, it is clear law that “great latitude should be allowed to [the witness] in judging for himself the effect of any particular question”: see R v Boyes (at 311; 730)…”
In Fair Work Ombudsman v Hu [2017] FCA 1081 Rangiah J considered the issue of privilege against exposure to penalty and whether that could be waived by admissions and positive allegations in a defence and said:
“11.Penalty privilege is similar to but distinct from privilege against self-incrimination: Anderson v ASIC[2012] 2 Qd R 401 at [17]. A party should not be ordered to disclose any information that would assist in establishing the liability of the party to a penalty: ACCC v FFE Building Services Pty Ltd [2003] FCAFC 132;(2003) 130 FCR 37 at [12]; Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation(1979) 42 FLR 204 at 207. The privilege serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it: Daniels Corporation International Pty Ltd v ACCC[2002] HCA 49;(2002) 213 CLR 543 at [31]; Trade Practices Commission v Abbco Ice Works Pty Ltd[1994] FCA 1279; (1994) 52 FCR 96 at 129.
12.Modern pleading rules require parties to expose their case for trial and, so, are contrary to a claim for penalty privilege: Anderson v ASIC at [27], [32]-[36]; ASIC v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32 at [12]. Procedural rules yield to rights conferred by the law of privilege unless there is clear statutory authority to the contrary: McDonald v ASIC[2007] NSWCA 304; (2007) 73 NSWLR 612 at [39]; Anderson v ASIC at [20].
13.Accordingly, penalty privilege operates to relieve a respondent from the need to deliver a defence that complies with the pleading rules if the rules would override the privilege: ASIC v Mining Projects Group Ltd at [12].
14.Penalty privilege also prevents a respondent from being ordered to file statements of evidence prior to a trial: ACCC v FFE Building Services Pty Ltd at [14], [29]; One Tel (in liq) v Rich[2005] NSWSC 226; (2005) 53 ACSR 623 at [77].
15.Penalty privilege does not apply to a corporation: s 187 of the Evidence Act 1995(Cth). However, a Court should not make an order requiring a corporate respondent to make discovery if, by complying with that order, a natural person would be denied the privilege the person is otherwise entitled to: Microsoft Corporation v CX Computer Pty Ltd[2002] FCA 3; (2002) 116 FCR 372 at [31]- [33];Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [66].
…
18.Penalty privilege, like other forms of privilege such as the legal professional privilege and privilege against self-incrimination, can be waived expressly or impliedly: ASIC v Mining Projects Group Ltd at 39; Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq)(2014) 46 VR 583 at 596.
…
21. The admission of allegations made in a statement of claim constitutes a waiver of privilege against self-exposure to a penalty: Bridal Fashions Pty Ltd v Comptroller-General of Customs(1996) 17 WAR 499 at 516; Hadgkiss v Construction, Forestry, Mining and Energy Union[2005] FCA 1453 at [29]. However, a respondent who admits a particular fact in his or her defence does not thereby waive the right to claim privilege for all other facts: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2)[2011] FCA 368 at [22]; ASIC v Mining Projects Group Ltd at [24]…”
At this stage of the proceedings neither the Court nor the applicant can require or seek to compel the respondents to give any particular evidence.
The purpose of section 128 of the Evidence Act 1995 (Cth) is to afford protection to a witness who, if required to give particular evidence, may find themselves in a position of admitting to a particular course of action or conduct. This evidence may render he/she liable to either criminal or civil sanctions because that behaviour or conduct may tend to prove the commission of an offence under Australian or international law and/or liability to a civil penalty.
In circumstances where the interests of justice require that the evidence is given, the witness can be compelled to give the evidence. In those circumstances the certificate must be given to the witness. Circumstances also arise where although the witness is not compelled to give the evidence they may seek to do so, and, if the Court is satisfied that they have reasonable grounds for objecting to giving the evidence without the certificate, the certificate must be given.
In circumstances where a witness objects to giving the evidence without a certificate but their objection is overruled, the Court must also give a certificate if, following upon the giving of the evidence, it is clear that there were reasonable grounds for the objection.
If evidence is given in proceedings and a certificate has been granted for any of the reasons given above, neither the evidence itself nor evidence of any information, document or thing obtained as a direct or indirect consequence of the witness having given that evidence can be used against the witness in other proceedings save and except in relation to the offence of perjury.
It may be that during the course of the resumed trial the respondents will be asked questions in cross-examination by the applicant or Counsel on their behalf which he/she will object to answering on the basis that their answers may tend to prove that he/she has committed an offence against or arising under Australian law. It may be that the Court will find that there are reasonable grounds for the objection, and inform them that they are not required to give the evidence or that if they do so a certificate will be granted pursuant to s.128 of the Evidence Act 1995 (Cth).
It may also be that the Court is satisfied that although the evidence to be given by the respondents may tend to prove that he/she has committed an offence against or arising under an Australian law, the interests of justice require that they give the evidence. The Court would then require them to give the evidence and provide the certificate.
These are matters for another day. The respondents are not yet in a position where they are being required to give any particular evidence, either by the Court or by any other party, to which they object.
I do not consider that s.128 of the Evidence Act 1995 (Cth) has application in the present circumstances.
Applying the approach adopted by Bromberg J in the above cases (and the cases cited therein) I accept the respondents are not currently under “compulsion” so as to enliven s.128. To the extent the respondents have raised an objection on the grounds of self-incrimination the abstraction level at which it was advanced was both ambiguous and unclear.
At this stage it is not appropriate to speculate on an outcome should the respondents give evidence in chief and then object to cross examination on particular matters. Having regard to the conclusion that s.128 has no application at this time it is not strictly necessary to deal with the applicant’s alternative submissions that there was no reasonable grounds for the objection or as to waiver of privilege. Given the authorities referred to in the applicant’s submissions in relation to each of the first three scenarios referred to at paragraph [36] of the applicant’s submissions I accept the objection, so far as it has been made, should be refused.
In the circumstances the conclusion that is arrived at is the s.128 objection or the objection on the grounds of self-incrimination has been made prematurely, the scope of the objection is ambiguous and unclear and to the extent it has been made at this stage I am not satisfied there are reasonable grounds for the objection.
Accordingly, and for the reasons set out above, the objection/s by the respondents should be refused.
Suppression order application
Respondents submissions
In their submissions filed 11 August 2017 the respondents’ position was:
“Pseudonym orders sought
42.The Respondents also seek a pseudonym order for the purposes of the hearing and determination of this objection under s 128 of the Evidence Act.
43.The Court is empowered to make such an order by its inherent jurisdiction or, alternatively, pursuant to s 15 of the Federal Circuit Court of Australia Act 1999 (Cth).[52] That statutory power is broad and allows an order of any kind where the Court ‘thinks [it] appropriate’.
44.The reason that it is appropriate to make such order now and in such a limited way is that without so doing, Mr and Mrs Parkes would be reasonably deterred from raising their arguments in favour of the recognition of the privilege against self-incrimination in their case in open court. This is an orthodox basis for the making of such an order under the common law.[53]
45.Mr and Mrs Parkes would be so deterred because the nature of the self-incrimination claim is unusual and sensational. The consequences of the very publication of their identities – in a public hearing at which the media can attend or in a judgment published online - in respect of this claim may itself be the cause of the initiation of an investigation in the Philippines of the very offences which they fear may be made out by evidence given under cross-examination in this case. This is especially a concern as Filipino online publications have already covered this case to a limited extent, as Ms Stonier’s affidavit attests.[54]
46.The making of a pseudonym order would also be consistent with the approach taken under Filipino law in respect of the offences outlined above at paragraphs 0 - 0. Section 6 of Republic Act No. 9208 provides as follows:
At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public.
In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons.
47.To keep faith with the terms of this provision of Filipino law and to ensure that Mr and Mrs Parkes are undeterred from making their full submissions in open court, the Respondents seek a pseudonym order for at least the hearing and determination of the objection under s 128 of the Evidence Act.
48.The Respondents would not oppose a similar order being made in respect of the four employees by reason of the Filipino law recited above at 43.”
[52] Lloyd & Oxbourne & Ors [2016] FCCA 2026 [25]
[53] XYZ v State of Victoria & Anor [2016] VSC 339 [18-20] and the authorities there cited.
[54] Affidavit of Sally Stonier dated 11 August 2017 [3-5, 9]
In submissions filed 1 September 2017 the respondents clarified that the suppression order was sought pursuant to Part 6A of the Federal Circuit Court of Australia Act 1999. In those submissions the respondents position was:
“2.Since 11 December 2012 the Federal Circuit Court has had an express statutory code for the making of orders of the kind sought by the Respondents, among others. The scheme largely mirrors the position at common law and under equivalent schemes for other federal courts.[55] The Explanatory Memorandum that introduced the Part of the Act containing the code succinctly explains the interaction between the statutory code and the powers already relied upon by the Respondents in their application in this proceeding.
[55] For a thorough summary of the history and case law relevant to the scheme, see Lejmanovski University of Western Australia [2013] FMCA 75 [20-31]
105. Section 61 of the Federal Magistrates Act 1999 currently enables the Federal Magistrates Court to make an order forbidding or restricting the publication of particular evidence, the name of a party or witness, or access to documents obtained through discovery or by subpoena, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
106. The federal courts also have such implied powers as are incidental and necessary to exercise the jurisdiction or express powers conferred on them by statute (DJL v The Central Authority (2000) 201 CLR 226 at 240-241). The Federal Court has held that it has power to make suppression orders as a result of these implied powers, including in relation to documents filed with the Court (Central Equity Ltd v Chua [1999] FCA 1067).
107. Hence, although the Federal Magistrates Court already has a range of powers to make suppression and non-publication orders, Part 6A will set out more comprehensively in one place when and how such powers can be exercised.
108. The amendments repeal section 61 of the Federal Magistrates Act 1999 (item 6), since similar provisions are contained in the amendments inserted by the Part. While the Court’s more general powers under section 15 of the Federal Magistrates Act 1999 will not be amended by this Bill, those more general powers will no longer be used to prohibit or restrict the publication or other disclosure of information in connection with proceedings (section 88C). The Court’s implied powers to regulate its own proceedings will be unaffected (section 88B).[56]
[56] Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011
It follows from the above that the Court in this proceeding should make the orders sought either pursuant to its implied power or pursuant to s 6A of the FCC Act, but not pursuant to s 15 of that Act. To this extent, the Respondents withdraw their submissions at paragraph 43 of their previous written submissions dated 11 August 2017.
3.The orders sought by the Respondents have already been framed with the principle of open justice in mind. That principle is highlighted in s 88E of the FCC Act but exists as a matter of general law in any event.[57] The principle is accommodated by the orders sought in that what is sought is not to close the courtroom, not to make the judgment confidential and not to suppress reporting of what occurs in court. It is merely to make whatever is recorded in the judgment, filed with the Court or said in the courtroom un-attributable to Mr and Mrs Parkes. This is the minimum necessary to avoid the risk of the very claim to self-incrimination leading to, invigorating or expediting a criminal investigation in the Philippines, regardless of the merits of such an investigation.
[57] Hogan vHinch [2011] HCA 4 [27], which relates to an equivalent scheme; see Thind v Minister for Immigration [2013] FCCA 1438 [31]
4.Section 88F of the FCC Act empowers this Court to make ‘such orders as it thinks appropriate to’ prohibit or restrict ‘the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any party…’
5.Section 88H(3) makes it clear that the Court is empowered to make such an order ‘at any time’.
6.Section 88G specifies that any order under s 88F ‘must specify the ground or grounds on which the order is made’. The relevant ground in this case is that such an ‘order is necessary to prevent prejudice to the proper administration of justice’.[58] The Full Court of the Federal Court as well as this Court have recognised that such a ground is enlivened where “the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court, or ‘if there was a real risk as opposed to a remote possibility that this would occur’.”[59] ‘The concept of the proper administration of justice… is not limited to the administration of justice in the particular case then before the court. It is a very broad concept that may extend to future investigations or cases.’[60]
[58] As to the meaning and significance of the term ‘necessary’ in this context, see Hogan v Australian Crime Commission [2010] HCA 21 [31].
[59] Thind v Minister for Immigration [2013] FCCA 1438 [33-34], citing the relevant Full Court of the Federal Court decision. See also Johnston v Cameron [2002] FCAFC 251; 124 FCR 160 [90]
[60] DPP (Cth) v Brady & Ors [2015] VSC 246; 252 A Crim R 50 [64]
7.The necessity required by s 88G arises for the reasons set out in the submissions dated 11 August 2017 at paragraphs 44 – 47. In short, those reasons are that Mr and Mrs Parkes would be reasonably deterred from raising their arguments in favour of the privilege against self-incrimination in their case in open court because making the claim without such an order may itself prompt criminal law investigation or prosecution of them. In addition, Filipino law mandates that those involved in every stage of a prosecution or potential prosecution for the very offences which give rise to the claim of self-incrimination including judges must maintain the ‘right to privacy’ of both the alleged perpetrators and victims. This objective would be wholly frustrated by the public release of the names of the those people in discussion and analysis of the s 128 objection.
8.Section 88K of the FCC Act states that this Court must also identify the duration of the operation of any such order and that that duration should be the minimum ‘necessary to achieve the purpose for which it is made’. The Act also states that the duration can be set ‘by reference to the occurrence of a specified future event’. In this case, the only appropriate length for the order sought would be:
a. Until the completion of any trial and resulting appeals under the identified law of the Philippines; or
b. for the duration of the natural life of both Mr and Mrs Parkes,
whichever is sooner. Since criminal prosecution has no limitation period,[61] the contents of any judgment dealing with the s 128 objection could form the basis of an investigation or prosecution or extradition request for as long as Mr and Mrs Parkes live. It is for this reason, that the objective of the order is only fulfilled if it operates for that period at the longest.
9.To achieve the aim of severing the ties between the objection by Mr and Mrs Parkes under the Evidence Act and the substantive proceeding (in respect of which no pseudonym order is presently sought), the Respondents also request that:
a. An order extend to the names of the four employees directly involved in this proceeding and the country name of the Philippines; and
b. the hearing and determination of their objection be allocated to a different court file number.
Were it the case that the objection and trial were on the same file number, any judgment in one would be readily linked to a judgment in the other, which would defeat the purpose of the limited pseudonym order sought. If this is not possible, the Respondents would have to (and would) seek an order for the whole proceeding to achieve the same outcome.
10.It follows that it is appropriate to make an order which would have the effect that any discussion of their objection under s 128 of the Evidence Act, in court or in any judgment, would not be linked to them. Such an order should be made pursuant to Part 6A of the FCC Act, if not the implied jurisdiction of this Court. The Respondents therefore submit that the most appropriate terms for the order are:
The Court orders, pursuant to Part 6A of the Federal Circuit Court of Australia Act 1999 (Cth) or alternatively, pursuant to its implied power, that the names of each Respondent, the relevant country and the relevant four employees be replaced by pseudonyms in all documents relating to the objection by the Second and Third Respondents under s 128 of the Evidence Act 1995 (Cth). This order is made on the ground set out in s 88G(1)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) and operates until the death of both the Second and Third Respondents, or any trial and appeals in respect of the relevant offences are completed in the relevant country, whichever is sooner.
11.For the reasons set out at paragraph 7 above, the Respondents respectfully request that this application be heard in closed court, the written submissions in respect of it be kept confidential on the court file and the application be determined with orders made (with or without final reasons) before the arguments under s 128 of the Evidence Act are heard.”
[61] Applying the principle set out in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 [16, 45, 116, 125] on which the Respondents rely for their submissions in respect of this application and the objection.
Applicant’s submissions
The applicant’s submissions filed 9 October 2017 addressed the orders sought in the amended application in a case for a suppression order at paragraphs [100] to [115]. Whilst accepting the Court had power to make such an order the applicant submitted the requirements for such an order were not made out.
In so far as the respondents claimed an order was necessary to prevent prejudice to the proper administration of justice the applicant submitted:
“103.In essence, what appears to be contended, is that:
(a)the Respondents, in making the s.128 Objection, have raised the suggestion that they potentially contravened the Migration Act, the Criminal Code and/or the R.A. 9208 as amended by the R.A. 10364, in circumstances where the contravention of these provisions forms no part of the case being put forward by the FWO or the Defence of the Respondents;
(b)the suggestion that the Respondents potentially contravened the Migration Act, the Criminal Code and/or the R.A. 9208 as amended by the R.A. 10364 has the potential to cause significant embarrassment to the Respondents and/or attract the attention of the Filipino authorities;
(c)the embarrassment to the Respondents and/or the attention of the Filipino authorities would operate as a disincentive to the maintenance of the s.128 Objection; and
(d)were the Respondents to be prosecuted under R.A. 9208 by the Filipino authorities, a suppression order would ensue.
None of the matters mean that a suppression order is necessary to prevent prejudice to the proper administration of justice.
104.Dealing with the last point first, there is no basis for reading the ground set out in s.88G(1) as extending to proceedings in the Philippines which have not been instituted or foreshadowed by the Filipino authorities. As explained above, the prospect of any such proceedings coming into being is, at best, highly speculative.
105.As to any embarrassment associated with the maintenance of the s.128 Objection, this falls well short of the criteria set out in s. 88G(1)(a) for the following reasons:
(a)first, as explained above, the s.128 Objection is without merit. The Respondents should not have the benefit of a Suppression Order through the expedient of bringing an unmeritorious application;
(b)second, the suggestion that the Respondents potentially contravened the Migration Act, the Criminal Code and/or the R.A. 9208 as amended by the R.A. 10364 does not form part of either the FWO’s claim or the Defence. The authorities referred to by the Respondents do not go so far as to suggest that a Suppression Order should be made in order to protect a party from embarrassment associated with an interlocutory application made by them in the course of a proceeding in which they have otherwise participated without seeking such an order;
(c)third, the Application has not been made in a timely way. The s.128 Objection has already been foreshadowed in open Court and without a request for, or the benefit of, a Suppression Order.[62] Even though the Court determined that persons other than legal practitioners vacate the court room whilst the circumstances surrounding the s.128 Objection were explained,[63] no Suppression Order was made or sought. To the extent that a Suppression Order would otherwise have been appropriate, “the horse has bolted”; and
(d)finally, the position being pressed by the Respondents in their submissions is that unless the Court was prepared to adopt the extraordinary step of generating a new proceeding and a separate matter number in respect of the s.128 Objection, a Suppression Order is sought in respect of the entirety of the Proceedings. According to the Respondents, unless a separate matter number is generated in respect of the s.128 Objection, a Suppression Order confined to the s.128 Objection would have little utility. It is not in the interests of justice that an order extending to the entirety of the Proceedings be made.
106.In support of the submissions the FWO notes that what is “necessary” will depend on the context of the matter; the ground/s relied upon in s.88G and the factual circumstances said to give rise to the Suppression Order.[64] Determining what is “necessary” does not involve a balancing exercise of the interests in open justice and the potential prejudice which may occur if the information is released; rather, the only consideration is whether the Suppression Order is necessary to prevent prejudice to the proper administration of justice.[65] To determine what is the proper administration of justice, consideration should be given to the consequences that flow if the Suppression Order is not made and whether the consequences are unacceptable such that the making of the Suppression Order is necessary to ensure that those consequences do not flow.[66]”
[62] Day 2 Transcript of Proceedings at pp. 196-208.
[63] Day 2 Transcript of Proceedings at p. 199, line 20.
[64] Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim and Others [2012] NSWCCA 125; (2012) 83 NSWLR 52 (Fairfax) at [8], [46].
[65] Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21] (citing Hogan at [31]-[32]); see also Dye v Commonwealth Securities Limited [2010] FCAFC 115; (2010) 273 ALR 248 at [10].
[66] Fairfax at [8] citing John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131; (1991) 26 ALD 471.
The applicant’s submissions referred to High Court and other authority along with the legislation and its background.[67]Against that background and in summary the applicant submitted the respondents had not met the requirements of Part 6A of the FCC Act to set aside the principle of open justice and the Court should not make the proposed suppression order.
[67] See paragraph 107 to 114.
Respondents’ submissions in reply
In their submissions in reply filed 26 October 2017 the respondents said:
“15. The Applicant’s submissions repeatedly refer to Mr and Mrs Parkes seeking the order to avoid ‘embarrassment’ by their application for this order. This is not their motivation, nor their concern. As previously stated,[68] their concern is triggering or foreshortening a criminal investigation in the Philippines into their alleged conduct, with the consequent risk of a very significant period in a Filipino gaol. They seek the minimum order under Part 6A of the Federal Circuit Court of Australia Act necessary to prevent this.
16. Importantly, that order would do none of the things the cases cited by the Applicant warn against. It would not require the Court to be closed. It would not require the Court to sit in private. It would not prevent full publication of the judgment. It would not shield the Court’s processes from public scrutiny. It would merely remove a disincentive from Mr and Mrs Parkes pursuing a statutory right for fear of the consequences of doing so in a way that is directly attributable to them.
17. It is for this reason that Mr and Mrs Parkes urge the Court to consider and rule on this order before proceeding further to consider their objections under s 128 of the Evidence Act in a way that is attributable to them by name.”
[68] Respondent’s submissions dated 11 August 2017 paragraph 45-47
Submissions before the Court
Counsel for the respondents told the Court the suppression order was sought “only” for the purposes of the s.128 objection and the other submissions were a “fall back”. Counsel for the respondents told the Court this order was necessary to prevent his clients being “deterred” from engaging the privilege against self-incrimination.
However and whilst there had already been publicity about the case which Counsel for the respondents accepted meant the “horse had already bolted” it was submitted a suppression order was necessary to prevent an exacerbation of the risk of the exposure or investigation/prosecution for people trafficking under Philippine law.
Counsel for the respondents accepted there was no evidence from his clients they would be reasonably deterred but nonetheless maintained the submission such an order was necessary to prevent prejudice to the proper administration of justice.
Counsel for the respondents contended, relying on the written submissions filed on behalf of his clients that a number of background factors were in favour of such an order and his clients readily crossed the “low threshold” for an order of the limited kind sought.
In submissions before the Court on the issue of the suppression order Senior Counsel for the applicant contended the making of any such order (beyond that necessary to determine the amended application in a case) could only be determined if and when an objection under s.128 or on the grounds of self-incrimination was made.
It was submitted by Senior Counsel for the applicant that the respondents were really seeking a suppression order for the entire proceedings where the grounds were not present to do so and in any event the orders they sought were not feasible.
Senior Counsel for the applicant submitted the “horse has [indeed] already bolted” in so far as the evidence given during the part heard trial was concerned. It was noted there had been no such (similar) application made at that time by Counsel for the respondents nor had leave been sought to do so before the interlocutory hearing.
It was noted by Senior Counsel for the applicant that the respondents’ own solicitor exhibited evidence to her affidavits of media reports in Australia and overseas on the proceedings and bearing this in mind and that there was no evidence of the need for a suppression order from the respondents themselves there was no basis for the making of the orders sought.
Consideration – Suppression order application
The respondents initially relied on s.15 of the Federal Circuit Court Act 1999 (Cth) (“FCC Act”) as the relevant statutory power and referred to the decision in Lloyd & Oxbourne & Ors [2016] FCCA 2026[69] in support of that submission. However as was made clear in their submissions filed 1 September 2017 they abandoned the argument the Court should make the order sought pursuant to that section.
[69] At [25].
The FCC Act so far as is presently relevant provides:
“SECT 88E
Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, the Federal Circuit Court of Australia must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
SECT 88F
Power to make orders
(1)The Federal Circuit Court of Australia may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Federal Circuit Court of Australia or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Federal Circuit Court of Australia; or
(b)information that relates to a proceeding before the Federal Circuit Court of Australia and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Federal Circuit Court of Australia.
(2)The Federal Circuit Court of Australia may make such orders as it thinks appropriate to give effect to an order under subsection (1).
SECT 88G
Grounds for making an order
(1)The Federal Circuit Court of Australia may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.”
The parties’ submissions on the application for a suppression order have been set out earlier.
The importance of courts remaining open to scrutiny by the public is well known. The FCC Act requires proceedings to be heard in open court unless it is contrary to the interests of justice.[70]
[70] See s.13 of the Federal Circuit Court of Australia Act 1999 (Cth).
In submissions filed 11 August 2017 the respondents’ position was it was appropriate to make a suppression order for the purposes of hearing and determining the objection under s.128 as “without so doing” the respondents would “be reasonably deterred from raising arguments in favour of the recognition of the privilege.”
In the submissions filed 1 September 2017 the respondents contended such an order was “necessary to prevent prejudice to the proper administration of justice” as they would be reasonably deterred from raising arguments in favour of the privilege in open court because “making the claim without such an order may itself prompt investigation or prosecution”.
The respondents’ submissions on the reasons for the term and length of any such order have been appropriately summarised in the applicant’s submissions at paragraphs [103] to [106] inclusive. In my view none of the authorities relied on by the respondents in support of the suppression orders sought are analogous to this case.[71]
[71] For example X Y Z v State of Victoria & Anor [2016] VSC 339 the orders were not opposed.
These proceedings have been on foot for some time. The evidence already before the Court makes clear the allegations made against the respondents have already been the subject of publicity and to adopt the language used by the parties the “horse has bolted”. I am not satisfied a real and appreciable risk exists that absent the making of a suppression order the making of arguments in support of the claim of privilege would lead to an increase in the (claimed) jeopardy (which in any event I don’t on the material, as it currently stands, accept exists) to which the respondents are already exposed.
Given the fate of the objection/s raised by the respondents, and that they were intricately connected to the application for a suppression order, on the material before the Court the respondents have not met the heavy onus for such an application and I cannot be satisfied (continuation of the interim order) or such an order is necessary to;
a)prevent prejudice to the proper administration of justice; or
b)prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; or
c)protect the safety of any person; or
d)avoid undue distress or embarrassment to a party to or witness in a criminal proceedings involving an offence of a sexual nature.
For the reasons set out above, the interim order will be discharged, the amended application in a case will be dismissed and the objection/s made by the respondents refused.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 14 November 2017
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