Lee v New South Wales Crime Commission

[2013] HCA 39

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

JASON LEE (AKA DO YOUNG LEE) & ANOR  APPELLANTS

AND

NEW SOUTH WALES CRIME COMMISSION  RESPONDENT

Lee v New South Wales Crime Commission

[2013] HCA 39

9 October 2013

S29/2013

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G A Bashir and S J Free for the appellants (instructed by Nyman Gibson Stewart)

I D Temby QC with E C Muston for the respondent (instructed by New South Wales Crime Commission)

Interveners

J T Gleeson SC, Solicitor-General of the Commonwealth with D F C Thomas for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with N J Adams SC and J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lee v New South Wales Crime Commission

Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.

Words and phrases – "accusatorial system of criminal justice", "derivative use immunity", "direct use immunity", "examination", "fair trial", "principle of legality", "privilege against self-incrimination", "real risk of interference with the administration of justice", "right to silence", "serious crime related activity".

Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.

FRENCH CJ.

Introduction

1. The presumption of innocence, the privilege against self-incrimination and the right to silence are important elements of the "accusatorial system of justice" which generally prevails in the common law world.  The privilege against self‑incrimination reflects the long-standing antipathy of the common law to compulsory interrogations about criminal conduct.  It has been said to be partly a result of "a persistent memory in the common law of hatred of the Star Chamber and its works."[1]  It is recognised as a human right in international instruments, which apply to both the common law and civil law legal traditions[2].  In the United States, the Fifth Amendment has clothed the privilege "with the impregnability of a constitutional enactment"[3]. 

   [1]Rees v Kratzmann (1965) 114 CLR 63 at 80 per Windeyer J; [1965] HCA 49.

   [2]Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 498 per Mason CJ and Toohey J, 513–514 per Brennan J, 532 per Deane, Dawson and Gaudron JJ, 545 per McHugh J; [1993] HCA 74. Article 14(3)(g) of the International Covenant on Civil and Political Rights recognises the right of a person not to be compelled to testify against himself or to confess guilt. The privilege has been judicially interpreted as an element of fair trial procedure guaranteed by Art 6 of the European Convention on Human Rights: Saunders v United Kingdom (1996) 23 EHRR 313 at 337 [68].

   [3]Brown v Walker 161 US 591 at 597 (1896), quoted by Gibbs CJ in Sorby v The Commonwealth (1983) 152 CLR 281 at 292; [1983] HCA 10.

2. Executive governments have found aspects of the accusatorial system an inconvenience in the investigation of criminal conduct.  Parliaments have enacted laws conferring powers on courts and investigative bodies to require persons to answer questions in hearings which may be in public or in private, including questions about whether or not they have engaged in criminal conduct.  Generally speaking, such laws provide that the answers are not admissible in subsequent criminal proceedings, that is to say they provide a "direct use immunity".  However, absent a "derivative use immunity" the answers may be used to discover evidence which is admissible against the person providing the answer.

3. In some cases, a person under statutory examination may already be facing criminal charges and find himself or herself being asked questions touching matters the subject of those charges.  Whether a statute authorises a compulsory interrogation of an accused person in those circumstances is a question of statutory interpretation.  The courts do not interpret a statute to permit such questioning unless it is expressly authorised or permitted as a matter of necessary implication.  When the text, context and purpose of a statute permit a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms.  However, subject to constitutional limits, where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected. 

4. The Parliament of New South Wales has enacted such a law, the Criminal Assets Recovery Act 1990 (NSW) ("CAR Act")[4]. It impinges upon the accusatorial system of criminal justice and, in particular, the privilege against self-incrimination and the right of a person to remain silent when accused of the commission of a crime. Section 31D of the CAR Act provides for the New South Wales Crime Commission ("NSWCC") to apply to the Supreme Court for the examination of persons in aid of confiscation orders, which include assets forfeiture orders, under the CAR Act. The appellants objected to such an examination on the basis that the CAR Act did not authorise their interrogation about conduct in respect of which there are pending criminal charges against them. A Judge of the Supreme Court of New South Wales, Hulme J, relying upon the decision of this Court in Hammond v The Commonwealth[5], refused to make the order sought by the NSWCC[6].  However, the Court of Appeal of the Supreme Court of New South Wales held that the examination was authorised, allowed the appeal against the decision of the primary judge[7], and ordered that the first appellant, Jason Lee, be examined on oath before a registrar concerning his own affairs and that the second appellant, Seong Won Lee, be examined on oath before a registrar concerning the affairs of Jason Lee or Elizabeth Park.  The principal judgment was written by Basten JA, with whom Beazley, McColl and Macfarlan JJA agreed.  Meagher JA wrote separate concurring reasons.  The appellants have appealed by special leave to this Court[8]. The primary question of construction on the appeal was whether s 31D would authorise an order for the examination of a person touching the subject matter of criminal charges pending against that person. Assuming the answer to that question was in the affirmative, the second question was whether the Supreme Court had a discretion to refuse to make such an order. As a matter of implication the CAR Act does authorise an order for the making of an examination of a person on matters the subject of criminal charges pending against that person. There is a discretion in the Court to refuse to make such an order. There was no submission that the exercise of the discretion by the Court of Appeal miscarried. The appeal should be dismissed.

   [4]The legislative history of the CAR Act, the history of civil and criminal assets forfeiture laws generally, and similar laws of the Commonwealth and other States are outlined in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 344–345 [25]–[29] per French CJ; [2009] HCA 49.

   [5](1982) 152 CLR 188; [1982] HCA 42.

   [6]New South Wales Crime Commission v Lee [2011] NSWSC 80.

   [7]New South Wales Crime Commission v Lee [2012] NSWCA 276.

   [8][2013] HCATrans 027.

   The CAR Act — an overview

5. More extensive accounts of the scheme and content of the CAR Act appear in the other judgments. It is sufficient for present purposes to direct attention to its salient features.

6. The first of the principal objects of the CAR Act is[9]:

   [9]CAR Act, s 3(a).

   "to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities".

   The last of the principal objects is "to enable law enforcement authorities effectively to identify and recover property."[10]  The term "serious crime related activities", appearing in the first principal object, when applied to a person, encompasses[11]:

   [10]CAR Act, s 3(c).

   [11]CAR Act, s 6(1).

   "anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged:

   (a)      has been tried, or

   (b)      has been tried and acquitted, or

   (c)has been convicted (even if the conviction has been quashed or set aside)."

   The term "serious criminal offence" covers a wide range of offences including drug trafficking[12] and money laundering[13]. As appears from the first principal object and the definition of "serious crime related activity", it is an object of the CAR Act that the procedures it creates for the identification and confiscation of property be capable of application to a person who has been charged with a serious criminal offence whether or not the person so charged has been tried. That conclusion was reinforced by s 62 of that Act, which provided for the Supreme Court to make orders with respect to the publication of any matters arising under the CAR Act in cases in which:

   •a person has been charged with an offence in relation to a serious crime related activity and proceedings on that charge have not commenced or, if the proceedings have commenced, they have not been completed; and

   •proceedings are instituted under the CAR Act for a restraining order, or an assets forfeiture order, affecting an interest of the person in property, or for a proceeds assessment order or an unexplained wealth order against the person.

   That section was repealed by the Court Suppression and Non‑publication Orders Act 2010 (NSW)[14] and replaced by s 8 of that Act, which commenced on 1 July 2011.

   [12]CAR Act, s 6(2)(b).

   [13]CAR Act, s 6(2)(d).

   [14]Sched 2.2.

7. The proposition that the procedures created by the CAR Act are capable of application to persons who have been charged with criminal offences is reinforced by s 63 of the CAR Act, which provides:

   "The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings."

   The appellants submitted that s 63 has a narrow operation and does no more than preclude the Court from relying upon the fact of the institution of criminal proceedings as a ground for a stay of proceedings under the CAR Act. Its narrow operation would not prevent the Court from staying or adjourning proceedings on the basis of particular circumstances and risk of prejudice arising in relation to pending criminal proceedings. Importantly, s 63 rests upon the premise that proceedings under the CAR Act may be instituted or in train at the same time as criminal proceedings touching the same matter. It strengthens the inference that a purpose of the CAR Act is to enable, although not to require, the proceedings for which it provides to be instituted and undertaken notwithstanding the subsistence of a cognate criminal prosecution. That purpose necessarily extends to substantive and ancillary processes.

8. The substantive processes for which the CAR Act provides are applications to the Supreme Court of New South Wales for "confiscation orders". The term "confiscation order" covers three classes of order[15]:

   •          an assets forfeiture order[16];

   •          a proceeds assessment order[17];

   •          an unexplained wealth order[18].

   An assets forfeiture order, in respect of an interest in property of a person, is mandated if the Court finds it to be more probable than not that the person was, at any time not more than six years before the making of the application, engaged in a serious crime related activity involving an offence punishable by imprisonment for five years or more[19].  The Court is not required to make a finding as to the commission of a particular offence[20].  A finding which grounds the making of an assets forfeiture order may be based on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for five years or more was committed[21].

   [15]CAR Act, s 4(1).

   [16]CAR Act, s 22.

   [17]CAR Act, s 27.

   [18]CAR Act, s 28A.

   [19]CAR Act, s 22(2)(b). An alternative criterion mandating an assets forfeiture order is satisfied by a finding on the balance of probabilities that the person engaged in a serious crime related activity involving an indictable quantity of a prohibited plant or drug under the Drug Misuse and Trafficking Act 1985 (NSW): s 22(2)(a), read with the definition of "indictable quantity" in s 4(1).

   [20]CAR Act, s 22(3).

   [21]CAR Act, s 22(3)(a).

9. Similar criteria apply in relation to the making of proceeds assessment orders[22] and unexplained wealth orders[23].  A proceeds assessment order requires a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity or illegal activities of the person or another person that took place not more than six years before the making of the application for the order[24]. The "unexplained wealth" of a person is defined in the CAR Act as[25]:

   "the whole or any part of the current or previous wealth of the person that the Supreme Court is not satisfied on the balance of probabilities is not or was not illegally acquired property or the proceeds of an illegal activity."

   An unexplained wealth order requires a person "to pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of the person."[26]

   [22]CAR Act, s 27(2).

   [23]CAR Act, s 28A(2).

   [24]CAR Act, s 27(1).

   [25]CAR Act, s 28B(2).

   [26]CAR Act, s 28A(1).

10. It is a consequence of the definition of "serious crime related activity", mentioned earlier, that the substantive court processes outlined may be invoked against persons who have been charged with and are awaiting trial for serious criminal offences. This case is concerned with an ancillary process under s 31D of the CAR Act, the scope of which must be considered having regard to the substantive processes which it serves. Section 31D authorises the Court to make orders for the examination on oath of persons concerning their affairs or the affairs of another person, including the nature and location of any property in which such persons have an interest. The construction and application of s 31D in relation to persons who have been charged with and are awaiting trial for serious criminal offences is in issue. It is necessary now to refer to the relevant parts of the text of the section and other parts of the Act which affect the exercise of the power which the section confers on the Supreme Court.

    The examination provisions

11. Part 3 of the CAR Act is entitled "Confiscation". Division 2B, which consists only of s 31D, is entitled "Ancillary orders relating to confiscation orders". Section 31D(1) provides:

    "(1)If an application is made for a confiscation order … the Supreme Court may, on application by the Commission, when the application for the confiscation order … is made or at a later time, make any one or more of the following orders:

    (a)      an order for the examination on oath of:

    (i)the affected person, or

    (ii)another person,

    before the Court, or before an officer of the Court prescribed by rules of court, concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest,

    …

    (3)Sections 13 and 13A apply in respect of a person being examined under an order under this section in the same way as they apply in respect of a person being examined under an order under section 12(1)."

12. Section 12 is ancillary to the power of the Supreme Court, conferred by s 10A of the CAR Act, to make restraining orders in respect of property or an interest in property[27].  That section empowers the Supreme Court, when it makes a restraining order and at any later time, to "make any ancillary orders … that the Court considers appropriate"[28].  Without limiting the generality of that power, it authorises the Court to make an order for the examination on oath of the owner of an interest in property that is subject to the restraining order, or another person, "concerning the affairs of the owner, including the nature and location of any property in which the owner has an interest"[29].

    [27]That power, then contained in s 10, was considered in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319. The CAR Act has since been amended to authorise the Supreme Court to direct that notice be given to an affected person notwithstanding that an application for a restraining order is made ex parte: CAR Act, s 10A(4).

    [28]CAR Act, s 12(1).

    [29]CAR Act, s 12(1)(b).

13. For the purposes of an examination under s 12, ss 13 and 13A abrogate obligations of confidentiality[30], legal professional privilege[31] and the privilege against self-incrimination[32]. They also apply, by operation of s 31D(3), in respect of a person being examined under an order made pursuant to s 31D(1). Section 13A, which abrogates the privilege against self-incrimination, also provides for direct use immunity in respect of answers given or documents produced by the person examined where he or she objected at the time of answering the question or producing the document on the ground that the answer or document might incriminate the person[33].  However, further information obtained as a result of an answer given or a document produced in an examination is not inadmissible on the ground that the answer had to be given or the document had to be produced or that the answer given or the document produced might incriminate the person[34]. The protection afforded by s 13A(2) is therefore limited to direct use immunity and does not extend to derivative use immunity.

    [30]CAR Act, s 13(1)(b).

    [31]CAR Act, s 13(1)(c).

    [32]CAR Act, s 13A(1).

    [33]CAR Act, s 13A(2)(a).

    [34]CAR Act, s 13A(3).

14. The appellants made a general submission that the exposure of an accused person to a compulsory examination touching the subject matter of the charge which that person was facing could give rise to unfair disadvantage in the criminal proceedings.  It would give rise to a risk that the prosecution would have foreknowledge of defences or explanations for transactions the subject of the criminal charge[35]. In effect, this was a complaint that the compulsory examination process would deprive an accused person of some of the protections conferred by the accusatorial system of criminal justice. That may be accepted, at least in principle. The question is whether s 31D of the CAR Act, properly construed, empowers the Supreme Court to make an order for the examination of a person notwithstanding that the examination may touch matters the subject of pending criminal charges against the person. That question directs attention to a number of decisions in this Court concerning compulsory examinations relating to criminal offences, including the recent decision in X7 v Australian Crime Commission[36].  In such cases, as in this case, when the scope of the examination power is in issue, its objects and character must be considered. 

    [35]The appellants referred in this connection to observations of the Court of Criminal Appeal of New South Wales in R v Seller (2013) 273 FLR 155.

    [36](2013) 87 ALJR 858; 298 ALR 570; [2013] HCA 29.

1. The Australian Crime Commission Act 2002 (Cth) ("ACC Act"), which was the subject of this Court's decision in X7, was directed to the gathering and dissemination of criminal information and intelligence by an executive authority.  As pointed out in the joint judgment of Hayne and Bell JJ in that case, the only investigative function given to the Australian Crime Commission ("ACC") under the Act was the investigation, when authorised by the ACC Board, of "matters relating to federally relevant criminal activity"[37]. The term "federally relevant criminal activity" used in the ACC Act is the closest equivalent to the term "serious crime related activity" used in the CAR Act. The term "relevant criminal activity" is defined in the ACC Act to mean[38]:

   "any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory."

   The term "relevant crime" includes "serious and organised crime" but the definition of that term, although inclusive, did not expressly cover matters the subject of pending charges. The general provisions of s 25A(12) and (13), which allowed for evidence given in an examination under the ACC Act to be made available to persons charged with offences, did not expressly cover the case in which the evidence had been given by the person charged. There was, as Hayne and Bell JJ observed in their joint judgment in X7, "no express reference, anywhere in the ACC Act, to examination of a person who has been charged with, but not tried for, an offence about the subject matter of the pending charge."[39]  Words sufficiently general to include such a case had been used, but they did not deal directly or expressly with it[40]. However, the objects and character of a compulsory examination under the ACC Act differ materially from the objects and character of a compulsory examination under the CAR Act as the text of the ACC Act differs materially from that of the CAR Act.

   [37]ACC Act, s 7A(c) and see X7 v Australian Crime Commission (2013) 87 ALJR 858 at 890–891 [144]; 298 ALR 570 at 609.

   [38]ACC Act, s 4(1).

   [39](2013) 87 ALJR 858 at 880 [83]; 298 ALR 570 at 594.

   [40](2013) 87 ALJR 858 at 880 [83]; 298 ALR 570 at 594–595.

2. Before turning to the earlier decisions of this Court, it is desirable to outline briefly the history of proceedings in the Supreme Court of New South Wales which have led to this appeal.

   Proceedings in the Supreme Court

3. More comprehensive accounts of the proceedings in the Supreme Court of New South Wales appear in the other reasons for judgment.  It is sufficient for present purposes to refer briefly to the history of those proceedings:

   •On 28 February 2011, Hulme J declined to make orders sought by way of notice of motion by the NSWCC under s 31D of the CAR Act for the examination of the appellants[41].  He did so on the basis that the appellants had been charged with criminal offences and that the proposed examination would expose them to questioning about matters relevant to the charges[42].  His Honour held[43] that the matter was governed by the decision of this Court in Hammond[44], which is discussed later in these reasons.  The NSWCC sought leave to appeal to the Court of Appeal against his Honour's decision. 

   •At the time of the NSWCC's application for leave to appeal, the appellants had each been convicted of drug and firearm offences.  They had lodged appeals against their convictions which were listed for hearing on 23 August 2012[45].  In relation to the first appellant, a separate trial for money laundering was listed for 2 October 2012. 

   •On 6 September 2012, the Court of Appeal granted leave to appeal and allowed the appeal.  The Court ordered that the first appellant, Jason Lee, be examined on oath before a registrar concerning his own affairs, including the nature and location of any property in which he has an interest.  It ordered that the second appellant, Seong Won Lee, be examined on oath before a registrar concerning the affairs of the first appellant, Jason Lee, or Elizabeth Park, including the nature and location of any property in which the first appellant, Jason Lee, or Elizabeth Park has an interest. 

   •On 15 February 2013, this Court (Heydon, Bell and Gageler JJ) granted the appellants special leave to appeal to this Court from the whole of the judgment and order of the Court of Appeal of the Supreme Court of New South Wales.  

   [41]His Honour made no order formally dismissing the motion. That oversight was rectified in the Court of Appeal, which made the requisite order before allowing the appeal and setting that order aside: [2012] NSWCA 276 at [15]–[16].

   [42][2011] NSWSC 80 at [19].

   [43][2011] NSWSC 80 at [20].

   [44](1982) 152 CLR 188.

   [45][2012] NSWCA 276 at [4].

   Compulsory examination concerning criminal offences

4. The proposition is well established that, subject to statutory constraints, Australian governments, in the exercise of executive power, can establish inquiries for the purpose of determining whether an individual has committed a criminal offence.  Whether such inquiries could be conducted at common law was the subject of an "ancient controversy which has ... been put to rest in Australia."[46]  Dixon J, with close attention to legal history, said in McGuinness v Attorney-General (Vict)[47]:

   "while the principle that the Crown cannot grant special commissions, outside the ancient and established instruments of judicial authority, for the taking of inquests, civil or criminal, extends to inquisitions into matters of right and into supposed offences, the principle does not affect commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos."

   Other members of the Court reached a similar conclusion[48].  In so holding, the Court followed what it had said earlier in its life in Clough v Leahy[49].  An attempt to revive the "ancient controversy" was rejected in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation ("the BLF case")[50].

   [46]Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 48 per Gibbs CJ; [1982] HCA 31.

   [47](1940) 63 CLR 73 at 102; [1940] HCA 6.

   [48](1940) 63 CLR 73 at 83–84 per Latham CJ, 86 per Rich J relevantly concurring, 91 per Starke J, 106 per McTiernan J.

   [49](1904) 2 CLR 139 at 159–160 per Griffith CJ, Barton and O'Connor JJ concurring at 163; [1904] HCA 38.

   [50](1982) 152 CLR 25.

5. Nevertheless, as pointed out by Griffith CJ in Clough, while a Royal Commission created under the prerogative power of a State executive government or under s 61 of the Commonwealth Constitution can inquire into the commission of criminal offences, such an inquiry cannot be conducted so as to interfere with the administration of justice. Conduct interfering with the administration of justice would not be protected on the basis that it was done on behalf of the Crown under the authority of a Royal Commission[51].  Latham CJ, in McGuinness, after quoting Griffith CJ, said[52]:

   "If, for example, a prosecution for an offence were taking place, the establishment of a Royal Commission to inquire into the same matter would almost certainly be held to be an interference with the course of justice and consequently to constitute a contempt of court.  There are other circumstances in which such an inquiry might prejudice proceedings in the civil or the criminal courts.  It is neither necessary nor desirable to attempt to enumerate in an exhaustive manner the circumstances which might raise a case of contempt of court."

   None of the other Justices in McGuinness advanced a view contrary to that of Latham CJ and that proposition is not controversial in this appeal.  It was reflected in the observation by Gibbs CJ in the BLF case, which he repeated in Hammond[53], that[54]:

   "if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, speaking generally, amount to a contempt of court".

   The reference to "contempt of court" identifies the basis of the Hammond decision — interference with the administration of justice by a non-judicial body.  That is not this case.

   [51](1904) 2 CLR 139 at 161.

   [52](1940) 63 CLR 73 at 85.

   [53](1982) 152 CLR 188 at 198.

   [54](1982) 152 CLR 25 at 54.

6. Clough and McGuinness concerned the extent of the executive power to establish and conduct inquiries.  In Clough, the Court held that a statute could be enacted to require a person to be sworn and to answer questions at a validly constituted Royal Commission and to make it an offence to refuse to do so without reasonable excuse.  Absent such statutory support, the effectiveness of the inquiry, lacking coercive power, would have been limited[55].  As Ferguson J, in Ex parte Walker[56], said of a Royal Commissioner without statutory powers, "[l]ike Glendower he 'can call spirits from the vasty deep', and they are unlikely to come when he does call."[57]  The Royal Commission in McGuinness, which was created pursuant to the prerogative by the Executive Government of Victoria, was empowered by the Evidence Act 1928 (Vic) to summon witnesses to answer questions material to the subject matter of its inquiry[58].  Clearly enough, a Royal Commission which, without clear statutory authority, inquired into allegations of criminal conduct the subject of pending charges would be at risk of committing a contempt of the court in which the charges were pending.  The question whether such an inquiry could be conducted by any executive body would turn upon the scope of the powers conferred upon it by statute.  That would be a matter of construction.  A point of reference for the construction of such statutes is that class of statute which abrogates the privilege against self-incrimination.  It may be accepted, as McHugh J observed in Environment Protection Authority v Caltex Refining Co Pty Ltd[59]:

   "that the privilege against self-incrimination is a natural, although not a necessary, consequence of the adversary system."

   As Deane, Dawson and Gaudron JJ put it in their partly dissenting joint judgment, the right of an accused person to refrain from giving evidence and to avoid answering incriminating questions is explained by the principle, fundamental in the criminal law:

   "that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way."[60]

   That being so, the interaction of that broad principle with the interpretation of a statute said to qualify or abrogate its application raises questions analogous to those raised in the interpretation of a statute which is said to qualify or abrogate the privilege against self-incrimination.

   [55](1904) 2 CLR 139 at 159–160.

   [56](1924) 24 SR (NSW) 604.

   [57](1924) 24 SR (NSW) 604 at 615.

   [58]The existence of such statutory powers, as Dixon J observed in McGuinness, was not relevant to the validity of the Royal Commission: (1940) 63 CLR 73 at 94, 99.

   [59](1993) 178 CLR 477 at 550.

   [60](1993) 178 CLR 477 at 527.

7. The constitutional validity of a Commonwealth law conferring a power of compulsory interrogation which might abrogate the privilege against self‑incrimination was considered in 1909 in Huddart, Parker & Co Pty Ltd v Moorehead ("Huddart Parker")[61]. Abrogation of the privilege by the exercise of the power conferred upon the Comptroller-General of Customs by s 15B of the Australian Industries Preservation Act 1906 (Cth) was held not to interfere with the right to trial by jury provided for in s 80 of the Constitution. Griffith CJ pointed out that the privilege had entered English law long after trial by jury and that its application had frequently been excluded by statutes in the case of indictable offences. It was a rule that was "rather one of evidence than one relating to trial by jury."[62]  Barton J agreed on that point[63].  Neither suggested it was simply a rule of evidence[64].  O'Connor J acknowledged that the principle had been "a principle of British criminal law, departed from no doubt in special instances, as in the case of offences against the bankruptcy laws, but still maintained and administered as part of the great body of British criminal jurisprudence."[65]  It was, however, "no part of the system of trial by jury."[66]  Subject to constitutional limits, Parliament had the power to modify "any principle of British criminal law, no matter how fundamental"[67]. Isaacs J also rejected the argument that s 15B interfered with trial by jury. He went further than Griffith CJ and Barton J, however, and characterised the privilege as "a mere evidentiary rule, applicable to all criminal offences ... and open like all rules of evidence to Parliamentary regulation."[68] Higgins J concurred with what the other Justices had said on the question of s 15B[69].

   [61](1909) 8 CLR 330; [1909] HCA 36.

   [62](1909) 8 CLR 330 at 358.

   [63](1909) 8 CLR 330 at 366.

   [64]A proposition expressly rejected in Reid v Howard (1995) 184 CLR 1; [1995] HCA 40, discussed below.

   [65](1909) 8 CLR 330 at 375.

   [66](1909) 8 CLR 330 at 375.

   [67](1909) 8 CLR 330 at 375.

   [68](1909) 8 CLR 330 at 386.

   [69](1909) 8 CLR 330 at 418.

8. What was said in Huddart Parker on the question of trial by jury was reiterated in Sorby v The Commonwealth[70].  Gibbs CJ agreed "that the privilege against self-incrimination is not a necessary part of a trial by jury."[71]  Mason, Wilson and Dawson JJ quoted and adopted with approval the passage from the judgment of O'Connor J referred to above[72].

   [70](1983) 152 CLR 281.

   [71](1983) 152 CLR 281 at 298.

   [72](1983) 152 CLR 281 at 308–309.

9. In rejecting a submission that s 15B conferred a power in aid of judicial proceedings, O'Connor J in Huddart Parker made reference to the effect of pending criminal proceedings.  He said[73]:

   "When the Comptroller makes his requirement under 15B there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this Court by the Constitution."

   Gibbs CJ pointed out in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission[74] that the first two sentences in that passage were statements of the effect of s 15B on its proper construction, supported by the proposition in the third sentence that if the power were used once a prosecution had been commenced there might be an interference in the course of justice in the tribunal in which the prosecution was pending[75]. His Honour's analysis was generally consistent with the approach which had been taken to s 15B a few years after Huddart Parker in Melbourne Steamship Co Ltd v Moorehead[76].

   [73](1909) 8 CLR 330 at 379–380.

   [74](1982) 152 CLR 460; [1982] HCA 65.

   [75](1982) 152 CLR 460 at 466.

   [76](1912) 15 CLR 333 at 341 per Griffith CJ, 346 per Barton J, 350 per Isaacs J; [1912] HCA 69. See the reference to Melbourne Steamship by Gibbs CJ in Pioneer Concrete (1982) 152 CLR 460 at 466–467.

10. The privilege against self-incrimination is not an essential element of the process of trial by jury.  On the other hand, contrary to what Isaacs J said in Huddart Parker, it is not "a mere evidentiary rule".  As this Court has emphatically held, it is "a basic and substantive common law right."[77]  It is distinct from but supports the presumption of innocence[78].  That connection was succinctly expressed by Gibbs CJ in Sorby[79]:

    "It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt."

    [77]X7 v Australian Crime Commission (2013) 87 ALJR 858 at 883 [104]; 298 ALR 570 at 599 per Hayne and Bell JJ, quoting Reid v Howard (1995) 184 CLR 1 at 11 per Toohey, Gaudron, McHugh and Gummow JJ; Kiefel J generally agreeing: 87 ALJR 858 at 892 [157]; 298 ALR 570 at 612. See also Petty v The Queen (1991) 173 CLR 95 at 99 per Mason CJ, Deane, Toohey and McHugh JJ, 106 per Brennan J; [1991] HCA 34.

    [78]X7 v Australian Crime Commission (2013) 87 ALJR 858 at 883 [102]; 298 ALR 570 at 599; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 503 per Mason CJ and Toohey J.

    [79](1983) 152 CLR 281 at 294 — a passage quoted by Deane, Dawson and Gaudron JJ in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 527. Although their Honours were in dissent in the result, the passage quoted was consistent with the reasoning of the majority.

11. The practical significance of a non-judicial, non-compulsory inquiry of persons charged with criminal offences was the subject of obiter observations in R v Macfarlane; Ex parte O'Flanagan and O'Kelly[80]. Section 8A of the Immigration Act 1901 (Cth) authorised a Board created under that Act to require a person to show cause why he or she, having been charged with a criminal offence, should not be deported. There was discussion in the judgments about whether injunctive relief would lie if, contrary to the fact, a constitutional challenge to the validity of s 8A had been successful. On that hypothesis, all of the Justices save for Higgins and Starke JJ would have granted injunctive relief because of the prejudice which would otherwise have been suffered by the plaintiffs. That prejudice was framed in terms of the "practical compulsion" which the plaintiffs would face before the Board to disclose their case against the criminal charges in order to avoid deportation[81].  Higgins J abstained from comment on the question of relief[82].  Starke J doubted that injunctive relief would be appropriate.  He accepted that unauthorised proceedings before the Board would probably prejudice the plaintiffs, but said[83]:

    "The King's Courts in the States are, as it seems to me, armed with ample powers to secure fair trials and the proper administration of justice in proceedings pending in the States, and to deal with persons within their territorial limits who, without any lawful authority, interfere with or obstruct those proceedings."  (footnote omitted)

    There was evidently no provision restricting the dissemination or use of any disclosure made to the Board.  As a general proposition, the nature and extent of the prejudice to a person required to answer questions concerning matters the subject of pending criminal charges will depend in part upon the statutory context and, in particular, the protections which the statute affords in relation to the use which may be made of answers provided by the examinee.  The extent of the prejudice may also depend upon whether, as in the present case, the examination is conducted by a judicial officer and the extent of the judicial officer's discretion to control and supervise the examination so as to limit prejudice to the examinee. 

    [80](1923) 32 CLR 518; [1923] HCA 39.

    [81](1923) 32 CLR 518 at 540 per Isaacs J, see also at 529–530 per Knox CJ, 578 per Rich J.

    [82](1923) 32 CLR 518 at 568.

    [83](1923) 32 CLR 518 at 584.

1. The interaction between administrative investigations and pending curial proceedings was briefly considered by Fullagar J, sitting alone, on an application for interim injunctive relief in Lockwood v The Commonwealth[84].  His Honour rejected a submission that the continuance of the Petrov Royal Commission in relation to a witness who had instituted defamation proceedings in this Court against senior counsel assisting the inquiry would be a contempt of this Court.  He also rejected the general proposition that a Royal Commission could not inquire into and report upon a matter which was the subject of pending civil or criminal proceedings[85].  He said[86]:

   "The short answer to the whole argument seems to me to be that this commission is authorized and required, in pursuance of a statute, to undertake the inquiry in which it is engaged.  No court could hold, in any circumstances which I find it possible to envisage, that what is expressly authorized by or under a statute is a contempt, and it is a rule of the common law that the common law itself gives way to statute law."

   [84](1954) 90 CLR 177; [1954] HCA 31.

   [85](1954) 90 CLR 177 at 185.

   [86](1954) 90 CLR 177 at 185. Fullagar J also said, at 186, that McGuinness suggested that the position would have been the same if the Commission had been appointed without statutory authority.  The generality of that observation was not accepted in the BLF case: (1982) 152 CLR 25 at 130–131 per Wilson J.

2. Lockwood was distinguished by Gibbs CJ, Stephen and Mason JJ in the BLF case on the basis that Fullagar J's observations had been made in the context of a statute specifically authorising the particular inquiry — the Royal Commission Act 1954 (Cth), under which the Petrov Royal Commission was purportedly established[87].  That distinction effectively contained the application of the remarks made by Fullagar J to cases in which the empowering statutes expressly authorise conduct which would otherwise be a contempt.  Apart from Gibbs CJ, Stephen and Mason JJ, who distinguished Lockwood on that basis, Wilson J thought the application of Fullagar J's remarks was problematic unless "the precise extent of the express authority to which reference is made" could be determined with confidence[88].  Brennan J did not think that what his Honour had said was correct[89].  Aickin J seemed to support the generality of Fullagar J's remarks.  Referring to the Royal Commissions Act 1902 (Cth), he said[90]:

   "It is difficult to see how that which is expressly authorized by the Parliament can be regarded as capable of being a contempt of court, whether of a federal court or a State court."

   His Honour, however, did not think it necessary to express a final opinion on that point[91]. 

   [87](1982) 152 CLR 25 at 55 per Gibbs CJ, 72 per Stephen J, 94 per Mason J — a distinction which may have been based on a wrong premise. Fullagar J held that the specific purpose 1954 Act only authorised the appointment of a single commissioner. He held that the appointment of the three Petrov Royal Commissioners was supported by the general power conferred by s 1A of the Royal Commissions Act 1902 (Cth): (1954) 90 CLR 177 at 183.

   [88](1982) 152 CLR 25 at 131.

   [89](1982) 152 CLR 25 at 160.

   [90](1982) 152 CLR 25 at 120.

   [91](1982) 152 CLR 25 at 120.

3. What emerged from the critique of Lockwood in the BLF case was the uncontroversial but important proposition that, subject to constitutional constraints, a statute may authorise an investigative body to exercise its functions in circumstances in which, absent such authority, it would commit a contempt of a court.  The kind of statutory authority contemplated by Fullagar J was express.  Such authority might also be found as a matter of necessary implication.

4. A statute said to affect important common law rights and procedural and other safeguards of individual rights and freedoms will be construed "as effecting no more than is strictly required by clear words or as a matter of necessary implication"[92].  That is a formulation, sufficient for present purposes, of the principle of legality, the origins and content of which are discussed in the reasons for judgment of Kiefel J[93] and in the joint reasons for judgment of Gageler and Keane JJ[94].  It is the application rather than the content of that principle which is in issue in this case.  Legislative purpose, text and context have a role to play when considering its application.

   [92]Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252 per Deane, Dawson, Toohey and Gaudron JJ; [1992] HCA 24, citing, in relation to the privilege against self‑incrimination, Hammond v The Commonwealth (1982) 152 CLR 188; Sorby v The Commonwealth (1983) 152 CLR 281 and Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21.

   [93]Judgment of Kiefel J at [171]–[173].

   [94]Judgment of Gageler and Keane JJ at [307]–[312].

5. A construction of a statute as abrogating the privilege against self-incrimination may be required, as a matter of necessary implication, by the clear purpose of the statute.  Walsh J, who wrote the principal judgment in Mortimer v Brown[95], said of s 250 of the Companies Act 1961 (Q), which was held to abrogate the privilege[96]:

   "having regard to the purpose of s 250 and to the public interest which it is intended to serve, the contention should not be accepted that there should be applied to its construction the principle that a statute should not be construed as being intended to take away common law rights unless that intention is specifically stated."

   In similar vein, Dawson J said of the implied abrogation of both the privilege against self-incrimination and legal professional privilege in Corporate Affairs Commission (NSW) v Yuill[97]:

   "Obviously, the more specific the legislation the less difficult it will be to determine whether such an implication is justified, but the character or purpose of the legislation may of itself be a sufficient indication of legislative intent."

   [95](1970) 122 CLR 493; [1970] HCA 4.

   [96](1970) 122 CLR 493 at 499.

   [97](1991) 172 CLR 319 at 332–333, Toohey J agreeing at 337; [1991] HCA 28. See also at 327 per Brennan J, quoting Walsh J in Mortimer v Brown (1970) 122 CLR 493 at 499.

6. The BLF case focussed on whether a general statute could authorise an inquiry, by an executive body, which might be conducted in a way that, absent statutory authority, would constitute an interference with the administration of justice and thereby a contempt of court.  It was contempt of court committed in an executive inquiry which was also in the forefront of consideration in Hammond[98].  That decision is relied upon by the appellants and followed immediately upon this Court's decision in the BLF case[99].  The focus in that case upon contempt of court committed in an executive inquiry puts Hammond in a different category from the present case and also in a somewhat different category from Hamilton v Oades[100], which is referred to later in these reasons and which concerned a compulsory examination in the exercise of a power conferred upon a court.

   [98](1982) 152 CLR 188.

   [99](1982) 152 CLR 25.

   [100](1989) 166 CLR 486.

7. Hammond was concerned with the powers of a Royal Commission to require a witness before it to answer questions touching the subject matter of a criminal charge pending against him.  There was a common assumption by the parties, which was doubted by the Court[101], that the relevant statutory powers abrogated the privilege against self-incrimination.  Although the statutory powers were conferred by provisions of the Royal Commissions Act 1902 (Cth) and the Evidence Act 1958 (Vic), the Court did not, in terms, construe those provisions. The ground of the application to restrain the Royal Commissioner from examining the plaintiff in connection with the criminal offence with which he was charged was that it would constitute a contempt of the County Court, before which the criminal proceedings against the plaintiff were then pending[102].  The silent premise of the case seems to have been an assumption that, properly construed, the statutory powers in issue did not authorise conduct by the Royal Commission which would, absent such authority, constitute an interference with the administration of justice amounting to a contempt of court.  The question upon which the Court focussed was whether the continued examination would constitute such a contempt.

   [101](1982) 152 CLR 188 at 197–198 per Gibbs CJ, 199 per Mason J agreeing, 199 per Murphy J generally agreeing.

   [102](1982) 152 CLR 188 at 196 per Gibbs CJ.

8. The criterion for relief, as stated by Gibbs CJ, was whether there was "a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention"[103].  The Chief Justice held that although the proposed examination would be conducted in private and although the plaintiff's answers to the questions could not be used at the criminal trial, there was "a real risk that the administration of justice [would] be interfered with."[104]  His Honour said[105]:

   "the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence."

   Gibbs CJ referred to what he had said in the BLF case that the continuance, after the commencement of a criminal prosecution, of an inquiry into allegations that the accused person had been guilty of criminal conduct would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry[106].  Mason J agreed with Gibbs CJ[107], as did Murphy J[108], who nevertheless wrote a separate judgment on the issue of the privilege against self‑incrimination and whether the proposed examination would interfere with the plaintiff's right to trial by jury under s 80.

   [103](1982) 152 CLR 188 at 196.

   [104](1982) 152 CLR 188 at 198.

   [105](1982) 152 CLR 188 at 198.

   [106](1982) 152 CLR 188 at 198.

   [107](1982) 152 CLR 188 at 199.

   [108](1982) 152 CLR 188 at 199.

9. Brennan J supported the grant of injunctive relief on the basis that it was[109]:

   "a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged."

   His Honour spoke of statutory power in a way that, unlike the other Justices, was indicative of an underlying restrictive interpretive principle[110]:

   "Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice."

   That observation did not itself, however, involve a construction of the provisions conferring the powers in issue in that case.

   [109](1982) 152 CLR 188 at 202–203.

   [110](1982) 152 CLR 188 at 203.

10. Deane J said that it was fundamental to the administration of criminal justice that a person the subject of pending criminal proceedings should not have his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with coercive powers[111].  Such an investigation was "an improper interference with the due administration of justice in the proceedings against [the accused] in the criminal court and contempt of court."[112] 

    [111](1982) 152 CLR 188 at 206.

    [112](1982) 152 CLR 188 at 206.

11. Gibbs CJ, in Sorby[113], described Hammond as a case in which there had been a "real possibility" of interference with the due administration of justice in the continuance of the examination[114].  The plurality in Sorby said that the examination in Hammond had amounted to a contempt of court[115].  Brennan J regarded Hammond as illustrative of the modern vitality of the common law's traditional objection to compulsory interrogation[116].  In the end, Hammond is a case which is of limited utility in the present appeal. It involved an investigation by an executive body, exercising powers conferred by statutes which differed significantly from the statute in issue in this appeal. It did not concern an examination subject to judicial control and discretion of the kind available under the CAR Act. The Court of Appeal in the present case held that the primary judge's reliance upon Hammond was in error[117].  It was correct so to hold. 

    [113](1983) 152 CLR 281.

    [114](1983) 152 CLR 281 at 299.

    [115](1983) 152 CLR 281 at 306.

    [116](1983) 152 CLR 281 at 318.

    [117][2012] NSWCA 276 at [58], [67].

12. In Sorby, the Court held that s 6A of the Royal Commissions Act 1902 (Cth), introduced into the Act by the Royal Commissions Amendment Act 1982 (Cth), validly abrogated the privilege against self-incrimination for witnesses appearing before a Commission under that Act. The section expressly preserved the privilege in cases in which the answer to a question might tend to incriminate a person in respect of an offence with which the person had been charged where the charge had not been finally dealt with by a court or otherwise disposed of[118]. A submission was nevertheless made that the abrogation of the privilege against self-incrimination by s 6A of the Royal Commissions Act effected an impermissible interference with the administration of justice.  The plurality rejected that submission and distinguished Hammond, observing that[119]:

    "It is of the essence of contempt of court, except contempt scandalizing the court, that it be committed in relation to proceedings."

    Even the strong probability that a witness before a Royal Commission would be charged with an offence provided "an unlikely basis for a finding of contempt against the Commission in the event that the witness is questioned about matters which are relevant to the offence."[120]  Gibbs CJ enunciated an interpretive principle, saying that, if the legislature intended to render the privilege against self-incrimination unavailable, "it must manifest clearly its intention to do so."[121]  That reflected his Honour's view of the privilege as supportive of the "cardinal principle" that the burden of proof of guilt of a person charged with a criminal offence rests upon the Crown[122].  That cardinal principle, and the privilege which supports it, are central to, although not exhaustive of, the accusatorial character of criminal proceedings as described in X7[123].

    [118]Royal Commissions Act 1902 (Cth), s 6A(3).

    [119](1983) 152 CLR 281 at 306.

    [120](1983) 152 CLR 281 at 307.

    [121](1983) 152 CLR 281 at 295.

    [122](1983) 152 CLR 281 at 294.

    [123](2013) 87 ALJR 858 at 883 [101] per Hayne and Bell JJ; 298 ALR 570 at 598.

13. Long-standing examples of the displacement of the privilege against self‑incrimination may be found in statutes providing for compulsory examination of persons before judicial officers under bankruptcy and corporate insolvency laws.  This reflects a public policy choice of the kind adverted to by Windeyer J in Rees v Kratzmann[124]:

    "If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy."

    That is a proposition of general application beyond the field of bankruptcy and corporate insolvency.  Importantly, the existence of the power in those fields was subject to judicial control to ensure that the examination was "not made an instrument of oppression, injustice, or of needless injury to the individual."[125]

    [124](1965) 114 CLR 63 at 80.

    [125](1965) 114 CLR 63 at 66 per Barwick CJ, see also at 78 per Menzies J, 74 per Taylor J agreeing, 80–81 per Windeyer J.

14. The proposition that s 250 of the Companies Act 1961 (Q) abrogated the privilege against self-incrimination was accepted in Mortimer[126].  Barwick CJ said[127]:

    "The common law cannot maintain a right in the citizen to refuse to make incriminating answers in the face of a statute which by its expression clearly intends, as does the present, that all questions allowed to be put shall be answered."

    Walsh J observed that the character and purpose of s 250 were such that a construction which would curtail its operation in the manner and for the reasons suggested ought not to be adopted. Referring back to Rees, Walsh J pointed to the feature of judicial control[128]:

    "Although the need was recognized to take into account, when construing the provision, any infringement of individual rights and any injustice which could be caused by it, the provision was regarded as containing a safeguard against these evils, because it entrusted the control of the proceedings to a judge."

    [126](1970) 122 CLR 493.

    [127](1970) 122 CLR 493 at 495.

    [128](1970) 122 CLR 493 at 499.

15. It is an important feature of the CAR Act, as it was of the provisions for examination considered in Rees and Mortimer, that the examination for which s 31D provides is a judicial process to be carried out pursuant to an order of the Supreme Court "before the Court, or before an officer of the Court prescribed by rules of court"[129].  The legislature having conferred the function of examination in aid of confiscation orders upon the Supreme Court, it may safely be inferred, as the majority observed in Mansfield v Director of Public Prosecutions (WA)[130], that in the absence of express words to the contrary or of reasonably plain intendment, it takes the court as it finds it with all its incidents[131].  As Gaudron J said in Knight v FP Special Assets Ltd[132], in words approved by the majority in Mansfield[133]:

    "Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle ...  The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse."

    [129]See Rees v Kratzmann (1965) 114 CLR 63 at 66 per Barwick CJ, 78 per Menzies J, 74 per Taylor J agreeing, 80–81 per Windeyer J.

    [130](2006) 226 CLR 486; [2006] HCA 38.

    [131](2006) 226 CLR 486 at 491 [7] per Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ, citing Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554 at 560; [1956] HCA 22.

    [132](1992) 174 CLR 178 at 205; [1992] HCA 28.

    [133](2006) 226 CLR 486 at 492 [10] — a case concerning the exercise of functions by the Supreme Court of Western Australia under the Criminal Property Confiscation Act 2000 (WA).

16. As was pointed out by Basten JA in the Court of Appeal, an examination under s 31D attracts the powers of the Supreme Court under the Uniform Civil Procedure Rules and its inherent power to supervise and control its own processes and to ensure that they are not abused[134].  Those powers include the power to take appropriate action to prevent injustice[135]. Basten JA correctly observed that if a real risk of prejudice were perceived in the conduct of the examination, the examining judicial officer would have powers available to diminish or prevent that prejudice to the extent that it is beyond the prejudice authorised by the CAR Act[136].

    [134][2012] NSWCA 276 at [53].

    [135]Hamilton v Oades (1989) 166 CLR 486 at 502–504 per Deane and Gaudron JJ; Jago v District Court of New South Wales (1989) 168 CLR 23 at 25 per Mason CJ, 75 per Gaudron J; [1989] HCA 46; Dietrich v The Queen (1992) 177 CLR 292 at 364 per Gaudron J; [1992] HCA 57.

    [136][2012] NSWCA 276 at [81].

1. It should be acknowledged that, unlike the present case, the examination provision in question in Mortimer expressly permitted the notes of the examination to be used in evidence in any legal proceedings against the examinee[137].  Mortimer was described by Mason CJ in Hamilton[138] as "a striking illustration of statutory abrogation of the privilege [against self-incrimination] where the intention to abrogate was ascertained by necessary implication."[139]  The necessary implication flowed from the evident purpose of the provision.

   [137](1970) 122 CLR 493 at 501.

   [138](1989) 166 CLR 486.

   [139](1989) 166 CLR 486 at 495.

2. Hamilton is much closer to this case than Hammond.  As the appellants' counsel submitted, it is not an authority to the contrary of Hammond.  It is a different case.  It concerned a compulsory examination of a director of a company in liquidation by an officer of the court under s 541 of the Companies (New South Wales) Code.  The director was facing a number of criminal charges arising out of his association with the company.  Accepting that such an examination might amount to an interference with the administration of criminal justice, Mason CJ referred back to Hammond and Sorby and said[140]:

   "But it is well established that Parliament is able to 'interfere' with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked".

   His Honour accepted that the privilege against self-incrimination could only be abrogated by the manifestation of a clear legislative intention.  That intention could be demonstrated by express words or necessary implication.  The term "necessary implication" required "a high degree of certainty as to legislative intention."[141]  The inherent powers of the court were retained, albeit they were not "a charter which enables a court to turn its back on the statute."[142]  The court could order that an examination be held in private or that the publication of names or evidence be restricted.  The court might find it necessary, in accordance with the statutory purpose, not to permit a particular question to be asked which would prejudice the examinee's fair trial.  

   [140](1989) 166 CLR 486 at 494.

   [141](1989) 166 CLR 486 at 495.

   [142](1989) 166 CLR 486 at 499.

3. In reference to the examinee's asserted "right" not to disclose defences to pending charges, Mason CJ said[143]:

   "The privilege against self-incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge.  The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed.  In some instances there is such a specific requirement, eg, in relation to alibi defences.  And there is implicit in the general words of s 541 such a general requirement.  The possibility of disclosure of a defence is, accordingly, not a matter in respect of which a witness needs to be protected except perhaps in the most exceptional circumstances."

   Dawson J held that the scheme of s 541 made the conclusion inevitable.  He added[144]:

   "Nor, in my opinion, is there any basis for discerning a difference in intent according to whether or not criminal proceedings have actually been commenced."

   Having regard to the protection given under the section, the effect of being required to answer a question after criminal proceedings had begun did not necessarily carry consequences more adverse than if the question were asked at an earlier time.  Moreover, the purpose of the section remained the same whether charges had been laid or not[145].  His Honour distinguished Hammond on the basis that the legislation before the Court in that case was of a different kind "concerned in general terms with executive inquiry by means of a Royal Commission or Board of Inquiry without reference to subject-matter or purpose."[146]  Toohey J similarly distinguished Hammond, noting that the basis for restraining the commissioner in that case lay in the fact that if the plaintiff were required to answer questions designed to establish that he was guilty of the offence with which he had been charged, there would be a real risk that the administration of justice would be interfered with[147]. 

   [143](1989) 166 CLR 486 at 499.

   [144](1989) 166 CLR 486 at 508.

   [145](1989) 166 CLR 486 at 508.

   [146](1989) 166 CLR 486 at 509.

   [147](1989) 166 CLR 486 at 515, quoting his Honour's judgment in Huston v Costigan (1982) 45 ALR 559 at 563.

4. What Mason CJ said in Hamilton concerning "a clear legislative intention" should be understood today in light of the Court's consideration of the concept of legislative intention in Project Blue Sky Inc v Australian Broadcasting Authority[148] and, more recently, in Lacey v Attorney-General (Qld)[149].  In Project Blue Sky the majority framed the object of statutory interpretation as "giv[ing] the words of a statutory provision the meaning that the legislature is taken to have intended them to have."[150]  One of the canons of construction identified by the majority was the principle of legality[151].  In Lacey the Court held that the ascertainment of legislative intention does not involve discovery of an objective, collective mental state but is asserted as a statement of compliance with the applicable principles of construction, both common law and statutory, which are known to parliamentary drafters and the courts[152].  Identification of statutory purpose, a concept which is not logically congruent with that of legislative intention, although the two may coincide, is involved in the process of construction.  As the majority observed in Lacey, statutory purpose[153]:

   "may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials.  The purpose of a statute is not something which exists outside the statute.  It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction."

   The differently expressed statutory purposes of the ACC Act and the CAR Act provide one basis upon which, without any questioning of the principles enunciated in X7, it can be concluded that the statute to which those principles were applied in that case differs materially from the statute to which they have to be applied in this case.

   [148](1998) 194 CLR 355; [1998] HCA 28.

   [149](2011) 242 CLR 573; [2011] HCA 10.

   [150](1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ (emphasis added).

   [151](1998) 194 CLR 355 at 384 n 56 per McHugh, Gummow, Kirby and Hayne JJ.

   [152](2011) 242 CLR 573 at 592 [43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

   [153](2011) 242 CLR 573 at 592 [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

5. Judgment in X7[154] was delivered on 26 June 2013. It involved questions reserved on a case stated to the Full Court of this Court. The first of those questions was whether Div 2 of Pt II of the ACC Act, which provided for compulsory examination of persons by examiners of the ACC, empowered an examiner to conduct an examination of a person charged with a Commonwealth indictable offence. The Court, by majority (Hayne, Kiefel and Bell JJ), answered that question in the negative.

   [154](2013) 87 ALJR 858; 298 ALR 570.

6. It is necessary in considering the implications of X7 to have regard to the character of the examination which was under challenge in that case. Importantly, the examinations for which the ACC Act provided were to be conducted not by judicial officers but by officers of the ACC. While the executive character of the examination may not have been determinative of the majority's reasoning, it was an important, if not critical consideration. Their Honours' reasoning rested upon three propositions set out in the joint judgment of Hayne and Bell JJ:

   1.There was no express reference anywhere in the ACC Act to examination of a person who had been charged with but not tried for an offence about the subject matter of the pending charge[155].

   2.The legislative history of the ACC Act provided little or no assistance in dealing with the question of construction[156].

   3.Permitting the executive to ask, and compelling answers to, questions about the subject matter of a pending charge (regardless of what use might be made of those answers at the trial of an accused person) fundamentally alters the process of criminal justice.  Their Honours characterised that proposition as critical to the question of statutory construction to be answered in that case[157].

   [155](2013) 87 ALJR 858 at 880 [83]; 298 ALR 570 at 594.

   [156](2013) 87 ALJR 858 at 880 [84]; 298 ALR 570 at 595.

   [157](2013) 87 ALJR 858 at 880 [85]; 298 ALR 570 at 595.

7. Kiefel J, who agreed substantially with the joint reasons, made the point that decisions of this Court, in particular Clough, McGuinness and Hammond, held that "the conduct of an inquiry parallel to a person's criminal prosecution would ordinarily constitute a contempt because the inquiry presents a real risk to the administration of criminal justice."[158]  The question of contempt, which was the focus of consideration in Hammond, is relevant to executive action likely to interfere with the due administration of justice.  Both Clough and McGuinness concerned executive action. Analysis of a compulsory examination power conferred upon a court, by reference to whether the court is authorised to do that which would otherwise be a contempt of court, is inapposite. Nobody suggested that the Supreme Court of New South Wales in conducting an examination under the CAR Act could be in contempt of itself or any other court in relation to charges pending against the examinee if it were to exceed its statutory powers. Not surprisingly, there is no authority on the point, although the House of Lords has expressed the opinion on two occasions, albeit in a particular factual and statutory context, that a court could not be in contempt of itself[159].

   [158](2013) 87 ALJR 858 at 893 [161]; 298 ALR 570 at 613.

   [159]R v Mirza [2004] 1 AC 1118 at 1153 [85], 1155 [90]; Attorney General v Scotcher [2005] 1 WLR 1867 at 1877 [25]; [2005] 3 All ER 1 at 13. See also R v Young [1995] QB 324; R v Smith [2003] EWCA Crim 3847 at [82].

8. It may be said, of course, that the same underlying issues relating to the effect of compulsory examinations upon the accusatorial process arise whether the examination is judicial or non-judicial. However, on the construction of the relevant provisions of the CAR Act, which define the scope of the power to examine in the face of pending charges, and for reasons already explained, the character of the examination as a concurrent judicial proceeding is relevant. It is also relevant because judicial examination under the Act is ancillary to a substantive judicial function under the Act, the scope of which is to be understood by reference to the objects of the Act and the definition of "serious crime related activity", together with the provisions of the former s 62 and the current s 63. Judicial sensitivity to the impact of an examination on the accusatorial character of pending criminal proceedings can be expected to inform whether an order should be made in the particular circumstances of the case and, if an order be made, the way in which any subsequent examination is conducted. Its judicial character will attract the inherent and express powers of the Supreme Court to protect against misuse of its process and against unfair prejudice to an examinee.

9. Examinations in aid of bankruptcy and corporate insolvency administrations have a particular historical provenance.  They cannot on that account be characterised as sui generis.  Their provenance reflects policy considerations of the kind referred to by Windeyer J in Rees and by Walsh J in Mortimer.  Policy considerations, which may or may not be analogous to those informing such examinations, may lead to the creation, by statute, of other classes of compulsory examination.  Indeed, it might be said that there is some analogy to be drawn between an examination in aid of a possible confiscation order and an examination designed to determine the existence and location of assets which should be available to creditors of a bankrupt or a company in liquidation. 

10. The preceding considerations point to a conclusion adverse to the appellants in this case.  It is necessary, however, to refer to the submissions which they filed following the decision of this Court in X7 in the context of their broader submissions at the hearing.

    The contentions

11. The central contention reflected in the appellants' notice of appeal was that s 31D, properly construed, required the Supreme Court, in determining an application for an examination order, to consider the capacity of that order to prejudice the fair trial of the proposed examinee. An ancillary proposition was that the risk of prejudice could not be left to either the Court or a Court officer undertaking the examination to deal with by making suppression orders. Absent the propounded requirement to consider prejudice at the time the application for an order was made, s 31D was said to be invalid as conferring on the Supreme Court a function incompatible with its integrity as a court. The appellants eventually moved to the position that s 31D simply would not authorise an examination touching on matters the subject matter of pending criminal charges against the examinee. The NSWCC, while resisting that contention, accepted that there was a discretion on the part of the judge deciding whether or not to make an examination order to consider the risk that such an examination might pose to the fair criminal trial of the proposed examinee.As the respondent did not contend that s 31D excluded consideration of such matters, the constitutional point was not pursued.

12. The final position adopted by the appellants, no doubt informed by the earlier oral hearing, was most clearly set out in their supplementary submissions.  They submitted, inter alia:

    •As held by the majority in X7, even if answers given at a compulsory examination are kept secret, the requirement for a charged person to give such answers in relation to matters that are the subject of the charge would fundamentally alter the accusatorial judicial process.  A statute authorises a compulsory examination in those circumstances only if it does so clearly by express words or by necessary intendment.  

    •That intendment may be discerned only where it is manifest from the statute in question that the legislature has directed its attention to the question whether so to abrogate or restrict the general law and has determined to do so.

    •In light of X7, the decisive question becomes whether the CAR Act clearly authorises, by express words or necessary intendment, the compulsory examination of a person who is charged with a criminal offence about matters which are the subject of the charge.

    •The CAR Act contains no express words to the effect that an examination order may be made in such circumstances, nor can it be implied as a matter of necessary intendment that the power to order an examination under s 31D extends so far.

13. It may be accepted that the examination process under the CAR Act may, if it touches upon matters the subject of pending criminal charges against the examinee, affect the accusatorial character of the trial process. Even if the responses of the examinee to questions put to him or her were kept secret and were solely exculpatory or did no more than disclose defences to the charges, the examinee could be said to have suffered a forensic disadvantage. The nature of that disadvantage was discussed in the joint judgment of Hayne and Bell JJ in X7[160].  I do not, with respect, disagree with anything their Honours said in the description of that disadvantage.

    [160](2013) 87 ALJR 858 at 886–887 [124]; 298 ALR 570 at 604.

14. In my opinion, however, those considerations did not deprive the Court of Appeal of power to make the orders it did in this case.  In so saying, I observe that the grounds of appeal for which special leave was granted do not raise any question whether the Court of Appeal's discretion miscarried when it made the orders it did.  The question is one of power.  In my opinion, the following matters are determinative:

    •the objects of the CAR Act, which expressly contemplate its application to persons facing criminal charges;

    •the application of the substantive proceedings under the CAR Act to persons facing such charges;

    •the premises upon which the former s 62 and s 63 were framed, which contemplate the conduct of proceedings touching matters the subject of pending charges;

    •the character of the examination under s 31D as ancillary to substantive confiscation proceedings under the CAR Act;

    •the conferring of a power to make an order for an examination on the Supreme Court and the conferring of the examination power itself on the Court;

    •the capacity of the Court to exercise its discretion to make or decline to make an examination order and to make directions affecting the conduct of any examination.

15. In considering the application of the principle of legality to the construction of the CAR Act it is also necessary to have regard to the following propositions:

    •Where the public policy of a statute and its purpose are identified with sufficient clarity, the option of making a constructional choice protective of common law rights may be precluded[161].

    •The fact that statutory powers are conferred upon a court to be exercised judicially tends in favour of a more liberal construction of those powers than in the case in which they are conferred on a non-judicial body[162].

    The above matters, in the light of the authorities already discussed, in my opinion, are sufficient to support a conclusion that as a matter of necessary intendment the power to order an examination would extend to orders of the kind made by the Court of Appeal in this case.

    [161]Mortimer v Brown (1970) 122 CLR 493 at 499 per Walsh J.

    [162]Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at 492 [10] per Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ, quoting Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J.

    Conclusion

16. For the preceding reasons the appeal should be dismissed with costs.

17. HAYNE J.   I agree with Kiefel J that, for the reasons her Honour gives, the appeal should be allowed and the orders of the Court of Appeal of the Supreme Court of New South Wales should be set aside.

18. The critical question in the appeal is whether the power given to the Supreme Court of New South Wales, by s 31D(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act"), to order the examination on oath of a person "concerning the affairs of the affected person" permitted the Court to order the examination of a person charged with, but not yet tried for, an offence about the subject matter of the pending charge. If s 31D(1) permitted the making of such an order, and an order was made, the person being examined would not be excused[163] from answering any question on the ground that the answer might incriminate, or tend to incriminate, the person, or make the person liable to forfeiture or penalty. Should the generally expressed language of s 31D(1) be construed as working such a fundamental alteration to the accusatorial process of criminal justice?

    [163]ss 13A(1) and 31D(3).

19. Kiefel and Bell JJ and I answer that question "No".  Four points must be made about arguments advanced in support of the contrary conclusion.

1. Separate, but overlapping with the right of a person charged with a criminal offence to a fair trial and available to protect that right, is the power that inheres in a court to restrain as a contempt conduct giving rise to a real risk of interference with the administration of justice.  There is a corresponding principle, itself an application of same general principle of statutory construction, that "[a] statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court"[591]. 

   [591]Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 473; [1982] HCA 65.

2. It is important to recognise, however, that a contempt of court of the relevant kind occurs "only when there is an actual interference with the administration of justice" or "a real risk, as opposed to a remote possibility" of such an interference[592] and that the "essence" of contempt of that kind is a "real and definite tendency to prejudice or embarrass pending proceedings" involving "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case"[593].  The finding of such a real risk or definite tendency necessarily requires more than abstract assertion:  it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.

   [592]Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 56; [1982] HCA 31, citing Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299.

   [593]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370, 372; [1955] HCA 12, quoted in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 56, 166.

3. Hammond v The Commonwealth, on which Hulme J relied in the present case, is properly seen as an application of that principle of contempt.  As later explained by Gibbs CJ[594]:

   "That was a case in which the plaintiff, who was called to give evidence before a Royal Commission, was awaiting trial for a criminal offence, and there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with."  (emphasis added)

   The conclusion of Gibbs CJ, with whom Mason J agreed, was that "in the circumstances of [that] case" there was "a real risk that the administration of justice will be interfered with" by reason that, notwithstanding that the examination was to be conducted in private and that the answers could not be used in evidence in the criminal trial, "the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, [was] very likely to prejudice him in his defence"[595].  That conclusion cannot be divorced from his Honour's earlier finding that "the police officers who had investigated the matters upon which the plaintiff was to be examined were permitted to be present"[596].  That finding, it can be inferred, reflected the way the examination, the timing and scope of which was restrained by the injunction granted by the High Court, was proposed to be conducted.  The finding also puts in context the reference by Brennan J to the "principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged"[597] and the explanation by Deane J of injustice or prejudice to the plaintiff lying in the facts that "[t]he pending criminal proceedings against the plaintiff are brought by the Commonwealth" and that "[t]he parallel inquisitorial inquiry into the subject matter of those proceedings is being conducted under the authority of the Commonwealth"[598]. 

   [594]Sorby v The Commonwealth (1983) 152 CLR 281 at 299; [1983] HCA 10.

   [595](1982) 152 CLR 188 at 198.

   [596](1982) 152 CLR 188 at 194.

   [597](1982) 152 CLR 188 at 202-203.

   [598](1982) 152 CLR 188 at 207.

4. We agree with the observation of French CJ and Crennan J in X7 v Australian Crime Commission that[599]:

   "It is critical to appreciate that the injunctive relief in Hammond was granted in circumstances where criminal proceedings were pending and the prosecution was to have access to evidence and information compulsorily obtained which could establish guilt of the offences, and which was subject only to a direct use immunity."

   Hammond is illustrative of the proposition that a real risk to the administration of justice can arise where there is a real risk that the practical consequence of an exercise of a coercive statutory power would be to give to the prosecution in criminal proceedings "advantages which the rules of procedure would otherwise deny"[600].  Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason only of the exercise of a statutory power to compel the examination on oath of a person against whom criminal proceedings have been commenced but not completed where the subject-matter of the examination will overlap with the subject-matter of the proceedings.  The majority in X7 does not appear to us to have embraced such a proposition.

   [599](2013) 87 ALJR 858 at 871 [36]; 298 ALR 570 at 582-583; [2013] HCA 29.

   [600]Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 467-468; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 559.

5. There is a variety of ways in which, as a matter of practical reality, the examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a particular case.  The deprivation of a legitimate forensic choice available to the person in those proceedings may be one of those ways.  However, we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination.  The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt[601].

   [601]Rule 79 of the New South Wales Barristers' Rules; Tuckiar v The King (1934) 52 CLR 335 at 346; [1934] HCA 49.

6. The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton v Oades.  To accept that a criminal trial "does not involve the pursuit of truth by any means"[602] is not to condone as legitimate the pursuit of falsehood.  The words of Lord Scarman in R v Sang[603], concerning the judicial discretion to exclude legally admissible evidence on the ground of unfairness, resonate more widely:

   "The test of unfairness is not that of a game:  it is whether … the evidence, if admitted, would undermine the justice of the trial.  Any closer definition would fetter the sense of justice, upon which in the last resort all judges have to rely:  but any extension of the discretion … would also undermine the justice of the trial.  For the conviction of the guilty is a public interest, as is the acquittal of the innocent.  In a just society both are needed."

   [602]R v Apostilides (1984) 154 CLR 563 at 576; [1984] HCA 38.

   [603][1980] AC 402 at 456.

7. Brennan J said in Environment Protection Authority v Caltex Refining Co Pty Ltd[604]:

   "When an investigative power to require the giving of information is conferred by statute, the power will ordinarily be construed as exhausted when criminal proceedings to which the information relates have been commenced and are pending.  That is because the power is understood to be conferred for the purpose of the performance of the administrative function of determining whether proceedings should be instituted."  (footnote omitted)

   That proposition, amply supported by previous authority, was explained by his Honour as itself reflecting an aspect of the right of a person charged with a criminal offence to remain silent[605].  However, the proposition did not govern that case.  Nor does it govern this case.  That is because we are not concerned here with a power that is conferred for the purpose of determining whether criminal proceedings should be instituted.

   [604](1993) 178 CLR 477 at 516-517, citing, amongst other cases, Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36 and Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69.

   [605](1993) 178 CLR 477 at 517.

8. The power of the Supreme Court to make an order for the examination on oath of a person under s 31D(1)(a) of the CAR Act is a power that can be exercised only in proceedings for a confiscation order. Proceedings for a confiscation order under the CAR Act are not criminal proceedings or proceedings preliminary to or in aid of criminal proceedings. They are separate civil proceedings, able to be commenced and continued to completion independently of any criminal proceedings that might be brought in respect of the criminal activity the suspicion or probability of which is alleged to form the basis of the confiscation order sought.

9. The power of the Supreme Court to make such an examination order can be invoked only for the purpose of enabling the Commission to obtain information for use in the proceedings in which the order is sought. The administrative power of the Commission to apply for such an order would be used for an improper purpose, foreign to the CAR Act, were the Commission to seek to use that power for a purpose of determining whether criminal proceedings should be commenced or for a purpose of assisting in the conduct of contemplated or pending criminal proceedings. The same is true of the administrative power of the Commission to conduct an examination pursuant to an examination order: for the Commission to ask a question or seek the production of a document for such a purpose would be an abuse.

10. Recognition of the ancillary and purposive nature of an examination order directs attention to the nature and purpose of the principal proceedings in which such an order can be sought and made. The CAR Act is about recovering the fruits of criminal activity; that is why the principal proceedings are brought. The making of the confiscation order ultimately sought in the principal proceedings in which an examination order can be sought and made necessitates (in the case of an assets forfeiture order or a proceeds assessment order) a finding on the balance of probabilities of serious crime related activity or (in the case of an unexplained wealth order) a finding of a reasonable suspicion of serious crime related activity and a finding on the balance of probabilities of illegal activity. Information of use to the Commission in proceedings for a confiscation order will therefore always encompass information about the criminal activity alleged in the proceedings as the basis of the confiscation order sought.

11. The language of s 31D(1)(a) is framed on its face to encompass information about that criminal activity.  In the reference to examination "concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest", the word "including" makes plain that the subject-matter of the affairs of the affected person is not confined to the nature and location of any property in which the affected person has an interest.  Once that is accepted, it would strain against the plain meaning of the words in the context in which they appear not to read "affairs of the affected person" as extending to the totality of the circumstances that give rise to that person having the status of an "affected person". 

12. In the case of an affected person within either limb of the definition in s 31D(4), the scope of the related definition of "serious crime related activity" indicates that the scope for examination concerning the affairs of that person extends to anything done by the person that was a serious criminal offence at the time it was done irrespective of whether the person has been charged with the offence and irrespective of whether the person, if charged, has been tried for the offence. In addition, in the case of an affected person within the definition in s 31D(4)(a) where the interest in property referred to in that provision is held in a false name, as well as in the case of an affected person within the definition in s 31D(4)(b), the scope of the related definition of "illegal activity" indicates that the scope for examination extends to things done by that person that constituted an offence at the time they were done.

13. That the power conferred by s 31D(1)(a) of the CAR Act authorises an examination covering criminal activity quite independently of whether or not criminal proceedings are pending in respect of that criminal activity is confirmed by s 31D(3). Its application of s 13A in respect of a person being examined under an order under s 31D(1)(a) shows that the power conferred by s 31D(1)(a) is to make an order that requires the person against whom the order is made to give answers and produce documents that might incriminate that person. What is of particular significance for present purposes is that, in specifically providing that answers given or documents produced which may otherwise have been privileged are not admissible in criminal proceedings and that information obtained as a result of an answer being given or the production of a document is not inadmissible in criminal proceedings, s 13A as applied by s 31D(3) draws no distinction between pending and future criminal proceedings.

14. Nor can s 63 be ignored in interpreting the scope of the power conferred by s 31D(1)(a). That is especially so given that it is not disputed that s 63 is to be read as expressly providing that the fact that criminal proceedings have commenced is not a ground on which the Supreme Court may stay an application for an order under s 31D(1)(a). Section 63 as so read is unequivocal confirmation that the CAR Act has adverted to the possibility of concurrence between proceedings under s 31D(1)(a) and criminal proceedings against the examinee.

15. That the terms in which the power is conferred by s 31D(1)(a) draw no distinction between circumstances where criminal proceedings have and have not been commenced does not reflect legislative inadvertence.  It is deliberate.  It is an aspect of a carefully integrated and elaborate legislative design.  It is akin to the studied indifference of the legislation in Hamilton v Oades.

16. Contrary to the argument as refocused in the oral hearing in the appeal to this Court, the power conferred on the Supreme Court by s 31D(1)(a) of the CAR Act to make an order for the examination on oath of a person concerning the affairs of an affected person therefore extends to the making of an order for the examination of a person against whom criminal proceedings have been commenced but not completed notwithstanding that the subject-matter of the examination will overlap with the subject-matter of those criminal proceedings.

17. The power conferred by s 31D(1)(a) does not authorise the making or implementation of an examination order where to do so would give rise to a real risk of interference with the administration of justice including by interfering with the right of the person to be examined (or any other person) to a fair trial.  For reasons already given, however, the making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject-matter of the examination will overlap with the subject-matter of criminal proceedings that have commenced but that have not been completed.

    Exercise of the power

18. There remains finally to consider the argument that the Court of Appeal erroneously construed s 31D(1)(a) as requiring the Supreme Court to determine an application for an examination order without taking into account the risk that such an examination may pose to the fair criminal trial of the proposed examinee. It did not. Nor did it treat s 63 as compelling any such conclusion.

19. The reasons for judgment of the Court of Appeal do not suggest that the CAR Act indicates a legislative intention that the Supreme Court should allow any proceedings under that Act to proceed if the circumstances of the case, other than the mere pendency of criminal proceedings against the examinee, were such as to reveal a real, as opposed to a speculative or theoretical, risk that the administration of justice would be adversely affected. The exigencies of criminal proceedings might well afford a ground for a refusal to make an order under s 31D(1)(a). For example, the timing of an application may be such as to prejudice the fair trial of a criminal charge because of the likely disruption of the preparation for, or conduct of, a trial which is imminent. As Beazley JA specifically noted[606], that possibility was not raised before the Court of Appeal as a consideration having a claim upon the discretion in the circumstances of this case.  Had it been raised, it would obviously be a consideration which might properly be taken into account in exercising the discretion.

    [606][2012] NSWCA 276 at [10]-[11].

20. The significance attributed to s 63 by the Court of Appeal was correct. The discretion conferred on the Supreme Court by s 31D(1)(a) must be exercised consistently with the scheme of the CAR Act. The discretion would not be exercised consistently with the scheme of the CAR Act were the Supreme Court to decline to make an order under s 31D(1)(a) by reference only to circumstances in respect of which s 63 would prevent the making of an order staying proceedings on the application for an order under s 31D(1)(a). Section 63 prevents the staying of proceedings on an application for that order for the reason only that criminal proceedings against the person against whom the order is sought have been commenced but are not completed. The discretion conferred by s 31D(1)(a) would therefore not be exercised consistently with the scheme of the CAR Act if the Supreme Court declined to make the order sought for the reason only that criminal proceedings against the person in respect of whom the order was sought had been commenced but not completed.

21. The fact that the subject-matter of an examination would overlap with the subject-matter of existing criminal proceedings is a factor additional to that to which s 63 of the CAR Act is addressed. The existence of that additional factor, however, is not alone a sufficient reason to decline to make an order under s 31D(1)(a) where there is reason to consider that the making of the order might enable the Commission to obtain information about the criminal activity the suspicion or probability of which forms the basis of a confiscation order that is sought.

22. The additional factor alone gives rise to no more than a possibility that the implementation of the examination order might give rise to an interference with the administration of justice.  That is the significance of the ability of the Supreme Court, or officer of the Supreme Court before whom the examination is conducted, to control the course of questioning and to make suppression or non-publication orders limiting the timing and scope of any use or dissemination by the Commission of answers given or documents produced.  When it is appreciated that the conduct of the examination remains at all times subject to the supervision and protection of the Supreme Court, the possibility that the implementation of the examination order might give rise to an interference with the administration of justice does not rise to the level of a real risk merely because the subject-matter of the examination will overlap with the subject-matter of pending criminal proceedings against the person to be examined.

1. In finding that Hulme J erred in declining to make orders for the examination on oath of the appellants, the Court of Appeal was therefore correct to conclude that the Supreme Court cannot properly exercise the discretion conferred by s 31D(1)(a) to refuse to make an examination order for reason only that the subject-matter of the examination will overlap with the subject-matter of criminal proceedings against the person to be examined that have commenced but that are not completed. 

2. Given that Hulme J accepted that Jason Lee and Seong Lee were prima facie capable of giving evidence on the topics referred to in the orders sought by the Commission (concerning respectively the affairs of Jason Lee and the affairs of Jason Lee and Elizabeth Park, including the nature and location of any property in which they had an interest), there was no reason for his Honour not to make those orders.

   Orders

3. The appeal should be dismissed with costs.