McGee v Gilchrist-Humphrey - [2005] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
MCGEE v GILCHRIST-HUMPHREY
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
12 July 2005
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
The plaintiff was summoned to appear before a commission of inquiry exercising powers under the Royal Commissions Act 1917 - the defendant was represented at the commission of inquiry and proposed to question the plaintiff - in anticipation of questions to be put at the commission the plaintiff sought a declaration from the Full Court that the Royal Commissions Act 1917 does not abrogate the common law privilege against self-incrimination - consideration of s 9 of the Royal Commissions Act 1917 and whether it limits the Court's jurisdiction in relation to a commission of inquiry - consideration and application of the principles of statutory abrogation of common law rights and privileges - consideration of whether construction of a statute should be in accordance with Australia's obligations under an international treaty or convention to which Australia is a party when ratification of that treaty occurred after the enactment of the statute in question.
Royal Commissions Act 1917 s 3, s 7, s 9, s 10, s 11, s 13, s 14, s 16, s 16B, s 26; Supreme Court Act 1935 s 31, s 49(1); Criminal Law Consolidation Act 1935 s 241; Crown Proceedings Act 1992 s 9(2); Supreme Court Rules 1987 r 63.02; Mining Act 1906 (NSW), referred to.
Sorby v The Commonwealth (1983) 152 CLR 281, applied.
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Plaintiff S157 v The Commonwealth (2003) 211 CLR 476, discussed.
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; Douglass v Lewis (1982) 30 SASR 50; Jumbunna Coalmine No Liability v Victorian Coalminers Association (1908) 6 CLR 309; Polites v The Commonwealth & Anor (1945) 70 CLR 60; Chu Kheng Lim & Ors v Minister for Immigration (1992) 176 CLR 1; Kartinyeri & Ors v The Commonwealth (1998) 195 CLR 337; Al-Kateb v Godwin & Ors (2004) 208 ALR 124; Yager v R (1977) 139 CLR 28; Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273; Kruger & Ors v The Commonwealth (1996-1997) 190 CLR 1; Coleman v Power & Ors (2004) 209 ALR 182, considered.

MCGEE v GILCHRIST-HUMPHREY
[2005] SASC 254
Full Court: Doyle CJ, Perry and Sulan JJ

DOYLE CJ: The plaintiff, Craig McGee, has been summoned to appear to answer questions and to produce documents before a commission of inquiry exercising powers under the Royal Commissions Act 1917 (SA) (“the Act”). He has issued proceedings claiming a declaration that the provisions of the Act do not abrogate the common law privilege against self-incrimination.
On his application, and there being no opposition, a direction was made pursuant to s 49(1) of the Supreme Court Act 1935 (SA) that the case be argued before the Full Court.
Having heard argument the Court declared that the provisions of the Act do not remove or abrogate any entitlement that Craig McGee might have to refuse to answer a question, on the ground that to answer the question might incriminate him, being a question that the commission of inquiry required him to answer.
My reasons for joining in that order are set out below.
Facts
On 30 November 2003 Eugene McGee, the brother of the plaintiff, was driving a motor car on the Kapunda to Gawler Road. He ran down a cyclist, Mr Humphrey, from behind. Mr Humphrey was killed. Eugene McGee failed to stop or to render any assistance to Mr Humphrey. Only after some hours had passed did Eugene McGee inform the police of his whereabouts.
In April 2005, following a trial in the District Court, Eugene McGee was acquitted of a charge of causing death by driving in a manner dangerous to the public but he was convicted of the lesser offence of driving without due care. Eugene McGee had pleaded guilty to a charge of failing to stop and to give assistance. He was sentenced by the trial Judge on 28 April 2005.
Certain aspects of the police investigation of the offences committed by Mr McGee, and of his sentencing, attracted a lot of public comment.
On 5 May 2005 the Governor appointed Mr James QC as a commissioner to enquire into specified aspects of the police investigation, and into certain aspects of the conduct of the trial and sentencing proceedings by the prosecutor. The appointment of Mr James attracts the powers conferred by the Act: see s 3 of the Act.
Evidence led before Mr James suggests that Eugene McGee telephoned Craig McGee shortly after the collision; that Craig McGee drove to a place where he met Eugene McGee; that Craig McGee then drove Eugene McGee to Adelaide, from where Eugene McGee later contacted the Police. The evidence raises the question of whether Craig McGee might have helped Eugene McGee evade police in the hours after the collision.
It is clear that Craig McGee will be asked questions about the part he played in events following the death of Mr Humphrey. Craig McGee wishes to refuse to answer certain questions, assuming they are put, on the ground that to answer those questions might expose him to the risk of self-incrimination of an offence such as the offence of impeding the investigation of an offence, or assisting an offender to escape apprehension: see s 241 of the Criminal Law Consolidation Act 1935 (SA).
In the course of submissions, Mr James has indicated that he is likely to require Craig McGee to answer questions although his answers might incriminate him. He has indicated that in his opinion the Act abrogates the privilege against self-incrimination.
In that context Craig McGee brought the present proceedings against Mrs Gilchrist-Humphrey, the widow of Mr Humphrey. Her counsel before Mr James said that he wishes to ask questions, the answer to which might incriminate Craig McGee.
Mr James has not been joined as a defendant in the proceedings. In my opinion it would have been preferable were he to be joined. The proceedings raise the extent of the powers conferred on him by the Act. Only he may require a witness to answer a question: s 10(b) of the Act.
However, it is clear that Mr James is aware of the proceedings. He has not applied to be joined. The Attorney-General intervened in exercise of the power conferred by s 9(2) of the Crown Proceedings Act 1992 (SA). The Solicitor-General, appearing for the Attorney-General, put submissions in support of the view expressed by the Commissioner. The Court also heard counsel for each of the South Australian Bar Association and Law Society of South Australia as amicus curiae. They put submissions supporting the submissions of Mr McNamara QC, counsel for Craig McGee.
Does s 9 of the Act prevent the Court from deciding the case?
Section 9 of the Act provides as follows:
9No decision, determination, certificate, or other act or proceeding of the commission, or anything done or the omission of anything, or anything proposed to be done or omitted to be done, by the commission, shall, in any manner whatsoever, be questioned or reviewed, or be restrained or removed by prohibition, injunction, certiorari, or otherwise howsoever.
Despite the breadth of this provision, no party argued that s 9 prevented the Court making a declaration along the lines sought. Only the Solicitor-General put submissions on the issue, and his submission was that s 9 did not prevent the Court from making a declaration.
The issue that confronts the Court is one of statutory interpretation. There is no doubt about the power of the Parliament to limit the extent to which a court may exercise its ordinary jurisdiction in relation to the conduct of a commission of inquiry under the Act. Nevertheless, a court will not readily conclude that it has no jurisdiction to review the legality of the exercise of a statutory power. There is an inherent contradiction between the concept of the conferral of a statutory power that is subject to a limit, such as a power to ask a question subject to the limit that an answer may not be compelled if the answer would incriminate the witness, and the removal of the power of a court to decide that the statutory power to require an answer is subject to the limit. As Gleeson CJ said in Plaintiff S157 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [17]:
The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited. When the power or authority is conferred by a federal statute, and it is this Court’s constitutional jurisdiction to prohibit acts of officers of the Commonwealth in excess of power or authority that the statute purports to take away, a possible solution is that urged by the plaintiff in the present case: accept the privative clause at face value, and declare it invalid. However, the reasons of Dixon J show that, although Hickman (1945) 70 CLR 598 was decided in the context of federal jurisdiction, he also had unitary constitutions in mind. And his preferred solution, both in State and federal jurisdiction, was attempted reconciliation.
In the end, it is a matter of construing the relevant legislation as a whole, and reconciling an apparent conflict between a limited power (assuming that the power is limited) and a provision that might appear to prevent a court from determining that the limits of the power have been exceeded: see Plaintiff S157 at [17] – [20] Gleeson CJ; at [60] Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Underlying the approach of the Courts to a provision such as s 9 is a presumption that Parliament does not intend to restrict or reduce the jurisdiction of this Court unless, and to the extent that, it clearly indicates an intention to do so: Plaintiff S157 at [32] Gleeson CJ; at [72] Gaudron, McHugh, Gummow, Kirby and Hayne JJ. I am satisfied that one should also approach the construction of the Act on the basis that Parliament is unlikely to have intended to confer a power to fine or imprison and to put the exercise of that power beyond any means of control by this Court. To do so would be an extraordinary intrusion on fundamental rights.
I bear these matters in mind in considering the impact of s 9 on the present proceedings.
The first thing to be noted is that the proceedings do not attempt to restrain or remove anything done or to be done by Mr James. Nor do the proceedings seek a review of anything done or to be done by Mr James. They seek a declaration as to the extent of the power vested in him. It might be said that the proceedings question something that Mr James proposes to do, because he has indicated that he is likely to require Craig McGee to answer a question even though to do so might incriminate him. But in my opinion the expression “questioned or reviewed” in s 9 should be read as referring to a proceeding that would, in one way or another, prevent the Commissioner from making a decision or lead to the overturning or reversal of something done by the Commissioner.
The fact that I consider that this is an appropriate case for the Court to consider making a declaration, subject to the effect of s 9, rests on the premise that I anticipate that should the Court declare that Craig McGee is entitled to invoke the privilege against self-incrimination, Mr James will proceed on that basis. But the fact remains that in making a declaration the Court leaves it to Mr James to proceed as he considers appropriate. There is no attempt to have the Court exercise any compulsive powers to require Mr James to abide by the decision of the Court. Should he require Craig McGee to answer a question although this Court says that he has no power to do so, a separate question of whether the Court can in any way restrain Mr James would arise. That question does not arise in these proceedings. In my view, on that relatively narrow basis, it is open to the Court to proceed.
The distinction that I draw in this respect is foreshadowed by observations made by members of the High Court in Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421. There a declaration was sought and made in relation to matters that would be decided on an enquiry, by a mining warden under the Mining Act 1906 (NSW), that had already begun. The Mining Act included a provision that:
No proceedings under this Act shall be removable by certiorari or otherwise into the Supreme Court.
It was held that this provision did not indicate an intention to exclude the power of the Court to make a declaration relating to the powers in the proceedings before the Warden. Gibbs J said at 437:
It is true that the purpose of Jododex in seeking a declaration was to forestall a possible contrary decision by the warden, but that does not mean that the validity of any proceeding by the warden is challenged in these proceedings …
Although Gibbs J was in dissent as to the outcome of the case, all members of the Court agreed with his reasons on the question of the jurisdiction of the Court: McTiernan J at 426; Walsh J at 426-427; Stephen J at 448; Mason J at 450.
I am satisfied that the making of a declaration as claimed is not contrary to s 9. As I have said, the jurisdiction of this Court to make a declaration will be excluded only if Parliament has clearly indicated, by express words or necessary implication, an intention to exclude that jurisdiction. Considering s 9 in its context, I treat s 9 as protecting decisions of the Commissioner from being reversed or set aside and proceedings by the Commissioner from being restrained. I do not find any reason to treat s 9 as preventing the Court from deciding by means of a declaration the extent of the power to question a witness conferred on the commission by the Act.
Is this an appropriate case for a declaration?
The question raised by the proceedings is not hypothetical. It is a live question. Craig McGee has been summoned, and it is evident that he will be asked questions, the answer to which might expose him to the risk of self-incrimination. Unless persuaded otherwise, the Commissioner will require Craig McGee to answer such questions. If Craig McGee refuses to answer such questions, Mr James might well exercise the powers conferred by s 11 of the Act and either fine or imprison Craig McGee. Apart from the significance of the point from Craig McGee’s point of view, the effect of the provisions of the Act on the common law privilege against self-incrimination is a significant issue, involving the public interests as well as the interest of the immediate parties.
The fact that Craig McGee might be imprisoned should he refuse to answer a question, relying on the privilege against self-incrimination, would ordinarily be sufficient to make it appropriate for this Court to determine whether the privilege against self-incrimination is a valid basis for refusing to answer a question. Whether there is any appeal against a decision by Mr James to imprison Craig McGee is unclear: see s 11(1) and s 26 of the Act. If there is no right of appeal against an order for imprisonment, that is an added reason for this Court exercising its jurisdiction, if it is open to it to do so. As Walsh J said in Forster v Jododex at 428, referring to the power of the mining warden:
… [I]f his decisions were immune from any review by means of any of the prerogative writs, that might be a ground for concluding, in some cases, that the Supreme Court ought to intervene by means of a declaration before the warden had given a decision, in order to ensure that the matter should not be finally determined in a manner which was not according to law.
I am satisfied that this is an appropriate case in which to exercise the wide power that the Court has to entertain an application to it for the making of a declaration: see s 31 of the Supreme Court Act 1935 (SA), r 63.02 of the Supreme Court Rules 1987 and Forster v Jododex.
Does the Act abrogate the privilege against self-incrimination?
The privilege against self-incrimination is an important common law principle or immunity. A statute will not be construed as abrogating the privilege unless it is clear that Parliament intends to do so. As Mason, Wilson and Dawson JJ said in Sorby v The Commonwealth (1983) 152 CLR 281 at 309:
The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia, 2^nd ed. (1981), pars 113-116; Pyneboard; Crafter v Kelly [1941] SASR 237 at 242.
See also Gibbs CJ at 288-289; Murphy J at 311; Brennan J (dissenting) at 316.
The High Court has consistently taken this approach to the interpretation of statutes. It recently applied the same approach to a submission that legislation had abrogated legal professional privilege. In TheDaniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [11]:
Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.
See also McHugh J at [43]; Kirby J at [105] – [106]; Callinan J at [132].
The Act does not expressly abrogate the privilege against self-incrimination. Does it do so by necessary implication?
Implicit in posing this question is the proposition that the privilege is not a rule of evidence applicable only to judicial proceedings. The decision in Sorby is authority for that proposition: Gibbs CJ at 289; Mason, Wilson and Dawson JJ at 309; Murphy J at 311; Brennan J to the contrary at 316-317.
I turn to the provisions of the Act.
The power of a commission of inquiry established under the Act to compel the production of documents, and answers to questions, is conferred by s 10. Although s 10(b) is the relevant provision, I set out the whole section because other provisions are relevant to the construction of s 10(b). Section 10 provides as follows:
10.     The commission shall have the following powers, that is to say:
(a)     they and each of them may by themselves, or by any person appointed by them to prosecute an inquiry, enter upon and inspect any land, building, place, or vessel, and inspect any goods and other things, the entry upon or inspection of which appears to them or him to be requisite;
(b)     they may require, by summons under the hand of the chairman or of the secretary acting under the direction of the chairman, the attendance of all such persons as they think fit to call before them, and may require answers or returns to such inquiries as they think fit to make;
(c)     they may require, by summons under the hand of the chairman or of the secretary acting under the direction of the chairman, the production of any books, papers, documents or records;
(d)     they may inspect any books, papers, documents and records produced before them, and retain them for such reasonable periods as they think fit, and may make copies of such matters therein as are relevant to the inquiry or take extracts of such matters;
(e)     they may examine witnesses on oath, affirmation, or declaration, which may be administered by any commissioner.

A commission has power to fine or imprison a person who fails to answer to a summons, or who disrupts proceedings before the commission: s 11 of the Act. Section 11(1)(f) provides:
11 (1) If any person –
…
(f) being called or examined as a witness in any inquiry or any matter pending before the commission, refuses to be sworn, or to affirm or declare, or refuses or neglects to produce any books, papers, documents or records as required by a summons personally served upon him, or prevaricates in his evidence, or refuses to answer any lawful question,
…”
the balance of a provision conferring the power to imprison or to fine.
The only express qualification on the power of a commission to require an answer to a question is to be found in s 14, which provides as follows:
14Nothing in this Act shall make it compulsory for any witness giving evidence before the commission to disclose to the commission any secret process of manufacture.
Section 16 is a provision which is sometimes attached to an express abrogation of the privilege against self-incrimination. On some occasions a provision along these lines has been said to support a conclusion that Parliament must have intended to abrogate the privilege against self-incrimination. See, for example, the observations of Mason, Wilson and Dawson JJ in Sorby at 310-311. Section 16 provides as follows:
16A statement or disclosure made by any witness in answer to any question put to him by the commission or any of the commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any court.
A commission is not bound by the rules of evidence: s 7. By s 16B a commissioner and counsel appearing before the commission have the same protection and immunities as a judge of the Supreme Court. The position of a witness is dealt with by subs (2), which provides as follows:
16B …
(2) Subject to this Act, a witness before the commission has the same protection and immunities as a witness in proceedings before the Supreme Court.
This provision was added by amendment in 1982.
There is nothing about the subject matter of the Act, or its purpose, to suggest that Parliament must have intended to abrogate the privilege against self-incrimination, or indeed legal professional privilege. The Act enables the Executive Government to appoint a commission to enquire into any matter which the Executive Government considers it appropriate to investigate. Experience in this State and elsewhere in Australia is that commissions have been appointed in a wide range of circumstances. Although this particular commission requires the commissioner to enquire into certain events in the course of which offences were committed, the particular subject matter of this commission cannot influence the interpretation to be given to the Act.
The Act is not aimed in particular at the investigation of possible offences, or at uncovering corruption or misconduct. As Mason ACJ, Wilson and Dawson JJ said in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341, if:
… the object of imposing the obligation [to answer questions] is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation …”
the Court may well conclude that the privilege against self-incrimination has been abrogated. That is not the case here. The Act does not deal with a topic, such as the insolvency or winding up of a company, in relation to which a power to enquire might well be read as enabling the enquirer to require answers to questions although those answers might incriminate the witness. There is simply no basis for saying that the purpose of the Act would be largely frustrated if the privilege against self-incrimination were available, or indeed if legal professional privilege were available.
Of course, the power conferred by s 10(b) to “require answers or returns” is expressed in general terms and is unqualified. But, of itself, this is of little significance. As Gibbs CJ said in Sorby at 288:
… the provisions of the statute have to be interpreted against the background provided by the common law.
The principle of interpretation set out above would be empty of content if the mere fact that the obligation to answer questions is unqualified leads to a necessary implication that the privilege against self-incrimination is abrogated. The principle of interpretation that I have set out is a principle by reference to which an unqualified obligation is to be construed. Parliament enacts legislation in a legal framework in which there is a presumption that it does not intend to abrogate a fundamental common law principle, unless it makes clear its intention to do so. Accordingly, the use of general language by Parliament is of no particular significance. Parliament may have used that language on the basis that it will not be interpreted as abrogating a fundamental common law principle, because it enacts the legislation in a legal context in which the principle stated above is applied: see Daniels at [32] Gleeson CJ, Gaudron, Gummow and Hayne JJ; at [43] McHugh J; at [94] Kirby J; at [134] Callinan J.
In short, the generality of obligation to answer questions is a factor to consider, but a factor of no great weight.
The same comment applies to the powers conferred by s 10(c) and s 10(d). The privilege is equally capable of application to a demand to produce documents.
The power conferred by s 10(a) to enter and inspect, and possibly to seize material, stands somewhat differently. The privilege against self-incrimination does not apply to the seizure of documents, because it is a privilege against self-incrimination, not a privilege against incrimination: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 392-393 Gibbs CJ, Mason and Dawson JJ.
I turn to s 11. Section 11(1)(f) enables the commission to punish a person who refuses to produce documents or who “refuses to answer any lawful question”. The latter qualification at first sight might seem curious. It is not easy to envisage a question that is not a lawful question. Ordinarily, any person is at liberty to ask any other person any question they wish. The issue is usually whether there is a legal obligation to answer. In my opinion the reference to a lawful question is a reference to a question to which an answer may be required. That will necessarily be a question administered by the commission, or by a person given a right of audience (see s 13), but in that event only if the commission requires the question to be answered. In my opinion there is no doubt that only the commission has power to require the answer to a question. If I am right in that, the reference to a “lawful question” is significant, because if the reference contemplates a lawful basis for refusing to answer a question, it readily fits a situation in which a claim is made of legal professional privilege or in which reliance is placed upon the privilege against self-incrimination. I consider that that is how it is to be read.
I do not accept the submission by the Solicitor-General that the reference to a “lawful question” is intended to indicate that punishment may be imposed only for refusing to answer a question put by the commission, or that the commission directs be answered. There is no reason for Parliament to have specified that punishment may be imposed only for a refusal to answer a question put by the commission, or that the commission directs to be answered. The power to require answers is conferred by s 10(b) and it is clear that only the commission may put a question and require that it be answered, or may direct that the question put by another person be answered.
The failure to attach any similar qualification to the obligation to produce documents is a matter to be considered. I have not overlooked it. However, I am satisfied that in any event the power to punish, conferred by s 11(1)(f), must be subject to a number of unexpressed qualifications. For example, a person who “neglects to produce” documents would not be guilty of an offence if that person was unable to do so because the person no longer had the documents. Likewise, there would surely be no offence if the person had not been allowed sufficient time to obtain the documents and bring them before the commission. As well, unless s 10(b) abrogates legal professional privilege, the power conferred by s 11(1)(f) is subject to an entitlement to refuse to produce documents or to answer questions, if to do so would reveal communications between the witness and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services: see Daniels at [9]. In short, bearing in mind that s 11(1)(f) is subject to a number of unexpressed qualifications, the contrast between the absence of a qualification in relation to the failure to produce documents, and the presence of a qualification in relation to answering questions, loses any substantial significance.
It remains to consider the significance of s 16. As I have said, s 16 is a provision of a kind sometimes found when privilege against self-incrimination is expressly abrogated. As Mason, Wilson and Dawson JJ said in Sorby (at 310-311), its presence provokes the question of what purpose it is intended to serve if the purpose is not to protect a witness from the consequences of the abrogation of the privilege. Their answer to that question was that if the provision stood alone in the context of an Act which imposed an obligation to answer all relevant questions, its presence might be consistent only with a legislative intention to abrogate the privilege. But the presence of provisions that, in certain circumstances, entitled a witness to refuse to answer questions or to produce documents caused them to conclude that it did not reflect the suggested intention.
If I am right in thinking that s 11(1)(f) contemplates that it may be lawful to refuse to answer questions on the grounds of legal professional privilege or the privilege against self-incrimination, the provision is deprived of much of the significance that it would otherwise have. As well, there are other possible explanations for the presence of the section. The provision offers protection in a wide range of situations, and may well have been inserted to encourage openness by witnesses. It might have been thought appropriate to make it clear that a witness could not be sued or prosecuted for things said in evidence, voluntarily or under compulsion. The section gives no protection against the use of information obtained by compulsion, and so does not give complete protection against the loss of the privilege against self-incrimination.
Having regard to these considerations, although s 16 lends some support to the argument advanced by the Solicitor-General, read in context it does not give rise to a necessary implication that Parliament intended to abrogate the privilege against self-incrimination.
I turn to s 16B(2) of the Act. Ordinarily a witness before the Supreme Court is entitled to refuse to answer a question on the grounds that to do so might incriminate the witness, or on the grounds of legal professional privilege. That is, of course, subject to the provisions of any legislation that might bear on particular proceedings. But it is clear that s 16B(2) is referring to the general case. There is no difficulty in treating the privilege against self-incrimination as a “protection” or as an immunity, and so within the terms of this provision. However, it appears that the origin of the provision is the decision of Mitchell J in Douglass v Lewis (1982) 30 SASR 50 to the effect that an intended witness before a commission of inquiry, who provided a statement of his evidence before giving evidence, was entitled to claim qualified privilege when sued for defamation on the basis of the statement of the evidence, but not to claim absolute privilege. That is a reason not to conclude too readily that s 16B(2) is intended to confer the privilege against self-incrimination. As well, and significantly, the provision begins with the qualification “Subject to this Act”, a qualification not found in the other subsections of s 16B. Accordingly, if before the enactment of s 16B the Act had abrogated the privilege against self-incrimination, it is doubtful whether the enactment of s 16B alters the position. However, it is not necessary to come to a final view on that point.
I have considered the relevant legislative provisions one by one. In the end it is necessary to consider the relevant provisions of the Act taken together, and in the context of the Act as a whole. Doing so I am not satisfied that a necessary implication arises that Parliament intended to abrogate the common law privilege against self-incrimination. Indeed, the only pointer in that direction is s 16, and there are a number of other aspects of the Act which suggest otherwise.
Conclusion
For those reasons I am satisfied that the Act does not abrogate the common law privilege against self-incrimination. Craig McGee is entitled, if directed by the commission to answer a question, to make a claim that to answer the question might incriminate him. If the commission is satisfied that the claim is well made, it does not have power to require him to answer the question.
It is appropriate to add that the provisions of the Act warrant consideration by Parliament. In a number of respects the provisions give rise to questions and issues which could easily be settled by Parliament. The Act has a somewhat antiquated air to it, appearing to be a patchwork of provisions borrowed from similar legislation elsewhere in Australia. In recent times the Act has not been much used in South Australia. But the Act confers significant and quite wide-ranging powers on a commission, and it is in the public interest that the powers of a commission of inquiry should be clear. I invite the attention of the Government to the state of the Act.
PERRY J. I concurred in the order of the Court pronounced on 17 June 2005.
I agree with the reasons of Doyle CJ for the making of the order.
I add some comments of my own.
I have considered the question whether the conclusion that the Royal Commission Act 1917 (SA) (“the Act”)does not remove or abrogate the common law privilege against self-incrimination, is supported by the application of the principle that in cases of ambiguity, the court should favour the construction of a statute which accords with Australia’s obligations under an international treaty or convention to which Australia is a party.
The principle has been clearly established by a number of decisions of the High Court.
In Jumbunna Coalmine No Liability v Victorian Coalminers Association,[1] O’Connor J observed:
… every statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or established rules of international law.[2]
[1] (1908) 6 CLR 309 at 363.
[2] Citing Maxwell on Statutes (3^rd edition) page 200.
In Polites v The Commonwealth and Anor,[3] Latham CJ, Dixon and Williams JJ in separate judgments affirmed the principle in similar terms.[4]
[3] (1945) 70 CLR 60.
[4] Ibid at 68-9, 77 and 80-1.
In Chu Kheng Lim and Ors v Minister for Immigration,[5] Brennan, Deane and Dawson JJ in their joint judgment said:
We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute, which accords with the obligations of Australia under an international treaty. [Footnote omitted]
[5] (1992) 176 CLR 1 at 38.
Although that statement might suggest that the principle is limited in its application to Commonwealth statutes, other formulations make it plain that it is also of application to State legislation.
In Kartinyeri v The Commonwealth,[6] in their joint judgment Gummow and Hayne JJ observed:
It has been accepted that a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. (Emphasis added; footnote omitted)
[6] (1998) 195 CLR 337 at 384 [97].
Despite his stringent criticism of the rule, in Al-Kateb v Godwin and Ors[7] McHugh J acknowledged that “it is too well established to be repealed now by judicial decision”.
[7] (2004) 208 ALR 124 at 140-141 [63]-[65].
During the course of argument, Mr Whitington QC, who appeared as amicus curiae, referred the Court to Article 14, par 3(g) of the International Covenant on Civil and Political Rights (“the ICCPR”), which provides that no-one should be “compelled to testify against himself or to confess guilt”.
If it was proper to have regard to that provision, it would support the resolution of the ambiguity inherent in the relevant provisions of the Act, in the terms declared by the Court.
However, the fact that the ICCPR was made in 1966, signed by Australia in 1972 and ratified by Australia in 1980, all of which events took place after the enactment of the relevant provisions of the Act, poses a difficulty.
In the course of their joint judgment in Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J said:[8]
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party at least in those cases in which the legislation is enacted after or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.[9] (Emphasis added)
[8] (1994-1995) 183 CLR 273 at 287, citing Lim v Minister for Immigration (supra).
[9] The same temporal considerations should not prevent the courts from having regard to international law in the development of the common law. See, for example, Mabo v Queensland [No 2] (1992) 175 CLR 1 per Brennan J at 42:
“… international law is a legitimate and important influence on the development of the common law, especially where international law declares the existence of universal human rights.” (my emphasis)
In Kruger v The Commonwealth[10] Dawson J said that the principle did not extend to cases “… where the relevant obligations are under a treaty which had not been entered into at the time the legislation came into force”.
[10] (1996-1997) 190 CLR 1 at 71.
The matter has recently been the subject of further comment in the High Court.
Coleman v Power and Ors[11] concerned an appeal against a conviction for using insulting words to a person in a public place.
[11] (2004) 209 ALR 182.
The appellant was distributing pamphlets in a public place. When approached by a police constable he pushed him, and said loudly that he was “a corrupt police officer”.
In the High Court, sitting on appeal from the Queensland Court of Appeal, Kirby J held that in construing the relevant provisions of the Vagrants, Gaming and Other Offences Act 1931 (QLD) the right of freedom of expression contained in Article 19 of the ICCPR should lead the court to prefer a restricted reading. He rejected the view that the recourse could not properly be made to the Treaty, given the fact that the Treaty was made, signed and ratified by Australia well after the Queensland Act was passed. In doing so, he observed:[12]
The principles of human rights and fundamental freedoms, expressed in the ICCPR, preceded their expression in that Treaty. They long preceded Australia’s adherence to it and to the first optional protocol.
[12] Ibid 243 par [244].

He went on to comment on observations made by Lord Diplock in Garland v British Rail Engineering Ltd:[13]
[I]t is a principle of construction of United Kingdom statutes … that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it. [Emphasis added]
[13] (1983) 2 AC 751 at 771.
Kirby J said:
[244]… The words of Lord Diplock in Garland v British Rail Engineering Ltd are obiter dicta. They are unnecessary to the decision in that case. I regard them as unduly narrow. In any event, they are concerned with a treaty obligation of a different and more limited kind, namely a specific treaty adjusting the powers of states to European institutions (the European Economic Community Treaty) and a Council Directive. Even if the same approach to such a question would be taken by United Kingdom courts today (a matter that is debatable), it says nothing about the use of an international treaty stating comprehensive human rights and fundamental freedoms. These considerations derive from inherent human dignity. They do not derive, ultimately, from inter-governmental negotiations as to national rights inter se, where different and additional considerations apply.
Kirby J went on to state:
[245]The notion that Acts of Parliament in Australia are read in accordance with the subjective intentions of the legislators who voted on them is increasingly seen as doubtful. … It does not represent the purposive approach to legislation now followed by this court.
Later he said:
[246]In interpreting in 1978 a statute that was enacted in 1944, Scarman LJ stated in Ahmad v Inner London Education Authority:[14]
Today, therefore, we have to construe and apply section 30 [of the Education Act 1944 (UK)] not against the background of the law and society of 1944 but in a … society which has accepted international obligations.
This is the approach that I favour, certainly in the case of an Act such as the present. [Footnote omitted]
[14] [1978] QB at 48; [1978] 1 All ER 574 at 583.
The only other judge in Coleman v Power and Ors who dealt with this aspect of the matter, Gleeson CJ, disagreed with the views expressed by Kirby J on this issue. He cited with apparent approval the dictum of Lord Diplock in Garland v British Rail Engineering Ltd (supra), quoted above.[15] He then repeated the observations of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (supra) to which I have referred above. He found support for his view in passages which he cited from the judgment of Mason CJ in Yager v R[16] and by Dawson J in Kruger v Commonwealth.[17]
[15] See Coleman v Power and Ors (supra) 209 ALR 189-190 [19].
[16] (1977) 139 CLR 28 at 43–4.
[17] (1997) 190 CLR 1 at 71.
It must be accepted that if the underlying rationale of the principle is as was stated by Mason CJ and Deane J in Teoh that “… Parliament, prima facie, intends to give effect to Australia’s obligations under international law”, it is difficulty to see how recourse to a Treaty entered into after the relevant statute was passed could be justified. At all events, such a view must be taken to reflect the present balance of authority in the High Court, notwithstanding the strong position taken by Kirby J to the contrary.
In those circumstances, on the present state of the law in Australia, it would be inappropriate for this Court to have regard to the terms of the ICCPR in construing the provisions of the Act.
SULAN J: I agree with the reasons of Doyle CJ.