Scott v. Witness C
[2009] QSC 35
•4 March 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Scott v Witness C [2009] QSC 35
PARTIES:
MICHAEL JOHN SCOTT
(Applicant)
v
WITNESS C
(Respondent)FILE NO/S:
536 of 2008
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court, Cairns
DELIVERED ON:
4 March 2009
DELIVERED AT:
Cairns
HEARING DATE:
21 November 2008
JUDGE:
Jones J
ORDER:
1. The application is dismissed.
2. The applicant pay the respondent’s costs to be assessed on the standard basis.CATCHWORDS:
CRIMINAL LAW – STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND – crime and misconduct commission – special investigation - statutory requirement that the examinee answer questions – contempt of the hearing commissioner - whether the application contravened s 190 of the Crime and Misconduct Act 2001 – whether there was a valid referral to the commission as required by the Act and by repealed legislation
Crime and Misconduct Act 2001 ss 5, 25, 28(3), 26, 27, 28, 176, 190, 199, 200, 274, 277, 278, 291, 303, 324, 355
Crime Commission Act 1997 repealed legislation ss 28, 38, 46(7)
Uniform Civil Procedure Rules 1999 rr 925, 926, 930, 931, 932
Western Australian Crime and Misconduct Act 2003 ss 163(1), 163(2)Brading v Thornton (1947) 75 CLR 140
Callanan v Beale unreported No 373/08
Callanan v Eyre unreported No 10763/03
Callanan v Schultz unreported No 1442/04
Coward v Stapleton (1953) 90 CLR 573
Electrolux Home Products Pty Ltd v Australian Workers Union (2003) 78 ALJR 1231
Hammond v Aboudi [2005] WASCA 204
Keeley v Brooking (1979) 143 CLR 162
Macarone v McKone (1986) 1 Qd R 284
MacGroarty v Clauson (1989) 167 CLR 251
Plaintiff S 157/2002 v Commonwealth [2003] 211 CLR 476
R v Brisbane TV Ltd; Ex parte Criminal Justice Commission (1996) 2 Qd R 41.COUNSEL:
Mrs S Pearson for the applicant
Mr J Trevino for the respondentSOLICITORS:
Mr D T Murphy, Official Solicitor Crime and Misconduct Commission for the applicant
Wettenhall Silva for the respondent
By this Originating Application the applicant seeks to have the respondent committed to prison or otherwise punished for his contempt of the applicant, as the presiding officer, at a Crime and Misconduct Commission hearing conducted pursuant to s 176 of the Crime and Misconduct Act 2001 (“the Act”). The application was heard in closed court because of the sensitivity of the evidence referred to but as it raises matters of general importance the decision is published in open Court with appropriate safeguards.
On 28 October 2008 the respondent appeared before the applicant on a closed hearing pursuant to an Attendance Notice issued by the applicant. The Notice required the respondent to give evidence relating to his “knowledge of the production and sale of dangerous drugs and money laundering”[1]. The respondent appeared with a legal representative and indicated to the applicant that he did not want to answer any questions. The respondent’s legal representative confirmed that those were his client’s instructions and after some further exchanges, to which reference will be made, the hearing was adjourned.
[1]Ibid Ex “D”
This application is founded on a Certificate of Contempt (“the Certificate”) issued by the applicant pursuant to s 199 of the Act. The Certificate states the terms for the exercise of the Court’s jurisdiction to hear the matter. Section 199 relevantly provides:-
“(1) A person’s contempt of the presiding officer conducting a commission hearing may be punished under this section.
(2)The presiding officer may certify the contempt in writing to the Supreme Court (the court).
(3) For subsection (2), it is enough for the presiding officer to be satisfied that there is evidence of contempt.
…
(6) The court must inquire into the alleged contempt.
(7) The court must hear –
(a) witnesses and evidence that may be produced against or for the person whose contempt was certified; and
(b) any statement given by the person in defence.
(8) If the court is satisfied the person has committed the contempt, the court may punish the person as if the person had committed the contempt in relation to proceedings in the court.
(9) The Uniform Civil Procedure Rules 1999 apply to the court’s investigation, hearing and power to punish, with necessary changes.
(10) The presiding officer’s certificate of contempt is evidence of the matters contained in the certificate.
(11) The person is not excused from attending before a commission hearing in obedience to an attendance notice only because the person is punished or liable to punishment under this section for contempt of the presiding officer.”
The reference in subsection (9) to the Uniform Civil Procedure Rules 1999 (UCPR) invites a consideration of Part 7 of the Rules in particular rr 925, 926, 930, 931 and 932.
The Certificate is not determinant of the respondent’s guilt. The effect of such a Certificate given under the similar provisions of the Western Australian Corruption and Crime Commission Act 2003 was considered by the Court of Appeal in that State in Hammond v Aboudi[2]. The Court there concluded:-
“[24] …the matters certified include primary facts, factual summaries, inferences, opinions and conclusions, including a conclusion on the ultimate question of contempt. Under s 163(1) a certificate can go no further than “setting out the details of the act or omission that the Commission considers constitutes the alleged contempt”. It may arguably be inferred from this, that the Certificate must be confined to statements of fact and does not extend to statements of law or mixed law and fact: see Brading v Thornton (1947) 75 CLR 140; Macarone v McKone (1986) 1 Qd R 284; R v Brisbane TV Ltd; Ex parte Criminal Justice Commission (1996) 2 Qd R 41. However, it is unnecessary to decide the question. It is sufficient for present purposes to conclude that, based on the terms of s 163(1) and (6), the question whether or not the acts or omissions the subject of the certificates constitute contempt is a matter for this Court.”
Consistently with that decision, the parties accept that the question of whether the respondent is guilty of contempt is a matter for this Court.
[2][2005] WASCA 204
The actions constituting the alleged contempt identified in the Certificate may also be an offence against the provisions of s 190 of the Act punishable by the imposition of 85 penalty units or one year imprisonment. The applicant has elected to have the alleged contempt dealt with in the Supreme Court which means that he cannot further proceed against the respondent for the offence. See s 200 of the Act.
The issues
When the proceeding came before me the respondent contended that he was not guilty of contempt of the presiding officer on two grounds:-
(a) The respondent did not fail or refuse to answer a question put to him by the applicant at the hearing and thus did not contravene s 190 of the Act;
(b) Alternatively, there could be no contempt, as the hearing was not authorised because there was no valid referral to the Commission as required by s 27 of the Act.
I will deal with each of these matters in turn.
Was there a refusal to answer?
On 27 October 2008 the respondent had appeared at the hearing. An affirmation was administered and a protection order was made in respect of any self incriminating evidence he might give. The hearing was then adjourned to allow the respondent’s legal representative to be present.
On 28 October, now in the presence of his solicitor, the respondent was asked where he was born and he replied that he did not wish to answer any questions. The applicant explained to the respondent he was required by law to answer questions, and that a failure to answer was an offence for which he could be punished by the Commission or by the Supreme Court. The warning having been given the respondent maintained his position that he did not wish to answer questions. Thereafter the following exchange occurred:-
“Counsel Assisting: Sir, in the schedules you’ll notice refer to the witnesses’ knowledge of the production and sale of dangerous drugs and money laundering. A broad question if he was prepared to answer questions that I asked in that matter or more specifically it could come down to for example there were as I am instructed approximately two ounces of cocaine, two ounces of amphetamines and approximately 1,000 MDMA pills located in the property at… on 28 August 2008. A specific question could relate to the witnesses knowledge in relation to the dangerous drugs located at the premises at…on 28 August 2008.
Presiding Officer: As to the source of drugs? The suppliers who supplied him with those drugs? –
Yes, and that would seem to feed into the very matters in which we are interested.
Counsel Assisting: Yes, it would. That’s the case.
Presiding Officer: All right. All right (respondent) are you prepared to answer questions relating to your knowledge of the identity of the suppliers to you of the two ounces of cocaine, two ounces of amphetamine, 1,000 ecstasy tablets and some other cannabis that was located at…on 28 August 2008?
Witness: No.
Presiding Officer: Sorry?
Witness: No, I’m not.
Presiding Officer: You are not prepared to answer those questions? All right. You don’t wish any further time to consider your position? Have another chance to speak to Mr Silva in private?
Witness: No.”[3]
[3]Ibid Exhibit “H”
Mr Trevino of Counsel for the respondent contends that unless a question is posed to a witness directly in an interrogative manner then there is no refusal to answer as contemplated by s 190 of the Act. This section relevantly provides:-
“190. Refusal to answer question
(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer.
Maximum penalty – 85 penalty units or 1 year’s imprisonment
(2) The person is not entitled –
(a) To remain silent; or
(b) To refuse to answer the question on a ground of privilege, other than legal professional privilege.
(3) …”
Mr Trevino of Counsel for the respondent correctly asserts that the criminal standard of proof is required in these circumstances. He argues that a tribunal could not be satisfied that a person had refused to answer a question unless the question had been posed in a direct way for the witness to answer.
I do not accept this submission. I take the view that there a number of ways in which refusal to answer a question can be communicated to the questioner. Remaining silent is obviously one. Responding in a non-sensical way is another. More commonly refusal arises where a witness falsely claims not to remember an event. In that circumstance a refusal is established if the Court is satisfied beyond reasonable doubt that the answer is –
(1) knowingly false; and
(2) that the person intended to leave the question unanswered.[4]
[4]See Hammond v Aboudi (supra)
But also it is sufficient if there is an expressed intention to remain silent. In Keeley v Brooking[5], the High Court considered the question of contempt by falsely asserting a lack of recollection. Mason and Aickin JJ (Stephen J agreeing) said:-
“The judgment in Coward v Stapleton stipulates the circumstances in which a court will be justified in concluding that a witness has been guilty of refusing to answer questions and thus of contempt of court where the witness has, in form, given answers to the questions put to him. What is required is “an evinced intention to leave a question or questions unanswered”. We do not read the judgment as saying that such an intention is established only when the purported answers can be described as “plainly absurd” or “palpably false”. Indeed, it is clear that these expressions were merely employed by the Court to characterize the evidence of the appellant in that case. What does emerge as a general proposition from Coward v Stapleton is that “there must be a manifestation in some form of an intention on the part of the witness not to give a real answer”. And as the Court observed, the manifestation of that intention may “depend upon considerations of degree, which may strike different minds in different ways”.[6]
[5][1978-9] 143 CLR 162 (1979) 143 CLR 162 p 179
[6]Ibid at p 178; see also Coward v Stapleton (1953) 90 CLR 573/578
Before such an intention can be established it is necessary for the questioner to have distinctly identified the particular conduct which constitutes the offence. MacGroarty v Clauson[7]. What is sufficient particularity is a question of fact. Hammond (supra) at [50].
[7](1989) 167 CLR 251
As appears from the transcript and as relied upon in the Certificate, the question proposed by the presiding officer sought “the identity of the suppliers” to the respondent of the specifically identified dangerous drugs. The respondent had by that time, been warned of the consequences of refusing to answer and he was legally represented. The respondent, in my view, clearly ‘manifested an intention’ not to give an answer to that specific question.
I am satisfied that in the context of the respondent’s initial blanket refusal to answer questions, the identification to him of the matter under investigation and the framing of the terms of the proposed question that, the respondent has communicated his intention to remain silent. I find that this constitutes a refusal to answer in contravention of s 190 of the Act and that it would be an act of contempt to the presiding officer in a duly authorised hearing. Whether the hearing was in fact authorised remains to be determined.
Penalty
In circumstances such as these, it is open to the Court either to impose imprisonment for an indefinite period or to fix a definite term having regard to the likelihood of the respondent ever providing an answer to the question. Here, both parties submit that the preferred course is to fix a definite term of imprisonment.[8]
[8]Transcript 1-34/20; 1-40/20
The respondent is currently in prison on remand awaiting prosecution for 12 drug related offences with which he has been charged. He is 30 years of age and has one prior conviction for assault.[9] He left school at age 14 and has worked in a variety of occupations since that time.
[9]Criminal history Exhibit 1
The respondent did not give any reason for refusing to answer. Certainly he made no claim of legal privilege and there is no evidence that he was under any duress. On this application however, his Counsel suggested that he was concerned for his safety and that of his family. It is not possible to gauge the level of any threat of this kind but there is always a generalised fear about recrimination from prison inmates for persons who are believed to be informants.
I have been referred to a number of authorities which reveal a wide sentencing range for contempt of a presiding officer. In some, the evidence of duress and threats to personal safety of the witness is quite clear. Other cases refer to different types of crimes under investigation. The cases which are most relevant to the respondent’s offending are: Callanan v Schultz; Callanan v Eyre and Callanan v Beale.[10] These cases suggest a sentencing range of 6 – 8 years.
[10]Unreported No 1442/04; unreported No 10763/03; unreported No 373/08.
In the circumstances of this case and, particularly having regard to the importance to the community of maintaining the effectiveness of the Commission’s powers, I regard the sentence of eight months imprisonment as being appropriate. That is the sentence I would impose if the hearing was duly authorised.
Was the hearing authorised?
The hearing was undertaken by the applicant in performance of the Commission’s major crime function “to investigate major crime referred to it by the Reference Committee” pursuant to s 26 of the Act. That committee is the Crime Reference Committee (CRC) established by s 274. In fact, the authorisation relied upon by the applicant was a referral which had been made under the Crime Commission Act 1997 (“the repealed legislation”). The reference, known as the “Freshnet reference”, came into being on 3 August 1998. It survives as a reference by virtue of s 355 of the Act whereby such a reference “is taken to be a referral of major crime to the Commission by the Reference Committee under this Act subject to any limitations imposed by the Management Committee under the repealed Act”.
The scope of the Freshnet reference is stated in general terms.[11] It reads:-
[11]Exhibit I to affidavit of M J Scott sworn 19 November 2008
“The relevant criminal activity to which reference is made in the written referral to the Queensland Crime Commission by the Queensland Crime Commission Management Committee dated 3 August 1998 and described as QCC Reference No. 8/98 is –
Criminal activity (including preparatory to, or undertaken to avoid detection of or prosecution for such activity) –
(a) Which may have been engaged in since 1 January 1990 or which may be being engaged in or which may be engaged in:
and
(b) Which may have been engaged in or may be being engaged in or may be engaged in by established criminal networks including groups of two or more persons who, for example,
- have an understanding of law enforcement methodology and its limitations; or
- have access to law enforcement or regulatory information; or
- demonstrate willingness and capacity to pervert the course of justice through the intimidation of officials;
and
(c) which involved or may involve
- an offence or offences against the Drugs Misuse Act 1986 of trafficking in, supplying, producing and otherwise dealing in dangerous drugs; or
- an offence or offences against the Crimes (Confiscation) Act 1989 of money laundering; or
- an offence or offences against the Criminal Code of violence, extortion, theft, fraud, forgery or interference with the administration of justice through the fabrication of evidence, the corruption of witnesses, or conspiracy to defeat justice;
and
(d) which involved or may involve –
- an offence or offences punishable on conviction by a term of imprisonment not less than seven (7) years; and
- two (2) or more persons; and
- substantial planning and organisation or systematic and continuing activity; and
- a purpose to obtain profit, gain, power or influence.”
The Freshnet reference has since been revised by the CRC on two occasions to include topics not relevant to present considerations.
As can be seen, the Freshnet Referral couched in such general terms did not invite any particular investigation. None of the Commission’s exceptional powers were evoked by the referral in those general terms. Rather, it did no more than grant a general power of investigation into major crime in relation to serious drug offences engaged in by two or more persons. But the manner in which it has since been used has had the effect of giving to investigators access to the powers of the Commission.
Mr Trevino of Counsel for the respondent argues that the process whereby Operation Destiny was referred to the Commission under the Freshnet reference, avoided the checks and balances on the exercise of the Commission’s powers as provided by the CRC. He referred to the express terms of the sections by which the grant of investigative powers is framed. By s 5 the purpose is “to effectively investigate particular cases”. He argues that s 46 of the repealed legislation s 28 only make sense if the Management Committee/CRC were dealing with activities of a particularised major crime. This is supported by the repeated references to “the major crime”. By contrast the Freshnet reference, by its terms, did not identify any particular major crime, rather it referred to a class of criminal activity and as a consequence the specific public interest considerations of s 28 simply did not arise.
The respondent challenges the validity of the Freshnet reference to inquire into his conduct. Firstly, on the grounds that it was not authorised by the terms of the repealed legislation because of the generality of its terms. Secondly, he argues that the hearing could only have been validly undertaken by the Commission upon a CRC referral, specifically dealing with an investigation into the circumstances of “Operation Destiny”. This submission challenges the longstanding practice within the Commission of allowing crime investigations to be undertaken pursuant to the Freshnet reference.
This practice has been adopted by an internal committee of the Commission, the Crime Intelligence and Research Review Committee (CIRRC). The applicant, though not himself a member of CIRRC, described its role in deciding whether a particular investigation falls within the scope of an existing referral or whether it should be referred to the CRC for a specific referral to the Commission. He said:-
“8.While all CMC crime division investigations are undertaken pursuant to a referrals from the Crime Reference Committee, referrals are of two (2) types:
a.Specific ‘stand alone’ referrals – which specify the particular activity being investigated (such as a murder) and/or persons suspected of being involved in that criminal activity;
b.General ‘umbrella’ referrals – which broadly describe the major crime activity to be investigated (such as outlaw motorcycle gang activity or criminal paedophilia) without reference to nominated individuals or a particular criminal network.
9.The role of CIRCC is to consider whether a proposed investigation:
a.falls within the terms of an existing ‘umbrella referral from the Crime Reference Committee; and
b.should be undertaken by the crime division of the CMC.
10.Before making a decision to undertake an investigation, CIRCC obtains legal advice in relation to whether a proposed investigation falls within an ‘umbrella’ referral from the Crime Reference Committee.
11.In the event that CIRCC is of the view that a matter may not fall under an umbrella referral, a specific referral may be sought from the Crime Reference Committee to investigate that matter.”[12]
[12]Affidavit of Michael Scott sworn 19 November 2008
It is to be observed at once that the provisions of the Act do not make any distinction between specific and general referrals, nor of any role for the CIRRC. The CIRRC does not have statutory authority and its membership is not prescribed.
On 22 October 2008 the CIRRC resolved that “a tactical organised crime investigation code named Operation Destiny would be conducted pursuant to the Freshnet Organised Crime reference”. The description of the particular criminal activity to be investigated was described as –
“An investigation into:
Criminal activity including activity preparatory to, or undertaken to avoid detection of or prosecution for such activity since 1 January 1990.- which may have been engaged in or may be being engaged in or may be engaged in by C and his associates including M, J, J and M and/or S and D; and
- which involve or may involve –
- an offence or offences against the Drugs Misuse Act 1986 of trafficking in, supplying, …”[13]
Whilst these terms identify particular persons there are no particulars as to time, place or conduct.
[13]Affidavit of Danii Jaclyn Waters sworn 11 November 2008 Exhibit A
Mrs Pearson of Counsel for the applicant argues that the CRC had no referring role to play in the investigation of Operation Destiny. The Commission’s authority stemmed from the Freshnet reference which was validly made pursuant to s 46 of the repealed legislation. The Freshnet reference was made pursuant to a request of the Crime Commissioner. Whereas pursuant to s 46(4) and s 46(5) of the repealed legislation, on a request by the Police Commissioner or acting on its own initiative, the Management Committee had to have regard to the public interest, on a request by the Crime Commissioner, it did not. She contends that the constraints applicable to a request by the Police Commissioner or even to the Management Committee acting on its own initiative, did not apply. Accordingly, there was no need for the Crime Commissioner to identify any particular crime or particular relevant activity in respect of which the public interest into its investigation needed to be assessed.
I am informed that the arguments raised on this issue have not been the subject of judicial consideration. Certainly, I have not been referred to any authority which touches upon the issues.[14] Various cases to which I have been referred do note the fact that the Commission’s hearing was undertaken pursuant to the Freshnet reference. See, example, Callinan v Beale (supra). Consequently, the issues necessarily involve a consideration of the terms of the Act and of the repealed legislation.
[14]Transcript 1-14/40
Scheme of the Act
The Commission is a creature of statute which came into force on 1 January 2002. One of its objects was to effect an amalgamation of two existing bodies, the Queensland Crime Commission (QCC) and the Criminal Justice Commission. The Commission was established by the Act for the purpose, inter alia, “to control and reduce the incidence of major crime”[15]. For this purpose, “the Commission is to have investigative powers, not ordinarily available to the Police Service, that will enable the Commission to effectively investigate particular cases of major crime”.[16] The exercise of these exceptional powers in some instances will abrogate an individual’s fundamental right, freedom or immunity. The exercise of these exceptional powers is important for the effective investigation of major crime, and are essential tools for the protection of the public. However the jurisdiction of the Commission, derived as it is from a statutory grant, is subject to any limitations imposed by Parliament at the time of the grant.
[15]Section 4
[16]Section 5 (2)
In its major crime function, the Commission can act only upon matters referred to it by the Crime Reference Commission (CRC)[17]. The CRC also has the authority to direct the Commission in certain respects about investigations but otherwise the Commission must act independently.[18] The CRC has responsibility “for referring major crime to the Commission for investigation and has a coordinating role for investigations into major crime conducted by the Commission in cooperation with any other law enforcement agency”.[19] It may do so on its own initiative but only if satisfied that an investigation is unlikely to be effective using powers ordinarily available to the police and it is in the public interest for the major crime to be referred. It may do so at the request of the Commissioner of Police but only if it is satisfied that the Police Service has carried out an investigation, that further investigation is unlikely to be effective using ordinary powers and it is in the public interest for the major crime to be referred.[20] The CRC may do so at the request of the Assistant Commissioner, Crime without any such expressed restraint.
[17]Section 25
[18]Sections 29 and 57
[19]Section 8
[20]Section 28
Section 28(3) identifies an overriding obligation for the CRC in making any such referral to consider the public interest, both generally and by reference to the expressed considerations in the subsections. The evident purpose of having the CRC make the referral of the major crime to be investigated using the Commission’s powers is that the public interest demands that this be so. The membership of the CRC is dictated by s 278 and includes persons who are independent of the Commission and of diverse interests, such as would ensure that the public interest is protected. The Act is quite prescriptive about appointments to the CRC, the conduct of its meetings and the disclosure of interests.[21]
[21]Sections 279-290
There is a direct relationship between the CRC and the Assistant Commissioner, Crime. The latter has a general obligation to keep the CRC informed of the Commission’s functions. As well, the CRC may seek information from the Assistant Commissioner, Crime.[22] But this does not suggest that when the Assistant Commissioner, Crime makes a request of the CRC to refer a major crime to the Commission pursuant to s 28 of the Act, that no public interest consideration is required. Nor, in my view, does the expressed restraints on a request by the Police Commissioner or upon the CRC acting on its own initiative suggest that public interest considerations are excluded.
[22]Section 277
It is clear from the terms of s 28 and s 277 that Parliament intended that there would, in the public interest, be some continuing oversight by the CRC of the Commission’s functions. This attention to monitoring the activity of the Commission is noted throughout Chapter 6 of the Act by the establishment of a parliamentary committee (s 291), a parliamentary commissioner (s 303) and a public interest monitor (s 324).
The Freshnet reference under the repealed legislation
The Freshnet reference was made under the provisions of the Crime Commission Act 1997 (CCA). Section 38 established a Management Committee which effectively had the same role and obligations as the CRC described above. The relationship between the Management Committee and the Crime Commissioner and considerations of the public interests as dictated by s 46 of the CCA were the same as those arising from s 28 referred to above.
No such standing reference was provided for in the repealed statute for major or organised crime. Each reference dealing with those topics had to relate to a particular activity in the same manner as s 28 of the Act is to be applied now.
Whilst nothing is known of the Management Committee’s considerations in making the Freshnet reference, its terms do not identify any particular activity requiring investigation. The Freshnet reference did not require the QCC’s use of any of its exceptional powers for any particular case which had been scrutinised by the Management Committee. The Management Committee purported to make the Freshnet reference pursuant to s 46. The reference in the section to “relevant criminal activity or a major crime” required the identification of a particular activity. There were no particular circumstances by which the Management Committee could have concluded, conformably with s 46 of the repealed legislation, that any investigation was unlikely to be effective using powers ordinarily available or that circumstances existed to require intervention in the public interest. The Freshnet reference has all the hallmarks of a standing reference which was not authorised by the statute.
Section 46 is in terms identical to s 28 of the Act save for one exception. The repealed provision by subsection (7) provided as follows:-
“(7) Despite this section, QCC is taken to have a standing reference from the Management Committee to investigate criminal paedophilia.”
By s 355 of the Act the standing reference to investigate criminal paedophilia under the repealed legislation came to an end. This section provides:-
“355. Continuation of references
(1)Each referral to the crime commission by the management committee under the repealed Crime Commission Act1997 is taken to be a referral of major crime to the commission by the reference committee under this Act subject to any limitations imposed by the management committee under the repealed Crime Commission Act 1997.
(2)However, the standing reference to investigate criminal paedophilia mentioned in section 46(7) of the repealed Crime Commission Act 1997 ended on that Act’s repeal.”
Subsection (2) is an indication of the legislature’s intention that there should be monitoring by the CRC of all matters sought to be referred to the Commission even matters of paedophilia.
To the extent that referrals by the Management Committee to the QCC survived by reason of s 355, they will do so only to the extent that they were a valid exercise of the powers under the repealed Act. The applicant contends that the Freshnet reference is intrinsically valid. He did not suggest that any invalidity in the referral would be cured by the terms of s 355 deeming to have been made by CRC.
Having found that the Freshnet reference was not a valid referral to the QCC under the repealed legislation, I find that it cannot be relied upon by the Commission for its investigation into the activities identified in Operation Destiny. The Commission has the power to abrogate or curtail fundamental rights or freedoms. It is a well settled proposition that parliament does not intend to interfere with such rights or freedoms. This presumption has found expression in numerous cases.[23] For example in Coco v The Queen[24] McHugh J said (at p 437):-
“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with a question because, in a context in which they appear, they will often be ambiguous on the aspect of interference with fundament rights.”
[23]Potter v Minahan (1908) 7 CLR 277; Bropho v Western Australia (1990) 171 CLR 1; L-Kateb v Godwin [2004] 78 ALJR 1099; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 per Gleeson CJ at para [30]; Daniels Corp v ACCC (2002) 213 CLR 543 para [11]
[24](1994) 179 CLR 427
Questions as to the scope of a statutory authority to interfere with fundamental rights and whether the prerequisites for the exercise of such authority have been fulfilled require a consideration of the Act as a whole. In this case the legislation gave no power to the Commission to launch investigations of its own initiative or on referral from such committees as it may choose to establish. The Commission’s right to use its exceptional powers under the Act is dependent upon the Commission conducting an investigation in performance of its crime function pursuant to s 25 of the Act. That function is limited to a major crime referred to it by the CRC having regard to the public interest. This, it seems to me, is a significant and necessary qualification upon the use of the exceptional powers. The statutory check on the use of the Commission’s powers to investigate the activities such as those identified in Operation Destiny is the supervision by the CRC. That it seems to me to be an “inviolable limitation or restraint” on the exercise of its power, to adopt the phrase used by Mason ACJ and Brennan J in The Queen v Coldham; ex parte Australian Workers Union.[25]
[25][1982-3] 153 CLR 415 at 419
The legislative requirement of supervision by the CRC before referral to the Commission is not excused because the request was made by the Assistant Commissioner, Crime. Otherwise, there would be no need for the Assistant Commissioner, Crime to make the request envisaged by s 27(1)(b)(ii) of the Act. Once such a request is made there is no reason to suppose consideration of the request would be less rigorous than that when the CRC acts on its own initiative. One must presume that parliament intended some unifying approach to be taken by the CRC. In Electrolux Home Products Pty Ltd v The Australian Workers Union[26] Gleeson J said (at para [21]):-
[26](2003) 78 ALJR 1231
“The presumption is not merely a common sense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to the parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”
Further, in Plaintiff S157/2002 v Commonwealth[27] Gleeson CJ said at para [19]:-
“Courts do not impute to the legislature an intention to abrogate certain human rights and freedoms (of which personal liberty is the most basic) unless such intention is clearly manifested in unambiguous language, which indicates that the legislature has directed its attention to the rights and freedoms in question and has consciously decided upon abrogation or curtailment.”
[27][2003] 211 CLR 476
In both the repealed legislation and in the present Act the legislature has consciously decided upon abrogation or curtailment of fundamental rights. But it has imposed restraints upon the circumstances in which this occurs. Specifically that required supervision by the Management Committee/CRC having regard to the public interest.
The Management Committee, when making the Freshnet reference in 1998, was unlikely to have contemplated the specific investigation of Operation Destiny. Now by use of the Freshnet device, supervision by the CRC has been circumvented by a resolution of the CIRRC. Without the activities of Operation Destiny being referred by the CRC, the Commission’s investigative powers were not validly invoked.
Conclusion
In my view, the hearing undertaken by the applicant was not part of an investigation which the Commission was authorised to undertake. That being so, I find that the respondent was not in contempt of the presiding officer. I therefore dismiss the application.
Orders
I make the following orders:-
1. The application is dismissed.
2. The applicant pay the respondent’s costs to be assessed on the standard basis.
2