Sorby v the Commonwealth

[1983] HCA 10

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan and Dawson JJ.

SORBY v. THE COMMONWEALTH

(1983) 152 CLR 281

18 March 1983

Crown—Evidence—Statutes

Crown—Royal Commission—Commonwealth and State joint Commission—Evidence—Questions the answers to &hich might incriminate witness—Privilege against self-incrimination—Whether abrogated by statute—Documents seized from witness's house and delivered to Commission—Whether seizure and detention lawful—Commonwealth Commission—Judicial power—Power to compel witness to answer questions—The Constitution (63 &64 Vict. c. 12), Ch. III—Royal Commissions Act 1902 (Cth), ss. 6DD, 6A, 6F—Commissions of Inquiry Act of 1950 (Q.), ss. 9(2) (ii), 14(2), 19(1)—Crimes Act 1914 (Cth), s. 10—Criminal Code (Q.), S. 679—Health Act 1937 (Q.), s. 131A. Evidence—Privilege against self-incrimination—Whether abroagated by statute—Royal Commissions Act 1902 (Cth), ss. 6DD, 6A—Commissions of Inquiry Act of 1950 (Q.), ss. 9(2)(ii), 14(2). Statutes—Amending statute—Abrogation of common law rule—Application to acts of Royal Commissioner appointed before commencement of amending statute—Royal Commissions Act 1902 (Cth), s. 6A(2).

Decisions

March 18.
The following written judgments were delivered: -
GIBBS C.J. This case raises for decision important questions in relation to the conduct of an inquiry which is being conducted by a Royal Commissioner who has been appointed by letters patent issued in substantially the same terms by the Administrator of the Government of the Commonwealth and the Governor of the State of Queensland. The questions concern the power of the Commissioner, acting under either Commission, to compel a witness to answer questions in respect of which the witness has claimed privilege against self-incrimination, and the power of the Commissioner to take into his possession, retain and use, and, in the case of documents, to copy, things which have been seized under search warrant from the homes of their owners. (at p286)

2. The case comes before the Court by way of demurrer. The facts alleged in the amended statement of claim, which for the purposes of the demurrer must be accepted as correct, and appearing from the documents which must be read with the statement of claim, are as follows. On 25 June 1981, the Governor-General of the Commonwealth and the Governor of the State of Queensland each issued letters patent appointing the Honourable Donald Gerard Stewart, a judge of the Supreme Court of New South Wales, to inquire into, inter alia, whether one, Terrence John Clark, was engaged in activities involving contravention of the laws of the Commonwealth and of the State of Queensland respectively, and in particular laws relating to the importation, exportation or possession of drugs, and as to the identity of persons associated with the said Terrence John Clark and the extent and nature of the activities and methods of operation of the said Terrence John Clark and his associates. The Royal Commissioner, purporting to act pursuant to each of the letters patent, on 2 September 1982, called the second plaintiff to give evidence and, over objection, declined to warn him that questions put to him need not be answered on the ground that they might incriminate him. On 21 October 1982 the Royal Commissioner, again purporting to act pursuant to each of the letters patent, called both of the plaintiffs as witnesses, and, over objection, declined to allow either plaintiff to refuse to answer questions on the ground that they might incriminate him, and directed and compelled each plaintiff to answer questions asked of him without regard to the tendency of such questions to incriminate him. On 12 October 1982 the homes of the plaintiffs and their families were searched by officers of the Australian customs service and the Queensland police force "together with members of the Queensland police force seconded to act as officers of the Royal Commission". The searches were made under warrants issued under either s. 10 of the Crimes Act 1914 (Cth), as amended, s. 679 of the Criminal Code (Q.) or s. 131A of the Health Act 1937 (Q.), as amended. As a result of these searches various things were seized and given into the custody of the Royal Commissioner, who has retained possession of some of the things seized, and who claims to be entitled to use them, or to make copies of such as are documents, for the purposes of his inquiries as Royal Commissioner. The Royal Commissioner now intends to compel the attendance before him and the examination on oath of the plaintiffs in respect of matters concerning the search and seizure of their property and concerning matters which, either alone or in combination with other matters, may incriminate the plaintiffs. It should be observed that it is not alleged that either plaintiff has been charged with any criminal offence, still less that any criminal proceedings are pending against either plaintiff. (at p287)

3. The first question that arises is whether the Royal Commissioner, acting under the letters patent issued by the Governor-General, may compel the plaintiffs to answer questions which may tend to incriminate them. A material change in the law has occurred since the plaintiffs were called before the Royal Commissioner in October 1982. That has been effected by the Royal Commissions Amendment Act 1982 (Cth) which took effect on 1 February 1983. It is, however, convenient to consider the law as it was before the Act came into force and then to consider the effect of the amendments which it has brought about. (at p287)

4. By the Royal Commissions Act 1902 (Cth), as amended, in the form which it took prior to 1 February 1983, a Commissioner, acting under letters patent issued by the Governor-General, was given certain powers as to the summoning and examination of witnesses. By s. 2, a Commissioner was empowered to summon any person to attend the Commission to give evidence and to produce any books, documents or writings in his custody or control. By s. 3, a Commissioner was empowered to administer an oath to any person appearing as a witness before the Commission and to examine the witness upon oath. By s. 5(1) it was provided as follows:

"If any person served with a summons to attend the Commission, whether the summons is served personally or by being left at his usual place of abode, fails without reasonable excuse to attend the Commission, or to produce any documents, books, or writings in his custody or control which he was required by the summons to produce, he shall be guilty of an offence. Penalty: One thousand dollars."

By s. 1B, it was provided, inter alia, that unless the contrary intention appears -

"'reasonable excuse' in relation to any act or omission by a witness or a person summoned as a witness before a Commission means an excuse which would excuse an act or omission of a similar nature by a witness or a person summoned as a witness before a court of law."

Section 6 provided as follows:

"If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him by any of the Commissioners he shall be guilty of an offence. Penalty: One thousand dollars."

Section 6D(1) provided that a witness need not disclose to a Commission any secret process of manufacture, and s. 6D(2) provided that evidence might be taken in private when it related to the profits or financial position of any person and if the taking of the evidence in public would be unfairly prejudicial to the interests of the person giving it. By s. 6D(3) a Commission was given power to direct that any evidence given before it, or the contents of any documents, books or writings produced at the inquiry, should not be published. Section 6DD provided as follows: "A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory." (at p288)

5. If these provisions had embodied the whole law on the subject, they would no doubt have had the effect that a person appearing as a witness before a Royal Commission was obliged to answer any relevant question put to him by the Commissioner, even if it tended to incriminate him. Section 6 appears to impose an obligation to answer questions which is absolute, except in so far as it is qualified by the provisions of s. 6D(1), and its provisions may be contrasted with those of s. 5(1), which allow a reasonable excuse for a failure to attend the Commission or to produce documents, books or writings. However, the provisions of the statute have to be interpreted against the background provided by the common law. It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so "may tend to bring him into the peril and possibility of being convicted as a criminal": Lamb v. Munster (1882) 10 QBD 110, at p 111 . The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; "to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer": Reg. v. Boyes (1861) 1 B &S 311, at pp 329-330 (121 ER 730, at p 738) . That statement of the law has frequently been approved; see Ex parte Reynolds; In re Reynolds (1882) 20 ChD 294 ; Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd (1939) 2 KB 395, at pp 403-404 ; In re Westinghouse Uranium Contract (1978) AC 547, at pp 612, 627, 647 . It is clear that in England the Parliament may take away the privilege and enact that a party may be bound to accuse himself: Reg. v. Scott (1856) Dears &B 47, at p 59 (169 ER 909, at p 914) . Whether the powers of the Commonwealth Parliament under the Constitution are more restricted in this respect is a matter to which I shall later refer. Although the legislature may abrogate the privilege, there is a presumption that it does not intend to alter so important a principle of the common law. In Kempley v. The King (1944) ALR 249, at p 253 , Starke J. went so far as to say that "where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded". However, he went on to say that "whether the rule is excluded must depend upon the provisions of the legislative act or the nature of the subject", and this appears to recognize that an intention to exclude the privilege may appear although there are no express words of exclusion. Although there are not wanting other statements to the effect that the privilege will not be taken away without express words (see, for instance, Crafter v. Kelly (1941) SASR 237, at pp 241-242 ) it is not correct to say that if the legislature wishes to render the privilege unavailable it must in every case do so expressly. The character and purpose of the statute may indicate that it should not be construed so as to preserve the privilege: see, e.g. Mortimer v. Brown (1970) 122 CLR 493 and Rees v. Kratzmann (1965) 114 CLR 63, esp at p 80 , but cf. Mitcham v. O'Toole (1977) 137 CLR 150 . However, a statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears: see R. v. Associated Northern Collieries (1910) 11 CLR 738, at p 748 , and Ex parte Grinham; Re Sneddon (1961) SR (NSW) 862, at pp 870-871, 874-875 . (at p290)

6. The only possible indication given by the Royal Commissions Act, before its amendment in 1982, that it was intended to exclude the privilege was to be found in the provisions of s. 6DD, which render inadmissible a statement made by a witness in giving evidence before a Royal Commissioner. The general words of s. 6, even when contrasted with those of s. 5(1), cannot suffice to reveal such an intention. I have already referred to the authorities which establish that the privilege to decline to answer a question is only available if there is reasonable ground to apprehend danger of incrimination to the witness if he is compelled to answer. Therefore a witness cannot refuse to answer a question which tends to show that he has committed a crime for which he cannot be convicted and punished - for example, because he has received a pardon (Reg. v. Boyes), or a certificate under the statute 15 &16 Vict. c. 57 which protects him against all criminal prosecutions (Reg. v. Charlesworth (1860) 2 F &F 326 (175 ER 1081) ), or because he has already been convicted or acquitted of the crime (In re Genese; Ex parte Gilbert (1886) 3 Morr 223 ), or because the time for prosecution for the crime has expired (Roberts v. Allatt (1828) M &M 193 (173 ER 1128) ; Mitton v. Curl (1922) SASR 282 ). In Brebner v. Perry (1961) SASR 177 it was held that a witness who had already implicated himself in the Commission of an offence by an earlier statement to the police could not object to answering questions on the ground that they might incriminate him. It is unnecessary to consider whether that was a correct application of the principle that an objection on the ground of privilege will not be upheld unless there is a real and appreciable risk to the witness, although Lord Denning M.R. in In re Westinghouse Uranium Contract (1978) AC, at p 574 appears to have taken the view that it was. (at p290)

7. The question then arises in the present case whether the fact that a statement made by a witness in the course of giving evidence before the Commission cannot be used in evidence against him means that there is no reasonable ground to apprehend that the witness will be in danger of conviction and punishment if he answers questions put to him before the Commission. In Attorney-General (Vict.) v. Riach (1978) VR 301 , Kaye J. held that the privilege is not available in such a case. The witness there was called before a Board of Inquiry and was asked questions which Kaye J. was prepared to assume might have been the first in a series of questions the answers to which could have had an incriminating tendency (1978) VR, at p 310 . Section 30 of the Evidence Act 1958 (Vict.) precluded the admission as evidence in criminal proceedings against a witness of any statement made by him before the Board of Inquiry. Kaye J. said (1978) VR, at p 310 :
"It follows therefore that by answering questions before the Board which might form links in a chain of questions tending to establish the Commission of a criminal offence by him, the respondent would not be at risk of having such evidence admitted in evidence in a criminal prosecution against him in proof of his guilt of a criminal charge."
Counsel in that case advanced the contention that if an answer to a question by a witness might lead to investigations which in turn might provide evidence which, together with the evidence already available, would form a chain of evidence sufficient to support a criminal charge against him, the witness would be likely to be endangered by his answer, since s. 30 did not apply to evidentiary material discovered as a result of incriminating statements made by a witness, and the privilege against self-incrimination was therefore not abrogated by the statute. Kaye J. rejected that contention, holding that it was based upon a misconception of the object of the privilege. He said (1978) VR, at p 311 :

"The purpose of the privilege is to protect a person from the use as evidence against him in legal proceedings of a statement made by him under compulsion of law which might have a tendency of criminating him. The protection given him is against the use of his own testimony or statement as evidence in legal proceedings as proof of the Commission of an offence by him."

He referred to Wigmore on Evidence (1961 ed.), vol. VIII, p. 378, par. 2263, where it is said that the history of the privilege suggests that the privilege is limited to "testimonial disclosures" and to King v. McLellan (1974) VR 773, at pp 776-777 , where the passage from Wigmore on Evidence was cited with apparent approval, and continued (1978) VR, at p 311 as follows: "Thus the privilege is designed to exclude from use by way of evidence the witness's own testimony. What might be discovered from investigations made as a result of a witness's statement in the course of evidence would not be a link in a chain of evidence because the evidence given by the witness, which might provoke investigation, would be inadmissible in any prosecution against him by the operation of s. 30 of the Evidence Act." (at p292)

8. When the learned author of Wigmore on Evidence spoke of "testimonial disclosures", he was drawing a distinction between statements or other communications made by the witness on the one hand and real or physical evidence provided by the witness on the other. The privilege prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of a witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he may be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting. That this was the significance of the distinction between "testimonial" and other disclosures was recognized in King v. McLellan, where it was held that the protection afforded by the rule against self-incrimination did not extend to entitle a person who had been arrested to refuse to furnish a sample of his breath for analysis when required to do so under s. 80F(6) of the Motor Car Act 1958 (Vict.). There are decisions to the same effect in Canada (Curr v. The Queen (1972) SCR 889 ) and the United States (Schmerber v. California (1966) 384 US 757 (16 Law Ed 908) - the case of a blood test). It is a misunderstanding to think that a statement is not a "testimonial disclosure" within the meaning of the principle as expounded in Wigmore on Evidence if it cannot be admitted in evidence. An admission is a "testimonial disclosure", whether it can be given in evidence or not. With all respect the reasons given by Kaye J. in Attorney-General (Vict.) v. Riach for reaching the conclusion that the privilege was not available in that case cannot be accepted. (at p292)

9. The question whether a section such as s. 6DD has the effect of excluding the privilege against self-incrimination does not appear to have fallen for decision in any other case in Australia. In Hammond v. The Commonwealth (1983) 152 CLR 188 doubts were expressed as to whether the Royal Commissions Act 1902 had excluded the privilege, but there was no opportunity in that case to give full consideration to the question. In the United States however the matter has been extensively considered. In that country "a maxim (nemo tenetur seipsum accusare), which in England was a mere rule of evidence, became clothed . . . with the impregnability of a constitutional enactment": Brown v. Walker (1896) 161 US 591, at p 597 (40 Law Ed 819, at p 821) . The relevant words of the Fifth Amendment to the United States Constitution, and of corresponding provisions in the Constitutions of various States, have been treated as applying the common law principles which afford the privilege against self-incrimination. It was established by the decision of the Supreme Court in Counselman v. Hitchcock (1892) 142 US 547 (35 Law Ed 1110) that a statute which had the effect that the evidence given by the witness should not be used against him in any criminal proceeding, but which nevertheless left the witness liable to prosecution, did not supplant the privilege. The Court pointed out (1892) 142 US, at p 564 (35 Law Ed, at p 1114) that the statute would not prevent the use of the testimony of the witness to search out other testimony to be used in evidence against him, and "could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted". The Court went on to say (1892) 142 US, at p 586 (35 Law Ed, at p 1122) , that "a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates". To say that there should be "absolute immunity" against prosectution to entitle the witness to protection is to go further than the common law, under which it was not enough for a witness claiming the privilege to show that there was a bare possibility of danger of conviction. It was so held in Reg. v. Boyes (1861) 1 B &S 311 (121 ER 730) , where it was contended on behalf of the witness that although the pardon which he had been given removed any risk of prosecution by the Crown, it was no protection against an impeachment by the House of Commons. The Court accepted that submission, but held that since the witness did not run the slightest risk of impeachment, and was in no real danger from the evidence he was called on to give, the pardon took away the privilege. The Supreme Court of the United States has since departed from the view that immunity from prosecution is necessary before the privilege can be abrogated. In Kastigar v. United States (1972) 406 US 441 (32 Law Ed (2d) 212) it was held that the privilege does not mean that one who invokes it cannot subsequently be prosecuted; but it does require that the witness shall be immune from the use not only of the compelled testimony, but also of any evidence derived directly or indirectly therefrom (1972) 406 US, at p 453 (32 Law Ed (2d), at p 222) . It is unnecessary to discuss further the questions which have arisen in the United States, for it seems to be generally accepted in that country that the privilege requires the proscription of indirect, or derivative, use, as well as direct use, of the evidence which the witness was compelled to give, and that a statutory provision which prevents only the direct use of the evidence is not enough to destroy the privilege. (at p294)

10. Lord Wilberforce, in Rank Film Ltd. v. Video Information Centre (1982) AC 380, at p 443 , seems to have taken a similar view of the scope of the privilege. In that case the House of Lords held that the defendants in a copyright action could avail themselves of the privilege against self-incrimination in making discovery and answering questions. In the course of his judgment, Lord Wilberforce said:
". . . I do not think that adequate protection can be given by extracting from the plaintiffs, as a term of being granted an Anton Piller order, an undertaking not to use the information obtained in criminal proceedings. Even if such an undertaking were binding . . . the protection is only partial, viz. against prosecution by the plaintiff himself. Moreover, whatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character . . . . The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences." (at p294)

11. In the absence of binding authority the matter must be approached from the standpoint of principle. If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. 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. Moreover the existence of such a power tends to lead to abuse and to "the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice": Validity of Section 92(4) of The Vehicles Act 1957 (Saskatchewan) (1958) SCR 608, at p 619 . It is true that in some cases the legislature may consider that it can only achieve the intended purpose of the statute by limiting or abrogating the privilege against self-incrimination, but, as I have said, if the legislature intends to render the privilege unavailable it must manifest clearly its intention to do so. To provide that the answers may not be used in evidence is not to reveal clearly an intention that the privilege should be unavailable, although, if the legislature did intend to remove the privilege, it might, in fairness, at the same time prevent the use in criminal proceedings of statements which otherwise would have been privileged: cf. Rank Film Ltd. v. Video Information Centre (1982) AC, at p 448 , per Lord Russell of Killowen. (at p295)

12. For these reasons, in my opinion, the presence of s. 6DD in the Royal Commissions Act 1902 was not sufficient to reveal a clear intention to enact that a witness called before a Royal Commission should not be entitled to refuse to answer questions on the ground that the answers might tend to incriminate him. I therefore hold that in September and October 1982, when the plaintiffs were called before the Commissioner, they were entitled to refuse to answer questions put to them under the Royal Commissions Act 1902 if they had reasonable ground to apprehend danger of incrimination if the questions were answered. (at p295)

13. However, by the Royal Commissions Amendment Act 1982 amendments have been made to the Royal Commissions Act as in force at the date of that amending statute. Sections 2, 3, 4 and 5 have been repealed and new sections have been substituted. The new ss. 2 and 3 confer and create powers and duties similar to those which existed under the repealed sections, with some changes, no doubt made for the purpose of removing doubts and closing loopholes. I shall refer again to ss. 4 and 5, which create new powers with regard to search warrants. For present purposes, the most important amendment is the enactment of a new s. 6A in the following terms:

"(1) It is not a reasonable excuse for the purposes of subsection 3(2) for a person to refuse or fail to produce a document or other thing that he was required to produce at a hearing before a Commission that the production of the document or other thing might tend to incriminate him. (2) A person is not entitled to refuse or fail to answer a question that he is required to answer by a member of a Commission on the ground that the answer to the question might tend to incriminate him. (3) This section does not apply where the offence in respect of which the production of a document or other thing or the answer to a question might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of." Other amendments also are effected by the Amendment Act and it is necessary only to refer to s. 7AA which is in the following terms: "If, with the consent of the Minister, any functions or powers are conferred on - (a) a sole Commissioner; or (b) all the members of a Commission,

by the Governor of a State or a Minister of a State, the sole Commissioner, or the members of the Commission, as the case may be, may perform those functions or exercise those powers in conjunction with the performance or exercise by the sole Commissioner, or by the members of the Commission, as the case may be, of his or their functions or powers under this Act." (at p296)

14. There cannot be the slightest doubt that s. 6A of the Royal Commissions Act 1902, as amended, (if valid) has the effect that a witness before a Royal Commission conducted under that Act is bound to answer questions if required to do so by a member of the Commission notwithstanding that his answers might tend to expose him to a criminal charge. However, on behalf of the plaintiffs it was submitted that the amending legislation should be given a prospective operation in such a way that it does not apply to evidence given at a Royal Commission established before the amending Act was passed. Particular reliance was placed on the decision of this Court in Newell v. The King (1936) 55 CLR 707 . That case concerned a statute which provided that "on the trial of any criminal issue", except upon a capital charge, the decision of a majority of jurors might be taken as the verdict of the jury after two hours' deliberation. Before the statute came into operation, the prisoner had been arraigned on an indictment for manslaughter to which he had pleaded not guilty and his trial had proceeded, but because the jury did not agree upon any verdict, he had been remanded to a later sitting. After he had been remanded, but before his trial again proceeded, the statute came into operation. It was held that the enactment did not apply, and that the prisoner could not be convicted except on a unanimous verdict. In that case the trial had begun when the prisoner was called upon to plead, and it was held that the general words of the statute should not apply to a trial alredy begun, with the consequence of "depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict": per Dixon J. (1936) 55 CLR, at pp 712-713 . That case has no bearing on the present. Section 6A is undoubtedly prospective in the sense that it refers only to a refusal or failure to answer a question that the witness is required to answer at a time after the passage of the Amendment Act. The privilege against self-incrimination arises only when the question is asked. The fact that a Commission had been established, and that a witness had given evidence before it, at a time before the Amendment Act came into operation, did not give the witness a vested right to claim the privilege whenever he might be questioned in the future. The Amendment Act did not affect any privilege to decline to answer a question asked before the amendment took effect. In other words, if s. 6A applies to questions asked after the date on which that section became law, by a Royal Commissioner who had been appointed before that date, it will not affect any accrued right of a witness, or impose on any witness a liability for anything done before the Amendment Act came into force. In my opinion it is clear that the intention of s. 6A is that its provisions should apply in relation to any refusal or failure to answer a question put to a witness after the Amendment Act had taken effect whether or not the Commission had been established before that date. (at p297)

15. Counsel for the plaintiffs, in submitting that the provisions of s. 6A were not intended to apply to existing Royal Commissions, placed much reliance on s. 7AA which, it was said, could not have been intended to apply to a Commission already in existence. Section 7AA is a rather curious provision. It was recognized in Reg. v. Winneke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1983) 152 CLR 25 that it was competent for a person to perform the functions of Commissioner conferred on him by letters patent issued by the Governor of a State at the same time as he was performing similar functions under letters patent issued by the Governor-General. Section 7AA therefore seems to have been unnecessary, unless it was intended to be restrictive, in that it makes the consent of the Minister necessary where it was not previously so. The submission was that if s. 7AA did apply to existing Commissions it would have the effect that a Commissioner who was conducting an inquiry under letters patent issued before the Amendment Act was passed could not lawfully perform the functions conferred on him by a State Commission in conjunction with those conferred on him by a Commonwealth Commission, unless of course the consent of the Minister had previously been given. Therefore, it was said, s. 7AA cannot be intended to apply to an existing Commission and that provides an indication that s. 6A similarly does not apply to a Commission already established. Of course it is inconceivable that letters patent would have been issued by the Governor-General if the relevant Minister had not consented. Section 7AA is an enabling provision and I can see no reason why it should not apply from the date of its enactment. The other sections substituted in the Royal Commissions Act 1902 by the Amendment Act, particularly the new ss. 2 and 3, must have been intended to apply to existing Commissions, for if they did not there would have been a gap in the law which the Parliament could not have intended. There is nothing in the context of the Royal Commissions Amendment Act 1982 which suggests that s. 6A was intended to be subject to the unexpressed restriction that it should not apply to existing Commissions. (at p298)

16. It was then submitted on behalf of the plaintiffs that s. 6A was not validly enacted. This argument cannot be accepted. The privilege against self-incrimination is not protected by the Constitution, and like other rights and privileges of equal importance it may be taken away by legislative action. Counsel for the plaintiffs sought to find some constitutional protection for the privilege in Ch. III of the Constitution, and submitted that to remove the privilege would be to infringe the guarantee given by s. 80 and to interfere impermissibly with federal judicial power. The fact that in the present case the plaintiffs are not being tried on indictment (or at all) and that no judicial power is being exercised in relation to them is enough to show that these arguments have no present relevance. In any case, the argument that the compulsory examination of a suspected person is inconsistent with the right to trial by jury was rejected unanimously by the members of this Court in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330, esp at pp 358, 375, 385-386, 418 . With all respect, I agree with the view that the privilege against self-incrimination is not a necessary part of a trial by jury. Counsel for the plaintiffs sought to rely on the dissenting judgment of Dixon and Evatt JJ. in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, at pp 580-584 , but that judgment (which in any case expresses a view of s. 80 which has not found general acceptance: Li Chia Hsing v. Rankin (1978) 141 CLR 182 ) does not suggest the contrary. The Parliament can, in relation to a trial by jury, alter the rules of evidence, or the rules relating to the onus of proof: see Milicevic v. Campbell (1975) 132 CLR 307, pp 316-317, 318-319 . Indeed the Parliament has, by s. 79 of the Judiciary Act, rendered applicable to trial by jury in courts exercising federal jurisdiction in the States the laws of those States under which a person charged who gives evidence in a criminal proceeding is not entitled to refuse to answer a question on the ground that to do so would tend to prove that he committed the crime with which he stands charged, notwithstanding that, to the extent to which they apply, such laws take away the privilege against self-incrimination. There is no reason to doubt the validity of the application of such provisions to courts exercising federal judicial power. Similarly, it is no necessary impairment of federal judicial power that a person who may subsequently come to be tried has been compulsorily interrogated before the trial. Hammond v. The Commonwealth (1983) 152 CLR 188 is distinguishable. 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. Under s. 6A, as now in force, a person who is the subject of a pending charge before a court is not denied the privilege of refusing to answer before a Commission questions that might incriminate him of the crime with which he is charged, and neither plaintiff in the present case has been charged. In Kempley v. The King (1944) ALR, at p 252 Latham C.J. said that there was no substance in the argument that it was beyond the legislative power of the Commonwealth to alter the common law as o incriminating questions. I am in agreement with that statement. There is in my opinion no doubt that s. 6A was validly enacted. (at p299)

17. It remains to consider the position of a witness answering questions put to him by the Royal Commissioner in exercise of the powers conferred on him by the Commissions of Inquiry Act of 1950 (Q.), as amended. The relevant provisions of that Act are similar in material respects to those of the Royal Commissions Act 1902 (Cth) before its amendment by the Royal Commissions Amendment Act 1982. Section 5 enables the chairman of a Commission to summon any person to attend before the Commission to give evidence. By s. 9(2)(ii) a person who, being called or examined as a witness before a Commission, refuses to be sworn or to make an affirmation or declaration or refuses or otherwise fails to answer any question put to him by the Commission or any Commissioner relevant to the inquiry shall be guilty of contempt of the Commission. Any contempt is punishable under s. 10 of that Act. The punishment that may be inflicted depends on whether or not the chairman of the Commission is a judge of the Supreme Court, although in either case the chairman may certify the contempt to the Supreme Court which may then punish it as though it were a contempt of that Court. Section 10(4) provides, inter alia, as follows:
"An act or omission by a witness or by a person summoned to appear before a Commission as a witness shall not be punished under this section by the chairman, or by a Judge of the Supreme Court who is not the chairman, as contempt of the Commission concerned where that witness or person satisfies the chairman or, as the case may be, that Judge of reasonable excuse for his act or omission."
Section 14 provides as follows:

"(1) Answers and documents. Nothing in this Act shall make it compulsory for any witness before a Commission to - (i) Disclose to the Commission any secret process of manufacture; (ii) Produce any book, document, or writing if he has a reasonable excuse for refusing. (2) Statements made by witness not admissible in evidence against him. A statement or disclosure made by any witness in answer to any question put to him by a Commission or any Commissioner or before a Commission shall not (except in proceedings in respect of contempt of the Commission or of an offence against any of the sections of 'The Criminal Code' specified in section twenty-two of this Act) be admissible in evidence against him in any civil or criminal proceedings. (3) Protection to and liability of witness. Every witness summoned to attend or appearing before a Commission shall have the same protection and shall, in addition to the penalties provided by this Act, be subject to the same liabilities as a witness in any action or trial in the Supreme Court."

For the reasons that I have given in relation to the effect of the Royal Commissions Act 1902 (Cth) I am of the opinion that neither the provisions of s. 9(2)(ii) nor those of s. 14(2) provide a sufficiently clear indication of an intention to render unavailable the privilege against self-incrimination. Indeed the argument that the privilege has not been abrogated is if anything stronger in relation to the Queensland statute, because s. 10(4) recognizes that a witness may have a reasonable excuse for refusing to answer a question. In The Royal Commission re a Brisbane Hotel (No. 2) (1964) QWN 29 I held that the Commissions of Inquiry Act had not taken away the privilege against self-incrimination. I remain of that opinion. (at p300)

18. I may sum up my conclusions on this aspect of the case as follows. Before 1 February 1983 a person appearing as a witness before a Royal Commission, whether established under letters patent issued by the Governor-General or under letters patent issued by the Governor of Queensland, was entitled to refuse to answer any question on the ground that it might tend to incriminate him. It does not appear from the statement of claim what questions (if any) the plaintiffs did in fact answer in September and October 1982. In any case no cause of action has been shown by the allegations in the statement of claim in respect of anything done before 1 February 1983. Since that date, the Royal Commissions Act obliges any person appearing as a witness before a Royal Commission acting under Commonwealth letters patent to answer any question relevant to the inquiry that he is required to answer by a member of the Commission notwithstanding that the answer might tend to incriminate him, and if the plaintiffs are now asked questions which are put by the Royal Commissioner under the powers conferred on him by the Royal Commissions Act they cannot lawfully refuse to answer them. However, the Queensland law has not been changed and the plaintiffs are entitled to refuse to answer any questions put to them by the Royal Commissioner acting under the powers conferred on him by the Commissions of Inquiry Act on the ground that the answer to such questions may tend to incriminate them. (at p301)

19. The second main issue in the case concerns the question whether the search and seizure of the plaintiffs' property was lawful, and whether the Commissioner was entitled to take possession of the goods and documents seized, and to retain them and to make copies of such as are documents. The warrants under which the search and seizure was effected are before the Court, and they appear in form to satisfy the requirements of the statutory provisions under which they were respectively issued, viz. s. 10 of the Crimes Act 1914 (Cth), as amended, s. 679 of the Criminal Code (Q.) and s. 131A of the Health Act 1937 (Q.), as amended. It was not suggested that the conditions which are laid down in those sections as necessary to be satisfied before warrants may be issued were not fulfilled. Most of the warrants are indorsed with a direction by a justice that the property seized by virtue of the warrant be retained by the Royal Commission until such time as its investigations are completed. Nothing was made of the fact that some of the warrants bear no indorsement; for all that appears nothing may have been seized under the warrants that are not indorsed. The directions appear to have been given under, or by analogy to, s. 682 of the Criminal Code, which requires a person seizing anything under the Code to carry it forthwith before a justice, who, "may cause the thing so seized or taken to be detained in such custody as he may direct, taking reasonable care for its preservation, until the conclusion of any investigation that may be held with respect to it; and, if any person is committed for trial for any offence committed with respect to the thing so seized or taken, or committed under such circumstances that the thing so seized or taken is likely to afford evidence at the trial, he may cause it to be further detained in like manner for the purpose of being produced in evidence at such trial". Things seized under s. 131A of the Health Act 1937 (Q.), as amended, may, under s. 130M(3) of that Act, be retained for a period of twelve months unless it is sooner established to the satisfaction of the Attorney-General that at the time of seizure and retention no offence against any provision of that Act in relation to that thing had been committed (in which case the thing shall be returned to the person from whom it was seized) or within that period proceedings for an offence against that Act in relation to that thing, or, in which that thing may be used as evidence, have been instituted (in which case the thing shall be retained until the final determination or other disposal of those proceedings). Section 10 of the Crimes Act 1914 (Cth), as amended, makes no express provision as to the retention of things seized. (at p302)

20. It was submitted on behalf of the plaintiffs that the Royal Commissions Act 1902 (Cth), both before and after its amendment by the Amendment Act of 1982, and the Commissions of Inquiry Act of 1950 (Q.), as amended, contain provisions empowering a Royal Commissioner to obtain and retain documents, and that the Commissioner has no other power of search and seizure. By ss. 2 and 6F of the Commonwealth Act before its amendment, and by ss. 5 and 19 of the Queensland Act, power was given to the Commissioner to summon a person to produce books, documents and writings and to retain and to copy them when produced. By the Amendment Act, a Commissioner acting under the Commonwealth Act has now further powers; he may summon a person to produce things other than documents (s. 2) and, s. 6F has been amended to refer to things as well as documents; reference will later be made to its provisions. If the Commission is a "relevant commission" (i.e. a Commission established by letters patent that declare that the Commission is a relevant Commission for the purposes of the provision in which the expression appears - s. 3 of the Amendment Act) it may procure the issue of search warrants (ss. 4 and 5). However, ss. 4 and 5 of the Amendment Act are not relevant to the present question, since they were not in force when the warrants were issued and the searches and seizures were made. The argument on behalf of the plaintiffs was that in the light of these specific provisions it cannot have been intended that a Commissioner could ensure the production of documents, and acquire a right to retain them when produced, by arranging for a constable or other officer to procure the issue of a search warrant under the general statutory provisions mentioned and to obtain a direction from a justice of the peace that the documents and things seized be delivered to the Commissioner. (at p302)

21. Two separate questions are involved in the plaintiffs' argument. The first is whether the searches and seizures were valid. Although the declaration claimed in the statement of claim speaks of search and seizure by officers of the Royal Commission, it is nowhere alleged that the officers who effected the seizure were authorized to do so by the Royal Commissioner or were acting within the scope of any authority given to them by the Royal Commissioner. In any case, no facts have been alleged that would show that the searches and seizures were not lawfully made. There is nothing to suggest that the warrants were not in due form or that all statutory conditions of their issue were not complied with. It is not possible to construe the provisions of the legislation, either Commonwealth or State, which empowers a Commissioner to obtain the production of documents by the issue of a summons, as having the effect of rendering unavailable the provisions of the Crimes Act, the Criminal Code and the Health Act where, according to their own terms, those statutes were applicable. There is no inconsistency between a statute which empowers a Royal Commissioner to summon a person to produce documents, and one which authorizes a police officer to obtain and execute a warrant entitling him to search and seize documents and other things, even if the things seized are intended to be delivered to a Royal Commission. It is hardly necessary to point out that in some circumstances the execution of a search warrant may prove effective when a summons for production would be of no avail. (at p303)

22. The second aspect of the matter is whether the Commissioner, having been given the documents, may retain and use them. It seems that the power given to a justice under s. 682 of the Criminal Code to direct the retention of a thing seized until the conclusion of an investigation is intended to enable the thing to be held pending an investigation by the police into a suspected crime. In the present case there is nothing to say whether or not such an investigation is now proceeding. However, the statement of claim does not allege wrongful detention by any person except the Royal Commissioner. By s. 6F of the Royal Commissions Act before its amendment, it was provided, inter alia, that a Commissioner "may inspect any documents, books, or writings produced before the Royal Commission, and may retain them for such reasonable period as it or he thinks fit, and may make copies of such matter as is relevant to the inquiry or take extracts from them". Section 19(1) of the Commissions of Inquiry Act confers a power in similar terms. Section 6F of the Royal Commissions Act now gives the Commissioner power to inspect and retain documents or other things produced before or delivered to the Royal Commission. The power of retention is now expressed to be "for so long as is reasonably necessary for the purposes of the inquiry to which the documents or other things are relevant". These statutory provisions were not necessary to enable a Commission to inspect documents produced before it which it deemed to be relevant, because a power to inquire necessarily includes a power to have regard to any material relevant to the inquiry. The statutory provisions were however necessary to give the Commission power to retain documents against the will of those entitled to possession of them, and perhaps also a power to make copies. (at p304)

23. In the present case the documents and other things, having been lawfully seized, were produced before the Commission. The Commissioner therefore had, and has, authority under both the Commonwealth and State legislation to retain for a reasonable period the documents thus produced, and to make copies of or extracts from them, providing of course that they are relevant, which is not put in issue. It may have been doubtful, before 1 February 1983, whether the Commissioner could have retained, against the will of those entitled to possession, things other than documents, but that is now an academic question. There is no allegation that any demand was made for the return of any such things before the Amendment Act was passed, and the Commissioner may now retain them, for the purpose of the Commonwealth inquiry, even if a demand is made. The Commissioner would not however be entitled by the Commissions of Inquiry Act to retain things, other than documents, if they were relevant only to the purpose of the inquiry under the State letters patent and not to the purpose of the inquiry under the Commonwealth letters patent. Although, by s. 19(2) of that Act, a Commissioner is entitled to inspect goods and other things, he is given no power to retain things other than documents. It is not alleged that the Commissioner has retained things relevant only to the State inquiry. Even if the Commissioner had no right to retain such things it does not appear from the facts pleaded that the plaintiffs would be entitled to their return, having regard to the provisions of s. 682 of the Criminal Code and ss. 130M(3) and 131A of the Health Act. (at p304)

24. For these reasons the demurrer of the Commonwealth must succeed entirely. The demurrer of the Attorney-General for Queensland should succeed in part, i.e. in relation to the seizure and retention of documents and other things, but not in relation to the question of privilege. Mr. Justice Stewart did not enter a demurrer and very properly submits to any order that the Court may make. (at p304)

25. I would order: (1) that the demurrer of the Commonwealth be allowed, (2) that the demurrer of the Attorney-General for Queensland be allowed in respect of pars. 6, 6(a), 7 and 8, and claims C and D, of the statement of claim, and that otherwise the demurrer be overruled. (at p305)

MASON, WILSON AND DAWSON JJ. The Chief Justice has set out the facts, the issues and the relevant statutory provisions in his reasons for judgment.

Privilege against Self-incrimination under the Commonwealth Act. (at p305)

2. As we agree with the Chief Justice's conclusion that the new s. 6A, introduced by Act No. 139 of 1982, validly abrogated the privilege from the time when the amending Act came into operation, we have no need to examine the effect of the Commonwealth Act as it stood before the amendment. (at p305)

3. We reject the argument that s. 6A speaks only to Royal Commissions established after the amending Act came into operation. Its language reflects no hint of such a qualification. In terms it applies to the examination of a witness taking place after that date, without regard to the date when the Commission was established. It is therefore appropriate to apply the general rule that an amending Act changes the text of the principal Act from the date when the amending Act comes into operation. (at p305)

4. There is no basis for the suggestion that the provisions of the amending Act disclose a general scheme governing the conduct of Commissions to be established in the future. And such a scheme, if it were to operate sensibly, would need to be coupled with provisions which continue the operation of the repealed sections of the Principal Act in relation to Commissions established before the amending Act came into operation. Yet the amending Act contains no such provisions. Repealed sections of the principal Act such as s. 2 (summoning of witnesses), s. 3 (administration of oath), s. 4 (affirmations), s. 5 (penalty for failure to attend and produce documents), s. 6D(3) and (4) (power to restrain publication) and s. 6F (power to inspect and retain documents) thus have no application to Commissions which continue in operation after the amending Act came into force. On the plaintiffs' interpretation the new provisions of the amending Act do not cover this situation. (at p305)

5. Even if s. 7AA does not apply to Commissions already established, as the plaintiffs submit, a submission with which we are not incolined to agree, this provides no sufficient reason for giving s. 6A a similar construction. Section 7AA is a special provision enabling a State, with the consent of the Minister, to confer powers and functions on a Commissioner. On the plaintiffs' argument s. 7AA is incapable of applying to a Commission previously established. As we have seen, it is otherwise with s. 6A. (at p305)

6. The plaintiffs then argue that s. 6A is beyond the competence of the Parliament because it constitutes an impermissible interference with the exercise of the judicial power and, alternatively, that it infringes s. 80 of the Constitution. The first submission seems to be based on the comment of Deane J. in Hammond v. The Commonwealth (1983) 152 CLR 206 that it is "clear that neither the Parliament nor the Executive Government of the Commonwealth or of a State is competent to prevent or prejudice the judicial exercise by a court of part of the judicial power of the Commonwealth by the type of interference with the due administration of justice in a particular case which would ordinarily constitute contempt of court". (at p306)

7. In Hammond, prior to his examination by the Commissioner, the plaintiff had been committed for trial on a charge of conspiring to export a prohibited export. The Court held that the Commissioner's examination of the plaintiff with respect to matters touching the pending criminal charge constituted an improper interference with the due administration of justice in the proceedings and amounted to contempt of court. However, the next step in the plaintiffs' argument is to say that s. 6A effects an impermissible interference with the administration of justice because a witness under examination at the Commission who, unlike the witness in Hammond, has not been charged can be compelled by the Commissioner to answer questions relating to an offence in respect of which a decision has already been made to charge him. (at p306)

8. It is of the essence of contempt of court, except contempt scandalizing the court, that it be committed in relation to proceedings. For this purpose "proceedings" includes pending proceedings and this expression must be given a sufficiently broad meaning in criminal cases to cover a person who has been arrested and charged: James v. Robinson (1963) 109 CLR 593, at p 606 ; R. v. Daily Mirror; Ex parte Smith (1927) 1 KB 845, at p 851 . But it may not be sufficient that the institution of proceedings may be imminent or expected. In James v. Robinson, articles which were such as to tend to prejudice the fair trial of Robinson were published in a newspaper on 10 February 1963. At the time of publication, Robinson was then at large and being sought by police officers in connexion with two killings which occurred on 9 February 1963. He was subsequently arrested and charged with wilful murder. It was held in this Court that the articles were not punishable as a contempt because there were no pending proceedings. After a lengthy examination of earlier cases, including R. v. Parke (1903) 2 KB 432 in which Wills J. remarked obiter that it "is possible very effectually to poison the fountain of justice before it begins to flow" (1903) 2 KB, at p 438 , Kitto, Taylor, Menzies and Owen JJ., in a joint judgment, said (1963) 109 CLR, at p 607 :

"It would be an astonishing state of affairs if a person responsible for a publication were to be held guilty or not guilty of contempt according as proceedings should or should not be commenced thereafter. We do not think that the very general considerations based upon the notion of poisoning the stream of justice before it begins to flow provide any sound or adequate test for determining what is and what is not contempt of court."

It would seem to us to follow from James v. Robinson that the possibility, or even the strong probability, that a witness called to testify before a Royal Commission will be charged with an offence provides 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. He may never be charged. Indeed, any other approach would effectively prevent some Royal Commissions from fulfilling their task. This could be so in the present case, where the terms of reference require the Commissioner to investigate whether a particular person has been engaged in activities which involve contravention of the laws of the Commonwealth or of Queensland. The fact-finding activities of Royal Commissions are often a necessary aid to the executive, the Parliament and the public in bringing to light serious mischiefs which require a remedy, and in some instances an urgent remedy. It would impose a severe restriction on the capacity of the executive and of Parliament to introduce prompt reforms if Commissions were compelled to postpone the examination of witnesses with respect to their possible involvement in criminal offences until such time, if ever, as their criminal liability has been finally determined by the courts. In Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1983) 152 CLR 25 , Gibbs C.J. contemplated that such a postponement would occur in the event of the actual institution of a criminal prosecution in the course of the inquiry. It is unnecessary to pursue this topic because a conclusive answer to the submission is that s. 6A in any event does not attempt to restrict the power of federal courts or courts exercising federal jurisdiction to punish for contempt. The fact that s. 6A(3) preserves the privilege only for a person who has been charged with an offence, but not for a person who has not been charged, would not preclude a court from restraining the Commissioner from examining a witness as to his Commission of an offence if in the particular circumstances of the case that examination amounts to a contempt. (at p308)

9. In any event the privilege against self-incrimination is not an integral element in the exercise of the judicial power reposed in the courts by Ch. III of the Constitution. It is a privilege that has been abrogated by legislative action in Australia, the United Kingdom and Canada without anyone having previously suggested that it involved the elimination of an integral element in the exercise of judicial power in a democratic society. (at p308)

10. As we noted in Pyneboard Pty. Ltd. v. Trade Practices Commission Post, p. 328. , three members of this Court in Kempley v. The King (1944) ALR 249 (Latham C.J. and Starke and Williams JJ.) proceeded on the footing that an abrogation of the privilege by reg. 17 of the National Security (Prices) Regulations 1939 (Cth) would have been valid. There was no suggestion of inconsistency with s. 71 of the Constitution. (at p308)

11. And in Canada s. 5 of the Canada Evidence Act 1952 deprived the privilege of substantial content - see Faber v. The Queen (1975) 65 DLR (3d) 423 ; cf. Batary v. Attorney-General (Saskatchewan) (1965) 52 DLR (2d) 125 ; E. Ratuschny, Self-Incrimination in the Canadian Criminal Process (1979), pp. 78 et seq. These developments are fundamentally inconsistent with the notion that the privilege against self-incrimination is an integral part of the exercise of judicial power. No doubt, like other features of our system of criminal justice, it has a long history and confers a very valuable protection. But it is quite another thing to say that it is an immutable characteristic of the exercise of judicial power. (at p308)

12. The plaintiffs' alternative argument is that Parliament cannot exclude the privilege against self-incrimination because to do so is inconsistent with the right to trial by jury conferred by s. 80 of the Constitution. This submission was resoundingly rejected in Huddart, Parker &Co. Pty. Ltd. v. Moorehead; Appleton v. Moorehead (1909) 8 CLR 330 . As O'Connor J. said in that case (1909) 8 CLR, at p 375 :

"The principle that a witness shall not be compelled to criminate himself has become 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. But it is no part of the system of trial by jury, and the authority of the Parliament of the Commonwealth to create and punish offences as incidental to the exercise of the powers conferred by the Constitution would certainly extend to the modification of any principle of British criminal law, no matter how fundamental, so long as the modification is not forbidden expressly or impliedly by the Constitution."

Griffith C.J. (1909) 8 CLR, at p 358 and Isaacs J. (1909) 8 CLR, at pp 385-386 also thought that the privilege against self-incrimination was not part of the system of trial by jury and was not the subject of the guarantee given by s. 80. It follows that s. 6A validly abrogates the privilege against self-incrimination and that it applies to the examination of the plaintiffs. The Privilege against Self-incrimination under the State Act. (at p309)

13. We reject the submission that the privilege is merely a rule of evidence applicable in judicial proceedings and that it cannot be claimed in an executive inquiry. We adhere to the conclusion we expressed in Pyneboard Post, p. 328. that the privilege against self-incrimination is inherently capable of applying in non-judicial proceedings. See Kempley (1944) ALR 249, esp at pp 253 (per Starke J); 254 (per Williams J) ; Ex parte Grinham; Re Sneddon (1959) 61 SR (NSW) 862 ; Commissioner of Customs and Excise v. Harz (1967) 1 AC 760, at p 816 . (at p309)

14. 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, 2nd ed. (1981), pars. 113-116; Pyneboard; Crafter v. Kelly (1941) SASR 237, at p 242 . (at p309)

"A declaration that the search and seizure of property from the homes of the Plaintiffs and their families by officers of the Royal Commission was ultra vires and null, void and of no effect."
It is alleged in par. 7 that the searches and seizures alleged in par. 6 took place in pursuance of search warrants issued under the Crimes Act 1914 (Cth), the Criminal Code (Q.) and The Health Act of 1937 (Q.). It is not alleged that the searches were conducted or the property seized by acts done in excess of the authority of those search warrants. Nor is it contended that the operation of the respective Acts under which the search warrants were issued did not make the alleged searches and seizures lawful. Nothing is alleged which would found the making of the declaration sought in par. C of the prayer. (at p325)

27. The statement of claim was amended pursuant to leave granted during the hearing by adding par. 6(a):
"The Thirdnamed Defendant has retained possession of the items referred to in paragraph 6 of the statement of claim and claims to be entitled to use them and to make and use copies of them for the purposes of his inquiries as a Royal Commissioner." (at p325)

28. Paragraph 8 reads:
"The means of search and seizure whereby the property taken was given over to the care, custody and control of the Royal Commission of the Thirdnamed Defendant was ultra vires the Letters Patent of the Thirdnamed Defendant." (at p325)

29. On these facts, a further declaration was sought in the terms of par. D of the prayer:
"A declaration that the Royal Commissioner was not lawfully entitled to take possession of the goods and documents in question and is not entitled to retain them, or copies of them, or use them, or copies of them, for the purposes of the Royal Commission." (at p325)

30. Mr. Gleeson, upon whom the duty fell to endeavour to uphold the pleading, submitted that a statutory warrant was needed to make it lawful for the Royal Commissioner to retain, use and make copies of the items given to him that had been seized under the warrants. The argument is that neither s. 6F of the 1902 Act nor the new s. 6F inserted by s. 10 of the 1982 Amendment nor s. 19 of the Queensland Act conferred that authority on the Royal Commissioner in respect of the documents which were seized under the warrants and which were "given over to the care custody and control of the Royal Commission". Section 6F of the 1902 Act provided:

"A Royal Commission, a Commissioner or a person thereto authorized in writing by the President or Chairman of the Commission, or by the sole Commissioner, as the case may be, may inspect any documents, books, or writings produced before the Royal Commission, and may retain them for such reasonable period as it or he thinks fit, and may make copies of such matter as is relevant to the inquiry or take extracts from them."

Section 6F(1) as substituted by the 1982 Amendment provides:

"(1) A Commission, a member of a Commission or a person who is an authorized person in relation to a Commission may - (a) inspect any documents or other things produced before, or delivered to, the Commission; (b) retain the documents or other things for so long as is reasonably necessary for the purposes of the inquiry to which the documents or other things are relevant; and (c) in the case of documents produced before, or delivered to, the Commission - make copies of matter contained in the documents, being matter that is relevant to a matter into which the Commission is inquiring."

Section 19(1) of the Queensland Act provides: "A Commission, or any Commissioner, or a person thereto authorised in writing by the chairman, as the case may be, may inspect any books, documents, or writings produced before the Commission, and may retain them for such reasonable period as it or he thinks fit, and may take such copies of or extracts from such books, documents, or writings, as the case may be, as are relevant to the inquiry." (at p326)

31. It is not necessary to decide whether the phrase "produced before" in the respective provisions refers only to production by a witness. The statement of claim contains no allegation that either of the plaintiffs has suffered any infringement of his rights by reason of the alleged retention, copying or use. Whether or not the Commissioner had power to compel the production of the documents which were in fact delivered to him, it is not alleged that he committed any tort or breached any statutory duty actionable at the suit of the plaintiffs by taking care, custody and control of the documents delivered to him. Moreover, the facts alleged in par. 8 of the statement of claim clearly allege that the items seized were "delivered to" the Commission within the meaning of that phrase in s. 6F as substituted by the 1982 Amendment. That provision furnishes a clear statutory warrant for the course which the Commissioner allegedly intends to follow. The prayer for a declaration relates to the future retention, copying or use of the seized documents and there are no facts pleaded which would show that s. 6F is not a sufficient authority for that course. (at p327)

32. The demurrers must be allowed, except in respect of the demurrer of the Attorney-General for Queensland to those parts of the statement of claim relating to privilege against self-incrimination. That part of the Attorney-General's demurrer should be overruled. (at p327)

Orders

1. That the demurrer of the Commonwealth be allowed.

2. That the demurrer of the Attorney-General for Queensland be allowed in respect of pars. 6, 6(a), 7 and 8 and claims C and D, of the statement of claim, and that otherwise the demurrer be overruled.

3. That the plaintiffs pay to the Commonwealth the costs of the demurrer.

4. That there be no order as to the costs of the demurrer by the Attorney-General for Queensland.