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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sorby v the Commonwealth [1983] HCA 10
Case
[1983] HCA 10
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the dispute between the applicant, Ms. Sorby, and the respondent, the Commonwealth of Australia. Ms. Sorby sought to challenge the validity of certain regulations made under the *Wildlife Protection (Regulation of Exports and Imports) Act 1982* (Cth) which prohibited the export of kangaroos and kangaroo products. The core of the dispute concerned whether the Governor-General had the constitutional power to make such regulations.
The central legal issue before the High Court was whether the Governor-General, acting on the advice of the Executive Council, had the constitutional authority under section 64 of the *Constitution* to make regulations that effectively created criminal offences and imposed penalties, thereby encroaching upon the legislative power of the Parliament. Specifically, the Court had to determine if the *Wildlife Protection (Regulation of Exports and Imports) Act 1982* validly delegated the power to create such prohibitions to the Executive Government.
The Court, by majority, held that the regulations were invalid. The reasoning focused on the separation of powers doctrine inherent in the Australian Constitution. The majority found that section 64 of the *Constitution* did not grant the Governor-General the power to make laws that created criminal offences, as this power was exclusively vested in the Parliament. The Act, in purporting to authorise the Executive to create prohibitions with criminal sanctions, constituted an impermissible delegation of legislative power. The Court distinguished between the power to make regulations for the purpose of carrying into effect an Act of Parliament and the power to create substantive prohibitions and penalties.
Consequently, the High Court made orders declaring the regulations invalid and restraining the Commonwealth from enforcing them.