WF1 v National Crime Authority
[1993] FCA 793
•10 Sep 1993
7 9 3 , 93
JUDGMENT No. .,... . ....... .... . ... . . . I . D .
| IN THE FEDERAL COURT OF AUSTRALIA | ) | ||
| VICTORIA DISTRICT REGISTRY | ) | ||
| GENERAL DIVISION |
| ||
| B E T W E E N : |
Applicant
- and -
p
Respondent
| Coram: | Olney J | ||||
| Place: | Melbourne | ||||
| Date: |
|
FEDERAL COURT OF
MINUTE OF ORDER AUSTRALIA PRINCIPAL REGISTRY J'
| THE COURT ORDERS THAT: | 9 |
1. The declsion of the Authority be affirmed.
2. The application for an order of review be dismissed
with costs.
W:
1. ~otwithstanding and further to paragraphs 6, 10, 11 and 13 of the order of the Court made on 25 August
to the said paragraph of the said order;
1993, the following documents contained on the file
shall not be or remaln confidential to the parties for the purpose of Order 46 Rule 6(1) and publication of them or the information contained in them is not prohibited:
(a)
the copy of the notice of motion of the Respondent dated 20 August 1993 which was substituted for the original thereof pursuant
(b)
the order of the Court made on 25 August 1993, as entered by the Respondent;
(c)
the written reasons of the Court for the orders made this day disposing of the application for an order of review;
(d)
the order of the Court made this day disposing of the application for an order of review, to be entered by the Respondent;
(e) this order, as entered by the Respondent.
2. Pursuant to Order 3 Rule 3(1), the time fixed by Rules 12(1) and 15(l)(a)(i) of Order 52 for the institutuion of any appeal from the orders of the Court made this day disposing of the application for an order of review is abridged such that any such appeal must be instituted not later than 1.00pm on 14 September 1993 by filing and serving a notice of appeal in the form prescribed by the Rules not later than that time.
3. If any such appeal is instituted, the hearing thereof be expedited and the matter be referred to the appropriate Judge or officer of the Court for
the flxlng of a date for hearing. 4. If by 1.00pm on 14 September 1993 no such appeal has been instituted, the exhibts to the affidavits filed on behalf of the Respondent may be uplifted and retained by the Respondent.
| NOTE: | Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. |
JUDGMENT No. ........ ........ .. I ........ ....
| IN THE FEDERAL COURT OF AUSTRALIA | ) | ||
| VICTORIA DISTRICT REGISTRY | 1 | ||
| GENERAL DIVISION |
| ||
| B E T W E E N : |
Applicant
- and -
NATIONAL CRIME AUTHORITY
Respondent
| Coram: | Olney J | ||
| Place: |
| ||
| Date: |
|
AUSTRALIA
INTRODUCTION
The National Crime Authority Act 1984 (Commonwealth) (the Commonwealth NCA Act) together wlth the National Crime
Authority (State Provisions) Act 1984 (Victoria) (the State
NCA Act) and similar acts of the Parliaments of the other
| Australian States and Territories set up a co-operative | national scheme for the collection and analysis of criminal | |
| information and intelligence, and the investigation of, what is commonly called, organised crime. | ||
| The legislative scheme involves the establishment of the National Crime Authority (the Authority) under the | ||
| Commonwealth NCA Act, to which specific functions are assigned | ||
| by Commonwealth and State legislation. | ||
| The term "organised crime" does not appear in the legislation, but the statutory definitions of "relevant offence" and "relevant criminal activity" describe the general concept of what is understood by that term. | ||
| In order to form a basis for understanding the issues which have arisen in this proceeding and the context in which they arise, it is necessary to briefly canvass such of the provisions of the Commonwealth and State NCA Acts as have a bearing upon those issues. What follows is necessarily an abbreviation of what is quite complex legislation. | ||
| THE COMMONWEALTH NCA ACT | ||
| The Authority is established by s 7(1). It consists of members, one of whom is its chairperson, who are appointed by the Governor-General. The Act also establishes an Inter- Governmental Committee comprising members representing the Commonwealth and each participating State. | ||
| ||
| ||
| general functions. The special functions of the Authority include the function, subject to s 14(1), to investigate relevant criminal activity referred to the Authority in accordance with s 14 by a Minister of the Crown of a State insofar as the relevant offence is, or offences are or include, an offence or offences against a law of the State (S An investigation conducted by the Authority in the performance of its special functions is referred to as a special investigation (S 4(1)). | ||
| Section 14(1) provides: |
14. (1) If a M~nister of the Crown of a State has, whether or not pursuant to the law of the State, wrth the approval of the Inter- Governmental Comm~ttee, by notice in writing to the Authorlty, referred a matter relatrng to a relevant crlmlnal actrv~ty to the Authorlty for investrgation in so far as the relevant offence IS, or the relevant offences are or ~nclude, an offence or offences agalnst a law of that State and has not, by notice in writing to the Authorrty, withdrawn the reference, the Authority shall, with the consent of the Minister, perform the functron of rnvestigating that matter.
For the purposes of a speclal investigation the Authority may hold hearings at which the Authority may be constituted by one or more members (S 25(1), (2)).
A member may summon a person to appear before the Authority at a hearing to give evidence ( S 28(1) ) . The Authority may, at
| purpose a member may require a person appearing at the hearing | a hearing, take evidence on oath or affirmation and for that | |||
| to give evidence to take an oath or make an affirmation in an approved form (S 28(5)). The powers conferred by s 28 are not exercisable except for the purposes of a special investigation (S 28(7)). | ||||
| A person duly served with a summons to appear as a witness at a hearing before the Authority shall not without reasonable excuse fail to attend as required or fail to attend from day to day unless excused, or released from further attendance, by a member (S 30(1)). A person appearing as a witness at a hearing before the Authority shall not without reasonable excuse refuse or fail to answer a question that he is required to answer by the member presiding at the hearing (S 30 | ||||
| ||||
| It is a reasonable excuse for a natural person to refuse or fail to answer a question put to him at a hearing before the Authority if the answer to the question might tend to incriminate him (S 30(4) (a)), but it is not a reasonable excuse for failing or refusing to answer a questlon on that ground if the Commonwealth Director of Public Prosecutions or the State Attorney-General or State Director of Public Prosecutors or a person holding a similar office (as the case requires) has given to the person an undertaking in writing that any answer given or any information obtained as a direct | ||||
| ||||
| a law of the Commonwealth or of the State (as the case may be) other than proceedings in respect of the falsity of the evidence given by the person (S 30(5), (7)). A person who contravenes s 30(1) or (2) is guilty of an offence (S 30(11)). | ||||
| Where a person claims to be entitled to refuse to answer a question put to him at a hearing before the Authority, the Authority must decide as soon as practicable whether in its opinion the claim is justified and notify the person of its decision (S 32(l)(c)). If the person is dissatisfied with the decision, he may, (in the case of a reference made by the Commonwealth Minister, or of references made by a Minister of the Crown of two or more States which is, or are, at the relevant time in force in respect of a matter to which the special investigation relates) apply to the Federal Court for an order of review in respect of the decision (S 32(2), s 32A) and the Federal Court may in its discretion make an order either affirming the decision or setting it aside (S 32(4)). | ||||
| An order by the Federal Court under S 32(4) IS, subject to any appeal from that order, conclusive for the purposes of any other proceedings (S 32 (7)). | ||||
| It is an offence for a person at a hearing before the Authority to give evidence that is to his knowledge false or misleading in a material particular (S 33). | ||||
| ||||
| Section 5(1) of the S t a t e NCA Act provides that the Mlnister of the Crown administering the Act may, with the approval of the Inter-Governmental Committee, by notice in writing to the Authority refer a matter relating to a relevant criminal actlvity to the Authority for investigation insofar as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State. Where a matter has been so referred, the Authority is not precluded by any law of the State from investigating that matter (S 5(2)). | ||||
| Where a reference under s 5(1) is in force, it is a special function of the Authority to investigate the matter insofar as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State (S 5(4)). | ||||
| The State Minister may at any time by notice in writing to the Authority, withdraw a reference (S 5(5)). | ||||
| The S t a t e NCA A c t contains provisions which correspond with the provisions of the C o m m o n w e a l t h NCA A c t relating to the holding of hearings, the summoning of witnesses and the | ||||
| obligations and rights of witnesses giving evidence before the Authority at a hearing. | ||||
| THE FACTS OF THE CASE | ||||
| ||||
| The relevant State Minister has referred a matter to the Authority for investigation. The Authority has for the purposes of the investigation of the matter referred, held hearings and the applicant has been duly summoned to appear before the Authority to give evidence at the hearing. The applicant attended in response to the summons, was sworn and has glven evidence. He has attended from day to day as required by the Authority. On the last occasion of his attendance the applicant refused to answer a question that he was required to answer by the member presiding at the hearing. The ground upon which he claimed to be entitled to refuse to answer will be detalled later, but his refusal was not on the ground that the answer to the question might tend to incriminate him. The Authority decided that in its opinion the applicant's claim was not justified and it notified him of its decision. The applicant is dissatisfied with the decision and has applied to the Federal Court for an order of review in respect of the decision. | ||||
| No question arises in these proceedings as to the effectiveness of the summons served on the applicant nor as to the jurisdiction of the Federal Court to deal with the application to review the Authority's decision. | ||||
| ||||
| The applicant appeared before the Authority in answer to the summons on four occasions. On the first occasion he was sworn and gave short evidence. Further evidence was given at two further hearings until the applicant refused to answer a question put to him. At that stage the hearing was further adjourned to a nominated date at which the applicant duly appeared. | ||||
| At the commencement of the last mentioned hearing the applicant's counsel asked the Authority if the applicant was free to leave. The member presiding said that the applicant was present in response to a summons and was not free to leave. Counsel then drew the Authority's attention to the | ||||
| ||||
| A c t ) . |
464A(1) Every person taken ~ n t o custody for an offence (whether committed in Vlctorra or elsewhere) must be -
(a) released uncondrt~onally; or
(b) released on bail; or
(c) brought before a bail just~ce or the Magistrates' Court -
wlthrn a reasonable tune of belng taken into custody.
464(1) For the purposes of the Subdivis~on a person rs ~n
custody rf he or she is -(a) under lawful arrest by warrant; or
(b) under lawful arrest under sect~on 458 or 459 or a provlslon of any other Act; or
(c) in the company of lnvestlgating official and is - (i) belng questioned; or (ii) to be questioned; or (ILL) otherwise being rnvestrgated -
to determine his or her involvement (if any) in the commission of an offence if there 1s sufficient information In the possession of the rnvestlgatlng official to justify the arrest of that person in
respect of that offence.
464(2) In t h ~ s subdivision: "investigating official" means a member of the police force or a person appointed by or under an Act (other than a member or person who rs engaged in covert
investigations under the orders of a superior) whose
functions or dutres include functrons or duties ln
respect of the prevention or ~nvestigation of offences.
Counsel submitted that the two members of the Authority who then constituted the Authority were each investigating officials as too was counsel assisting the Authority. It was said that as the applicant had been summoned to appear to be investigated or to assist in the investigation of a variety of offences, and as he was not free to leave, he should be released unconditionally or alternatively be released on bail or alternatively taken before a bail justice or a Magistrate's Court. The submission of counsel was that the applicant was in custody wlthin the meaning of the sections of the C r i m e s A c t referred to. The Authority did not accept the
propositions put by counsel and proposed to continue with the questioning of the applicant. Counsel then drew attention to S 464A(3) of the C r i m e s Act which provides:
Before any questronrng or lnvestrgation under sub-sectlon (2) commences, an investrgatlng offlcial must inform the person ln custody that he or she does not have to say or do anything but that anythrng the person does say or do may be glven in evidence.
The Authority indicated that in its opinlon ss 464 and 464A of the C r i m e s Act did not apply to the proceedings then current before it.
| which the applicant replied that he did not propose to answer | The presiding member then asked the applicant a question, to | |
| any question on legal advice. The presiding member then stated to the applicant that it was the decision of the Authority that it did not consider the applicant's refusal to answer was justified. The presiding member again specifically required the applicant to answer the question and the applicant again refused. | ||
| THE APPLICANT'S CASE | ||
| For the applicant it is said that by reason of the relevant Minister having exercised the power conferred by s 5(1) of the State NCA Act, he has referred a matter to the Authority for | ||
| investigation and that therefore the Authority is engaged in | ||
| the investigation of offences. It is then said that the | ||
| Authority, its members and staff were each "appointed under" | ||
| the State NCA Act and therefore each fell within the | ||
| definition of "investigating official" in s 464(2) of the | ||
| Crimes Act. As a consequence, the applicant was "in custody" for the purposes of Subdivision 30A of Division 1 of Part I11 of the Crimes Act (Subdivision 30A) at the time the question was put to him. In these circumstances, it is said, s464A of the Crimes Act applies and the applicant was entitled to refuse to answer any questions. As a consequence, the Authority ought to have decided that the applicant's refusal to answer the question put to him by the presiding member was justified. | ||
| ||
| The Authority concedes that the relevant State Minister referred a matter to the Authority for investigation and that the Authority, as part of its wider investigation, has engaged in the investigating of offences under Victorian law. It denies that its activities fall within the ambit of Subdivision 30A. | ||
| As to the definition of "investigating official", the Authority says that neither it, its members nor its staff were appointed under the State NCA Act or any other "Act" as that term is to be construed in the definition. (The applicant agrees that in the definition of "investigating official" the words "an Act" mean an act passed by the Parliament of Victoria). Rather it is said that the Authority is constituted under s 7(1) of the Commonwealth NCA Act and its members and staff are appointed pursuant to various other provisions of that Act. Accordingly, it is denied that the applicant was "in the company of an investigating official" when the question was put to him and therefore he was not "in custody" for the purposes of Subdivision 30A. If that be so, s 464A(3) of the Crimes Act had no application to his situation, and the Authority correctly rejected the | ||
| applicant's claim that he was justified in refusing to answer | ||
| the question put to him by the Authority. | ||
| By way of alternative argument, the Authority says that the | ||
| ||
| Act v~hereby Subdivision 30A (including ss 464 and 464A) was | ||
| inserted in the Crimes Act. In response to that proposition the Authority says that there is nothing in Subdivision 30A or in the extrinsic material surrounding the introduction of Subdivision 30A to suggest it was intended by the Victorian Parliament to repeal the State NCA Act. It is said that amendments to the Crimes Act (an act of general application) having been enacted in 1988, four years after the State NCA | ||
| Act (an act of special application), the maxim general~a | ||
| speclalibus non derogant applies. | ||
| The Authority further submits that s 109 of the Commonwealth | ||
| Constitution operates to render invalid the provisions of | ||
| Subdivision 30A to the extent of their inconsistency with the | ||
| Commonwealth NCA Act. | ||
| THE RELATIONSHIP BETWEEN THE STATE NCA ACT AND SS 464 AND 464A OF THE CRIMES ACT | ||
| The combined effect of ss 5(1) and 5(2) of the State NCA Act is to authorise the Authority to investigate a matter referred to the Authority in accordance with s 5(1), which the Authority is not precluded from doing by reason of any law of the State. The State NCA Act does not, and probably could not compel the Authority to investigate a matter so referred although s 14(1) of the Commonwealth NCA Act provides that | ||
| ||
| matter. | ||
| Taking the State and Commonwealth NCA Acts together as integral parts of a co-operative scheme, there can be no doubt that the legislative intention of the State Parliament was that matters referred pursuant to s 5(1) would be investigated by the Authority. | ||
| One important aspect of the Authority's powers in relation to the investigation of a matter referred by a State Minister is the capacity to hold hearings with the associated power to compel the attendance of witnesses and to require them to give evidence. If the applicant's argument is correct, as a result of the amendments effected to the Crimes Act in 1988 when ss 464 and 464A were inserted, witnesses summoned to give evidence before the Authority at a hearing are not required to answer questions, and one of the important investigative tools of the Authority has thereby been completely destroyed. | ||
| Sections 464 and 464A were inserted into the Crimes Act by the | ||
| Crimes (Custody and Investigation) Act 1988, the purposes of | ||
| which are stated in s 1 as: | ||
| ||
|
admissions as a prerequisite for admissibility in
proceedings for indictable offences.
The explanatory memorandum circulated by the State Attorney- General at the time the Crimes (Custody and Investigation)
Bill was introduced into the Victorian Parliament commences
with the following outline:
The Bill deals with the powers and duties of the police and other invest~gatlng offic~als in relation to persons suspected of crlrnlnal
of fences. It ~mplements recommendations made by the Consultatrve Committee on Pollce Powers of Invest~gatlon in its report entltled Custody and Investigation. In accordance w ~ t h those recommendations, when a suspect is taken into custody, rnvestlgators wlll be empowered to delay brrngrng hrm or her before a court for a reasonable trme. During that trme they wlll be authorised to conduct questlonlng or to carry out investigatrons involvrng the suspect wlth hrs or her consent.
Thls power is accompanied by two important safeguards. The first is statutory recognltlon of certarn basrc rights of suspects whrch are presently recognized by the common law or by Police Standing Orders.
These rights lnclude the right -
to notify a frrend or relatlve of the suspect's
whereabouts;
to have an interpreter present, rf the suspect's English
rs msuffrcient;
for a young person to have a parent, guardian or
rndependent person present durlng questioning;
for a foreign national to contact the consular offlce of
his or her country; and
to be notrfled of the relevant rights.
The brll does not diminish any add~t~onal protectron given to suspects at common law.
The second safeguard rs a requirement that questioning of a suspect be tape-recorded before an admission made durlng the questioning can be used in evidence rn proceedrngs for an indictable offence.
Evldence of an admission obtained before questronrng begrns at only admrsslble rf the admrsslon is confrrmed and the confirmation is recorded. The court may admrt evidence of an adm~ssion whlch was not tape-recorded rf there are exceptional circumstances.
Neither the State NCA Act nor the Commonwealth NCA Act deals with the conducting of questioning or the carrylng out of
investigations involving a suspect with his or her consent
| (emphasis added). Leaving aside the question of whether a |
witness summoned to give evidence before the Authority at a hearing is properly to be regarded as "a suspect", it cannot be said that such questioning as the witness may be subjected to at the hearing is consensual. Indeed, the process of obtaining the witness's attendance and the sanctions imposed for failure to be sworn, refusal to answer questions without a reasonable excuse and the giving of false or misleading evidence at a hearing before the Authority demonstrate that the process is one involving the utmost in compulsion.
The State NCA Act and ss 464 and 464A of the Crimes Act do not in my oplnion deal with the same subject matter. One deals with the compulsory interrogation of witnesses in relation to inquiries relating to matters referred to the Authority, the other deals wlth the consensual questioning of persons suspected of offences. It is difficult to see how the second could under any circumstances be thought to impliedly repeal the first. The two are not inconsistent and as a matter of ordinary construction I would have no difficulty in concluding that ss 464 and 464A of the Crimes Act have no bearing upon the exercise of the powers and functions of the Authority in relation to the questioning of witnesses at a hearing before the Authority.
The Authority has as an alternative, called in aid the maxlm generalia specialibus non derogant. Reference was made to the dictum of Barton ACJ in Maybury v Plowman 11913) 16 CLR
| whether the Victorian Parliament, after having dealt specially | 468 at 473-4 which I need not repeat here. The question is | |
| with a particular matter, has afterwards passed an enactment In general terms wide enough to repeal or supersede or quallfy the original provision. If that has occurred, the later general provision, insofar as it is inconsistent with the special provision, must be deemed not to apply (Goodwin v Phillips (1908) 7 CLR 1 per O'Connor J at 14) | ||
| Assuming for present purposes (contrary to the view expressed above) that the two pieces of legislation are inconsistent, an assessment must be made as to whether one deals specially with a particular subject matter and, if so, which. Counsel for the parties expressed opposite views as to the nature of the | ||
| S t a t e NCA A c t , but I have no hesitation in expressing the view | ||
| that the S t a t e NCA A c t deals with the very special and narrow circumstance of a person who has been required to answer a question at a hearing before the Authority. The C r i m e s A c t provisions deal with the general topic of the questioning of persons suspected of having committed offences. If the two enactments are inconsistent, then in my opinion the C r i m e s A c t provisions, being a later general enactment do not apply so as to restrict the powers of the Authority in requiring a witness to answer questions. | ||
| For each of two reasons, namely that the two enactments are not inconsistent, or if they are, the C r i m e s A c t provisions do not impliedly repeal any relevant provision of the S t a t e NCA | ||
| ||
| whether the applicant was "in custody" within the meaning of s 464 of the C r i m e s A c t when he was required to answer the | ||
| question put to him by the presiding member, I will however comment on thls issue. | ||
| THE DEFINITION OF "INVESTIGATING OFFICIAL" | ||
| In my opinion the applicant was not in custody for the reason that he was not at the time in the company of an investigating official as that term is defined in the C r i m e s A c t . | ||
| For the applicant's argument on this question to be sustained, it must be said that the person "appointed by or under an Act" is the Authority. It is conceded that "an Act" refers to State legislation and the only possible act that has any relevance is the S t a t e NCA A c t . Pursuant to s 5 ( 2 ) of the | ||
| S t a t e NCA A c t , the Authority is not precluded by any law of | ||
| the State for investigating a matter referred pursuant to s | ||
| 5(1). It is entirely inapt to suggest that the Authority is | ||
| by reason of a reference "appointed" under the S t a t e NCA A c t . At its highest the S t a t e NCA Act authorises the Authority to investigate a matter referred. It certainly cannot be that the Authority is appointed to conduct an investigation. In the context of the definition of "investigating official" the words "appointed by or under an Act" refer to the statutory basis for the position or office that the official holds, being a position or offlce, the functions or dutles of which | ||
| ||
| misuse of language to suggest that a person compelled to attend before a court, tribunal or other authority to give evidence, and who is required to remain in attendance until released from the obligation to attend, is "in the company of" the court, tribunal or authority. | ||
| THE CONSTITUTIONAL ISSUE | ||
| On the view I have taken no qestion of inconsistency between State and Commonwealth legislation arises. For present purposes it is unnecessary to consider whether in the particular case the requirement to answer the question was an exercise of power under State or Commonwealth legislation. | ||
| I would affirm the decision of the Authority to the effect that the applicant was not justified in refusing to answer the question put to him by the presiding member. The application will be dismissed. |
I certify that this and the
preceding 17 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice
Olney I Associate: ~ ~ f j & i ~ ~
Dated: 0 pp h& 1993
| Mr P.C. Dane QC and Mr O.P. Holdenson (instructed by Wilmoth |
Field & Warne) appeared for the applicant.
Mr M. Weinberg QC and Mr A. Cavanough (instructed by the
Australian Government Solicitor) appeared for the respondent.
| Heard : | 7 September 1993 |
| Place : | Melbourne |
| Judgment : | 10 September 1993 |
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