X7 v Australian Crime Commission and Anor

[2012] HCATrans 280

[2012] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2012

B e t w e e n -

X7

Plaintiff

and

AUSTRALIAN CRIME COMMISSION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Application for special leave to appeal

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 2012, AT 10.24 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear with MR A.S.G. CASSELS for the plaintiff.  (instructed by John D Weller & Associates)

MR S.P. DONAGHUE, SC:   If the Court pleases, I appear with MR M.J. O’MEARA for the defendants.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR C.L. LENEHAN, for the Attorney-General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR W. SOFRONOFF, QC, Solicitor-General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the Attorney-General for Queensland.  (instructed by Crown Law (QLD))

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR C. JACOBI, for the Attorney-General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria:   If the Court pleases, I appear with my learned friend, MS R.J. ORR, for the Attorney-General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor-General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR I.A. REPPER, for the Attorney-General for Western Australia intervening.  (instructed by State Solicitor (WA))

FRENCH CJ:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, before I open the issues that arise in the case stated, can I inquire whether your Honours have received a document described as “Plaintiff’s outline of oral submissions”?  It is a three-page document.

FRENCH CJ:   Yes, we have it.

MR WENDLER: It was filed with the reply, and we were concerned it may not have filtered through to the Court. As your Honours know, on 23 August this year, his Honour Justice Gummow stated a case to the Court and the terms of that stated case are set out between pages 23 and 26 of the case stated book. On page 26 appears two separate but interrelated questions concerning the operation of Division 2, Part II of the Australian Crime Commission Act.

The operation of that Act, so far as it concerned the plaintiff, is in the setting that is set out factually between pages 23 and 25.  In particular, on page 25 of the facts pleaded on the case stated, it is identified that the plaintiff was coercively examined by an examiner of the first defendant on 1 and 2 February 2011.  On 1 February the plaintiff was examined in detail about the very offences with which he had been charged, Commonwealth offences with which he had been charged in late November of 2010.

The question, so far as the Constitution and its interpretation is concerned, can be identified as follows, and that is whether there is constitutional limitation on legislation which interferes with the judicial power of the Commonwealth.

HAYNE J:   Now, before we get to that question, we have got to follow the statute and we have got to follow the way in which the statute is said to be engaged in this particular case, do we not?

MR WENDLER: Yes. I am about to come to the terms of the statute and the antecedent history of the statute, in particular section 25A of the Act. That is the central controversy in relation to the constitutional question. But, as your Honour has correctly pointed out, one must first not only understand the terms of Part II, Division 2, but understand, indeed, the general scheme of the operation of the Act as a whole.

HAYNE J:   And, you have got to understand, also, the particular application of the Act in this case – the way in which it is said that the Act is engaged, is that right?

MR WENDLER:   Yes.

HAYNE J:   Is that right?

MR WENDLER:   I agree with that analysis.

HAYNE J:   Is it, therefore, necessary to understand the application of the documents which are the exhibits to the case stated?

MR WENDLER:   Yes.  I do not have any disagreement with that analysis and, indeed, it is important that we move to that area immediately.  But just before I do, your Honours will have filed a bundle of legislation, the larger document which carries not just the entirety of the Australian Crime Commission Act, but the two antecedent pieces of legislation, namely the National Crime Commission Act and the National Crime Authority Act. 

Historically, the introduction of this style of legislation was as a result of various Royal Commissions in the late 70s and 80s, dealing in broad terms with the investigation and the gathering of intelligence concerning organised crime, or the investigation into various organisations which were alleged to have been engaged in what might be described generally as organised crime.

The National Crime Authority Act never came actually into operation and there was, in fact, a review of the Act which led to the National Crime Authority Act and, ultimately, that was repealed and we are left with the Australian Crime Commission Act.  Can I move then immediately to the terms of the National Crime Authority Act and, indeed, to the terms of Division 2, Part II of the Act.

FRENCH CJ:   In the Australian Crime Commission Act?

MR WENDLER:   I am sorry?  I beg your pardon, the Australian Crime Commission Act.  That appears at tab 5.  Just in broad terms, the structure of the Act identifies, effectively, three functionaries or authorities.  There is identified by section 7B and 8 what is described as the “Commission”.  In section 7, if we go to that – section 7 is further broken up and identifies three particular bureaucratic entities, a chief executive officer, examiners and members of the staff.  There is in 7A, of course, a description of their functions. 

In 7B there is an establishment of a board.  The purpose of the establishment of the board as I read the Act is to create an authority which empowers, as it were, the Commission to engage in investigations in what is described in the Act as “federally relevant criminal activity by high risk crime group” are the descriptions.  The function of the board, of course, is set out in section 7C and section 8 there is also an establishment of what is described as the intergovernmental committee.

As I understand it, the function of the intergovernmental committee operates as a sort of umbrella form of scrutiny of the operation generally of the Commission. The purpose of the Act, of course, is to gather intelligence and to disseminate that intelligence to various law enforcement agencies and there is a method by which that intelligence is gathered, and it is a coercive method. There is power under the Act to issue a summons. A person issued with a summons is compelled to attend and once that person’s attendance is secured then there is power to examine that person and the terms of the examination or the hearing of the examination are set out in Division 2, Part II.

HAYNE J:   Well, that begins with 24A.

MR WENDLER:   I am sorry, your Honour?

HAYNE J:   It begins with section 24A.

MR WENDLER:   Yes, thank you.

HAYNE J:   And 24A governs all that follows, is that right?

MR WENDLER:   Section 24A commences, as it were, the style of hearing which ‑ ‑ ‑

HAYNE J:   Well, no, it does more than that, “may conduct . . . for the purposes”, yes?

MR WENDLER:   Section 24A reads:

An examiner may conduct an examination for the purposes of a special ACC operation/investigation.

HAYNE J:   Therefore step one is to identify what the special ACC operation investigation is, is that right?

MR WENDLER:   Well, the special operation is an operation which has been authorised by the board, that is, the board authorises the Commission to engage in such a style of intelligence gathering.

HAYNE J:   And we find the relevant documents as the exhibits for the case stated?

MR WENDLER:   Yes, they are the instruments that ‑ ‑ ‑

HAYNE J:   Do we not need to begin there?

MR WENDLER:   Yes, I can move to the instruments in the ‑ ‑ ‑

FRENCH CJ:   These will set the boundaries of the examination power, will they not?

MR WENDLER:   Yes, your Honour is quite right, and that is where we find the expression “high crime group”.

HAYNE J:   We find lots of things in there, Mr Wendler, but let us go to the documents, can we, and let us look at them.

MR WENDLER:   Yes, thank you.  The first document is exhibit 1.  This document is a statutory instrument that represents the authority that is reposed in the board and conveyed to the Commission to engage in the style of investigation that is set out in particular at ‑ ‑ ‑

HAYNE J:   Not just the style; it authorises a particular investigation, does it not?

MR WENDLER:   Yes, in paragraph 4 it is set out.

HAYNE J:   And that takes you off to Schedule 1, does it?

MR WENDLER:   Yes.

HAYNE J:   What is the ambit of paragraph 1 and Schedule 1?

MR WENDLER:   The investigation under the heading “Schedule 1 Authorised Investigation” sets out:

An investigation to determine whether, in accordance with the allegations mentioned in clause 3 –

And clause 3 sets out categories of offences which are federally relevant criminal activity which is defined in the Act.

HAYNE J:   But the relevant and perhaps relevant point at which to begin is 1(a), (b), (c).  You investigate whether offences of very many kinds was committed, was in the process or may in the future.  Which is this?  When there has been enough investigation done to charge the accused, how does this fall into 1(a), (b) or (c)?

MR WENDLER:   I am not sure I understand that question because ‑ ‑ ‑

HAYNE J:   Obviously not.

MR WENDLER:    ‑ ‑ ‑ the plaintiff, in this case, was charged and then compulsorily examined.

HAYNE J:   Exactly.  Now, how does that fall within 1(a), (b) or (c)?

MR WENDLER:   Well, it does not fall within it at all because the Act controls ‑ ‑ ‑

HAYNE J:   Is that not where we begin?

MR WENDLER: Well, you cannot begin there without ignoring the terms of Division 2, Part II, in particular, the operation of 25A(9).

KIEFEL J:   Would you mind just refreshing my memory about the chronology of events here?  The authorisations were dated 2009 – 1 May 2009.

MR WENDLER:   Yes.  They are continuing – the authorisation is a continuing authority, as it were, until it is ‑ ‑ ‑

CRENNAN J:   Until 30 June 2010.

MR WENDLER:   Yes.  It is a self‑executing authority.

KIEFEL J:   And, what was the date that the plaintiff was charged?

MR WENDLER:   He was charged on or about 28 November.  I will just check that.  We have actually prepared a chronology.  It may be easier if I can get copies of the chronology.  There are a number of curial steps that occurred before he was actually examined and we have set them out in this document.

KIEFEL J:   Yes, yes, but he was charged on?

MR WENDLER:   He was arrested and charged on 23 November 2010 and served, as I understand it, with the summons.

KIEFEL J:   So, he was in custody?

MR WENDLER:   Yes, went straight into custody.

KIEFEL J:   Pending charges, and he was served with a summons, the summons presumably being under the authority of the document that we have just been taken to.

MR WENDLER:   Yes, and that document that his Honour Justice Hayne ‑ ‑ ‑

KIEFEL J:   What was the date he was served with the summons?

MR WENDLER:   As I understand it, the same day, 23 November 2010.

KIEFEL J:   I see.  Then the examinations took place on?

MR WENDLER:   Well, initially the examination was set for December and then adjourned.  The particulars of this are set out, also, in the case stated.

KIEFEL J:   So, the steps are he was charged ‑ ‑ ‑

MR WENDLER:   Yes.

KIEFEL J:   Is this the correct order?  He was charged, taken into custody
and whilst in custody served with the summons ‑ ‑ ‑

MR WENDLER:   Yes.

KIEFEL J:    ‑ ‑ ‑summons, under the authority of this instrument ‑ ‑ ‑

MR WENDLER:   Yes, which was attached to the summons, yes.

KIEFEL J:    ‑ ‑ ‑and then sought to be examined.

MR WENDLER:   In December, but that did not take place and the examiner adjourned the examination to February 1, 2011.

KIEFEL J:   All right.

MR WENDLER:   And that is when it actually took place.

KIEFEL J:   Now, it is, perhaps, in that context that you need to go back to Schedule 1, paragraph 1.

MR WENDLER:   Yes.

FRENCH CJ:   Just before we do.  Paragraph 6 of the case stated, it says:

The plaintiff was subsequently charged with conspiracy –

Now, was that on the same day?  Was that on 23 November?

MR WENDLER:   Yes, 23 November, yes.

FRENCH CJ:   That was in the form of what, some form of complaint?

MR WENDLER:   Well, it would be a charge summons in New South Wales and that is the originating process that brings him before a court.  There is an obligation obviously as a matter of law in all States and Territories that once a person ‑ ‑ ‑

FRENCH CJ:   Then it goes under New South Wales processes which ‑ ‑ ‑

MR WENDLER:   Yes, and then of course section 68 of the Judiciary picks up the rest of it and carries it forward.  Can I just ‑ ‑ ‑

KIEFEL J:   If one goes back to Schedule 1, paragraph 1, as it applies to the plaintiff when he is summonsed, what is the inquiry?  What is authorised?  An investigation into whether criminal activity ‑ ‑ ‑

MR WENDLER:   Federally related – it is described as federally ‑ ‑ ‑

KIEFEL J:   Just take yourself to the terms of paragraph 1.  What is authorised in relation to the plaintiff by paragraph 1, given that he has been charged?

MR WENDLER:   It is an authorisation of a general investigation into federally related activity.  His charge comes within that description ‑ ‑ ‑

KIEFEL J:   Have a look at the terms of paragraph 1.  He has been charged.  What is the authority to investigate, in relation to his activities?  Is it in relation to (a), (b) or (c)?

MR WENDLER:   Well, it is in relation to the – effectively 1(a) was committed before the commencement of this ‑ ‑ ‑

HAYNE J:   How?  They have charged him.  They know enough to charge him.  How is there an investigation into whether an offence was committed when the authorities have already charged him with the offence?

MR WENDLER:   Yes, but the point is the Act authorises parallel – the construction of the Act, certainly at the hands of the majority judgment of the Federal Court in OK authorises, on the Full Court’s construction, parallel investigation in relation to the charges.

CRENNAN J:   Yes, but these are questions about the ambit of what has been authorised, in relation to this particular plaintiff.

MR WENDLER:   Well, the ambit of the authorisation is the authorisation to inquire into the charges with which he has been charged.  But the question then becomes whether that ultimately, when the plaintiff is examined and interrogated about those matters, whether that is impermissible interference, with the exercise of judicial power.

FRENCH CJ:   The anterior question is the constructional question.

MR WENDLER:   Yes.

FRENCH CJ:   And that is what is addressed in question 1 in the case stated.  So, what we are concerned about with question 1 is whether the Act authorises the examiner, where that examination concerns the subject matter of the offence with which that person has been charged, the offence so charged.  There is no point in, as it were, answering that question at large without seeing it in the context of this particular case and the specific authority that is relied upon.  Otherwise one is answering a somewhat academic question.

MR WENDLER:   No, I do not necessarily agree with that, because the authority in relation to his examination is inextricably connected to the terms of the legislation which authorised the examination.  You cannot divorce the two of them.

FRENCH CJ:   Do I understand you to be making some form of concession that the authority, insofar as it would authorise questions of the plaintiff relating to the offences with which the plaintiff has already been charged, is not exhausted by reason of the fact that he has already been charged with those offences?

MR WENDLER:   It is exhaust ‑ ‑ ‑

FRENCH CJ:   If you are going to make that concession ‑ ‑ ‑

HAYNE J:   It is a very large concession to make.

MR WENDLER: The concession cannot be made without determining the legal effect of section 25A on the authority to examine pursuant to the instrument that gives general authority to examine in relation to federally related criminal activity. The instrument is a general instrument in relation to authorising the investigation to federally related criminal activity.

The plaintiff came within that ambit, having regard to the nature of the charges he was charged with. But you keep getting back to the operation of section 25A and what that authorises. That is the bedrock of the controversy. So, whatever the authority that the examiner has, that authority can only come from obviously the Act, and the nature of the authority and the nature of the examination can only come from Part II, Division 2.

FRENCH CJ:   It seems to me, Mr Wendler, that the questions which have been put to you from the Bench which go to the existence of the authority to continue an examination after a person has – in relation to matters the subject of charges which have already been laid against the examinee have not been really addressed in your submissions.  The difficulty that I see is that we may be dealing with a question in a broad sort of hypothetical sense which, when there is this, as it were, elephant in the room we need to think about.  I wonder whether it might be useful for us to consider a brief adjournment so that you have some time just to reflect upon that and perhaps we come back in, say, 15 minutes or so.

MR WENDLER:   Yes, your Honour.

FRENCH CJ:   I am just concerned that we do not go off without properly addressing what may be an important threshold question.

MR WENDLER:   Yes, all right.

CRENNAN J:   If I may say so, the reason for section 7C(1)(c), as I appreciate it, because there were many parliamentary committees convened in relation to the processes to be followed, first under the NCC Act and then under the ACC Act, was to have a very careful statement in the authorisation instrument so as to ensure proper confinement of the questioning process in the context that there was no derivative use immunity, about which there had been a great deal of public discussion.  So, you might recall, Mr Wendler, that in the 90s, there were numerous cases which involved close examination of what were then called “the reference terms”, and the ambit of investigations which were conducted pursuant to them.

MR WENDLER:   Yes.

FRENCH CJ:   The Court will adjourn for 15 minutes.

AT 10.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.06 AM:

FRENCH CJ:   Yes, Mr Wendler.

MR WENDLER:   Yes, thank you, your Honours.  I have had an opportunity to consider the important threshold question and can come to it very quickly and it may mean that this hearing may end very quickly.  If there is, of course, no authority in the instrument then the whole process is, by itself, ultra vires.  Therefore, there was never any authority having regard to the terms of the instrument and having regard to when the plaintiff was examined.  If your Honours are for me on that point, then I need not go into any other points.  If the Court pleases.

FRENCH CJ:   I think you should continue.

MR WENDLER:   I beg your pardon.  I thought your Honours may wish to hear my opponents in relation to the threshold issue.  In the alternative, the issue that arises ‑ ‑ ‑

FRENCH CJ:   Just a minute, Mr Wendler.  I think we should hear out your whole argument please, Mr Wendler.

MR WENDLER: Yes, thank you. That brings me conveniently to a construction or an examination of section 25A and the operation of the conduct of the proceedings and particularly the confidentiality aspects of that part of the Act. The Full Court of the Federal Court set aside Justice Mansfield’s judgment and orders in relation to his Honour’s construction of the Act, in particular, whether or not what might conveniently be described as the Hammond principle had been abrogated in relation to the legislation. 

In other words, does the legislation permit parallel interrogation of the very offences or the circumstances of the very offence or offences charged?  If it be demonstrated that that is the case, that there is parallel interference, whether that amounts to a contempt of court or an interference with the curial process such that it is an invasion of the exercise of judicial power. 

Now, the process in relation to a charge and the way a charge travels through the criminal justice system commences, of course, with an executive investigation leading to a charge.  So it can be broken up into two parts.  There is the obviously in mostly just about every case a police investigation and there is a charge.  Once a charge summons or whatever originating process is raised, a curial process commences, and if the offence is an indictable offence there are a number of steps in which a curial process develops concerning the commitment for trial and, indeed, all the procedural matters relevant to the conduct of a trial leading ultimately to the resolution of the controversy between the individual and the community by either a verdict of a jury or a plea of guilty or a deed of discontinuance of the charge.

That process, of course, is enormously important, or the integrity of that process is important and if it is invaded, especially in the exercise of judicial power, it raises questions concerning the integrity of the exercise of judicial power and, indeed, the independence of the court that exercises judicial power, in particular the judicial power of the Commonwealth and the jurisdiction that is channelled to State courts exercising federal jurisdiction via section 77(iii) of the Constitution.

This Court, without going through the body of cases, has identified on a number of occasions when the institutional integrity of a court has been compromised, where legislation has transmogrified a court into a lackey of the executive, where there has been an exercise of judicial power otherwise than in accordance with the judicial process, and this Court has on a number of occasions identified those instances and has made abundantly clear that the separation of powers doctrine which protects the structure of the Constitution and protects the rule of law ‑ ‑ ‑

FRENCH CJ:   Mr Wendler, are you taking us to the general constructional question raised by the first question in the case stated?

MR WENDLER: Yes, I am. I was just sketching, as it were, a background in relation to the construction of in particular what is described as the confidentiality part of section 25A. Your Honours will note that section 25A(9), which is the critical part of Part II, Division 2, commences by the words:

An examiner may direct that:

(a)       sny evidence given before the examiner –

and so on, must be the fact that any person has given or may be about to give any evidence in an examination:

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. 

The construction of the next sentence is of some importance.  The words of the section are:

The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

At first blush, the question arises whether the identification of a person is the person presently charged with an offence who has been coercively interrogated. Does it mean that or does it, in fact, have nothing to do with the person presently charged but, in fact, a third person, that the expression “a person” is an expression referrable to a witness but not referrable to a person who is presently charged? So there is some ambiguity in the overall structure and the language of the confidentiality part of Division 2, Part II. The other aspect of those words raises the question whether it is referrable at all to a person presently charged and examined about a present offence or whether the person identified in that sentence is a person charged but not referrable to examination about the very offences charged.

Now, there was significant treatment, of course, by the Full Federal Court and concerned of the legal relationship between the Hammond principle and its operation in relation to section 25A. Ultimately, the Full Federal Court decided that when looks at the Act as a whole and the purpose of the Act and when one looks at the protective provisions of the legislation and the purpose of the Act, a suitable balance is struck and the rights of an individual charge are adequately protected.

There was also, of course, treatment of section 12(1), or section 12.  If I can just go to that part of the Act for the moment, section 12.  Section 12 has since been amended recently and that amendment is contained at the last tab, tab 7.

FRENCH CJ:   It was the April amendment, was it not?  It was in April, was it not?

MR WENDLER: In or about April, I think, this year. The legal effect of that amendment was to apply what I will call the alleged umbrella protective aspects of section 25A to the circumstances of section 12. It seemed to me, at least, a curiosity that in the treatment by the Full Federal Court of section 12 and its legal relationship with section 25A there was no mention of the force of section 12(6), which of course the amendment does not touch, and also, indeed, sections 57 and 60, which are also sections dealing with publication of the evidence of the Commission.

It is probably necessary at the moment to say something about what I have described as the Hammond principle and what exactly that principle means and what its legal effect is.  The Hammond principle is effectively a principle that protects the right to silence in circumstances where there is parallel interrogation concerning the very offences charged and that parallel interrogation is capable of invading the curial process.

Can I just invite your Honours to the decision in Hammond and identify the passages which are of importance and the principles that emerge from it.  I would say immediately my submission is that the Full Federal Court treatment of the legal effect of the judgment in Hammond was not correct and neither was the treatment by the Court of Criminal Appeal in the matter of CB.

The first and most critical passage in Hammond appears at page 198 in the judgment of Chief Justice Gibbs.  As your Honours know, the background circumstances of the Hammond decision concerned injunctive relief directed at a Royal Commissioner who was investigating a particular aspect of corruption in the meat industry at the time.  Mr Hammond was a person of interest in that investigation.  He had, at the time he was examined or about to be examined, been charged with federal offences and those offences were pending in the County Court of Victoria.  At page 198, the Chief Justice – and these words need to be read very slowly and carefully in order to fully appreciate the legal effect of them.  At point 5, his Honour said:

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged –

I pause there for a moment:  “answer questions designed to establish that he is guilty of the offence”.  When the plaintiff was examined before the Commission, he was asked detailed questions concerning the very offences with which he was charged.  The only inference that one would draw from that questioning is that they were questions which were relevant to and of interest to the examiner so far as establishing some level of criminal responsibility in relation to the offences with which he was charged.  The rest of the passage reads –

it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with.  It is clear that the questions will be put and pressed.  It is true that the examination will take place in private, and that the answers may not be used at the criminal trial.  Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.

Now, what the Chief Justice was intending to convey in that passage was a level of sensitivity, in relation to prejudice that would flow to the criminal trial of Mr Hammond, despite the fact that there was a use immunity and the examination was in private, so described safeguards in relation to his examination:

Nevertheless, the fact that the plaintiff has been examined –

This is how Justice Spender, in a very robust and powerful dissent in the OK Case, treated the language of that passage as being the fact.  It is the very fact of being charged, coupled with a compulsion to answer, was the prejudice or the interference that would be created; the very fact of it.  So, it is not a question of alleging well, please prove to us what damage or what prejudice has flowed to you and how will this interfere in your trial?  It is the fact of intrusion into the curial process.  As Justice Barton has said in one of the earlier cases, once it is in the cognisance of the courts it must remain there.

This protects the integrity, of course, of federal judicial power, that it is the courts that will determine the integrity of your trial process, not an executive functionary operating devoid usually of the rules of evidence, operating secretly, operating in a manner whereby the person examined is effectively transmogrified, or his evidence is transmogrified, as assisting the investigation.

KIEFEL J:   You have referred to Justice Spender’s judgment that is in ACC v OK [2010] 185 FCR 258. At page 261, paragraph 16 his Honour refers to some submissions which were made ‑ ‑ ‑

MR WENDLER:   I know I have got it here, sorry.  I am sorry, your Honour, page 261?

KIEFEL J:   Paragraph 16.  In the passage that his Honour there sets out from submissions made from Mr Hammond in the part that appears italicised.  His Honour is obviously referring to a conjunction between the functions of the court and the entitlement of an accused to reserve his defence.  How can you develop that?  His Honour does not take it up further, but his Honour obviously seems to think that it is consistent with what was said in Hammond about the “usurpation” of the court’s processes.

MR WENDLER:   His Honour’s treatment of the principle in Hammond was that it was the fact of the interrogation, coupled with the compulsion to answer, that threatened Hammond in those circumstances. 

KIEFEL J:   But, I suppose, in the passage that I have taken you to, it involves the idea that a defence is something which only commences at the point in which the curial process starts and to require someone to divulge their defence before the commencement of that process is an interference.

MR WENDLER:   Yes.  The curial process commences once the court is seized of the charge and commences to move – progress the charge ‑ ‑ ‑

KIEFEL J:   When is that, though?  There is no indictment yet been presented in this case. 

MR WENDLER:   No indictment presented but that, in my respectful submission, is of no consequence, no legal consequence because ‑ ‑ ‑

KIEFEL J:   The accused is entitled to reserve the defence until the court is seized of it?

MR WENDLER:   No, I do not agree with that.  A person once charged is immediately presumed by the law, first to be innocent and that presumption is not displaced until the controversy is over.  The presumption of innocence immediately accrues to such a person, and remains until the entire process has been exhausted.

FRENCH CJ: The process in New South Wales, as I understand it, involves a committal proceeding before arraignment and presentment of an indictment and that involves a notice to attend a local court or something of that sort, is that right, under section 107 of the Criminal Procedure Act?

MR WENDLER:   Yes, it is all set out in the Criminal Procedure Act (NSW) which is picked up, of course, by section 68 of the Judiciary Act and puts the federal process on the same footing as a State process.  This is an identical process or similar process in all States and Territories.  There is the case to answer stage and then there is the trial proper but the ‑ ‑ ‑

FRENCH CJ:   But the formality which underlies the reference to the person, the plaintiff being charged in this case, what is that?

MR WENDLER:   I am sorry, your Honour?

FRENCH CJ:   What formal step is reflected in the statement in the case stated that the plaintiff was charged?

MR WENDLER:   That formal step is a charge summons which has a court date.  It is not a court date which is ‑ ‑ ‑

FRENCH CJ:   At summons?

MR WENDLER:   Yes, on the summons and he attends court or is compelled to take him to court in this case because he was – X7 was arrested ‑ ‑ ‑

FRENCH CJ:   Is that what is referred to as a notice of attendance in the Criminal Procedure Act?

MR WENDLER:   Yes, I think it is called a ‑ ‑ ‑

BELL J:   A court attendance notice.

MR WENDLER:   A court attendance notice, that is right, yes.

BELL J:   Is that, in fact, the mechanism that was used on this occasion?

MR WENDLER:   It was a charge summons, I think, rather than a court – coupled with the court attendance notice, but I will take that question on notice.  The Criminal Procedure Act and similar provisions all around Australia all have a provision which compels a person to be tendered before a court as soon as practicable after a person is charged or certainly when a person goes into custody.  The legality of his custody has to be determined as soon as practicable.  Of course, at that moment that person is given notice of the allegations and is in a position to respond to them and in a position to defend him ‑ ‑ ‑

CRENNAN J:   Or be silent?

MR WENDLER: Yes, of course. These are all fundamental procedural steps. Now, if you have a parallel system that purports to empower an examiner to make the forensic choices for you as to whether your curial process is to be fair, or not fair, then it immediately raises the question – certainly in this case – whether the line of legislative interference has been crossed. Because if we go back to section 25A, it speaks in terms of:

prejudice the fair trial of a person who has been or may be charged with an offence. 

If we read that as referrable to the person presently charged, it is left to an executive authority to determine what your Chapter III fair trial rights will be.  Indeed, the question that arises, how is this functionary, forensically equipped to make such a determination in the course of a Chapter III matter? 

If we go back to the decision in Hammond and the statement by the Chief Justice, which was supported indeed by Justice Mason, and also the very strong statements by Justice Murphy in that case, in particular at page 201, in the commencement of the last paragraph his Honour notes:

To maintain the integrity of the administration of the judicial power of the Commonwealth an order should issue restraining the Commissioner from directing the plaintiff to answer any question –

His Honour spoke in terms of the maintenance of the integrity of the administration of the judicial power of the Commonwealth. His Honour went further, indeed, and found that there was intrusion also into one of the inviolable characteristics in section 80 of the Constitution, which guarantees trial by jury on indictment, and found, effectively, that the intrusion – or the threat of parallel inquisitorial inquiry – invaded one of the inviolable characteristics of the institution of trial by jury.

Perhaps the most powerful statements in the Hammond decision emerge from Justice Deane who married up, effectively, the constitutional implications of what had occurred in the circumstances of the Hammond matter.  At page 206, at about point 5, his Honour noted:

On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court.  Such an extra‑curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice –

FRENCH CJ:   How important to his Honour’s reasoning is the fact that the accused in that case had been committed for trial?

MR WENDLER:   I thought that when I read that passage as well that that may, shall we say, put a different effect on it, but on further reflection and scrutiny, it is my submission that it makes no difference.  Either there is interference, and what the nature of that interference is - it is the fact of interference and, in the circumstance of this case, the interference being a parallel inquisition in circumstances where you are leaving your Chapter III trial rights to the forensic ability of a non‑judicial officer.

FRENCH CJ:   When in the charging process is the judicial power of the Commonwealth engaged?

MR WENDLER:   This was discussed at length in Murphy v The Queen, what the legal situation was.  Committal proceedings have always been regarded as administrative.  When they sit in isolation they are, but when they are exercised as being incidental to the judicial power of the Commonwealth then it has been held in Murphy’s Case that it is not offensive to the Chapter III principles.  That of course must be, otherwise the efficacy of the exercise of judicial power, certainly in relation to Commonwealth indictable offences, would be affected.  The other very important words and reference to earlier cases by Justice Deane in that passage, where his Honour notes:

Where a court is exercising the judicial power of the Commonwealth pursuant to s. 71 of the Constitution, such interference involves a derogation of the constitutional guarantees that flow from the vesting of the judicial power of the Commonwealth in courts of law.

Then his Honour identifies the earlier cases in the statement of principle by Justice O’Connor in Huddart Parker, and later Justice Barton in the Melbourne Steamship Co. Case.  I have already alluded to those statements.  This passage is also important on page 207 at about point 4:

It was submitted on behalf of the Commonwealth that it has not been shown that the inquiry by the Royal Commissions into the plaintiff’s involvement in matters the subject of criminal proceedings involves any substantial risk of serious injustice or serious prejudice.  That submission struck me as unattractive at the time when it was made.  I have found that it deteriorates upon closer consideration.  The pending criminal proceedings against the plaintiff are brought by the Commonwealth.  The parallel inquisitorial inquiry into the subject matter of those proceedings is being conducted under the authority of the Commonwealth.  As I have said, the conduct of that inquisitorial inquiry is to no small extent following the general form of a criminal trial shorn of some of the privileges and safeguards which protect an accused in such a trial.  The plaintiff has been compelled to be sworn as a witness and has been subjected to questioning in the course of that inquiry.  Indeed, his refusal to answer questions has led to his being charged . . . It is not, in my view, necessary to go beyond these things.  In themselves, they constitute injustice and prejudice to the plaintiff.

That is probably, I suppose, the high water mark of the ‑ ‑ ‑

FRENCH CJ:   That is a distinct proposition from the proposition that the investigative process somehow intrudes upon the judicial process.  That has been an element of your earlier submissions.  Can you just unpack that a little?  How does the investigative process, with the statutory protections built in, intrude upon or compromise the judicial process, if it allows questions to be put on matters in respect of which the plaintiff has been charged?

MR WENDLER: In effectively three ways. The first way is the introduction of or the use of derivative evidence, the source of which are the consequence of various answers given. It cannot be said in the construction of that particular part of section 25A(9), but it protects the person being examined against derivative use. The Act is simply not clear in its terms in relation to that.

It would have been simple, it seems to me, for the draftsman simply to put in, if this part of the Act did deal with a person presently charged, to put in or include the derivative evidence and define “derivative evidence” and had it as part of the definitional section of the Act.  But, in my submission, the confidentiality section of the Act cannot be construed safely, or at all really, that it protects against derivative use.

But the second most important way it impacts upon the curial process is that it permits the examiner to forensically determine what is or is not a fair trial.  As long ago as, I think in Dietrich’s Case, where of course this Court in at least two of the judgments, in Justices Deane and Gaudron’s judgment, there was treatment concerning the right to a fair trial as being constitutionally entrenched, and a trial being in accordance with the judicial process. 

The fairness or otherwise of a effectively uncontrolled non-judicial officer determining what in the future will be fair to you as justification for compulsory interrogation about the very offences charged is, in my respectful submission, an intrusion into the curial process because when the curial process commences, it commences on the basis of a guarantee of due process rights.  A guarantee that the curial process is in accordance with the law of the State in which the offence has been committed, picked up and applied by section 68, and further enhanced by section 79 of the Judiciary Act.

So, that is the other aspect of intrusion, and the third aspect of intrusion is that it must impact on the adversarial nature of the criminal trial curial process because you are compelled to effectively respond to questions which will ‑ ‑ ‑

FRENCH CJ:   You are describing a non‑curial inquisitorial process.  How does it impact upon the final process itself?

MR WENDLER:   As I have indicated already to ‑ ‑ ‑

FRENCH CJ:   In this connection, your third point.

MR WENDLER:   Well, it compels a person to contribute to the case of his opponent because you are compelled to answer.

BELL J:   When Chief Justice Gibbs speaks about being prejudiced in one’s defence, it may not be with respect to something as narrow as whether or not derivative use is made.  But perhaps what is contemplated by that notion is something broader taken up by your third point about the nature of the criminal justice process, which is adversarial and which assumes that it is incumbent upon the prosecution to make good its case with no contribution from an accused and recognises that if an accused has been forced to give an account of the very subject matter of the charges brought against him, he has in a real sense been prejudiced.

MR WENDLER:   Yes, and that is certainly the powerful effect of certainly Justice Deane’s treatment.  Justice Deane was always, of course, very protective of the rights of the individual and recognised the constitutional protections in Chapter III in the criminal trial process.  There are many statements by Justice Deane throughout the cases concerning the protective mechanisms in Chapter III, insofar as the integrity of Commonwealth judicial power or the exercise of it was concerned.  There are ‑ ‑ ‑

HAYNE J:   Without constitutionalising the point, RPS v The Queen, Azzopardi v The Queen, and cases like that say more than once, I think, that criminal proceedings are accusatorial and adversarial.

MR WENDLER:   That is right, and they are the domain of the courts and not the domain of – so far as the fairness of that style of process is concerned – not the domain and prerogative of non‑judicial secret inquiries that are running parallel to that process.  An example, obviously an extreme example, where there has been legislative interference with the curial process, or the exercise rather of judicial power, of course, is the Privy Council decision in Liyanage in the ‘60s where legislation was passed effectively remodelling the whole nature of a criminal trial directed at a particular class of individuals. 

That is an extreme example of it, but what is at stake here is how do we determine whether the line has been crossed, by reason of legislative interference with the exercise of Commonwealth judicial power, and it is my submission the line has been crossed, in relation to the way section 25A(9) operates, if it be construed as permitting parallel interrogation of the very offences charged.

I think in Totani your Honour the Chief Justice in the very first sentence of your Honour’s reasons for judgment noted that “courts decide cases, the executive does not”.  The executive has no business in the world of the curial process.  The plaintiff does not say that there is no legislative power to set up institutions of the kind described as the Australian Crime Commission.  The plaintiff does not say that there is even a prohibition in examining persons who have been charged.  What the plaintiff says is that there is no legislative power to authorise a non-judicial functionary to interfere in the curial process by running a parallel interrogation of the very offences charged. 

Your Honours will have noted from the written submissions that prior to the coming into operation of the Australian Crime Commission Act, the National Crime Authority Act before amendments were made to it had a similar or indeed identical provisions to section 29. There was also in section 30(10) – I just invite your Honours to the National Crime Authority Act at tab 2 and section 30.

Section 30(10) in the Act preceding the Australian Crime Commission Act actually specified or provided a protection against compulsory and coercive interrogation against the very offence charged. The scheme in section 30 of the National Crime Authority Act was that there was a compulsion to answer, unless there was a reasonable excuse in – or described as a reasonable excuse in answering the questions, and it specifically excluded interrogation, the very offence charged. When the amendment occurred and reformed section 30, and that amendment can be found at tab 3 ‑ ‑ ‑

CRENNAN J:   Well, just before you leave section 30, subsection (5)(b), provides for derivative use immunity as well as use immunity.

MR WENDLER: Yes, and that was also removed because practically there was, I think historically practically, it was realised there was a problem on all sides in determining whether evidence was derivative or not. It just became a nightmare in relation to the conduct of these type of proceedings. Of course, when there was a – I beg your pardon, at tab 4, when the amendment came about in section 12 of the amended Act which repealed sections 30(4) to (11) – removed the derivative use aspects and removed the prohibition on interrogation of the offence charged and substituted a different scheme of operation – removing that particular part of the legislation, once removed, it had to be removed, indeed, after the reform of section 30 because it had no independent legal existence without being part of section 30.

So, the question arises whether in the AustralianCrime Commission Act, one can read into the construction of the section the fact that the removal of section 30 evinced an attention that the same process would remain, including a prohibition on interrogation in relation to the very offence charged. The situation is, at least, ambiguous and unless it can be demonstrated that the language is precise, unequivocal and framed in unmistakeable terms in section 25A of the Australian Crime CommissionAct, then one cannot confidently say that the Hammond principle has, indeed, been abrogated in the circumstances, unless one can point to language which is unmistakeable for that situation to occur.

Also, in the Australian Crime Commission Act, there is the very powerful section which I describe as section 12(6), which curiously was not the subject of any treatment in the Full Federal Court, nor by the Court of Criminal Appeal.  The Court of Criminal Appeal in CB effectively

embraced the approach by the Full Federal Court, but nowhere in the reasons for judgment is there mention of section 12(6), which is a section one might think of fairly powerful operation in relation to the dissemination to law enforcement authorities of evidence obtained in an interrogation irrespective of anything else in the Act.  

That section 12(10), of course, was not in any way mollified by the amendment in relation to section 12(1).  Your Honours, the plaintiff’s submission is that there is by the very fact of parallel inquisitorial interrogation and the terms in which it is alleged that such interrogation is protected is not so protected and, indeed, compromises the curial process and the adversarial process, certainly to the extent that it commits that attention, or the fairness of that process, commits that attention to a non‑judicial officer.

That in itself, amongst other reasons that I have already mentioned, is quite possibly the most powerful reason why there has been an impermissible interference with the curial process and an impermissible interference of the exercise of Commonwealth judicial power; more correctly, the exercise of power incidental at this stage to the judicial power of the Commonwealth and a threat to the invocation of Commonwealth judicial power proper when the matter is ultimately committed for trial.  Your Honours, otherwise I rely on the written submissions.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Wendler.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours have, I hope, the written outline of oral submissions that we have provided.  Can I commence with a matter that is not dealt with in that written outline which is the matter that the Court raised with my friend this morning as to the scope of the investigation that was authorised by the board of the Crime Commission and ask your Honours to turn to page 31 of the special case book which is Schedule 1 attached to the authorisation instrument. 

This authorisation instrument was an instrument made by the board on 30 April 2009 and signed the following day.  As at that date 30 April 2009, the time frames covered in paragraphs (a), (b) and (c), in our submission, exhaust the universe of possibilities as a matter of time.  That is, a crime cannot have occurred before the 30 April, it can be occurring at the time on the 30 April or it can occur in the future after 30 April.  There is, in our submission, no gap.  Of course, a different question arises in connection with the use of the word “whether” in the first line and it may be said, well, once prosecuting authorities have reached the point of charging a person there is no longer a question whether that person has committed an offence. 

We submit that when one reads the whole of paragraph 1, what is being authorised by the board is an investigation whether, in accordance with the allegations in clause 3 and the circumstances mentioned in clause 2, “federally relevant criminal activity” which is a defined term has been committed at any of the three relevant times.  When your Honours turn to paragraph 2 the “Circumstances”, you will see that what the board is concerned with is an investigation into:

federally relevant criminal activity that may have been, may be being, or may in future be –

committed involving HRCGs which is a defined term if you go back to page 29 “high risk crime groups” being:

a group or groups –

so possibly more than one group each –

of two or more persons who are engaged in one or more of the activities described in Schedule 1 in more than one jurisdiction –

with the characteristics there listed in paragraphs (a) through (c) but complex, sophisticated, on-going organised crime, we submit.  In our submission, once it is appreciated that the board is investigating the past, current and future criminal activity of groups, it cannot be concluded on the evidence presently before the Court that there was any deficiency in the summons that was issued with respect to the plaintiff X7.

The reason that I say that, your Honours, is that when one looks at the summons that was issued to him, and that appears on page 41 of the special case book, he was summoned to answer questions, to give evidence about the following federally relevant criminal activities by a high-risk crime group, and then some offences were listed, including drug offences of the kind with which he has been charged.  We of course accept that the special case reveals that he was asked questions that correspond with the subject matter of the charge ‑ ‑ ‑

HAYNE J:   Which were charges of conspiracy?

MR DONAGHUE:   Yes, indeed, which in itself leaves open on the material, we submit, as in any event emerges from the definition of “high-risk crime groups” that there are likely to be others who are concerned with criminal activity that is either involved in the same conspiracy with which he has been charged, or conspiracies of a similar kind.  So an examination of the plaintiff on the face of this summons cannot, in our submission, be assumed to be confined only to the question of whether he is guilty of the offence with which he has been charged.

CRENNAN J:   But it certainly includes that.

MR DONAGHUE:   It includes it, yes.

HAYNE J:   The questioning with which we are concerned is the questioning directed to his commission of the offences with which he was charged?

MR DONAGHUE:   Your Honour, it depends ‑ ‑ ‑

HAYNE J:   I have in mind particularly the agreed fact where there is express reference to it, I think, is there not?

MR DONAGHUE:   There is in paragraph 11 ‑ ‑ ‑

BELL J:   Paragraphs 11 and 12 of the stated case.

MR DONAGHUE:   Yes.  It says it included questions concerning the matters with which he has been charged, but questions on that topic may well have been directly relevant to the offending of his co-conspirators, for example.

HAYNE J:   Be it so, what consequence follows from that?  If he is charged with conspiracy, there is reasonable and probable cause for charging him, I assume?

MR DONAGHUE:   Yes.

HAYNE J:   The authorities have investigated to the point of determining that there is reasonable and probable cause to charge him with conspiracy.

MR DONAGHUE:   But the authorities may still wonder whether there is sufficient evidence against others who may have been involved in the same conspiracy.

HAYNE J:   Of course they may, but why ask him?

MR DONAGHUE:   Well, because he knows.  If they are his co‑conspirators, he is uniquely placed to know.  In our submission, if we come back to the question, is this investigation authorised by paragraph 1 of Schedule 1 – that is, is there a question whether there has been offending – one cannot, in our submission, conclude from the fact that there is enough to charge the plaintiff X7 that there is not still a question to be investigated as to the involvement of others.

FRENCH CJ:   Would you accept that the authority conferred in terms of Schedule 1 does not extend to questions which are concerned only with whether he has committed the offences of which he has been charged?

MR DONAGHUE:   If they were concerned only with that question ‑ ‑ ‑

FRENCH CJ:   Putting aside questions of collateral benefit.  This is just going to his guilt or innocence.

MR DONAGHUE:   Then I accept that there would be force in an argument that there was no longer an investigation as to whether that offence had occurred or not.

FRENCH CJ:   You rely upon the fact that there are, as it were, collateral benefits arising ‑ ‑ ‑

MR DONAGHUE:   Well, possibly ‑ ‑ ‑

FRENCH CJ:    ‑ ‑ ‑ or other purposes for such questions?

MR DONAGHUE:   Yes, quite possibly intended benefits.

HAYNE J:   But the offence with which he is charged, which we do not have; we do not have the charges ‑ ‑ ‑

MR DONAGHUE:   No.

HAYNE J:   I would have thought that there is much to be said for the view that we ought to have the charges as part of the documents annexed to the case – come back to that – but the offence with which he is charged assumedly reads that you, together with either AB, named, or together with persons unknown to our sovereign lady the Queen, whatever the current form of charging of a conspiracy is. 

Now, to ask him a question about whether AB, or persons presently unknown, conspired with him to import or to traffic is directed wholly to whether he committed the offence, is it not?  Yes, there are collateral benefits, but is it not directed at least to whether he committed the offence with which he is charged and for which there is reasonable and probable cause to charge him?

MR DONAGHUE:   Your Honour, if it were to be confined only for that purpose, we submit it would be perverse for the examiner to have made the directions that he did that were designed to ensure that no material from this examination went to the prosecution or investigating police.  To limit it in that way would be to defeat the only assumed purpose.  We submit it is more readily to be taken from the documents, including the scope of the investigation, that the focus of the Crime Commission is wider.

I would not wish to be understood as submitting that it is confined to the question of, for example, have the co‑conspirators committed offences because it may be, and I will develop this shortly in the context of the Act, but the Crime Commission’s focus extends to intelligence activities and understanding the criminal operation of groups of this kind.  So it might be quite appropriate for the Crime Commission to investigate, well how did this particular drug operation run?  Not for the purpose of facilitating any prosecution of the applicant, but for the purpose of furthering its knowledge of the operation of drug groups in that field.

HAYNE J:   That is not what paragraph 1 of Schedule 1 says, is it?

MR DONAGHUE:   In my submission, paragraph 1 of Schedule 1 says whether high risk crime groups as defined have in the past, at present or in the future are committing any of the identified offences.  In my submission, that is wide enough to embrace the submission that I just put, because if one necessarily if one is investigating offences that may occur in the future, that is involved with authorising an examination of the kinds of things that the group does and how it does them.  There is, in our submission, no reason to assume that the summons that was issued did not embrace matters of that kind, albeit that it also included questioning – well, that the questioning about the matters charged may have served that very purpose.

KIEFEL J:   The Court is left in a position necessarily where it cannot assume a number of things, because of the very general nature of these authorisations and the lack of any specific allegation actually directed to a person.  There is no issue taken here about that aspect of the authority, there is no challenge to it.  But it does leave the authority and the action taken under the ACC Act as ostensibly – the only conclusion one can draw upon the basis of these instruments is that they are directed to information gathering, very wide information gathering.

conduct an examination for the purposes of a special ACC operation/investigation.

There are some other provisions I should mention as well.  Section 28(1) provides that an examiner:

may summon a person to appear before the examiner at an examination to give evidence and to produce documents –

but subsection (7) says –

The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.

Both those provisions, 28(7) and 24A, confine the purposes for which the statutory powers can be exercised and, we would submit, preclude an examination being held for the purpose of advancing a pending prosecution as distinct from for the purpose of investigating the offences committed by others.  We did not understand Mr Donaghue to submit differently to that.  That is the first way in which the Act serves to protect the ability of courts to conduct a fair trial according to law.

The second way, about which I do not wish to say very much, is section 25A(9) itself which of course the Court has been taken to by several of those who have gone before me. If despite those features of the Act a real risk does arise to a fair trial, as the Court has heard, the traditional powers of contempt are available, and as my learned friend the Solicitor for Queensland submitted, the Act goes further in the test that it provides in subsection (9) than the common law would otherwise have done.

But the ability of courts to protect their processes by means of the law of contempt do not exhaust the avenues that are available to the courts.  We mention the ability to exclude evidence.  In particular, we refer to sections 135 to 138 of the Evidence Act, the wider inherent power to stay a criminal trial, including on the basis that it cannot proceed fairly, the ability of courts to protect against an abuse of process, and we have referred in the outline to Dupas v The Queen, which I will not take the Court to but the reference is 241 CLR 237 and in particular at paragraph 15.

The ability of an accused to raise any of those measures, and of course, there is Hammond, itself, and the law of contempt, which I will not say more about, but the ability of an accused to approach a court seeking the exercise of any of those powers to ensure a fair trial or to prevent a trial if there cannot be a fair trial is itself facilitated by the Act. Can I take the Court firstly to section 25A(12). This and the following subsection are headed “Courts”. Subsection (12) provides that if:

(a)a person has been charged with an offence before a federal court or before a court of a State or Territory; and

(b)the Court considers that it may be desirable in the interests of justice that particular evidence given before an examiner . . . be made available to the person or to a legal practitioner representing the person ‑

The Court may give to the examiner or to the CEO a certificate to that effect and if that happens, the examiner or CEO must make the evidence available to the Court.  That is part of a process which enables the Court to go behind what has been done within the walls of the Commission, according to a test of what is desirable in the interests of justice. 

FRENCH CJ:   Because justice may assist either the prosecution case or the defence case?

MR McLEISH:   It is submitted it primarily appears to relate to exculpatory evidence.  In other words, if – it could be either, I do not need to say primarily, your Honour.  The interests of justice are not confined in that scenario.

BELL J:   But if evidence had been given that was the subject of a non‑publication order by someone confessing to an offence and in some way it came to the attention of those acting for a person charged with that offence an application could be made under the section for the material to be ‑ ‑ ‑

MR McLEISH:   Yes, an application could be made. It has got to be read with section 29B which is the offence provision, providing firstly that where a notation has been made under section 29A which is essentially a notation prohibiting disclosure of a summons or notice. Firstly, the existence of that summons or notice or information about it or the existence or any information about any official matter connected with them must not be disclosed under subsection (1). “Official matter” is defined in subsection (7) to include, among other things, court proceedings. There are important exemptions to that non‑disclosure offence. Subsection (2) relevantly provides that:

Subsection (1) does not prevent the person from making a disclosure:

. . . 

(b)to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter -

Then, in subsection (4):

A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information:

. . . 

(b)if the person is a legal practitioner – for the purpose of giving or obtaining legal advice or legal representation, making representations, or obtaining assistance under section 27, relating to the summons, notice or matter –

That would enable a person to tell their legal practitioner about the examination and for that legal practitioner to make further disclosures for the purpose of making representations et cetera.  In that way, the secrecy provisions of the Act preserve the ability of an accused to approach the court seeking the exercise of any of the powers that I have mentioned.

Because those powers of the courts to ensure a fair trial are left intact, it is submitted that there is no question of invalidity in relation to these provisions.  Furthermore, because the powers are intact we submit that the Act should be read as empowering the Commission to act in accordance with its terms but subject to the law of contempt and the other powers which might be used by a court, along the lines of what was said by Justice Mason in the Pioneer Concrete Case at page 473 to which the Court has been taken.

I can give the Court one final reference to the judgment of Chief Justice Spigelman on behalf of the New South Wales Court of Appeal in NSW Food Authority v Nutricia AustraliaPty Ltd(2008) 72 NSWLR 456. At paragraph 119 on page 485 his Honour expresses and explains his agreement with the approach of Justice Mason, as he then was, in the Pioneer Concrete Case in a similar context.  If the Court pleases.

FRENCH CJ:   Yes, thank you.  Solicitor‑General for Western Australia.

MR DONALDSON:   If your Honours please, we have not done an outline of oral submission, your Honour, because it would have taken your Honours longer to read that than it will for me to make my submissions.  I have one short submission to make, your Honour.  It relates to the question of the real risk to the fairness of the trial or an examination pursuant to these statutory provisions.

My learned friend, Mr Wendler, was asked by the Chief Justice this morning what were the risks as apprehended by him. My learned friend identified three, two of which have been dealt with by others in submissions. The first of them was that the material could be used for a derivative purpose. The second contention of my friend was that it was for the examiner to determine the effect upon a fair trial. I think, your Honours, my friend was there referring to the provisions of section 25A(9).

All that needs to be said, your Honour, about that is that at paragraph 19.3 of their submissions the Commonwealth had accepted that that power would be subject to review.  So it would be a matter that could be considered by a court in the event that that exercise of power miscarried.  The third contention which my friend advanced was the impact of these statutory powers upon the accusatorial nature of the trial, and that has been dealt with already.

There was a further matter, your Honours, that we sought to identify in our written submissions at paragraph 21 and it is the matter which follows from a question of Justice Hayne earlier today.  I must say, your Honour, on the basis that my friend, Mr Wendler, has not taken it up, this fear is probably more imagined than real.  But the scenario there outlined, your Honour, as to a possible risk to the fairness of a subsequent criminal trial is, of course, the prospect that a person may be discouraged from giving evidence in their own defence on the basis that they have previously been required to give evidence at the examination. 

That discouragement could emerge from the fact that they had earlier innocently provided an incorrect answer to a question at the examination and the prospect that that incorrect answer could be the subject of a charge for giving false evidence under section 30(4), which might give rise to a discouragement to wish to give evidence, truthful evidence, in their defence at the subsequent criminal trial. We have posited to the extent that that might be thought to be a real risk to the substantive criminal trial. We have posited, your Honours, a response to that which, again, would be an order made pursuant to section 25A(9).

There is, of course, another answer to that and that is that if that scenario emerged then that would constitute a contempt.  That is, the risk of a person being unable to give evidence in their own defence at the trial would present a real risk to the fairness of that trial and an application prior to trial could be brought on in relation to that.  One would have thought that the risk of that to those prosecuting the substantive matter would have some effect upon their enthusiasm for engaging in these sort of pre‑trial examinations. 

Can I finally, your Honours, draw your attention to one further matter, and that is in Hammond, your Honours, in the judgment of Justice Deane – simply to bring to your Honours’ attention page 207. That is 152 CLR 188 at page 207, at about point 7, and that is the large paragraph on that page. Your Honours will see that his Honour there referred to, as it were, the combination of factors which gave rise to injustice in that case. His Honour referred to the fact in Hammond that, indeed, Mr Hammond had been charged with a refusal to give evidence. 

That is a factor, obviously, which is different to the circumstances of this matter.  Of course, the principal difference with Hammond is that in Hammond the confidential evidence was able to be seen by investigating police officers.  It is not clear from his Honour’s judgment how important that particular factor was to his Honour’s conclusion, but nonetheless it is a matter which his Honour identified.  May it please the Court.

FRENCH CJ:   Mr Solicitor, in future, unless you intend to get up and say “I have nothing to say”, a short oral outline, however short, would be helpful, thank you.

MR DONALDSON:   I do apologise, your Honour.

FRENCH CJ:   Yes.  Yes, Mr Wendler.

MR WENDLER:   During the course of submissions, I think both your Honours Justice Hayne and Justice Kiefel inquired about the existence of the originating process or a court attendance notice in relation to X7.  We have raised the court attendance notice that came into operation, and can I hand up copies?

FRENCH CJ:   Have you seen this, Mr Donaghue?

MR DONAGHUE:   I have seen a version of it, your Honour.  We are not quite sure exactly what its status is, given that it was not included in the special case.

FRENCH CJ:   Would you object to it being handed up?

MR DONAGHUE:   There are several versions of this document, some of which name co‑conspirators and some of which do not.  Apparently, the names were substituted at some later time.  I do not yet know.  I have not been able to trace through the provenance of ‑ ‑ ‑

FRENCH CJ:   We do not know whether this is the first such document that came into existence, because there may be successive notices of attendance, may there not?

MR DONAGHUE:   Or amendments, I think, marked on the document at subsequent times, I think is what happened.  This looks like the original, and I do not object to your Honours being given it.

MR WENDLER:   The names have been removed ‑ ‑ ‑

FRENCH CJ:   Just a minute, Mr Wendler.  I think it would be preferable if whatever document is to be provided to us be an agreed document so there is no dispute as to its provenance and where it stands in the sequence of events because as I understand it, there are a sequence of these things.

MR WENDLER:   I beg your pardon, I thought my opponents had the very document that I have, but of course I will circulate it or ensure that there is agreement in relation to the document and the document going to the Court.

FRENCH CJ:   Yes, all right.

MR WENDLER:   There is another document also which is a chronology concerning the curial process from the point when X7 was charged up to when he was interrogated.  That is a document my friends do have.  I will put it in the same category just in case one of my friends wish to say something about it, but they have had that document since yesterday.  It is just an uncontentious document which sets out some uncontentious ‑ ‑ ‑

FRENCH CJ:   Is it an agreed chronology?

MR WENDLER:   Well, I expect it is.  I circulated it yesterday and no one has approached ‑ ‑ ‑

FRENCH CJ:   Perhaps we can find out.  Mr Donaghue?

MR DONAGHUE:   We were given it yesterday.  I understood my friend was not intending to provide it to the Court.  It contains many facts that are not in the special case and it is not an agreed document.

FRENCH CJ:   Yes, all right.  Well, I think then that can fall into the same category as the other one.

MR WENDLER:   Yes, all right.  Can I just address the question that your Honour addressed to counsel appearing for the Commonwealth, and that was the question concerning the legal validity of the statutory instrument and the legal ‑ ‑ ‑

HAYNE J:   I put a question about validity, Mr Wendler.  I put a question about the scope of operation.

MR WENDLER:   I withdraw it - the scope of its operation, which ultimately is referable to the exercise of the authority that was exercised pursuant to it.  Overnight I seek leave to amend – I am making the application now – to amend the case stated, in order to express the particular question that concerns the Court, in relation to the ambit or the scope of the authority of the instrument.  So, I am seeking leave to amend the case stated to deal with that.

FRENCH CJ:   Have you given notice of your intention to Mr Donaghue?

MR WENDLER:   Yes, I have spoken to a number of my friends over the luncheon adjournment about it.

FRENCH CJ:   Do you have a draft?

MR WENDLER:   I have a hand‑written draft and I can read it on to the record if necessary, but ‑ ‑ 

FRENCH CJ:   Just a minute.  Mr Donaghue, have you seen a draft?

MR DONAGHUE:   My friend read his hand‑written draft to me once just before argument started, so I am not in a position to have a final response to it.

FRENCH CJ:   Yes, just a minute.  The view of the Court is that it is too late at this stage to engage in that exercise, Mr Wendler.  It is either within the framework of the existing questions or it is not, and you really have to deal with it on that basis.

MR WENDLER:   Yes, thank you. A submission was made, both by counsel appearing for the Commonwealth and also the Solicitor‑General for the State of New South Wales and, indeed, I think one other counsel, that this was not a constitutional law matter and should be resolved, with reference to other principles. The submission, as I understood it, was effectively saying or suggesting that there is no such thing as a due process right within the terms of Chapter III of the Constitution.

There is, of course, explicit due process rights in Chapter III itself, section 80 being one of them, being both a procedural and a substantive process right. There are a number of cases historically in this Court where there have been statements concerning or identifying what might be described as due process rights, in particular, the statements by Justices Deane and Gaudron in Dietrich concerning the constitutional entrenchment of a fair trial in relation to the exercise of the judicial power of the Commonwealth.  To the extent that the relevant legislation in this matter, in our respectful submission, does interfere with a curial process and interfere in the ways I have already described there is a constitutional due process interference and, in my respectful submission, that is made out by virtue of the legislation committing to a non‑judicial authority, the determination of whether or not the person, in this case X7, Chapter III trial would be fair.

There was a number of submissions made concerning this Court’s authority in Hamilton v Oades.  Hamilton v Oades and, indeed, Hammond are cases which can be, so far as the principles that emerge in the two cases, can be contrasted but not legally compared, in my respectful submission.  It is important to recall that in Hamilton v Oades it was the Court that had control over the fairness of that process.  In circumstances of this matter, it is a non‑judicial officer that has control, not a court.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Wendler.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 3.57 PM THE MATTER WAS ADJOURNED