Zakaria (as Tutor for SA) v New South Wales Crime Commission

[2016] NSWSC 506

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zakaria (as Tutor for SA) v New South Wales Crime Commission [2016] NSWSC 506

Hearing dates:

2 February 2016

Date of orders:

26 April 2016

Decision date:

26 April 2016

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Summons dismissed;

 

(2)   The plaintiff shall pay the first defendant’s costs of and incidental to the proceedings, as agreed or assessed;

 (3)   Leave is reserved to either party to apply for a different or special order for costs, notwithstanding the terms of Order 2 above. Such an application will be made within 14 days of the date of these reasons. The application and submission in support shall be no more than 10 pages and be accompanied by any document, not otherwise in evidence, on which the party relies. Any party affected by any such application shall have a further 14 days in which to respond by a submission of not more than 10 pages, which, again over and above the 10 pages, may attach any further documents not otherwise in evidence upon which it relies.

Catchwords:

ADMINISTRATIVE LAW – whether procedural fairness applies to the giving of evidence – whether the Plaintiff had the right to be heard before issue of the Summons to attend hearing to give evidence – procedural fairness applies to entitle the Plaintiff to be heard on any objection to the giving of evidence or to a question asked – procedural fairness does not apply to the issue of the Summons – Summons dismissed.

Legislation Cited:

Crime Commission Act 2012
Evidence Act 1995
Supreme Court Act 1970

Cases Cited:

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 2006 CLR 323
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Moodie (1977) 17 ALR 219
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sullivan v Department of Transport [1978] 20 ALR 323
Swift v SAS Trustee Corporation [2010] NSWCA 182

Category:

Principal judgment

Parties:

Dawood Zakaria (as Tutor for SA) (Plaintiff)
New South Wales Crime Commission (First Defendant)
Peter Hastings in his capacity as Commissioner of the New South Wales Crime Commission (Second Defendant)

Representation:

Counsel:
S Lawrence (Plaintiff)
A Shearer (Defendants)

  Solicitors:
Blair Criminal Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendants)

File Number(s):

2015/209617

Publication restriction:

(1)   No publication of the name of the Plaintiff, as distinct from the Tutor, or anything that would identify the Plaintiff. (2)   No person may search in the registry for or inspect any document or thing in these proceedings except with leave of the Court constituted by a Judge or Associate Judge. (3)   Any application made pursuant to Practice Note SC Gen 2 or otherwise to search in the registry for or to inspect any document or thing in these proceedings be served on the parties to these proceedings with a view that the parties be afforded an opportunity to make submissions as to the extent to which (if at all) any such application should be granted. (4)   Liberty to apply in relation to these orders.

Judgment

1. HIS HONOUR: Pursuant to earlier orders issued by the Court, the plaintiff in these proceedings is referred to by a pseudonym and there is a restriction on the publication on any matter that might identify the plaintiff. The issue currently before the Court seeks to quash a summons issued by the New South Wales Crime Commission (hereinafter “the Commission”) requiring the plaintiff to attend at a hearing to give evidence.

2. There is no suggestion by the Commission, or anyone else, that the evidence sought to be adduced from the plaintiff relates to, or concerns, an investigation into the conduct of the plaintiff or any allegation that the plaintiff was involved in the commission of an offence. The plaintiff is required to give evidence about the conduct of a close relative, against whom there are allegations of criminal conduct.

3. For present purposes, the nature of the conduct said to be criminal is irrelevant, except that it is fair to describe them as extremely serious. Formally, the plaintiff filed a summons on 17 July 2015, a number of prayers in which have been dealt with by the Court otherwise constituted, seeking declarations pursuant to s 75 of the Supreme Court Act1970, relevantly, that the summons was vitiated either by error of law or jurisdictional error and seeking orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act removing the summons into this Court and quashing it.

Facts

4. The plaintiff was under 18 years of age at the time that the summons was served. The summons was purportedly issued pursuant to the provisions of s 24(1) of the Crime Commission Act 2012 and required that the plaintiff attend and give evidence at the Commission on 9 July 2015. Relevantly, the summons records that the nature of the matters about which the plaintiff was to be questioned related to the plaintiff’s knowledge of the activities of his relative in relation to certain activity.

5. Further, the summons notifies the plaintiff that if he failed to attend, as required, he may commit an offence and may be arrested; that he may not disclose information about this summons that is likely to prejudice the investigation to which it relates, including information that directly or indirectly discloses the existence or nature of the summons, or the investigation to which it relates. There are exceptions relating to, relevantly, the obtaining of legal advice or representation in relation to the summons, or for the purpose or in the course of the legal proceedings.

6. Otherwise, the summons discloses that it was issued by the New South Wales Crime Commission and informed the plaintiff that the hearings in which evidence is required would be held in private, but that he may have a lawyer represent him, and if he is under the age of 18 years, he may also be permitted to have another person such as a family member or guardian accompany him. The summons notifies the plaintiff that the Commission reserves its right to refuse to allow a particular lawyer, family member or guardian to be present. It also informs the plaintiff that he may apply to the Attorney General for legal or financial assistance.

7. The summons was issued on 22 June 2015 and, as earlier stated, required attendance for the purpose of giving evidence on 9 July 2015. On 2 July 2015, the plaintiff instructed the solicitor acting on his behalf, and on 6 July 2015 that solicitor corresponded with the Commission seeking reasons for the decision to issue the summons. A response was received refusing to provide reasons, but informing the solicitor that some material would be provided when the plaintiff attended the Commission later in the week.

8. On 7 July 2015, the solicitors acting for the plaintiff gave notice to the Commission that they would seek judicial review of the decision to summons the plaintiff for questioning and seeking agreement to defer the questioning process from 9 July 2015 until such time as the lawfulness of the summons could be tested in the Court.

9. As earlier stated, the issues sought to be agitated relating to the provision of reasons for the issue of the summons have already been dealt with by the Court, as have issues relating to the use of the pseudonym, and orders have issued. That which remains is, as earlier stated, the lawfulness of the summons.

10. Notwithstanding the inferences available as the grounds to be raised in relation to the lawfulness of the summons, ultimately, the plaintiff raises only one ground, namely, the denial of procedural fairness, in that the summons issued without hearing from the plaintiff as to whether or not it should issue.

11. As a matter of abundant caution, it should be noted that the plaintiff objects to giving evidence before the Commission. Relevantly, the plaintiff does not suggest that the executive officer who issued the summons has not taken into account a criterion required by law; has taken into account an irrelevant criterion; has utilised the wrong test or asked himself or herself the wrong question. Nor is it suggested by the plaintiff that the executive officer misapprehended the nature or limits of the power to be exercised as a consequence of which an act or decision has been performed or made (or not performed or not made), which is not sanctioned by authority: see, inter alia, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24.

12. Instead, the one ground upon which the declarations and orders in the nature of certiorari rely is an allegation that there has been a denial of procedural fairness. In determining the issues in this case, the Court is required to keep in mind the distinction between merits review and judicial review, otherwise it is “apt to encourage a slide into impermissible merit review”: Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] per Basten J; Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (per Brennan J).

Legislation

13. The determination of whether the rules of procedural fairness apply to the issuing of a summons and, to the extent that the rules apply, the content of those rules, depends on the construction of the statute from which the power arises. The power derives from the Crime Commission Act 2012 (“the Act”) the object of which is stated to be “to reduce the incidence of organised and other serious crime”.

14. Part 2 deals with the constitution and functions of the New South Wales Crime Commission and by s 10 of the Act, the principal functions of the Commission are outlined and include: “to investigate matters relating to a relevant criminal activity or serious crime concern”; “to investigate matters relating to the criminal activities of criminal groups”; “to assemble evidence that would be admissible in the prosecution of a person for a relevant offence”; “to furnish evidence obtained in the course of its investigation to the Attorney General or the appropriate authority in the jurisdiction concerned”; and “to work in co-operation with persons or authorities” that “the Commission considers appropriate”. Further, the functions of the Commission include enquiring into matters connected with or arising out of the exercise of its functions under this or any other law.

15. The Act also grants the Commission the power to do all things necessary or reasonably incidental to the exercise of its functions. Part 2 Division 3 deals with the issue of search warrants and Part 2 Division 4 deals with hearings.

16. By s 19 of the Act, the Commission is empowered to hold hearings presided over by one or more executive officers and by s 20 of the Act, the procedure for such hearings is a matter for the Commissioner or executive officer presiding.

17. Section 21 deals with hearings held in private and who may be present during those hearings. Because the plaintiff raises as a prejudice the secrecy provisions of the process, it is appropriate to set out the terms of s 21, which are in the following terms:

21  Hearings to be held in private

(1) A hearing before the Commission is to be held in private and the Commission may (subject to section 21A) give directions as to the persons who may be present during the hearing or a part of the hearing.

(2) Nothing in a direction given by the Commission under subsection (1) prevents the presence, when evidence is being taken at a hearing before the Commission, of an Australian legal practitioner representing:

(a) the person giving evidence, or

(b) under section 22 (1) (b), a person who because of a direction given by the Commission under subsection (1) is entitled to be present.

(3) A person (other than an executive officer, counsel assisting the Commission in relation to the matter that is the subject of a hearing or a member of staff of the Commission approved by the Commission) must not be present at the hearing unless the person is entitled to be present because of a direction given by the Commission under subsection (1) or because of subsection (2).

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(4) A direction must not be given under subsection (1) permitting a person to be present during a hearing or part of a hearing while a witness is giving evidence, unless before the direction is given:

(a) the witness is informed that it is proposed that the person be present, and

(b) the witness has an opportunity to comment on the person being present.

(5) To avoid doubt, a person does not cease to be entitled to be present at a hearing or a part of the hearing if:

(a) the Commission fails to comply with subsection (4), or

(b) a witness comments adversely on the presence of the person under subsection (4) (b).

18. Section 22 of the Act allows a person giving evidence to be represented by an Australian legal practitioner, subject to the Commission’s right to refuse to permit a particular practitioner to represent a particular witness, if it believes on reasonable grounds and in good faith that such representation by such practitioner will prejudice its investigation.

19. The Commission is not bound by the rules of evidence. Most relevantly, s 24 of the Act is the provision that confers on the Commission the power to issue a summons to a person to give evidence. It is necessary, of course, to read s 24 in the context of the whole Act and most relevantly in the context of s 25, s 26 and s 27. Those provisions are in the following terms:

24 Power to summon witnesses and take evidence

(1) An executive officer with special legal qualifications may summon a person to appear before the Commission at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(2) The summons may require the immediate attendance of a person before the Commission if the executive officer believes on reasonable grounds that delay in attendance might result in:

(a) the commission of an offence, or

(b) the escape of an offender, or

(c) the loss or destruction of evidence, or

(d) serious prejudice to the conduct of an investigation.

(3) The summons must be accompanied by a copy of the notice, or of each of the notices, by which the matter or matters to which the hearing relates was or were referred to the Commission by the Management Committee.

(4) The summons must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the Commission intends to question the person unless the Commission is satisfied that, in the particular circumstances of an investigation to which the hearing relates, it would prejudice the effectiveness of the investigation for the summons to do so.

(5) Nothing in subsection (4) prevents the Commission from questioning the person in relation to any matter that relates to an investigation.

(6) The executive officer presiding at a hearing before the Commission may require a person appearing at the hearing to produce a document or other thing (whether or not the document or thing is present at the hearing).

(7) The Commission may, at a hearing, take evidence on oath or affirmation and for that purpose:

(a) the person presiding at the hearing may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and

(b) the person presiding or an authorised person may administer an oath or affirmation to a person so appearing at the hearing.

(8) In this section:

"authorised person" means a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the Commissioner.

25 Failure of witnesses to attend and answer questions etc

(1) A person served with a summons to appear as a witness at a hearing before the Commission must not, without reasonable excuse:

(a) fail to attend as required by the summons, or

(b) fail to attend from day to day unless excused, or released from further attendance, by an executive officer.

(2) A person appearing as a witness at a hearing before the Commission must not, without reasonable excuse or except as provided by section 39 or 40:

(a) when required under section 24 either to take an oath or make an affirmation-refuse or fail to comply with the requirement, or

(b) refuse or fail to answer a question that the person is required to answer by the executive officer presiding at the hearing, or

(c) refuse or fail to produce a document or thing that the person was required to produce by a summons served on the person under this Act.

Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.

26 Examination of witnesses

At a hearing before the Commission for the purposes of an investigation:

(a) counsel assisting the Commission generally or in relation to the matter to which the investigation relates, or

(b) any person authorised by the Commission to appear before it at the hearing, or

(c) any Australian legal practitioner representing a person at the hearing,

may, so far as the Commission thinks appropriate, examine or cross-examine any witness on any matter that the Commission considers relevant to the investigation.

27 False or misleading evidence

(1) A person must not, at a hearing before the Commission, give evidence that is, to the knowledge of the person, false or misleading in a material particular.

(2) A contravention of subsection (1) is an indictable offence and, subject to this section, is punishable, on conviction, by a fine not exceeding 500 penalty units or by imprisonment for a period not exceeding 5 years, or both.

(3) Notwithstanding that an offence against subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(4) A court of summary jurisdiction that convicts a person of an offence against subsection (1) may impose a fine not exceeding 100 penalty units or imprisonment for a period not exceeding 2 years, or both.

(5) Sections 331 and 332 of the Crimes Act 1900 apply to proceedings for an offence under this section in the same way as they apply to proceedings for an offence under section 330 of that Act.

20. Division 5 of Part 2 of the Act deals with the production of documents and by s 29 of the Act an executive officer may, by notice in writing, require a person to attend and to produce a document or thing specified in the notice. If a person were to claim that the person is “entitled to refuse or fail to produce the document or thing”, then a procedure is established.

21. If such a claim is to be made it must be made personally to the officer to whom the person is required to produce the document or thing. In those circumstances, the officer of the Commission must inform the person that he or she will be served with a summons requiring the person to appear as a witness and to produce the document. At that time the person must deposit the document or thing with the Commission (to be sealed) and the Commission may either withdraw the requirement to produce the document or insist that the document be produced. The presiding executive officer will determine whether the production is required. If a person who objects to the production of a document is dissatisfied with the Commission’s decision, the person may apply to the Supreme Court for review of the decision: s 33 of the Act.

20. Further, provisions particularly relevant to the arguments with which the Court must deal include s 45, which allows the Commission to direct that any evidence before it, or the contents of any document or any information, must not be published, or can only be published under certain conditions. Further, s 80 of the Act, imposes conditions of secrecy on various people, including legal practitioners appointed to assist the Commission.

21. By a combination of those sections, and the practice of the Commission, the Crime Commission imposes conditions or orders preventing the publication of information and evidence, a breach of which would amount to a breach of the Act, and for which penal sanctions apply: see s 45(3) of the Act.

Grounds of challenge

24. As earlier stated, the only ground of challenge is a denial of procedural fairness said to have been committed by the Commission in issuing a summons to the plaintiff to give evidence at a private hearing conducted by the Commission without first hearing from the plaintiff. The Commission submits that a proper construction of s 24 of the Act would result in the rules of procedural fairness not applying to the issuing of a summons.

Principles

25. There are two distinct issues raised by the parties. The first is whether the rules of procedural fairness (or natural justice) apply to the issue of the summons by the Commission. The second is, if the rules of natural justice were to apply, would the content of those rules be such as to require the Commission to hear from the plaintiff on the question of whether a summons to give evidence should issue.

26. As earlier stated whether the exercise of a statutory power is conditioned on an obligation of procedural fairness is determined by the construction of the statute that confers the power: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [12], per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. This principle has been expressed by the High Court at least since 1990 in which year the Court decided Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. The power of this Court to quash the decision of the Commission on the basis that procedural fairness has been denied depends upon the statute under which the Commission’s power is exercised and, in particular, whether the rules of procedural fairness have been excluded by express words or words of necessary intendment.

27. The starting point in terms of natural justice or procedural fairness is that they will apply to allow a party that may be adversely affected by a finding or conclusion of a court or tribunal a proper opportunity to prepare and present a case against such a finding: see Sullivan v Department of Transport [1978] 20 ALR 323 at 342 and 343 (per Deane, J).

28. As is made clear in Sullivan, referred to in the immediately preceding paragraph, by reference to R v Moodie (1977) 17 ALR 219 at 225, where a tribunal is under a duty to act judicially (which for present purposes we can assume applies to the Commission), is required to act judicially, namely, with judicial fairness and detachment. That requires that an opportunity be given to each party to present the case the party desires and to have the case of the party decided with judicial fairness and detachment, that is to say, in a manner that is unbiased and is not capricious, arbitrary or unreasonable: see Sullivan, supra; Peko-Wallsend, supra, at 39-40; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 2006 CLR 323 at [82]-[84]; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [87]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

29. As those cases make clear the rules of procedural fairness have two aspects (at least): the hearing rule and the decision making process. The hearing rule requires that a party understands the nature of the case against that party and be afforded a reasonable opportunity to prepare and to present its own case (or test the case of the other party). A necessary corollary to the hearing rule is that the party will be afforded a proper hearing, namely, a hearing by a decision maker who is not biased and in which the result is not capricious, arbitrary or unreasonable.

30. It is the foregoing principles that should be applied in determining whether procedural fairness is a requirement of the conduct of the Commission and the content of that requirement, if there be one.

Parties’ Submissions and Consideration

31. The principles that govern statutory construction are well known and have often been repeated. It is unnecessary to repeat those principles at length in these reasons.

32. Nevertheless, and despite that disclaimer, it must be borne in mind, at least, that the terms of a statute must be construed as a whole; that the terms of a statute should, where possible, be construed so as to achieve the purpose of the statute and the legislative intention; and that the terms of the statute should be construed so as to achieve harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

33. The plaintiff submits that the rules of natural justice apply and that they have been breached by not allowing the plaintiff the right to make submissions as to the issue of a summons. I have already recited the terms of the statute.

34. The statute, by operation of s 29 of the Act, compels the person served with a document, requiring production of documents or other material, to produce that document and allows the person to object to the production. That objection may be made on the usual grounds.

35. As earlier stated, if objection is taken to the production of a document or thing, a process is established under the Act that allows the person, served and required to produce, to argue before a relevant prescribed officer of the Commission that production should not be required. If the person is dissatisfied, the person may apply to the Supreme Court for a review: s 33 of the Act.

36. No such regime is established with respect to the requirement to attend to give evidence. On one view, at least, that may imply that the legislature, having turned its mind to the issues, has decided that such a procedure should not be afforded to an intended witness. I do not consider that to be the case.

37. The absence of a procedure relates more to the practicality of the procedure that is prescribed in relation to the production of a document. Where objection is taken, the Commission issues a summons to attend, at which time the objection to production is made and a ruling issues. If the party required to produce is dissatisfied with that ruling, avenues are available for the matter to be reviewed in this Court.

38. In relation to a person who is summonsed to attend and to give evidence, a summons has already issued and the person is required to attend, under the provisions of the Act. It is at that time that any objection to being compelled to give evidence or if not giving evidence, then objection to any question that may be asked, or subject matter that may be investigated, may be aired and the Commission invited to rule upon it.

39. To construe the legislation in a manner that allowed a person to object, on the usual grounds, to the production of a document, but not to object to the giving of evidence or the asking of a question would not lead to the achievement of harmonious goals. On the contrary, such a construction would have the capacity to circumvent a proper objection to the production of a document.

40. Given that the rules of evidence do not apply to the Commission, a party who has objected to the production of a document could, if there were no capacity to object to the giving of evidence or the asking of a particular question, be required to answer a question which divulged the content of the document that had been excluded from production.

41. Thus a construction of the statute that disentitled a person, who has been summonsed to give evidence, to objecting to the giving of evidence or to objecting to the asking of a particular question would lead to a significant inconsistency in the manner in which the legislation operated.

42. As a consequence of the foregoing, the proper construction of the statute imposes procedural fairness on the Commission in dealing with the requirement to give evidence. The foregoing statement of principle is a necessary precursor to the examination of the issues raised by the plaintiff.

43. However, the statement of principle does not, by itself, provide the answer to the issue raised by the summons. It does, nevertheless, answer an aspect of the issues before the Court and determines that the rules of natural justice or procedural fairness apply to the giving of evidence.

44. The first ground of the challenge to the issue of the summons is the failure to afford procedural fairness in not providing the plaintiff an opportunity to be heard, as to why he should not be summonsed, before issuing the summons to attend in order to provide evidence.

45. The second ground raised by the plaintiff to impugn the process is the alleged failure to afford procedural fairness to the plaintiff, by not providing him with a statement of reasons as to why the decision to issue the summons was made and what matters were considered.

46. The third ground is that the Commission provided inadequate (or no) information as to the matters in relation to which it is proposed to question the plaintiff.

47. Because of the manner in which the matter was raised and to the principles which apply to it, it is most appropriate to deal with each of these grounds together. The plaintiff argues at length that the process of procedural fairness or natural justice applies to the issuing of the summons and submits that the failure to afford the plaintiff a hearing, or a right to prepare for such a hearing, was a failure to afford procedural fairness.

48. I have already determined that the rules of procedural fairness apply to the requirement to give evidence. I have not determined that it applies to the issue of a summons to give evidence.

49. The plaintiff relies on a number of aspects of the prejudice to him in giving the evidence: first, the plaintiff is a juvenile; secondly, the relative about whom he is to be asked questions is facing serious charges, exposing him to a lengthy period of custody, if proved; the summons will require the plaintiff to attend and remain at the premises of the Commission to answer questions and not, at least for that limited period, to be at liberty; the compulsion to provide evidence against his relative is said, in those circumstances, to place the plaintiff in an invidious position in terms of his family relationships, a position that may be irreparable; if the plaintiff possesses information relevant to the relative's criminal activities, then in providing that information, he may assist the State to secure the conviction of his relative and his relative's lengthy imprisonment; alternatively, if he refuses to attend or to answer questions, he will commit a criminal offence under s 25 of the Act; and, as a second alternative, if he lies he will commit a further criminal offence under s 27 of the Act; lastly, the onerous secrecy provisions of the Act prevent the plaintiff from informing his parents that he has been required to provide evidence against his relative, in circumstances where that incriminatory evidence could emerge at the trial of the relative for this offence or other offences.

50. The plaintiff submits that the prejudice to the plaintiff in jeopardising his relationship with his relative and family; depriving him of his liberty during the period of questioning, the interrogation occurring in the shadow of a punitive regime of sanctions under the Act; and private communications with his family being subject to the onerous secrecy obligations of the Act are each adverse to his interests and should be matters considered in the issuing of the summons.

51. Further, the plaintiff submits, relying upon the UN Convention on the Rights of the Child, ratified by Australia, that the best interests of children ought to be considered as a primary matter in administrative decision making processes. Article 3 of the UN Convention certainly requires “the best interests of the child shall be a primary consideration”, but applies “in all actions concerning children”. I am not satisfied that a requirement to give evidence is an “action concerning a child”, but I am prepared to take the view, at least for present purposes, that the best interests of a child ought to be considered as one of the primary matters in the administrative decision making process that is required.

52. I hasten to add, that given the foregoing construction of the Act, namely that the rules of procedural fairness apply to the requirement to give evidence, a primary factor or consideration in determining whether a person should be required to give evidence would be the interests or the best interests of that person and the particular interests of children must be relevant to that exercise.

53. However, I make it clear, that the Court is not, at this stage, dealing with the criteria that ought to be considered or exercising the discretion that may otherwise be conferred on the Commission in requiring a person to give evidence, either generally or in relation to a particular question.

54. There is of course a logical dilemma associated with a prejudice that the plaintiff’s provision of evidence to the Commission would necessarily, or even arguably, prejudice the relationship between the plaintiff and his relative. If the evidence to be given is exculpatory, then, presumably, no damage would be done to the relationship or the relative. If, on the other hand, the evidence is inculpatory of the relative, then damage would be done to the relative and possibly damage to the relationship between the plaintiff and the relative.

55. The difficulty with such an argument, and the logical conundrum, is that the damage to the relative and the damage to the relationship is caused by the conduct of the relative about which evidence is given. I am here assuming that the evidence to be given would be truthful.

56. Nevertheless, the legislature has turned its mind to the compellability of witnesses and the difficulty associated with the requirement on persons to give evidence of confidential communications or evidence of matters within their knowledge only because of confidential relationships.

57. By operation of s 18 of the Evidence Act 1995 the legislature has, in criminal proceedings in which the Evidence Act applies, set forth a process by which a spouse (including a de-facto partner), parent or child of a defendant or accused may object to being required to give evidence or to give evidence of a communication with the accused as a witness for the prosecution. That process involves objection being made before the person gives evidence or as soon as practicable after the person becomes aware of the right to object, whichever is the later.

58. The Court in which the evidence is to be adduced is required to satisfy itself that the spouse, parent or child is aware of their rights under that provision. If objection were to be taken in accordance with s 18 of the Evidence Act, the Court is not permitted to require the person to give evidence, if the Court finds that there is a likelihood that harm would or might be caused, directly or indirectly, to the spouse, parent or child of the accused or to the relationship between the accused and that person if evidence were to be given and that the nature and extent of that harm outweighs the desirability of having the evidence given.

59. The provisions of s 18(7) of the Evidence Act, while not being an exclusive list of the factors to be taken into account by a Court in determining whether harm would or might be caused as aforesaid, or whether the nature or extent of that harm outweighs the desirability of the evidence being adduced, lists a number of factors to be considered, which include the nature and gravity of the offence that the accused faces (or relevant to these circumstances may face); the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; whether other evidence of those facts is reasonably available; the nature of the relationship between the person and the accused; and whether, in giving the evidence, the person would have to disclose confidential information or communications.

60. Both the provisions of Division 5 of Part 2 of the Act and the provisions of s 18 of the Evidence Act prescribe a process in which a person appears before the Commission, tribunal or court, makes an objection which the Commission or tribunal or court then determines.

61. The prejudice to which I have referred is prejudice that arises from the requirement to give evidence or the giving of evidence. The summons requires the plaintiff’s attendance at the Commission “to appear… at a hearing to give evidence”. Nothing in the summons prevents or restricts the capacity of the plaintiff, himself or through his legal representatives, or the accompanying person who is allowed to attend because of his youth, to attend the Commission, make objection and have the objection determined.

62. The prejudice to which the plaintiff points, if it be prejudice recognised by the law, is not manifest until that process is completed. If the Commission were to refuse to hear the plaintiff, that would be a different decision and may be challengeable in this Court, on short notice. Certainly any punitive measures sought to be imposed by the Commission, in the absence of a hearing as to whether evidence should be given, or a determination of an objection to particular evidence, could be the subject of challenge on short notice.

63. The only other aspect of the prejudice upon which the plaintiff relied, after questions from the Court, related to the “stress” or “anxiety” associated with the service of the summons and the possibility that evidence would have to be given. To use the vernacular, this is a “chicken and egg” situation.

64. At some point, assuming the Commission desires evidence from the plaintiff, some notice (whether formal or informal) must be given to allow the plaintiff to be given the opportunity to raise any objection to the giving of any evidence. The stress or anxiety, to which Counsel referred as a result of the service of the summons and the possibility that evidence would have to be given, would equally apply to any other formal or informal notice that a summons would issue, the effect of which would be to require evidence to be given.

65. In other words, application of the rules of natural justice or of procedural fairness to the issuing of the summons does not relieve the plaintiff from the “prejudice” associated with the stress or anxiety arising from the possibility that evidence would be required.

Conclusion

66. The rules of procedural fairness and/or natural justice apply to the requirement to give evidence in the Commission. That means that the Commission must afford the party a reasonable opportunity to present any objection that party may have to the giving of evidence or to the giving of particular evidence.

67. The process of issuing a summons to appear at a hearing to give evidence is a process which commences the regime. It is not a process that deprives the intended witness of procedural fairness or, by the issue of the summons itself, breaches the rules of natural justice. Those procedures and those rules are effected at the time that an appearance is made (or another date fixed for that purpose) at which any objection is made and at which time (either then or after reserving the question) the Commission determines the objection.

68. As a consequence of the foregoing, the summons fails. The summons is deliberately focused on the Commission issuing the summons, not on the giving of the evidence. It is not part of the proceedings before the Court that the Commission would deny to the plaintiff the opportunity to present an objection to the giving of evidence or the opportunity to object to a particular question on grounds that involve a prejudice agitated on behalf of the plaintiff.

66. It is not part of the function of the Court, in the present application, to consider or discuss the merits of any such objection or the likelihood that the law would countenance an objection to the giving of evidence on the basis of that alleged. Those are questions for the Commission. If, in the exercise of that power, the Commission involves itself in jurisdictional error or there is an error of law on the face of the record (including any reason that may be given), then the Court may exercise its powers of judicial review. That would be a fundamentally different exercise than the exercise sought to be agitated in the current proceedings.

67. As a consequence, the issues relating to the provision of reasons and the subject matter of the evidence, if within the content of the rules of procedural fairness applying, have not yet arisen.

68. The Court makes the following orders:

1. Summons dismissed;

2. The plaintiff shall pay the first defendant’s costs of and incidental to the proceedings, as agreed or assessed;

3. Leave is reserved to either party to apply for a different or special order for costs, notwithstanding the terms of Order 2 above. Such an application will be made within 14 days of the date of these reasons. The application and submission in support shall be no more than 10 pages and be accompanied by any document, not otherwise in evidence, on which the party relies. Any party affected by any such application shall have a further 14 days in which to respond by a submission of not more than 10 pages, which, again over and above the 10 pages, may attach any further documents not otherwise in evidence upon which it relies.

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Amendments

29 April 2016 - Paragraphs 4, 49, 50, 54 and 55 have been altered to remove any reference the plaintiff's identity.

Decision last updated: 07 July 2016