COERCIVE QUESTIONING AFTER CHARGE

COERCIVE QUESTIONING AFTER CHARGE

Stephen Donaghue*

INTRODUCTION

One of the distinctive features of the Australian legal landscape is the increasing use ofcommissions that possess coercive powers to supplement normal police methods in theinvestigation of crime.1 This practice became common in the late 1970s and early 1980s,when a number of Royal Commissions2 into organised crime or corruption wereconducted.3 It continued with the establishment at both the Commonwealth and Statelevel of standing commissions charged with the investigation of various types ofserious crime or corruption. This article is concerned with an analysis of the ability ofRoyal Commissions and standing commissions to use their coercive powers toinvestigate crime when the investigation may interfere with pending criminalproceedings. It argues that the divergent authorities in this area can best be understoodas turning on the fact that the separation of powers doctrine imposes limits on thepowers of Commonwealth commissions that do not exist in relation to Statecommissions.

The National Crime Authority! and the Australian Securities and InvestmentsCommissions are the two main national standing commissions with responsibility for

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BA, LLB (Hons) (Melb), D Phil (Oxon). Barrister and Solicitor of the Supreme Court ofVictoria.There were 47 ad hoc Commissions to inquire into crime, corruption or improprietyestablished in Australia between 1960 and 1991: S Prasser, "Appendix" in P Weller (ed),Royal Commissions and the Making of Public Policy (1994) at 267. A high profile, more recentexample is the Royal Commission into the NSW Police Service (Wood, 1997).More accurately referred to as "Royal Commissions of Inquiry": L A Hallett, RoyalCommissions and Boards of Inquiry (1982) at 1.See, eg, Royal Commission into Commercial Activities of Government and Other Matters(Kennedy, Wilson and Brinsden, 1992); Report of a Commission of Inquiry Pursuant to Ordersin Council-Inquiry into Possible Illegal Activities and Associated Police Misconduct (Fitzgerald,1989); Royal Commission of Inquiry into the Activities of the Nugan Hand Group (Stewart, 1985);Royal Commission into the Federated Ship Painters and Dockers' Union (Costigan, 1984); RoyalCommission of Inquiry into Drug Trafficking (Stewart, 1983); Royal Commission to inquire intothe activities of the Australian Building Construction Employees' and Builders Labourers'Federation (Winneke, 1982).Established by the National Crime Authority Act 1984 (Cth) (NCA Ad) and bycomplementary State legislation.Established by the Australian Securities and Investments Commission Act 1989 (Cth) (ASICAct) and by complementary State legislation.

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investigating crime.6 Both commISSIons have been given coercive powers by bothCommonwealth and State legislation.7 In addition, several State commissions existprimarily to investigate crime or corruption. The major State Commissions that flaythis role are the New South Wales Independent Commission Against Corruption, theNew South Wales Crime Commission,9 the Queensland Criminal JusticeCommission,lO the Queensland Crime Commission,l1 and the Western AustralianAnti-Corruption Commission.12 At both the Commonwealth and State level standingCommissions may be supplemented by ad hoc Royal Commissions or Commissions ofInquiry that are established to investigate crime.13 In this article these bodies arereferred to collectively as "Commissions". While Commonwealth bodies such as theAustralian Tax Office 14 and the Australian Competition and Consumer Commission15also possess coercive powers that may reveal evidence of crime, that is not theirprimary purpose.16 The analysis in this article is, however, relevant to these bodies iftheir powers may interfere with pending criminal proceedings.

Commissions possess much more extensive powers than the police.17 Theyinvariably possess the power to summon and question witnesses,18 and the power to

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Joint Parliamentary Committee for the National Crime Authority, Third Evaluation of theNational Crime Authority (1998) at 106.In relation to the NCA coercive powers are conferred by the NCA Act and by the NCA(State Provisions) Act in each State. The State Acts were enacted in 1984 in New SouthWales, Victoria and South Australia, and 1985 in Queensland, Tasmania and WesternAustralia. In relation to the ASIC, coercive powers are conferred by the ASIC Act and bythe State Corporations Acts 1990. In both cases the Federal legislation is of primaryimportance, with State legislation simply filling the gap that would otherwise exist in thecoercive powers of national Commissions because of the division of legislative powerunder the Commonwealth Constitution.Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).New South Wales Crime Commission Act 1985 (NSW) (NSWCC Act).Criminal Justice Act 1989 (Qld) (CJC Act).Crime Commission Act 1997 (Qld) (Qld CC Act).Anti-Corruption Commission Act 1988 (WA) (WA ACC Act).Pursuant to the Royal Commission Act 1902 (Cth); Royal Commission Act 1923 (NSW);Commission of Inquiry Act 1950 (Qld); Commission of Inquiry Act 1995 (Tas); RoyalCommission Act 1917 (SA); Royal Commission Act 1968 (WA); Evidence Act 1958 (Vic), Pt

, 1, Div 5. The legislation in each jurisdiction (other than Victoria) is broadly similar,although there are important variations. In this article specific reference is made to theCommonwealth Act only.Income Tax Assessment Act 1936 (Cth), ss 263, 264; J Kluver, "ASC Investigations andEnforcement: Issues and Initiatives" (1992) 15 UNSWLJ 31 at 33-35.Trade Practices Act 1975 (Cth), s 155.See, eg, DCT v De Vonk (1995) 133 ALR 303 at 306. The abuse of power doctrine discussedbelow is particularly relevant to the operation of these Commissions when coercive powersare used to investigate crime.R Sackville, "Royal Commissions in Australia: What price truth?" (1984) 60(12) CurrentAffairs Bulletin 3 at 11.Royal Commission Act 1902 (Cth), s 2; NCA Act, s 28; ASIC Act, s 19; ICAC Act, s 35;NSWCC Act, s 16; CJC Act, s 74; Qld CC Act, s 95; WA ACC Act, s 40(1), applying s 9 of theRoyal Commission Act 1968 (WA).

2000 Coercive Questioning after Charge 3

require the production of documents and things.19 Very often the legislation thatconfers coercive powers upon Commissions also abrogates the privilege against selfincrimination, with the result that Commissions can compel witnesses to incriminatethemselves.20 While this legislation normally also provides that evidence that iscompelled from a witness is not admissible a?ainst that witness in subsequent criminal(and sometimes also civil) proceedings,2 it very rarely prevents prosecutingauthorities or investigators from making derivative (or indirect) use of the evidencegiven to a Commission.22 A witness's compelled evidence may therefore be used toprovide leads to other evidence. That evidence can then be collected using normalpolice methods and it can be used in the prosecution of the witness if its relevance canbe established without reference to his or her compelled evidence. Compelled evidencemay also be used to provide non-evidential or forensic advantages, for example byassisting in the preparation of lines of cross-examination or in the determination of theorder in which witnesses should be called at trial. Witnesses who have been examinedby Commissions are therefore usually in a worse position if they are charged than theywould have been in had they been investigated using normal police methods.23

A number of complex legal issues arise from the use of Commissions to investigatecrime.24 This article is concerned with only one, which relates to the ability ofCommissions to undertake investigations that may interfere with criminalproceedings. The main way in which this interference may arise is through the use ofcoercive powers, whether against an accused or against possible witnesses at the trialof an accused, after criminal charges have been laid. This article analyses the doctrinesthat impose restrictions upon the ability of Commissions to exercise their coercivepowers in these situations. These restrictions may arise either as a result ofadministrative law principles that prevent the use of statutory powers for purposesother than the purposes for which they were conferred, or because the use of coercivepowers would involve a contempt of court.

The administrative law rules that prevent the abuse of statutory powers areexamined first. The relevant question at this stage is whether the legislature intendedto authorise a Commission to engage in a particular investigation or type ofinvestigation. If an investigation has not been authorised, any attempt to use coercive

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Royal Commission Act 1902 (Cth), s 2; NCA Act, ss 28, 29; ASIC Act, ss 30-34; ICAC Act, S5

22, 35; NSWCC Act, ss 16, 17; CJC Act, ss 69, 74; Qld CC Act, s 93; WA ACC Act, s 40(1),applying s 9 of the Royal Commission Act 1968 (WA).Royal Commission Act 1902 (Cth), s 6A; NCA Act, s 30(5), (7); ASIC Act, s 68(1); ICAC Act,s 37(2); NSWCC Act, s 18B(1); CJC Act, s 94(2); Qld CC Act, s 107(3); WA ACC Act, s 40(1),applying ss 13(4) and 14(2) of the Royal Commission Act 1968 (WA).Royal Commission Act 1902 (Cth), s 6DD; NCA Act, s 30(5), (7); ASIC Act, S 68(2), (3);ICAC Act, s 37(3), (4); NSWCC Act, s 18B(2), (3); CJC Act, s 96(1); Qld CC Act, s 110; WAACC Act, s 40(1), applying s 20 of the Royal Commission Act 1968 (WA); cf Income TaxAssessment Act 1936 (Cth), s 264.The main exception is the derivative-use immunity found in the NCA Act, s 30(5), (7).Where, because the privilege against self-incrimination can be claimed, witnesses mayrefuse to answer questions that may incriminate them either directly or indirectly: Reid vHaward (1995) 184 CLR 1 at 6,15; Sorby v Commonwealth (1983) 152 CLR 281 at 294-295,310,316. The ability to remain silent prevents derivative use of evidence and eliminates the riskof forensic disadvantages.Other major issues include the evidential use that may be made of compelled evidence andthe procedural rights that must be accorded to witnesses by investigative commissions.


powers in the conduct of that investigation may be restrained as an abuse of power.25

If, however, a coercive investigation has been authorised in accordance with therelevant legislative procedure,26 it is necessary to consider whether the use of coercivepowers during such an investigation can nevertheless be in contempt of court.27 Whenconsidering this question it is the effect of the exercise of coercive power, rather thanthe purpose of that exercise, that is relevant.28

ABUSE OF POWER

The basic doctrine

Statutory powers may be exercised only for the purposes for which they are conferred.Any exercise of a statutory power for a purpose ulterior or collateral to that for whichit was conferred is invalid as an abuse of power.29 The application of this rule isunproblematic when the sole purpose for which a statutory power is used is improper.It is more complicated when a power is used to advance multiple purposes, only someof which are improper. "[W]here a statutory power is exercised for more than onepurpose and one of those purposes is improper, the exercise of the power will bevitiated if the improper purpose was a substantial purpose.1I30 An improper purposewill be a "substantial purpose" if no attempt would have been made to exercise thepower if it had not been desired to achieve the unauthorized purpose.31

The administrative law doctrine of abuse of power is in some respects similar to thecommon law doctrine of abuse of process.32 As Brennan J observed, "the concept of

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DCT v De Vonk (1995) 133 ALR 303 at 310,322.There is wide variation in the type of procedure required to initiate Commissioninvestigations. Some Commissions, such as the ASIC, can conduct investigations on theirown initiative: ASIC Act, s 13. Others, such as the NCA, require a reference from asupervisory committee: NCA Act, ss 13, 14.DCT v De Vonk (1995) 133 ALR 303 at 322.Hamilton v Oades (1989) 166 CLR 486 at 502 per Deane and Gaudron JJ dissenting.Industrial Equity Ltd v OCT (1990) 170 CLR 649 at 659; Environment Protection Authority vCaltex Refining Co Pty Ltd (1993) 178 CLR 477 at 537; DCT v De Vonk (1995) 133 ALR 303 at306 and 316-317; O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 48;FCT v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 535; Halden vMarks (1996) 17 WAR 447 at 458. This ground of review is reflected in the AdministrativeDecisions Oudicial Review) Act 1977 (Cth), s 5(1)(e) read with s 5(2)(c).Knuckey v FCT (1998) 40 ATR 117, applying Thompson v Randwick Municipal Council (1950)81 CLR 87 at 106. See also Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board(1982) 41 ALR 467 at 468-469.Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468469 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, following Thompson v RandwickMunicipal Council (1950) 81 CLR 87 at 106. This test was approved in Walton v Gardiner(1993) 177 CLR 378 at 410; Boys v ASC (1998) 152 ALR 219 at 228; Kazar v Duus (1998) 29ACSR 321 at 335. The "but for" test adopted in these cases may not render a substantialpurpose improper if that purpose is not the ultimate purpose for an exercise of power, butrather is a means to the end to be achieved by an ultimate purpose: Knuckey v FCT (1998) 40ATR 117. The Federal Court in DCT v De Vonk (1995) 133 ALR 303 at 317 said an exercise ofpower would be invalid if an improper purpose was "not insignificant". This test is notconsistent with the above authorities, which were not cited by the Court.See Walton v Gardiner (1993) 177 CLR 378 for a comprehensive discussion of this doctrine.


alien purpose is the basis of both the jurisdiction to prohibit an abuse of administrativepower and the jurisdiction to stay proceedings as an abuse of process".33 As hisHonour went on to point out, however, in the case of abuse of power the relevantpurpose is that of the repository of a statutory power, while in relation to abuse ofprocess the relevant purpose is that of the party who instituted the proceedings thatmay be stayed.34 In addition, the test for establishing an abuse of process differs fromthat for establishing an abuse of power.35 In the present context,36 an abuse of processcan be established only when an improper purpose is the "predominant" purpose forthe institution of proceedings.37

Despite these differences, the doctrine of abuse of process is relevant to thediscussion that follows as very few cases consider whether an exercise of coercivepowers by a Commission in a way that may interfere with pending court proceedingsis an abuse of power.38 There are, however, many cases that consider whether anexercise of coercive powers by a liquidator in similar circumstances is an abuse ofprocess.39 The liquidator cases involve abuse of process rather than abuse of powerbecause liquidators do not themselves possess coercive powers. Instead, they ask thecourts to use their coercive powers to order witnesses to attend examinations inrelation to any matters relating to the affairs of the company in liquidation.40 It istherefore the purpose of the liquidator in applying for a court order, rather than his orher purpose in exercising coercive powers, that can be challenged, as the doctrine ofabuse of process prevents a liquidator from asking the court to exercise its coercivepower for a predominant purpose that is improper. In this situation, the operation ofthe doctrine of abuse of process closely resembles the operation of the doctrine ofabuse of power, as both focus on the purpose for which coercive powers may beinvoked. For this reason, cases concerning abuse of process by liquidators provide

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Ibid at 410.Ibid.Brennan Jhas, however, left open the possibility that the appropriate test for an abuse ofprocess is an improper "substantial purpose": Walton v Gardiner (1993) 177 CLR 378 at 410.The doctrine of abuse of process may apply whenever the continuation of proceedingswould involve unacceptable injustice or unfairness. It is not confined to situations in whichproceedings have been instituted for an improper purpose, or where any hearing will benecessarily unfair: Walton v Gardiner (1993) 177 CLR 378 at 392. The doctrine is, however,relevant to this article only in so far as it restricts proceedings instituted for an improperpurpose.Williams v Spautz (1992) 174 CLR 509 at 529; Re Excel Finance Corporation Ltd; Worthley vEngland (1994) 124 ALR 281 at 300, citing Bums Philp & Co Ltd v Murphy (1993) 29 NSWLR723 at 732. There is, however, some authority that an abuse of process cannot be establishedunless the sole purpose for the institution of proceedings is improper: see Hong Kong Bankof Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519. In Sherlock v Permanent TrusteeAustralia Ltd (1996) 22 ACSR 16 at 44 the Court appeared to favour the sole purpose test,but did not need to decide between the tests.It is assumed that the doctrine could operate in this way in DCT v De Vonk (1995) 133 ALR303 at 306.See, eg, Hamilton v Oades (1989) 166 CLR 486; Hugh JRoberts Ply Ltd (1970) 91 WN (NSW)537; Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281; Hong KongBank ofAustralia Ltd v Murphy (1992) 28 NSWLR 512.Corporations Law, s 597.


useful guidance in relation to the operation of the doctrine of abuse of power inrelation to Commissions.

The purposes for which coercive powers may be used without giving rise to anabuse of power must be ascertained through a process of statutory interpretation.41This suggests that criminal investigations by bodies such as the Australian Tax Office,which was given coercive powers to facilitate the recovery of tax,42 are more likely tobe restrained than investigations by Commissions such as the NCA and the ASIC,which were given coercive powers specifically to assist in the investigation of criminaloffences.43 The application of the doctrine of abuse of power to Royal Commissions ismore complex, as Royal Commission legislation has no subject-matter specificpurpose.44 It has, however, been held that Royal Commissions can be established toinquire into any matter within the power of the legislature that conferred coercivepowers on the Commission,45 provided that they are not established on the basis of"corrupt or entirely personal and whimsical considerations, considerations which areunconnected with proper government administration".46 The purpose of any particularRoyal Commission is established by the terms of reference of that Commission. Thedoctrine of abuse of power therefore prevents any use of coercive powers for asubstantial purpose unrelated to those expressed in the terms of reference of aCommission.47

It is argued below that, in the absence of a clear intention that coercive powersshould not be used after charges have been laid, it is preferable not to attempt todiscern such an intention so that the doctrine of abuse of power can be used to restrainquestioning after charge.48 Any limitations should instead be based on the doctrine ofcontempt of court. As this approach is not always adopted in practice, however, and assometimes the use of coercive powers after charge may be clearly contrary to therelevant legislative intention, it is necessary to consider the operation of the doctrine ofabuse of power in more detail.

Hamilton v OadesThe leading case concerning the use of coercive powers after charges have been laid isHamilton v Oades.49 This case in fact concerns the doctrine of abuse of process, but forthe reasons discussed above it also provides useful guidance in relation to the

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See, eg, Industrial Equity Ltd v DCT (1990) 170 CLR 649 at 659-661; Padfield v Minister ofAgriculture, Fisheries and Food [1968] AC 997 at 1030.DCT v De Vonk (1995) 133 ALR 303 at 306.NCA Act, ss 11, 12; ASIC Act, ss 13, 16-18.Hamilton v Oades (1989) 166 CLR 486 at 509; Sorby v Commonwealth (1983) 152 CLR 281 at310.Halden v Marks (1996) 17 WAR 447 at 459.Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 12 per Stephen J; Halden v Marks(1996) 17 WAR 447 at 459-460.A-G (Cth) v Queensland (1990) 25 FCR 125 at 144; Ross v Costigan (1982) 41 ALR 319 at 330331; Harper v Costigan (1983) 72 FLR 140 at 154; EaUs v Dawson (1990) 93 ALR 497. For theequivalent rule in relation to standing Commissions see NCA v Al (1997) 145 ALR 126 at145.Compare Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at516-517 per Brennan J.(1989) 166 CLR 486.


operation of the doctrine of abuse of power. Under the examination regime at issue inHamilton v Oades, liquidators could 7fply to the court to carry out an examination inrelation to the aff(1irs of a company.5 The court had the power to give such directionsas it thought fit in relation to an examination;51 and the legislation expressly abrogatedthe privilege against self-incrimination.52 The case involved an appeal from the NewSouth Wales Court of Appeal, which had held that Oades, who was facing criminalcharges, was not required to answer questions the answers to which may have tendedto incriminate him in relation to the offences charged.53 The Court of Appeal thoughtthat to require Oades to answer such ~uestionswould constitute a real interference inthe administration of criminal justice. 4 The risk of injustice with which the Court ofAppeal was concerned was the risk that derivative evidence might be obtained thatwould assist in proving the pending charges.55

The High Court overturned the Court of Appeal and allowed the coerciveexamination of Oades to continue, notwithstanding the fact that the examinationwould disclose material that was relevant to the pending charges. In so doing, itfocused on the fact that the abrogation of the privilege against self-incriminationremoved the right to withhold answers that might lead to the discovery of derivativeevidence.56 It then, by a majority of three to two, held that neither the court's power togive directions nor its inherent power to protect its processes could be used tocounteract the effect of the statutory abrogation of the privilege. As a consequence, thecourt could not relieve a person from the duty to answer questions on the ground onlythat the answers might tend to incriminate him or her, notwithstanding the pendingcriminal charges.57

The High Court did, however, acknowled~ethat questioning could be restrained ifit was undertaken for an improper purpose.5 It identified the public purposes that anexamination by a liquidator is designed to serve as lito enable the liquidator to gatherinformation which will assist him in the winding up"59 and lito enable evidence andinformation to be obtained to support the bringing of criminal charges in connexionwith the company's affairs".60 As on the facts the examination was "directed towardsestablishing the making of preferential payments and the existence, location andownership of valuable assets",61 it was clear that the power was exercised for the firstof these purposes. As a result, no abuse of process could be established.62

Had the purpose of the examination been to collect evidence for use against Oadesin criminal proceedings, however, the fact that he had been charged would have ledthe Court to find that the questioning was impermissible. This is apparent from Mason

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Companies (NSW) Code, s 541. The equivalent provision is s 597 of the Corporations Law.Companies (NSW) Code, s 541(5).Companies (NSW) Code, s 541(12).Hamilton v Oades (1989) 166 CLR 486 at 492.Ibid at 494, 513.Ibid at 493-494.Ibid at 494-495. See DCT v De Vonk (1995) 133 ALR 303 at 312-313,324-325.Hamilton v Oades (1989) 166 CLR 486 at 498-499,511,516-517.Ibid at 498, 515.Ibid at 496.Ibid.Ibid at 497.Ibid at 513.


CJ's identification of the second purpose of the examination regime as being lito enableevidence and information to be obtained to support the bringing of criminal charges"63 orto IIcreate a system of discovery. ..for the purpose ofbringing charges."64 Toohey Jadopteda similar approach.65 As a matter of statutory interpretation, once charges had beenbrought the legitimate function of the examination was exhausted. Any further use ofcoercive powers would therefore have constituted an abuse of process.

The High Court1s conclusions in relation to the purposes of the statutory schemebefore it in Hamilton v Oades does not mean that, in the context of a different statutoryscheme, it would have concluded that it was not possible to authorise questioning aftercharge. On the contrary it is clear, at the State level at least, that the legislature mayconfer coercive powers to be used to assist in proceedings that a liquidator IImight beable to bring, proceedings he contemplates bringing, proceedings he has decided tobring, and proceedings he has already brought".6 As Street J observed, lI[a] liquidatorneeds information concerning his company just as much in connection with current orcontemplated litigation as in connection with other aspects of its affairs. In using thestatutory machinery of private examination he will in marv cases be gatheringevidence as an ordinary and legitimate use of this procedure."6 While the authoritiesgenerally do not refer specifically to the use of powers to assist in criminal litigation,68

the doctrine of abuse of power could not prevent the use of statutory powers by aCommission for this purpose if it were authorised by legislation. Such an authorisationwould, however, have to be very clear, as the cases suggest that:

[w]hen an investigative power to require the giving of information is conferred bystatute, the power will ordinarily be construed as exhausted when criminal proceedingsto which the information relates have been commenced and are pending. That is becausethe power is understood to be conferred for the purpose of the performance of theadministrative function of determining whether Eroceedings should be instituted...Thestatute is read down to protect the right of silence. 9

Forensic advantages and abuse of powerEven if a statute does not authorise a Commission to question an accused after chargeshave been laid for the purpose of obtaining incriminating evidence, Hamilton v Oadessuggests that coercive powers can be used to compel evidence from an accused thatcan be used against him or her, provided that the acquisition of that evidence is a sideeffect of an examination undertaken for a proper purpose?O Such an examination willnot be an abuse of power even if, in obtaining information for a legitimate purpose, the

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Ibid at 496 (emphasis added).Ibid at 497 (emphasis added).Ibid at 515.Ibid at 497, applying Re Hugh JRoberts Pty Ltd (1970) 91 WN (NSW) 537 at 541.Re Hugh JRoberts Ply Ltd (1970) 91 WN (NSW) 537 at 541. This approach has been approvedin Hamilton v Oades (1989) 166 CLR 486 at 497; Re Excel Finance Corporation Ltd; Worthley vEngland (1994) 124 ALR 281 at 301; Hong Kong Bank of Australia Ltd v Murphy (1992) 28NSWLR 512 at 518.But see Douglas-Brown (The official liquidator ofWoomera Holdings Ply Ltd) (rec and mgr apptd)v Furzer (1994) 13 ACSR 184 at 191.Environment Protection Authority v Caltex Refining Co Ply Ltd (1993) 178 CLR 477 at 516-517.Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281 at 302.


examiner "also obtains admissions or material that are available for him to use inevidence in current proceedings".71

Generally speaking coercive powers may not, however, be used for the purpose ofobtaining a "forensic advantage" that would not otherwise be available. Coercivepowers therefore may not be used for the substantial purpose of examining aprospective or existing defendant's probable witnesses for the purpose of destroyingtheir credit; to conduct a "dress rehearsal of the cross-examination"; or to obtain defacto discovery.72 Similarly, if a Commission "were to conduct an examination directedto compel the examinee to disclose defences or to gj-ve pre-trial discovery, or toestablish guilt, this examination may be restrained". 3 Gleeson CJ has, however,pointed out that "the possibility that a forensic advantage will be gained does not meanthat the making of an order will not advance a purpose intended to be secured by thelegislation. 1174 This suggests that the "forensic advantage II limitation is just another wayof saying that an examination will be an abuse of power unless its substantial purposeis legitimate. From the point of view of the doctrine of abuse of power, there is noobjection to a forensic advantage being obtained provided that obtaining thatadvantage is not the substantial purpose of an examination. If the substantial purposeof an examination is to obtain forensic advantages, however, that examination will berestrained unless coercive powers were conferred for the purpose of enabling aCommission to obtain such advantages.

The limitations imposed on Commissions by the doctrine of abuse of power aretherefore relatively weak. The doctrine of contempt of court, however, may restrict theuse of coercive powers after criminal charges have been laid, even if the use of coercivepowers in this situation was intended by the legislature and thus would not give rise toan abuse of power.

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Re Hugh JRoberts Pty Ltd (1970) 91 WN (NSW) 537 at 540.Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 28 ACSR 343 at 349; Re ExcelFinance Corporation Ltd; Worthley v England (1994) 124 ALR 281 at 302; Hong Kong Bank ofAustralia Ltd v Murphy (1992) 28 NSWLR 512 at 518-519; Sherlock v Permanent TrusteeAustralia Ltd (1996) 22 ACSR 16 at 17-18, 48-49; Adler v Qintex Group Management ServicesPty Ltd (in liq) (1996) 22 ACSR 446 at 449; Re Hugh JRoberts Pty Ltd (1970) 91 WN (NSW) 537at 542. See also Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 120 ALR 262; Re Norman BakerPty Ltd (in liq), ex p Hillman (1981) 6 ACLR 257 at 260; Re Nalanda Pty Ltd (in liq) (1983) 7ACLR 596 at 598; Re Allan Fitzgerald Pty Ltd (in liq) (No 2) [1990] 1 Qd R 401; Re Rothwells Ltd(prov liq apptd) (1989) 15 ACLR 168 at 180-182; Spedley Securities Ltd v Bond Corp Holdings Ltd(1990) 19 NSWLR 729; Re Spedley Securities Ltd, ex p Potts (1990) 2 ACSR 152 at 154-156; ReSpersea Pty Ltd (1990) 3 ACSR 87; Spedley Securities Ltd (in liq) v Bank ofNew Zealand (1990) 3ACSR 366 at 369-375; Re Mooroolbark Grammar School Ltd (1990) 4 ACSR 76 at 78-79; SpedleySecurities Ltd (in liq) v Bank of New Zealand (1991) 9 ACLC 124; Re BPTC Ltd (in liq) (No 2)(1992) 29 NSWLR 713.Hamilton v Oades (1989) 166 CLR 486 at 498,515.Hong Kong Bank ofAustralia Ltd v Murphy (1992) 28 NSWLR 512 at 519.

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CONTEMPT OF COURT

Federal Law Review Volume 28

General PrinciplesUnder Australian law there cannot be a contempt of court in relation to particularproceedings until those proceedings are "pending".75 In this respect Australian lawdiffers from the law of the United Kingdom, where proceedings must merely be"imminent" in order for the contempt of court rules to apply.76 The High Court hasobserved that the term "pending" is sufficiently broad in the criminal context to cover aperson who has been arrested and charged.77 The courts must be able to judge whethera contempt has occurred at the time an alleged contempt is committed, so theconsequences of an act of contempt cannot be conditional upon whether or not chargesare eventually laid.78 Consequently, "[t]he possibility, or even the strong probability,that a witness called to testify before a Royal Commission will be charged with anoffence provides an unlikely basis for a finding of contempt against the Commission inthe event that the witness is questioned about matters which are relevant to theoffence. He may never be charged."79 The time period in which the rules of contemptof court operate is therefore quite arbitrary, as it turns upon the point during aninvestigation at which the authorities actually lay charges.8o

The High Court has had some difficulty in settling the test to identify thecircumstances in which a contempt of court will be committed. There does not,however, appear to be any underlying disagreement about the nature of the questioninvolved.81 The Court's formulations of the test include that a Commission will be incontempt if its proceedings have "a real and definite tendency to prejudice orembarrass pending proceedings"82 or have "as a matter of practical reality, a tendencyto interfere with the due course of justice in a particular case" .83 Other formulations

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Sorby v Commonwealth (1983) 152 CLR 281 at 306; James v Robinson (1963) 109 CLR 593 at607-608,618, applying R v Parke [1903] 2 KB 432; R v Davies [1906] 1 KB 32; Kotan HoldingsPty Ltd v TPC (1991) 102 ALR 51. See also N Lowe and B Sufrin, Borrie & Lowe: The Law ofContempt (3rd ed 1996) at 236-237.A-G v Times Newspapers Ltd [1974] AC 273 at 301; A-G v Leveller Magazine [1979] AC 440 at449; N Lowe and B Sufrin, above n 75 at 238, 244; CJ Miller, Contempt of Court (2nd ed 1989)at 169-171; Report of the Interdepartmental Committee on the Law of Contempt as it affectsTribunals of Inquiry, Cmnd 4078 (1969) at 9-10. Under s 2 of the Contempt of Court Act 1981(UK) there can be contempt once proceedings are "active".Sorby v Commonwealth (1983) 152 CLR 281 at 306; James v Robinson (1963) 109 CLR 593 at606-607.James v Robinson (1963) 109 CLR 593 at 607-608. This reasoning has been criticised: N Loweand B Sufrin, above n 75 at 248; cf C J Miller, above n 76 at 171.Sorby v Commonwealth (1983) 152 CLR 281 at 307.S Walker, "Freedom of Speech and Contempt of Court: The English and AustralianApproaches Compared" (1991) 40 ICLQ 583 at 590.Ibid at 593.Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982)152 CLR 25 at 56, 136 (BLF Case); John Fairfax and Sons v McRae (1955) 93 CLR 351 at 373;Hinch v A-G (Vic) (1987) 164 CLR 15 at 34,47,70; DCT v De Vonk (1995) 133 ALR 303 at 307,323.John Fairfax and Sons v McRae (1955) 93 CLR 351 at 371; Hammond v Commonwealth (1982)152 CLR 188 at 196; BLF Case (1982) 152 CLR 25 at 166; Cooke v Goodhew (1989) 91 ALR 447at 459, 469; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 104-105; A-G


focus on whether there is "a real risk, as opposed to remote possibility",84 or "a realrisk, as a matter of practical reality",85 that there will be an interference with the duecourse of justice in a particular case. The "real risk" tests are preferable to those thatrefer to a "tendency" to interfere with the administration of justice, as the "tendency"tests are "uncertain and may tend to give too much weight to the protection of theadministration of justice at the expense of freedom of discussion".86

Mason J in the BLF case identified the test for contempt by a Commission as turningon whether there is a "substantial risk of serious injustice" if a Commission proceedswith its inquiries.87 In doing so he was drawing a distinction between on the one handthe test to be applied in relation to Commissions, where the public interest in aCommission's inquiries proceeding unhindered suggests that the threshold forcontempt should be high, and on the other hand the "real risk" tests outlined above,which apply in relation to the publication of prejudicial material by the media.88 Thisdistinction has not, however, been adopted by other members of the Court. It thereforeappears that the test to be applied in determining whether a Commission is incontempt of court is whether there is a "real risk" that the Commission will interferewith pending proceedings.

In determining whether a Commission is in contempt of court it is necessary tobalance the public interest in the due administration of justice against the publicinterest in the continuation of a Commission's inquiries (sometimes described as thepublic interest in the free flow of information or freedom of inquiry).89 The balancingprocess probably must be undertaken when deciding whether a contempt has beencommitted,90 rather than when deciding whether a contempt should be punished.91

The balancing process is required even when a Commission may interfere withpending criminal, as opposed to civil, proceedings.92 The public interest in the freeflow of information must, however, be very strong if it is to outweigh the interest in

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(NSW) v John Fairfax and Sons Ltd [1986] 6 NSWLR 695 at 697-698; M Chesterman, "Reformof the Law of Media Contempt" (1987) 61 ALl 695 at 702.BLF Case (1982) 152 CLR 25 at 56,60; Hinch v A-G (Vic) (1987) 164 CLR 15 at 27, 88; DCT vDe Vonk (1995) 133 ALR 303 at 307,323; Vinton Smith Dougall Ltd v ASC (1997) 23 ACSR 567at 569-570; N Lowe and B Sufrin, above n 75 at 78.Hinch v A-G (Vic) (1987) 164 CLR 15 at 70.Ibid at 27.BLF Case (1982) 152 CLR 25 at 99.Ibid; Cooke v Goodhew (1989) 91 ALR 447 at 459.Hinch 1) A-G (Vic) (1987) 164 CLR 15 at 24,26-27,41-42,52-53,67,85-86; BLF Case (1982) 152CLR 25 at 56,75,95, 133; Ex p Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37SR (NSW) 242 at 249-250. See generally S Walker, above n 80 at 583; J S Mo, "Freedom ofSpeech versus Administration of Justice: Balancing of Public Interests in Contempt of CourtCases in New South Wales" (1992) 9 Aust Bar Rev 215.The approach taken by Stephen, Mason and Wilson JJ in the BLF Case (1982) 152 CLR 25 at74-75,95-98, 133-137. This approach seemed to prevail in Hinch v A-G (Vic) (1987) 164 CLR15 at 68, 84; Cooke v Goodhew (1989) 91 ALR 447 at 469; S Walker, above n 80 at 600-601.The approach taken by Brennan J and, to some extent, by Gibbs CJ in the BLF Case (1982)152 CLR 25 at 60, 169, 175-176. The question has not been finally resolved: Hinch v A-G (Vic)(1987) 164 CLR 15 at 23-24,48.Hinch v A-G (Vic) (1987) 164 CLR 15 at 21-22, 36, 48,66,83.


the due administration of criminal justice.93 As a consequence, in cases involvingcriminal proceedings the balance will rarely be resolved in favor of the public interestin the free flow of information.94 The only time the balancing process need not beundertaken at all is when there is deliberate interference with the administration ofjustice, as deliberate interference will always be punishable as contempt.95

Contempt by CommissionsThere is no doubt that it is possible for Commissions to be in contempt of court.96

There are three main ways in which such contempt may arise. First, Commissions maygenerate publicity that is prejudicial to pending trials if they conduct public hearingsor issue public reports. Contempt of this type is not dependent upon the use ofcoercive powers, so it is examined below only briefly. Secondly, Commissions maycompel an accused to reveal incriminating material when criminal charges arepending. Finally, Commissions may use their coercive powers to acquire proceduraladvantages for the prosecution that would not otherwise be available. All three ofthese types of contempt involve possible interference with pending court proceedings.It has sometimes been argued that Commissions will be in contempt, even if there is norisk that they will interfere with pending proceedings, if they usurp the role of thecourts.97 A majority of the High Court has, however, indicated that Commissions thatinvestigate crime do not usurp the role of the courts, as they do not purport to exercisejudicial power.98 It is therefore not necessary to examine this possible type ofcontempt.

Prejudicial publicity and public findings ofguiltThe most obvious way in which Commissions may be in contempt of court is if theygenerate publicity that is prejudicial to pending criminal proceedings. While contemptof this sort is normally committed by publication, any medium that communicates

93

94

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Examples given in the cases include the discussion of a major constitutional crisis or of animminent threat of nuclear disaster: Hinch v A-G (Vic) (1987) 164 CLR 15 at 26. Gleeson CJ,however, appeared to have contemplated that the public interest in integrity in the racingindustry could outweigh an accused's interest in a fair trial free from prejudicial publicity:John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 84.Hinch v A-G (Vic) (1987) 164 CLR 15 at 24,26-27,41-42,52-53,58-59,67,86-87. See also DPPv Australian Broadcasting Corporation (1986) 7 NSWLR 588; DPP v Wran (1986) 7 NSWLR616.BLF case (1982) 152 CLR 25 at 55,72; Clough v Leahy (1904) 2 CLR 139 at 161-162; McGuinnessv A-G (Vic) (1940) 63 CLR 73 at 85,100-101.BLF case (1982) 152 CLR 25; McGuinness v A-G (Vic) (1940) 63 CLR 73 at 85; Clough v Leahy(1904) 2 CLR 139 at 156, 161; Johns & Waygood v Utah Australia Ltd [1963] VR 70 at 75. For adiscussion of these cases, other than the BLF case, see L Hallett, above n 2 at 227-247.BLF Case (1982) 152 CLR 25 at 167 per Brennan J. See also A-G v Times Newspapers [1974] AC273 at 309.BLF Case (1982) 152 CLR 25 at 65, 125, 128, 149, 154; McGuinness v A-G (Vic) (1940) 63 CLR73 at 84,90. See also Hammond v Commonwealth (1982) 152 CLR 188 at 196,199,207, where itis clear that the Court was concerned with the risk of interference with pending criminalproceedings, not with the possibility that the Royal Commission had usurped the role ofthe courts.


prejudicial information to the public may give rise to a contempt of court.99 As aconsequence, the public hearings of Commissions can result in contempt byCommissions themselves, not just in contempt by the media when reportingCommission hearings.100 When there is a risk that a public hearing may generateprejudicial publicity, the question is whether a Commission should be required to sit inprivate. The courts have taken a robust approach to this question, giving considerableweight to the public interest in continuation of a Commission1s inquiries in public. Allof the cases to date have, however, concerned possible interference with civilproceedings. It is likely that the contempt rules will operate more rigorously to preventCommissions from generating publicity that is prejudicial to pending criminalproceedings.10l

An order that a Commission conduct its hearings in private to minimise the risk ofprejudicial publicity reflects the normal operation of the rules of contempt. Those rulesare not affected by the fact that a risk of prejudicial publicity arises from the use ofcoercive powers, except in so far as the public interest that is served by the conferral ofcoercive powers has to be weighed in the balancing process that is required todetermine whether a contempt has occurred. This may mean that a Royal Commissionwould be permitted to conduct its investigations in public despite the generation ofsome prejudicial publicity if, for example, this prejudice is outweighed by the need topublish the activities of the Commission in order to restore public confidence.102 Evenif prejudicial publicity generated by a Commission created a significant enough risk ofprejudice to future criminal proceedings to outweigh the interest in the Commissionproceeding in public, this would not mean, however, that coercive powers could not beused in the remainder of the investigation. The Commission would simply be requiredto use these powers in private.103

It follows that while the law of contempt in relation t~ prejudicial publicity mayrestrict the ability of Commissions to use coercive powers in public, it does not imposeany prohibition on the conduct of investigations after charges have been laid.Contempt of this type is therefore not of great importance in restricting the power ofCommissions that investigate crime, as many Commissions of this type conduct eitherall or a substantial majority of their hearings in private. Sometimes this is required bystatute.104 Even where private hearings are not so required, they may nevertheless beheld, partly because of the risk of prejudice to future criminal proceedings, but mainlyto avoid prejudice to ongoing investigations and to prevent unnecessary damage to thereputations of innocent witnesses.10S

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C J Miller, above n 76 at 140. Publication in this context does not include privatecommunication between individuals, whatever the reason for that communication: ABC vJacobs (1991) 56 SASR 274 at 283; Roget v Havel (1987) 47 SASR 402 at 405-406.BLF Case (1982) 152 CLR 25; Cooke v Goodhew (1989) 91 ALR 447 at 456,459,468.Cooke v Goodhew (1989) 91 ALR 447 at 470.BLF Case (1982) 152 CLR 25 at 97, 135; Johns v ASC (1992) 35 FCR 16 at 40-41 (appealed tothe High Court on different grounds).BLF case (1982) 152 CLR 25 at 97; Huston v Costigan (1982) 45 ALR 559.See, eg, ASIC Act, s 22; NCA Act, s 25(5).See, eg, Royal Commission into the New South Wales Police Service (Wood, 1997) Vol 3 at A27;Royal Commission of Inquiry into Drug Trafficking (Stewart, 1983) at 13-14, 780; RoyalCommission of Inquiry into the Activities of the Nugan Hand Group (Stewart, 1985) at 11; RoyalCommission of Inquiry into Alleged Telephone Interceptions (Stewart, 1986) at 50; Royal


Even if hearings take place in private, Commissions will be in contempt if theygenerate publicity by preparing reports that may interfere with pending proceedings(although the decision to publish reports rests with the executive, not withCommissions). In considering whether Commissions are in contempt of this type,however, the balancing approach described above is particularly evident, with thepublic interest in Commissions reporting publicly being weighed particularly heavilywhen the proceedings that may be prejudiced are civil rather than criminal.l06 As aconsequence, the simultaneous conduct of civil proceedings and the holding of aninquiry that covers some of the matters before a civil court does not require theconclusion that the court's "function was being usurped or that the issues in the curialproceedings were being prejudged.1I107 The public interest that may justify thepublication of a report is, however, of limited weight when it is exclusively related tothe guilt or innocence of a particular accused,10B as is likely to be the case when dealingwith Commissions that inquire into specific crimes. For this reason Commissions intospecific crimes should be ready to sit in private or to report their conclusions inrelation to criminality privately to the government, as the balancin§ of public interestsin these cases will tend to favour the due administration of justice. 1 9

Even when it appears that the executive intends to release a Commission reportpublicly, the courts have generally refused to prevent Commissions from reporting, atleast when a report does not contain findings of ~uilt in relation to individuals facingcriminal proceedings. Thus in Hammond's case, 10 Gibbs CJ (with whom Mason Jconcurred on this point) said that:

It would very seriously impede the conduct of executive inquiries into matters of publicimportance if no report could be made on a matter which touched and concerned apending criminal charge... [T]he theoretical possibility that the trial of an accused personmay be prejudiced cannot justify the courts in stultifying proper inquiries into matters ofpublic interest simply because they relate in some way to the subject of a charge. Inassessing the likelihood of prejudice, the court should be entitled to assume that theexecutive will exercise a sound discretion in making a decision whether any part of thereport that might be prejudicial will be made public while criminal proceedings arepending.111

In a similar vein the Federal Court observed, in the context of an inquiry into crimethat overlapped with pending civil proceedings, that:

[t]o restrain the publication of that report is to deprive members of the public ofinformation about matters of public concern, which have been investigated at publicexpense. Moreover, this being an inquiry concerning allegations of individualmisconduct, to suppress the report may be to postpone the public vindication of one or

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lOB109110111

Commission into the Federated Ship Painters and' Dockers' Union (Costigan, 1984) Vol 1 at 162.See also Joint Parliamentary Committee on the National Crime Authority, VVho is to Guardthe Guards? An Evaluation of the National Crime Authority (1991) at 178-179.Cooke v Goodhew (1989) 91 ALR 447 at 456,470; BLF case (1982) 152 CLR 25 at 97.Cooke v Goodhew (1989) 91 ALR 447 at 456. The language of lIusurpation" is also used insome of the other cases, although the tests for contempt used in these cases suggest that thereal concern is with interference with pending proceedings. See, eg, DCT v De Vonk (1995)133 ALR 303 at 323; Brambles Holdings Ltd v TPC (No 2) (1980) 32 ALR 328.BLF case (1982) 152 CLR 25 at 99.See, eg, Royal Commission of Inquiry into Alleged Telephone Interceptions (Stewart, 1986) at 38.Hammond v Commonwealth (1982) 152 CLR 188.Ibid at 199, cf 209. See also BLF case (1982) 152 CLR 25 at 97.


more individuals. In my opinion, orders such as these should be made only after carefuland sceptical analysis, in the course of which the apprehended "risk of injustice" isidentified and quantified.112

It therefore seems that publication of the reports of Commissions will rarely berestrained, notwithstanding possible interference with pending proceedings, becauseof the public interest in the results of Commission investigations.

The remainder of this article is concerned with restrictions that are imposed by thelaw of contempt on the ability of Commissions to use coercive powers to investigatecrime after charges have been laid. These restrictions are not dependent upon theexistence of prejudicial publicity and may therefore apply whether a Commission'sinvestigations or reports are public or private.113

Contempt as a result of compulsory self-incrimination after chargeIn Hammond v Commonwealth114 the High Court was asked to restrain the inquiries of aCommonwealth Royal Commission that wished to compel Hammond to give evidencethat would incriminate him in relation to pending criminal charges.11S There was nosuggestion that the Royal Commissioner was motivated by an improper purpose inseeking to question Hammond,116 so the doctrine of abuse of power was not relevant.Nevertheless, the High Court unanimously held that coercive powers could not beused against Hammond. In reaching this decision, the Court assumed that theprivilege a~ainst self-incrimination had been abrogated by the Royal Commission Act1902 (Cth). 17 Furthermore, the examination was to be conducted in private, so therewas no risk of prejudicial publicity, and Hammond's answers would not have beenadmissible in evidence against him.118 Notwithstanding these factors, Gibbs CJ (withwhom Mason and Murphy JJ agreed) observed that:

[o]nce it is accepted that the plaintiff will be bound, on pain of punishment, to answerquestions designed to establish that he is guilty of the offence with which he is charged, itseems to me inescapably to follow ... that there is a real risk that the administration ofjustice will be interfered with. It is clear that the questions will be put and pressed. It istrue that the examination will take place in private, and that the answers may not be used

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Cooke v Goodhew (1989) 91 ALR 447 at 460.Court orders that require Commissions to sit in private therefore do not remove thepossibility that contempt of these types will occur. It is probable that the reason such orderswere treated as removing the risk of contempt in Huston v Costigan (1982) 45 ALR 559 at 563is that on the facts the accused had been examined before charges were laid. The caseconcerned whether the examination of witnesses other than the accused could continue aftercharges were laid. The main risk of contempt therefore related to the generation ofprejudicial publicity, although there was also a risk that the prosecution would obtainunfair procedural advantages.(1982) 152 CLR 188.For a discussion of the case see I Freckelton, Prejudicial Publicity and the Courts (ALRCResearch Paper No 4, 1986) at 120-123.Hammond v Commonwealth (1982) 152 CLR 188 at 205.Ibid at 197-198. The Court made this assumption as a result of the manner in which the casewas argued by the parties. The doubts expressed by the Court about whether the Actabrogated the privilege led to immediate amendments to the Royal Commission Act 1902(Cth) to clarify this matter.As a result of Royal Commission Act 1902 (Cth), s 6DD, which confers a direct-useimmunity.


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 hisdefence... [T]l;l.e public interest can be met, and the interest of justice at the same timesafeguarded, if the inquiry proceeds to its conclusions without further examination of theplaintiff.119

Similarly, Deane Jheld that:it is fundamental to the administration of criminal justice that a person who is the subjectof pending criminal proceedings in a court of law should not be subjected to having hispart in the matters involved in those criminal proceedings made the subject of a parallelinquisitorial inquiry by an administrative tribunal with powers to compel the giving ofevidence and the production of documents which largely correspond (and, to someextent, exceed) the powers of the criminal court. Such an extracurial inquisitorialinvestigation of the involvement of a person who has been committed for trial in thematters which form the basis of the criminal proceedings against him constitutes, in myview, an improper interference with the due administration of justice in the proceedingsagainst him in the criminal court and contempt of court.120

Brennan J agreed that a witness who has been committed to stand trial "is notamenable to compulsory interrogation designed to obtain from him information as tothe issues to be litigated at his trial".121 His Honour left open the source of thisimmunity, noting that it could result either from a reading down of coercive legislationso that it did not authorise a coercive examination once charges had been laid (anabuse of power analysis) or from "the necessary limitation upon the Commissioner'spowers to inquire of the witness into the issues to be litigated between the witness andthe Crown in the pending criminal trial. 11122

The above statements were expressed unequivocally, despite the fact that they wereadmittedly made under pressure of time.123 They have been relied upon or approvedin a number of lower court decisions.124 They are also supported by earlier authoritiesthat held that a Commission would be invalid if established for the purpose ofinterfering with the course of justice~125 Hammond's case is, however, difficult to apply"both because of the existence of room for doubt as to grecisely what it decided ... andbecause of uncertainty as to the reason for decision. "1 6 The case has therefore beencriticised/127 with Dawson J in Hamilton v Oades suggesting that the principles itoutlined may have been expressed too widely as a result of the urgency of the

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126127

Hammond v Commonwealth (1982) 152 CLR 188 at 199.Ibid at 206-207.Ibid at 202.Ibid.Ibid at 196/ 203.DCT v De Vonk (1995) 133 ALR 303 at 308-309; Hugall v McCusker (1990) 2 WAR 350 at 360361; Edelsten v Richmond (1987) 11 NSWLR 51 at 58; Brown v CAC (NSW) (1989) 14 ACLR781 at 786-787; Donovan v DCT (1992) 106 ALR 661 at 666-667; Commissioner of AFP vMcMillan (1987) 13 FCR 7 at 18.BLF case (1982) 152 CLR 25 at 55,72; Clough v Leahy (1904) 2 CLR 139 at 161-162; McGuinnessv A-G (Vic) (1940) 63 CLR 73 at 85/ 100-101. A Royal Commission established to inquirewhether an offence had been committed· when a prosecution for the offence was alreadypending would be invalid as a result of this rule.Re Gordon (1988) 80 ALR 289 at 296.See, eg, P Pascoe, "Current Developments: Hamilton v Oades" (1989) 7 CSL] 360 at 362.


matter.128 There are two significant questions about the scope of the case. The firstconcerns the relevance of the purpose of a Commission in requiring an accused toincriminate himself or herself; while the second concerns the nature of the threat to theadministration of justice that the High Court was concerned to remove.

In relation to the first of these questions, Toohey J indicated in Hamilton v Oadesthat, in Hammond's case,

the basis for restraining the Commissioner from examining the plaintiff on oath, at leastin the view of the majority of the court, lay in the fact that if the plaintiff were required toanswer questions designed to establish that he was guilty of the offence with which he hadbeen charged, there would be a real risk that the administration of justice would beinterfered with.129

His Honour's emphasis on the word "designed", which he viewed as a restrictive word,is based upon Gibbs Crs use of that word in the first sentence of the passage fromHammond's case quoted above. With respect to Toohey J, however, that word shouldnot be interpreted as a restriction that focuses on the purpose of the examiner.130 Suchan interpretation confuses the doctrines of abuse of power and contempt of court. Therules governing contempt prevent interference with the due administration of justice.It is therefore the effect of an inquiry on pending proceedings, rather than the design ofthat inquiry, that is relevant to whether there is a contempt.131 There is no reason whythe rule in Hammond's case, which is concerned with preventing interference with thedue administration of justice, should be limited by reference to intention or design.132Indeed, if the doctrine is so confined it would have almost no content, as the use ofcoercive powers in a way that is designed to interfere with pending court proceedingswould reveal an improper purpose, and could thus be restrained as an abuse of power.Such restraint would have nothing to do with contempt of the court.133

Gibbs Crs remarks in the Hammond case were clearly directed to contempt of court,and should therefore be understood as "related to the character of the questions ratherthan any intention on the part of the examiner".134 This interpretation is supported bythe facts of the Hammond case, as the Royal Commissioner in that case had no interestin Hammond's guilt or innocence for its own sake. Instead, Hammond was to bequestioned to assist the Commission in identifying the "existence of a malpractice, themethods used to car~ out that malpractice and how the repetition of that malpracticecan be prevented".1 5 The Commission's questions would presumably have been"designed" to achieve these objectives, even though they may have had the side effect

128

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130131

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133134135

Hamilton v Oades (1989) 166 CLR 486 at 509. His Honour did not, however, express anyview as to the appropriate scope of the law.Ibid at 515 (emphasis added). His Honour followed his own judgment in Huston v Costigan(1982) 45 ALR 559 at 563.Compare Re Gordon (1988) 80 ALR 289 at 296-297.BLF case (1982) 152 CLR 25 at 55,72; Clough v Leahy (1904) 2 CLR 139 at 161; McGuinness vA-G (Vic) (1940) 63 CLR 73 at 84-85; Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70at 73-75.Pioneer Concrete v TPC (1982) 152 CLR 460 at 468; Kotan Holdings Pty Ltd v TPC (1991) 102ALR51 at 56.DCT v De Vonk (1995) 133 ALR 303 at 310.Hugall v McCusker (1990) 2 WAR 350 at 361.Hammond v Commonwealth (1982) 152 CLR 188 at 194. See also Royal Commission into theAustralian Meat Industry (Woodward, 1982) at 27,34-39.


of requIflng Hammond to incriminate himself. A focus on the character of anyquestions asked is also consistent with Gibbs Crs judgment as a whole, which suggeststhat it was "the fact that the plaintiff has been examined, in detail, as to thecircumstances of the alleged offence" that created the contempt, not the fact that thequestions were designed to achieve this end.

The second difficulty in identifying the scope of Hammond's case is that thejudgments do not explain how the Commission created a real risk of interference withthe administration of justice, given that its hearings were to take place in private andany evidence obtained was not directly admissible in subsequent proceedings. TheCourt may have regarded the plain fact that self-incriminatory testimony could becompulsorily extracted at a time when criminal proceedings were Eending asconstituting an interference with the due administration of justice.1 6 Deane Jexpressed this the most clearly, when he observed that:

the conduct of that inquisitorial inquiry is to no small extent following the general formof a criminal trial shorn of some of the privileges and safeguards which protect anaccused in such a trial. The plaintiff has been compelled to be sworn as a witness and hasbeen subjected to questioning in the course of that inquiry. Indeed, his refusal to answerquestions has led to his being charged...with an offence under the Royal CommissionsAct 1902 (Cth). It is not, in my view, necessary to go be;ond these things. In themselves,they constitute injustice and prejudice to the plaintiff.13

Foster J has suggested that this passage is not based upon the possibility that therecould be "some positive effect, tangible or intangible, of the inquisitorial administrativeprocedures upon the accusatorial curial proceedings. "138 Instead, Deane J was

pointing to ... the clear basic unfairness of requiring the accused, whilst subject to criminalcharges, to be subjected to compulsory inquisition in relation to the very subject matter ofthe alleged offences. This situation produced such prejudice to the accused as toconstitute unacceptable interference in the administration of criminal justice.139

It is not, however, clear that it is unfair to conduct a coercive examination for alegitimate purpose if it is possible to prevent that examination from interfering withthe pending criminal trial. Furthermore, even if it is unfair to conduct such anexamination, this unfairness cannot constitute contempt unless there is a "real risk" ofinterference with the pending proceedings, as such a risk is a threshold requirementfor establishing contempt.

It therefore seems likely that the Court in Hammond's case was concerned with theprospect of a coercive examination tangibly or intangibly interfering with pendingLriminal proceedings.140 On the facts of Hammond's case, the possible interference wasclear, as, while Hammond would have received the benefit of a use-immunity, he wasnot protected by a derivative-use immunity and it was contemplated that policeofficers would be permitted to be present during his "private" examination.14 It istherefore easy to see why the High Court concluded on the facts of Hammond's case

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Hammond v Commonwealth (1982) 152 CLR 188 at 199,202; I Freckleton, above nIlS at 123.Hammond v Commonwealth (1982) 152 CLR 188 at 207.DCT v De Vonk (1995) 133 ALR 303 at 309.Ibid.Crollo v Bates (1994) 125 ALR 492 at 515 treats the case in this way.Hammond v Commonwealth (1982) 152 CLR 188 at 195.


that the t1parallel administrative inquirytl being undertaken by the Commission createda real risk of interference with the due administration of justice.

If, however, Hammond had both been examined in private and protected from thedirect and derivative use of his evidence against him,12I:2 it is arguable that the resultshould have been different.143 If contempt is to be established when an accused isprotected by a direct and derivative-use immunity, the real risk to the administrationof justice can arise only from the prospect that the prosecution may gain forensic ornon-evidential advantages from a Commission's examination of the accused inadvance of the trial.l44 As was pointed out above, however, an examination willnormally be an abuse of power if it is carried out for the substantial purpose ofobtaining forensic advantages for the prosecution. The risk to the administration ofjustice would therefore arise only when there is a legitimate purpose that can justifythe questioning of an accused after charge, and where any forensic advantage gainedby the prosecution is a side-effect of the pursuit of that purpose. In this situation thelegitimate purpose must be balanced against the threat posed to the administration ofjustice by the possible forensic advantages in determining whether a contempt wouldbe committed. In some circumstances, this balance will favour the coerciveexamination, particularly when any possible forensic advantage is minor. In thissituation, notwithstanding the fact that the prosecution has obtained forensicadvantages that may influence the trial of the accused, a Commission will not be incontempt of court.

Even if Hammond's case is not understood as turning on the possible influence of acoercive examination on subsequent proceedings, the High Court's identification of thethreat to the administration of justice in that case as resulting from compulsory selfincrimination after charge significantly limits the implications of the case. Mostobviously it suggests, for example, that a Commission may question an accused aftercharges have been laid provided that the privilege against self-incrimination isavailable. The Commonwealth Parliament clearly interpreted the decision in this way,as section 6A(3) of the Royal Commission Act 1902 (Cth) was enacted shortly after thedecision in Hammond's case. That section, which has an equivalent in the NationalCrime Authority Act,145 restores the privilege once charges have been laid. Thisimplies that Commissions may question witnesses after charges have been laidprovided that the witnesses cannot be compelled to incriminate themselves in relationto the pending charges.146

It also appears that coercive powers may be used to acquire evidence ¥ainst anaccused, after charges have been laid, from witnesses other than the accused.14 Thus, inDe Greenlaw v National Companies and Securities Commission, Southwell J rejected asubmission that the coercive examination of an accused's wife should not be permitted,

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By a use and derivative use-immunity, as is provided for by the NCA Act, s 30(5), (7) or bythe Director of Public Prosecutions Act 1983 (Cth), s 9(6).See the analogous reasoning in R v Elite Woodproducts (Australia) Pty Ltd (1989) 42 A Crim R45 at 52-53.The non-evidential use of evidence will probably not be prevented by derivative-useimmunities. See the discussion in Ganin v New South Wales Crime Commission (1993) 32NSWLR423.NCA Act, s 30(10).F v NCA (1998) 154 ALR 471 at 477.Hammond v Commonwealth (1982) 152 CLR 188 at 199,201, cf 209.


noting that III have been referred to no authority which suggests that a person whomay become a mere witness in proceedings against X is entitled to protection frominquiry at a hearing such as is here proposed or that X is entitled to prevent such ahearing.1I148 There are, however, limits on the use of coercive powers in this way if theyprovide procedural or forensic advantages to a party to litigation.

Procedural or forensic advantages and contempt of courtCommissions may interfere with the administration of justice in ways that do notinvolve compulsory self-incrimination. The due administration of justice also requiresparties before the courts to be able to rely upon the courts reaching decisions basedupon facts that have been froved in evidence lIin accordance with the proceduresadopted in courts of law ll

•14 Interference with or circumvention of the procedures of

the courts may therefore constitute a contempt of court.The leading case in relation to contempt of this type is Brambles Holdings Ltd v Trade

Practices Commission (No 2).150 In that case Franki J considered an attempt by the TradePractices Commission to use its coercive powers to obtain information that wasrelevant to penalty proceedings it had instituted against the appellant. Franki J tookthe view that the relevant statute did IInot vest power in a member of the Commissionto serve notice under it after proceedings have been commenced in a court for apenalty, where that notice is directed to obtainin¥ answers from a defendant which arerelevant to the court proceedings against it."15 He reached this conclusion withoutdetailed analysis of the section in question, su~gesting that he was not concerned witha simple question of statutory interpretation.15

It was argued in the Brambles case that the contempt arose because coercive powerswere used to circumvent the rules and practices of the court. These rules and practicesdid not require the applicant to answer interrogatories or to give discovery in relationto penalty proceedings.153 Franki J accepted this argument, finding that lithe issue ofthe notice...was a clear interference with the ordinary course of justice. It was a clearattempt to procure an advantage by threatening a party with criminal proceedings if itdid not do something which the law did not require it to do."154 The approach in theBrambles case has been accepted by the Federal Court in a number of cases.155

148

149150151152

153154

155

De Greenlaw v NCSC (1989) 15 ACLR 381 at 385. See also Huston v Costigan (1982) 45 ALR559 at 563-564.A-G v Times Newspapers [1974] AC 273 at 309.(1980) 32 ALR 328.Brambles Holdings Ltd v TPC (No 2) (1980) 32 ALR 328 at 335.See A H Slater, "Using Investigative Powers During Litigation" (1994) 6 CCH J of AusTaxation 11 at 12, who assumes that the reasoning in Brambles applies in the differentstatutory context of the Income Tax Assessment Act 1936 (Cth); cf Grollo v Bates (1994) 125ALR 492 at 516-517 where, obiter dicta, Einfeld Jargued that the Brambles case turned simplyon statutory interpretation.Brambles Holdings Ltd v TPC (No 2) (1980) 32 ALR 328 at 338.Ibid at 340 (the criminal proceedings referred to are proceedings to compel compliancewith the Commission's orders).DCT v De Vonk (1995) 133 ALR 303 at 323; Kotan Holdings Pty Ltd v TPC (1991) 102 ALR 51at 56,61-62; Commercial Bureau (Australia) Pty Ltd v Allen, ex p FCT (1984) 52 ALR 703 at 709.See also A Bruce, "Caltex and Abbco Ice Works-The End of the Road for Corporations?"(1995) 23 ABLR 7 at 9-11.


The High Court has not had occasion to decide whether obtaining forensicadvantages in pending litigation may constitute contempt, although several judgeshave made comments in relation to this issue.156 Gibbs CJ approved the approachtaken in the Brambles case, stating that III incline to think that if the power were used toassist a party in proceedings already pending, in a way that would give such a partyadvantages which the rules of procedure would otherwise deny him, there would be acontempt of court. 1I 157 In a similar vein Gleeson CJ, before his elevation to the HighCourt, relied on the Brambles case when holding that coercive powers could not beused for lithe purpose of gathering evidence for use in current criminal proceedings orof enabling the prosecution to circumvent the limitations which the process of theCourt places upon the power to compel production of documents ll .158 His Honour tookthis view even in relation to State legislation because, while acknowledging that theseparation of powers considerations underlying the Brambles case are stronger in theCommonwealth than the State context, the lIunderlying issues as to the interference b~

the Executive in the process of adjudication by courts... are of abiding importance ll•1 9

Kirby P also accepted, before his elevation to the High Court, that if coercive powersare im~roperlyused II such use could, in some cases at least, amount to a contempt ofcourtll

• 60 Finally, McHugh J approved the Brambles case in its application toCommonwealth proceedings, although he pointed out that:

[t]he evidence gathering procedures of a party are not limited to the use of courtprocedures. No interference with the processes of the courts or the course of justiceoccurs merely because a party avails itself of a statutory power to obtain evidence duringthe course of pending litigation. The mere use of such a power during the pendency oflitigation is not a contempt of court even when the sole purpose of the exercise of thepower is to assist a party to obtain evidence for use in that litigation. To constitute acontempt, the party must exercise the power in such a way that it interferes with thecourse of justice. Thus, there might be a contempt if the exercise of a statutory power"would give such a party advantages which the rules of procedure would otherwise denyhim".16T'

This reasoning means that coercive powers may be used to obtain information thatcould have been obtained through the normal processes of the court. It follows fromthis that there can be no objection to the use of a Commission's powers to gatherevidence from witnesses who would be compellable at trial, even if these powers makeit easier to obtain evidence from, for example, uncooperative witnesses than wouldotherwise have been the case.

156

157

158

159160161

In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 the 4:3majority of the High Court, which upheld the validity of a use of coercive powers against adefendant in current proceedings for the purpose of obtaining evidence for use in thoseproceedings, decided the case on the basis of the doctrine of abuse of power, rather thancontempt of court, perhaps because the case concerned State legislation. For a summary ofthe relevant passages see T Sherman, "Administrative Law and Investigative Agencies"(1995) 4 AIAL Forum 1 at 14-15.Pioneer Concrete V TPC (1982) 152 CLR 460 at 467-468. The other members of the Courtreserved their opinions on this question.Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 557-558per McHugh J quoting Gleeson CJ from the Court of Appeal.Ibid at 558 per McHugh J quoting Gleeson CJ from the Court of Appeal.ASC v Ampolex Ltd (1995) 39 NSWLR 504 at 519.Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 558-559.


The range of procedural rules protected by contempt of this type is not clear. On thefacts of the Brambles case the procedural advantage sought was very similar to that atissue in the self-incrimination cases discussed above. The Trade Practices Commissionwas attempting to use its coercive powers to override the privilege against selfexposure to a penalty. It was this privilege that prevented the Commission fromobtaining discovery from the company by using the normal procedures of the court. Itmay be that the Brambles case should therefore be understood simply as a slightextension of the self-incrimination cases, rather than as entrenching all of theprocedural rules that apply in Federal courts that would prevent material from beingobtained in any other way. On balance, however, this seems too narrow a reading ofthe case.

It is always necessary to balance the risk to the administration of justice posed by aforensic advantage against the public interest that is served by a coercive examinationin determining whether the use of coercive powers gives rise to contempt. Thecircumvention of minor procedural rules in the pursuit of a legitimate purpose shouldnot be viewed as automatically constituting contempt. Thus the use of coercive powerin a way that results in procedural advantages, such as the opportunity to examine andcross-examine witnesses prior to trial, which also results in the removal of anyadvantage that may arise from the element of surprise in relation to both thepresentation of a primary case and the cross-examination of witnesses, will notnormally amount to a contempt.162 The admission of evidence before a Commissionthat would not be admissible in subsequent criminal proceedings also may notconstitute contempt, at least in circumstances where the evidence is heard in private orthe subsequent court proceedings are to be heard by a judge rather than a jury.163Finally, the use of search warrants to obtain documents or other evidence for useagainst an accused after charges have been laid will not constitute a contempt of court,because there is no rule that incriminating material may not be seized (as opposed tocompelled) from an accused.164

Other types of possible procedural advantage have caused more difficulty. In theDe Greenlaw case, for example, it was submitted that the company regulator wasattempting to gain a procedural advantage in its prosecution of Mr De Greenlaw byexamining Mrs De Greenlaw. The argument was that the regulator was using theexamination to obtain material from Mrs De Greenlaw that it might not otherwise havebeen able to obtain, as Mrs De Greenlaw may not have been compellable to giveevidence against her husband at his trial.165 This submission was rejected on the facts,

162

163164

165

BLF case (1982) 152 CLR 25 at 103, 132; Johns & INaygood Ltd v Utah Australia Ltd [1963] VR70 at 82; Australia and New Zealand Building Group Ltd v Richard Ellis (Vic) Pty Ltd [1994] 1VR 328 at 334-335.Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 81.Rowell v Larter (1986) 6 NSWLR 21 at 28-29; Environment Protection Authority v CaltexRefining Co Pty Ltd (1993) 178 CLR 477 at 517-18,535; cf Grollo v Macauley (1993) 45 FCR 336,where Jenkinson J suggested there is a contempt if neither the document nor theinformation it contains would or should have passed to a party to the litigation by theordinary processes of discovery. On appeal, the Full Court did not squarely address thisissue, as it treated the case as if it turned upon whether there was an improper purposeunderlying the application for the warrant: Grollo v Macauley (1995) 80 A Crim R 175 at 191192.De Greenlaw v NCSC (1989) 15 ACLR 381 at 383. See Crimes Act 1958 (Vic), s 400.


as the regulator wished to examine Mrs De Greenlaw to ascertain whether she shouldbe charged with a criminal offence. Southwell J also rejected the argument that thepossibility that, during the examination of Mrs De Greenlaw, the regulator mightincidentally gain evidence that would assist in its prosecution of Mr De Greenlaw wassufficient to give rise to a contempt of court, observing that:

If an investigation into the alleged insider trading activities of 100 people had revealedapparent proof that X had committed an offence, it would no doubt be proper to charge Xpromptly rather than to defer the charging until all the other suspects had beeninvestigated. Once X had been charged, so it is said, it would be a contempt of court forthe NCSC to conduct a hearing in relation to any of the other 99 suspects if it appearedthat evidence might come out having relevance to the subject matter of the chargesagainst X. I do not accept that proposition.166

This suggests that forensic advantages that arise incidentally to examinationsconducted for a proper purpose (which therefore do not give rise to an abuse of power)may be permitted despite the risk they pose to the administration of justice,presumably on the basis that the public interest in pursuing the proper purposeoutweighs the risk posed to the administration of justice by the forensic advantages.

There is some disagreement in the High Court about whether forcing an accused todisclose his or her defence to a criminal charge creates a procedural advantage of atype that will constitute contempt. Often, of course, the use of coercive powers to forcesuch a disclosure would reveal an improper purpose and would thps be an abuse ofpower.167 It is possible, however, that questioning for a proper purpose may have theincidental effect of requiring a defence to be disclosed. Mason CJ in Hamilton v Oadestook the view that "[t]he so-called right not to disclose a defence is the result merely ofthe absence in ordinary circumstances of any statutory requirement that defences berevealed."168 His Honour made a similar point in relation to the normal absence of anyobligation on an accused to submit to pre-trial discovery.169 Deane and Gaudron JJ, onthe other hand, held that part of the rationale for their dissenting view that theexamination should be restrained was that there was lithe possibility that the answermay involve the disclosure of a defence or lead to the discovery of other evidence,these being consequences against which a person charged with a criminal offence isusually entitled to be protected."170 It may be that Mason CJ took a different approachonly because the case concerned State legislation and proceedings. This is a relevantfactor because State parliaments are able to confer procedural advantages on certainlitigants.171 The cases upholding the conferral of powers of this type, however,invariably fail to make it clear that what is involved is an interference with the dueadministration of justice that would be a contempt of court but for the statutoryauthorisation. These cases may not provide relevant authority at the Commonwealthlevel where, as is discussed below, a legislative attempt to authorise the conferral ofprocedural advantages of the type discussed above may be invalid as a result ofconstitutional limits.

166167168169170171

De Greenlaw v NCSC (1989) 15 ACLR 381 at 384.Hamilton v Oades (1989) 166 CLR 486 at 498,517; DCT v De Vonk (1995) 133 ALR 303 at 322.Hamilton v Oades (1989) 166 CLR 486 at 499.Ibid at 499-500.Ibid at 503.See, eg, Hamilton v Oades (1989) 166 CLR 486 at 497; Re Hugh JRoberts Pty Ltd (1970) 91 WN(NSW) 537 at 540-541.

24 Federal Lcrw Review Volume 28

LEGISLATIVE AUTHORISATION OF CONTEMPT OF COURT

The rules concerning abuse of power turn upon the purpose for which statutorypowers were conferred. Statutory purpose is not, however, of decisive importancewhen considering whether there has been a contempt of court,172 although it is arelevant factor to be weighed in the balance in determining whether there is acontempt of court. The primary relevance of statutory purpose to contempt of courtarises when determining whether conduct that would otherwise constitute contempthas been authorised by legislation.

The fact that questions of contempt of court cannot be resolved by reference tostatutory purpose makes it undesirable for courts to decide whether coercive powersmay be used after charge by focusing on whether parliament intended the powers tobe used in these circumstances. If courts focus on this intention, any attempt to usecoercive powers after charges have been laid is treated as an abuse of power unless thecourts are able to identify such an intention.173 This means that the outer limit of astatutory power, beyond which its use will constitute an abuse of power, is defined byreference to the likely operation of the law of contempt (as the law of contempt is thereason that it is assumed that parliament did not intend to authorise questioning oncecharges have been laid).174 In effect, an abuse of power is defined to include anyconduct that would have constituted a contempt, leaving no room for the operation ofthe doctrine of contempt.

By characterising the scope of a power as turning solely on legislative purpose, theabove approach diverts attention from an analysis of the legislature's power toauthorise conduct that would otherwise be in contempt of court. This may lead courtsto conclude that, if they can identify a legislative intention to authorise interferencewith court~roceedings, coercive powers may be used notwithstanding the rules ofcontempt.1 A preferable approach has been suggested by Mason J, in the context ofCommonwealth legislation that conferred coercive powers similar to those ofCommissions. Mason J observed that:

[i]t is possible to read the section as conferring power on the Commission to act inaccordance with its terms, but subject to the law of contempt, so that action taken underthe section is subject to the exercise by the Federal Court of its contempt powers. Thisappeals to me as a more sensible construction of the sub-section, one which avoids locatingthe ambit of the power at the point, not readily identifiable, where contempt begins. There areadvantages in keeping questions ofpower and contempt separate.176

This approach highlights the relevant issues much more clearly than one thatmerges questions of power and contemrt. It suggests that coercive powers should betreated as subject to the law of contempt 77 unless legislation that confers those powers

172173

174175

176177

Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 473.Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 537;Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 347, 350; Hammond vCommonwealth (1982) 152 CLR 188 at 202; Kirk v Commissioner of AFP (1988) 81 ALR 321 at334-335.Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 517.R v Director of Serious Fraud Office, ex p Smith [1993] AC 1, although this approach is morejustifiable in the United Kingdom in the absence of an entrenched separation of powers.Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 473 (emphasis added).Ibid at 468,472; Kotan Holdings Pty Ltd v TPC (1991) 102 ALR 51 at 58.


has authorised a contempt. This in turn depends, first, upon whether the legislaturehas the power to authorise conduct that would otherwise constitute contempt of court,and second, if it has this power, on whether it has expressed an intention to use it.

Constitutional limitations

State Parliaments have the fower to authorise conduct that would otherwise be incontempt of State courts.17 An attempt by either the Commonwealth or a StateParliament to authorise conduct that would otherwise be in contempt of a Federalcourt (meaning a court exercising federal jurisdiction) will, however, be ineffective ifChapter III of the Commonwealth Constitution impliedly protects the jurisdiction ofsuperior courts exercising federal jurisdiction to punish or prevent conduct thatinterferes with the discharge of the judicial power of the Commonwealth.179 There issome uncertainty as to whether Chapter III operates in this way, principally becausethe cases usually fail to consider the possibility that there are constitutional limits inrelation to interference with the administration of justice in Federal courts that do notapply in relation to State courts.180

Whether or not the contempt jurisdiction of Federal courts is protected fromlegislative interference, any attempt by the Commonwealth Parliament to authoriseconduct that would constitute contempt of a State court may be invalid. If thislimitation exists, however, it results from implied limitations on the ability of theCommonwealth to interfere with the institutions of State government, not as a result ofthe separation of powers doctrine (although that doctrine may assist in identifying thefunctions of State courts with which the Commonwealth may not interfere).

Limitations on the authorisation of interference with Commonwealth judicialproceedingsThere is some authority, in the context of Commonwealth legislation, that no actiontaken pursuant to statutory authority can be in contempt of court. This implies that theseparation of powers doctrine does not entrench the contempt jurisdiction of Federalcourts. The leading authority for this proposition is Lockwood v Commonwealth,181 whichconcerned a Commonwealth Royal Commission appointed pursuant to a specificstatute rather than the general Royal Commission Act.182 In that case Fullagar J, sitting

178

179

180

181182

See, eg, Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at507, 537; Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 72-73; City of Collingwoodv Victoria {No 2J [1994] 1 VR 652 at 663; S (a child) v R (1995) 12 WAR 392 at 401. A goodexample of legislation that does this expressly is the Royal Commission (Police Service) Act1994 (NSW), s 38. It is, however, possible that some limitations may in the future be foundto arise in relation to State courts that have been invested with federal jurisdiction, if Statelegislation was repugnant to or incompatible with the exercise by State courts of thejudicial power of the Commonwealth: Kable v DPP (NSW) (1996) 189 CLR 51 at 96,103,116.The separation of powers at the Commonwealth level was authoritatively recognised in R vKirby, ex p Boilermakers Society of Australia (1956) 94 CLR 254. In relation to the inability ofState Parliaments to legislate in a way that violates Chapter III of the Constitution, seeCommonwealth v Queensland (1975) 134 CLR 298 at 314-315; Kable v DPP (NSW) (1996) 189CLR 51 at 102, 115.This possibility is, however,. acknowledged in Environment Protection Authority v CaltexRefining Co Pty Ltd (1993) 178 CLR 477 at 507.(1954) 90 CLR 177.Royal Commission Act 1954 (Cth).


alone, stated that If[nlo court could hold, in any circumstances which I find it possibleto envisage, that what is expressly authorized by or under a statute is a contemptlf

•183

Fullagar]'s comments must, however, be understood in the context in which they weremade, which did not concern possible interference with criminal proceedings. In theLockwood case, a defamation action had been instituted in the High Court againstcounsel assisting a Commission. It was argued that it would be a contempt for theCommission to continue with its inqc..;.ry when that action was pending. Fullagar J wastherefore primarily concerned to ensure that public inquiries could not be stifled by thesimple expedient of instituting a writ.184 This consideration should carry less weight inrelation to criminal proceedings, which are normally initiated by the state and are thusunlikely to be instituted in order to frustrate an inquiry.

Despite the unusual facts of the Lockwood case, two members of the High Courtrelied on it in the BLF case when indicating that it was possible that no action takenpursuant to statute could be a contempt, despite the fact that the civil deregistrationproceedings at issue in the BLF case had clearly not been instituted for the purpose ofpreventing the inquiry.185 Three other members of the Court in the BLF case explainedthe Lockwood case as turning on the fact that the Commission alleged to be in contemptwas specifically authorised by Parliament.186 Even on this interpretation, however, theLockwood case suggests that the contempt jurisdiction of Federal courts is not protectedfrom interference by the separation of powers doctrine. A similar approach was takenin DCT v De Vonk, where the full Federal Court assumed that the CommonwealthParliament may authorise a contempt of court.187 The Court's observations were,however, obiter dicta, as it took the view that Parliament had not manifested anintention to authorise such an interference. Furthermore, it appears that no argumentwas directed to this question, and none of the authorities discussed below wereconsidered by the Court.

Setting the above cases to one side, there is considerable authority that at least themajor parts of the doctrine of contelnpt of court form an integral part of the judicialpower of the Commonwealth and are therefore immune from legislative interference.Indeed the Australian Law Reform Commission, when making its proposals for reformof the law of contempt, took the view that Ifcontempt powers are an integral as~ect ofjudicial power, in the sense in which this phrase is used in the ConstitutionIf,1 8 andthat there were accordingly significant constitutional limitations on the ability of theCommonwealth Parliament to modify the law of contempt.189 These limitations existbecause the Commonwealth Parliament's legislative powers under s 51 of theConstitution are expressed to be Ifsubject to this Constitution lf

, which includes theseparation of judicial power inherent in Chapter III of the Constitution; and becausethe High Court has demonstrated a preparedness to read down the legislative power

183184

185186187188189

(1954) 90 CLR 177 at 185.Ibid at 186. For a similar view see Z Cowen, Sir John Latham and other Papers (1965) at 101,cited in L Hallett, above n 2 at 232.BLF case (1982) 152 CLR 25 at 120, 131.Ibid at 55, 73, 94, 162.DCT v De Vonk (1995) 133 ALR 303 at 310,322.Australian Law Reform Commission, Contempt (Report No 35, 1987) at 31.Ibid at 31-35. The ALRC relied upon R v Taylor, ex p Roach (1951) 82 CLR 587 at 600. See alsoM Chesterman, above n 83 at 699; S Walker, "Media and Broadcasting Law lf (1987) 15 ABLR448 at 453.


of the Commonwealth to make it consistent with the separation of legislative andjudicial power.190 Indeed, a majority of the High Court has held that statutoryprovisions such as s 24 of the Judiciary Act 1903 (Cth) and s 35 of the Family Law Act1975 (Cth), which appear to confer contempt jurisdiction on federal courts, should beread as IIdeclaratory of an attribute of the judicial power of the Commonwealth whichis invested in those courts by s 71 of the Constitution...That which renders... [acts ofcontempt] liable to punishment has its source in Chapter III of the Constitution.1I191 Itappears that the content of Chapter III of the Constitution in relation to rules ofcontempt of court lIis informed by the common law ll

•192

In the context of contempts that may arise through the use of coercive powers, theclearest statement that the law of contempt at Commonwealth level is protected fromlegislative interference is found in Hammond v Commonwealth, where Deane J observedthat:

an extracurial inquisitorial investigation of the involvement of a person who has beencommitted for trial in the matters which form the basis of the criminal proceedingsagainst him constitutes, in my view, an improper interference with the dueadministration of justice in the proceedings against him in the criminal court andcontempt of court. Where a court is exercising the judicial power of !he Commonwealthpursuant to s. 71 of the Constitution, such interference involves a derogation of theconstitutional guarantees that flow from the vesting of the judicial power of theCommonwealth in courts of law.193

This was implicitly accepted by the majority in Sorblf's case.194 Furthermore, invarious other cases Brennan,195 Mason,196 McHughl 9'7 and Murphy JJ198 alsoexpressed the view that some limitations are imposed by Chapter III of theConstitution upon the ability of Commonwealth or State Parliaments to authoriseconduct that would otherwise be in contempt of a Federal court.

In addition to these dicta, the decisions in Huddart Parker & Co Ply Ltd vMoorehead199 and Melbourne Steamship Co Ltd v Moorehead200 provide further authoritythat legislation may not authorise a contempt of a Federal court. In those cases, uponwhich Deane J relied in the Hammond case to support the passage quoted above, the

190

191

192193194195

196197

198

199200

Polyukovich v Commonwealth (1991) 172 CLR 501 at 539,609,648,686,706,721; Re Tracey, ex pRyan (1989) 166 CLR 518 at 540, 564-565, 580-581. See also A Twomey, IIReconcilingParliament's Contempt Powers with the Constitutional Separation of Powers II (1997) 8 PLR88 at 93-94, 97.Re Colina, ex p Torney (1999) 166 ALR 545 at 551, 579. See also Ahnee v Director of PublicProsecutions [1999] 2 WLR 1305 at 1311.Re Colina, ex p Torney (1999) 166 ALR 545 at 552.(1982) 152 CLR 188 at 206. See also BLF Case (1982) 152 CLR 25 at 91.(1983) 152 CLR 281 at 306.Hammond v Commonwealth (1982) 152 CLR 188 at 203, leaving the question open; BLF case(1982) 152 CLR 25 at 162, 163 implying that the legislature may not authorise conduct thatwould otherwise be contempt of a Federal court.Pioneer Concrete (Vic) Ply Ltd v TPC (1982) 152 CLR 460 at 474.Environment Protection Authority v Caltex Refining Co Ply Ltd (1993) 178 CLR 477 at 558-559quoting Gleeson CJ who expressed a similar view prior to his elevation to the High Court.BLF case (1982) 152 CLR 25 at IDS, specifically disapproving Lockwood. See also his Honour'scomments in Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 475.(1909) 8 CLR 330. This case is sometimes also cited as Appleton v Moorehead.(1912) 15 CLR 333.


High Court considered the validity of notices issued under section 15B of theAustralian Industries Preservation Act 1906 (Cth). This section conferred coercivepowers on the Comptroller-General of Customs that were similar to those available tomodern Commissions. The powers were intended to be used to investigate criminaloffences.201 O·Connor J commented that:

When the Comptroller makes his requirement under s 15B there can be no proceedingpending in a Court. He is not empowered to use the section with reference to an offencewhen once it has been brought within the cognizance of the Court. The power to preventany such interference by the Executive with a case pendinp before the ordinary tribunalsis undoubtedly vested in this Court by the Constitution.20

This view was endorsed by Barton J in Melbourne Steamship Co Ltd v Moorehead. 203The final sentence was explained by Gibbs CJ (with whom Brennan J agreed) in thePioneer Concrete case as lIindicating that if the power were used once a prosecution hadbeen commenced there might be an interference with the course of justice in thetribunal in which the prosecution was pending.1I204 The Chief Justice indicated thatO·Connor J did IInot suggest that such an interference would be an exercise of judicialpower; rather he suggests that it might amount to a contempt of court, as indeed itmight if the powers were used to extract information for the purpose of aiding aprosecution already instituted.1I205 These cases provide clear authority that an attemptto invoke Commonwealth coercive powers for use in aid of pending criminalproceedings would infringe Chapter III of the Constitution.206 As argument in thesecases was directed specifically to the interaction of the doctrine of contempt of courtand the constitutional separation of powers, the cases should be regarded as betterauthority than those discussed earlier which assumed that the CommonwealthParliament may authorise contempt of a Federal court.

In addition to the above cases, which deal specifically with contempt of court, theHigh Court has increasingly emphasised that the separation of powers doctrinerequires judicial powers to be exercised in accordance with the judicial process.207 So,for example, Brennan, Deane and Dawson JJ observed in Chu Kheng Lim v Minister forImmigration that Parliament cannot make lIa law which requires or authorizes the

201202203204

205206

207

Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 340-341.(1909) 8 CLR 330 at 379-380.(1912) 15 CLR 333 at 346.Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 467, cf at 474 per Mason J. GibbsC1's interpretation is supported by O'Connor 1's comments at (1909) 8 CLR 330 at 377. Seealso A Bruce, above n 155 at 10; W H Moore, "Executive Commissions of InqUiry" (1913) 13Columbia LR 500 at 522.Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 467.Cf Grollo v Bates (1994) 125 ALR 492 at 516, where Einfeld J argued that the above casesturned on the interpretation of the relevant statutes, not on constitutional questions.For a discussion of this trend see F Wheeler, "The Doctrine of Separation of Powers andConstitutionally Entrenched Due Process in Australia" (1997) 23 Mon ULR 248; GWinterton, "The Separation of Judicial Power as an Implied Bill of Rights" in G Lindell (ed),Future Directions in Australian Constitutional Law (1994) at 199-203; C Parker, "Protection ofJudicial Process as an Implied Constitutional Principle" (1994) 16 Adel LR 341; J Hope, IIAConstitutional Right to a Fair Trial? Implications for the Reform of the Australian CriminalJustice System" (1996) 24 F L Rev 173 at 179-183; L Zines, "Constitutionally ProtectedIndividual Rights" in P D Finn (ed), Essays on Law and Government Vol 2 The Citizen and theState in the Courts (1996) at 136, 145-146.


courts in which the judicial power of the Commonwealth is exclusively vested toexercise judicial power in a manner which is inconsistent with the essential character ofa court or with the nature of judicial power.1I208 Similar observations, which have madeit clear that judicial process requires courts to proceed IIfairly II and in accordance withthe requirements of IInatural justice ll

, have been made in a number of other cases.209

Contempt powers may form an essential part of the judicial process, as they exist inorder to allow courts to prevent interference with the due administration of justice.210

Gaudron J has certainly taken this view, stating "that a court cannot be required orauthorised to proceed in any manner which... brings or tends to bring theadministration of justice into disrepute."211 In a similar vein, Professor Zines hasobserved that if an action interferes with the due administration of justice "it is difficultto see how a federal statute authorising it could be consistent with Chapter III of theConstitution. At least one test for determining the limits on legislative power arisingfrom Chapter III is sure?'; whether the statutory provision impairs the dueadministration of justice."2 2 High Court dicta in relation to the constitutionalentrenchment of the judicial process therefore provide further support for the view,taken above, that it is not possible to authorise contempt of a Federal court.

Implied limitations on the Commonwealth authorisation of interference with StatecourtsFederal Commissions will sometimes conduct inquiries that may interfere withproceedings in a State court. In this situation, the Commission may be in contempt ofthe State court, unless Commonwealth legislation can authorise a Commission tointerfere with the administration of justice by a State court exercising State jurisdiction.

The High Court has accepted some interference with State judicial proceedings byFederal Commissions. It has, for example, upheld a Commonwealth provision thatprevents the use of evidence obtained by a Royal Commission in any subsequent courtproceedings, whether State or Federal.213 The constitutional basis for such a provision,which controls the evidence that may be used in State courts, is not obvious. The HighCourt has suggested that the Commonwealth Parliament's power to enact provisionsof this type is incidental to its power to compel evidence.21 Despite this explanation,

208209

210211

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(1992) 176 CLR 1 at 27.Nicholas v R (1998) 193 CLR 173 at 185,208,232; Leeth v Commonwealth (1992) 174 CLR 455 at469-470, 486-487, 502; Nationwide News Ply Ltd v Wills (1992) 177 CLR 1 at 70; Polyukovich vCommonwealth (1991) 172 CLR 501 at 607,613,689,703-704; Re Nolan, ex p Young (1991) 172CLR 460 at 4%; Re Tracey, ex p Ryan (1989) 166 CLR 518 at 580; Harris v Caladine (1991) 172CLR 84 at 150-152.See, eg, BLF case (1982) 152 CLR 25 at 161; A-G v Times Newspapers Ltd [1974] AC 273 at 294.Nicholas v R (1998) 193 CLR 173 at 209. This statement was approved in Esso AustraliaResources Ltd v Dawson (1999) 162 ALR 79 at 83.L Zines, The High Court and the Constitution (4th ed 1997) at 204.The relevant provision was Royal Commission Act 1902 (Cth), s 6DD; Colonial SugarRefining Co Ltd v A-G (Cth) (1912) 15 CLR 182 at 196,209,218-219; Giannarelli v R (1983) 154CLR 212 at 220, 221, 229; I Temby, "Immunity from Prosecution and the Provision ofWitness Indemnities" (1985) 59 ALI 501 at 511; A Leaver, Investigating Crime: A Guide to thePowers ofAgencies Involved in the Investigation of Crime (1997) at 296-297.Colonial Sugar Refining Co Ltd v A-G (Cth) (1912) 15 CLR 182 at 196, 209, 218-219. Thisreasoning may not support s 9(6) of the Director of Public Prosecutions Act 1983 (Cth),


however, the existence of the power to enact evidentiary provisions of this type hasbeen questioned.215

Whether or not such provisions are valid in their application to State proceedings, itseems clear that the Commonwealth cannot authorise more fundamental interferencewith the administration of justice in State courts, such as restrictions on the jurisdictionof those courts. This follows from Re Tracey, ex parte Ryan,216 where the High Courtconsidered the constitutional validity of certain provisions of the Defence ForceDiscipline Act 1982 (Cth). That Act provided for the trial of IIservice offences II

committed by members of the defence forces. Where a person had been acquitted orconvicted of a service offence or had had it taken into consideration by a servicetribunal, the person was not liable to be tried by an ordinary court for an offence thatwas substantially the same as the service offence.217 The Act therefore sought toprotect service members from double jeopardy by denying jurisdiction to State courts.Mason CJ, Wilson and Dawson JJ observed that the relevant provisions exempted:

persons from the operation of laws, for the most part State laws...by denying jurisdictionto the civil [ie non-military] courts, for the most part State courts, to try cases broughtunder those laws. For our part we doubt whether provisions of that kind, which strike atthe judicial power of the States, could ever be regarded as within the legislative capacityof the Commonwealth having regard to s.106 of the Constitution...218

In a similar vein, Brennan and Toohey JJ held that:provisions which purport to prohibit the exercise of the ordinary criminal jurisdictionvested in State courts by State law can find no support in the Constitution. State courtsare an essential branch of the government of a State and the continuance of StateConstitutions by s.106 of the Constitution precludes a law of the Commonwealth fromprohibiting State courts from exercising their functions. It is a function of State courts toexercise jurisdiction in matters arising under State law.219

While the above statements are unequivocal in their denial of the CommonwealthParliament's power to interfere with the exercise by State courts of their ordinaryjurisdiction (which presumably includes their contempt jurisdiction), the exact legalfoundation for this constitutional restriction is unclear. The restriction may be a directresult of s 106 of the Commonwealth Constitution, which continues the Constitution ofeach State, subject to the operation of the Commonwealth Constitution. For thesepurposes the "Constitution" of a State probably extends to the essential legislative,

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which is not attached to a power to compel testimony; but indemnities granted by theDirector under s 30(5) of the NCA Act, which is linked to such a power, are supported byit. Evidential immunities are sometimes supported by more explicit heads of power: see,eg, Commonwealth Constitution, s 49, which supports the Parliamentary Privilege Act1987 (Cth), s 16(3): see Laurance v Kalter (1996) 141 ALR 447 at 472-479 (special leave toappeal to the High Court was granted on 26 June 1997, but the appeal was discontinued bynotice on 1 May 1998).Registrar, Court ofAppeal (NSW) v Craven [No 2J (1995) 120 FLR 464 at 467,476,481.(1989) 166 CLR 518.Defence Force Discipline Act 1982 (Cth), s 190(3), (5).Re Tracey, ex p Ryan (1989) 166 CLR 518 at 547. These judges actually decided the case onthe narrower basis that s 51(vi), the defence power, did not authorise legislation of thistype.Ibid at 575. The reasoning of the majority in this case is criticised by Deane J, with McHughJ in agreement, in Re Nolan, ex p Young (1991) 172 CLR 460 at 491.


executive and judicial organs of the State, whether or not their structure and powersare found in the relevant State's Constitution Act.220

Despite the express references in Re Tracey to s 106, that section is usually regardedas part of the foundation for an imElied restriction on Commonwealth power, ratherthan as an express source of rights.2 1 The implied restriction consists of two elements:(1) the prohibition against discrimination which involves the placing on the States ofspecial burdens or disabilities C'the limitation against discrimination"); and(2) the prohibition against laws of general application which operate to destroy orcurtail the continued existence of the States or their capacity to function asgovernments.222

These prohibitions prevent interference by the Commonwealth with the exercise by aState of its governmental powers, whether they be legislative, executive or judicial.223

The decided cases do not, however, offer much guidance in relation to the types ofactivity that will constitutes an infringement of the second limb of the impliedprohibition, which is the limb that may prevent Commonwealth interference with aState court's contempt jurisdiction.224 The decision in Re Tracey has, however, beentreated as an illustration of the operation of this limb of the implied prohibition. Sixmembers of the High Court in Re Australian Education Union, ex p Victoria 225 observedthat Re Tracey established "that State courts are an essential branch of the governmentof a State and that their continuance by s 106 of the Constitution precludes an exerciseof Commonwealth legislative power prohibiting them from exercising theirfunctions. "226 This protective approach to the jurisdiction of State courts is also"consistent"227 with a number of cases in which the power of the Commonwealth toconfer Federal jurisdiction on State courts has been read narrowly.228

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L Zines, above n 212 at 338-339; Kable v DPP (NSW) (1996) 189 CLR 51 at 141.See, eg, Re Australian Education Union, ex p Victoria (1995) 184 CLR 188 at 229; L Zines,above n 212 at 338.Re Australian Education Union, ex p Victoria (1995) 184 CLR 188 at 231. Before arriving at thisformulation, the Court examined the major cases in which this implied restriction has beendiscussed: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 56/ 60/ 66, 74/ 82-84;Victoria v Commonwealth (1971) 122 CLR 353 at 390-391/ 410-411/424; Queensland ElectricityCommission v Commonwealth (1985) 159 CLR 192 at 205/ 217/ 226/ 231/ 247/ 260-262;Commonwealth v Tasmania (1983) 158 CLR 1 at 139-140/ 213/ 281. For a discussion of thesecases see P Hanks, Constitutional Law in Australia (2nd ed 1996) at 241-245; L Zines, aboven 212 at 321-335.Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 207; Koowarta vBjelke-Petersen (1982) 153 CLR 168 at 216.Re Australian Education Union, ex p Victoria (1995) 184 CLR 188 at 228; L Zines, above n 212at 328. Fitzgerald P has indicated that a Commonwealth provision restricting the evidencethat can be used in State judicial proceedings does not to violate this implied limitation:Laurance v Katter (1996) 141 ALR 447 at 479.(1995) 184 CLR 188.Ibid at 229.Laurance v Katter (1996) 141 ALR 447 at 457.The main limitations are that Federal jurisdiction can be vested in State courts only inrelation to the matters enumerated in ss 75 and 76 of the Constitution and only judicialfunctions may be conferred by the Commonwealth on State courts: R v Murphy (1985) 158CLR 596 at 613-614; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144.


The fact that Commonwealth interference with State courts may violate the secondlimb of the implied prohibition does not mean that every Commonwealth law thataffects a State court will do so. It is likely, however, that if the contempt jurisdiction ofFederal courts is a sufficiently important attribute of judicial power to attract theprotection of Chapter III of the Commonwealth Constitution (as it is argued that it is inthe previous section), then the contempt jurisdiction of State courts will be similarlyentrenched against Federal interference (although by reason of the implied prohibitionrather than the separation of powers doctrine). Fitzgerald P has expressly posited theflip side of this link, stating that "laws which do not impermissibly interfere with thejudicial process (contrary to the implication related to Ch III) do not, in theirapplication to State courts.. .impermissibly interfere with the functioning of thosecourts as organs of State government".229

The consequence of the above analysis is that a Commonwealth law that attemptsto authorise conduct that would otherwise be a contempt of a State court will probablybe ineffective. Such a law would amount to an attempt to prevent a State court fromexercising its jurisdiction to prohibit or punish conduct that interferes with orundermines its proceedings. The effect of this is that a person probably may resist theoperation of Federal coercive powers in any situation in which a requirement toanswer would create a real risk of interference with pending State proceedings.23o

The intention required to authorise a contempt of courtWhile the better view is that the Commonwealth Parliament is unable to authorise acontempt of either a Federal or State court, no such limit applies to State Parliaments inrelation to State courts. As a consequence, it is necessary to consider the way in whichconduct that would otherwise constitute contempt may be authorised. This is clearlyrelevant to State Commissions. Less obviously, it is also relevant to the powers ofnational Commissions such as the NCA and the ASIC, as the coercive powers of thoseCommissions are dependent upon co-operative legislative schemes. Accordingly, ifone of these Commissions is exercising coercive powers exclusively in relation to Statematters that are potentially in contempt of State courts, its coercive powers will not berestricted by the doctrine of contempt of court if the State legislation that conferscoercive powers on the Commission manifests an intention to authorise conduct thatwould otherwise amount to contempt.

The basic rule of interpretation is that the doctrine of contempt of court appliesunless it is clearly excluded by legislation.231 Consequently, the conferral of coercive

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Laurance v Katter (1996) 141 ALR 447 at 458. The High Court's refusal to accept impliedlimitations on the contempt powers of the Federal Court provides, by analogy, support forthe view that any attempt to authorise a contempt of a State court would interfere with theexercise by that court of its essential functions: BLF Case (1982) 152 CLR 25 at 78-80, 93-94,119, 163-165.For an analogous argument in relation to the Commonwealth's inability to interfere withfreedom of speech in State Parliaments, see Senate Standing Committee on Constitutionaland Legal Affairs, Commonwealth Law Making Power and the Privilege of Freedom of Speech inState Parliaments (1985). The conclusions reached in this report have, however, beencriticised: L Zines, above n 212 at 334.DCT v De Vonk (1995) 133 ALR 303 at 311, 326. For statements in relation to similarfundamental common law doctrines, see Hamilton v Oades (1989) 166 CLR 486 at 495, 500501; Sorby v Commonwealth (1983) 152 CLR 281 at 309.


powers in general terms will not authorise a contempt unless the ~urpose of thatconferral necessarily implies that such an authorisation was intended. 2 The difficultyin applying this test is that legislation almost never reveals a clear intention toauthorise contempt of court. It is, however, more common for statutes to have apurpose that is inconsistent with the ability of witnesses to refuse to answer questions.Such a purpose is frequently found necessarily to imply that the privilege against selfincrimination has been abrogated.233 Indeed, in relation to most Commissions thatinvestigate crime, the privilege against self-incrimination is expressly abrogated bylegislation.234 As a result, a question that often arises is whether an intention toabrogate the privilege against self-incrimination reveals an intention to authoriseconduct, such as the use of coercive powers to extract self-incriminatory statementsafter charges have been laid, that would otherwise constitute contempt.

Abrogation of the privilege against self-incrimination and contempt of courtHamilton v Oades makes it clear that abrogation of the privilege against selfincrimination will sometimes authorise actions that would otherwise constitutecontempt. In that case Mason CJ, when speaking of the limits upon coercivequestioning that remained notwithstanding the express abrogation of the privilege,observed that lithe inherent powers of the court are retained and the duty of the courtto ensure the proper administration of justice may require that orders be made of typesother than those which restore the privilege against self-incrimination or which serve to defeatthe purposes of the section. II 235 In a similar vein, Toohey J observed that in order torender a question impermissible "it is not enough that the answer to a question maytend to incriminate the person examined. It is precisely this sort of answer that s541(12) allows so that the affairs of the company may be relevantly investigated.1t236

These statements imply that the use of coercive powers after charges have been laidwill not give rise to contempt if the privilege against self-incrimination has beenabrogated and the only risk to the due administration of justice arises from the risk ofself-incrimination. They suggest that the abrogation of the privilege authorisesinquiries that would otherwise be in contempt because they involve compulsory selfincrimination after charge. As such, these statements appear to be inconsistent withHammond's case, where the High Court found that a Commission was in contemptdespite the fact that the privilege against self-incrimination was treated as having beenabrogated.

The approach in Hamilton v Oades fails to recognise that the purposes of theprivilege against self-incrimination and the doctrine of contempt of court are different.

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Pioneer Concrete (Vic) Ply Ltd v TPC (1982) 152 CLR 460 at 473; BLF case (1982) 152 CLR 25 at55,94,162.See, eg, Pyneboard Ply Ltd v TPC (1983) 152 CLR 328 at 341; Controlled Consultants Ply Ltd vCAC (1985) 156 CLR 385 at 394; Police Service Board v Morris (1985) 156 CLR 397 at 409; X vMcDermott (1994) 76 A Crime R 508 at 518-519. For a detailed discussion of the abrogationof the privilege against self-incrimination, see S McNicot Law of Privilege (1992) at 241-273.See above n 20. For this reason, it is not necessary to discuss the principles governing theabrogation of the privilege by implication in this article.Hamilton v Oades (1989) 166 CLR 486 at 498-499 (emphasis added); Re Ardina Electrical (Qld)Pty Ltd (in liq) (1992) 7 ACSR 297 at 300. These remarks have been interpreted as relating tocontempt of court: OCT v De Vonk (1995) 133 ALR 303 at 313.Hamilton v Oades (1989) 166 CLR 486 at 515, 510.


This suggests that the abrogation of one doctrine should not have automaticimplications for the operation of the other. As Foster J observed:

The privilege against self-incrimination is a fundamental safeguard given by the commonlaw to an individual and can only be taken from him by the manifestation in statute of aclear legislative intention to do so. It is, nevertheless, personal to him. The doctrine ofcontempt of court, however, focuses upon a court's right and, indeed, its obligation, toprotect the integrity of its operations and to prevent interference with its administrationof justice. This may, of course, involve enforcing an individual's privilege against selfincrimination but it also encompasses a court taking other steps to ensure that itsprocesses are not contaminated by unfairness.237

These different rationales led the full Federal Court in Deputy Commissioner ofTaxation v De Vonk 238 to conclude that the implied abrogation of the privilege againstself-incrimination in the Income Tax Assessment Act 1936 (Cth) did not prevent aninquiry by the Commissioner of Taxation from being in contempt of court, eventhough the threat to the administration of justice contemplated in De Vonk's caseappears to have been compulsory self-incrimination.239 The Court reached thisdecision after a detailed consideration of Hamilton v Oades, which it thought should betreated as dealing with the abrogation of the privileBe against self-incrimination ratherthan the legislative authorisation of contempt.24 The case cannot, however, bedistinguished on this basis, as the decision in Hamilton v Oades-that coercivequestioning of an accused could continue after charges had been laid-necessarilyimplies that the abrogation of the privilege against self-incrimination removes therestrictions on self-incriminatory questioning after charge that would otherwise beimposed by the doctrine of contempt. Hamilton v Oades is therefore relevant authorityin relation to the authorisation of contempt despite the Court's failure expressly toaddress that issue, as the result would have been different if the Court had notimpliedly held that the abrogation of the privilege against self-incriminationauthorised conduct that would otherwise have been in contempt.

In finding that a contempt of court had not been authorised by the abrogation of theprivilege against self-incrimination, the Federal Court in De Vonk's case emphasisedthat the abrogation of the privilege against self-incrimination in Hamilton v Oades wasexpress, whereas in De Vonk's case it was implied.241 It is, however, difficult to see whythe clarity of the method chosen to abrogate the privilege should influence theconsequences of that abrogation for the doctrine of contempt. The privilege cannot beabrogated by implication unless Parliament's intention is clear.242 If Parliament's clearimplied intention to abrogate the privilege can be consistent with the operation of thedoctrine of contempt, its clear express intention can be similarly consistent with that

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DCT v De Vonk (1995) 133 ALR 303 at 307. See also BLF case (1982) 152 CLR 25 at 162; A-G vTimes Newspapers Ltd [1974] AC 273 at 294.DCT v De Vonk (1995) 133 ALR 303 at 307,314,326.Ibid. The decision may derive support from Sorby v Commonwealth (1983) 152 CLR 281 at307-308; BLF case (1982) 152 CLR 25 at 162; Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152CLR 460 at 473, 475.DCT v De Vonk (1995) 133 ALR 303 at 325.Ibid at 325-326.Hamilton v Oades (1989) 166 CLR 486 at 495,500-501; Sorby v Commonwealth (1983) 152 CLR281 at 309; Police Service Board v Morris (1985) 156 CLR 397 at 404; CAC(NSW) v Yuill (1991)172 CLR 319 at 321,331,338,345.


doctrine. Consequently, notwithstanding its emphasis on the absence of expressabrogation of the privilege against self-incrimination, the Federal Court's decisionrequires the conclusion that the abrogation of the privilege against self-incriminationdoes not render the rule in Hammond's case inapplicable. This much should have beenclear from Hammond's case itself, where the statute in question was assumed to haveabrogated the privilege against self-incrimination but there was nevertheless acontempt of court on the basis of compulsory self-incrimination. The problem with thisconclusion, however, is that it appears to be inconsistent with the result in Hamilton vOades.

The cases can be reconciled if it is accepted that the abrogation of the privilegeagainst self-incrimination at Commonwealth and State levels has differentimplications. Hamilton v Oades is undeniably authority that the abrogation of theprivilege against self-incrimination by State legislation permits self-incriminatoryquestions to be asked after State charges have been laid, even though this would havebeen a contempt in the absence of authorising legislation. It is not, however,inconsistent with the proposition that the abrogation of the privilege against selfincrimination at the Commonwealth level does not override the rule in Hammond 'scase, because the Commonwealth Parliament does not have the power to authorise acontempt of court.243 This reasoning is consistent with the result in DeputyCommissioner of Taxation v De Vonk, although not with the reasoning in that case, as theFederal Court reasoned that Parliament had chosen not to authorise a contempt, notthat it did not have the power to do so.244 That reasoning, however, required the Courtto adopt the unsatisfactory course of distinguishing between Parliament's intentions inrelation to the doctrine of contempt by reference to its choice of method to abrogate theprivilege.

The above reasoning explains why contempt of court was not discussed in Hamiltonv Oades, which concerned State legislation and proceedings.245 In that case the HighCourt dismissed the significance of charges having been laid by arguing that "thepurpose of the section remains the same whether charges have been laid or not".246There was no discussion of the doctrine of contempt in the judgments, despite the factthat the Court was aware of the decision in Hammond Is case and had heard argumentin relation to the application of the doctrine of contempt of court.247 The submissionsin relation to contempt of court were not, however, rejected. They were simply

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This does not deny the Commonwealth Parliament's ability to abrogate the privilegeagainst self-incrimination. Instead, it denies that Parliament's ability to authorise actionsthat take advantage of that abrogation after charges have been laid. This distinction mayhave been recognised in Sorby v Commonwealth (1983) 152 CLR 281 at 307-308.DCT v De Vonk (1995) 133 ALR 303 at 314,326.Hamilton v Oades (1989) 166 CLR 486 at 497. Another possible explanation is that, becausethe liquidator's examination was conducted before the court, the High Court consideredthe relevant principles to be those governing conflict between civil and criminal courts,rather than the rules of contempt. For an illustration of this approach see Kirk vCommissioner of AFP (1988) 81 ALR 321 at 353-354; McMahon v Gould (1982) 7 ACLR 202;Jefferson Ltd v Bhetcha [1979] 2 All ER 1108 at 1113. In Kirk v Commissioner of AFP (1988) 81ALR 321 at 355, however, it was assumed that an examination conducted before a court canbe in contempt of criminal proceedings in a different court.(1989) 166 CLR 486 at 508,512.Counsel for Mr Oades made submissions in relation it: ibid at 489.


ignored.248 The Court treated the abrogation of the privilege against self-incriminationas renderin~ unsustainable any objection to coercive questioning after charges hadbeen laid.24 While this is correct in relation to State legislation and proceedings, it saysnothing about contempt at the Commonwealth level.

It should be acknowledged that, with a few exceptions,250 the cases do not suggestthat the permissibility of conducting coercive examinations after charges have beenlaid turns on the constitutional competence of the Parliament that conferred thecoercive powers in question. This is certainly not made clear in Hamilton v Oades, nor inthe numerous subsequent cases that have followed it.251 Nor is it alluded to in theleading judgment of Gibbs CJ in Hammond's case, although there are signs of thisreasoning in Deane J's judgment.252 The reconciliation of Hamilton v Oades andHammond's case that is discussed above should therefore be treated as an explanationof those cases, rather than as a description of the reasoning that led to them. Thisexplanation is, however, consistent with the cases.253

The above analysis produces the result that, at Commonwealth level, the doctrineof contempt restricts the effect of the abrogation of the privilege against selfincrimination once charges have been laid, but not before. This results in a variation inthe availability of coercive powers that turns on the point at which criminal charges arelaid.254 Such a variation was considered by the High Court in Hamilton v Oades toproduce results that were not consistent with the purpose of the statute in question.255As has been pointed out, however, the Court was not in that case dealing withCommonwealth legislation or Federal courts, so it was concerned with a question ofstatutory interpretation rather than with the requirements of the doctrine of contempt.A contraction in the availability of coercive powers once a suspect has been charged is

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Ibid at 497.DCT v De Vonk (1995) 133 ALR 303 at 325, noting that the High Court seems to have treatedquestions of self-incrimination as the main issue between the parties.Notably Brambles Holdings Ltd v TPC (1980) 32 ALR 328; Pioneer Concrete (Vic) Pty Ltd v TPC(1982) 152 CLR 460; Environment Protection Authority v Caltex Refining Co pty Ltd (1993) 178CLR 477 at 558-559.See, eg, Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 28 ACSR 343; Re ExcelFinance Corporation Ltd; Worthley v England (1994) 124 ALR 281; Hong Kong Bank ofAustraliaLtd v Murphy (1992) 28 NSWLR 512; Sherlock v Permanent Trustee Australia Ltd (1996) 22ACSR 16; Adler v Qintex Group Management Services Pty Ltd (in liq) (1996) 22 ACSR 446;Spedley Securities Ltd (in liq) v Bond Corporation Holdings Ltd (1990) 19 NSWLR 729.Hammond v Commonwealth (1982) 152 CLR 188 at 206.The liquidator cases that deal with examinations under s 597 of the Corporations Lawbefore the Federal Court initially appear to be cases where the contempt jurisdiction istreated as having been abrogated in relation to Federal proceedings. The legal authority forthose examinations is, however, found in the State Corporations Acts. The Federal Courthad jurisdiction to supervise these State examinations only by virtue of the cross-vestingprovisions in the Corporations Acts: Re Wakim, ex p McNally (1999) 163 ALR 270 at para151. As these cross-vesting provisions were struck down in Re Wakim, liquidatorexaminations will now once again take place before State courts. The only exception to thisrelates to companies incorporated in the Territories, where the Federal Court retainsjurisdiction and is limited by Chapter III of the Constitution: Re Wakim, ex p McNally (1999)163 ALR 270 at para 169/ 175; Northern Territory ofAustralia v GPAO (1999) 161 ALR 318.Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 76.Hamilton v Oades (1989) 166 CLR 486 at 489/497-498/501/508/515-516.


in fact consistent with the rationale that is frequently given for the abrogation of theprivilege, which is that the abrogation is necessary in order to assist in theinvestigation of crimes that are otherwise difficult to detect.256 This suggests that thepurpose of the abrogation is fulfilled once sufficient evidence exists to allow charges tobe laid. This analysis does, however, start to confuse questions of abuse of power andcontempt, and therefore should not be over-emphasised.

Putting to one side questions of contempt that arise as a result of compulsory selfincrimination, there is little doubt that the abrogation of the privilege leaves untouchedthe jurisdiction of the courts to prevent other types of contempt, such as contemptarising from procedural advantages or prejudicial pUblicity. As Mason CJacknowledged in Hamilton v Oades, the Court may, in the exercise of its inherentpower, order that examinations should be held in private, that the publication ofnames or evidence be restricted, or that certain questions that would prejudice anexaminee's fair trial be prohibited.257

CONCLUSION

It follows from the discussion above that a distinction must be drawn betweenCommonwealth and State Commissions when examining the permissibility of coercivequestioning, whether of an accused or of a third party, after charges have been laid.

An accused will not be able to resist coercive questioning after charges have beenlaid in a State court if that questioning is carried out by a Commission exercisingcoercive powers conferred by State legislation for the purpose of carrying out criminalinvestigations. In this situation, it will not be an abuse of power to use coercive powersto acquire information that is relevant to the crime charged (unless it is clear that thecoercive powers were not intended to be used after charges had been laid). While theextraction of information from an accused that is relevant to pending charges wouldnormally constitute contempt of the type described by the High Court in Hammond'scase, the abrogation of the privilege against self-incrimination by the legislation thatconfers coercive powers upon a State Commission will be interpreted as authorisingconduct that would otherwise have constituted contempt of this type. Furthermore,any procedural advantages gained by the prosecution as a result of coercivequestioning of either an accused or a third party will not give rise to contempt if theyare an incidental side effect of the use of coercive powers for their intended purposeand this purpose outweighs the risk to the administration of justice that is caused bythe forensic advantage. If, however, the legitimate purpose of an inquiry does notoutweigh the risk to the administration of justice that is caused by the conferral ofprocedural advantages on the prosecution, a Commission will be in contempt unlessthe Commission's coercive powers were intended to be used to secure such advantagesfor the prosecution (in which case the coercive legislation would authorise the conductthat would otherwise be in contempt).

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See, eg, Mortimer v Brown (1970) 122 CLR 493 at 496; A Zariski, Evidence and Procedure in aFederation (1993) at 220.Hamilton v Oades (1989) 166 CLR 486 at 498-499. See also Re Ardina Electrical (Qld) Pty Ltd (inliq) (1992) 7 ACSR 297 at 300-301. It is difficult to see why a wider reading of the case wasleft open in DCT v De Vonk (1995) 133 ALR 303 at 325.


The position in relation to Commonwealth Commissions is somewhat different. Itwill not be an abuse of process for such Commissions to use coercive powers conferredfor use in criminal investigations to acquire information from an accused that isrelevant to crimes charged, unless it is clear that the legislature did not intend coercivepowers to be used after charges had been laid. In this respect the law is the same inrelation to Commonwealth and State Commissions. Commonwealth Commissionscannot, for constitutional reasons, use their coercive powers in this way even if suchuse was intended by Parliament, because this is prevented by the doctrine of contemptof court. The better view is that Chapter III of the Commonwealth Constitutionprevents the Commonwealth or a State Parliament from authorising conduct thatwould otherwise be in contempt of a court exercising federal jurisdiction. This meansthat, while there is no constitutional restriction on the abrogation of the privilegeagainst self-incrimination,258 that abrogation cannot authorise the interference with theadministration of justice that would result if coercive powers were used against anaccused once charges have been laid. The coercive questioning of an accused thereforemay not continue after charges have been laid in a court exercising federal jurisdictionunless the privilege against self-incrimination is restored (or, perhaps, a derivative useimmunity is conferred).259

Once the privilege is restored, coercive questioning of an accused would not giverise to contempt of the type identified in Hammond's case. It may nevertheless give riseto contempt if it provides the prosecution with procedural advantages that would nothave been available under the normal procedures of the courts. Similarly, the coercivequestioning of third parties after charges have been laid in order to obtain informationfor use against an accused may also constitute contempt if it gives the prosecutionprocedural advantages that would otherwise be unavailable. Contempt of either ofthese types will arise unless the balancing process required when determining whethera contempt has occurred leads to the conclusion that the interference with theadministration of justice that results from the procedural advantages acquired by theprosecution is outweighed by the public interest in the continuation of an inquiry thatis being conducted for proper public purposes. Commonwealth Commissions may bein contempt even if their coercive powers were intended to be used to secureprocedural advantages for the prosecution, as legislation is unable to authoriseconduct that would violate Chapter III of the Commonwealth Constitution.

If criminal proceedings have been commenced in a State court, Commonwealthcoercive powers may not be used to require an accused to answer incriminatingquestions, as this would be contempt of the State court of the type discussed inHammond's case. While State legislation is able to authorise contempt of this type inrelation to a State court, Commonwealth legislation is probably unable to do so as aresult of the implied constitutional limitation that prevents the Commonwealth fromlegislating in a way that would interfere with the ability of State courts to exercise theirfunctions.

The use of Commonwealth coercive powers to investigate crime after charges havebeen laid is therefore much more restricted than the use of State coercive powers in this

258 Sorby v Commonwealth (1983) 152 CLR 281 at 298-299, 308, 314; EPA v Caltex Refining Co PtyLtd (1993) 178 CLR 477 at 490,534; Crollo v Bates (1994) 125 ALR 492.

259 As it is, for example, by the Royal Commission Act 1902 (Cth), s 6A(3) and NCA Act, s30(10).


situation. The position of accused persons under. investigation by State Commissionswould, however, be improved if State courts displayed an awareness of the relevanceof the doctrine of contempt of court to questioning after charge. An interpretativeapproach that requires State courts to deal with that doctrine explicitly, rather thansubsuming the analysis into a discussion of abuse of power, may result in courts beingless inclined to conclude that the legislature has authorised conduct that may interferewith the due administration of criminal justice.

Documents

COERCIVE QUESTIONING AFTER CHARGE