Stoddart v Boulton (Examiner, Australian Crime Commission) and Another

[2010] FCAFC 89

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(Judgment by: Greenwood J)

Stoddart
vBoulton (Examiner, Australian Crime Commission) and Another

Court:

Judges: Spender J

Greenwood JLogan J

Subject References:
Administrative law
Judicial review
Witness summoned under s 28 of the Australian Crime Com-mission Act 2002 (Cth) and declined to answer questions in respect of her husband's activities on basis of spousal privilege
Whether s 30 of the Australian Crime Commission Act abrogates spousal privilege by necessary implication
(CTH) Australian Crime Commission Act 2002 ss 4, 7, 7A, 7C, 20, 22, 24A, 25A, 28, 29, 30, 46B, Pt II
(CTH) Trade Practices Act 1974 s 155

Legislative References:
Australian Crime Commission Act 2002 (Cth) - s 4; s 7; s 7A; s 7C; s 20; s 22; s 24A; s 25A; s 28; s 29; s 30; s 46B; Pt II
Trade Practices Act 1974 - s 155

Case References:
Stoddart v Boulton - (2009) 111 ALD 294; 260 ALR 268; [2009] FCA 1108
Callanan v B - [2005] 1 Qd R 348; [2004] QCA 478
Hoskyn v Metropolitan Police Commissioner - [1979] AC 474; [1978] 2 All ER 136
Trammel v United States - (1980) 445 US 40
Hawkins v Sturt - [1992] 3 NZLR 602
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission - (2002) 213 CLR 543; 192 ALR 561; 43 ACSR 189; [2002] HCA 49
Baker v Campbell - (1983) 153 CLR 52; 49 ALR 385
Reid v Howard - (1995) 184 CLR 1; 131 ALR 609
Sorby v Commonwealth - (1983) 152 CLR 281
Griffin v Pantzer - (2004) 137 FCR 209; 207 ALR 169; [2004] FCAFC 113
Hamilton v Oades - (1989) 166 CLR 486
Coco v R - (1994) 179 CLR 427
Pyneboard Pty Ltd v Trade Practices Commission - (1983) 152 CLR 328; 45 ALR 609
Mortimer v Brown - (1970) 122 CLR 493; [1972] ALR 723
Coco v Rat - 438 ALR 419
Potter v Minahan - (1908) 7 CLR 277; 14 ALR 635
Baker v Campbell - (1983) 153 CLR 52; 49 ALR 385
Re Bolton Ex parte Beane - (1987) 163 CLR 514
Bropho v Western Australia - (1990) 171 CLR 1; 93 ALR 207
Coco v R - (1994) 179 CLR 427; 120 ALR 415
Commissioner of Australian Federal Police v Propend Finance Pty Ltd - (1997) 188 CLR 501; 141 ALR 545
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission - (2002) 213 CLR 543; 192 ALR 561; [2002] HCA 49
Commissioner of Police v Tanos - (1958) 98 CLR 383
Electrolux Home Products Pty Ltd v Australian Workers' Union - (2004) 221 CLR 309; 209 ALR 116; [2004] HCA 40
R v Secretary of State for the Home Dept Ex parte Pierson - [1998] AC 539
Annetts v McCann - (1990) 170 CLR 596; 97 ALR 177; 21 ALD 651
Riddle v R - (1911) 12 CLR 622; 18 ALR 103
Hoskyn v Metropolitan Police Commissioner - [1979] AC 474; [1978] 2 All ER 136
Leach v R - [1912] AC 305
Cartwright v Green - (1803) 32 ER 412; 8 Ves Jun 405
R v Inhabitants of All Saints Worcester - (1817) 105 ER 1215
Lamb v Munster - 10 QBD 110
A v Boulton - (2004) 136 FCR 420; 207 ALR 342; [2004] FCAFC 101
Baker v Campbell - (1983) 153 CLR 52; 49 ALR 385; [1983] HCA 39
Coleman v Power - (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39
Saeed v Minister for Immigration and Citizenship - (2010) 115 ALD 493; 267 ALR 204; [2010] HCA 23
Sorby v Commonwealth - (1983) 152 CLR 281
Griffin v Pantzer - (2004) 137 FCR 209; 207 ALR 169; [2004] FCAFC 113
Plaintiff S 157/2002 v Commonwealth - (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2
Environment Protection Authority v Caltex Refining Co Pty Ltd - (1993) 178 CLR 477; 118 ALR 392
R v Inhabitants of All Saints, Worcester - (1817) 6 M & S 194; 105 ER 1215

Hearing date: 1 March 2010
Judgment date: 15 July 2010

Brisbane

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Judgment by:
Greenwood J

Background considerations

[31] This is an appeal by Mrs Louise Stoddart from orders of Reeves J dismissing Mrs Stoddart's application for relief under s 21 of the Federal Court of Australia Act 1976 in the form of a declaration that "the common law privilege or immunity against spousal incrimination has not been abrogated by the Australian Crime Commission Act 2002 (Cth)" and an injunction "restraining the Examiner of the Australian Crime Commission from questioning her in relation to matters concerning Ewan Alisdair James Stoddart".

[32] Louise Stoddart and Ewan Alisdair James Stoddart are husband and wife and were so when Mrs Stoddart asserted an immunity at common law on the ground of spousal incrimination, from answering a question Mr Boulton had required her to answer when conducting an examination under the Australian Crime Commission Act 2002 (Cth) (the Act).

[33] Mr Boulton is an examiner appointed under the Act. Mrs Stoddart had been served with a summons issued by Mr Boulton under s 28 of the Act to appear before him at an examination to give evidence of "federally relevant criminal activity" involving four entities or companies and 10 persons including her husband. The examination was conducted by Mr Boulton under Div 2 of Pt II of the Act for the purposes of a "special ACC [Australian Crime Commission] investigation" under the Act. A special ACC investigation is defined to mean "an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board [of the ACC] has determined to be a special investigation": s 4(1) of the Act. The board had so determined. The term "federally relevant criminal activity" means, relevantly here, "a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory": s 4(1).

[34] The term "serious and organised crime" means, by operation of s 4(1) of the Act, an offence:

(a)

that involves 2 or more offenders and substantial planning and organisation; and

(b)

that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and

(c)

that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and

(d)

that is a serious offence within the meaning of the Proceeds of Crime Act 2002, an offence of a kind prescribed by the regulations or an offence that involves any of the following:

(i)

theft;

(ii)

fraud;

(iii)

tax evasion;

(iv)

money laundering;

(v)

currency violations;

(vi)

illegal drug dealings;

(vii)

illegal gambling;

(viii)

obtaining financial benefit by vice engaged in by others;

(ix)

extortion;

(x)

violence;

(xi)

bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory;

(xii)

perverting the course of justice;

(xiii)

bankruptcy and company violations;

(xiv)

harbouring of criminals;

(xv)

forging of passports;

(xvi)

firearms;

(xvii)

armament dealings;

(xviii) illegal important or exportation of fauna into or out of Australia;

(xix)

cybercrime;

(xx)

matters of the same general nature as one or more of the matters listed above; and

(da) that is:

(i)

punishable by imprisonment for a period of 3 years or more; or

(ii)

a serious offence within the meaning of the Proceeds of Crimes Act 2002;

[35] Mrs Stoddart appeared before Mr Boulton on 3 April 2009 represented by counsel. A preliminary discussion took place between Mrs Stoddart's counsel and Mr Boulton in which counsel contended that the authorities recognise a privilege against spousal incrimination and the privilege is available to Mrs Stoddart as a basis upon which she is entitled to refuse to answer a question from Mr Boulton or counsel assisting the Australian Crime Commission (referred to in these reasons as either the "Crime Commission" or the "ACC") the answer to which might tend to show that Mr Stoddart has engaged in criminal conduct. The taking of evidence from Mrs Stoddart proceeded on the footing that her counsel would assert the privilege or immunity on her behalf having regard to the particular question put to her.

[36] Mr Boulton then called upon Mrs Stoddart to swear an oath or make affirmation. She swore an oath. Mr Boulton told Mrs Stoddart that she must answer all questions he required her to answer and said at T 13, L 15:

The questions proposed concern what knowledge you might have of alleged and I'll put this in general terms, alleged taxation fraud on the part of your husband and those questions would include your knowledge of particular legal entities, companies and other bodies which he may have used in furtherance of those aims.

[37] Mr Boulton then explained to Mrs Stoddart that the giving of truthful evidence may involve making admissions of her own involvement in some criminal conduct. Mr Boulton explained that although Mrs Stoddart must answer each question she remained entitled to claim the privilege against self-incrimination in which event her answers could not be used against her in evidence in a criminal proceeding against her or in seeking the imposition of a pecuniary penalty against her although the evidence could be used in a confiscation proceeding or in proceedings for the recovery of assets or money acquired through the commission of criminal offences. Mrs Boulton asserted a "blanket immunity" for her evidence, on that footing.

[38] Counsel assisting the Crime Commission then asked Mrs Stoddart a series of questions (approximately 50) and ultimately asked her whether she was aware of invoices being prepared at particular premises for services provided by entities other than a firm called AS Accounting [her husband's accountancy practice] at which point her counsel said:

Yes, I'll take the objection to that and my client in this particular instance will claim the privilege of spousal incrimination and she chose not to answer that question.

[39] Mr Boulton nevertheless required Mrs Stoddart to answer the question: examination transcript, p 25, L 21. She refused. Mr Boulton adjourned the conduct of the examination to enable Mrs Stoddart to commence these proceedings.

Section 30 of the Australian Crime Commission Act 2002 (Cth)

[40] Although it will be necessary to examine the structure of the Act, its objectives, purposes and the history of the legislation in order to determine whether the Act by necessary implication abrogates spousal immunity at common law from answering questions put to Mrs Stoddart in the course of an examination under the Act required to be answered, the obligations cast upon Mrs Stoddart or a person in the position of Mrs Stoddart by s 30 of the Act should be noted at the outset.

[41] Section 30(1) provides that a person served with a summons to appear as a witness at an examination before an examiner shall not fail to attend or fail to continue to attend unless excused by the examiner. In other words, that statutory command is that you must come. Section 30(2)(a) provides that the witness so appearing shall not, when required by an examiner under s 28 of the Act to either take an oath or make an affirmation, refuse or fail to comply with the requirement. That is, you must swear or affirm to the truth of your evidence. Section 30(2)(b) provides that the witness shall not refuse or fail to answer a question that he or she is required by the examiner to answer. That is, you must answer if required to do so. Section 30(2)(c) provides that the witness shall not refuse or fail to produce a document or thing that he or she is required to produce by a summons issued under the Act and served as required by the Act. That is, you must produce the document or thing sought by the summons.

[42] These obligations are expressed in unqualified terms by s 30(1) and (2): A v Boulton (2004) 136 FCR 420 ; 207 ALR 342 ; [2004] FCAFC 101 per Kenny J at [59]; Beaumont J agreeing at [1] and Dowsett J agreeing at [2].

[43] Section 30 does not expressly abrogate the immunity from answering a question at an examination under the Act that either does or might tend to incriminate the witness or expose the witness to a penalty although it does so by necessary implication: A v Boulton per Kenny J at [56]; Beaumont J and Dowsett J agreeing. That conclusion by the Full Court in A v Boulton was said to be consistent with the purpose, character and objectives of the Act; the unqualified obligation to answer a question when required by the examiner to do so (or produce a document required to be produced by a subpoena); the history of the legislation; and the evident parliamentary recognition of the public interest in a long-standing and fundamental privilege against self-incrimination, by providing for a limited use immunity for answers given or documents or things produced by the witness at an examination before an examiner. Section 30(5) provides that the answer, document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than a confiscation proceeding or a proceeding concerning the falsity of the answer or the falsity of a statement in a document produced. Section 30(4) provides that the limited use immunity only applies if the integers of that subsection are made out, that is, so far as answers are concerned, that the witness answers the question and before doing so claims that the answer might tend to incriminate the witness or make him or her liable to a penalty.

[44] The limited use immunity contained within s 30 represents a measure of protection for the citizen arising out of the abrogation of the privilege against or immunity from self-incrimination which is "a basic and substantive common law right" said to be "deeply ingrained" in the common law and sometimes called a "fundamental ... bulwark of liberty": Reid v Howard (1995) 184 CLR 1 ; 131 ALR 609, per Toohey, Gaudron, McHugh and Gummow JJ at 11 and at 12.

[45] Section 30 also addresses another deeply ingrained important substantive common law immunity, that is, the immunity from the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice. The common law immunity of legal professional privilege is an important substantive immunity which may be asserted in judicial proceedings or in answer to a call for disclosure in the exercise of investigatory procedures subject to the character of the relevant legislation and the nature of those procedures: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; 43 ACSR 189 ; [2002] HCA 49. The Act addresses legal professional privilege by providing in s 30(9) that notwithstanding the particular features of s 30(3) of the Act, the law relating to legal professional privilege is not affected by the Act. Section 30(3) provides that where the witness is a legal practitioner and he or she is required to answer a question or provide a document which would disclose a privileged communication made by or to the legal practitioner (in that capacity), the practitioner is entitled to refuse to comply with the examiner's requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with that requirement. Where the legal practitioner exercises the entitlement by so refusing the requirement of the examiner, he or she shall nevertheless give the examiner the name and address of the person engaged by the relevant communication, if so required by the examiner. Section 30(3) thus overcomes the authorities that suggest that the fact of a retainer and whether a person or entity has sought legal advice is itself a matter of legal professional privilege.

[46] Section 30 is in these terms:

Section 30 Failure of witnesses to attend and answer questions

Failure to attend

(1)

A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:

(a)

fail to attend as required by the summons; or

(b)

fail to attend from day to day unless excused, or released from further attendance, by the examiner.

Failure to answer questions etc .

(2)

A person appearing as a witness at an examination before an examiner shall not:

(a)

when required pursuant to section 28 either to take an oath or make an affirmation -- refuse or fail to comply with the requirement;

(b)

refuse or fail to answer a question that he or she is required to answer by the examiner; or

(c)

refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.

(3)

Where:

(a)

a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and

(b)

the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made. Use immunity available in some cases if self-incrimination claimed

(4)

Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:

(a)

a person appearing as a witness at an examination before an examiner:

(i)

answers a question that he or she is required to answer by the examiner; or

(ii)

produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and

(b)

in the case of the production of a document that is, or forms part of, a record of an existing or past business -- the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and

(c)

before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.

(5)

The answer, or the document or thing, is not admissible in evidence against the person in:

(a)

a criminal proceeding; or

(b)

a proceeding for the imposition of a penalty;

other than:

(c)

confiscation proceedings; or

(d)

a proceeding in respect of:

(i)

in the case of an answer -- the falsity of the answer; or

(ii)

in the case of the production of a document -- the falsity of any statement contained in the document.

Offence for contravention of subsection (1 ), ( 2) or (3 )

(6)

A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

(7)

Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(8)

Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year. Legal professional privilege

(9)

Subsection (3) does not affect the law relating to legal professional privilege.

The preferred construction to be adopted to the Act

[47] It seems to me that it follows from an examination of the structure of the Act, its objectives and purposes, and the history of the legislation (which will be addressed more fully shortly) that the Commonwealth Parliament has elected to protect the public interest in the investigation and detection of serious organised criminal activity (defined broadly by s 4(1) of the Act) constituting offences against Commonwealth law (and thus federally relevant criminal activity) by establishing a statutory mechanism for either a special ACC investigation or a special ACC operation to be undertaken as determined by the ACC's board, and a procedure for the conduct of examinations by examiners "for the purposes of a special ACC operation/investigation" (s 24A of the Act). The purpose of the Act in establishing such a statutory mechanism for examining and investigating serious organised criminal activity is aided by the powers conferred on an examiner to summon witnesses and take evidence (s 28); the power to obtain documents (s 29); the prohibition upon disclosure of steps in the investigative process (that is, the fact of invoking the summons power) (s 29A); and the unqualified obligation to attend when served with a summons, to swear or affirm to the truth of the evidence to be given, and to answer a question when required to do so by an examiner (s 30(1) and (2)).

[48] The purpose of the Act is to protect the public interest in the identification, detection and prosecution of serious organised criminal activity by enabling the forensic search for the truth in that class of conduct characterised by the Act as federally relevant criminal activity engaging serious and organised crime, unconstrained by any immunity subsisting at common law by which a person might claim a right to refuse to answer a question required to be answered by an examiner under the Act, on the ground that his or her answer either would or might tend to incriminate that person's spouse.

[49] The parliament, however, has sought to balance the public interest in the forensic search for the truth, in the course of a special ACC investigation or operation, from witnesses who can speak truthfully to the facts relevant to serious organised criminal activity (and/or produce documents), with the public interest in providing a witness, who is required to answer questions by an examiner and who is, by his or her answers, self-incriminated, with a limited use immunity and second, the preservation of legal professional privilege.

[50] Subject to those two considerations, the obligation to answer questions as required by an examiner or produce documents as required by summons is unqualified. In the context and history of the Act, the limited use immunity and legal professional privilege cover the field of considerations that reflect the balance in competing public interests sought to be achieved by the Act.

[51] It follows that the necessary implication to be drawn from a consideration of the Act, its objectives, purposes and the history of the legislation, is that the unqualified obligation to answer the examiner's questions as required is unconstrained by any common law spousal incrimination immunity and thus the Act, by necessary implication, abrogates the subsistence of that privilege in examinations conducted under the Act.

[52] It seems to me that a necessary implication of abrogation arises on the footing described, whether a common law immunity from (or privilege against) spousal incrimination owes its origins in the common law to the expression of principles within the broader privilege or immunity from self-incrimination or whether an immunity from answering questions which might tend to incriminate the witness's spouse is truly described as an independent or separate privilege. Describing a common law immunity from spousal incrimination as a separate or independent privilege invites the question: separate or independent from what? The very point of the privilege, whether grounded in the unity of the family or conceptions of the social undesirability of a spouse being compelled to give evidence against his or her spouse, is that the answer or the production of the document might tend to show that the witness's spouse has engaged in criminal conduct. The privilege is described commonly in a shorthand way as a common law privilege or immunity against spousal incrimination. That is the term used in the declaration Mrs Stoddart sought by her application. There is, it seems to me, a linear progression from the principles giving content to the immunity from self-incrimination, to the immunity that might be asserted at common law by a spouse from giving evidence which incriminates his or her spouse. The authorities on the precise origin of the immunity at common law are unclear as to its true foundation. To the extent that the privilege rests upon and is a progression from the privilege against self-incrimination, the abrogation of that immunity by the Act necessarily abrogates spousal immunity.

[53] To the extent that spousal immunity is properly seen as truly sui generis, it might be said that the abrogation of the immunity from self-incrimination does not sweep away the common law immunity from spousal incrimination. Even if that is true, it seems to me that the Act as a matter of necessary implication abrogates spousal immunity, as a matter of competing public priorities, whatever its foundation. The question of the foundation for spousal immunity at common law and its relationship with the privilege against self-incrimination is examined further in these reasons.

[54] It does seem counter-intuitive or odd that in the forensic search for the truth in respect of that special class of anti-social serious organised criminal conduct addressed by the Act and made the subject of the examination procedure under the Act that Mr Stoddart, had he been required to answer questions by the examiner on 3 April 2009, could not have refused to answer a question which tended to incriminate him, and yet his wife might properly say in the course of her evidence that she refuses to give an answer (as required by the examiner), on the ground that the answer might incriminate him.

The principles to be applied

[55] The principles to be applied in determining whether an Act abrogates common law rights are uncontroversial. The parties agree that the principles are those identified by Jacobson J at [121]-[127] in S v Boulton (2006) 151 FCR 364 ; 232 ALR 92 ; [2006] FCAFC 99 (Greenwood J agreeing at [170]). The principles are these:

[121] First, a statute is not to be construed as abrogating important common law rights and privileges except by clear words or necessary implication: Sorby v Commonwealth (1983) 152 CLR 281 at 289-90, 309, 311 and 316 ; 46 ALR 237 at 242, at 258, at 259, at 263; Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; 43 ACSR 189 ; [2002] HCA 49 at [11]; A v Boulton (2004) 136 FCR 420 ; 207 ALR 342 ; [2004] FCAFC 101 at [54]; Griffin v Pantzer (2004) 137 FCR 209 ; 207 ALR 169 ; [2004] FCAFC 113 at [46].

[122] Second, an intention to exclude a common law privilege may be gleaned from a statute even though express words of exclusion are not used: Sorbyat 289.

[123] Third, the question of whether the statute impliedly abrogates a privilege is to be determined upon the proper construction of the statute, considered as a whole, and from its character and purpose: Sorbyat CLR 289, 309; ALR 241-2, 258.

[124] Fourth, important common law privileges are not to be lightly abrogated and the oft cited phrase "necessary implication" requires that there be a high degree of certainty as to the intention of the legislature; the intention must be manifested by unmistakable and unambiguous language: Hamilton v Oades (1989) 166 CLR 486 at 495 ; 85 ALR 1 at 5-6; Coco v R (1994) 179 CLR 427 at 437 ; 120 ALR 415 at 419.

[125] Fifth, what is required is that there be a manifestation or indication that the legislature has directed its intention to the question of abrogation and has consciously determined that the privilege is to be excluded: Coco v Rat CLR 437; ALR 419; Plaintiff S 157 / 2002 v Commonwealth (2003) 211 CLR 476 ; 195 ALR 24 ; [2003] HCA 2 at [30] per Gleeson CJ.

[126] Sixth, general words will not be sufficient to disclose the requisite intention unless it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 ; 45 ALR 609 at 618; Coco v Rat CLR 438; ALR 419; Plaintiff S 157at [30]; Griffin v Pantzerat [53].

[127] Seventh, the presumption that the legislature does not intend to abrogate entrenched common law rights may be displaced by implication if it is necessary to prevent the statute from being rendered inoperative or meaningless or from frustrating the evident statutory purpose; Mortimer v Brown (1970) 122 CLR 493 at 495 ; [1972] ALR 723; Coco v Rat CLR 438; ALR 419.

The principles said to have miscarried in application

[56] Mrs Stoddart says that the application of those principles by the primary judge miscarried as the primary judge failed to appreciate that the common law immunity from spousal incrimination is a truly independent and separate common law right which is not abrogated by the abrogation of the privilege against self-incrimination; the Act does not expressly abrogate the immunity from spousal incrimination; and since the Act does not provide any compensating protection for the citizen in the form of a limited use immunity in respect of the witness's answers which might incriminate his or her spouse, the necessary implication to be drawn from the Act is that the parliament chose to preserve the operation of the common law right of spousal immunity for the purposes of the Act.

[57] It should also be noted that the primary judge accepted, having regard to the authorities, that the common law recognises a privilege against or immunity from spousal incrimination: Stoddart v Boulton (2009) 111 ALD 294 ; 260 ALR 268 ; [2009] FCA 1108 at [12] applying Callanan v B [2005] 1 Qd R 348 ; [2004] QCA 478 per McPherson JA at [18], McMurdo P agreeing at [1] and Jerrard JA at [22] and S v Boulton (above) per Black CJ at [16]-[28], Jacobson J at [75]-[99] and Greenwood J at [171]. Kiefel J, however, was not satisfied that the common law recognised an immunity from spousal incrimination ( S v Boulton [2005] FCA 821) although as a matter of comity her Honour elected to follow and apply the intermediate Court of Appeal decision in Callanan v B . Dowsett J in Stoten v Sage (2005) 144 FCR 487 ; 222 ALR 451 ; [2005] FCA 935 ( Stoten ) similarly doubted a common law immunity from spousal incrimination but elected to apply the decision in Callanan v B . The respondents do not contest in this appeal (and the issue is thus not alive) the conclusions of the primary judge on that matter although the respondents purport to simply "reserve" their position generally on the recognition point so that the question might be put in controversy before the High Court with leave should special leave be sought and obtained.

[58] Plainly, statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect distilled from a proper construction of the statute considered as a whole having regard to its character and purpose recognising that that abrogation by necessary implication requires a high degree of certainty of the legislative intent manifested by unmistakeable language:

Potter v Minahan (1908) 7 CLR 277 ; 14 ALR 635 ( Potter ); Baker v Campbell (1983) 153 CLR 52 ; 49 ALR 385; Re Bolton ; Ex parte Beane (1987) 163 CLR 514; Bropho v Western Australia (1990) 171 CLR 1 ; 93 ALR 207; Coco v R (1994) 179 CLR 427 ; 120 ALR 415; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ; 141 ALR 545 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; [2002] HCA 49 ( Daniels ).

The history of the amending legislation

[59] There is a slight inaccuracy in one of the earlier authorities ( Stoten (above)) in the description of the statutory instruments leading to the adoption of s 30 of the Act in its current form although the inaccuracy does not affect the reasoning upon which the decision rests. Rather, there is simply a mis-description of one of the statutory instruments. The correct position is this. The National Crime Authority Act 1984 (Cth) (the NCA Act) was amended by the National Crime Authority Legislation Amendment Act 2001 (Cth) (No 135 of 2001) (the 2001 Amending Act) in a way which effected substantial changes to s 30 of the NCA Act and commenced the operation of s 30 in the form set out at [46] of these reasons. Prior to the creation of the Australian Crime Commission by the Australian Crime Commission Establishment Act 2002 (Cth) (the 2002 Amending Act), s 28 of the Act authorised a member of the National Crime Authority to summons a person to give evidence and to produce documents.

[60] Section 30(1) prior to the 2001 Amending Act provided that a person served with a summons to appear as witness at a hearing before the National Crime Authority "shall not, without reasonable excuse, fail to attend as required by the summons or fail to attend from day to day unless excused, or released from further attendance, by a member". Section 30(2) provided that a person appearing as a witness at a hearing before the authority shall not without reasonable excuse when required pursuant to s 28 either to take an oath or make an affirmation refuse or fail to comply with the requirement; refuse or fail to answer a question that he or she is required to answer by the member presiding at the hearing; or refuse or fail to produce a document or thing that he or she was required to produce by a summons under the Act.

[61] Section 30(4) provided that, subject to subs (5), (7) and (9), it is a reasonable excuse for the purposes of s 30(2) for a natural person to refuse or fail to answer a question put to him or her at a hearing before the authority or to refuse or fail to produce a document or thing that he or she was required to produce at a hearing, if the answer to the question or the production of the document or thing might tend to incriminate that person.

[62] Section 30(5) provided that it is not a reasonable excuse for the purposes of s 30(2) for a person to refuse or fail to answer a question put to him or her at a hearing or to refuse or fail to produce a document or thing required to be produced at a hearing, that the answer or production of the document or thing might tend to prove his or her guilt of an offence against the law of the Commonwealth if the Director of Public Prosecutions (DPP) has given the person an undertaking in writing that any answer given or document or thing produced or any information, document or thing obtained as a direct or indirect consequence of the answer or production, will not be used in evidence in any proceedings against him or her for an offence against a law of the Commonwealth other than particular falsity proceedings, and the DPP states in the undertaking that in his or her opinion there are "special grounds" that "in the public interest" require that answers be given or documents or things be produced by that person, and the DPP identifies the general nature of those grounds.

[63] Section 30(7) was framed in the same terms as s 30(5) except that the refusal or failure concerned an answer that might tend to prove the guilt of the witness of an offence against a law of the state. Section 30(9) provided that it is not a reasonable excuse for a corporation to refuse or fail to produce a document or thing that the production might tend to incriminate the corporation and nor it is reasonable for a natural person to refuse or fail to produce a document or thing that forms part of a business record, that the production of the document might tend to incriminate the person. Section 30(11) provided that a person who contravened subss (1), (2) or (3) of s 30 was guilty of an offence.

[64] Accordingly, s 30 as framed prior to the 2001 Amending Act, cast obligations on a person conditioned by the qualification that the witness might refuse performance of those obligations with reasonable excuse. The obligations were thus not unqualified obligations. Section 30, as it was, set out either exhaustively or otherwise, circumstances which constitute a reasonable excuse and those which do not.

[65] It may be that under that formulation a reasonable excuse for refusing to answer a question as required by an examiner was recourse to circumstances other than those described in s 30(4) which might have included recourse to a common law immunity from spousal incrimination.

[66] The 2001 Amending Act, however, removed entirely from s 30 the qualification that a witness might have recourse to a reasonable excuse in refusing to discharge an obligation arising under s 30. Under the amended form of s 30 introduced by the 2001 Amending Act, reflected at [46] of these reasons, the obligations cast upon the person became unqualified obligations. The construct created by ss 30(4), (5) and (7) was repealed in favour of a limited use immunity in s 30(5) subject to s 30(4).

[67] The NCA Act was further amended by the 2002 Amending Act which had the effect of establishing a new body, the Australian Crime Commission, constituted under Div 1 of Pt II (s 7) of a renamed NCA Act cited as the Australian Crime Commission Act, in place of the National Crime Authority. The investigative functions relating to federally relevant criminal activity became functions of the ACC: s 7A. The conduct of examinations became functions of examiners appointed to the ACC: s 46B, Div 3, Pt II of the Act. The 2002 Amending Act effected a series of consequential changes to the renamed Act to bring references in the Act into conformity with the description of the new body and the amendments earlier effected by the 2001 Amending Act.

[68] The amendments to s 30 ultimately adopted in the 2001 Amending Act were first introduced into parliament as provisions of the National Crime Authority Legislation Amendment Bill 2000 (the 2000 Bill) which subsequently became the National Crime Authority Legislation Amendment Bill 2001 (the 2001 Bill). That Bill led to the 2001 Amending Act. In the second reading speech, however, before the Australian Senate for the 2000 Bill ( Senate Debates , Hansard, No 18, 2000, 7 December 2000 at p 21,028) the following explanatory observations were made concerning some of the proposed changes to s 30:

...

There is no doubt, however, that the problems caused by serious and organised crime operating across jurisdictional boundaries, continue to pervade all levels of society. This reinforces the need for a national law enforcement agency such as the National Crime Authority [NCA].

The [NCA] does not deal with simple street level crime, but with the web of complex criminal activity engaged in by highly skilled and resourceful criminal syndicates. It is therefore essential that the Authority has sufficient powers to enable it to perform its functions without being hindered or hampered by those whose very conduct the Authority is trying to investigate.

The Authority's task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation. If a person refuses to answer a question in a hearing, it is possible for that refusal to be litigated through the courts, with delays of months or even years. In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold. Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest -- a few hundred dollars. This is not much of a deterrent where obstructing the Authority can impede an investigation that might have led to a person being jailed for years for a serious offence such as drug trafficking.

...

The Bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing ... In other words, a person's self-incriminatory admissions won't themselves be able to be used as evidence against that person, but will be able to be used to find other evidence that verifies those admissions or is otherwise relevant to proceedings.

However, ... any evidence that the person gives cannot be used against the person in any later trial. The existing mechanism for a special undertaking by the DPP will not be required ...

In addition, the Bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined Criminal Code defences such as intervening event and sudden emergency. The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the Authority's hearing process by challenging, in the Federal Court, the Authority's decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question.

[69] The 2000 Bill was introduced into the House of Representatives as the 2001 Bill on 24 September 2001. In the second reading speech in support of the 2001 Bill ( Parliamentary Debates , House of Representatives, Hansard, No 15, 2001, 24 September 2001 at pp 31,303 and 31,304) some of the above observations made in the earlier Senate second reading speech in support of the 2000 Bill were repeated together with other explanatory remarks. In context, the explanation for the amendments contained in the 2001 Bill was put in these terms:

The authority's task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation.

If a person refuses to answer a question in a hearing, it has been possible for that refusal to be litigated through the courts, with delays of months or even years.

In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold.

It was for this reason that the bill that was introduced in the other chamber also contained a contempt regime.

The government considers that this would have been an immediate, fair and effective means for deterring and punishing deliberate obstruction of NCA hearings.

However, these provisions were removed in the Senate and the government will not pursue them at this time.

Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest -- a few hundred dollars.

This is not much of a deterrent where obstructing the authority can impede an investigation that might have led to a person being jailed for years for a serious offence such as drug trafficking.

Accordingly, the maximum criminal penalty for failing to answer a question at a hearing will be substantially increased under the bill, from 6 months prison and a $1100 fine to 5 years imprisonment and a $20,000 fine.

...

The bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing ... However, the bill will specifically provide that once a witness has claimed that the answer to a question might tend to incriminate him or her, then any evidence that the person gives cannot be used against the person in any later trial.

...

In addition, the bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined criminal code defences such as intervening event and sudden emergency.

The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the authority's hearing process by challenging, in the Federal Court, the authority's decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question.

The provisions that remove the defence of reasonable excuse, remove derivative-use immunity and increase the penalties for non-compliance with the NCA [A]ct are intended to enhance the overall effectiveness of the authority.

[70] The references in the second reading speech to the Criminal Code are a reference to s 6A of the Act which provides that: "Chapter 2 of the Criminal Code [Criminal Code Act 1995 (Cth)] applies to all offences against this Act".

[71] The explanatory memorandum for the 2000 Bill tabled in the Senate on 7 December 2000 contained these observations at pp 4 and 6 respectively:

Part 1 -- Amendments relating to reasonable excuse, self-incrimination and increases in penalties

The purpose of this Part is to enhance the investigatory power of the Authority so that it may deal more effectively and efficiently with witnesses. The amendments will limit the ability of witnesses to challenge the legitimate and essential role of the Authority in investigating serious and organised crime. The amendments will also increase penalties for non-compliance with the Act so as to deter those who would otherwise embark on a course of conduct designed to thwart the investigatory process.

...

Item 11

This item omits the defence of reasonable excuse from subsections 30(1) and (2). A person who fails to attend in answer to a summons; fails to attend from day to day unless excused or released; refuses or fails to take an oath or make an affirmation; refuses or fails to answer a question or refuses or fails to produce a document or thing when required to do so, will not be able to claim that he or she has a reasonable excuse for non-compliance ...

[72] The second reading speech for the 2001 Bill in the House of Representatives tables a revised explanatory memorandum. The 2001 Bill became the 2001 Amending Act effecting, in particular, the changes to s 30. In A v Boulton Kenny J at [70] makes reference to a revised explanatory memorandum accompanying the 2000 Bill. There does not appear to be a revised explanatory memorandum for that bill although there is a revised explanatory memorandum for the 2001 Bill. In Stotenat [23] and at [24], Dowsett J makes reference to a revised explanatory memorandum accompanying the Bill for the 2002 amendments (that is, the Bill for the 2002 Amending Act) and quotes as part of that document aspects of the revised explanatory memorandum for the 2001 Bill. There seems to be some understandable confusion in relation to these memoranda having regard to the passage of the 2000 Bill through the Senate and the introduction of the 2001 Bill into the House of Representatives. There is no revised explanatory memorandum accompanying the 2000 Bill. There is a revised explanatory memorandum accompanying the 2002 Bill (which provides for the establishment of the ACC and effects consequential transitional changes but which did not effect the presently relevant changes to s 30 of the Act). The explanatory observations and discussion of items attributed to the revised explanatory memorandum for the 2002 Bill are in fact contained in the revised explanatory memorandum for the 2001 Bill.

[73] In any event, the revised explanatory memorandum for the 2001 Bill adopts at pp 6 and 8 respectively the paragraphs quoted at [71] of these reasons drawn from the explanatory memorandum for the 2000 Bill. The outline for the 2001 Bill says that the amendments are intended, among other things, to:

(a)

remove the defence of reasonable excuse, replace the use derivative-use indemnity with use-indemnity, and increase penalties for non-compliance with the Act;

...

(f)

clarify the application of legal professional privilege and remove the defence of legal duty to disclose;

...

[74] Having regard to the changes effected by the 2001 Amending Act and the 2002 Amending Act, the Act establishes this regime.

The content of the statutory regime that applied as at 3 April 2009

[75] The ACC is established by Div 1 of Pt II of the Act. Its functions, by s 7A, include undertaking, when authorised by the Board of the ACC, intelligence operations and the investigation of matters relating to federally relevant criminal activity; the provision of advice to the board on national criminal intelligence priorities; and such other functions as are conferred on the ACC by the Act or any other Act. By s 7C, the functions of the board include a function of authorising the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity and to determine in writing whether such an operation is a special operation or a special investigation. A "special ACC operation/investigation" means:

(a)

an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or

(b)

an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and the Board has determined to be a special investigation.

[76] "Federally relevant criminal activity" means:

(a)

a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory; or

(b)

a relevant criminal activity, where the serious and organised crime:

(i)

is an offence against a law of a State; and

(ii)

has a federal aspect.

[77] The term "a federal aspect" is defined by s 4A(2) of the Act. The term "serious and organised crime" is defined in the manner set out at [34] of these reasons.

[78] By subss 7C(2) and (3) the board, before determining that an intelligence operation is to be conducted as a special operation or a special investigation, must consider whether methods of collecting criminal information and intelligence that do not involve the use of powers under the Act have been effective or whether ordinary police methods of investigation into matters to be investigated are likely to be effective. Division 1 of Pt II also addresses provisions relating to the conduct and convening of board meetings of the ACC. Division 1 of Pt II provides for the establishment of an Inter-Governmental Committee representing the Commonwealth and participating states to monitor and review the work of the ACC and its board, among other functions.

[79] Division 1A of Pt II of the Act provides by s 12 for the performance of the functions of the ACC. Section 12(1) provides that where the ACC in carrying out an ACC operation/investigation obtains evidence of an offence against the law of the Commonwealth or of a state or territory (being evidence admissible in a prosecution for that offence), the evidence must be assembled and given to the relevant Attorney-General, relevant law enforcement agencies and the relevant prosecutorial authority. A similar obligation arises in relation to confiscation proceedings: s 12(1A). A confiscation proceeding means a proceeding under the Proceeds of Crime Act 1987 (Cth) or the Proceeds of Crime Act 2002 (Cth) (or under a corresponding law within the meaning of either of those two Acts).

[80] Division 3 of Pt II sets out administrative provisions. Subdiv B, Div 3, Pt II provides for the appointment of examiners. Division 1A of Pt II provides that examiners may seek information from Commonwealth agencies. Section 22 provides that an eligible person may apply to an issuing officer for the issue of a warrant in relation to particular matters.

[81] Division 2 provides for the conduct of examinations. The relevant provisions are in these terms:

Division 2 -- Examinations

24A Examinations

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

25A Conduct of examination

Conduct of proceedings

(1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.

Representation at examination

(2) At an examination before an examiner:

(a)

a person giving evidence may be represented by a legal practitioner; and

(b)

if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner -- the person may be so represented.

Persons present at examination

(3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

...

Witnesses

(6) At an examination before an examiner:

(a)

counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or

(b)

any person authorised by the examiner to appear before the examiner at the examination; or

(c)

any legal practitioner representing a person at the examination in accordance with subsection (2);

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

...

Confidentiality

(9) An examiner may direct that:

(a)

any evidence given before the examiner; or

(b)

the contents of any document, or a description of any thing, produced to the examiner; or

(c)

any information that might enable a person who has given evidence before the examiner to be identified; or

(d)

the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

...

Courts

(12) If:

(a)

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

(b)

the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;

the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.

(13) If:

(a)

the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and

(b)

the court, after examining the evidence, is satisfied that the interests of justice so require;

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

...

End of examination

(15) At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation:

(a)

a record of the proceedings of the examination; and

(b)

any documents or other things given to the examiner at, or in connection with, the examination.

[82] Section 28 contains a power to summon witnesses and take evidence. The provisions are in these terms:

28 Power to summon witnesses and take evidence

(1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:

(a)

before the issue of the summons; or

(b)

at the same time as the issue of the summons.

(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.

(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.

(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:

(a)

the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b)

the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.

(6) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.

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

(8) A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons.

[83] Section 29 contains a power to obtain documents.

[84] Section 30 addresses the failure of witnesses to attend and answer questions as set out at [46] of these reasons.

Conclusion as to the construction of the act and the necessarily implied abrogation of spousal immunity

[85] Having regard to the Act as a whole; its character as the expression of the parliament's response to the protection of the public interest in the investigation and detection of serious organised criminal activity, as broadly defined, by establishing a statutory mechanism for ACC-conducted special operations or special investigations and an examination procedure established for the purposes of those activities; the examination mechanism as an instrument for the forensic search for the truth from witnesses who can speak to the facts relevant to serious organised criminal activity the subject of an operation or investigation; the unqualified obligations arising out of s 30 of the Act having regard to the removal of the "reasonable excuse" provisions; the adoption of a balance in the competing public interest in providing citizens with a measure of protection in the form of a limited use immunity arising out of the abrogation of the privilege against self-incrimination and the retention of legal professional privilege; and the expressions of opinion contained in the second reading speeches, the explanatory memorandum for the 2000 Bill and the revised explanatory memorandum for the 2001 Bill, it seems to me that the Australian Crime Commission Act imposes an unqualified obligation upon a witness in the position of Mrs Stoddart to answer the question she was required to answer unconstrained by any notion of a privilege against or immunity from answering the question on the footing that her answer might tend to incriminate her spouse.

[86] A number of things are said against such a construction.

[87] Mrs Stoddart contends that had the Act intended to bring about the abolition of an existing common law right, privilege or immunity by adopting the unqualified obligations reflected in s 30 of the Act, the parliament would have provided a witness with a limited use immunity concerning answers required to be given which might tend to incriminate the spouse of the witness, just as it did for the witness in abrogating the privilege against self-incrimination. The absence of any counter-balancing limited use spousal protection and thus the protection of the public interest in marital unity, marital cohesion and the sanctuary of the home or family environment, is said to suggest that the legislation intended the retention of the common law immunity.

[88] Put another way, the absence of any counter-balancing limited use protection of the public interest in marital unity leads to the conclusion, in construing the Act, that the high degree of certainty required to imply a legislative intention to abrogate is not satisfied as the language of the Act is not unmistakeably or unambiguously clear to that effect.

[89] For the reasons indicated at [47]-[54] and [85], a consideration of the legislation as a whole reveals that the parliament has made its intention clear, by necessary implication, having regard for language, character and purpose of the legislation.

[90] The absence of any limited use immunity concerning answers given by a witness that might tend to incriminate the witness's spouse is not, in the context of the legislation as a whole and the related statutory materials, an expression of parliamentary intention to retain a qualification upon the unqualified obligation to answer in s 30 of the Act. The necessary inference is that only two matters of privilege or immunity have any operation upon the obligation to answer. First, the limited use immunity in respect of answers given which might tend to self-incrimination and second, legal professional privilege.

[91] This Act is not an example of mere "generality of words" sought to be construed as words of exclusion. The Act addresses with precision a quite specific problem of securing the public interest in investigating serious organised criminal activity coupled with an examination procedure that casts unqualified obligations on witnesses of the kind already discussed. Nor is this Act an example of an Act where an intention to exclude a right to refuse to answer a question required to be answered is sought to be "assumed or spelled out from 'indirect references, uncertain inferences or equivocal considerations' [ Commissioner of Police v Tanos (1958) 98 CLR 383 at 396]": Saeed v Minister for Immigration and Citizenship (2010) 115 ALD 493 ; 267 ALR 204 ; [2010] HCA 23 at [14] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. Rather, the necessary implication derives from the direct references mentioned, unambiguous inferences and unequivocal considerations.

[92] As Dowsett J observed in Stotenat [29]:

[29] It is quite clear from the Explanatory Memorandum and the Second Reading Speeches that, in deleting the concept of reasonable excuse and otherwise amending s 30, Parliament intended to establish a regime in which all questions posed by an examiner were to be answered, subject only to the express provisions of s 30. In any prosecution for a breach of that section, defences available under Ch 2 of the Criminal Code would be available. Even if spousal privilege be a version of the privilege against self-incrimination, the present regime does not permit reliance upon it.

[93] A further matter to be considered in determining whether an Act abrogates a common law right, privilege and immunity in its treatment of the particular subject matter addressed by the Act having regard to its purpose, character and language, is the character of the common law right, privilege or immunity itself. The correct approach does not involve ranking or prioritising common law rights, privileges or immunities but it does involve recognising the extent to which the contended immunity has been uncontroversially recognised and accepted and whether the contended immunity is "fundamental" or "deeply ingrained" in the common law or a "bulwark of liberty" or central to the "general system of law" resting on the "principle of legality" embodied in the rule of law governing the relations between parliament, the executive and the courts: Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 ; 209 ALR 116 ; [2004] HCA 40 at [21]; R v Secretary of State for the Home Dept ; Ex parte Pierson [1998] AC 539 at 587H (per Lord Steyn).

[94] Where the contended right, privilege, immunity or established set of principles is of the character or kind attracting the above descriptions, courts will not be persuaded that an Act excludes those rights in the absence of "irresistible clearness": Potterat CLR 304; ALR 645 per O'Connor J.

[95] As O'Connor J observed in Potterat CLR 304; ALR 645:

It is in the last degree improbable that the legislature would overthrow fundamental principles , infringe rights, or depart from the general system of law , without expressing its intention with irresistible clearness. [Emphasis added.]

[96] I do not mean to imply that there is an incremental scale of satisfaction in which less certainty of legislative intent "will do". However, in construing the legislation as a whole in the context of the problem it seeks to address, and presumably seeks to solve, the character of the common law rights said to be affected or excluded must be kept in mind. If the contended effect of the Act is to overthrow fundamental principles or depart from the general system of law or strike at the principle of legality that adjusts the balance between the exercise of federal parliamentary, executive or judicial power, it is highly unlikely that a Commonwealth Act (or a state Act in other contexts) will be construed to embody such a parliamentary intention in the absence of express words of directed exclusion or language of irresistible clearness.

[97] For example, the principles of natural justice or procedural fairness regarded as fundamental in ensuring that administrative decision-makers (courts and tribunals) stay within the bounds of the proper exercise of power, can only be excluded by "plain words of necessary intendment": Annetts v McCann (1990) 170 CLR 596 at 598 ; 97 ALR 177 at 178 ; 21 ALD 651 at 652.

[98] In this case, for the reasons already indicated, the plain language of the Act, taken as a whole, in the context of the public interest sought to be protected by its enabling structures and processes brings about a "necessary intendment" of exclusion of the particular common law immunity sought to be relied upon by Mrs Stoddart.

[99] Mrs Stoddart also adopts the argument that the observations in Daniels of Gleeson CJ, Gaudron, Gummow and Hayne JJ are not only statements of important principle in determining whether an Act effects an abrogation of important common law rights, privileges and immunities, but that the conclusion reached in relation to the question of whether s 155 of the Trade Practices Act 1974 (Cth) (the TP Act) effected an abrogation of legal professional privilege under that Act provides a persuasive analogue of the outcome of the immunity question in issue in the context of the Australian Crime Commission Act because both Acts are directed to achieving an important public purpose and both Acts adopt unqualified language in requiring the recipient of a notice to furnish information, provide documents or appear and give evidence.

[100] The TP Act plainly addresses important questions of the public interest reflected in the object of enhancing the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection: s 2 of the TP Act. However, the purpose and character of the Australian Crime Commission Act is directed to structures and processes designed to investigate, detect and facilitate the prosecution of serious and organised crime. Section 155 of the TP Act is not expressed in the same language as s 30 of the Act although it is true that s 155 contains provisions such as s 155(1) and 155(5) which give rise to unqualified obligations and s 155, in the form considered by the High Court, did not, in terms, accommodate any scope for the exercise of the important substantive common law right or immunity from the production of documents or the giving of information required by a notice under the section. Section 155(7) abrogated the privilege against self-incrimination and conferred a limited use immunity. Their Honours concluded that in the context of a consideration of the TP Act as a whole, the statutory provisions could not be construed as abrogating the important substantive common law immunity of legal professional privilege.

[101] The context of the discussion in Daniels concerned the question of whether the language of the legislative instrument ought to be construed as abrogating the important immunity of legal professional privilege.

[102] Representative democracy, responsible government and the rule of law are constitutional concepts. The important substantive common law immunity a citizen enjoys from revealing communications with his or her lawyer made for the dominant purpose of giving or obtaining legal advice is an essential element of enabling citizens to be informed about the content of the law and the scope of the citizens' rights, duties and obligations, whether engaging the criminal law or civil law. Although not a constitutional concept, the common law immunity from disclosure of information or the production of documents on the ground of legal professional privilege is closely related to enabling citizens to act according to law and consistently with the rule of law in a civil society. Plainly enough, a valid law of the Commonwealth might abrogate that immunity and governments initiating such a step would ultimately need to explain the reasons for doing so to their citizens and be subject to the electoral processes. A Commonwealth Act silent as to express removal of legal professional privilege will only effect an abrogation of such an immunity as a matter of irresistible or necessary implication.

[103] Had the Australian Crime Commission Act been silent as to legal professional privilege or failed to address the privilege against self-incrimination, or either of those immunities, the imperative language of the Act would probably not lead necessarily to the conclusion that the Act excludes common law immunities more generally. However, the Act does address the role of those two important immunities and the context, purpose and character of the legislation against the background of the related materials strongly suggests that the parliament intended to establish a statutory regime in which all questions, required to be answered by an examiner, are to be answered subject only to the express provisions of s 30.

[104] More fundamentally, however, the character of the right, privilege or immunity asserted by Mrs Stoddart is not of the kind uncontroversially deeply ingrained in the fabric of the common law such as legal professional privilege and nor is it of the deeply ingrained kind concerning the immunity from self-incrimination. Nor can it be said that the asserted right is in the nature of the principles of natural justice.

Is the immunity from spousal incrimination recognised by the Queensland Court of Appeal in Callanan v B and the Full Court of the Federal Court in S v Boulton properly regarded as part of the immunity from self-incrimination?

[105] In Callanan v B , McPherson JA at [6]-[8] (McMurdo P agreeing; Jerrard JA agreeing and adding additional reasons) examined the principal foundations described as "cogent authority and careful research" upon which Mr David Lusty in his article entitled "Is there a Common Law Privilege against Spouse Incrimination?" (2004) UNSW Law Journal , 27(1), p 1) concluded that there is "a common law privilege against spouse-incrimination" and "the privilege is analogous to, yet separate and distinct from, the privilege against self -incrimination".

[106] Although McPherson JA found Mr Lusty's article persuasive as to the common law recognition of a privilege of spousal incrimination, it is not correct to say, as some contend, that McPherson JA simply adopted the article. Rather, McPherson JA considered the foundations of the academic contentions and lent his considerable international reputation as a legal scholar and historian to the conclusions drawn from the research. McPherson JA accepted that the starting point is the authoritative statement by Michael Dalton in The Countrey Justice (1618) at 261 that a wife "is not bound to give evidence nor be examined against her husband". This observation seems to be directed to the notion of whether a wife is a compellable witness (assuming competency) in criminal proceedings against her husband. As to that, Griffith CJ accepted in Riddle v R (1911) 12 CLR 622 ; 18 ALR 103 ( Riddle ) that at common law a spouse is not to be compelled to give evidence against the other spouse. McPherson JA accepted that the common law recognises that the "privilege (that is, a spouse's immunity from being compelled to give evidence against the other spouse) applies "reciprocally to husband witnesses as well as wives". His Honour also considered that since the Crown (at least until the 19th century) might confer coercive powers on investigators by special commissions of inquiry under the prerogative, the privilege which he described as a "form of 'free-standing' privilege" could be asserted before investigatory tribunals (which in Callanan v B concerned the giving of evidence before the Queensland Crime and Misconduct Commission under the Crime and Misconduct Act 2001 (Qld)).

[107] There are two things to be noted about these observations.

[108] The first is a taxonomic one as McPherson JA seems to discuss the notion of spousal privilege from giving answers to questions (whether before courts or investigatory bodies) that might tend to incriminate his or her spouse, in the context of an immunity from compellability to give evidence at all.

[109] Second, the description of the privilege, used in that taxonomic sense, as a "free-standing privilege" seems to be a reference to the availability of the privilege before investigatory bodies and not simply one confined to court proceedings. In that sense it is detached. The observations of McPherson JA do not support Mr Lusty's second proposition that a privilege of "spouse-incrimination is separate and distinct from the privilege against self-incrimination".

[110] Historically, a wife, at common law, was incompetent to give evidence against her husband, based upon the unity of husband and wife, "coupled with the privilege against self-incrimination": Hoskyn v Metropolitan Police Commissioner [1979] AC 474 ; [1978] 2 All ER 136 ( Hoskyn ) per Lord Wilberforce at AC 484C; All ER 138. Exceptions were recognised. Personal violence against a wife was the clearest example. Other possible exceptions were treason and abduction.

[111] This notion of incompetence was said to be based on Coke's doctrine of "one flesh" but was later grounded upon the concept of "unity of interest" between husband and wife and the social policy of avoiding "implacable divisions and quarrels" that might arise from a wife being allowed to give evidence against her husband: Hoskyn per Lord Wilberforce at AC 484A-C; All ER 138.

[112] However, once the exclusionary rules of competency no longer applied, a wife might competently give evidence against her husband although she could not be compelled to do so: Leach v R [1912] AC 305. The notion of compellability was concerned with whether a wife (and later either spouse) could be compelled to give evidence against her husband at all; that is, swear affidavits, answer questions on oath, enter the witness box at large.

[113] The issue was not whether a compellable witness or a witness who had elected to give evidence could, in the course of giving evidence, assert a true privilege or immunity from answering the question on the ground that the answer might tend to incriminate her spouse (or later his spouse). In Cartwright v Green (1803) 32 ER 412 ; 8 Ves Jun 405 ( Cartwright ), however, a married woman defendant to a bill in Chancery at the suit of the personal representative of an estate, concerning money of the estate in the possession of the defendant, her husband and a third person, resisted giving answers on oath by way of discovery on the ground that her discovery might show that her husband had been guilty of a felony. Lord Eldon LC observed at 413:

Here the wife, if the act was a felony in the husband, would be protected: at all events she could not be called upon to make a discovery against her husband.

[114] In Cartwright , although the issue was the court's "protection" of the wife (and thus the immunity) from making discovery, the immunity was put on the footing that her evidence might expose a felony on the part of her husband. The question of whether she was compellable was thus linked to possible exposure of her spouse as a felon.

[115] In Riddle (above) per Griffith CJ at CLR 627; ALR 105 and Hoskynat AC 485; All ER 139, Cartwright is accepted as having decided that the defendant was not compellable to answer on oath if her answers exposed her spouse's guilt of a criminal offence. Cartwright therefore suggests not simply that a wife is not compellable in proceedings concerning her husband but that she is not obliged to expose her husband's criminal conduct and thus the immunity is symmetrically related to the common law privilege against self-incrimination by the spousal offender.

[116] In R v Inhabitants of All Saints Worcester (1817) 105 ER 1215 ( All Saints ) a wife, competent to give evidence, and not having objected to being examined, could, it was said by Bayley J, have "thrown herself" on the court's "protection" (like Mrs Green) from answering a question put to her in the course of her examination that "might criminate her husband". Kiefel J in S v Boulton [2005] FCA 821 considered this case to be wrongly decided.

[117] In Taylor on Evidence (10th ed, 1906) at [1368] regarded by Lord Wilberforce in Hoskynat AC 485H; All ER 139 as "the authoritative textbook", the author concludes based on All Saints that "although [a] wife may be permitted to give evidence which may indirectly incriminate her husband, it by no means follows that she can be compelled to do so; and the better opinion is that she may throw herself upon the protection of the court and decline to answer any question which would tend to expose her husband to a criminal charge " [emphasis added].

[118] All Saints seems to have been treated as recognising that a wife being competent and electing to enter the witness box and give evidence or be examined, may refuse to answer any question put to her that would tend to incriminate her husband, although that state of affairs seems to have been treated as referable to "compellability". However, the use of that term as a description of the right to the court's protection from being compelled to answer one or more particular questions put to a wife that would, if answered, tend to incriminate her husband (a true privilege or immunity from answering) may reflect taxonomic confusion in the use of the correct description.

[119] The substance of the matter, however, seems to be an immunity from answering particular questions on the footing that the answer would tend to incriminate the witness's spouse. Cartwright, All Saints and the commentary by Taylor are directed to particular answers to particular questions, not whether a spouse is compellable at all. The High Court in Riddle and the Law Lords in Hoskyn approve the substance of immunity described in All Saints .

[120] In that sense, Cartwright, All Saints and the Taylor commentary recognise a distinction between whether a person is competent to give evidence at all; if so, whether a competent witness is compellable; and, if competent and compellable (or the witness although not compellable elects to give evidence or be examined), a privilege or immunity protected by the court by entitling the witness to refuse to answer a particular question that might tend to incriminate the witness's spouse.

[121] As to compellability, Hoskyn recognises that Leach establishes that a wife was not at common law compellable to give evidence against her husband.

[122] As to the entitlement to refuse to answer particular questions (that is, a privilege against spousal incrimination) Lamb v Munster (1882) LR 10 QBD 110 recognises that "the privilege extends to protect a man from answering any question which "would in the opinion of the judge have a tendency to expose the witness, or the wife or husband of the witness to any criminal charge": Stephen's Digest of the Law of Evidence , 3rd Edition, Art 120, p 121": see also, Re Intercontinental Development Corp Pty Ltd (1975) 1 ACLR 253 at 259.

[123] The discussion in Wigmore and the subsequent discussion in the 1961 McNaughton Revision (although less so in the 2002 edition edited by Edward J Imwinkelried) of the historical evolution of competence and compellability uses the term "privilege" extensively as a description of compellability and an immunity a husband might call in aid in seeking to prevent his wife from giving evidence against him at all.

[124] However, the term "privilege" for the purposes of the discussion in these reasons is used in the sense of a true privilege or immunity a witness might call in aid who is both competent to give evidence and who finds himself or herself in the position of giving evidence and then seeks to rely upon an immunity in respect of a specific question which, if answered, might tend to incriminate the witness's spouse.

[125] It follows that the common law recognises an immunity from answering a particular question put in the course of the witness giving evidence either before a court or an examiner, on the footing that the answer might tend to incriminate the spouse of the witness. The immunity, however, is directly related to the potential incrimination of the spouse of the witness who, himself or herself, enjoys a privilege from self-incrimination. The two immunities are necessarily related. In R Cross, J D Heydon, Cross on Evidence , 8th ed, Lexis Nexis Butterworths, New South Wales, 2010, the learned author observes in the discussion of the privilege against self-incrimination at [25150] that "the privilege extends to answers tending to incriminate the witness's spouse": see the authorities at fn 310.

[126] Although I take the view that the Act effects a parliamentary intention of excluding the operation of a common law immunity of spousal incrimination whether that immunity is seen as a part of the evolved privilege against self-incrimination or an analogous yet separate and distinct privilege, it seems to me that the way in which the immunity from spousal incrimination has evolved so closely links the immunity to the privilege against self-incrimination that the abrogation of that privilege by the Act necessarily sweeps away, for the purposes of the Act, the immunity from spousal incrimination in any event.

[127] Accordingly, the appeal must be dismissed.