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

[2010] FCAFC 89

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(Judgment by: Logan J)

Stoddart
vBoulton (Examiner, Australian Crime Commission) and Another

Court:

Judges: Spender J
Greenwood J

Logan 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:
Logan J

[128] On 3 April 2009, the appellant, Mrs Stoddart, appeared before the first respondent, Mr Boulton who is an examiner appointed pursuant to and for the purposes of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). She appeared in accordance with the requirements of a summons which Mr Boulton had issued pursuant to s 28 of the ACC Act. The occasion for Mr Boulton's issuing of the summons was so that Mrs Stoddart might answer questions in respect of alleged activities concerning her husband, entities related to him and other persons for the purposes of an Australian Crime Commission (ACC) special operation/investigation: qv s 24A and the definition of "special ACC operation/investigation" in s 4, ACC Act.

[129] Upon such questions being posed to her by Mr Boulton, Mrs Stoddart, through her counsel, declined to answer them on the basis of spousal privilege. Mr Boulton assumed the existence of such a privilege but ruled that it was abrogated by s 30 of the ACC Act. He directed her to answer the questions. The ruling and direction were then challenged by Mrs Stoddart in the original jurisdiction of this court by way of an application for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[130] The learned trial judge dismissed Mrs Stoddart's judicial review application. It is against that order of dismissal that Mrs Stoddart has appealed to the Full Court. The issue on the appeal is a narrow but highly significant and controversial one, does s 30 of the ACC Act abrogate spousal privilege?

[131] The issue is one free from direct authority at intermediate appellate level. Differing views on the issue where expressed by way of obiter dicta in S v Boulton (2006) 151 FCR 364 ; 232 ALR 92 ; [2006] FCAFC 99. In that case, Black CJ expressed the view that the privilege had not been abrogated whereas Jacobson J, with whom Greenwood J expressed agreement in a short, separate judgment, held that s 30 of the ACC Act did abrogate spousal privilege. These differing views truly were obiter dicta as the result in the appeal was dictated by the unanimous conclusion of the Full Court that spousal privilege extended only to lawfully married, as opposed to de facto spouses. Earlier, in Stoten v Sage (2005) 144 FCR 487 ; 222 ALR 451 ; [2005] FCA 935, Dowsett J had concluded that s 30 abrogated spousal privilege.

[132] Having referred to these authorities together with another earlier decision of the Full Court in which it had been held that s 30 of the ACC Act abrogated the privilege against self-incrimination, A v Boulton (2004) 136 FCR 420 ; 207 ALR 342 ; [2004] FCAFC 101, the learned trial judge concluded that s 30 of the ACC Act did abrogate spousal privilege. His Honour stated:

In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband's privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife's privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC [senior counsel for the ACC] pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the perseveration of personal liberty.

It is evident from his Honour's reasons for judgment that an observation made by Hayne J in the course of oral argument on the unsuccessful application for special leave to appeal leave to appeal against the Full Court's judgment in S v Boulton [2006] HCA Trans 665, was also influential in persuading him to reach a conclusion that the privilege had been abrogated. Justice Hayne had then observed:

Can I tell you bluntly what troubles me most? If the person who is incriminated by the answer has no privilege, save the limited use immunity for which the Act proscribes, why should someone who is not incriminated be outside the reach of the otherwise general obligation to answer what you are asking? That is the nub of it for me.

[133] The submissions of the parties before the court on this appeal in effect replicated and adopted the differing views and reasoning concerning whether the ACC Act effected abrogation of spousal privilege evident in the authorities just noted. As the nature of those submissions will emerge from my consideration of those authorities, it is unnecessary separately to set them out in any further detail.

[134] I begin with the text of the statute. Section 30 of the ACC Act provides:

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.

[135] There is no denying that the material words in s 30 of the ACC Act have an imperative quality, "a person appearing as a witness at an examination before an examiner shall not refuse or fail to answer a question that he or she is required to answer by the examiner" -- s 30(2)(b), emphasis added. That imperative quality is no less self evident in s 30 than, notably, the search and seizure authority conferred by a search warrant issued under s 10 of the Crimes Act 1914 (Cth), considered in Baker v Campbell (1983) 153 CLR 52 ; 49 ALR 385 ; [1983] HCA 39 ( Baker ) or the obligation to produce documents to the Australian Competition and Consumer Commission created by s 155(1) of the Trade Practices Act 1974 (Cth) (Trade Practices Act) considered in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; 43 ACSR 189 ; [2002] HCA 49 ( Daniels' case ). Nor is the conducting of an examination for the purposes of a special ACC operation/investigation any more or less an important public purpose than searching to the end of seizing documents or things which will afford evidence as to the commission of an offence against a law of the Commonwealth or producing documents which may be relevant to the suppression of anti-competitive activity in trade or commerce or to consumer protection. Yet in each of Baker and Daniels' case , general, imperative language in a statute was regarded, at ultimate appellate level, as insufficient in itself to abrogate a fundamental right, which was in each of these cases, legal professional privilege.

[136] Of course the outcome in each of Baker and Daniels' case necessarily turned on the language of a particular statute, read in context and having regard to the purpose of that statute. Their utility by analogy is to this extent necessarily limited by this consideration. However, the outcomes in these cases are manifestations of the insistence at ultimate appellate level that parliament make its intention to abrogate fundamental rights or freedoms absolutely clear. For reasons which I develop below, I consider that spousal privilege is just such a fundamental right. With all due respect to those who have held that s 30 of the ACC Act abrogates spousal privilege, I regard that conclusion as inconsistent with, if not subversive of, the insistence on unmistakable clarity counselled at ultimate appellate level.

[137] That insistence and its rationale were made plain by Mason CJ, Brennan, Gaudron and McHugh JJ in their joint judgement in Coco v R (1994) 179 CLR 427 at 437-8 ; 120 ALR 415 at 418-9:

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental right.

So long as the requirement for express statutory authorization is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton ; Ex parte Beane in these terms:

"Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."

In Bropho v Western Australia , Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that 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; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used."

At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights. The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope. [Footnote references omitted.]

See also, Coleman v Power (2004) 220 CLR 1 ; 209 ALR 182 ; [2004] HCA 39 at [185], per Gummow and Hayne JJ and the other Australian authority to which their Honours refer at fn 255 and, recently, Saeed v Minister for Immigration and Citizenship (2010) 115 ALD 493 ; 267 ALR 204 ; [2010] HCA 23 at [15]. A like insistence on unmistakable clarity is evident in Leach v R [1912] AC 305 at 309 ( Leach ) and Riddle v R (1911) 12 CLR 622 at 626-8 ; 18 ALR 103 at 104-6 ( Riddle ).

[138] None of this is to suggest that those who have held for abrogation of spousal privilege by the ACC Act have ignored the insistence at ultimate appellate level on unmistakeable clarity, only that the vocalness of that insistence seems, with respect, to have been muted by a perception that, in the interpretation of statutes, the preservation of fundamental rights and freedoms was somehow an inferior policy consideration to a perceived frustration of various types of investigation unless that right or freedom were taken to be abrogated. I accept the accuracy of the following distillation of principle offered by Jacobson J in this passage in his judgment in S v Boultonat [121]-[127]:

[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 Corporation International Pty Limited 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 289, 309.

[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.

[139] Where, with respect, I depart from Jacobson J and the learned trial judge is in the application of these paragraphs in the circumstances of this case.

[140] In A v Boulton , a Full Court held that the ACC Act did manifest an intention to abrogate, by necessary implication, the privilege against self-incrimination. That was an unremarkable conclusion in light of the "use immunity" regime in respect of answers to an examiner's questions which might tend to incriminate the person or make the person liable to a penalty found in s 30(4) and 30(5) of the ACC Act. The presence of that regime in s 30 was consistent only with an intention by parliament that a tendency to incriminate or expose to penalty was not a basis for non-compliance with the generally stated obligation to answer an examiner's questions.

[141] The outcome in A v Boulton and a conception it was difficult to see any logical reason for Parliament to have abrogated the privilege against self-incrimination, while retaining spousal privilege, persuaded Dowsett J in Stoten , especially at [29]-[31], to hold that the ACC Act likewise abrogated spousal privilege.

[142] In S v Boulton , Jacobson J at [143] expressed his agreement with these views. His Honour regarded the privilege against incrimination of a witness's spouse as "an extension of the privilege against self-incrimination": at [144]. His Honour expressed the view (ibid), "similar policy considerations underlie the existence of the spousal privilege as those which explain the privilege against self-incrimination. These considerations are confirmative with public opinion in the abhorrence of seeing one spouse testify against the other, and the encouragement of persons to gave testimony" citing in this regard Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 484-6 ; [1978] 2 All ER 136 at 138-41 ( Hoskyn ) per Lord Willberforce and J D Heydon and D Byrne, Cross On Evidence , Butterworths, Looseleaf Service, at para 25.150.

[143] Also influential for Jacobson J, as it had earlier been for Dowsett J in Stoten , was the analysis undertaken by Kenny J in A v Boulton of how s 30 of the ACC Act evolved into its present form, including her Honour's reference to secondary, explanatory materials. These were said to underscore an intention on the part of parliament to abrogate all privileges, not just the privilege against self-incrimination, and save that, subject to s 30(3), legal professional privilege was expressly not affected. Thus, though A v Boulton expressly concerned only the question of whether the privilege against self-incrimination had been abrogated, Jacobson J considered that the spousal privilege also had been abrogated. It was this reasoning that was embraced by the learned trial judge and, on the appeal, by Mr Boulton and the ACC.

[144] In contrast, in S v Boulton , Black CJ (at [52] and at [53]) took as his starting point two propositions, each of which was unanimously accepted by the Queensland Court of Appeal in Callanan v B [2005] 1 Qd R 348 ; [2004] QCA 478:

(a)

that spousal privilege was capable of applying in non-judicial proceedings; and

(b)

that spousal privilege was a distinct privilege that is that spousal privilege was distinct both from the privilege against self-incrimination and from legal professional privilege.

[145] I note that, in this appeal, the ACC did not dispute that spousal privilege was capable of applying in non-judicial proceedings. Its case was that what would otherwise have been its application to the examination by Mr Boulton had been abrogated by s 30 of the ACC Act.

[146] Having enunciated these two propositions, Black CJ accepted (at [56]) that there may be force in the submission advanced on behalf of the appellant, S, that Dowsett J had erred in Stoten in treating spousal privilege as a species of the privilege against self-incrimination. For reasons which will emerge, I agree with that observation as I do generally with the reasons of Black CJ on the question of abrogation.

[147] The Chief Justice then noted that the ACC Act did not expressly abolish spousal privilege. His Honour adverted to the reasons of Kenny J in A v Boulton in respect of why it was that the privilege against self-incrimination had, by necessary implication flowing from the "use immunity", been abrogated and expressed agreement with this conclusion. While the Chief Justice acknowledged (at [58]) that "the language of s 30(2) is apt to create not only a general but also an unqualified obligation to provide answers when required ( A v Boultonat [59])", he added (ibid):

I would be slow to conclude that this provision alone provides a necessary implication that the privilege has been abrogated, especially in the absence of any clear demonstration that the Parliament directed its attention to the privilege in question. It is only if the present privilege is conceived of as simply an extension of the privilege against self-incrimination that it is difficult to find a reason for Parliament to have abrogated the core privilege yet retained its extension.

Had the question been necessary to decide, and on the basis of his conception that it was separate and distinct from the privilege against self-incrimination, Black CJ would have held that the language of s 30 was not apt to abrogate a fundamental right to which parliament did not turn its attention when enacting that provision. Mrs Stoddart embraced the reasoning of Black CJ in her submissions on the appeal: S v Boultonat [59].

[148] In Callanan v B a like controversy to the present was presented but in the different statutory context of the Crime and Misconduct Act 2001 (Qld) (the CMC Act). In that case, too, the requirement of Mr Callanan, an inquisitor such as Mr Boulton in the present case, for the answering of his questions was met with a claim by Mrs B that she was not obliged so to do on the basis of spousal privilege. The outcome of the appeal was that the CMC Act was held not to abrogate spousal privilege. The language adopted by the Queensland Parliament in the CMC Act in respect of examinations is different to that found in the ACC Act. While the case exemplifies an approach to statutory construction which is in conformity with the insistence on unmistakable clarity evident in the passage which I have quoted from Coco v R , its importance for present purposes, as Black CJ clearly apprehended in S v Boulton , lies in the two propositions concerning spousal privilege which were unanimously accepted by the members of the Court of Appeal.

[149] As the application of spousal privilege to non-judicial proceedings was not controversial in the present appeal, it is whether spousal privilege is truly distinct from the privilege against self-incrimination that warrants more critical examination.

[150] Before so doing, one matter adverted to in the course of Mrs Stoddart's submissions concerning the outcome in Callanan v B and the differing views as to abrogation evident in S v Boulton should be mentioned, if only to negate its relevance. It is true that, if the views of Jacobson and Greenwood JJ in S v Boulton concerning abrogation by the ACC Act are correct, the practical result may be that in those cases in which there may be an overlap of investigatory authority between the ACC and the Queensland Crime and Misconduct Commission (CMC), the inability of the CMC to force one spouse to incriminate another at one of its examinations may be subverted by an ability on the part of the ACC so to do at one of its examinations. That though would provide no basis on which not to give effect to the language of the ACC Act if, with unmistakable clarity, it abrogated spousal privilege.

[151] In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 516 ; 118 ALR 392 at 418 (fn 60) Brennan J (as his Honour then was) allowed in passing that the privilege against self-incrimination might extend to the protection of spouses. It was not necessary for the purposes of that case for his Honour further to consider that subject. That was because the question in that case was directed to whether the privilege against self-incrimination was available to corporations, a question resolved in the negative.

[152] Later, whether spousal privilege did exist at common law and whether it was a privilege separate and distinct from the privilege against self-incrimination was the subject of what has proved to be an influential article by Mr D Lusty, "Is there a Common Law Privilege Against Spouse-Incrimination?" (2004) 27(1) UNSWLJ 1. He concluded that there is such a privilege and, significantly for present purposes, that it is separate and distinct from the privilege against self-incrimination and of greater antiquity in origin. In Callanan v B at [10] no lesser legal scholar than McPherson JA (with whose reasoning McMurdo P and Jerrard JA expressly agreed) described Mr Lusty's conclusion as one supported by "cogent authority and careful research". I agree. Also like McPherson JA, I agree with Mr Lusty's conclusion and for like reasons to those given by his Honour.

[153] As Mr Lusty demonstrates in his article, an observation made by Bayley J in R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194 at 200-201 ; 105 ER 1215 at 1217-18 ( All Saints Case ) tells in favour of spousal privilege as an independent, even then long recognised, common law privilege:

It does not appear that the witness objected to being examined, or demurred to any question. If she had thrown herself on the protection of the court on the ground that her answer to the question might criminate her husband, in that case I am not prepared to say that the court would have compelled her to answer; on the contrary I think she would have been entitled to the protection of the court.

This observation was regarded as authoritative by a leading 19th century commentator on the law of evidence: Pitt Taylor, A Treatise on the Law of Evidence (1848) Vol 1 s 997 and by Griffith CJ in Riddle (at CLR 627-8; ALR 105-6) who there described Bayley J as "a judge of very great experience and learning". Later again, the observation made by Bayley J in All Saints Case was referred to with evident approval by each member of the majority in Hoskynat AC 485; All ER 139 per Lord Wilberforce (with whom Lord Keith of Kinkel agreed), at AC 491; All ER 145 per Viscount Dilhorne and at AC 496; All ER 149 per Lord Salmon (who described Bayley J as "a master of the common law") and even, in dissent, by Lord Edmund-Davies (at AC 502; All ER 155) who regarded the observation as one concerned with privilege and correct. The favourable reference to that observation by Griffith CJ in Riddle was expressly noted with apparent approval by Lord Wilberforce and by Viscount Dilhorne.

[154] Mr Lusty (at 20) expresses the following opinion in relation to Hoskyn :

The immense relevance of the judgments in Hoskyn to the topic of this article is twofold. First, the unanimous endorsement of Bayley J's dicta in All Saints is the next best thing to an express ruling that there is a common law privilege against spouse-incrimination. Second, the majority's conclusion that authorities evidencing this privilege were equally demonstrative of a rule of spousal noncompellability suggests that the general statements of principle enunciated in Leach, in relation to the latter, apply with equal force to the former. The Hoskyn majority, correctly it is submitted, treated the two as synonymous in terms of basic principle. It follows, in this author's opinion, that in England the privilege against spouse-incrimination is a fundamental common law right, which can only be removed "by a clear, definite, and positive enactment"

Leach , a case referred to in this passage, including in the concluding quoted remark, concerned whether, on its true construction, s 4 of the Criminal Evidence Act 1898 (UK), which provided that in respect of a class of cases delineated in its Schedule "The husband or wife ... may be called as a witness either for the prosecution or defence and without the consent of the person charged", rendered a spouse a compellable witness, as had been held below. It was unanimously held, without any of their Lordships feeling any need to cite authority for the conclusion, that the effect of the statute was not to abrogate a longstanding common law prohibition against compelling one spouse to testify against another. I agree with Mr Lusty's analysis of Hoskyn and Leach .

[155] Mr Lusty demonstrates and each of the members of the Court of Appeal in Callanan v B accepted that the common law recognised spousal privilege long before it recognised the privilege against self-incrimination. The latter was only developed in the 17th century in response to the excesses of the Star Chamber, as Jacobson J noted in S v Boulton (at [146]).

[156] In my opinion, the features of s 155 of the Trade Practices Act which led the High Court in Daniels case to conclude that legal professional privilege had not been abrogated by implication are not materially different from features evident in s 30 of the ACC Act. The following passage from the joint judgement of Gleeson CJ, Gaudron, Gummow and Hayne JJ in that case (at [34]) is apposite by analogy:

[34] There is, in our view, only one aspect of s 155 which positively suggests a legislative intent to effect an abrogation of legal professional privilege, namely, the express preservation, in subs (7A), of the privilege attaching to Cabinet documents and deliberations. However, very little, if anything, can be implied from the express preservation of that privilege in a context in which there is an express abrogation of the privilege against self-incrimination. Moreover, if any such implication could be made by application of the maxim expressio unius est exclusio alterius -- a maxim upon which, it has often been pointed out, it is dangerous to rely -- it could hardly be said that it was a necessary implication. [Footnotes omitted.]

In like fashion, the evident abrogation by s 30 of the ACC Act of the privilege against self-incrimination and the statement in s 30(9) as to s 30(3) not affecting the law with respect to legal professional privilege does not carry with it the necessary implication that spousal privilege, any more than any other privilege not mentioned, has been abrogated. Denying an abrogation of this privilege does not render the general obligation to answer devoid of content: Daniels' caseat [24] and [43].

[157] The statements in secondary materials concerning what became s 30 are, at best, neutral, in my opinion. If anything, what they really reveal is that parliament did not turn its mind to spousal privilege at all.

[158] It is not, with respect, illogical to concede that s 30 of the ACC Act has abrogated the privilege against self-incrimination and to hold against an abrogation of spousal privilege by necessary implication. The latter is a distinct privilege, not a mere emanation of the privilege against self-incrimination. Further, the end served by spousal privilege is different, even though the effect of a claim is to deny what may otherwise be the reception of a particular body of incriminating testimony. Moreover, the rationale for spousal privilege, even today, is more than just a pragmatic acceptance of an inherent likelihood of perjury if spousal compulsion were countenanced. That end and that rationale remain a recognition of the continuing value to our society of the marital relationship. It bears remembering that, even though the Family Law Act 1975 (Cth) abolished fault as a ground of divorce, in providing in s 48 that 12 months separation would be sufficient to establish the sole recognised ground of irretrievable breakdown of the marriage, the parliament nonetheless qualified that by providing, by s 48(3), that a divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. That is hardly consistent with a diminution in the opinion of parliament of the worth of the marital relationship. It is one thing to require a person to incriminate him or herself before an examiner with the benefit after objection, of use immunity. It is quite another to require one spouse to incriminate the other. The impact that this type of compulsion may have on a marriage needs no elaboration.

[159] It is in this context that the importance of Leach for present purposes becomes evident. Its importance lies in the vehemence of their Lordships' insistence that the common law position could only be changed by definite and certain language. I am particularly attracted to the following statement by the Earl of Halsbury (at 311):

If you want to alter the law which has lasted for centuries and which is almost ingrained in the English Constitution, in the sense that everybody would say, "To call a wife against her husband is a thing which cannot be heard of," -- to suggest that it be dealt with by inference, and that you should introduce a new system of law without any specific enactment of it, seems to me to be perfectly monstrous.

While it might today be expressed in gender neutral terms, I doubt that, a century later, most Australians would disagree with this sentiment, even if they were apprised of the purposes of the ACC Act. Spousal privilege is no less important than legal professional privilege. If it is to be abolished to serve the purposes of the ACC Act that is an issue which ought directly to be confronted by the parliament.

[160] As to the remark made in passing by Hayne J in the course of submissions on the special leave application in S v Boulton , I mean no disrespect to his Honour or to the learned trial judge in observing that statements made in the course of argument by a judicial officer do not constitute a precedent. Two answers which might be given to the question posed though. First, for reasons given above, spousal privilege has a different origin to the privilege against self-incrimination and serves a different end, even though the effect of claiming it may be similar, that is relevant evidence is not heard by the tribunal of fact or inquisitor. Second, in abrogating the privilege against self-incrimination, s 30 of the ACC Act nonetheless confers a limited use immunity on the person who has claimed that privilege. It would be incongruous in that circumstance to construe s 30 as abrogating spousal privilege even though there is no limited use immunity. Even though one party to a marriage, if charged, could rely on the limited use immunity in the circumstances for which s 30 provides, the evidence given at an inquiry by the other spouse would not be subject to any such immunity.

[161] Unlike in S v Boulton , the issue of whether the ACC Act effects abrogation has now been raised in the different context of an acknowledged common law privilege of great antiquity and, in my opinion, enduring and fundamental importance. It is in that context that the issue must be decided. For the reasons given above, my opinion is that the ACC Act does not abrogate spousal privilege.

[162] It follows that I consider that Stoten was incorrectly decided.

[163] The appeal should be allowed and the judgement below set aside. In lieu thereof, it should be declared that the common law privilege against spousal incrimination has not been abrogated by the ACC Act.

[164] Mrs Stoddart also sought injunctive relief in the following terms, "An injunction restraining the Examiner of the Australian Crime Commission from questioning her in relation to matters concerning Ewan Alisdair James Stoddart". That form of relief is too widely stated. If, upon any resumption of the examination, Mr Boulton were to ask Mrs Stoddart a question which might tend to incriminate her husband and if she objected to answering the same it would follow from the declaration which I propose that the court make that Mr Boulton would have no lawful authority to require her to answer that question. Though he was an active party in the appeal I am not persuaded, as presently advised, that he would do other than act in accordance with the law as declared by this court. The record of the examination on 3 April 2009 reveals that Mr Boulton did formally rule that the ACC Act abrogates spousal privilege. In these circumstances, the only ancillary relief called for is an order setting aside that ruling. I would therefore, as a matter of discretion, decline to grant an injunction.

[165] Costs should follow the event.