Stoddart v Boulton (Examiner, Australian Crime Commission) and Another
[2010] FCAFC 89(Judgment by: Spender J)
Stoddart
vBoulton (Examiner, Australian Crime Commission) and Another
Judges:
Spender JGreenwood 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
Judgment date: 15 July 2010
Brisbane
Judgment by:
Spender J
[1] I have had the benefit of reading in draft form the reasons for judgment of Logan J. I agree with his Honour's conclusion that spousal privilege has not been abrogated by s 30 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act).
[2] I am in general agreement also with Logan J's reasons for judgment for that conclusion, but wish to express in my own words the reasons for my agreement.
[3] In S v Boulton (2006) 151 FCR 364 ; (2006) 232 ALR 92 ; [2006] FCAFC 99, the Full Court of the Federal Court concluded unanimously that spousal privilege extended only to lawfully married, as opposed to de facto spouses. However, the court was divided in its observations, which were obiter dicta, concerning whether there had been abrogation of spousal privilege by s 30 of the ACC Act. Jacobson J, with whom Greenwood J expressed agreement, held that s 30 of the ACC Act did abrogate spousal privilege. Black CJ, on the other hand, expressed the view that spousal privilege had not been abrogated.
[4] 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.
[5] In the transcript of the unsuccessful application for special leave to appeal from the Full Court's judgment in S v Boulton , Hayne J 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 prescribes, 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.
[6] That observation by Hayne J influenced Reeves J at first instance in the present matter. Reeves J, in concluding that s 30 of the ACC Act did abrogate spousal privilege, said, (at [28]):
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 preservation of personal liberty.
[7] In my respectful opinion, these observations fail to appreciate that the obligation by the husband to answer is protected by the "use immunity" provision of the ACC Act, so that the personal liberty of the husband is not at risk. However, there is no "use immunity" of a husband for answers given by a wife, if spousal immunity is abrogated by the ACC Act.
[8] In Callanan v B [2005] 1 Qd R 348 ; [2004] QCA 478, the Court of Appeal in Queensland held that at common law a person was privileged from giving evidence incriminating that person's spouse, whether in judicial or investigative proceedings.
[9] The Court of Appeal followed Leach v R [1912] AC 305 at 309 ( Leach ); Hoskyn v Metropolitan Police Commissioner [1979] AC 474 ; [1978] 2 All ER 136; Trammel v United States (1980) 445 US 40 at 53; and Hawkins v Sturt [1992] 3 NZLR 602.
[10] The Court of Appeal further held that such privilege could be only overturned by a "clear, positive and definite enactment". The court applied Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; 43 ACSR 189 ; [2002] HCA 49 at [11], and followed Leachat 311, and Hawkins v Sturt [1992] 3 NZLR 602 at 610.
[11] The Court of Appeal concluded that the relevant provisions of the Crime and Misconduct Act 2001 (Qld) was not such an enactment.
[12] McPherson JA (with whom McMurdo P and Jerrard JA agreed) referred at [6] to a paper published by Mr David Lusty in 2004 in Vol 27 University of New South Wales Law Journal 1, entitled "Is there a Common Law Privilege against Spouse Incrimination?"
[13] McPherson JA then said (at [6]):
[6] Mr Lusty's answer, which he supports by cogent authority and careful research, is that the common law has recognised such a "spousal privilege" for a very long time, going back to the 17th century and beyond.
[14] McPherson JA expressed his conclusion at [8]:
[8] If, as I think, it is in the prevailing idiom a form of "free standing" privilege, there is therefore authority for saying that Mrs B. is entitled at common law to claim it in the investigation being conducted by Mr Callanan.
[15] McPherson JA, acknowledging that that privilege could only be overturned by a clear, definite and positive enactment, investigated the terms of the relevant section of the Crime and Misconduct Act and the definition of the term "privilege" in the statutory "Dictionary", and concluded, at [15]:
[15] ... the Act cannot be said to have overturned the principle that a wife is not to be compelled to give evidence against her husband by a "clear, definite and positive enactment", to adopt the terms used by Lord Atkinson in Leach v The King [1912] AC 305 at 311, and applied by Tomkins J. in Hawkins v Sturt [1992] 3 NZLR 602 at 610. Although there is no specific Australian authority precisely in point, the principle or rule of interpretation applied in those cases accords with the recent statement in the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; [2002] HCA 49 at [11], that 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.
[16] As Jerrard JA observed, at [22], the principle that "a wife cannot be compelled to incriminate her husband ... is far older than the principle against self incrimination".
[17] Spousal privilege is a distinct privilege, more ancient than the privilege against self-incrimination, and it is not a mere emanation of that privilege against self-incrimination.
[18] In S v Boulton , Black CJ accepted the view of the Queensland Court of Appeal in Callanan v B that the spousal privilege was capable of applying in non-judicial proceedings, and that spousal privilege was a distinct privilege, that is, that spousal privilege was distinct from both the privilege against self-incrimination and from legal professional privilege.
[19] I note that Reeves J in first instance held that spousal privilege existed at common law. There has been no notice of contention, or cross-appeal, by the respondent in respect of that finding. The only question on this appeal, therefore, is whether spousal privilege has been abrogated by s 30 of the ACC Act.
[20] The Full Court of the Federal Court (Beaumont, Dowsett and Kenny JJ) in A v Boulton (2004) 136 FCR 420 ; 207 ALR 342 ; [2004] FCAFC 101 concluded that the privilege of self-incrimination was taken away from an examinee by the ACC Act, although the Act provided limited compensation in the form provided by s 30(4) and (5) of the Act.
[21] Therefore, the privilege against self-incrimination, while it has been abrogated for the purposes of the ACC Act, has the "limited use" immunity conferred by s 30 of the ACC Act: no such "limited use" immunity applies to questions that a spouse is obliged to answer pursuant to s 30 of the ACC Act, if spousal immunity has been abrogated.
[22] The simple contention by the appellant in this case is that, the privilege against self-incrimination having been abrogated by s 30 of the ACC Act, spousal privilege is similarly abrogated, by necessary implication.
[23] I agree with the principles enunciated by Jacobson J in [121]-[127] of his Honour's judgment in S v Boulton , set out in [138] of the reasons for judgment on this appeal of Logan J.
[24] In my respectful opinion, the proper application of those principles mandate the conclusion that the privilege against spousal incrimination has not been abrogated by the parliament, either expressly or by necessary implication. Whether parliament even considered the question is unknown, and no more than the subject of speculation.
[25] On a proper application of those principles, the abrogation of spousal privilege "is not necessary to prevent the statute from being rendered inoperative, or meaningless, or from frustrating the evident statutory purpose".
[26] Quite simply, the common law privilege of spousal privilege, if it is to be abrogated, requires there to be a high degree of certainty as to the intention of the legislature. In my opinion, there is nothing to suggest that the legislature directed its attention to the question of abrogation of spousal privilege, and consciously determined that the privilege was to be excluded.
[27] In my opinion, this case is no different from Baker v Campbell (1983) 153 CLR 52 ; 49 ALR 385, or Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ; 192 ALR 561 ; [2002] HCA 49. In each of those cases, the general imperative language of the relevant statute was held by the High Court to be insufficient to abrogate a fundamental right, which was, in those cases, legal professional privilege.
[28] In Re Boulton ; Ex parte Beane (1987) 162 CLR 514 at 523 ; 70 ALR 225 at 231-2, Brennan J said:
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.
[29] In my judgment, the ACC Act does not abrogate spousal privilege, whether by necessary implication or otherwise.
[30] I agree with the orders proposed by Logan J.