DFC of T v DE VONK

Judges:
Foster J
Hill J
Lindgren J

Court:
Full Federal Court

Judgment date: Judgment delivered 4 December 1995

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Foster J

I have had the advantage of reading in draft form the judgment of Hill and Lindgren JJ. I agree with their Honours' conclusion that the respondent is not entitled to refuse to answer questions that may be put to him by officers of the Australian Taxation Office pursuant to the notice served upon him under s 264 of the Income Tax Assessment Act 1936 (Cth) (``the Act '') on the ground that his answers might tend to incriminate him. I am satisfied that the privilege against self- incrimination has been abrogated by the combined operation of s 264 of the Act and ss 8C and 8D of the Taxation Administration Act 1953 (``the Administration Act '').

Hill J reached this conclusion in an earlier decision in
Stergis v F of T 89 ATC 4442 , and I am, with respect, quite satisfied that his Honour's decision was correct. I am similarly satisfied that Wilcox J correctly followed Stergis in
Donovan v FC of T 92 ATC 4114 .

I agree that the removal of the words ``just cause and excuse'' from s 224 of the Act at the time of the enactment of the new ss 8C and 8D of the Administration Act , and the inclusion in those sections of the words ``to the extent that the person is capable of complying with it'' clearly exhibited the legislature's intention to abrogate the privilege against self-incrimination in relation to compliance with notices served pursuant to s 264. The latter phrase has been most explicitly dealt with in the judgment of Mason ACJ, Wilson and Dawson JJ in
Pyneboard Pty Ltd v Trade Practices Commission & Anor (1982-1983) 152 CLR 328 , a case concerning the construction of s 155(5) of the Trade Practices Act 1978, in which the question of the availability of the privilege also arose. Their Honours said at 343: -

``It is significant that sub-s. (5) makes it an offence for a person to refuse or fail to comply with a notice under sub-s. (1) `to the extent that the person is capable of complying with it' for these words in themselves are quite inconsistent with the existence of a privilege entitling the

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ATC 4822

recipient of a notice to refuse to comply, whether on the ground that compliance might involve self-incrimination or otherwise.''

I am satisfied, as was Wilcox J in Donovan , that the same phrase was later incorporated into the new ss 8C and 8D with the intention that it should likewise abrogate the privilege as a defence to those sections. Of course, the basic question still remains whether this intention has, as a matter of construction, been realised.

It was unsuccessfully argued before Carr J, from whose decision this appeal has been brought, that in the context of ss 8C and 8D the phrase was not apt to exclude the privilege and that Stergis and Donovan had been incorrectly decided.

It was submitted before this Court that these three first instance decisions should be overruled. The same arguments were advanced that had been rejected by Carr J. Stated summarily, these were that: (a) the words ``to the extent that the person is capable of doing so'' did not, as a matter of construction, exclude reliance upon self-incrimination, (b) in Stergis and Donovan reliance had erroneously been placed upon the explanatory memorandum circulated in relation to the proposed new sections 8C and 8D, (c) the defence of self- incrimination could only be abrogated by express words and (d) the observations in Pyneboard cited above were obiter and should not be followed outside the ambit of s 155 of the Trade Practices Act 1974.

I am satisfied that Carr J was correct in rejecting these submissions and in following Stergis and Donovan . His Honour dealt with the submissions (at ATC p 4545) as follows: -

``Mr Martella submitted that Stergis and Donovan were incorrectly decided. He submitted that the words `to the extent that the person is capable of doing so' leave room for the assertion that a person is not capable of doing so because the answer to the questions may lead to self-incrimination. The words `extent' and `capable' were, so it was submitted, words of degree. I reject that submission for two reasons. First, the word `capable' in this context must mean `having the ability, power or fitness for some... activity' (the New Shorter Oxford English Dictionary) or `having the ability, strength' (the Macquarie Dictionary). The fact that his answers may tend to incriminate him does not, in my view, render Mr De Vonk incapable of answering the questions. Secondly the submission is squarely to the contrary of the passage from the judgment of Mason ACJ, Wilson and Dawson JJ. in Pyneboard at p. 343 which I have set out above.

Next Mr Martella criticised the resort by Hill J. in Stergis to extrinsic material, being the explanatory memorandum. Hill J. simply referred to the explanatory memorandum in passing and my assessment of his Honour's conclusion is that it was not substantially based upon the content of that memorandum. In any event such resort is permissible to confirm that a literal meaning was intended: s. 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth). See also Pearce: `Statutory Interpretation in Australia' (3 ed) para 3.18 and the cases there cited.

Mr Martella submitted that the observations in Pyneboard were obiter dicta because the issue in that case was whether the privilege against being required to expose oneself to civil liability for penalties had been abrogated. Exposure to self-incrimination was not in issue....

In any event it is not necessary for me to decide whether the passage at p. 343 in Pyneboard forms part of the ratio of that case because, with the greatest respect, in my view it is quite clearly correct and I should follow it.''

I fully agree with his Honour. Once it is accepted, as it must be, that despite the fundamental nature of the privilege against self- incrimination, it can, nevertheless, be excluded otherwise than by the use of express language, then the phrase ``to the extent that the person is capable of doing so'' achieves that result. Resort to the explanatory memorandum which indicated the intention to exclude the privilege, is, in my view, unnecessary. For the reasons given by Carr J and the reasons given in Stergis and Donovan the language chosen must be viewed as inconsistent with the availability of the privilege. It does not matter whether the passage from Pyneboard is directly binding on this Court or is merely highly persuasive. The language of the statute speaks for itself.

The respondent also sought a reversal of his Honour's finding that it was not established on

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ATC 4823

the facts that the notice served under s 264 was issued for an improper purpose. Hill and Lindgren JJ agree with this finding. I am also satisfied that there are no grounds on which to reverse his Honour's finding. I do not wish to add to the reasons given by Hill and Lindgren JJ in this regard.

It was also submitted before this Court, as before Carr J, that the provisions of Article 14(3)(g) of the International Covenant on Civil and Political Rights required that the phrase under consideration should be construed so as to accommodate the privilege against self- incrimination. This Covenant was ratified by Australia on 13 November 1980 but has not been incorporated into Australian municipal law. The respondent relied upon the decision of the High Court in
Minister for Immigration v Teoh (1995) 128 ALR 353 for the proposition that the ratification of an international treaty is sufficient to found a legitimate expectation that a decision-maker will act in conformity with it. I agree with Carr J and Hill and Lindgren JJ, for the reasons their Honours have given, that the provisions of the Covenant are not relevant to the question with which we are concerned in this case.

I, therefore, agree that the cross-appeal should be dismissed.

I turn, then, to the appeal. The appellant challenges Carr J's decision that ss 8C and 8D of the Administration Act do not prevent a person from refusing to answer questions and provide information sought pursuant to a notice under s 264 of the Act , on the ground that a demand for compliance could amount to contempt of court. His Honour reached this decision in the context of an admission by the appellant that the intended questioning of the respondent would cover factual areas which were germane to the criminal proceedings already brought against him in the Western Australian District Court. The nature of these proceedings are set in the judgment of Hill and Lindgren JJ and I shall not further refer to them in these reasons.

Hill and Lindgren JJ agree with Carr J. I agree with their Honours' conclusions and with their reasons for reaching them. However, as this involves disagreement with the decision of Wilcox J in this regard in Donovan , I wish to make some brief observations of my own.

It is convenient to state some preliminary matters. First, the inquisitorial and investigative powers provided for by s 264 of the Act are clearly given only for the purpose of obtaining information for the collection and protection of the revenue. Indeed, it has been asserted on behalf of the appellant and accepted at first instance and in this Court, that the questioning of the respondent is intended only for these purposes. The use of these investigative powers for the collateral purpose of obtaining evidence for use in a prosecution already launched, would be an improper purpose and one which would vitiate the use of the power. It would not, in effect, be a use authorised by the Act . Of course, a finding was made by Carr J and which should be upheld by this Court that no such improper purpose exists in the present case.

The situation therefore exists that the appellant wishes to examine the respondent in circumstances where the respondent cannot claim the privilege against self-incrimination. The examination is to take place in private and in the absence of any improper purpose on the part of the examiner. It is submitted on behalf of the appellant that, in these circumstances, no question of contempt of the District Court prosecution proceedings can arise.

It must be noted, however, that neither in the proceedings before Carr J nor in the appeal before this Court, has the appellant been prepared to give an undertaking that the material it obtains in the investigation under s 264 of the Act will not be made available to the prosecution. It is conceded that by virtue of statutory provisions which, for present purposes, need not be examined, the information could be forwarded to the prosecution irrespective of the absence of any intention for the time being to do so. It was submitted, however, that any answers given by the respondent under the compulsion of s 264 could not find their way into evidence in the prosecution because they would not be ``free and voluntary''. It was further submitted that, in any event, these considerations could have no bearing upon the construction of the statutory language which, by necessary implication, excludes reliance upon the doctrine of contempt of court.

It is necessary to consider the major authorities to which Wilcox J had regard in Donovan and which were considered by Carr J at first instance. Before doing so, I find it convenient to observe that during the course of argument counsel for the appellant tended to

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ATC 4824

equate abrogation of the privilege against self- incrimination with exclusion of the contempt of court doctrine. He asserted that if the examinee were obliged to answer questions notwithstanding that the answers might incriminate him, then no contempt of court could arise from the putting of the questions, especially in circumstances where there was no ulterior purpose in the questioning. If it was intended to put this as a universal proposition, it cannot be accepted.

The privilege against self-incrimination is a fundamental safeguard given by the common law to an individual and can only be taken from him by the manifestation in statute of a clear legislative intention to do so. It is, nevertheless, personal to him. The doctrine of contempt of court, however, focuses upon a court's right and, indeed, its obligation, to protect the integrity of its operations and to prevent interference with its administration of justice. This may, of course, involve enforcing an individual's privilege against self-incrimination but it also encompasses a court taking other steps to ensure that its processes are not contaminated by unfairness. It does not follow, even where there is a statutory abrogation of the privilege against self-incrimination, that a court is not necessarily concerned to exclude other elements of unfairness or prejudice which may operate to the disadvantage of an accused contrary to the spirit of the common law.

It is clear from
Victoria v Australian Building Construction Employees' and Builders' Labourers Federation (1982) 152 CLR 25 that even in the absence of an intention to interfere with the course of justice, the establishment or continuation of an administrative inquiry will be a contempt if there is an actual interference with the administration of justice or ``a real risk, as opposed to a remote possibility'' of such an interference (see per Gibbs CJ at 56).

The case of
Hammond v The Commonwealth of Australia & Ors (1982) 152 CLR 188 is important for present purposes. It concerned s 6 of the Royal Commissions Act 1902 (Cth) which made it an offence for a witness before a Commission to refuse to answer any question relevant to the inquiry which was put to him by any member of the Commission. Section 6DD provided that any statement or disclosure made by such a witness in answer to such a question would not be admissible in evidence against him in any civil or criminal proceedings. It may be observed, therefore, that such a witness was in a better position than the present appellant. Although he was obliged by s 6 to answer questions, he was afforded a statutory safeguard against the use of his answers in other proceedings. In this case the appellant is provided with no such safeguard.

Hammond was committed for trial in April 1982 on a charge of conspiring with others to commit an offence against a law of the Commonwealth. In June 1982 he was called before a Royal Commission and asked questions about this conspiracy. It was held that, notwithstanding his answers would not be admissible in evidence against him, his examination before the Royal Commission would interfere with the due administration of justice. It is necessary to set out two passages from judgments in the case which have since been considered. The first is a passage from the judgment of Gibbs CJ (at 198): -

``Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. In the Builders Labourers' Case I expressed the opinion that, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings. Of course, the present inquiry is not simply into allegations against the plaintiff. It is an inquiry into alleged malpractices in connexion with the export of beef that are said to have caused immense damage to the reputation of our meat industry. It would be

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ATC 4825

neither necessary nor right to adjourn this inquiry because a prosecution had been commenced against the plaintiff. But the public interest can be met, and the interest of justice at the same time safeguarded, if the inquiry proceeds to its conclusions without further examination of the plaintiff.

I would therefore restrain the defendants from examining or resuming the examination of the plaintiff under the Commissions until the determination of the trial.''

The second passage comes from the judgment of Deane J (at p 206-207): -

``The mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court. For example, the existence of civil proceedings, in respect of certain alleged actions, will not ordinarily preclude proper administrative inquiries as to whether penal proceedings should be instituted in respect of those alleged actions. Thus, neither police inquiries nor committal proceedings constitute, in themselves, an improper interference with the proceedings of a court hearing a civil claim based on the subject matter of such inquiries.

On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court.

...

It was submitted on behalf of the Commonwealth that it has not been shown that the inquiry by the Royal Commissions into the plaintiff's involvement in matters the subject of criminal proceedings involves any substantial risk of serious injustice or serious prejudice. That submission struck me as unattractive at the time when it was made. I have found that it deteriorates upon closer consideration. The pending criminal proceedings against the plaintiff are brought by the Commonwealth. The parallel inquisitorial inquiry into the subject matter of those proceedings is being conducted under the authority of the Commonwealth. As I have said, the conduct of that inquisitorial inquiry is to no small extent following the general form of a criminal trial shorn of some of the privileges and safeguards which protect an accused in such a trial. The plaintiff has been compelled to be sworn as a witness and has been subjected to questioning in the course of that inquiry. Indeed, his refusal to answer questions has led to his being charged, on the information of an officer of the Australian Federal Police, with an offence under the Royal Commissions Act 1902 (Cth). It is not, in my view, necessary to go beyond these things. In themselves, they constitute injustice and prejudice to the plaintiff.''

It is to be noted that Deane J made these observations notwithstanding that the examination before the Royal Commission was to be conducted in private and in circumstances where the witness's answers could not be given in evidence in the criminal proceedings. His Honour was obviously of the view that the ``parallel inquisitorial inquiry'', in which the witness was compelled to answer questions in relation to the same subject matter, constituted a sufficient interference with the administration of justice in the criminal proceedings to warrant restraint on the basis of contempt of court.

There was some debate before us as to whether his Honour had in mind that there could be, in some way, some positive effect, tangible or intangible, of the inquisitorial administrative procedures upon the accusatorial curial proceedings - indeed, the concept of ``osmosis'' was invoked. I am confident, however, that his Honour was pointing to no more than what he considered to be the clear

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ATC 4826

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

As pointed out by Carr J, the present case would seem to provide an even stronger example of such injustice insofar as the respondent is provided with no statutory safeguard in respect of his compulsory answers. Why, then, should not the respondent receive the same protection as the witness in Hammond ? Wilcox J in Donovan held that an examinee answering questions pursuant to s 264 of the Act in circumstances where she was charged with offences in respect of the same subject matter, could not invoke the aid of the contempt of court doctrine. His Honour was of the view that a later decision of the High Court in
Hamilton v Oades (1988-1989) 166 CLR 486 which had considered Hammond , required this decision.

It is convenient, in the first instance, to set out the passage from the judgment of Wilcox J in Donovan (at 4120) in which his Honour deals with these questions: -

``During the course of the argument, I felt that the applicant might be on firmer ground in relation to her contempt of court argument. If they were to be applied to this case, the statements of principle of Gibbs CJ and Deane J in Hammond , both quoted above, would lead to the conclusion that the questioning of the applicant under s. 264 on matters directly touching the pending criminal proceedings would constitute a contempt of court, notwithstanding that the s. 264 interrogation is conducted in private.

I leave aside the questions whether the principle was expressed too widely in Hammond , as to which see the comment of Dawson J in Hamilton v Oades at 509, and whether the statement of Gibbs CJ is to be read as dependent on the intention lying behind the questions, as to which see Toohey J in the same case at 515-516. These are matters for the High Court, not for me. It is sufficient for me to say that, upon reflection, I believe that the contempt of court submission must share the fate of its predecessor. It is now clear that the contempt of court doctrine is also subject to legislative intent. The reasons which impel the conclusion that Parliament intended s. 264 to operate notwithstanding the possibility of self-incrimination apply equally to contempt of court. If it is predictable that taxation investigations will often delve into areas of criminal conduct, it is equally predictable that, on some occasions, charges will already be pending against persons sought to be questioned. The rationale of Hamilton v Oades applies to this case.''

It is this passage which currently stands as authority for the proposition that ss 8C and 8D of the Administration Act exclude from consideration the doctrine of contempt of court in relation to examination of persons pursuant to s 264 of the Act .

The next paragraph of his Honour's judgment makes it clear that, in his Honour's view, the Court can retain a measure of control over the course of questioning in order to ensure that the powers given by s 264 are not abused. I take this as meaning that the Court, if its jurisdiction is properly invoked, can restrain the use of the power for an improper purpose, such as seeking to assist a prosecution rather than advance the interests of the revenue. Such a use of the section would, of course, be ultra vires the Act and subject to restraint on that basis. It would, as a matter of principle, have nothing to do with contempt of the court in which the prosecution was being brought.

His Honour also made reference to the Court's power to exercise supervision in circumstances where an undertaking has been given on behalf of the questioning authority that it will not disclose to the prosecution any information obtained under the compulsory process. As I have already pointed out, no such undertaking has been given in the present case. Indeed, it has been sought and refused.

The question, therefore, is whether this Court accepts or differs from the opinion of Wilcox J that the relevant wording excludes, as a matter of construction, the application of the contempt doctrine. His Honour observed in the passage cited that it was ``now clear that the contempt of court doctrine is also subject to legislative intent''. There can, of course, be no doubt that the legislature could exclude the doctrine by express words. It has not done so in ss 8C and 8D. The question is whether, as a matter of

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ATC 4827

construction, such an exclusion must necessarily be implied?

Indeed, in Hamilton , Mason CJ (at 495) said in relation to the implied abrogation of the privilege against self-incrimination: -

``The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may none the less be demonstrated by reference to express words or necessary implication.... But the privilege is not lightly abrogated, and the phrase `necessary implication' imports a high degree of certainty as to legislative intention.''

As already discussed, the concept of contempt of court embraces many fundamental considerations, of which protection from self- incrimination may be one. In my view, an even higher degree of certainty as to legislative intention is necessary before any statutory wording can be held to exclude that doctrine.

It is necessary, then, to consider Hamilton and its rationale in order to determine whether it requires the result attributed to it in Donovan .

In the first place, Hamilton involved the construction of s 541 of the Companies (New South Wales) Code. The section is quite different from the sections under consideration in this case. The effect of the relevant sub- sections is adequately set out in the headnote, which reads as follows: -

``Section 541(3) of the Companies (New South Wales) Code empowered the Supreme Court to order that a director of a company be examined on any matters relating to the affairs of the company. Sub-section (5) empowered the Court to give such directions as to the matters to be inquired into and as to the procedure to be followed as it thought fit. Sub-section (12) provided that: `A person is not excused from answering a question put to him at an examination... on the ground that the answer might tend to incriminate him, but, where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence against him in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer.' Sub-section (8) made it an offence to refuse or fail to answer a question.''

It is to be observed that the examination contemplated by the section is to be conducted by the Court and under its control and direction; the privilege against self-incrimination is expressly abrogated; the answering of questions is compulsory; and, subject to the appropriate claim being made, the answers are not admissible in criminal proceedings against the examinee. The structure, operation and underlying purpose of the section are clearly different from the sections involved in the present case.

In Hamilton an order had been made pursuant to s 541(3) for the examination in the Supreme Court of New South Wales of a company director in relation to the affairs of the company which had been placed in liquidation. The director had been previously charged with a number of offences arising out of his association with the company. When the examination commenced before a Deputy Registrar the director made application for a direction pursuant to s 541(5) that the examination be restricted to those matters which were not the subject of the pending criminal proceedings. This direction was refused. The refusal was upheld by a single judge but an appeal from that decision was allowed by the Court of Appeal which ordered that the director was ``not to be compelled to answer any question the answers to which may tend to incriminate [ him] in respect of any of the criminal charges... and either (a) concern those facts which constitute the ingredients of the offences the subject of the said criminal charges; or (b) which would tend to disclose a defence to the said criminal charges'' ((1987-1988) 13 ACLR 281-282). The appeal to the High Court was allowed and the order of the Court of Appeal set aside.

It is necessary to consider the individual judgments in the High Court in order to arrive at a conclusion as to whether they have any bearing upon the question in this case.

Mason CJ said of the order of the Court of Appeal (at 492) that its substantial effect was ``that the respondent need not answer questions the answers to which may tend to incriminate him in relation to the offences charged and that the examination for practical purposes is stayed pending the determination of the charges''.

His Honour went on to indicate that the Court of Appeal had not made the order on the basis that there had been any abuse of the process

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ATC 4828

through the use of the proceedings for an improper purpose, but had granted relief on the basis of its ``inherent power to control its own proceedings, with the object of avoiding the risk of injustice being caused by such proceedings''.

His Honour then went on to consider what was ``the risk of injustice'' with which the Court of Appeal was concerned. It is, in my view, apparent from his Honour's consideration of this question that he was concerned to demonstrate that the abrogation of the privilege against self-incrimination operated to deny to the examinee not only the right to withhold answers which might directly incriminate him ``out of his own mouth'', but also to withhold material of a ``derivative'' kind which ``may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character'' (per Lord Wilberforce,
Rank Film Distribution Limited v Video Information Centre [ 1982] AC 380 at 443 ). Once the privilege was abrogated by s 541(12), the director could not refuse to answer questions which might produce answers of the latter type. Consequently, it did not lie within the inherent power of the Supreme Court to make an order which would contradict the power given by the statute.

I am satisfied that his Honour was not directing his attention to any wider question, such as whether the section, as a matter of construction, excluded from consideration any operation to be accorded the doctrine of contempt of court. It must also be borne in mind that the section in question empowered an examination of a person where it relevantly appeared that he ``may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to that corporation'' (s 541(2)(a)). Further, subject to the rights given by sub-s (12), the examinee could be ordered to sign a written record or transcript of his evidence which might later be used in evidence against him in any legal proceedings (sub-ss (13) and (14)). One of the purposes of the compulsory examination, clearly enough, was the acquisition of information from a person with a view to using that information for the purpose of his prosecution for offences arising out of his association with the company. In these circumstances, the right to claim the privilege against self-incrimination would defeat one of the statute's major purposes. The Court's inherent right to control its process could not operate, in effect, to restore the privilege which the statute had abrogated.

Notwithstanding these considerations Mason CJ did foresee some scope for the Court's inherent powers. He said (at 498-499): -

``The court retains its power to give directions and to restrain questions in cases where the examination is being conducted for an improper purpose or constitutes an abuse of process: s. 541(5). Thus if a liquidator were to conduct an examination directed to compel the examinee to disclose defences or to give pre-trial discovery, or to establish guilt, this examination may be restrained as an abuse of process: Hugh J. Roberts (1970) 91 W.N. (N.S.W.), at p. 541; Huston v. Costigan (1982) 45 A.L.R. 599, at p. 563; Re Gordon (1988) 18 F.C.R. 366. But this is not the present case.

Again, the inherent powers of the court are retained and the duty of the court to ensure the proper administration of justice may require that orders be made of types other than those which restore the privilege against self-incrimination or which serve to defeat the purposes of the section. For example, an examination may need to be held in private, or the publication of names or evidence restricted: Huston v. Costigan . Or it may be that the court in conducting the examination may feel it necessary, in accordance with the statutory purpose, not to permit a particular question to be asked which would prejudice the examinee's fair trial: Mortimer v. Brown (1970) 122 C.L.R., at pp. 502-503; Barton v. Official Receiver (1977) 13 A.L.R. 238, at pp. 289-290. But the types of questions which may warrant such a course should not be predicted by a court in advance of their being asked: Barton , at p. 290. None of these situations encompasses the present case because the orders the subject of this appeal are not orders of the kind permissible under the section.''

Although the first paragraph of this quotation appears to relate to the concept of abuse of process or unauthorised or impermissible use of the section, the second paragraph, in my view, certainly imports considerations that relate to the concept of contempt of court. In other words, the Chief Justice found room, even in the application of the stringent provisions of s

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ATC 4829

541, for the potential application of the rules of contempt. It certainly does not appear that he regarded the section as impliedly excluding them.

Deane and Gaudron JJ in a joint dissenting judgment would have upheld the orders made by the Court of Appeal. In their view the express abrogation of the privilege against self- incrimination effected by the section did not operate to prevent the making of the orders appealed against. This was because, in their Honours' view, ``the injustice occasioned when an examination will involve matters the subject of pending criminal charges is not only that the examination arises out of or will disclose the commission of an offence, but that the examination will impose an unfair burden upon the examinee in defending the pending charges'' (at 503). Their Honours clearly recognised that the section did not operate to exclude by implication these considerations which are germane to the concept of contempt of court. I do not understand this portion of their judgment to be in conflict with the portion cited from the judgment of the Chief Justice.

Dawson J in his judgment (at 508-509) appears to suggest that the passage cited above from the judgment of Gibbs CJ in Hammond may, as a result of the urgency of that decision, have been expressed too widely. However, I do not read anything in Dawson J's judgment to suggest that he was considering questions that fell outside the scope of the privilege against self-incrimination.

Again, in my view, the judgment of Toohey J illustrates that his Honour was directing his attention to the question whether the orders of the Court of Appeal could stand in the face of the clear abrogation by the statute of privilege against self-incrimination. His Honour was of the opinion that they could not. Questions could be asked of the examinee which bore directly or indirectly upon the offences with which he was charged. Even so, his Honour was of the view that questions could be vitiated by ``oppression or injustice'' and that `` [ c]learly, a question designed to elicit a direct admission of guilt would fall into this category'' (at 515). In his view, Hammond should be given a narrow interpretation to the effect that only questions designed to establish that the examinee is guilty of the offence charged, can lead to a real risk of interference with the administration of justice.

His Honour held, consistently with the other judgments of the Court, that ``in the face of a clear statutory abrogation of a privilege against self-incrimination, it is asking too much of the inherent jurisdiction of the Court to treat it as justifying a power to reject a question in examination merely because the answer may tend to incriminate the person being examined'' (at 516). However, his Honour said (at 517) `` [ a]s it happens, somewhat paradoxically, questions the answers to which would tend to disclose a defence to pending criminal charges are questions which might well fall within this area of discretion [ to exclude the question]. But it is not on the ground of self-incrimination, as suggested by the order of the Court of Appeal. It is because the disclosure may be unfair to the person being examined; equally, it may have no relevance to the area of inquiry''.

These passages indicate to me that his Honour was principally concerned with the question of self-incrimination. However, he foresaw the situation that even where the privilege had been abrogated, other grounds could exist of a discretionary kind based upon concepts of fairness and justice, whereby particular questions might be disallowed. There is certainly nothing in his Honour's judgment which suggests to me that where the privilege against self-incrimination has been abrogated by statute, it necessarily follows that, in circumstances where there are parallel criminal proceedings, considerations relating to contempt of those proceedings are also necessarily excluded.

A consideration of the judgments in Hamilton therefore satisfies me that the case is not authority for any proposition that the doctrine of contempt of court cannot coexist with the abrogation of the privilege against self- incrimination. In particular, it provides no rationale whereby the provisions of ss 8C and 8D of the Administration Act must necessarily be taken, as a matter of construction, to have excluded those considerations. Accordingly, I must respectfully disagree with the opinion of Wilcox J in Donovan and agree with the opinions expressed by Carr J at first instance and by Hill and Lindgren JJ in this appeal.

The respondent is entitled to rely upon the doctrine of contempt of court in the projected examination of him under s 264, even though he is not entitled to rely on the privilege against self-incrimination. As has been noted, it has

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ATC 4830

been stated on behalf of the appellant that should this Court come to this conclusion he would not seek to examine the respondent during the pendency of the criminal proceedings. There is, accordingly, no reason for the making of any coercive orders. Indeed, none are sought. The making of an appropriate declaratory order is not without difficulty and is also, in my view, unnecessary. I agree, for the reasons given by Hill and Lindgren JJ, that the second order and declaration made by Carr J should be set aside and that no declaration should be made by this Court. To this extent the appeal should be allowed.

I agree with the orders proposed by Hill and Lindgren JJ.