Pyneboard Pty. Ltd. v Trade Practices Commission

152 CLR 328, 57 ALJR 236; 5 TPR 75; 45 ALR 609; [1983] ATPR 44,098 (¶40-341);

1983 WL 371129; 57 ALJ 475; 57 ALJ 419

Pyneboard Pty. Ltd. v Trade Practices Commission

Pyneboard Proprietary Limited Applicant, Appellant;

and

Trade Practices Commission and Another Respondents, Respondents.

Dunlop Olympic Limited and Another Applicants, Appellants;

and

Trade Practices Commission and Another Respondents, Respondents.

On appeal from the Federal Court of Australia.

20 October 1982, 21 October 1982

18 March 1983

Mason A.C.J., Murphy , Wilson , Brennan and Dawson JJ.

Trade Practices - Trade Practices Commission - Powers - Notice requiring supply of information and production of documents - Failure to comply on ground that information or documents might expose person receiving notice to civil penalty - Whether privilege against exposure to penalty applicable to non-judicial proceedings - Trade Practices Act 1974 (Cth), ss. 45, 76, 155.

Section 155(1) of the Trade Practices Act 1974 (Cth) authorized the issue of a notice in writing by a member of the Trade Practices Commission requiring a person - (a) to furnish to the Commission, in a specified way and within a time and manner specified in the notice, information; (b) to produce to the Commission, or a person specified in the notice acting on its behalf, documents; or (c) to appear before the Commission at a time and place specified in the notice to give evidence and produce documents, where the Commission, the Chairman or the Deputy Chairman had reason to believe that the person is capable of furnishing information, producing *329 documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act. Sub-section (7) stated that a person was not excused from furnishing information or producing or permitting the inspection of a document in pursuance of s. 155 on the ground that the information or document might tend to incriminate the person, but the answer by a person to any question asked in a notice under the section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, was not admissible in evidence against the person - (a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under s. 155; or (b) in the case of a body corporate - in any criminal proceedings other than proceedings under the Act. Section 76 provided for a pecuniary penalty for a contravention of, inter alia, s. 45.

A person or corporation served with a notice under s. 155 of the Trade Practices Act 1974 (Cth) requiring the furnishing of information or production of documents cannot refuse to comply with the notice on the ground that the information or documents might lead to exposure to civil liability to penalties under ss. 45 and 76.

So held by the whole Court.

Per Mason A.C.J., Wilson and Dawson JJ., Murphy and Brennan JJ. contra. The privilege against exposure to a penalty is not inherently incapable of application in non-judicial proceedings.

Decisions of the Federal Court (Full Court): Pyneboard Pty. Ltd. v. Trade Practices Commission (1982), 57 F.L.R. 368; 39 A.L.R. 565 and Dunlop Olympic Ltd. v. Trade Practices Commission (1982), 40 A.L.R. 367; 1 T.P.R. 223, affirmed.

APPEALS from the Federal Court of Australia.

Pyneboard Pty. Ltd., Dunlop Olympic Ltd. and K. G. Norrish were served with notices issued by the Chairman of the Trade Practices Commission under s. 155 of the Trade Practices Act 1974 (Cth) requiring them to furnish information and to produce documents relating to certain matters which constituted or might constitute contraventions of s. 45 of the Act. Pyneboard Pty. Ltd. applied to the Federal Court for declarations, inter alia, that the notice did not obligate it to furnish information or documents which might tend to expose it to a penalty. The application was dismissed by Fox J. and an appeal by the company to the Full Court (Northrop, Deane and Fisher JJ.) was dismissed (1). Dunlop Olympic Ltd. and Norrish made similar applications which were dismissed by Northrop J. An appeal to the Full Court (Fox, Deane and Fisher JJ.) was dismissed (2). The applicants then appealed by special leave to the High Court. The appeals were heard together.

A. H. Goldberg Q.C. (with him D. Shavin), for the appellant Pyneboard Pty. Ltd.The *330 privilege against exposure to a pecuniary penalty is not abrogated by the Act. It applies to corporations: Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd.(3); Colne Valley Water Co. v. Watford St. Albans Gas Co.(4); Reg. v. Bank of Montreal(5). The privilege against self-incrimination and that against exposure to a penalty are separate heads of privilege: Redfern v. Redfern(6); Wigmore on Evidence (McNaughton rev., 1961), vol. viii, pp. 261-318, 334-335; Blunt v. Park Lane Hotel Ltd.(7); Earl of Mexborough v. Whitwood Urban District Council(8); R. v. Associated Northern Collieries(9); Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation(10). Section 155(7) of the Act removes only the privilege against self-incrimination. Sub-section (5) does not purport to remove the privilege. Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission [No. 1](11) is wrong in holding that the privilege against penalty is abrogated. The approach in that case is inconsistent with Mitcham v. O'Toole(12). The privilege is not confined to curial proceedings: Ex parte Grinham; Re Sneddon (13); Kempley v. The King(14); Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation(15); Hammond v. The Commonwealth(16). Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman [No. 1](17) is wrong on this point too. The Court misunderstood the passage in Wigmore on Evidence, vol. viii, p. 378. That is clear from the passage at pp. 327-328 where it is said that the privilege applies to non-curial proceedings.

B. J. Shaw Q.C. (with him P. C. Heerey), for the appellant Dunlop Olympic Ltd.The passage in Wigmore on Evidence, vol. viii, par. 2263, pp. 362-363, was misunderstood by the Court in King v. McLellan(18). The footnotes to that paragraph show that the principle applies to non-curial proceedings. [He also referred to Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), par. 115.]*331

M. E. J. Black Q.C. (with him P. R. Hayes), for the respondents in the first appeal.The rule against self-incrimination does not apply to corporations. The rule grew out of a revulsion against inhumane treatment and must thus be limited to human beings: Wigmore on Evidence, vol. viii, par. 2250, pp. 276- 304; Holdsworth, History of English Law, vol. 9, pp. 198-200; Brown v. Walker (19). There are cases in which the rule appears to have been applied to corporations, but in truth they reflect a different rule, that the Court of Chancery would not lend its aid to proceedings designed to enforce a penalty or forfeiture. That rule had a different origin: Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation(20); Heimann v. The Commonwealth(21). The cases on which the appellants rely are all cases of discovery. The privilege does not apply to corporations in the United States: George Campbell Painting Corporation v. Reid(22); United States v. White(23). The privilege may be taken away by implication: Mortimer v. Brown(24). Section 155(5) clearly removes it. Sub-section (7) shows that the legislature regarded sub-s. (5) as having abrogated it. Alternatively, sub-s. (7) itself removes the privilege. "Incriminate" covers all aspects of self-incrimination, exposure to penalty and forfeiture: Melbourne Home of Ford Pty. Ltd. [No. 1] v. Trade Practices Commission(25); Halsbury's Laws of England 2nd ed., vol. 13, par. 804; Cross on Evidence, 5th ed. (1980), p. 275; Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation(26). R. v. Associated Northern Collieries(27) did not concern s. 15B of the Australian Industries Preservation Act 1906 (Cth). It was a discovery case. The privilege does not apply to non-curial proceedings: Earl of Mexborough v. Whitwood Urban District Council(28).

P. R. Hayes, for the respondent in the second appeal.

A. H. Goldberg Q.C., in reply.Reg. v. Bank of Montreal(29) was not a case of discovery. The privilege against self-incrimination was applied to a corporation in criminal proceedings against the corporation.*332

B. J. Shaw Q.C., in reply.Section 155 assumes that the privilege against self-incrimination applies to corporations. The American cases depend on the Fifth Amendment and are not relevant.

Cur. adv. vult.

The following written judgments were delivered:-

1983, March 18

Mason A.C.J., Wilson and Dawson JJ.

The issue in these appeals is whether a corporation or person served with a notice under s. 155 of the Trade Practices Act 1974 (Cth), as amended, ("the Act") requiring the recipient to answer questions can refuse to answer questions, relying on the privilege against exposing itself to civil liability to penalties. The issue, so far as it affects a corporation, was resolved in the negative by the Full Court of the Federal Court in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman [No. 1](30), a decision which was followed by the primary judge and by the Full Court of the Federal Court in each of the two appeals now before us.

For the purpose of disposing of these appeals it is unnecessary for us to relate the facts. The sole issue for determination is the question of law which we have stated. The circumstances out of which the issue arises are sufficiently expressed in the judgments of the Full Court of the Federal Court. At this stage we need do no more than state that under ss. 76, 77 and 78 of the Act the contravention of s. 45 (which is within Pt IV) of the Act does not constitute a crime but makes the offender liable to the imposition of a pecuniary penalty at the suit of the Minister or the Commission.

The issue is to be resolved by construing s. 155. The construction of the section presents a particular problem. It is caused by the express reference in s. 155(7) to the abrogation of the privilege against self-incrimination and the absence of any reference to the privilege against exposure to the imposition of a civil penalty.

Section 155(1) authorizes the issue of a notice in writing by a member of the Commission requiring a person - (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer, within the time and in the manner specified in the notice, information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, documents; or (c) to appear before the Commission at a time and place specified in the notice to give evidence and produce documents, where the Commission, the Chairman or the Deputy Chairman has reason to believe that the person is capable of *333 furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act.

Sub-sections (5) and (7) provide:

"(5) A person shall not-

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;

(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or

Penalty: $1,000 or imprisonment for 3 months.

(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not admissible in evidence against the person-

(a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act."

In Melbourne Home of Ford the members of the Full Court of the Federal Court expressed two different reasons for concluding that the privilege was not available. Smithers J. thought that in the language of the law the expression "the privilege against self incrimination" comprehends the privilege of witnesses from answering questions where such answers may tend to expose the witnesses to risk of conviction for a crime or to a penalty or to a forfeiture (31). He also thought that s. 155(7) effectively abolishes, in relation to the furnishing of information and the production of documents in response to a notice under s. 155(1), the privilege of refusing to answer questions the answers to which may expose the person to conviction for a crime or the imposition of a pecuniary penalty. On the other hand, Franki and Northrop JJ. noted that the privilege appeared to have been limited to giving answers on oath in judicial proceedings, or in procedures relating to such proceedings as, for example, discovery (32). However, their Honours held in any event that, because s. 155(5) was specific in *334 providing that a person shall not refuse or fail to comply with a notice under s. 155(1) and because it provided for an offence of knowingly furnishing information or of giving evidence that is false or misleading, the sub-section clearly abrogated any privilege against exposure to the imposition of a pecuniary penalty that would or might otherwise have existed (33).

The appellants' challenge to Melbourne Home of Ford rests very largely on two propositions: (1) that the privilege is not limited to answers given on oath in judicial or quasi-judicial proceedings or procedures relating thereto; and (2) that the word "incriminate" in s. 155(7), in the context in which it is there found, is used in its strict sense and does not include the privilege so far as it protects a person from exposing himself to the imposition of a civil penalty.

The respondent Commission, subject to one qualification, seeks to support the reasons advanced by the three members of the Court in Melbourne Home of Ford and to add a further argument. The further argument, to which we shall refer shortly, is that the privilege of refusing to answer questions on the ground or grounds mentioned is a privilege available to natural persons, not to corporations. The qualification to the Federal Court's reasons is that the Commission does not argue that the privilege, to the extend to which it relates to questions the answers to which may have a tendency to expose the person to conviction for a crime is confined in its application to judicial or quasi-judicial proceedings or procedures relating thereto. However, the Commission argues that in its application to questions the answers to which may expose a person to the imposition of a civil penalty the privilege can be availed of only in those proceedings or procedures.

The English Court of Appeal has held that the privilege of refusing to answer a question on the ground that the answer may tend to incriminate is available to corporations (Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (34)). There du Parcq L.J. (35), who delivered the judgment of the Court, agreed with the Supreme Court of Alberta in Webster v. Solloway, Mills & Co. (36) that "'on principle one cannot see any reasonable ground for the support of [the] view' that 'this claim of privilege should be limited to natural persons"'. His Lordship went on to state that "It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence"*335 ( 37). Canadian courts have continued to adopt the same approach (Reg. v. Bank of Montreal(38); Klein v. Bell(39)).

In the United States the opposite approach has been taken - corporations cannot claim the privilege. In Campbell Painting Corp. v. Reid(40) Fortas J. said: "It has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is 'essentially a personal one, applying only to natural individuals'." It would not be a profitable exercise in this case to attempt to trace the steps by which the United States courts have reached this result. It depends partly on the presence in the Constitution of the Fifth Amendment and the interpretation which has been given to it and partly on the policy and purpose which the privilege has been thought to serve. Thus in United States v. White(41) Murphy J. described the privilege as one which prevents "the use of legal process to force from the lips of the accused individual the evidence necessary to convict him" and observed "The prosecutors are forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law"(42). But it is not easy to assert confidently that the privilege serves one particular policy or purpose. A glance at the variety of views which have been expressed on this point, summarized in Wigmore on Evidence (McNaughton rev., 1961), vol. viii, pp. 297- 318, demonstrates the difficulty.

As will appear, this case is susceptible of determination on other grounds. For this reason we are content to assume, without deciding, that the privilege against exposure to conviction for a crime and the privilege against exposure to a civil penalty is available to a corporation in Australia.

It is well settled that "a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure" to use the words of Bowen L.J. in Redfern v. Redfern (43). See also Martin v. Treacher(44); Earl of Mexborough v. Whitwood Urban District Council(45); R. v. Associated Northern Collieries(46). Indeed, in a civil action brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor interrogatories will be *336 allowed (In re A Debtor(47); Associated Northern Collieries(48)). See generally the discussion by Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corp.(49). There his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (50). In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action. His Honour described this as "a broad and unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see [Mexborough] and Heimann v. Commonwealth(51)"(52)). To these authorities there should be added a reference to the statement of Lord James of Hereford in National Association of Operative Plasterers v. Smithies(53), that courts of equity were averse to actions for penalties and forfeitures being brought and would not assist them. But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty.

Two points need to be made in connexion with the proposition stated by Bowen L.J. in Redfern. The first is that, although the rule is expressed as one which relates to discovery, it is necessarily a reflection of the law of privilege. The second point is that Bowen L.J. was not saying that the privilege against exposure to conviction for a crime was the same as, or includes, the privilege against exposure to penalties or forfeiture or ecclesiastical censure. Quite obviously they are four different aspects or grounds of privilege. So much at least emerges from the judgment of Lord Esher M.R. in Mexborough(54).

But we do not agree with the suggestion made by the respondent, based on the authorities to which we have referred, that the privilege against exposure to forfeiture and penalty is a special *337 invention of the courts of equity devised for application in suits for discovery and in the administration of interrogatories, commencing at a time when the Chancery Court granted discovery in aid of a common law action. Certainly Lord Hardwicke L.C. in Smith v. Read (55), asserted: "there is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty." However, his Lordship was merely speaking of the rule in equity and did not direct his attention to the attitude of the common law. The better view is that equity looked to the existing model of the common law and applied the rule which it had established. In Pye v. Butterfield(56), Crompton J., speaking of courts of equity, said: "I have no doubt that the exemption from a bill of discovery in cases where the discovery would lead to a forfeiture, was adopted in those Courts from the Courts of law." This statement was quoted, evidently with approval, by Lord Esher M.R. in Mexborough(57). Chitty L.J. (58) was of the same opinion.

Accordingly, the construction of s. 155 is to be approached on the footing that the privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a civil penalty is (a) not confined in its application to discovery and interrogatories; (b) available at common law as well as in equity; and (c) distinct from, though often associated in discussion with, the privilege against exposure to conviction for a crime.

Before turning to s. 155 itself, we need to deal with one further point - the submission that the privilege against exposure to a penalty is confined in its application to testimonial disclosures in judicial proceedings and is inherently incapable of application in non-judicial proceedings.

There is a body of authority to support this proposition. It is the view taken in Wigmore on Evidence, vol. viii, par. 2263. And it is the view that has been accepted by the Full Court of the Supreme Courts of New South Wales and Victoria (R. v. Kempley(59) from which application for special leave to appeal was refused (Kempley v. The King(60)); Ex parte Zietsch; Re Craig (61); King v. McLellan(62); see also R. v. Owen(63); Reg. v. Carr (64); cf *338 Scott v. Dunstone(65)). In Kempley reg. 17 of the National Security (Prices) Regulations 1939 (Cth), as amended, empowered the Commissioner to require any person to furnish information and answer questions and made it an offence for a person to refuse or fail to do so. Jordan C.J. said (66):

"Since the rule of law which excuses a person from answering incriminating questions is a rule of evidence applicable to witnesses in a Court of Justice, it is not inherently applicable to such questioning as is provided for by reg. 17, and in the absence of any indication, such as is contained in reg. 15, that the rule is to be available here also: cf. Bradley v. Field(67) ... I am of opinion that it is not available."

On the other hand there is an impressive stream of authority against the proposition. On the application for special leave to appeal in Kempley McTiernan J. evidently agreed with the view of Jordan C.J., but three members of this Court thought that the privilege was inherently capable of applying unless the statute otherwise provided. McTiernan J. said (68):

"Regulation 17 does not contain any express provision excusing a person from answering on the ground that the answer might incriminate him ..."

Starke J. said (69):

"But where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded."

However, his Honour found it unnecessary to decide whether the regulations expressly excluded the privilege. And Williams J. considered that the privilege was available to a person interrogated under reg. 17 (70). Latham C.J. thought that a person was bound to answer questions put to him under reg. 17. But it seems to us that his Honour reached this conclusion because he concluded as a matter of construction that the Commissioner was empowered by reg. 17 to inquire into possible offences, a construction rejected by Jordan C.J. in the Supreme Court. Consequently Latham C.J. appears to have proceeded on the view that the regulations excluded the privilege, rather than on the footing that the privilege was inherently incapable of applying because the inquiry was executive, not judicial. His Honour dealt with the point in this way (71):

"In the case of regulations of this character there are special *339 reasons for special powers of inquiry into possible offences. Upon this view the power of asking questions conferred by reg. 17 is not limited by any restriction enabling a person to refuse to answer questions as to offences possibly committed by him."

An approach similar to that taken by the majority of this Court in Kempley was adopted by Walsh J. in Ex parte Grinham; Re Sneddon(72) where reg. 137A of the Regulations for Public Vehicles 1930 (N.S.W.), as amended, required the driver of a public vehicle to furnish information to an authorized officer for the purpose of an inquiry or inspection pursuant to the regulations. Walsh J. held that the regulation was beyond power because s. 262(6) of the Transport Act 1930 (N.S.W.), as amended, which conferred power to make regulations, did not empower the Executive "to alter ... the general rule that a person is not bound to answer questions and, in particular, to answer questions which may incriminate him"(73). Herron J. (with whom Clancy J. agreed) avoided the consequence of invalidity by construing reg. 137A so that it did not abrogate the privilege against self-incrimination. Herron J. expressly recognized that the privilege was available when he said (74) that, unless the provision was read down, it was so framed that "any right which the person addressed might have had to refrain from incriminating himself is taken away".

In Commissioners of Customs and Excise v. Harz(75) Lord Reid, speaking of s. 24(6) of the Purchase Tax Act 1963 (U.K.) which requires persons to furnish to the Commissioners information relating to goods or to the purchase or importation of them or to the application of a process of manufacture to them or dealings with them, said (76):

"Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not. Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute. Although I need not decide the point, it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose."

All the other members of the House of Lords agreed with Lord Reid.

The thrust of this comment is not that the privilege is incapable of *340 applying to the statutory power to require the provision of information, but that the admissibility of the evidence depends upon the construction of the statute. His Lordship considered that, if a demand for information was made in the proper form, the trader was bound to answer the demand, "whether or not the answer may tend to incriminate him"(77). Although the grounds for this conclusion were not expressed, the reasons for thinking that incriminating answers were admissible in evidence no doubt influenced the conclusion.

Underlying the conflict between the two strands of authority is a controversy regarding the nature of the privilege. On the one side, reflected in the judgment of Jordan C.J. in Kempley(78), is the notion that all forms of privilege, including the privilege against self-incrimination, are at bottom rules of evidence regulating the admissibility of evidence in judicial and quasi-judicial proceedings. Diplock L.J. gave expression to this view in dealing with legal professional privilege in Parry-Jones v. Law Society(79), when he described the privilege as "a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence". There is in addition the problem of deciding whether it is for the authority requiring the answer, production of documents or the provision of information, or the court in subsequent proceedings by way of prosecution for an offence, to decide whether the claim for privilege is correctly made. It is difficult to suppose that the determination is to be left to an unqualified person. And there are practical problems in leaving the determination of the correctness of the claim for privilege to a court in proceedings by way of prosecution for the offence of refusing to answer questions, provide information or produce documents.

On the other side, reflected in the second stream of authority to which we have referred, is the view that the privilege against self-incrimination stands apart from other forms of privilege. The rule of the common law nemo tenetur seipsum accusare is seen as too fundamental a bulwark of liberty to be categorized simply as a rule of evidence applicable to judicial and quasi-judicial proceedings.

So Williams J. thought in Kempley though it must be conceded that three of the earlier authorities on which he relied, Reg. v. Sloggett(80), Reg. v. Scott (81), and Reg. v. Coote(82) concerned *341 procedures on oath - in two instances bankruptcy examinations - designed to reveal whether offences had been committed, with a view to deciding whether prosecutions should be instituted. In each case it was acknowledged that, in the absence of statutory provision to the contrary, a person could refuse to answer questions on examination on oath on the ground that the answer might tend to incriminate him.

There is a stronger reason for holding that the privilege is available in the case of an examination on oath before a judicial officer which is a preliminary to committal for trial or summary prosecution than there is in the ordinary case where a statute imposes an obligation to answer questions, provide information or produce documents. On the other hand, if the object of imposing the obligation is to enable an authority or agency to ascertain whether an offence has been committed or a statutory provision has been contravened then it is reasonable to conclude that the privilege, though inherently capable of applying, has been impliedly, if not expressly, excluded by the statute.

In the light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O'Toole(83).

In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings.*342

Thus in Mortimer v. Brown(84), the Court held that s. 250 of The Companies Act of 1961 (Q.) excluded the availability of the privilege on the public examination by a judge of directors of a company in a voluntary liquidation. Kitto J. after noting "that the evident purpose of the section, primarily even if not wholly, is to enable a suggestion of fraud or concealment of a material fact to be fully investigated" and that such a question must frequently involve consideration of evidence tending to incriminate individuals, went on to say (85):

"To read down the wide terms of the section so as to allow a danger of self-incrimination as a valid ground for refusing to answer a question would render the provision relatively valueless in the very cases which call most loudly for investigation. By providing in sub-s. (7)(c) that notes of a person's examination may thereafter be used in evidence in any legal proceedings against him, the section shows that the possibility of self-incrimination is contemplated as being inherent in the kind of examination that is authorized."

Walsh J. (86) said:

"The argument for the applicants is that the provision should be construed in a way which restricts its operation so as to preserve the traditional right or privilege against compulsory self-incrimination, which has commonly been recognized as available to witnesses in judicial proceedings. It is said that in the absence of an abrogation in express terms of this privilege, the provision should be construed as not disclosing an intention to take it away from persons who are required to submit themselves to examination.

In my opinion the character and purpose of the provision are such that a construction which would curtail its operation in the manner and for the reason suggested ought not to be adopted."

In King v. McLellan(87) it was held that the terms of the obligation under s. 80F of the Motor Car Act 1958 (Vict.) on the driver of a motor car to furnish a sample of his breath for analysis by a breath analysing instrument when required to do so by a member of the police force would have impliedly excluded the privilege against self-incrimination if the privilege had had any application to the furnishing of a breath sample (88). The obligation was expressed in general terms and the subject matter of the legislation did not suggest that the obligation was intended to be subject to any qualification.

That the privilege is impliedly excluded in such circumstances is a *343 conclusion which, as we have noted, may be more readily drawn where the obligation to answer questions or provide information does not form part of an examination on oath. The obligation to give an answer not on oath at an executive inquiry provides an illustration. It will be less readily drawn in cases where the obligation to answer questions and produce documents is an element in an examination on oath before a judicial officer whether or not an object of that examination is to ascertain whether an offence has been committed with a view to the institution of a prosecution for that offence.

The comments made by Kitto and Walsh JJ. in Mortimer are apposite to s. 155. Sub-section (1) confers a power on the Commission to require the provision of information, the production of documents or the giving of evidence relating to contravention, or possible contravention, of the Act. 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 recipient of a notice to refuse to comply, whether on the ground that compliance might involve self-incrimination or otherwise. Moreover, it is apparent that the purpose of conferring the power and imposing the obligation is to enable the Commission to ascertain whether any contravention of the Act has taken place, or is taking place, and to make the information furnished, the documents produced and the evidence given admissible in proceedings in respect of contravention of the Act, a purpose which would be defeated if privilege were available. As in Mortimer(89) the comment may be made that the provision is valueless if the obligation to comply is subject to privilege. Without obtaining information, documents and evidence from those who participate in contraventions of the provisions of Pt IV of the Act the Commission would find it virtually impossible to establish the existence of those contraventions. The consequence would be that the provisions of Pt IV could not be enforced by successful proceedings for a civil penalty under s. 76(1).

On this view of the section the presence of sub-s. (7) presents no problem. Its object is to limit the use to which the material obtained can be put in criminal proceedings except as provided in pars. (a) and (b). It is understandable that no similar provision is made in respect of the use of the material obtained in proceedings for a civil penalty. The only proceedings of that kind which can be *344 taken are proceedings under Pt IV of the Act, being proceedings in which the material obtained is intended to be admissible evidence.

It may be said that on the construction which we favour that the first part of sub-s. (7) is redundant. Strictly speaking, this is so, but it is understandable that the draftsman considered its inclusion desirable so that the sub-section contains a comprehensive statement touching the exclusion of the privilege and the use to which the material can be put in proceedings. No doubt it was the prohibition against the use of the material in proceedings for a criminal offence otherwise than under the Act that was the mainspring for the introduction of the sub-section. The absence of any liability for a civil penalty, except in proceedings for a contravention of Pt IV, explains why it was not thought necessary to include a like provision in respect of the privilege against exposure to a civil penalty.

The appellants contrast s. 155(7) with s. 15B(4) of the Australian Industries Preservation Act 1906 (Cth) as it was amended by Act No. 29 of 1910. Section 15B was similar to s. 155; it conferred power on the Comptroller-General to require a person to answer questions and produce documents. Section 15B(4) provided that no person was excused from complying on the ground that the answer or the production of the documents might tend to incriminate him or tend to make him liable to a penalty. Before 1910 and at the time when Northern Collieries(90) was decided s. 15B(4), like s. 155(7), referred to the privilege against incrimination only and did not refer to exposure to a penalty. No doubt the amendment to s. 15B(4) in 1910 was introduced because at that time it had become necessary to insert s. 14B in consequence of the decision in Northern Collieries. Section 14B expressly provided that no person in a proceeding for an offence against Pt II be excused from answering any question, either viva voce or by interrogatory, or from making any discovery on the ground of tendency to incriminate or to expose to a penalty. It was probably thought that, unless s. 15B(4) was brought into line with s. 14B, it would receive a restrictive construction.

The special circumstances which dictated the amendment of s. 15B(4) make it unsafe to base any conclusion on the contrast between that provision and s. 155(7). In any event the relationship between the Australian Industries Preservation Act and the Act is not sufficiently close to justify an inference or implication from the difference in the language of the two provisions.

Finally, attention should be drawn to the bizarre consequences of the appellants' construction. The privilege against self-incrimination*345 would be excluded, but not the privilege against exposure to a civil penalty. True it is that the amount of a civil penalty under Pt IV is very substantial. Even so, it is irrational to suppose that Parliament contemplated that a person could be compelled to admit commission of a criminal offence yet be excused from admitting a contravention of the Act sounding in a civil penalty.

We would dismiss the appeals.

Murphy J.

The Trade Practices Act 1974 s. 155 obliges a person to comply with a notice (served on the person pursuant to the Act) to furnish information, supply documents or to appear and give evidence and produce documents to the extent that the person is capable of complying with it. A person is not excused from compliance on the ground that the information, documents or evidence may tend to incriminate him or her. However the information, documents or evidence furnished are not admissible in evidence against that person, if the person is not a body corporate, other than in proceedings under s. 155; or if a body corporate, other than in criminal proceedings under the Act.

The appellants claim that the obligation to comply with a notice is qualified by a privilege against self-exposure to penalties derived from the common law (including equitable) privilege or privileges against self-exposure to penalty, forfeiture or ecclesiastical censure.

Privilege against self-exposure to ecclesiastical censure. Any rationale for this privilege in England, where there is an established Church, does not apply to Australian circumstances. In Australia ecclesiastical censure is irrelevant to judicial procedures as well as to non-judicial procedures for obtaining information for public purposes. The privilege should not be recognized as any part of the common law in Australia.

Privilege against self-exposure to forfeiture. In England, this probably arose out of the special regard for land rights originally secured by feudal tenures and later by entailing and other devices. The privilege against forfeiture seems to have been confined to forfeitures of realty, particularly leases. The recognition of such a privilege in modern Australia is, in my opinion, not justified.

Privilege against self-exposure to penalties. The origin of this privilege seems to have been judicial hostility to common informers' suits for penalties; the courts would not assist any informer in any way by their procedures (see Earl of Mexborough v. Whitwood Urban District Council(91)). Any general privilege against self-*346 exposure to civil actions for penalties, especially a privilege available outside judicial proceedings, is difficult to justify.

It is an absurd state of the law if a witness, in a civil or criminal trial, can lawfully refuse to answer because the answer may tend to expose him or her to some ecclesiastical censure, or to forfeiture of a lease, or to a civil action for penalties, but may not refuse if the exposure is to some other civil loss, such as an action for damages, even punitive damages. In so far as such absurdity has been introduced or maintained by judicial decision (see R. v. The Associated Northern Collieries(92); Blunt v. Park Lane Hotel Ltd.(93)) it can and should be erased by judicial decision. Whatever their standing in judicial proceedings, I see no reason for recognizing such privileges outside judicial proceedings.

Privilege against self-incrimination. The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society's acceptance of the inviolability of the human personality. In the widest sense it prohibits compulsory admission of criminality, that is, infamy, even where there is no prospect of punishment, because, for example, of a pardon, of the expiration of the time limited for prosecution. In a narrow sense, it is privilege against exposure to jeopardy of criminal prosecution, and is available only where there is a real danger of prosecution and conviction. The privilege developed in England out of concern for lack of due process in Star Chamber and criminal proceedings. It was introduced into the constitutions of several of the American States following the 1788 Revolution, and entrenched in the federal Bill of Rights. (See The Constitution of the United States of America - Annotated, 1106-1107.) It is referred to in the International Covenant on Civil and Political Rights, Art. 14(3)(g).

The privilege is personal, so that one required to produce documents cannot resist production on the ground that this would tend to incriminate another. The history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities (see United States v. White(94);*347 Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission(95); Hale v. Henkel(96); George Campbell Painting Corp. v. Reid(97)). An official of a corporation or organization cannot claim the privilege on behalf of that corporation or organization (United States v. White(98); Wilson v. United States(99)). However, a different view has been taken in England (see Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd.(1); Rio Tinto Zinc Corp. v. Westinghouse Electric Corp.(2)), which I do not find persuasive.

It is undoubted that the privilege exists in judicial proceedings unless excluded by unmistakable language. No one can be compelled by a court to answer questions where the privilege is invoked Stephen, A History of the Criminal Law of England, vol. 1 (1883), Ch. XI, pp. 358-359; 365 et seq.; Lilburn's Case (3); Hammond v. The Commonwealth(4). No one can be compelled to answer questions at the investigatory stage of the proceedings (McDermott v. The King (5); Cleland v. The Queen(6)).

Apart from judicial proceedings, the question whether the privilege is available if a statutory power to require information is silent on its existence, has been the subject of judicial differences (Kempley v. The King (7)). In my opinion the privilege is available generally as part of the common law of the various States. It should also be recognized as federal common law which attaches to federal statutory powers of obtaining information whether in judicial proceedings or otherwise. It is available unless excluded by unmistakable language.

Although s. 155 expressly excludes any privilege against self-incrimination, it does not recognize any privilege from exposure to ecclesiastical censure, forfeitures or civil penalties. In the light of its sub-s. (5) which provides that a person shall not refuse to fail or comply with a notice to the extent that a person is capable of complying with it, it would be wrong to adopt a federal common law rule which conferred a privilege against self-exposure to civil penalties. It would be absurd to read s. 155 as expressly denying privilege against self-incrimination but impliedly allowing privilege against self-exposure to civil penalties.*348

It follows that the appeals should be dismissed.

Brennan J.

These two appeals were heard together. Each of the appellants had been served with notices issued pursuant to s. 155 of the Trade Practices Act 1974 (Cth) ( "the Act") requiring it or him to furnish information and to produce documents. In each case, information and documents were required relating to matters that constitute or may constitute contraventions of s. 45 of the Act. Section 45, in Pt IV of the Act, relates to contracts, arrangements or understandings restricting dealings or affecting competition.

Section 76 of the Act provides for a pecuniary penalty for a contravention of a provision of Pt IV. Section 77 provides that a pecuniary penalty may be recovered by proceedings in the Federal Court instituted by the Minister or by the Trade Practices Commission on behalf of the Commonwealth. The appellant in the first appeal, Pyneboard Pty. Ltd., and the appellants in the second appeal, Dunlop Olympic Ltd. and K. G. Norrish, applied to the Federal Court of Australia for declarations that the notice served upon it or him did not impose an obligation to furnish information or to produce documents which might tend to expose it or him to a penalty. The notices were challenged upon other grounds also, but those other grounds are not now material.

The respective applications were refused at first instance and appeals to the Full Court of the Federal Court were dismissed in each case. In each case, an earlier judgment of the Full Court - Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman [No. 1](8) - was held to conclude the question against the respective appellants. In that case Franki and Northrop JJ. (9) had held that s. 155 of the Act in its terms "clearly removes all privilege of any kind expressed in the maxim nemo tenetur seipsum accusare and which would or might otherwise exist for refusing to answer questions or produce documents in response to a proper notice under s. 155." By special leave, the present appeals are brought against the respective orders of the Full Court of the Federal Court, raising for determination by this Court the question whether a person upon whom a valid s. 155 notice is served is obliged to furnish information or to produce documents if the furnishing of the information or the production of the documents might tend to expose that person to a penalty. The relevant provisions of s. 155 are as follows:

"(1) Where the Commission, the Chairman or the Deputy *349 Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person-

(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

...

(5) A person shall not-

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;

(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading;

...

(a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act."

The question raised for determination is a question of statutory construction: is sub-s. (5) subject to a qualification that a person may refuse or fail to comply with a notice, though he is capable of complying with it, if compliance with the notice might tend to expose him to a penalty? Before turning to the appellants' arguments in support of this proposition, we may put aside the question whether the obligation imposed by sub-s. (5) binds a person to furnish information, produce documents or give evidence before the Commission if a prosecution or a proceeding for recovery of a *350 penalty has already been instituted against him (cf. Melbourne Steamship Co. Ltd. v. Moorehead(10)). There are no pending proceedings in this instance. Accordingly, the judgments of this Court in Hammond v. The Commonwealth(11) relating to pending criminal proceedings, and of Franki J. in Brambles Holdings Ltd. v. Trade Practices Commission [No. 2](12) relating to pending civil proceedings, do not fall for consideration.

The appellants' argument begins by showing that the privilege against exposure to a penalty is distinct from the privilege against self-incrimination, as Lord Esher M.R. held in Earl of Mexborough v. Whitwood Urban District Council (13). Though the privilege against self-incrimination is sometimes expressed to include the privilege against exposure to a penalty, the two privileges are in truth different grounds of excuse for not answering questions or not producing documents. An early example of a case where there was no question of self-incrimination is Reg. v. Newel(14) where the compellability of an assignee in Bankruptcy to answer questions before a sheriff's inquisition was upheld provided the answers did not subject him to a penalty or forfeiture. The next step in the appellants' argument is that the privilege against exposure to a penalty recoverable in civil proceedings, unlike the privilege against self-incrimination of an offence, was not taken away by sub-s. (7) and therefore remains to protect a person obliged to furnish information or to produce documents pursuant to a s. 155 notice. This argument assumes that the privilege against exposure to a penalty extends to and qualifies the obligation created by sub-s. (5) unless expressly excluded. That assumption is countenanced by the first part of sub-s. (7) which, by expressly excluding self-incrimination as an excuse for failing to comply with the requirements of a notice, implies that the privilege against self-incrimination would otherwise extend to and qualify the obligation created by sub-s. (5). But if sub-s. (7) had not been enacted, would the privilege against self-incrimination have extended to and qualified the obligation created by sub-s. (5)? If the answer is "no", two conclusions can be drawn: first, that the analogous privilege against exposure to a penalty does not extend to and qualify the obligation; and second, that the exclusion by sub-s. (7) of self-incrimination as an excuse for failing to comply with sub-s. (5) has been inserted ex abundanti cautela. Therefore the first question is whether the privilege against self-incrimination is implied, even if it *351 is not statutorily expressed, as a qualification upon the obligation created by sub-s. (5).

Section 155 makes an inroad upon the right to silence. At common law, there is no obligation to answer questions asked by an executive agency or to produce documents requested by an executive agency. But if the legislature chooses to arm the Executive with a power of compulsory interrogation - and the frequency with which the Executive is armed with such powers appears to be increasing - it is the function of the courts to ascertain the extent of the power and to determine, by construing the language which the legislature has used, whether the power is qualified by a privilege against self-incrimination.

Sub-section (5) creates an obligation which arises by virtue of a notice given by a law enforcement agency, the Trade Practices Commission, in aid of the investigative functions conferred on it by s. 155. None of the Commission's powers and functions under s. 155 is judicial or quasi-judicial; they are wholly investigative. A provision similar in terms and context to sub-s. (5) was considered by the House of Lords in Commissioners of Customs and Excise v. Harz(15). The Finance Act 1946 (U.K.) conferred investigative powers upon the Commissioners of Customs and Excise with respect to goods subject to purchase tax, and s. 20(3) of that Act provided:

"Every person concerned with the purchase or importation of goods or with the application to goods of any process of manufacture or with dealings with imported goods shall furnish to the Commissioners within such time and in such form as they may require information relating to the goods or to the purchase or importation thereof or to the application of any process of manufacture thereto or to dealings therewith as they may specify, and shall, upon demand made by any officer or other person authorised in that behalf by the Commissioners, produce any books or accounts or other documents of whatever nature relating thereto for inspection by that officer or person at such time and place as that officer or person may require."

Lord Reid apparently held the view that the obligation created by the statute was not subject to the privilege against self-incrimination. He said (16):

"If a demand for information is made in the proper manner, the trader is bound to answer the demand within the time and in the form required, whether or not the answer may tend to incriminate him, and, if he fails to comply with the demand, he can be prosecuted. If he answers falsely he can be prosecuted for that and if he answers in such a manner as to incriminate himself I can see no reason why his answer should not be used *352 against him. Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not. Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute. (Emphasis added)."

Similarly, in R. v. Kempley(17), Jordan C.J. held that the privilege against self-incrimination did not qualify an obligation to furnish information required by, or to answer a question put by, officials acting under reg. 17 of the National Security (Prices) Regulations. His Honour said (18):

"Regulation 17, which enables any person to be required to furnish information or answer questions in relation to any goods or services or to any other matter arising under these regulations, contains no similar qualification. Since the rule of law which excuses a person from answering incriminating questions is a rule of evidence applicable to witnesses in a Court of Justice, it is not inherently applicable to such questioning as is provided for by reg. 17, and in the absence of any indication, such as is contained in reg. 15, that the rule is to be available here also: cf. Bradley v. Field(19). I am of opinion that it is not available."

Although his Honour dissented on another aspect of the case, his observation on this point accorded with the opinion of the other members of the Full Court. An application for special leave to appeal against the judgment of the Full Court was refused by this Court: Kempley v. The King(20). Latham C.J., holding that the regulation covered inquiries into suspected offences against the regulations, said (21):

"In the case of regulations of this character there are special reasons for special powers of inquiry into possible offences. Upon this view the power of asking questions conferred by reg. 17 is not limited by any restriction enabling a person to refuse to answer questions as to offences possibly committed by him.

If a person questioned is bound to answer such questions, then the putting of the questions to him is lawful, and he is only complying with the law in answering. Accordingly there would be no misrepresentation in Maher's statement"

[Maher being a prices officer]

"that he was bound to answer all the questions put to him."

McTiernan J. was of the same opinion. His Honour said (22):*353

"Regulation 17 does not contain any express provision excusing a person from answering on the ground that the answer might incriminate him ...."

Williams J., however, expressed the opposite conclusion (23):

"It is a fundamental rule of the common law that 'nemo tenetur seipsum accusare,' so that it would not have been unreasonable to expect that, in a set of regulations which give Government officials wide powers to interrogate members of the public, some care would have been taken clearly to indicate to what extent such a fundamental rule has been abrogated, but the Regulations as a whole are quite incoherent and incapable of affording any clear guide. In these circumstances I can see no reason why the rule should not continue to apply, so that persons interrogated under reg. 17 are entitled to refuse to answer questions which will incriminate them."

Starke J. found it "unnecessary to say whether reg. 17 excludes the rule" stating his opinion, however, in a way which noted no distinction between judicial examinations and interrogations by the Executive (24):

"According to English law, the depositions on oath of a witness legally taken are admissible in evidence against him if subsequently tried on a criminal charge - Reg. v. Coote(25). But where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded. And whether the rule is excluded must depend upon the provisions of the legislative act or the nature of the subject ..."

Rich J. (26) did not advert to the division of opinion among other members of the Court. After considering these judgments, Jordan C.J. in Ex parte Zietsch; Re Craig(27) held that the Full Court should adhere to the view "that answers are compellable notwithstanding that they are incriminating".

In Reg. v. Travers(28), the Court of Criminal Appeal held that when a police superintendent asked a police officer a question and directed him to answer it, the police officer who was statutorily bound to obey orders could not refuse to answer the question on the ground that the answer might tend to incriminate him. The Court said (29):

"We think that in requiring an answer to be given it is necessarily intended, in the absence of any indication to the contrary, that any right which the person addressed might have *354 had to refrain from incriminating himself should be taken away."

In Ex parte Grinham; Re Sneddon(30) the Supreme Court in banco considered the meaning and validity of reg. 137A of the Regulations for Public Vehicles purportedly made under the Transport Act 1930 (N.S.W.). Regulation 137A required the driver of a public vehicle to furnish information to any authorized officer "for the purpose of any enquiry or inspection pursuant to or arising under these regulations". Walsh J. held that the regulation-making power in the Act did not authorize the making of a regulation which imposed an obligation to answer questions, particularly to answer questions which may incriminate the person asked. He held reg. 137A was invalid accordingly for it imposed an unqualified obligation to answer. He said (31):

"But the powers to which s. 262(6) appears to me to relate, are administrative powers, rather than powers of law enforcement. The powers mentioned are those 'required for the carrying into effect' of the regulations. At all events, there are no words in the sub-section which state or suggest that it is intended to empower the Executive to alter, by sub-ordinate legislation, the general rule that a person is not bound to answer questions and, in particular, to answer questions which may incriminate him. Nor is this a case, in my opinion, in which such an intention should be regarded as appearing by necessary implication."

Herron J., with whom Clancy J. agreed, saved the validity of reg. 137A by reading it down, saying that "unless it receives some limiting construction" [it] "is so framed that any right which the person addressed might have had to refrain from incriminating himself is taken away: Reg. v. Travers(32)". Thus it appears that their Honours would not have held the obligation to furnish information to be qualified by privilege if there had been power to make a regulation imposing an unqualified obligation.

Upon the cases, the better view is that a simple statutory obligation to furnish information to a law enforcement officer is not qualified by a privilege against self-incrimination. Of course, none of the cases referred to bind this Court to hold that, apart from sub-s. (7), the obligation imposed by sub-s. (5) would not be qualified by a privilege against self-incrimination. However, in Sorby v. The Commonwealth(33) I have expressed my reasons for holding that the scope of the privilege against self-incrimination is limited to *355 judicial proceedings, governing the obligations to give discovery and to testify in such proceedings.

In recent times, when the obligations of a party or of a witness to answer questions and to produce documents in judicial proceedings have come to rest on a statutory foundation, the privilege has been held applicable prima facie to qualify the statutory obligation: see Naismith v. McGovern(34); Mitcham v. O'Toole(35). But the question for decision in this case is not whether the privilege applies generally to a statutory obligation to furnish information or to produce documents in judicial proceedings; the question is whether the privilege applies when the statute imposes the obligation to furnish information or to produce documents when required by a law enforcement agency in aid of an investigation by it into contraventions of the law.

To construe a statutory provision, clear and absolute in its terms, as though it were qualified by privilege is to import a principle applicable to judicial procedure into the area of investigation by a law enforcement agency. There are, of course, significant differences between a statutory obligation to furnish information or to produce documents as a party or witness in judicial proceedings and an analogous obligation imposed in aid of an investigation by a law enforcement agency. In judicial proceedings, the validity of a claim of privilege is judicially decided (Cleave v. Jones(36); Lamb v. Munster (37)). If a decision upon a claim of privilege were needed to determine whether and to what extent there is an obligation to furnish particular information or to produce particular documents to a law enforcement agency conducting an investigation into a contravention of the law, how and by whom would the claim be decided? Would the obligation be defeated merely by the person from whom the information is sought claiming privilege? Or would the claim of privilege defeat the obligation only if it were admitted by the agency which is seeking to enforce the obligation? Neither of these solutions is likely to represent the intention of the legislature. Neither corresponds with the privilege which protects a witness in judicial proceedings, for that depends upon the opinion of the judge. (See Ex p. Reynolds; In re Reynolds (38); Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd.(39), and Goddard L.J.'s oft-quoted statement of the rule in*356 Blunt v. Park Lane Hotel Ltd.(40): "... the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for." (Emphasis added.))

Would the content of the obligation be ascertainable in practice only in and by a prosecution for its breach? Or in and by some other judicial proceeding? That is hardly a practicable solution when the statutory obligation falls to be discharged within a time specified in the s. 155 notice. Where judicial control of the privilege is not practicable, it is difficult to imply a qualification of privilege affecting the statutory obligation.

Moreover, the purpose of investigating suspected contraventions of Pt IV would be frustrated by a qualification which makes the statute ineffective to compel the furnishing of information or the production of documents tending to show such a contravention. In Mortimer v. Brown(41), a case arising under s. 250 of The Companies Act of 1961 (Q.), Walsh J. regarded the character and purpose of the provision as a criterion by which to determine whether the obligation thereby created (namely, an obligation to submit to examination in a judicial proceeding) was qualified by the privilege against self-incrimination. He said (42):

In my opinion the character and purpose of the provision are such that a construction which would curtail its operation in the manner and for the reason suggested ought not to be adopted."

His Honour observed (43):

And so would s. 155 be rendered relatively valueless if privilege against exposure to a penalty were allowed as a ground of non-compliance with sub-s. (5). Section 155 creates obligations in aid of *357 an investigation "relating to a matter that constitutes or may constitute a contravention of this Act" (sub-s. (1)). Proof of some of the practices and of many of the elements of the practices proscribed by Pt IV is likely to be available only from persons who have contravened the relevant provision or who have otherwise become liable to a penalty pursuant to s. 76(1). To allow such a person exemption from the obligations created by sub-s. (5) upon the ground that compliance with the obligation may tend to expose him to a penalty would so hobble investigation as to render much of Pt IV unenforceable.

Therefore I do not accept the appellants' argument that a privilege against exposure to a penalty is to be implied in qualification of the obligation created by sub-s. (5). Rather, no qualification is to be implied arising from a privilege against exposure to a penalty in the absence of a contrary statutory provision. Sub-section (7) does not so provide expressly. Nor, on analysis, does it so provide by implication.

Sub-section (7) falls into two parts: the first part denies that self-incrimination is an excuse for failing to comply with the requirements of a notice; the second part limits the admissibility in criminal proceedings of the evidentiary material obtained by use of a s. 155 notice. The two parts relate to different legal questions arising at different times. For the reasons stated, the first part must be taken to have been inserted ex abundanti cautela. But it was an appropriate cautionary step for the draftsman to take in the course of providing a limitation upon the use in evidence of the material disclosed or produced by a person served with a notice under s. 155. The limitation upon the use in evidence of that material is expressed in the latter part of sub-s. (7) and is enacted in conformity with the practice to which Lord Campbell C.J. alluded in Reg. v. Scott(44):

"When the Legislature compels parties to give evidence accusing themselves, and means to protect them from the consequences of giving such evidence, the course of legislation has been to do so by express enactment ...."

If it were not for the second part of sub-s. (7), it would be necessary to ascertain as a matter of construction of the whole of the Act whether the legislature intended that the evidentiary material obtained by use of a s. 155 notice would be admissible against the person from whom it was obtained in any criminal proceeding, in *358 accordance with the principle stated by Lord Reid in Commissioners of Customs and Excise v. Harz(45) cited above. Contraventions of Pt IV cannot be the subject of criminal prosecution (s. 78) and sub-s. (7) accordingly does not affect an investigation under s. 155 of a matter that constitutes or may constitute a contravention of Pt IV. If a person served with a notice with respect to an investigation of a matter constituting a contravention or a possible contravention of Pt IV were thereby required to furnish information or to produce a document which might tend to incriminate him, the statutory exclusion of the excuse of self-incrimination by sub-s. (7) would merely confirm that person's obligation to furnish the information or produce the document. The circumstance that sub-s. (7) does not relate to the privilege against exposure to a penalty gives no reason for implying that privilege as a qualification upon the obligation created by sub-s. (5). It follows that the appellants' argument fails.

It is unnecessary to consider the argument that the privilege against self-incrimination does not apply to corporations and to consider what was said upon that question by the Court of Appeal in Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd.(46).

The appeals should be dismissed.

Appeals dismissed with costs.

Solicitors for the appellant in the first appeal, Freehill Hollingdale & Page.

Solicitors for the appellants in the second appeal, Moules.

Solicitor for the respondents, B. J. O'Donovan, Crown Solicitor for the Commonwealth.

R.A.S.

FN(1) (1982) 57 F.L.R. 368; 39 A.L.R. 565.

FN(2) (1982) 40 A.L.R. 367; 1 T.P.R. 223.

FN(3) [1939] 2 K.B. 395.

FN(4) [1948] 1 K.B. 500.

FN(5) (1962) 36 D.L.R. (2d) 45.

FN(6) [1891] P. 139, at p. 147.

FN(7) [1942] 2 K.B. 253, at p. 257.

FN(8) [1897] 2 Q.B. 111, at p. 115.

FN(9) (1910) 11 C.L.R. 738, at pp. 742-748.

FN(10) [1978] A.C. 547, at pp. 612, 636.

FN(11) (1979) 36 F.L.R. 450.

FN(12) (1977) 137 C.L.R. 150.

FN(13) (1961) 61 S.R. (N.S.W.) 862.

FN(14) [1944] A.L.R. 249.

FN(15) [1978] A.C., at pp. 563-564.

FN(16) Ante, p. 188.

FN(17) (1979) 36 F.L.R. 450.

FN(18) [1974] V.R. 773.

FN(19) (1896) 161 U.S. 591 [40 Law. Ed. 819].

FN(20) (1979) 42 F.L.R. 204.

FN(21) (1935) 54 C.L.R. 126, at p. 130.

FN(22) (1968) 392 U.S. 286 [20 Law. Ed. 2d 1094].

FN(23) (1944) 322 U.S. 694 [88 Law. Ed. 1542].

FN(24) (1970) 122 C.L.R. 493.

FN(25) (1979) 36 F.L.R., at p. 453.

FN(26) [1978] A.C., at p. 563.

FN(27) (1910) 11 C.L.R. 738.

FN(28) [1897] 2 Q.B., at p. 115.

FN(29) (1962) 36 D.L.R. (2d) 45.

FN(30) (1979) 36 F.L.R. 450.

FN(31) (1979) 36 F.L.R., at p. 454.

FN(32) (1979) 36 F.L.R., at pp. 469-470.

FN(33) (1979) 36 F.L.R., at pp. 474-475.

FN(34) [1939] 2 K.B. 395.

FN(35) [1939] 2 K.B., at pp. 408-409.

FN(36) [1931] 1 D.L.R. 831, at pp. 833, 834.

FN(37) [1939] 2 K.B., at p. 409.

FN(38) (1962) 36 D.L.R. (2d) 45.

FN(39) [1955] 2 D.L.R. 513.

FN(40) (1968) 392 U.S. 286, at p. 288 [20 Law. Ed. (2d) 1094, at p. 1097].

FN(41) (1944) 322 U.S. 694, at p. 698 [88 Law. Ed. 1542, at p. 1546].

FN(42) (1944) 322 U.S. 694, at p. 698 [88 Law. Ed. 1542, at p. 7546].

FN(43) [1891] P. 139, at p. 147.

FN(44) (1886) 16 Q.B.D. 507.

FN(45) [1897] 2 Q.B. 111.

FN(46) (1910) 11 C.L.R. 738.

FN(47) [1910] 2 K.B. 59, at p. 66.

FN(48) (1910) 11 C.L.R., at p. 747.

FN(49) (1979) 42 F.L.R. 204.

FN(50) (1979) 42 F.L.R., at pp. 207-208.

FN(51) (1935) 54 C.L.R. 126, at p. 130.

FN(52) (1979) 42 F.L.R., at p. 208.

FN(53) [1906] A.C. 434, at pp. 437-438.

FN(54) [1897] 2 Q.B., at p. 115.

FN(55) (1736) 1 Atk. 526, at p. 527 [26 E.R. 332, at p. 332].

FN(56) (1864) 5 B. & S. 829, at p. 838 [122 E.R. 1038, at p. 1042].

FN(57) [1897] 2 Q.B., at p. 116.

FN(58) [1897] 2 Q.B., at p. 121.

FN(59) (1944) 44 S.R. (N.S.W.) 416.

FN(60) [1944] A.L.R. 249.

FN(61) (1944) 44 S.R. (N.S.W.) 360.

FN(62) [1974] V.R. 773.

FN(63) [1951] V.L.R. 393.

FN(64) [1972] 1 N.S.W.L.R. 608.

FN(65) [1963] V.R. 579, at p. 581.

FN(66) (1944) 44 S.R. (N.S.W.), at p. 429.

FN(67) (1913) 13 S.R. 451, at pp. 458-460.

FN(68) [1944] A.L.R., at p. 253.

FN(69) [1944] A.L.R., at p. 253.

FN(70) [1944] A.L.R., at p. 254.

FN(71) [1944] A.L.R., at p. 251.

FN(72) (1959) 61 S.R. (N.S.W.) 862.

FN(73) (1959) 61 S.R. (N.S.W.), at p. 876.

FN(74) (1959) 61 S.R. (N.S.W.), at p. 872.

FN(75) [1967] 1 A.C. 760.

FN(76) [1967] 1 A.C., at p. 816.

FN(77) [1967] 1 A.C., at p. 816.

FN(78) (1944) 44 S.R. (N.S.W.) 416.

FN(79) [1969] 1 Ch. 1, at p. 9.

FN(80) (1856) Dears. C.C. 656 [169 E.R. 885].

FN(81) (1856) Dears. & B. C.C. 47 [169 E.R. 909].

FN(82) (1873) L.R. 4 P.C. 599.

FN(83) (1977) 137 C.L.R. 150.

FN(84) (1970) 122 C.L.R. 493.

FN(85) (1970) 122 C.L.R., at p. 496.

FN(86) (1970) 122 C.L.R., at p. 498.

FN(87) [1974] V.R. 773.

FN(88) [1974] V.R., at pp. 778-779.

FN(89) (1970) 122 C.L.R. 493.

FN(90) (1910) 11 C.L.R. 738.

FN(91) [1897] 2 Q.B.D. 111, at pp. 114-115.

FN(92) (1910) 11 C.L.R. 738, at p. 742.

FN(93) [1942] 2 K.B. 253, at p. 257.

FN(94) (1944) 322 U.S. 694, at p. 701 [88 Law. Ed. 1542, at p. 1547].

FN(95) (1911) 221 U.S. 612, at p. 622 [55 Law. Ed. 878, at p. 884].

FN(96) (1906) 201 U.S. 43, at pp. 69-70, 74-75 [50 Law. Ed. 652, at pp. 663, 665].

FN(97) (1968) 392 U.S. 286 [20 Law. Ed. (2d) 1094].

FN(98) (1944) 322 U.S., at pp. 699-700 [88 Law. Ed., at pp. 1546- 1547].

FN(99) (1911) 221 U.S. 361, at pp. 384-385 [5 Law. Ed. 771, at p. 781].

FN(1) [1939] 2 K.B. 395.

FN(2) [1978] A.C. 547.

FN(3) (1694) 4 St. Tr. 1269.

FN(4) Ante, p. 188.

FN(5) (1948) 76 C.L.R. 501.

FN(6) (1982) 151 C.L.R. 1.

FN(7) [1944] A.L.R. 249.

FN(8) (1979) 36 F.L.R. 450.

FN(9) (1979) 36 F.L.R., at p. 474.

FN(10) (1912) 15 C.L.R. 333.

FN(11) Ante, p. 188.

FN(12) (1980) 44 F.L.R. 182; 32 A.L.R. 328.

FN(13) [1897] 2 Q.B. 111, at p. 115.

FN(14) (1707) Park. 269 [145 E.R. 777].

FN(15) [1967] 1 A.C. 760.

FN(16) [1967] 1 A.C., at p. 816.

FN(17) (1944) 44 S.R. (N.S.W.) 416.

FN(18) (1944) 44 S.R. (N.S.W.), at p. 429.

FN(19) (1913) 13 S.R. (N.S.W.) 451, at 458-460.

FN(20) [1944] A.L.R. 249.

FN(21) [1944] A.L.R., at p. 251.

FN(22) [1944] A.L.R., at p. 253.

FN(23) [1944] A.L.R., at p. 254.

FN(24) [1944] A.L.R., at p. 253.

FN(25) (1873) L.R. 4 P.C. 599.

FN(26) [1944] A.L.R., at p. 252.

FN(27) (1944) 44 S.R. (N.S.W.) 360, at p. 368.

FN(28) [1958] S.R. (N.S.W.) 85.

FN(29) [1958] S.R. (N.S.W.), at p. 107.

FN(30) (1959) 61 S.R. (N.S.W.) 862.

FN(31) [1961] S.R. (N.S.W.), at p. 876.

FN(32) [1958] S.R. (N.S.W.) 85, at p. 107; [1961] S.R. (N.S.W.), at p. 872.

FN(33) Ante, p. 281.

FN(34) (1953) 90 C.L.R. 336, at p. 342.

FN(35) (1977) 137 C.L.R. 150, at p. 152.

FN(36) (1852) 7 Exch. 421, at p. 428 [155 E.R. 1013, at p. 1016].

FN(37) (1882) 10 Q.B.D. 110.

FN(38) (1882) 20 Ch. D. 294.

FN(39) [1939] 2 K.B. 395, at pp. 403, 404.

FN(40) [1942] 2 K.B. 253, at p. 257.

FN(41) (1970) 122 C.L.R. 493.

FN(42) (1970) 122 C.L.R., at p. 498.

FN(43) (1970) 122 C.L.R., at p. 496.

FN(44) (1856) 7 Cox C.C. 164, at pp. 170, 171; Dears. & Bell 47, at p. 60 [169 E.R. 909, at p. 914].

FN(45) [1967] 1 A.C. 760, at p. 816.

FN(46) [1939] 2 K.B., at pp. 408, 409.

<end>