case_text: next question that arises is: Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act? These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009). The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry.


case_outcome: cited

case_title: George v Rockett (1990) 93 ALR 483

case_text: a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter. That view is consistent with the approach to the notion of "reasonable grounds" in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374. In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts. In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU. In the face of an employer's objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer's claims and form a view as to whether the claims are well placed or not. If the Unions and the permit holders are satisfied that the claims are misplaced , the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised. Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry. That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker. That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter.


case_title: Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374


case_text: first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry.


case_title: Leonard v Morris (1975) 10 SASR 528

case_text: I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described ( Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009.


case_text: A convenient recitation of the events that are a background to this proceeding is to be found in the head note of the decision of the High Court in Nudd v R [2006] HCA 9 ; (2006) 225 ALR 161. What is there stated is as follows: "Police and customs officers intercepted a yacht in Moreton Bay on 3 May 2001. On board they found 89 kilograms of cocaine. There were two men on the yacht when it was boarded, a citizen of the United States, Peter Jackson and his son, Gareth Jackson. They left Mexico in May 2000 on the yacht and sailed to Noumea. From there they flew to Australia on 7 December 2000, where they remained until their visas expired in March 2001. On 7 March 2001, Peter Jackson fled to the United States where he obtained a false United States passport. On 28 March 2001, he flew from the United States to Noumea on the false passport. He then sailed the yacht from Noumea to Moreton Bay where the boat was intercepted. The part of the period of three months, in which the two men were in Australia, they lived in a motel in Sydney. A listening device had been installed in their room to intercept telephone conversations. Eleven of those conversations were between Peter Jackson and the appellant, - (whom I interpolate is the applicant presently before me) - , who was an Australian citizen and then living in Los Angeles. The appellant was charged (in other words, the present applicant was charged) with being 'knowingly concerned' in the importation of cocaine into Australia contrary to section 233B of the Customs Act 1901 . The intercepted conversations between the appellant and Jackson, the prosecution contended, showed clearly that the former was assisting, or attempting to assist in the resolution of the problems of making arrangements for the importation. The appellant was convicted by the Supreme Court of Queensland of the offence, charged and sentenced to 22 years imprisonment. An appeal to the Court of Appeal was dismissed. The appellant appealed to the High Court contending there was a miscarriage of justice because of the incompetence of counsel who: failed to understand and properly advise on the elements of the offence charge; failed to take appropriate instructions; failed to appreciate or advance two lines of defence reasonably open; made submissions of fact in error and/or without instructions to do so; failed to object to inadmissible and highly prejudicial material contained in the telephone intercepted tapes, being admitted." 3 The conclusions reached by the High Court in that case were that Mr Nudd's counsel was incompetent to a serious degree. Notwithstanding that, the Court further concluded that he had not been deprived of a chance of an acquittal because the case against him was a strong one and effectively unanswerable. 4 It is necessary to say something further about the chronology of events that led up to that High Court appeal. As I have mentioned, on 6 May 2001 an arrest warrant sought to be impeached in these proceedings was issued. On 28 February 2002, an extradition occurred with the result that Mr Nudd was returned to Australia and then remanded in custody. He was convicted on 22 July 2003, before a Supreme Court Judge and a jury. It was then that the sentence of 22 years imprisonment was imposed with a non-parole period of 11 years. On 14 May 2004, his appeal against conviction, a sentence appeal having been abandoned, was dismissed. The High Court proceeding that I have mentioned concluded with the dismissal of the appeal, following an earlier grant of special leave on 9 March 2006. 5 Since then, in a number of ways, in the Courts of the State of Queensland, Mr Nudd has sought to ventilate whether the original arrest warrant was valid. It suffices to note that none of those proceedings has been successful. The Respondents to the application have today sought its dismissal on the basis that it is an abuse of process. They particularly point to s 9A of the Administrative Decisions (Judicial Review) Act and its deprivation where it applies on this Court's jurisdiction. 6 One may note that the position ought not be any different were it the case that, in some way, it was the Judiciary Act 1903 that was called in aid in respect of the application. That is because there is in both the Judiciary Act 1903 in s 39B (3) and in the Administrative Decisions (Judicial Review) Act , s 9A , a coincidence of reference and definition. That coincidence is in the term "Related criminal justice process decision". For that reason I consider only s 9A of the Administrative Decisions (Judicial Review) Act . That section provides that relevantly in para (a): At any time when the prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court. Or, (b): An appeal arising out of such prosecution is before any court; No court has jurisdiction to hear, continue to hear or determine an application under this Act by the person who is or was the defendant in the prosecution in relation to a related criminal justice process decision.


case_outcome: considered

case_text: There is now a considerable body of authority dealing with this provision although its proper application is not altogether free from difficulty. The first matter to emphasise about the exception in subs (3) is that it applies not to a document as such but to a representation or representations contained in a document. It is well accepted that the hearsay rule contained in s 69(2) is founded on the "rationale of reliability" of business records generally. The exception to that subsection is founded on a "rationale of unreliability" of representations made in the circumstances envisaged by subs (3): see generally Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357 ; (2005) 147 FCR 235 at [27] . As Barrett J put the matter in Vitali v Stachnik [2001] NSWSC 303 at [12] : The purpose of the exclusion is ... to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings. 10 The focus of the contemplation referred to in subs (3)(a) is, as Lindgren J indicated in the Advanced Medical Institute case, upon the contemplation of the person who "prepared" or "obtained" the relevant representation. As his Honour said at [25]-[27]: 25. ... In order for s 69(3)(a) to apply, a person must have "prepared" or "obtained" the representation (not the document) in contemplation of a proceeding. It is an unusual use of language to refer to the "preparing" of a representation, but I think that the intention is clear enough; the reference is to the person who prepared, formulated, shaped or framed the terms in which the representation is made. This will typically, perhaps always, be or include the maker of the representation. 26. The person who "obtains" a representation is a person who seeks the representation or procures it to be made. This person is not the maker of the representation, but may be a person who "prepared" it. 27. By referring to persons who prepared or obtained the representation, the legislature was attempting to encompass all those who might cause a representation to be made in the form which it takes.


case_title: Vitali v Stachnik [2001] NSWSC 303

case_text: There is now a considerable body of authority dealing with this provision although its proper application is not altogether free from difficulty. The first matter to emphasise about the exception in subs (3) is that it applies not to a document as such but to a representation or representations contained in a document. It is well accepted that the hearsay rule contained in s 69(2) is founded on the "rationale of reliability" of business records generally. The exception to that subsection is founded on a "rationale of unreliability" of representations made in the circumstances envisaged by subs (3): see generally Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357 ; (2005) 147 FCR 235 at [27] . As Barrett J put the matter in Vitali v Stachnik [2001] NSWSC 303 at [12] : The purpose of the exclusion is ... to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings.


case_text: It is well established that before it can be said that a representation was prepared or obtained in contemplation of a proceeding, it must be established that a proceeding was "likely" or "reasonably probable": see Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [61] and the cases there mentioned. The two questions which need to be determined for present purposes are, first, can it be said that legal proceedings were in contemplation and, second, if so, were they in the contemplation of the person or persons who prepared or obtained the relevant representations? For present purposes I am satisfied that representations contained in the documents which indicate that there were products purchased from retailers which did not contain AMC's insert in the packaging (ie products which were parallel imports) are at least presently relevant representations. As to the question whether legal proceedings were in contemplation at that time between AMC and Hamilton, I am not satisfied on the material before me such was the case. As I indicated above, the evidence does not suggest there was a likelihood or reasonable probability of legal proceedings at the relevant time. While the relationship of the parties at this time was undoubtedly tense, they had by then been in a long term relationship spanning 14 years. Such references as were made in correspondence to Hamilton's alleged responsibility to compensate AMC either for Dr Lam's success fee or for loss sustained by AMC from parallel importing could at best only be properly treated as reflecting a negotiating process between the parties at this stage. 12 When one turns to the contemplation of legal proceedings in Hong Kong, the situation is quite different. It is clear that from August 2002, as the investigation into parallel importing appeared to bear fruit in AMC's eyes, the prospect of taking proceedings against distributors and retailers was a very real one. Notwithstanding that AMC obviously was wishing to resolve disputes without resort to legal proceedings and the correspondence reflects this it also makes it perfectly plain that litigation was contemplated. It suggests that, by early September, proceedings were pending and on the evidence before me a writ had been issued by mid-October which, coincidentally, was the time at which the last group of documents in the bundle were referrable. For this reason I am prepared to infer that so far as Dr Keung and Dr Lam were concerned, legal proceedings throughout the time period covered by the business records in question were likely or reasonably probable against Hong Kong distributors and/or retailers involved in alleged parallel importing.


case_text: For my own part, I am satisfied that the decision of Santow J places an undue limitation upon the clear wording of s 69(3) and is inconsistent with the underlying purpose of the provision itself. Section 69(3) refers only to a proceeding without any limitation as to parties: see the observations of Hamilton J in Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4] (4).


case_text: The unreliability of evidence of representations made or prepared in a context which might cause the representation to be self serving is, in my view, as likely to exist whether or not the proceedings in contemplation was the one in which the representation was sought to be tendered. It is, in my view, unsurprising that the decision of Santow J has in this respect attracted criticism: see Odgers, Uniform Evidence Law (7 th ed) at [1.3.2880]. For my own part I am not prepared to follow the Kang v Kwan decision. I am satisfied that the legal proceedings in contemplation referred to in s 69(3) relate to any legal proceedings in which the representation might become admissible and is not confined to the proceedings in which the statement is sought to be tendered: cf Feltafield Pty Limited v Heidelberg Graphic Equipment (1995) 56 FCR 481 at [487A].


case_text: The applicant appeals from a decision of the Administrative Appeals Tribunal constituted by the Honourable C R Wright QC, Deputy President, which affirmed a decision of a delegate of the Minister to cancel the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) (the Act): Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1051. It was not in dispute that the applicant failed to pass the "character test" because he had a "substantial criminal record": s 501(6)(a) ,(7)(c). The Minister nevertheless had a discretion to refuse to cancel the visa and the delegate was subject to ministerial directions under s 499. 2 On 3 December 2003 the applicant was convicted by a jury in the Supreme Court of Tasmania of attempting to murder his wife Ann Flowers. He was sentenced to imprisonment for a period of four and a half years with parol eligibility after two years three months. 3 At the trial Mrs Flowers gave evidence that on the evening of 9 May 2003 she returned to the matrimonial home at about 7.55 pm and found her husband waiting inside. He appeared to have been drinking heavily. She went to the bedroom and lay on the bed reading a magazine. Shortly afterwards the applicant entered, picked up a loaded gun which was kept in the bedroom, and said to her "I've been waiting all day for you you bitch you are going to die you bitch."


case_outcome: applied

case_text: In the context of decisions under s 501 it was not open to the applicant to challenge his conviction or the essential facts giving rise thereto: Luu v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1021 , Bridges v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 1647.


case_title: Bridges v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 1647


case_outcome: distinguished

case_text: Senior counsel for the applicant submitted that there was jurisdictional error in that the decision of the Tribunal was so unreasonable that no reasonable decision-maker could make it ( Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223) and that its fact finding process was "tainted by extreme irrationality or illogicality". 21 This ground was said to arise because, as expressed in its conclusion quoted above, the Tribunal had formed a "perception" without logically reasoning to it. The decision was arbitrary without a logical course of reasoning. 22 This argument is without foundation. Plainly in par 24 of its reasons the Tribunal was using "perception" in the sense of a conclusion or finding, not some idiosyncratic or capricious impression. It was entirely open to the Tribunal to conclude on the evidence, and particularly that relating to the offence itself, that the applicant was a man who was, in the language of the Tribunal, "self-absorbed, emotive and vengeful". There was every reason to think that if released and at large in Australia he might continue to pursue Mrs Flowers. This was a case where even if the risk of re-offending could be assessed as slight, the possible outcome if the risk eventuated would be catastrophic, involving the death of or serious injury to a particular person.


case_text: This was not a relevant consideration in the Peko-Wallsend sense, that is to say it was not a consideration the Tribunal was bound to take into account, having regard to the text of the Migration Act or by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39-41. At best it was evidence. Even if it had been ignored there would have been no legal error by the Tribunal, still less jurisdictional error. 25 But in any event there is no reason to conclude that the Tribunal did not pay regard to Dr Sale's report. Moreover, the character and medical problems detailed by Dr Sale are by no means confined to the lymphoma question. It is a considerable distortion to impute to Dr Sale the view that (i) all the applicant's criminal behaviour was due to his fear of lymphoma, (ii) it is now established he does not have lymphoma, (iii) ergo there is now no risk of further criminal behaviour, and in particular, towards his wife. 26 The appeal will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: S P Estcourt QC and G J Barns Solicitor for the Applicant: Don Armstrong Counsel for the Respondent: G Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 March 2006 Date of Judgment: 28 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/307.html


case_outcome: discussed

case_text: In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Mahoney J adopted a threefold enquiry in determining whether a binding contract had been concluded between the parties. His Honour said that it would be of assistance to distinguish between three questions: • Did the parties arrive at a consensus? • If they did, was it such a consensus as was capable of forming a binding contract? • And, if it was, did the parties intend that the consensus at which they arrived should constitute a binding contract?


case_outcome: referred to

case_text: There are many cases to the same effect. See for example Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 316 317; Allen v Carbone [1975] HCA 14 ; (1975) 132 CLR 528 at 533; and Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548.


case_title: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540


case_text: The case which an applicant presents must support the case which that applicant has pleaded. If the evidence supports a different case an application should be made to amend the pleadings to bring them into line with the facts as proved. See, for example, Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 286 287; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 at [132].


case_text: A similar approach was taken by Gillard J in Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd [2004] VSC 1 at [90] , and also by Habersberger J in P R A Electrical Pty Ltd v Perseverance Exploration Pty Ltd [2006] VSC 432 at [28] [29].


case_title: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209


case_text: I discussed a number of these cases in Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 at [206] [209] and [211] [229]. That case concerned two senior scientists who left their employ with a large public company because they were offered the opportunity to engage in a high risk, but high reward, venture with the respondent. They claimed they had entered into an agreement with the respondent which was binding and legally efficacious, but that the respondent had repudiated that agreement. The respondent denied that any such agreement had been concluded. 177 I held that the applicants had established the existence of the binding agreement pleaded. The board of the respondent, a public company, had specifically considered and approved a detailed and documented proposal for the particular venture. Not all the "i"s were dotted and not all the "t"s crossed. However, the critical elements had all been agreed, and those that were not expressly agreed would readily be the subject of implication. 178 The present case is a far cry from Macdonald . Even on Mr Quinlan's case a number of essential terms were uncertain or lacking. Alternatively, if those terms are not regarded as "essential", they were terms of the kind that would ordinarily be expected to be agreed in a complex agreement involving major property developments and potentially large amounts of money. I refer in particular to matters such as: • the funding arrangements that would be put in place to support the venture, ie to purchase and develop properties; • the duration of the venture; • how and when profits would be distributed; and • the exact terms upon which the $500,000 would be paid, if called upon.


case_title: Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310


case_text: Even accepting Mr Quinlan's account of the relevant conversations, he has not established that the parties arrived at a consensus. If they did, it was not a consensus that was capable of forming a binding contract. And, if it was, viewed objectively, in accordance with Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] , the parties did not intend that the consensus at which they arrived should constitute a binding contract. 182 In arriving at that conclusion, I have given weight to the fact that the discussions between the parties concerned major property developments. It would have been plain to Mr Quinlan that any venture of the type he contemplated would have required millions of dollars in finance. The arrangement that he asserts could never have gotten off the ground without the Brady interests being prepared to contribute large amounts of money. Mr Quinlan had no significant assets, and no capacity to borrow even relatively modest amounts of money. 183 I have also given weight to the fact that, at the relevant time, Mr Quinlan and Mr Brady were barely acquaintances. This was not a handshake deal done between longstanding business associates, where perhaps some latitude in relation to formality might be accorded.


case_text: A particularly helpful statement of the relevant legal principles is to be found in Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106. The issue in that case was whether a binding agreement had been made in December 1990 between two Toyota companies, and the respondent, for a rescue package, the respondent having been in financial difficulties for some months. The negotiations resulted in a letter dated 19 December 1990 which, together with a one page enclosure referred to the "now agreed to conditions". The respondent claimed that Mr Morgan had telephoned a senior Toyota official shortly after receipt of the letter, and accepted the offer contained in it. 168 It was important to note that the enclosure, which contained the details of the rescue package, set out various conditions relating to the offer, a timetable under which those conditions had to be met, and a statement to the effect that if the financial position indicated that the Ken Morgan group could not be viable even after the current offer was concluded, Toyota would not proceed with that offer. 169 The trial judge held that a binding agreement was made in December 1990, the terms of which were set out in the letter and the enclosure. On appeal, the Full Court of the Supreme Court of Victoria overturned that finding.


case_text: As I have noted, there is no dispute that the Minister was required to comply with the rules of procedural fairness before making the decision to cancel the applicant's visa. There is also no dispute that if the Minister failed to afford the applicant procedural fairness, the cancellation decision would be affected by jurisdictional error. In these circumstances, relief in the nature of certiorari would be available to quash the decision: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82 ; Plaintiff S157 v Commonwealth (2003) 211 CLR 476 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651.


case_text: In assessing the reasonableness of the Minister's actions, it is appropriate, in my view, to take account of the serious consequences to the visa holder of a cancellation of his or her visa. Although perhaps the point is self-evident, the Full Court in Minister v George (at 145 [53]) emphasised the potentially devastating consequences of a decision to cancel the visa of a permanent resident of Australia. A useful analogy is the principle that in applying the standard of proof on the balance of probabilities, a court takes account of the seriousness of the factual issue and of the gravity of the consequences flowing from a particular adverse finding: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , at 343-344, per Latham CJ; at 362-363, per Dixon J. By parity of reasoning, the circumstances relevant to the reasonableness of the Department's attempts to notify a visa holder include the gravity of the consequences for that person of a decision to cancel his or her visa.


case_text: The Minister relies on the decisions of French J in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416 and of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450. These authorities are said to stand for the principle that the requirements of procedural fairness are satisfied if the Department or Minister has made reasonable efforts to notify the visa holder that cancellation of the visa is under active consideration. In this case, the Department had made such efforts over a period of time, including the inquiry made of Centrelink after the notice of intention to consider cancellation of the applicant's visa, sent on 28 June 2007 had been returned undelivered. The Minister submits, therefore, that the present case falls within the principle established by Osborne v Minister and Minister v Ball and that the applicant was not denied procedural fairness despite not receiving any of the three notices sent to him. 29 In his oral submissions, Mr Karp, who appeared for the applicant, contended that the Department had not made reasonable efforts to ensure that the notice of intention to consider cancellation of the visa actually came to the attention of the applicant. He argued that there were obvious steps that the Department could and should have taken once the notice of 28 June 2006 was returned undelivered. In the absence of evidence that the Department had made additional inquiries, the present case could not be said to be governed by the principle applied in Osborne v Minister and Minister v Ball . 37 Osborne v Minister was followed by the Full Court in Minister v Ball . In the latter case, the notice was sent by the Department to an address in Kalgoorlie supplied by the visa holder when she had appeared in court charged with an offence in January 2003. It was also the address she had supplied to the Australian Taxation Office in March 2002. The Department sent the notice on 29 January 2003, but the visa holder had moved to Melbourne a few days earlier. The notice was returned to the Department ' unclaimed ' on 11 March 2003. 41 Shortly after the decision in Minister v Ball , a Full Court addressed similar issues in Minister v George , although the judgment of the Court made no reference to the earlier decision of the Full Court. In Minister v George , the Department sent two letters to the visa holder. The first was sent to an address held by the Department, but it was returned undelivered. The second was sent to an address supplied by the Western Australian Police. The visa holder was not living at this address at the time, although he commenced living there later. The second letter was not returned to the Department, but the visa holder received neither letter. The Minister subsequently cancelled her visa. The Minister believed at the time he made the decision that the visa holder had been notified of the cancellation process and had not taken up the invitation to make submissions. 48 It is not easy to reconcile the Full Court decisions in Minister v Ball and Minister v George . In each case, so it would seem, the Minister erroneously believed on reasonable grounds that the visa holder had been notified of the intention to consider cancellation of the visa. In George such a finding was express. In Minister v Ball it is to be inferred from the finding that the Departmental Issues Paper informed the Minister that the visa holder had been notified and had not responded, but did not inform the Minister that the notice sent to the visa holder had been returned undelivered. The precise holding in Minister v George was that the Minister committed a jurisdictional error by acting on his erroneous belief that the visa holder had received actual notice that cancellation of the visa was under active consideration. 53 The question of whether the Minister or the Department has taken reasonable steps is a question of fact, dependent upon the particular circumstances of the case. In Osborne v Minister , French J thought that sending the notice to the last address provided by the visa holder, which in fact had been his address for three months after his release, was reasonable. His Honour was fortified in that conclusion by the fact that the address was that of the visa holder's mother and the further fact that the registered letter sent to that address had not been returned. In Minister v Ball , the Court was influenced by the absence of any alternative address for the visa holder and the failure of the visa holder's counsel to identify any further step that the Department could reasonably and practically take to notify the visa holder that cancellation was under consideration.


case_text: Regulation 2.55 of the Migration Regulations was made pursuant to the powers conferred by s 504(1)(e) and (3) of the Migration Act : Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 ; (2004) 139 FCR 127 , at 140 [33], per curiam . Regulation 2.55 applies, among other cases to ' the giving of a document to a holder ... of a visa relating to the proposed cancellation ... of a visa ': reg 2.55(1)(a). Regulation 2.55(3) provides that a document of this kind must be served in one of a number of specified ways including: '(c) by dating it, and then dispatching it: (i) within 3 working days (in the place of dispatch) of the date of the document; and (ii) by prepaid post ... to the person's last residential address ... known to the Minister.' 9 Regulation 2.55(7) provides that if the Minister gives a document to a person by dispatching it by prepaid post, the person is taken to have received the document seven working days after the date of the document. 10 The applicant, his partner and one of their three children gave affidavit evidence in the proceedings. Counsel for the Minister, Mr Kennett, did not object to any portion of the affidavits read on behalf of the applicant. Nor did Mr Kennett cross-examine any of the deponents. There is therefore no dispute about the underlying facts. 41 Shortly after the decision in Minister v Ball , a Full Court addressed similar issues in Minister v George , although the judgment of the Court made no reference to the earlier decision of the Full Court. In Minister v George , the Department sent two letters to the visa holder. The first was sent to an address held by the Department, but it was returned undelivered. The second was sent to an address supplied by the Western Australian Police. The visa holder was not living at this address at the time, although he commenced living there later. The second letter was not returned to the Department, but the visa holder received neither letter. The Minister subsequently cancelled her visa. The Minister believed at the time he made the decision that the visa holder had been notified of the cancellation process and had not taken up the invitation to make submissions. 45 The Minister's alternative contention in Minister v George was that procedural fairness had been satisfied because reasonable steps had been taken to notify the visa holder. The Court considered (at 142 [40]) that this contention raised the following question: 'where notice is sent to an address that was believed by the Minister or his officers, on reasonable grounds, to be the current residential address of a visa holder, does that satisfy the prerequisite of procedural fairness, when the address has never in fact been an address of the visa holder?' 46 Their Honours answered this question in the negative (at 145 [53]): 'Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error. The question is whether that error is a jurisdictional error. In order to determine whether a particular order is jurisdictional, it is essential to consider the relevant statutory context. ... In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case.' 47 The Court recognised (at 145 [54]) that there might be circumstances where the procedure followed by the Department is fair, even though the visa holder does not receive the notice. Their Honours gave the example of a person who avoids communicating with the Minister because of a fear that the communication may be detrimental. They also observed (at 146 [54]) that between the clear-cut cases: 'there will be some circumstances which involve lack of procedural fairness and others where there will be no want of procedural fairness.' 48 It is not easy to reconcile the Full Court decisions in Minister v Ball and Minister v George . In each case, so it would seem, the Minister erroneously believed on reasonable grounds that the visa holder had been notified of the intention to consider cancellation of the visa. In George such a finding was express. In Minister v Ball it is to be inferred from the finding that the Departmental Issues Paper informed the Minister that the visa holder had been notified and had not responded, but did not inform the Minister that the notice sent to the visa holder had been returned undelivered. The precise holding in Minister v George was that the Minister committed a jurisdictional error by acting on his erroneous belief that the visa holder had received actual notice that cancellation of the visa was under active consideration. 50 In view of the decision in Minister v George , it may have been open to Mr Karp to argue on behalf of the applicant that the Minister must have erroneously believed, at the time of the cancellation decision, that the applicant had received actual notification of the intention to consider cancelling the visa. It was obvious from the Issues Paper that the applicant had not received the third notice of 28 June 2007. However, the Issues Paper recorded that ' Receipt of one of the Notices [of 10 January 2000] was confirmed by Australia Post on 15 January 2007 '. This may have supported an inference that the Minister took the Issues Paper to imply that the applicant had received the second notice of 10 January 2007, particularly as a person not familiar with the applicant's signature could well have read the signature as that of the applicant. But Mr Karp made no such submission. 51 Mr Kennett appreciated the potential difficulty for the Minister's case if the applicant submitted that the Court should find that the Minister erroneously believed that the applicant had received the second notice. At the conclusion of his oral submissions, Mr Kennett expressly noted that the applicant had made no suggestion to this effect and that it was therefore not necessary for him to deal with the decision in Minister v George . The Minister's submissions, like those of the applicant, proceeded on the basis that the Minister had not formed a belief that the applicant had actually received a notice warning him that consideration was to be given to cancelling his visa. 52 Mr Kennett accepted that, since the applicant had not been actually notified of the cancellation process, he had been denied procedural fairness unless the Minister could show that reasonable steps had been taken to notify the applicant that the process was under way. Mr Kennett pointed out that the Minister's acceptance of this proposition potentially left room for reg 2.55 to operate by deeming service of the notice to have been effected. However, as will be seen, Mr Kennett placed no reliance on reg 2.55 in the circumstances of this case. 54 In assessing the reasonableness of the Minister's actions, it is appropriate, in my view, to take account of the serious consequences to the visa holder of a cancellation of his or her visa. Although perhaps the point is self-evident, the Full Court in Minister v George (at 145 [53]) emphasised the potentially devastating consequences of a decision to cancel the visa of a permanent resident of Australia. A useful analogy is the principle that in applying the standard of proof on the balance of probabilities, a court takes account of the seriousness of the factual issue and of the gravity of the consequences flowing from a particular adverse finding: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , at 343-344, per Latham CJ; at 362-363, per Dixon J. By parity of reasoning, the circumstances relevant to the reasonableness of the Department's attempts to notify a visa holder include the gravity of the consequences for that person of a decision to cancel his or her visa.


case_text: The Minister relies on the decisions of French J in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416 and of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450. These authorities are said to stand for the principle that the requirements of procedural fairness are satisfied if the Department or Minister has made reasonable efforts to notify the visa holder that cancellation of the visa is under active consideration. In this case, the Department had made such efforts over a period of time, including the inquiry made of Centrelink after the notice of intention to consider cancellation of the applicant's visa, sent on 28 June 2007 had been returned undelivered. The Minister submits, therefore, that the present case falls within the principle established by Osborne v Minister and Minister v Ball and that the applicant was not denied procedural fairness despite not receiving any of the three notices sent to him. 29 In his oral submissions, Mr Karp, who appeared for the applicant, contended that the Department had not made reasonable efforts to ensure that the notice of intention to consider cancellation of the visa actually came to the attention of the applicant. He argued that there were obvious steps that the Department could and should have taken once the notice of 28 June 2006 was returned undelivered. In the absence of evidence that the Department had made additional inquiries, the present case could not be said to be governed by the principle applied in Osborne v Minister and Minister v Ball . 33 In Osborne v Minister , French J attempted to balance these competing considerations. In that case, the visa holder, a New Zealand citizen, had committed a number of offences. While in prison he told a Departmental officer that, upon his release, he intended to reside with his mother at a particular address. Following the visa holder's release in September 2000, he lived with his mother for three months but then moved to another address. In July and September 2001, letters were sent to the visa holder at the mother's address, but he received neither of them (although friends told him in September 2001 that a registered letter had been sent to him). The Minister cancelled the visa in February 2002 on character grounds, without having received any representations from the visa holder. 34 French J pointed out (at 423) that there is no express provision in the Migration Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, in his Honour's view: 'prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: "The person does not satisfy the Minister that the person passes the character test." It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.' 35 French J considered that the implied condition of notification could not be absolute: 'otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process.' 36 His Honour went on to say that the aid of the Migration Regulations (by which he appears to have meant reg 2.55) was not required to determine what was reasonable. He pointed out that, in any event: '[t]hey do not in terms condition the effect of exercise of the power under s 501.' 37 Osborne v Minister was followed by the Full Court in Minister v Ball . In the latter case, the notice was sent by the Department to an address in Kalgoorlie supplied by the visa holder when she had appeared in court charged with an offence in January 2003. It was also the address she had supplied to the Australian Taxation Office in March 2002. The Department sent the notice on 29 January 2003, but the visa holder had moved to Melbourne a few days earlier. The notice was returned to the Department ' unclaimed ' on 11 March 2003. 42 The trial Judge held that the limited and unsuccessful attempts to contact the visa holder constituted a denial of procedural fairness. On appeal, the Full Court followed (at 139 [27]) Osborne v Minister , holding that the requirement in s 501(2) that the visa holder ' does not satisfy the Minister that the [visa holder] passes the character test ' implied that some prior notice had to be given of the Minister's intention to cancel the visa. The Court also held (at 139 [29]) that procedural fairness required the visa holder to be given an opportunity, assuming that the Minister was not satisfied that the visa holder passed the character test, to persuade the Minister not to exercise the discretion to cancel the visa. 43 Their Honours observed (at 139 [30]) that, notwithstanding the principles of procedural fairness, it is open to Parliament to specify circumstances in which notification of a cancellation process is deemed to be given to a person. Parliament can also confer on the Executive power to achieve the same result by regulation. 44 The Minister had relied on reg 2.55(7) to support the conclusion that, since the notice was sent to the visa holder at the address supplied by the Police, he was deemed to have received it. The Court held (at 141 [35]) that reg 2.55, in terms, only applies where the notice is sent to the actual address of the visa holder. The addresses to which the Department dispatched the letters were not and never had been addresses of the visa holder. Their Honours were of the view that reg 2.55(7) had no application to letters sent to an address with which a visa holder never had any connection. 53 The question of whether the Minister or the Department has taken reasonable steps is a question of fact, dependent upon the particular circumstances of the case. In Osborne v Minister , French J thought that sending the notice to the last address provided by the visa holder, which in fact had been his address for three months after his release, was reasonable. His Honour was fortified in that conclusion by the fact that the address was that of the visa holder's mother and the further fact that the registered letter sent to that address had not been returned. In Minister v Ball , the Court was influenced by the absence of any alternative address for the visa holder and the failure of the visa holder's counsel to identify any further step that the Department could reasonably and practically take to notify the visa holder that cancellation was under consideration. 65 The Minister's written submissions acknowledged that French J was correct in Osborne v Minister to observe that reg 2.55 does not condition the exercise of power in s 501 of the Migration Act . The Minister accepted that reg 2.55 applies, by its terms, to circumstances in which the Migration Act or the Migration Regulations require a ' document ' to be given to a visa holder. The submissions gave s 107 of the Migration Act as an illustration of a provision to which reg 2.55 applies. Section 107 authorises the Minister to give visa holders notice of any alleged non-compliance with certain statutory provisions. 66 Although the Minister's written submissions asserted that ' the mechanism ' in reg 2.55 had been complied with, the Minister did not contend that the applicant's claims of a denial of procedural fairness could be met by establishing that the terms of reg 2.55 had been satisfied. When the issue was referred to in oral argument, Mr Kennett confirmed that the Minister's position was that French J had held that reg 2.55 could not apply to a notice relating to the possible exercise of the power of cancellation conferred by s 501 of the Migration Act . Accordingly, the Minister did not dispute that reg 2.55 did not apply and thus did not condition the exercise of the power of cancellation. 67 In the absence of any submission that the Minister is entitled to rely on reg 2.55, at least in this Court, I do not need to consider it further.


case_title: Plaintiff S157 v Commonwealth (2003) 211 CLR 476


case_title: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82


case_text: decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430.


case_text: issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. The decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430.


case_title: ABC v Sage [2009] FCA 170

case_text: v Sage [2009] FCA 170 ( Sage ) concerned an attack, inter alia, on the legality of an examination summons under s 28 of the ACC Act. The summons contained a note that the applicant "will not be examined in relation to charges currently before the courts". At one point in the examination, that applicant objected to answering a question because it would reveal an element of his intended defence to the serious criminal charges laid against him. The examiner ruled that he must answer the question. The challenge relevant to the present matter was that, by obliging that applicant to answer the question objected to, the examination to that extent would tend to interfere in the administration of justice and was in contempt of court. In my view, the outcome in Sage turned upon its particular facts. Relevantly, that applicant contended that by answering the question: (1) he would be admitting to minor criminal conduct which (he said) was what he was engaged in when he is alleged to have been committing the much more serious criminal charges against him; and (2) he would be identifying a potential witness in his defence, and in addition that witness may then decline to give evidence if he learns of the disclosure of his identity to the authorities. Jessup J said at [21] that the applicant thereby supposed, or premised, that either or both of the prosecuting authorities in the criminal proceeding and the putative witness would become aware of the evidence before the examiner. In response, counsel for the examiner firstly relied upon the fact that the applicant had invoked the privilege against self-incrimination under s 30(4)(c) so that the use immunity under s 30(5) was enlivened, and secondly, relied upon the several confidentiality orders made by the examiner under s 25A(9), as well as the examiner having confined the persons present at the examination under s 25A(3). One direction made by the examiner under s 25A(9) was to the effect that the evidence given not be made available to the prosecuting authorities responsible for presenting the serious criminal charges against the applicant before the completion and final determination of those charges. The examiner also adduced evidence that the ACC had imposed tight administrative restrictions on those having access to the evidence, to give effect to the examiner's direction. Jessup J at [29] accepted that the effect of the directions made by the examiner under s 25A(9) and their implementation was, as a matter of fact, to eliminate any risk of interference with the administration of justice by the applicant being required to answer the question objected to. His Honour regarded s 25A(12) (set out at paragraph [24] above) as existing to serve the administration of justice, rather than to impede it by a Court prejudicing a fair trial by giving such a direction. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges.


case_text: it is true, as Finn J said in Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356 at [47] , that the use immunity in s 30(5) puts an accused person in much the same position as if that person had not been compelled to answer the questions, his Honour also said, that outcome applies to a considerable degree and not absolutely. There is no assurance offered by the examiner that questions directly relevant to the charge would not be asked. The contrary is the case. Such questions are proposed to be put. There are no assurances by the examiner (even if such could be given, as to which I make no comment) that any non-publication orders made under s 25A(9) would continue notwithstanding the nature of the information procured, and notwithstanding its significance to the special investigation, either in the short term or in the longer term, or its significance to the head of the special investigation or to the CEO, and the use to which they respectively put such information, according to their respective responsibilities or powers under the ACC Act. Senior counsel for the ACC finally submitted that there are competing public interests, namely the administration of justice and the public interest in the continuation of the special investigation, and that there should be a balancing of these competing interests before granting the relief sought. That is a matter relevant to whether the ACC Act by necessary implication authorises questions, and obliges answers, in respect of which there is a real risk of interfering with the administration of justice. I have determined that matter adversely to the ACC's contention for the reasons expressed above.


case_text: particular question asked on 9 June 2009 to which attention was drawn in the course of submissions did not specifically focus on the events giving rise to the charge. The question, and related questions, were capable of applying to a much wider time frame. However, a full answer to those questions may have directly provided information concerning facts and matters relating to the charge. To that extent the applicant objected to answering that question. The examiner nevertheless ruled that the question must be answered in full. There was no suggestion that the widely expressed question should be taken as referring to matters other than those directly relating to the charge. Nor, in the course of submissions, did senior counsel for the ACC suggest that the question, and other questions, would or should be so confined. It was the position of the ACC that the examiner was entitled to ask, and the applicant obliged to answer, questions which directly related to the matters the subject of the charge. That may be contrasted with the attitude of the examiner in CC v Australian Crime Commission [2005] FCA 754 at [10] . The applicant seeks a declaration that the respondent by the examiner may not lawfully require the applicant to answer questions which directly relate to the matters the subject of the charge, notwithstanding that the questions so asked may be relevant to the special investigation. The issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. CC v Australian Crime Commission [2005] FCA 754 involved an application for an interlocutory injunction seeking to restrain an examination because the person being examined was the subject of two criminal charges. That application was refused. It was not an application to restrain the examination limited to questions directly relating to the two criminal charges, but to restrain the examination itself whilst those charges were outstanding. Alternatively, it was an application to restrain the examination until the person being examined had access to the prosecution brief in relation to one of the charges, so that he could exercise his privilege against self-incrimination effectively (to the extent that it is not abrogated by s 30 of the ACC Act). As was noted at [10] in that case, there was an undertaking from the examiner that the person being examined would not be questioned on matters directly relating to either of the criminal charges. In addition, steps were proposed to be taken to inhibit or prevent access to any information obtained (that is, information not directly relating to the outstanding criminal charges) from the prosecuting authorities. In those circumstances, the application for interlocutory injunctive relief, which would have prevented incidentally the examination in its entirety, was refused. I do not consider that decision advances the position of the ACC in this matter. I have come to the view that there is, in the present circumstances, a real risk that questioning the applicant on matters directly relating to the charge may interfere with the administration of justice. There are two routes by which information arising from the examination, which is information directly relevant to the charge, may be made available to the prosecuting authorities. The first is by report of the CEO pursuant to s 12(1) of the ACC Act. It is unclear, and probably inappropriate for the Court to know, whether the special investigation involves examination of persons other than the applicant. Whilst it may be assumed that the applicant will claim pursuant to s 30(4)(c) that answers in response to questions directly relevant to the charge might tend to incriminate him, so that his own answers would not be admissible in relation to the charge, other evidence procured during the investigation may be admissible and be conveyed to the prosecuting authority pursuant to s 12(1). However, that is not the limit of the information flow to the prosecuting authorities. That is a provision which directs the CEO specifically to refer certain material to a relevant law enforcement agency or prosecuting authority. In conjunction with that power, the results of the special investigation, including the particular examination and other examinations, are assembled for the ACC to fulfil its functions. They include in ss 7A(a), (d) and (e) the following: (a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; ... (d) to provide reports to the Board on the outcomes of those operations or investigations; (e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board. The Board of the ACC established under s 7B of the Act includes the head of the police force of each State. Ultimately, federally relevant criminal activity is to be investigated and considered by the Board not for its own sake, but for the sake of identifying such conduct and determining how it is to be combated, including under s 7C(1)(g) by the dissemination of law enforcement agencies' strategic criminal intelligence assessments. The secrecy provision in s 51 of the ACC Act operates upon each member of the Board and each member of the staff of the ACC "except for the purposes of a relevant Act or otherwise in connection with the performance of his or her duties under a relevant Act": see s 50(1)(ii). A member of the staff of the ACC is widely defined in s 4(1). A "relevant Act" is defined in s 51(4) to include a law of a State under which the ACC performs a duty or function or exercises a power in accordance with s 55A. It relevantly includes the ACC investigating a matter relating to a relevant criminal activity included in, or part of, serious and organised crime. It is apparent from the position taken by the examiner in this matter, namely a determination to pursue questions directly related to the charge, and to pursue those questions from the applicant who is the person charged, that the inquiry includes the subject of the charge. More widely, in other matters, as noted, the ACC through an examiner sometimes has indicated that it does not propose to ask questions of a person charged with a criminal offence which are directly relevant to that offence. Sometimes an undertaking not to do so has been proffered. Such indications or undertakings recognise that information obtained during an examination, if relevant to an existing criminal prosecution, may otherwise find its way to the prosecuting authorities.


case_title: Commissioner of Taxation v De Vonk (1995) 61 FCR 564

case_text: of Taxation v De Vonk (1995) 61 FCR 564 ( De Vonk ) concerned an examination under s 264 of the Income Tax Assessment Act 1936 (Cth). The examination was to encompass matters in respect of which the respondent was facing criminal charges. The Full Court (Foster, Hill and Lindgren JJ) held that the legislature should not be taken by s 264 of the Income Tax Assessment Act 1936 (Cth), as fortified by ss 8C and 8D of the Taxation Administration Act 1953 (Cth), to have authorised the compulsory interrogation of persons in circumstances where that might interfere with the administration of justice. The submission of the Commissioner of Taxation on that issue is echoed to some degree by the submission on behalf of the ACC in this matter. It was there said the legislation, by necessary implication, required the respondent to answer questions directly related to the criminal charges because he could not rely on the "doctrine of contempt of court" (per Foster J at 569). Hill and Lindgren JJ at 588 expressed the question, as I prefer to do, as whether by the relevant legislative provisions the legislature intended the examination power to be used in circumstances where, so to do, might tend to constitute a real risk of interference with the administration of justice. That contention was rejected. It was also said that, although information obtained in the proposed examination could be provided to the prosecutor, the answers could not be used in evidence because they were given under compulsion. Nevertheless, it was conceded that there was a risk that the answers given to questions directly concerning the criminal charges would tend to incriminate the respondent and in so doing could interfere with the course of justice: see at 584 (per Hill and Lindgren JJ). That case clearly confronted the question whether, on the facts, there was a real risk that requiring answers to the question objected to would interfere with the administration of justice. The principle recognised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (No 2) [1982] HCA 57 ; (1982) 152 CLR 179 and applied in De Vonk was not in issue. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . As was explained in Hammond , the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle. There is an abrogation of the privilege against self-incrimination in s 30(4) and (5), which is described by Hill and Lindgren JJ in De Vonk at 579 as one of the "fundamental rights and freedoms". It is limited to its terms. It does not impliedly extend to the wider principle recognised, inter alia, in Hammond . Indeed, the careful expression of its terms indicates to the contrary. As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges. I do not consider that, having rejected the primary contention of the ACC, that there is a further discretion to be exercised along the lines contended for by the ACC, but in any event, in the present circumstances, I would not exercise any such discretion in favour of declining to grant the injunctive relief proposed. Unlike the circumstances in De Vonk and Mansfield , the factual material indicates clearly the intention of the examiner to ask questions directly relevant to the charge whilst the charge is outstanding against the applicant. No undertaking not to do so has been proffered. Whilst there is some risk of further debate as to whether a particular question or questions may be directly relevant to the charge, it is to be noted that the present application arose only where a question which required, in answer, material directly relevant to the charge was raised. An injunction restraining the examiner from asking questions directly relevant to the charge does not generally impede the special investigation. Nor does it, on the evidence, impede the examination except to a limited extent. There is nothing to indicate that it would significantly impair the special investigation. The time of the hearing of the charge is not disclosed in the material. If the charge is heard, either by plea or trial, the applicant may be further examined in the course of the special investigation to answer questions directly relating to the charge.


case_text: issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. The issue also arose in a slightly different guise in Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ( Hak Song Ra ). The applicants, and others, had been charged with importing heroin, in contravention of provisions of the Criminal Code Act 1995 (Cth) and the Customs Act 1901 (Cth). At a committal hearing, on 5 March 2004, the applicants were discharged on the ground of insufficiency of evidence against them. An ACC special investigation had meanwhile commenced by resolution of the ACC Board. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield .


case_text: counsel for the ACC submitted that the decision in Hammond is distinguishable from the present circumstances, and secondly and alternatively, that the ACC Act has by necessary implication qualified the principle established in that case, so that the applicant was obliged to answer questions directly relevant to the charge in any event. She also put the contention that, by reason of the remarks of Dawson J in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 ( Hamilton ) at 509, Hammond should be taken as an authority confined as narrowly as possible to its particular facts. The last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563.


case_text: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ( Hammond ), the issue arose as to the obligation of a witness before a Royal Commission to answer questions about a matter in relation to which he had been charged. Section 16(b) of the Evidence Act 1958 (Vic) made it an offence to refuse to answer any question on the subject matter of the inquiry. Section 29 of that Act removed the privilege against self-incrimination, but (like s 30(5) of the ACC Act) s 30 of that Act then prohibited the use of such answers in any civil or criminal proceedings against the person. Sections 6 and 6DD of the Royal Commissions Act 1902 (Cth) also apparently contained terms to much the same effect, as was later decided in Sorby v Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281. In Hammond , Gibbs CJ at 198 said: 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. ... [T]he 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. See also per Murphy J at 201. Both their Honours expressed their conclusion as following from the fact that the answers may tend to prejudice an accused in the defence of the criminal charge. Brennan J reached the same conclusion, but on a somewhat wider basis. His Honour said at 202-3: It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged. Deane J at 206 reached the same conclusion, based also upon the obligation to answer such questions as being an improper interference with the due administration of justice in the proceedings in the criminal court. Having reached that view, his Honour at 207 addressed a contention on behalf of the Commonwealth that it had not been shown that the questions asked by the Royal Commission as to the plaintiff's involvement in the matters the subject of the criminal proceedings involved any substantial risk of serious injustice or serious prejudice to the plaintiff. His Honour rejected that contention because, he said, the fact that the proceedings were conducted in parallel with the criminal proceedings, that the Commonwealth was the prosecuting authority, that the answers were compulsory, and that the plaintiff would commit an offence by not answering such questions, were such as to "constitute injustice and prejudice to the plaintiff". The only point of clear distinction is that, in the present instance, the criminal prosecution is being conducted by the State of South Australia or one of its officers. I do not regard that as a relevant distinction because s 12(1) of the ACC Act contemplates the provision of certain information to the South Australia Police for the purposes of a prosecution. Senior counsel for the ACC submitted that the decision in Hammond is distinguishable from the present circumstances, and secondly and alternatively, that the ACC Act has by necessary implication qualified the principle established in that case, so that the applicant was obliged to answer questions directly relevant to the charge in any event. She also put the contention that, by reason of the remarks of Dawson J in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 ( Hamilton ) at 509, Hammond should be taken as an authority confined as narrowly as possible to its particular facts. The last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563. The decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430. On the same day that the applicants were discharged, namely 5 March 2004, an examiner of the ACC issued summonses under s 28 of the ACC Act requiring the applicants to be examined. The Commonwealth Director of Public Prosecutions later informed the ACC and the applicants that there was no intention to institute further proceedings against the applicants. As the applicants were not the subject of concurrent criminal charges, Merkel J held that the principle explained in Hammond did not apply. The facts of the charges remaining against persons other than the applicants, or that the charges had been brought against the applicants, did not, as a matter of statutory construction, bring to an end the compulsive investigatory power. Foster J at 569 emphasised that a Court has a right and an obligation to "protect the integrity of its operations and to prevent interference with its administration of justice". His Honour then considered the decision in Hammond . As to the reasons of Deane J in Hammond , Foster J at 571 made the same point as noted above at [39]. His Honour then agreed with the joint judgment of Hill and Lindgren JJ that the examination should not be permitted to inquire into matters directly the subject of the criminal charges (at 576). No question there arose as to whether, in fact, the proposed questioning would expose the respondent to a risk of self-incrimination and, in so doing, could interfere with the administration of justice. The existence of that risk was conceded: see per Hill and Lindgren JJ at 584. Furthermore, as noted by Foster J at 568, there was no undertaking proffered that the material obtained in the investigation would not be made available to the prosecution. In other words, the second matter raised by the ACC set out in [20] above did not arise in that case. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . As was explained in Hammond , the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle. There is an abrogation of the privilege against self-incrimination in s 30(4) and (5), which is described by Hill and Lindgren JJ in De Vonk at 579 as one of the "fundamental rights and freedoms". It is limited to its terms. It does not impliedly extend to the wider principle recognised, inter alia, in Hammond . Indeed, the careful expression of its terms indicates to the contrary. Nor does s 25A(9), in the context of the ACC Act, including s 30, necessarily imply that the principle recognised in Hammond has been abrogated. Its function, as evidenced by its terms, is directed generally to preventing injustice in a range of circumstances. It is, moreover, not an absolute power to prohibit or restrict the publication of evidence. If it were, that may frustrate, in respect of evidence subject to such an order, the purposes of the special investigation or operation because information relevant to it would not be available to the head of the investigation or operation, or be subject to the CEO's overall responsibilities under the ACC Act, including s 12(1). I turn to the alternative proposition of the ACC referred to in [20] above. As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges. However, no such indication or undertaking has been proffered in this matter. The contrary is the case. Answers directly relevant to the charge, once procured and even if they are not admissible in evidence against the applicant by reason of the "use immunity" provided by s 30(5), may nevertheless provide information which may adversely affect the opportunity of the applicant to have a fair trial in relation to that charge. They may disclose details of the defence to the charge, so that the prosecutor may be able to anticipate and adduce evidence which would not otherwise have been available and procured to assist in establishing guilt. They may disclose other avenues of investigation to assist in proving guilt that would not otherwise have been available to the prosecution. They may disclose a source of evidence which can contradict the foreshadowed defence. They may disclose material, or lead to the identification of material, to cross-examine the applicant, in the event that he gives evidence. In my view, it is appropriate to apply the description of Deane J in Hammond referred to in [39] above to the present circumstances. The answers are given under compulsion, with the threat of a significant criminal sanction for failing to answer them. They are given on matters which directly relate to the charge. And they may find their way to the prosecuting authority for use in a way which may adversely affect the defence to the charge.


case_title: Huston v Costigan (1982) 45 ALR 559

case_text: last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563.


case_text: issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754.


case_text: decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430. Mansfield concerned the extent to which that applicant could be examined under ss 28 and 30 of the ACC Act on matters directly relevant to "confiscation" proceedings against him under the Criminal Property Confiscation Act 2000 (WA). (The examiner had ruled that questions directly relevant to certain criminal charges also laid against the applicant would not be the subject of questions at the examination. That position is clearly different from that now taken by the examiner in this matter.) The "use immunity" available under ss 30(4) and (5) of the ACC Act, once the privilege against self-incrimination was invoked, expressly did not extend to "confiscation proceedings": see s 30(5)(c). Carr J concluded at 264, [73] that the examiner was not entitled to question the applicant on matters directly relevant to the confiscation proceedings where such questions might constitute a real or substantial risk of interference with the course of justice, in that case, the confiscation proceedings. However, his Honour declined to grant an injunction because he anticipated that the examiner, having had his ruling corrected, would comply with the Court's decision. He preserved liberty to apply in the event that the examiner's further questions might interfere with the administration of justice in the confiscation proceedings. In reaching that conclusion, Carr J at 262-3, [59]-[65] held that the ACC Act and, in particular s 30, did not by necessary implication authorise interference with the administration of justice. I respectfully agree with and adopt his Honour's reasons. It does not appear that the second issue now raised by the ACC as described at [20] above was considered in any detail in that case. Counsel for the ACC in that case argued that evidence given at the examination could be used in the confiscation proceedings, but is not noted as arguing that such evidence might not impair the administration of justice. Carr J at 264-5, [81] said: But I shall make an order, pursuant to s 16(1)(b) of the ADJR Act, referring the matter, that is, [the examiner's] ruling that the examination may proceed notwithstanding that the applicant's answers may be relevant to the Confiscation proceedings, for further consideration. The purpose of referring that matter for further consideration is not necessarily to preclude the applicant being required to answer such questions, but to ensure that the applicant's rights to legal professional privilege are protected and also to ensure that there is no interference with the administration of justice in the Confiscation proceedings. His Honour thereby appears deliberately to have left open that issue. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . In Mansfield , at 262-3 [61]-[64], Carr J remarked on the curiosity that s 30(5)(c) carves out confiscation proceedings from the "use immunity", even though such proceedings may not be covered by the use immunity under s 30(5)(a) or (b). I agree with his Honour that that does not evidence a legislative intention to compel the answering of questions under s 30(2) where there is a real risk that such questions, or the answers, would interfere with the administration of justice. Section 30(5) generally explains or limits the use of certain answers given during an examination, predicated upon the making of a claim under s 30(4)(c) that the answers may tend to incriminate the person being examined. Its scope of operation is determined in that light. That is confirmed by the other carve out in s 30(5)(d)(i) which provides that use immunity is not available if the questions are answered falsely. As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges. I do not consider that, having rejected the primary contention of the ACC, that there is a further discretion to be exercised along the lines contended for by the ACC, but in any event, in the present circumstances, I would not exercise any such discretion in favour of declining to grant the injunctive relief proposed. Unlike the circumstances in De Vonk and Mansfield , the factual material indicates clearly the intention of the examiner to ask questions directly relevant to the charge whilst the charge is outstanding against the applicant. No undertaking not to do so has been proffered. Whilst there is some risk of further debate as to whether a particular question or questions may be directly relevant to the charge, it is to be noted that the present application arose only where a question which required, in answer, material directly relevant to the charge was raised. An injunction restraining the examiner from asking questions directly relevant to the charge does not generally impede the special investigation. Nor does it, on the evidence, impede the examination except to a limited extent. There is nothing to indicate that it would significantly impair the special investigation. The time of the hearing of the charge is not disclosed in the material. If the charge is heard, either by plea or trial, the applicant may be further examined in the course of the special investigation to answer questions directly relating to the charge.


case_text: question whether there is a real risk of interfering with the administration of justice is one of fact. In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460 at 468, Gibbs CJ (with whom Brennan J agreed) said: [N]ot every investigation into facts which are the subject of pending proceedings constitutes a contempt of court: [citation omitted]. In the present case it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s 155 would in the circumstances have that effect.