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Published online by Cambridge University Press: 24 January 2025
The common law “punitive” privileges against self-incrimination and exposure to a penalty have received renewed attention in a series of decisions concerning their application in such highly visible and sensitive contexts as Royal Commissions of Inquiry; investigation of corporate crime; police misconduct and economic regulation. Possibly less dramatic but no less fundamentally at issue is their application to the wider spectrum of rights and interests arising from, and affected by, the extensive administrative and discretionary powers in the hands of the executive and government officials.
Central to “this fertile new province of the law” is the Administrative Appeals Tribunal (henceforth referred to as the “Tribunal”). This appeal mechanism has been established at the Commonwealth level for the purpose of reviewing on the merits, decisions of administrators and thereby promoting fair and equitable decision-making principles.
1 Hammond v Commonwealth (1982) 42 ALR 327; Sorby v Commonwealth (1983) 46 ALR 237.
2 Controlled Consultants v Commissioner for Corporate Affairs (Vic) (1985) 57 ALR 751.
3 Police Service Board v Morris and Martin (1985) 58 ALR I.
4 Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609.
5 Address by Sir Harry Gibbs at the University of Queensland, quoted in the Administrative Review Council: Ninth annual Report, 1984-85, para 185.
6 Administrative Review Council; supra n 5, Appendix 4; Hall, A, “The Jurisdiction of the Administrative Appeals Tribunal in Customs Matters” (1986) 14 Australian Business Law Review 157-158.Google Scholar
7 Administrative Review Council,supra n 5, Appendix 5.
8 Ibid paras 16, 174, 187. Sales Tax Laws Amendment Act Administrative (Cth) 1985; Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth).
9 For a general historical and jurisprudential analysis see Freckelton, I, “Witnesses and the Privilege against Self-Incrimination” (1985) 59 ALJ 204.Google Scholar
10 There has been only one reported case on these sub-sections: Re Spagnolo and the Minister for Immigration and Ethnic Affairs (1980) 2 ALN No 125. In this case, the applicant sought review of a deportation order against him. He refused to answer a question concerning the sup ply of drugs, notwithstanding a direction pursuant to s 62 claiming that such information would endanger his life. The Tribunal found it unnecessary to determine the issue: “The question of reasonable cause [under s 62 of the AAT Act] was not considered and my direction leaves it open to the applicant to raise this defence:” per Fisher J.
11 Other possible reasonable excuse grounds include legal professional privilege, professional confidentiality, lack of relevance of information sought, lack of legal or physical access to documents and lack of reasonable time to comply with a direction to produce documents.
12 Where a breach of the AAT Act occurs (eg sections 62, 62A, 63) the matter would be remitted to the appropriate local court with Federal jurisdiction.
13 In a number of the cases to be discussed, the self-incrimination privilege was invoked for the purpose of protecting the witness from criminal liability in external proceedings: eg Mortimer v Brown (1970) 122 CLR 493; Re ABM Pastoral Company Pty Ltd (1977) 3 ACLR 239; Controlled Consultants v CCA (1985) 57 ALR 751.
14 See Part B: Meaning of the term “penalty”.
15 See Birrell v ANA Commission (1984) 55 ALR 21 I, 213 per Gray J: “Even where, as in the present case, the proceedings are not for the recovery of a penalty, but to prevent and redress civil injury, a party to litigation ought not to be compelled to provide information or produce documents ... if the result will be to provide evidence against him which may be used to establish his liability to a penalty in other proceedings.” See also Mayor of the County Borough of Derby v Derbyshire County Council [1897] AC 550, 552-553; Navair Pty ltd v Transport Workers Union of Australia (1981) 52 FLR 177.
16 Mexborough (Earl of) v Whitwood UDC [1897] 2 QB 111, 115 per Lord Esher; quoted by Brennan J (1983) 45 ALR 609, (1984) 624-625; 614 per Mason, Wilson and Dawson JJ followed in Price v McCabe; ex parte Price (1984) 55 ALR 319,322; Birrell (1984) 55 ALR 211, 216.
17 [1942] 2 KB 253, 257.
18 (1982) 43 ALR 659, 666.
19 (1983) 46 ALR 237.
20 (1985) 57 ALR 751.
21 (1977) 2 ACLR 471, 478.
22 (1982) 42 ALR 327.
23 (1985) 58 ALR I.
24 The only direct references to “privilege” are found in sections 36, 36A and 37(3) of the AAT Act. Sections 36 and 36A are concerned with claims of public interest privilege by the AttomeyGeneral. Section 37 applies to the production of documents by the original decision-maker.
25 (1910) 11 CLR 738, 748.
26 [1961) SR (NSW) 862, 871.
27 (1965) 112 CLR 580,585.
28 (1977) 2 ACLR 471.
29 (1977) 15 ALR 351; (1977) 2 ACLR 478.
30 (1970) 122 CLR 493.
31 (1977) 3 ACLR 239.
32 An appeal from this decision was refused by the NSW Court of Appeal.
33 (1982) 42 ALR 327.
34 (1983) 46 ALR 237.
35 (1983) 45 ALR 609.
36 (1985) 57 ALR 751.
37 Pyneboard (1983) 45 ALR 609, 621; see also Hammond (1982) 42 ALR 327, 335; Controlled Consultants (1985) 57 ALR 751, 757.
38 (1985) 57 ALR 751, 758.
39 Ibid.
40 (1983) 45 ALR 609, 618.
41 The remaining High Court judge, Deane J declined to express an opinion in Hammond (1982) 42 ALR 327, 342. His Honour did not sit on the other High Court cases discussed.
42 (1983) 45 ALR 609,619, approved in Sorby (1983) 46 ALR 237,258.
43 See Kitto J (1970) 122 CLR 493, 496; approved in Pyneboard (1983) 45 ALR 609, 619 and Price v McCabe; ex parte Price (1984) 55 ALR 319, 322.
44 (1983) 45 ALR 609, 630.
45 See also Price v McCabe; ex parte Price. (1984) 55 ALR 319, 324.
46 As pointed out in the ARC Report No 22:The Relationship between the Ombudsman and the AAT (May 1985), the role of the AAT is “primarily an adjudicative process” to determine what should be the “correct or preferable decision” of an administrator. This contrasts with the investigative role and use of investigative techniques by the Ombudsman. See further ARC Ninth Annual Report supra n 5. Further, as stated in Re A and Dept of Transport (l918) 2 ALO 98, it is not a function of the AAT to itself seek evidence from any person to support the applicant's case.
47 By way of example the High Court in Controlled Consultants examined the wording of various provisions of the Securities Industry Code, (including ss 8(1)-(2), 8(6)(a)(ii), 8(6)(b)(i) and (ii), 8(1A). 9(1)-(4), IO (I), 10(5)) in determining whether these provisions could be taken as excluding the privilege by necessary implication.
48 Section 80 Judiciary Act 1903 (Cth): “So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law of England as modified by the Constitution and by the statute law in force in the State in which the court in which the jurisdiction is exercised is held shall, so far as is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all courts exercising federal jurisidiction in the exercise of their jurisdiction in civil and criminal matters”.
49 (1984) 55 ALR 319.
50 (1983) 46 ALR 237, 250-251. Section 10(4) Commissions of Inquiry Act 1950 (Qld) provides: “An act or omission by a witness ... shall not be punished under this section ... as contempt of the Commission ... where that witness ... satisfies the [Commission] ... of a reasonable excuse for his act or omission.”
51 (1983) 46 ALR 237, 269-270.
52 (1985) 57 ALR 751, 755.
53 (1984) 55 ALR 319, 323.
54 Hammond (1982) 42 ALR 327. 332; Sorby (1983) 46 ALR 237, 259; Companies Act 1981 (Cth) ss 14(6), 296(7), 541(12); Securities Industry Act (C'th) ss 10(5), 19(9); National Companies and Securities Commission Act (Cth) s 39(5); Trade Practices Act 1974 (Cth) ss 155(7),159. See also I Freckelton, supra n 9, 209-210; Temby, I “Immunity from Prosecution and the Provision of Witness Indemnities” (1985) 59 ALJ 501Google Scholar. The immunity usually attaches to oral statements, but less often to documents supplied.
55 (1984) 55 ALR 319, 323-324. This is an example of the immunity applying to documents.
56 (1985) 57 ALR 751, 755. At issue here was the production of certain documents. The immunity provision in the Securities Industry Act 1980 (Cth) s 10(5), Supra n 54, applied only to oral statements, not to the production of documents.
57 Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) s l4ZF.
58 A contrary view was stated by Gibbs CJ in Hammond (1982) 42 ALR 327, 333 who upheld the application of the privilege notwithstanding that the hearing in question was in private.
59 Pearce, DC, Statutory Interpretation in Australia (2nd ed 1981) 44-46Google Scholar and cases cited therein.
60 However as pointed out in the case law, there are limits to the flexibility of s 33(1)(c) of the AAT Act. The Tribunal is required to decide an application on its merits and inform itself of all relevant information: Re Lister and Minister for Health (1978) I ALD 130, 134. Furthermore it is obliged to make its decisions on the basis of evidence which is relevant, reliable and logically probative: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, affirming (1979) 2 ALD 33, 40-41 per Brennan J. See also generally Mahon v Air New Zealand (1983) 50 ALR 193, 206; Bereave v Hermes (No 3) (1983) 51 ALR 109, 118-119. Whilst the Tribunal is not strictly bound by the rules of evidence, it should be strongly guided by the principles underlying these rules: Re Kevin and Minister for the ACT (1979) 2 ALD 238, 241-243; Re Pouki (1984) I AAR 481, 484; Langham v Commonwealth (1984) 5 FCR 284, 294. See generally J B Kluver and R M Woellner, Powers of Investigation in Revenue, Companies and Trade Practices Law (1983) 223, 237; A Hall and R Todd, “Administrative Review before the Administrative Appeals Tribunal - A Fresh Approach to Dispute Resolution?” (1981) 12 FL Rev 71.
61 (1983) 45 ALR 609,617.
62 (1983) 46 ALR 237, 258.
63 (1983) 49 ALR 385, 442. In Re Pouki and Australian Telecommunications Commission (1984) 1 AAR 481,483. Deputy President Thompson applied Baker v Campbell (1983) 49 ALR 385 in ruling that substantive legal rights of non-disclosure are not affected bys 33(1)(c) of the AAT Act.
64 (1983) 45 ALR 609, 624-625.
65 (1985) 45 ALR 609; (1985) 58 ALR I, 4, 7, 8, 10; see also Birrell (1984) 55 ALR 211, 212;Refrigerated Express Lines Pty Ltd v Australian Meat and Live Stock Corporation (1979) 42 FLR 204, 207-208.
66 (1985) 58 ALR I, 4 per Gibbs CJ.
67 Cross on Evidence (2nd Australian ed) 265; A-G v Riach [1978] VR 301, 306-307 per Kaye J; Pyneboard (1983) 45 ALR 609, 621 and Police Service Board (1985) 58 ALR 7 per Murphy J (dissenting). I Freckelton supra n 9, 206, has drawn upon these cases to argue that “the common law status of the privilege in relation to non-criminal penalties must be in some doubt”. See however the comment of Jin, Brennan Police Service Board (1985) 58 ALR 12Google Scholar. See also McNicol, S, A Non-Curial Privilege Against Self-Incrimination (1984).Google Scholar
68 UK Law Reform Committee: 16th Report: Privilege in Civil Proceedings Cmnd 3472 (1967) para 13.
69 [1977] 3 All ER 703, 710-712, 716.
70 Pyneboard (1983) 45 ALR 609; TPC v George Weston Foods Limited (1980) ATPR 40-150;TPC v TNT Management Pty Ltd (1984) 53 ALR 214; (1984) 56 ALR 647. These cases involved statutory pecuniary penalties enforceable by civil procedure: see Trade Practices Act 1974 (Cth) ss 76-78.
71 Gapes v CBA Limited (1979) 27 ALR 87; Birrell (1984) 55 ALR 211.
72 In Walsh v DCT(NSW) (1982) 14 ATR 50, Sudano DCJ was “inclined” to hold that liability to pay an amount of additional tax for failing to furnish a return amounted to a penalty.
73 (1985)-58 ALR I, 4 per Gibbs CJ; Wilson and Dawson JJ concurring at 7-8; contrast Riach[1978] VR 301, 307.
74 Refer to Schedule 1 of the AAT Act and see generally Flick, GA, Federal Administrative Law (Loose Leat) 601-635.Google Scholar
75 (1985) 58 ALR I, 4; see also Pyneboard (1983) 45 ALR 609, 621 per Murphy J.
76 Supra n 74. For a general discussion of the jurisdiction of the AAT in customs matters see A Hall supra n 6 157-192.
77 (1983) 45 ALR 609, 620; see also Birrell (1984) 55 ALR 211, 216; Price v McCabe (1984)55 ALR 319, 322.
78 (1984) 55 ALR 319, 322.
79 (1985) 58 ALR I, 8 per Wilson and Dawson JJ; 5 per Gibbs CJ.
80 Ibid 5, 9.
81 [1948] I All ER 927, 929.
82 (1984) 55 ALR 319.
83 These same practical difficulties were recognised by the High Court in Baker v Campbell (1983) 49 ALR 385 in the context of legal professional privilege. Refer also to A and S Europe Ltd v Commission of the European Communities [1983) 3 WLR 17, 63-64.
84 Pyneboard (1983) 45 ALR 609, 617; Police Service Board (1985) 58 ALR I, 5-6, 10.
85 As pointed out in the ARC, Ninth Annual Report supra n5, 43, in practice the Tribunal President prefers that three members sit whenever possible, but in some areas of jurisdiction (eg ACT rating and Isolated Patients Travel and Accommodation Assistance) it is preferrable to increase efficiency and to reduce expense by sitting a single member. For similar reasons only single member tribunals travel to country areas. Also there is no equivalent of the AA T Act, s 36A(5) which provides that where the Tribunal must determine a public interest privilege claim by the Attorney-General this power may be exercised only by a presidential member who is a Judge of the Federal Court. However under s 21A(l) of the AA T Act, a party to the proceedings may make application to the Tribunal requesting its reconstitution.
86 (1985) 58 ALR I, 10.
87 (1986) 46 ALR 237, 259. This overrides the more restrictive view adopted by Kaye Jin Riach (1978] VR 301, 310-311. See also Sorby (1983) 46 ALR 237,244.
88 (1984) 55 ALR 319, 325.
89 Mayor of the County Borough of Derby v Derbyshire County Council [1897] AC 550, 552-553; Navair (1981) 52 FLR 177; Birrell (1984) 55 ALR 211, 213; see also supra nnl2, 13, 15.
90 (1982) 43 ALR 659, 666, 670.
91 (1983) 45 ALR 609, 612-613; see also Controlled Consultants (1985) 57 ALR 751, 757.
92 R v Boyes (1861) 121 ER 730, 738; Re Westinghouse Electric Corp (No 2) (1977) 3 All ER 717, 721; British Steel Corp v Granada Television Ltd [1981] I All ER 417; Kahan v Kahan [1982] 2 All ER 64; Hammond (1982) 42 ALR 327, 331, 334; Sorby (1983) 46 ALR 237; Controlled Consultants [1984] VR 137, 151; Price v McCabe; ex parte Price (1984) 55 ALR 319,324-325; Scanlan v Swan [1984] I Qd R 21.
93 [1983] 2 VR 334.
94 See also Price v McCabe (1984) 55 ALR 319, 325; Scanlan v Swan [1984) I Qd R 21.
95 s 44( I): “A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law, from any decision of the Tribunal in that proceeding”. Alternatively the Tribunal, of its own motion or at the request of a party, may refer a question of law to the Federal court: s 45(1).
96 cf McMullen v Commissioner for Superannuation (1985) 3 AAR 358; (1985) 61 ALR 189. As to what constitutes a question of law see generally GA Flick supra n 74, 293, 1548-1549, for analogous provisions see AAT Act sections 36(6)(8), 36A(3)(6).
97 Supra n 39.
98 AAT Act s 40(4). A person summoned to appear before the Tribunal may request representation by counsel, but this may be declined at the discretion of the Tribunal.
99 A precedent for express abrogation is found in s 6A of the Royal Commission Act (1902) (Cth), as quoted in Sorby (1983) 46 ALR 237, 246.
100 Eg as in the Companies and Securities and Trade Practices legislation, supra nn54-56. Query whether the immunity should apply to documents as well as oral statements.