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Coercive Questioning after Charge
Published online by Cambridge University Press: 24 January 2025
Extract
One of the distinctive features of the Australian legal landscape is the increasing use of commissions that possess coercive powers to supplement normal police methods in the investigation of crime. This practice became common in the late 1970s and early 1980s, when a number of Royal Commissions into organised crime or corruption were conducted. It continued with the establishment at both the Commonwealth and State level of standing commissions charged with the investigation of various types of serious crime or corruption. This article is concerned with an analysis of the ability of Royal Commissions and standing commissions to use their coercive powers to investigate crime when the investigation may interfere with pending criminal proceedings. It argues that the divergent authorities in this area can best be understood as turning on the fact that the separation of powers doctrine imposes limits on the powers of Commonwealth commissions that do not exist in relation to State commissions.
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References
1 There were 47 ad hoc Commissions to inquire into crime, corruption or impropriety established in Australia between 1960 and 1991: S Prasser, “Appendix” in P Weller (ed), Royal Commissions and the Making of Public Policy (1994) at 267. A high profile, more recent example is the Royal Commission into the NSW Police Service (Wood, 1997).
2 More accurately referred to as “Royal Commissions of Inquiry”: LA Hallett, Royal Commissions and Boards of Inquiry (1982) at 1.
3 See, eg, Royal Commission into Commercial Activities of Government and Other Matters (Kennedy, Wilson and Brinsden, 1992); Report of a Commission of Inquiry Pursuant to Orders in Council-Inquiry into Possible Illegal Activities and Associated Police Misconduct (Fitzgerald, 1989); Royal Commission of Inquiry into the Activities of the Nugan Hand Group (Stewart, 1985); Royal Commission into the Federated Ship Painters and Dockers' Union (Costigan, 1984); Royal Commission of Inquiry into Drug Trafficking (Stewart, 1983); Royal Commission to inquire into the activities of the Australian Building Construction Employees' and Builders Labourers' Federation (Winneke, 1982).
4 Established by the National Crime Authority Act 1984 (Cth) (NCA Act) and by complementary State legislation.
5 Established by the Australian Securities and Investments Commission Act 1989 (Cth) (ASIC Act) and by complementary State legislation.
6 Joint Parliamentary Committee for the National Crime Authority, Third Evaluation of the National Crime Authority (1998) at 106.
7 In relation to the NCA coercive powers are conferred by the NCA Act and by the NCA
(State Provisions) Act in each State. The State Acts were enacted in 1984 in New South Wales, Victoria and South Australia, and 1985 in Queensland, Tasmania and Western Australia. In relation to the ASIC, coercive powers are conferred by the ASIC Act and by the State Corporations Acts 1990. In both cases the Federal legislation is of primary importance, with State legislation simply filling the gap that would otherwise exist in the coercive powers of national Commissions because of the division of legislative power under the Commonwealth Constitution.
8 Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
9 New South Wales Crime Commission Act 1985 (NSW) (NSWCC Act).
10 Criminal Justice Act 1989 (Qld) (CJC Act).
11 Crime Commission Act 1997 (Qld) (Qld CC Act).
12 Anti-Corruption Commission Act 1988 (WA) (WA ACC Act).
13 Pursuant to the Royal Commission Act 1902 (Cth); Royal Commission Act 1923 (NSW);Commission of Inquiry Act 1950 (Qld); Commission of Inquiry Act 1995 (Tas); Royal Commission Act 1917 (SA); Royal Commission Act 1968 (WA); Evidence Act 1958 (Vic), Pt, 1, Div 5. The legislation in each jurisdiction (other than Victoria) is broadly similar, although there are important variations. In this article specific reference is made to the Commonwealth Act only.
14 Income Tax Assessment Act 1936 (Cth), ss 263, 264; J Kluver, “ASC Investigations and Enforcement: Issues and Initiatives” (1992) 15 UNSWLJ 31 at 33-35.
15 Trade Practices Act 1975 (Cth), s 155.
16 See, eg, DCT v De Vonk (1995) 133 ALR 303 at 306. The abuse of power doctrine discussed below is particularly relevant to the operation of these Commissions when coercive powers are used to investigate crime.
17 R Sackville, “Royal Commissions in Australia: What price truth?” (1984) 60(12) Current Affairs Bulletin 3 at 11.
18 Royal Commission Act 1902 (Cth), s 2; NCA Act, s 28; ASIC Act, s 19; ICAC Act, s 35;NSWCC Act, s 16; CJC Act, s 74; Qld CC Act, s 95; WA ACC Act, s 40(1), applying s 9 of the Royal Commission Act 1968 (WA).
19 Royal Commission Act 1902 (Cth), s 2; NCA Act, ss 28, 29; ASIC Act, ss 30-34; ICAC Act, ss 22, 35; NSWCC Act, ss 16, 17; CJC Act, ss 69, 74; Qld CC Act, s 93; WA ACC Act, s 40(1),applying s 9 of the Royal Commission Act 1968 (WA).
20 Royal Commission Act 1902 (Cth), s 6A; NCA Act, s 30(5), (7); ASIC Act, s 68(1); ICAC Act,s 37(2); NSWCC Act, s 18B(l); CJC Act, s 94(2); Qld CC Act, s 107(3); WA ACC Act, s 40(1),applying ss 13(4) and 14(2) of the Royal Commission Act 1968 (WA).
21 Royal Commission Act 1902 (Cth), s 6DD; NCA Act, s 30(5), (7); ASIC Act, s 68(2), (3); ICAC Act, s 37(3), (4); NSWCC Act, s 18B(2), (3); CJC Act, s 96(1); Qld CC Act, s 110; WA ACC Act, s 40(1), applying s 20 of the Royal Commission Act 1968 (WA); cf Income Tax Assessment Act 1936 (Cth), s 264.
22 The main exception is the derivative-use immunity found in the NCA Act, s 30(5), (7).
23 Where, because the privilege against self-incrimination can b_e claimed, witnesses may refuse to answer questions that may incriminate them either directly or indirectly: Reid v Haward (1995) 184 CLR 1 at 6, 15; Sorby v Commonwealth (1983) 152 CLR 281 at 294-295, 310,316. The ability to remain silent prevents derivative use of evidence and eliminates the risk of forensic disadvantages.
24 Other major issues include the evidential use that may be made of compelled evidence and the procedural rights that must be accorded to witnesses by investigative commissions.
25 DCT v De Vonk (1995) 133 ALR 303 at 310,322.
26 There is wide variation in the type of procedure required to initiate Commission investigations. Some Commissions, such as the ASIC, can conduct investigations on their own initiative: ASIC Act, s 13. Others, such as the NCA, require a reference from a supervisory committee: NCA Act, ss 13, 14.
27 DCT v De Vonk (1995) 133 ALR 303 at 322.
28 Hamilton v Oades (1989) 166 CLR 486 at 502 per Deane and Gaudron JJ dissenting.
29 Industrial Equity Ltd v OCT (1990) 170 CLR 649 at 659; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 537; DCT v De Vonk (1995) 133 ALR 303 at 306 and 316-317; O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 48; FCT v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 535; Halden v Marks (1996) 17 WAR 447 at 458. This ground of review is reflected in the Administrative Decisions Oudicial Review) Act 1977 (Cth), s 5(1)(e) read withs 5(2)(c).
30 Knuckey v FCT (1998) 40 ATR 117, applying Thompson v Randwick Municipal Council (1950) 81 CLR 87 at 106. See also Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468-469.
31 Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468- 469 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, following Thompson v Randwick Municipal Council (1950) 81 CLR 87 at 106. This test was approved in Walton v Gardiner (1993) 177 CLR 378 at 410; Boys v ASC (1998) 152 ALR 219 at 228; Kazar v Duus (1998) 29 ACSR 321 at 335. The “but for” test adopted in these cases may not render a substantial purpose improper if that purpose is not the ultimate purpose for an exercise of power, but rather is a means to the end to be achieved by an ultimate purpose: Knuckey v FCT (1998) 40 ATR 117. The Federal Court in DCT v De Vonk (1995) 133 ALR 303 at 317 said an exercise of power would be invalid if an improper purpose was “not insignificant”. This test is not consistent with the above authorities, which were not cited by the Court.
32 See Walton v Gardiner (1993) 177 CLR 378 for a comprehensive discussion of this doctrine.
33 Ibid at 410.
34 Ibid.
35 Brennan J has, however, left open the possibility that the appropriate test for an abuse of process is an improper “substantial purpose”: Walton v Gardiner (1993) 177 CLR 378 at 410.
36 The doctrine of abuse of process may apply whenever the continuation of proceedings would involve unacceptable injustice or unfairness. It is not confined to situations in which proceedings have been instituted for an improper purpose, or where any hearing will be necessarily unfair: Walton v Gardiner (1993) 177 CLR 378 at 392. The doctrine is, however, relevant to this article only in so far as it restricts proceedings instituted for an improper purpose.
37 Williams v Spautz (1992) 174 CLR 509 at 529; Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281 at 300, citing Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723 at 732. There is, however, some authority that an abuse of process cannot be established unless the sole purpose for the institution of proceedings is improper: see Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519. In Sherlock v Permanent Trustee Australia Ltd (1996) 22 ACSR 16 at 44 the Court appeared to favour the sole purpose test, but did not need to decide between the tests.
38 It is assumed that the doctrine could operate in this way in DCT v De Vonk (1995) 133 ALR 303 at 306.
39 See, eg, Hamilton v Gades (1989) 166 CLR 486; Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537; Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281; Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512.
40 Corporations Law, s 597.
41 See, eg, Industrial Equity Ltd v DCT (1990) 170 CLR 649 at 659-661; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030.
42 DCT v De Vonk (1995) 133 ALR 303 at 306.
43 NCA Act, ss 11, 12; ASIC Act, ss 13, 16-18.
44 Hamilton v Oades (1989) 166 CLR 486 at 509; Sorby v Commonwealth (1983) 152 CLR 281 at 310.
45 Halden v Marks (1996) 17 WAR 447 at 459.
46 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 12 per Stephen J; Halden v Marks (1996) 17 WAR 447 at 459-460.
47 A-G (Cth) v Queensland (1990) 25 FCR 125 at 144; Ross v Costigan (1982) 41 ALR 319 at 330-331; Harper v Costigan (1983) 72 FLR 140 at 154; Eatts v Dawson (1990) 93 ALR 497. For the equivalent rule in relation to standing Commissions see NCA v Al (1997) 145 ALR 126 at 145.
48 Compare Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 516-517 per Brennan J.
49 (1989) 166 CLR 486.
50 Companies (NSW) Code, s 541. The equivalent provision is s 597 of the Corporations Law.
51 Companies (NSW) Code, s 541(5).
52 Companies (NSW) Code, s 541(12).
53 Hamilton v Gades (1989) 166 CLR 486 at 492.
54 Ibid at 494, 513.
55 Ibid at 493-494.
56 Ibid at 494-495. See DCT v De Vonk (1995) 133 ALR 303 at 312-313, 324-325.
57 Hamilton v Gades (1989) 166 CLR 486 at 498-499, 511, 516-517.
58 Ibid at 498, 515.
59 Ibid at 496.
60 Ibid.
61 Ibid at 497.
62 Ibid at 513.
63 Ibid at 496 (emphasis added).
64 Ibid at 497 (emphasis added).
65 Ibid at 515.
66 Ibid at 497, applying Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 541.
67 Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 541. This approach has been approved in Hamilton v Gades (1989) 166 CLR 486 at 497; Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281 at 301; Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 518.
68 But see Douglas-Brown (The official liquidator of Woomera Holdings Pty Ltd) (rec and mgr apptd)v Furzer (1994) 13 ACSR 184 at 191.
69 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 516-517.
70 Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281 at 302.
71 Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 540.
72 Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 28 ACSR 343 at 349; Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281 at 302; Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 518-519; Sherlock v Permanent Trustee Australia Ltd (1996) 22 ACSR 16 at 17-18, 48-49; Adler v Qintex Group Management Services Pty Ltd (in liq) (1996) 22 ACSR 446 at 449; Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 542. See also Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 120 ALR 262; Re Norman Baker Pty Ltd (in liq), exp Hillman (1981) 6 ACLR 257 at 260; Re Nalanda Pty Ltd (in liq) (1983) 7 ACLR 596 at 598; Re Allan Fitzgerald Pty Ltd (in liq) (No 2) [1990] 1 Qd R 401; Re Rothwells Ltd (prov liq apptd) (1989) 15 ACLR 168 at 180-182; Spedley Securities Ltd v Bond Corp Holdings Ltd (1990) 19 NSWLR 729; Re Spedley Securities Ltd, exp Potts (1990) 2 ACSR 152 at 154-156; Re Spersea Pty Ltd (1990) 3 ACSR 87; Spedley Securities Ltd (in liq) v Bank of New Zealand (1990) 3 ACSR 366 at 369-375; Re Mooroolbark Grammar School Ltd (1990) 4 ACSR 76 at 78-79; Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 9 ACLC 124; Re BPTC Ltd (in liq) (No 2) (1992) 29 NSWLR 713.
73 Hamilton v Oades (1989) 166 CLR 486 at 498,515.
74 Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519.
75 Sorby v Commonwealth (1983) 152 CLR 281 at 306; James v Robinson (1963) 109 CLR 593 at 607-608, 618, applying R v Parke [1903] 2 KB 432; R v Davies [1906] 1 KB 32; Katan Holdings Pty Ltd v TPC (1991) 102 ALR 51. See also N Lowe and B Sufrin, Barrie & Lowe: The Law of Contempt (3rd ed 1996) at 236-237.
76 A-G v Times Newspapers Ltd [1974] AC 273 at 301; A-G v Leveller Magazine [1979] AC 440 at 449; N Lowe and B Sufrin, above n 75 at 238, 244; CJ Miller, Contempt of Court (2nd ed 1989)at 169-171; Report of the Interdepartmental Committee on the Law of Contempt as it affects Tribunals of Inquiry, Cmnd 4078 (1969) at 9-10. Under s 2 of the Contempt of Court Act 1981 (UK) there can be contempt once proceedings are “active”.
77 Sorby v Commonwealth (1983) 152 CLR 281 at 306; James v Robinson (1963) 109 CLR 593 at 606-607.
78 James v Robinson (1963) 109 CLR 593 at 607-608. This reasoning has been criticised: N Lowe and B Sufrin, above n 75 at 248; cf CJ Miller, above n 76 at 171.
79 Sorby v Commonwealth (1983) 152 CLR 281 at 307.
80 S Walker, “Freedom of Speech and Contempt of Court: The English and Australian Approaches Compared” (1991) 40 ICLQ 583 at 590.
81 Ibid at 593.
82 Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 56, 136 (BLF Case); John Fairfax and Sons v McRae (1955) 93 CLR 351 at 373;Hinch v A-G (Vic) (1987) 164 CLR 15 at 34, 47, 70; DCT v De Vonk (1995) 133 ALR 303 at 307,323.
83 John Fairfax and Sons v McRae (1955) 93 CLR 351 at 371; Hammond v Commonwealth (1982) 152 CLR 188 at 196; BLF Case (1982) 152 CLR 25 at 166; Cooke v Goodhew (1989) 91 ALR 447 at 459, 469; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 104-105; A-G (NSW) v John Fairfax and Sons Ltd [1986] 6 NSWLR 695 at 697-698; M Chesterman, “Reform of the Law of Media Contempt” (1987) 61 ALJ 695 at 702.
84 BLF Case (1982) 152 CLR 25 at 56, 60; Hinch v A-G (Vic) (1987) 164 CLR 15 at 27, 88; DCT v De Vonk (1995) 133 ALR 303 at 307,323; Vinton Smith Dougall Ltd v ASC (1997) 23 ACSR 567 at 569-570; N Lowe and B Sufrin, above n 75 at 78.
85 Hinch v A-G (Vic) (1987) 164 CLR 15 at 70.
86 Ibid at 27.
87 BLF Case (1982) 152 CLR 25 at 99.
88 Ibid; Cooke v Goodhew (1989) 91 ALR 447 at 459.
89 Hinch v A-G (Vic) (1987) 164 CLR 15 at 24, 26-27, 41-42, 52-53, 67, 85-86; BLF Case (1982) 152 CLR 25 at 56, 75, 95, 133; Ex p Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250. See generally S Walker, above n 80 at 583; JS Mo, “Freedom of Speech versus Administration of Justice: Balancing of Public Interests in Contempt of Court Cases in New South Wales” (1992) 9 Aust Bar Rev 215.
90 The approach taken by Stephen, Mason and Wilson JJ in the BLF Case (1982) 152 CLR 25 at 74-75, 95-98, 133-137. This approach seemed to prevail in Hinch v A-G (Vic) (1987) 164 CLR 15 at 68, 84; Cooke v Goodhew (1989) 91 ALR 447 at 469; S Walker, above n 80 at 600-601.
91 The approach taken by Brennan J and, to some extent, by Gibbs CJ in the BLF Case (1982) 152 CLR 25 at 60, 169, 175-176. The question has not been finally resolved: Hinch v A-G (Vic) (1987) 164 CLR 15 at 23-24, 48.
92 Hinch v A-G (Vic) (1987) 164 CLR 15 at 21-22, 36, 48, 66, 83.
93 Examples given in the cases include the discussion of a major constitutional crisis or of an imminent threat of nuclear disaster: Hinch v A-G (Vic) (1987) 164 CLR 15 at 26. Gleeson CJ, however, appeared to have contemplated that the public interest in integrity in the racing industry could outweigh an accused's interest in a fair trial free from prejudicial publicity:John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 84.
94 Hinch v A-G (Vic) (1987) 164 CLR 15 at 24, 26-27, 41-42, 52-53, 58-59, 67, 86-87. See also DPP v Australian Broadcasting Corporation (1986) 7 NSWLR 588; DPP v Wran (1986) 7 NSWLR 616.
95 BLF case (1982) 152 CLR 25 at 55, 72; Clough v Leahy (1904) 2 CLR 139 at 161-162; McGuinness v A-G (Vic) (1940) 63 CLR 73 at 85, 100-101.
96 BLF case (1982) 152 CLR 25; McGuinness v A-G (Vic) (1940) 63 CLR 73 at 85; Clough v Leahy (1904) 2 CLR 139 at 156, 161; Johns & Waygood v Utah Australia Ltd [1963] VR 70 at 75. For a discussion of these cases, other than the BLF case, see L Hallett, above n 2 at 227-247.
97 BLF Case (1982) 152 CLR 25 at 167 per Brennan J. See also A-G v Times Newspapers [1974] AC 273 at 309.
98 BLF Case (1982) 152 CLR 25 at 65, 125, 128, 149, 154; McGuinness v A-G (Vic) (1940) 63 CLR 73 at 84, 90. See also Hammond v Commonwealth (1982) 152 CLR 188 at 196,199,207, where it is clear that the Court was concerned with the risk of interference with pending criminal proceedings, not with the possibility that the Royal Commission had usurped the role of the courts.
99 CJ Miller, above n 76 at 140. Publication in this context does not include private communication between individuals, whatever the reason for that communication: ABC v Jacobs (1991) 56 SASR 274 at 283; Roget v Flavel (1987) 47 SASR 402 at 405-406.
100 BLF Case (1982) 152 CLR 25; Cooke v Goodhew (1989) 91 ALR 447 at 456, 459, 468.
101 Cooke v Goodhew (1989) 91 ALR 447 at 470.
102 BLF Case (1982) 152 CLR 25 at 97, 135; Johns v ASC (1992) 35 FCR 16 at 40-41 (appealed to the High Court on different grounds).
103 BLF case (1982) 152 CLR 25 at 97; Huston v Costigan (1982) 45 ALR 559.
104 See, eg, ASIC Act, s 22; NCA Act, s 25(5).
105 See, eg, Royal Commission into the New South Wales Police Service (Wood, 1997) Vol 3 at A27; Royal Commission of Inquiry into Drug Trafficking (Stewart, 1983) at 13-14, 780; Royal Commission of Inquiry into the Activities of the Nugan Hand Group (Stewart, 1985) at 11; Royal Commission of Inquiry into Alleged Telephone Interceptions (Stewart, 1986) at 50; Royal Commission into the Federated Ship Painters and' Dockers' Union (Costigan, 1984) Vol 1 at 162. See also Joint Parliamentary Committee on the National Crime Authority, who is to Guard the Guards? An Evaluation of the National Crime Authority (1991) at 178-179.
106 Cooke v Goodhew (1989) 91 ALR 447 at 456,470; BLF case (1982) 152 CLR 25 at 97.
107 Cooke v Goodhew (1989) 91 ALR 447 at 456. The language of “usurpation” is also used in some of the other cases, although the tests for contempt used in these cases suggest that the real concern is with interference with pending proceedings. See, eg, DCT v De Vonk (1995) 133 ALR 303 at 323; Brambles Holdings Ltd v TPC (No 2) (1980) 32 ALR 328.
108 BLF case (1982) 152 CLR 25 at 99.
109 See, eg, Royal Commission of Inquiry into Alleged Telephone Interceptions (Stewart, 1986) at 38.
110 Hammond v Commonwealth (1982) 152 CLR 188.
111 Ibid at 199, cf 209. See also BLF case (1982) 152 CLR 25 at 97.
112 Cooke v Goodhew (1989) 91 ALR 447 at 460.
113 Court orders that require Commissions to sit in private therefore do not remove the possibility that contempt of these types will occur. It is probable that the reason such orders were treated as removing the risk of contempt in Huston v Costigan (1982) 45 ALR 559 at 563 is that on the facts the accused had been examined before charges were laid. The case concerned whether the examination of witnesses other than the accused could continue after charges were laid. The main risk of contempt therefore related to the generation of prejudicial publicity, although there was also a risk that the prosecution would obtain unfair procedural advantages.
114 (1982) 152 CLR 188.
115 For a discussion of the case see I Freckelton, Prejudicial Publicity and the Courts (ALRC Research Paper No 4, 1986) at 120-123.
116 Hammond v Commonwealth (1982) 152 CLR 188 at 205.
117 Ibid at 197-198. The Court made this assumption as a result of the manner in which the case was argued by the parties. The doubts expressed by the Court about whether the Act abrogated the privilege led to immediate amendments to the Royal Commission Act 1902 (Cth) to clarify this matter.
118 As a result of Royal Commission Act 1902 (Cth), s 6DD, which confers a direct-use immunity.
119 Hammond v Commonwealth (1982) 152 CLR 188 at 199.
120 Ibid at 206-207.
121 Ibid at 202.
122 Ibid.
123 Ibid at 196,203.
124 DCT v De Vonk (1995) 133 ALR 303 at 308-309; Hugall v McCusker (1990) 2 WAR 350 at 360-361; Edelsten v Richmond (1987) 11 NSWLR 51 at 58; Brown v CAC (NSW) (1989) 14 ACLR 781 at 786-787; Donovan v OCT (1992) 106 ALR 661 at 666-667; Commissioner of AFP v McMillan (1987) 13 FCR 7 at 18.
125 BLF case (1982) 152 CLR 25 at 55, 72; Clough v Leahy (1904) 2 CLR 139 at 161-162; McGuinness v A-G (Vic) (1940) 63 CLR 73 at 85, 100-101. A Royal Commission established to inquire whether an offence had been committed when a prosecution for the offence was already pending would be invalid as a result of this rule.
126 Re Gordon (1988) 80 ALR 289 at 296.
127 See,eg,P Pascoe, “Current Developments: Hamilton v Oades” (1989) 7 CSL] 360 at 362.
128 Hamilton v Oades (1989) 166 CLR 486 at 509. His Honour did not, however, express any view as to the appropriate scope of the law.
129 Ibid at 515 (emphasis added). His Honour followed his own judgment in Huston v Costigan (1982) 45 ALR 559 at 563.
130 Compare Re Gordon (1988) 80 ALR 289 at 296-297.
131 BLF case (1982) 152 CLR 25 at 55, 72; Clough v Leahy (1904) 2 CLR 139 at 161; McGuinness v A-G (Vic) (1940) 63 CLR 73 at 84-85; Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 73-75.
132 Pioneer Concrete v TPC (1982) 152 CLR 460 at 468; Kotan Holdings Pty Ltd v TPC (1991) 102 ALR51 at 56.
133 DCT v De Vonk (1995) 133 ALR 303 at 310.
134 Hugall v Mccusker (1990) 2 WAR 350 at 361.
135 Hammond v Commonwealth (1982) 152 CLR 188 at 194. See also Royal Commission into the Australian Meat Industry (Woodward, 1982) at 27, 34-39.
136 Hammond v Common-wealth (1982) 152 CLR 188 at 199,202; I Freckleton, above n 115 at 123.
137 Hammond v Commonwealth (1982) 152 CLR 188 at 207.
138 DCT v De Vonk (1995) 133 ALR 303 at 309.
139 Ibid.
140 Grollo v Bates (1994) 125 ALR 492 at 515 treats the case in this way.
141 Hammond v Commonwealth (1982) 152 CLR 188 at 195.
142 By a use and derivative use-immunity, as is provided for by the NCA Act, s 30(5), (7) or by the Director of Public Prosecutions Act 1983 (Cth), s 9(6).
143 See the analogous reasoning in R v Elite Woodproducts (Australia) Pty Ltd (1989) 42 A Crim R 45 at 52-53.
144 The non-evidential use of evidence will probably not be prevented by derivative-use immunities. See the discussion in Ganin v New South Wales Crime Commission (1993) 32 NSWLR423.
145 NCA Act, s 30(10).
146 F v NCA (1998) 154 ALR 471 at 477.
147 Hammond v Commonwealth (1982) 152 CLR 188 at 199,201, cf 209.
148 De Greenlaw v NCSC (1989) 15 ACLR 381 at 385. See also Huston v Costigan (1982) 45 ALR 559 at 563-564.
149 A-G v Times Newspapers [1974] AC 273 at 309.
150 (1980) 32 ALR 328.
151 Brambles Holdings Ltd v TPC (No 2) (1980) 32 ALR 328 at 335.
152 See A H Slater, “Using Investigative Powers During Litigation” (1994) 6 CCH J of Aus Taxation 11 at 12, who assumes that the reasoning in Brambles applies in the different statutory context of the Income Tax Assessment Act 1936 (Cth); cf Grollo v Bates (1994) 125 ALR 492 at 516-517 where, obiter dicta, Einfeld J argued that the Brambles case turned simply on statutory interpretation.
153 Brambles Holdings Ltd v TPC (No 2) (1980) 32 ALR 328 at 338.
154 Ibid at 340 (the criminal proceedings referred to are proceedings to compel compliance with the Commission's orders).
155 DCT v De Vonk (1995) 133 ALR 303 at 323; Kotan Holdings Pty Ltd v TPC (1991) 102 ALR 51 at 56, 61-62; Commercial Bureau (Australia) Pty Ltd v Allen, exp FCT (1984) 52 ALR 703 at 709.See also A Bruce, “Caltex and Abbco Ice Works-The End of the Road for Corporations?” (1995) 23 ABLR 7 at 9-11.
156 In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 the 4:3 majority of the High Court, which upheld the validity of a use of coercive powers against a defendant in current proceedings for the purpose of obtaining evidence for use in those proceedings, decided the case on the basis of the doctrine of abuse of power, rather than contempt of court, perhaps because the case concerned State legislation. For a summary of the relevant passages see T Sherman, “Administrative Law and Investigative Agencies” (1995) 4 AIAL Forum 1 at 14-15.
157 Pioneer Concrete v TPC (1982) 152 CLR 460 at 467-468. The other members of the Court reserved their opinions on this question.
158 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 557-558 per McHugh J quoting Gleeson CJ from the Court of Appeal.
159 Ibid at 558 per McHugh J quoting Gleeson CJ from the Court of Appeal.
160 ASC v Ampolex Ltd (1995) 39 NSWLR 504 at 519.
161 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 558-559.
162 BLF case (1982) 152 CLR 25 at 103, 132; Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 82; Australia and New Zealand Building Group Ltd v Richard Ellis (Vic) Pty Ltd [1994] 1 VR 328 at 334-335.
163 Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 81.
164 Rowell v Larter (1986) 6 NSWLR 21 at 28-29; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 517-18, 535; cf Grollo v Macauley (1993) 45 FCR 336, where Jenkinson J suggested there is a contempt if neither the document nor the information it contains would or should have passed to a party to the litigation by the ordinary processes of discovery. On appeal, the Full Court did not squarely address this issue, as it treated the case as if it turned upon whether there was an improper purpose underlying the application for the warrant: Grollo v Macauley (1995) 80 A Crim R 175 at 191- 192.
165 De Greenlaw v NCSC (1989) 15 ACLR 381 at 383. See Crimes Act 1958 (Vic), s 400.
166 De Greenlaw v NCSC (1989) 15 ACLR 381 at 384.
167 Hamilton v Oades (1989) 166 CLR 486 at 498,517; DCT v De Vonk (1995) 133 ALR 303 at 322.
168 Hamilton v Oades (1989) 166 CLR 486 at 499.
169 Ibid at 499-500.
170 Ibid at 503.
171 See, eg, Hamilton v Oades (1989) 166 CLR 486 at 497; Re Hugh J Roberts Pty Ltd (1970) 91 WN (NSW) 537 at 540-541.
172 Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 473.
173 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 537; Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 347, 350; Hammond v Commonwealth (1982) 152 CLR 188 at 202; Kirk v Commissioner of AFP (1988) 81 ALR 321 at 334-335.
174 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 517.
175 R v Director of Serious Fraud Office, exp Smith [1993] AC 1, although this approach is more justifiable in the United Kingdom in the absence of an entrenched separation of powers.
176 Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 473 (emphasis added).
177 Ibid at 468,472; Katan Holdings Pty Ltd v TPC (1991) 102 ALR 51 at 58.
178 See, eg, Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 507, 537; Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 72-73; City of Collingwood v Victoria [No 2] [1994] 1 VR 652 at 663; S (a child) v R (1995) 12 WAR 392 at 401. A good example of legislation that does this expressly is the Royal Commission (Police Service) Act 1994 (NSW), s 38. It is, however, possible that some limitations may in the future be found to arise in relation to State courts that have been invested with federal jurisdiction, if State legislation was repugnant to or incompatible with the exercise by State courts of the judicial power of the Commonwealth: Kable v DPP (NSW) (1996) 189 CLR 51 at 96, 103, 116.
179 The separation of powers at the Commonwealth level was authoritatively recognised in R v Kirby, exp Boilermakers Society of Australia (1956) 94 CLR 254. In relation to the inability of State Parliaments to legislate in a way that violates Chapter III of the Constitution, see Commonwealth v Queensland (1975) 134 CLR 298 at 314-315; Kable v DPP (NSW) (1996) 189 CLR 51 at 102, 115.
180 This possibility is, however, acknowledged in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 507.
181 (1954) 90 CLR 177.
182 Royal Commission Act 1954 (Cth).
183 (1954) 90 CLR 177 at 185.
184 Ibid at 186. For a similar view see Z Cowen, Sir John Latham and other Papers (1965) at 101, cited in L Hallett, above n 2 at 232.
185 BLF case (1982) 152 CLR 25 at 120, 131.
186 Ibid at 55, 73, 94, 162.
187 DCT v De Vonk (1995) 133 ALR 303 at 310,322.
188 Australian Law Reform Commission, Contempt (Report No 35, 1987) at 31.
189 Ibid at 31-35. The ALRC relied upon R v Taylor, exp Roach (1951) 82 CLR 587 at 600. See also M Chesterman, above n 83 at 699; S Walker, “Media and Broadcasting Law” (1987) 15 ABLR 448 at 453.
190 Polyukovich v Commonwealth (1991) 172 CLR 501 at 539,609,648,686,706,721; Re Tracey, ex p Ryan (1989) 166 CLR 518 at 540, 564-565, 580-581. See also A Twomey, “Reconciling Parliament's Contempt Powers with the Constitutional Separation of Powers” (1997) 8 PLR 88 at 93-94, 97.
191 Re Colina, ex p Torney (1999) 166 ALR 545 at 551, 579. See also Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1311.
192 Re Colina, exp Torney (1999) 166 ALR 545 at 552.
193 (1982) 152 CLR 188 at 206. See also BLF Case (1982) 152 CLR 25 at 91.
194 (1983) 152 CLR 281 at 306.
195 Hammond v Commonwealth (1982) 152 CLR 188 at 203, leaving the question open; BLF case (1982) 152 CLR 25 at 162, 163 implying that the legislature may not authorise conduct that would otherwise be contempt of a Federal court.
196 Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 474.
197 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 558-559 quoting Gleeson CJ who expressed a similar view prior to his elevation to the High Court.
198 BLF case (1982) 152 CLR 25 at lOS, specifically disapproving Lockwood. See also his Honour's comments in Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 475.
199 (1909) 8 CLR 330. This case is sometimes also cited as Appleton v Moorehead.
200 (1912) 15 CLR 333.
201 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 340-341.
202 (1909) 8 CLR 330 at 379-380.
203 (1912) 15 CLR 333 at 346.
204 Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 467, cf at 474 per Mason J. Gibbs CJ's interpretation is supported by O'Connor J's comments at (1909) 8 CLR 330 at 377. See also A Bruce, above n 155 at 10; W H Moore, “Executive Commissions of Inquiry” (1913) 13 Columbia LR 500 at 522.
205 Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 467.
206 Cf Grollo v Bates (1994) 125 ALR 492 at 516, where Einfeld J argued that the above cases turned on the interpretation of the relevant statutes, not on constitutional questions.
207 For a discussion of this trend see F Wheeler, “The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia” (1997) 23 Mon ULR 248; G Winterton, “The Separation of Judicial Power as an Implied Bill of Rights” in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) at 199-203; C Parker, “Protection of Judicial Process as an Implied Constitutional Principle” (1994) 16 Adel LR 341; J Hope, “A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 FL Rev 173 at 179-183; L Zines, “Constitutionally Protected Individual Rights” in PD Finn (ed), Essays on Law and Government Vol 2 The Citizen and the State in the Courts (1996) at 136, 145-146.
208 (1992) 176 CLR 1 at 27.
209 Nicholas v R (1998) 193 CLR 173 at 185,208,232; Leeth v Commonwealth (1992) 174 CLR 455 at 469-470, 486-487, 502; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 70; Polyukovich v Commonwealth (1991) 172 CLR 501 at 607, 613, 689, 703-704; Re Nolan, exp Young (1991) 172 CLR 460 at 496; Re Tracey, ex p Ryan (1989) 166 CLR 518 at 580; Harris v Caladine (1991) 172 CLR 84 at 150-152.
210 See, eg, BLF case (1982) 152 CLR 25 at 161; A-G v Times Newspapers Ltd [1974] AC 273 at 294.
211 Nicholas v R (1998) 193 CLR 173 at 209. This statement was approved in Esso Australia Resources Ltd v Dawson (1999) 162 ALR 79 at 83.
212 L Zines, The High Court and the Constitution (4th ed 1997) at 204.
213 The relevant provision was Royal Commission Act 1902 (Cth), s 6DD; Colonial Sugar Refining Co Ltd v A-G (Cth) (1912) 15 CLR 182 at 196, 209, 218-219; Giannarelli v R (1983) 154 CLR 212 at 220, 221, 229; I Temby, “Immunity from Prosecution and the Provision of Witness Indemnities” (1985) 59 ALJ 501 at 511; A Leaver, Investigating Crime: A Guide to the Powers of Agencies Involved in the Investigation of Crime (1997) at 296-297.
214 Colonial Sugar Refining Co Ltd v A-G (Cth) (1912) 15 CLR 182 at 196, 209, 218-219. This reasoning may not supports 9(6) of the Director of Public Prosecutions Act 1983 (Cth),which is not attached to a power to compel testimony; but indemnities granted by the Director under s 30(5) of the NCA Act, which is linked to such a power, are supported by it. Evidential immunities are sometimes supported by more explicit heads of power: see, eg, Commonwealth Constitution, s 49, which supports the Parliamentary Privilege Act 1987 (Cth), s 16(3): see Laurance v Kalter (1996) 141 ALR 447 at 472-479 (special leave to appeal to the High Court was granted on 26 June 1997, but the appeal was discontinued by notice on 1 May 1998).
215 Registrar, Court of Appeal (NSW) v Craven [No 2] (1995) 120 FLR 464 at 467,476,481.
216 (1989) 166 CLR 518.
217 Defence Force Discipline Act 1982 (Cth), s 190(3),(5).
218 Re Tracey, exp Ryan (1989) 166 CLR 518 at 547. These judges actually decided the case on the narrower basis that s 51(vi), the defence power, did not authorise legislation of this type.
219 Ibid at 575. The reasoning of the majority in this case is criticised by Deane J, with McHugh Jin agreement, in Re Nolan, exp Young (1991) 172 CLR 460 at 491.
220 L Zines, above n 212 at 338-339; Kable v DPP (NSW) (1996) 189 CLR 51 at 141.
221 See, eg, Re Australian Education Union, ex p Victoria (1995) 184 CLR 188 at 229; L Zines, above n 212 at 338.
222 Re Australian Education Union, exp Victoria (1995) 184 CLR 188 at 231. Before arriving at this formulation, the Court examined the major cases in which this implied restriction has been discussed: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 56, 60, 66, 74, 82-84; Victoria v Commonwealth (1971) 122 CLR 353 at 390-391, 410-411, 424; Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 205, 217, 226, 231, 247, 260-262; Commonwealth v Tasmania (1983) 158 CLR 1 at 139-140, 213, 281. For a discussion of these cases see P Hanks, Constitutional Law in Australia (2nd ed 1996) at 241-245; L Zines, above n 212 at 321-335.
223 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 207; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216.
224 Re Australian Education Union, exp Victoria (1995) 184 CLR 188 at 228; L Zines, above n 212 at 328. Fitzgerald P has indicated that a Commonwealth provision restricting the evidence that can be used in State judicial proceedings does not to violate this implied limitation: Laurance v Katter (1996) 141 ALR 447 at 479.
225 (1995) 184 CLR 188.
226 Ibid at 229.
227 Laurance v Katter (1996) 141 ALR 447 at 457.
228 The main limitations are that Federal jurisdiction can be vested in State courts only in relation to the matters enumerated in ss 75 and 76 of the Constitution and only judicial functions may be conferred by the Commonwealth on State courts: R v Murphy (1985) 158 CLR 596 at 613-614; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144.
229 Laurance v Katter (1996) 141 ALR 447 at 458. The High Court's refusal to accept implied limitations on the contempt powers of the Federal Court provides, by analogy, support for the view that any attempt to authorise a contempt of a State court would interfere with the exercise by that court of its essential functions: BLF Case (1982) 152 CLR 25 at 78-80, 93-94, 119, 163-165.
230 For an analogous argument in relation to the Commonwealth's inability to interfere with freedom of speech in State Parliaments, see Senate Standing Committee on Constitutional and Legal Affairs, Commonwealth Law Making Power and the Privilege of Freedom of Speech in State Parliaments (1985). The conclusions reached in this report have, however, been criticised: L Zines, above n 212 at 334.
231 DCT v De Vonk (1995) 133 ALR 303 at 311, 326. For statements in relation to similar fundamental common law doctrines, see Hamilton v Oades (1989) 166 CLR 486 at 495, 500-501; Sorby v Commonwealth (1983) 152 CLR 281 at 309.
232 Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 473; BLF case (1982) 152 CLR 25 at 55, 94,162.
233 See, eg, Pyneboard Pty Ltd v TPC (1983) 152 CLR 328 at 341; Controlled Consultants Pty Ltd v CAC (1985) 156 CLR 385 at 394; Police Service Board v Morris (1985) 156 CLR 397 at 409; X v McDermott (1994) 76 A Crime R 508 at 518-519. For a detailed discussion of the abrogation of the privilege against self-incrimination, see S McNicol, Law of Privilege (1992) at 241-273.
234 See above n 20. For this reason, it is not necessary to discuss the principles governing the abrogation of the privilege by implication in this article.
235 Hamilton v Oades (1989) 166 CLR 486 at 498-499 (emphasis added); Re Ardina Electrical (Qld) Pty Ltd (in liq) (1992) 7 ACSR 297 at 300. These remarks have been interpreted as relating to contempt of court: DCT v De Vonk (1995) 133 ALR 303 at 313.
236 Hamilton v Oades (1989) 166 CLR 486 at 515, 510.
237 DCT v De Vonk (1995) 133 ALR 303 at 307. See also BLF case (1982) 152 CLR 25 at 162; A-G v Times Newspapers Ltd [1974] AC 273 at 294.
238 DCT v De Vonk (1995) 133 ALR 303 at 307,314,326.
239 Ibid. The decision may derive support from Sorby v Commonwealth (1983) 152 CLR 281 at 307-308; BLF case (1982) 152 CLR 25 at 162; Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460 at 473, 475.
240 DCT v De Vonk (1995) 133 ALR 303 at 325.
241 Ibid at 325-326.
242 Hamilton v Gades (1989) 166 CLR 486 at 495, 500-501; Sorby v Commonwealth (1983) 152 CLR 281 at 309; Police Service Board v Morris (1985) 156 CLR 397 at 404; CAC(NSW) v Yuill (1991) 172 CLR 319 at 321,331,338,345.
243 This does not deny the Commonwealth Parliament's ability to abrogate the privilege against self-incrimination. Instead, it denies that Parliament's ability to authorise actions that take advantage of that abrogation after charges have been laid. This distinction may have been recognised in Sorby v Commonwealth (1983) 152 CLR 281 at 307-308.
244 DCT v De Vonk (1995) 133 ALR 303 at 314,326.
245 Hamilton v Oades (1989) 166 CLR 486 at 497. Another possible explanation is that, because the liquidator's examination was conducted before the court, the High Court considered the relevant principles to be those governing conflict between civil and criminal courts, rather than the rules of contempt. For an illustration of this approach see Kirk v Commissioner of AFP (1988) 81 ALR 321 at 353-354; McMahon v Gould (1982) 7 ACLR 202; Jefferson Ltd v Bhetcha [1979] 2 All ER 1108 at 1113. In Kirk v Commissioner of AFP (1988) 81 ALR 321 at 355, however, it was assumed that an examination conducted before a court can be in contempt of criminal proceedings in a different court.
246 (1989) 166 CLR 486 at 508, 512.
247 Counsel for Mr Oades made submissions in relation it: ibid at 489.
248 Ibid at 497.
249 DCT v De Vonk (1995) 133 ALR 303 at 325, noting that the High Court seems to have treated questions of self-incrimination as the main issue between the parties.
250 Notably Brambles Holdings Ltd v TPC (1980) 32 ALR 328; Pioneer Concrete (Vic) Pty Ltd v TPC (1982) 152 CLR 460; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 558-559.
251 See, eg, Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 28 ACSR 343; Re Excel Finance Corporation Ltd; Worthley v England (1994) 124 ALR 281; Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512; Sherlock v Permanent Trustee Australia Ltd (1996) 22 ACSR 16; Adler v Qintex Group Management Services Pty Ltd (in liq) (1996) 22 ACSR 446; Spedley Securities Ltd (in liq) v Bond Corporation Holdings Ltd (1990) 19 NSWLR 729.
252 Hammond v Commonwealth (1982) 152 CLR 188 at 206.
253 The liquidator cases that deal with examinations under s 597 of the Corporations Law before the Federal Court initially appear to be cases where the contempt jurisdiction is treated as having been abrogated in relation to Federal proceedings. The legal authority for those examinations is, however, found in the State Corporations Acts. The Federal Court had jurisdiction to supervise these State examinations only by virtue of the cross-vesting provisions in the Corporations Acts: Re Wakim, exp McNally (1999) 163 ALR 270 at para 151. As these cross-vesting provisions were struck down in Re Wakim, liquidator examinations will now once again take place before State courts. The only exception to this relates to companies incorporated in the Territories, where the Federal Court retains jurisdiction and is limited by Chapter III of the Constitution: Re Wakim, exp McNally (1999) 163 ALR 270 at para 169, 175; Northern Territory of Australia v GPAO (1999) 161 ALR 318.
254 Johns &Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 76.
255 Hamilton v Oades (1989) 166 CLR 486 at 489, 497-498, 501,508, 515-516.
256 See, eg, Mortimer v Brown (1970) 122 CLR 493 at 496; A Zariski, Evidence and Procedure in a Federation (1993) at 220.
257 Hamilton v Gades (1989) 166 CLR 486 at 498-499. See also Re Ardina Electrical (Qld) Pty Ltd (in liq) (1992) 7 ACSR 297 at 300-301. It is difficult to see why a wider reading of the case was left open in DCT v De Vonk (1995) 133 ALR 303 at 325.
258 Sorby v Commonwealth (1983) 152 CLR 281 at 298-299, 308,314; EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 490,534; Grollo v Bates (1994) 125 ALR 492.
259 As it is, for example, by the Royal Commission Act 1902 (Cth), s 6A(3) and NCA Act, s 30(10).