Pyneboard Pty Ltd v Trade Practices Commission

[1983] HCA 9
(1983) 152 CLR 328

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(Judgment by: Mason ACJ, Wilson J, Dawson J)

Pyneboard Pty Ltd
vTrade Practices Commission

Court:

Judges:
Mason ACJMurphy J

Wilson JBrennan J

Dawson J

Legislative References:
Trade Practices Act 1974 (Cth) - s 155
Transport Act 1930 (NSW) - s 262(6)
Purchase Tax Act 1963 (UK) - s 24(6)
Motor Car Act 1958 (Vict) - s 80F
Australian Industries Preservation Act 1906 (Cth) - s 155(7); s 15B(4)
Trade Practices Act 1974 - s 155
Finance Act 1946 (UK) - The Act
Transport Act 1930 (NSW) - The Act

Case References:
Baltimore & Ohio Railroad Co v. Interstate Commerce Commission - [1911] USSC 105; (1911) 221 US 612
Blunt v. Park Lane Hotel Ltd - (1942) 2 KB 253
Bradley v. Field - (1913) 13 SR (NSW) 451
Brambles Holdings Ltd v. Trade Practices Commission (No 2) - [1980] FCA 120; (1980) 44 FLR 182; 32 ALR 328
Campbell Painting Corp v. Reid - [1968] USSC 135; (1968) 392 US 286
Cleave v. Jones - [1852] EngR 231; (1852) 7 Exch 421
Cleland v. The Queen - [1982] HCA 67; (1982) 151 CLR 1
Commissioners of Customs and Excise v. Harz - (1967) 1 AC 760
Earl of Mexborough v. Whitwood Urban District Council - (1897) 2 QB 111
George Campbell Painting Corp v. Reid - [1968] USSC 135; (1968) 392 US 286
Hale v. Henkel - [1906] USSC 54; (1906) 201 US 43
Hammond v. The Commonwealth - [1982] HCA 42; (1983) 152 CLR 188
Heimann v. Commonwealth - [1935] HCA 73; (1935) 54 CLR 126
Kempley v. The King - (1944) ALR 249
King v. McLellan - [1974] VicRp 92; (1974) VR 773
Lamb v. Munster - (1882) 10 QBD 110
Martin v. Treacher - (1886) 16 QBD 507
McDermott v. The King - (1948) 76 CLR 501
Melbourne Home of Ford Pty Ltd v. Trade Practices Commission and Bannerman (No 1) - [1979] FCA 15; [1979] FCA 15; (1979) 36 FLR 450
Melbourne Steamship Co Ltd v. Moorehead - [1912] HCA 69; (1912) 15 CLR 333
Mexborough v. Whitwood Urban District Council - (1897) 2 QBD 111
Mitcham v. O'Toole - [1977] HCA 41; (1977) 137 CLR 150
Mortimer v. Brown - [1970] HCA 4; (1970) 122 CLR 493
Naismith v. McGovern - [1953] HCA 59; (1953) 90 CLR 336
National Association of Operative Plasteres v. Smithies - (1906) AC 434
Parry-Jones v. Law Society - (1969) 1 Ch 1
Pye v. Butterfield - (1864) 5 B & S 829; [1864] EngR 803; 122 ER 1038
R v. Associated Northern Collieries - [1910] HCA 61; (1910) 11 CLR 738
R v. Kempley - (1944) 44 SR (NSW) 416
R v. Owen - [1951] VicLawRp 57; (1951) VLR 393
Reg v. Carr - (1972) 1 NSWLR 608
R v. The Associated Northern Collieries - [1910] HCA 61; (1910) 11 CLR 738
Re Craig - (1944) 44 SR (NSW) 360
Refrigerated Express Lines (Alasia) Pty Ltd v. Australian Meat and Live-stock Corp - (1979) 42 FLR 204
Reg v. Bank of Montreal - (1962) 36 DLR (2d) 45
Klein v. Bell - (1955) 2 DLR 513
Reg v. Coote - (1873) LR 4 PC 599
Reg v. Newel - (1707) Park 269; 145 ER 777
Reg v. Sloggett - [1856] EngR 44; (1856) Dears CC656; 169 ER 885
Reg v. Scott - [1856] EngR 19; (1856) Dears & BCC 47; 169 ER 909
Reg v. Travers - (1958) SR (NSW) 85
Rio Tinto Zinc Corp v. Westinghouse Electric Corp - (1978) AC 547
Scott v. Dunstone - [1963] VicRp 77; (1963) VR 579
Smith v. Read - (1736) 1 Atk 526; [1736] EngR 59; 26 ER 332
Sorby v. The Commonwealth - [1983] HCA 10; (1983) 152 CLR 281
Triplex Safety Glass Co Ltd v. Lancegaye Safety Glass - (1939) 2 KB 395
United States v. White - [1944] USSC 109; (1944) 322 US 694
Webster v. Solloway, Mills & Co - (1931) 1 DLR 831
Wilson v. United States - [1911] USSC 98; (1911) 221 US 361

Hearing date: 1982, October 20, 21
Judgment date: 18 March 1983

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Judgment by:
Mason ACJ
Wilson J
Dawson J

1. The issue in these appeals is whether a corporation or person served with a notice under s. 155 of the Trade Practices Act 1974 (Cth), as amended, ("the Act") requiring the recipient to answer questions can refuse to answer questions, relying on the privilege against exposing itself to civil liability to penalties. The issue, so far as it affects a corporation, was resolved in the negative by the Full Court of the Federal Court in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman (No. 1) [1979] FCA 15; [1979] FCA 15; (1979) 36 FLR 450 , a decision which was followed by the primary judge and by the Full Court of the Federal Court in each of the two appeals now befors us. (at p332)

2. For the purpose of disposing of these appeals it is unnecessary for us to relate the facts. The sole issue for determination is the question of law which we have stated. The circumstances out of which the issue arises are sufficiently expressed in the judgments of the Full Court of the Federal Court. At this stage we need do no more than state that under ss. 76, 77 and 78 of the Act the contravention of s. 45 (which is within Pt IV) of the Act does not constitute a crime but makes the offender liable to the imposition of a pecuniary penalty at the suit of the Minister or the Commission. (at p332)

3. The issue is to be resolved by construing s. 155. The construction of the section presents a particular problem. It is caused by the express reference in s. 155(7) to the abrogation of the privilege against self-incrimination and the absence of any reference to the privilege against exposure to the imposition of a civil penalty. (at p332)

4. Section 155(1) authorizes the issue of a notice in writing by a member of the Commission requiring a person - (a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer, within the time and in the manner specified in the notice, information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, documents; or (c) to appear before the Commission at a time and place specified in the notice to give evidence and produce documents, where the Commission, the Chairman or the Deputy Chairman has reason to believe that the person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act. (at p333)

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

"(5) A person shall not -

(a)

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

(b)

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

(c)

obstruct or hinder an authorized officer acting in pursuance of sub-section (2).

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

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

(a)

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

(b)

in the case of a body corporate - in any criminal proceedings other than proceedings under this Act." (at p333)

6. In Melbourne Home of Ford the members of the Full Court of the Federal Court expressed two different reasons for concluding that the privilege was not available. Smithers J. thought that in the language of the law the expression "the privilege against self incrimination" comprehends the privilege of witnesses from answering questions where such answers may tend to expose the witnesses to risk of conviction for a crime or to a penalty or to a forfeiture (1979) 36 FLR, at p 454 . He also thought that s. 155(7) effectively abolishes, in relation to the furnishing of information and the production of documents in response to a notice under s. 155(1), the privilege of refusing to answer questions the answers to which may expose the person to conviction for a crime or the imposition of a pecuniary penalty. On the other hand, Franki and Northrop JJ. noted that the privilege appeared to have been limited to giving answers on oath in judical proceedings, or in procedures relating to such proceedings as, for example, discovery (1979) 36 FLR, at pp 469-470 . However, their Honours held in any event that, because s. 155(5) was specific in providing that a person shall not refuse or fail to comply with a notice under s. 155(1) and because it provided for an offence of knowingly furnishing information or of giving evidence that is false or misleading, the sub-section clearly abrogated any privilege against exposure to the imposition of a pecuniary penalty that would or might otherwise have existed (1979) 36 FLR, at pp 474-475 . (at p334)

7. The appellants' challenge to Melbourne Home of Ford rests very largely on two propositions:

(1)

that the privilege is not limited to answers given on oath in judicial or quasi-judicial proceedings or procedures relating thereto; and

(2)

that the word "incriminate" in s. 155(7), in the context in which it is there found, is used in its strict sense and does not include the privilege so far as it protects a person from exposing himself to the imposition of a civil penalty. (at p334)

8. The respondent Commission, subject to one qualification, seeks to support the reasons advanced by the three members of the Court in Melbourne Home of Ford and to add a further argument. The further argument, to which we shall refer shortly, is that the privilege of refusing to answer questions on the ground or grounds mentioned is a privilege available to natural persons, not to corporations. The qualification to the Federal Court's reasons is that the Commission does not argue that the privilege, to the extend to which it relates to questions the answers to which may have a tendency to expose the person to conviction for a crime is confined in its application to judicial or quasi-judicial proceedings or procedures relating thereto. However, the Commission argues that in its application to questions the answers to which may expose a person to the imposition of a civil penalty the privilege can be availed of only in those proceedings or procedures. (at p334)

9. The English Court of Appeal has held that the privilege of refusing to answer a question on the ground that the answer may tend to incriminate is avaiable to corporations (Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395 ). There du Parcq L.J. (1939) 2 KB, at pp 408-409 , who delivered the judgment of the Court, agreed with the Supreme Court of Alberta in Webster v. Solloway, Mills & Co. (1931) 1 DLR 831, at pp 833, 834 that "'on principle one cannot see any reasonable ground for the support of (the) view' that 'this claim of privilege should be limited to natural persons'". His Lordship went on to state that "It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence" (1939) 2 KB, at p 409 . Canadian courts have continued to adopt the same approach (Reg. v. Bank of Montreal (1962) 36 DLR (2d) 45 ; Klein v. Bell (1955) 2 DLR 513 ). (at p335)

10. In the United States the opposite approach has been taken - corporations cannot claim the privilege. In Campbell Painting Corp. v. Reid [1968] USSC 135; (1968) 392 US 286, at p 288 (20 Law Ed (2d) 1094, at p 1097) Fortas J. said: "It has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is 'essentially a personal one, applying only to natural individuals'." It would not be a profitable exercise in this case to attempt to trace the steps by which the United States courts have reached this result. It depends partly on the presence in the Constitution of the Fifth Amendment and the interpretation which has been given to it and partly on the policy and purpose which the privilege has been thought to serve. Thus in United States v. White [1944] USSC 109; (1944) 322 US 694, at p 698 (88 Law Ed 1542, at p 1546) Murphy J. described the privilege as one which prevents "the use of legal process to force from the lips of the accused individual the evidence necessary to convict him" and observed "The prosecutors are forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law" [1944] USSC 109; [1944] USSC 109; (1944) 322 US 694, at p 698 (88 Law Ed 1542, at p 7546) . But it is not easy to assert confidently that the privilege serves one particular policy or purpose. A glance at the variety of views which have been expressed on this point, summarized in Wigmore on Evidence (McNaughton rev., 1961), vol. viii, pp. 297- 318, demonstrates the difficulty. (at p335)

11. As will appear, this case is susceptible of determination on other grounds. For this reason we are content to assume, without deciding, that the privilege against exposure to conviction for a crime and the privilege against exposure to a civil penalty is available to a corporation in Australia. (at p335)

12. It is well settled that "a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure" to use the words of Bowen L.J. in Redfern v. Redfern (1891) P 139, at p 147 . See also Martin v. Treacher (1886) 16 QBD 507 ; Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QB 111 ; R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 . Indeed, in a civil action brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor interrogatories will be allowed (In re A Debtor (1910) 2 KB 59, at p 66 ; Associated Northern Collieries (1910) 11 CLR, at p 747 ). See generally the discussion by Deane J. in Refrigerated Express Lines (Alasia) Pty. Ltd. v. Australian Meat and Live-stock Corp. (1979) 42 FLR 204 . There his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (1979) 42 FLR, at pp 207-208 . In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action. His Honour described this as "a broad and unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see Mexborough) and Heimann v. Commonwealth [1935] HCA 73; (1935) 54 CLR 126, at p 130 " (1979) 42 FLR, at p 208 ). To these authorities there should be added a reference to the statement of Lord James of Hereford in National Association of Operative Plasteres v. Smithies (1906) AC 434, at pp 437-438 , that courts of equity were averse to actions for penalties and forfeitures being brought and would not assist them. But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty. (at p336)

13. Two points need to be made in connexion with the proposition stated by Bowen L.J. in Redfern. The first is that, although the rule is expressed as one which relates to discovery, it is necessarily a reflection of the law of privilege. The second point is that Bowen L.J. was not saying that the privilege against exposure to conviction for a crime was the same as, or includes, the privilege against exposure to penalties or forfeiture or ecclesiastical censure. Quite obviously they are four different aspects or grounds of privilege. So much at least emerges from the judgment of Lord Esher M.R. in Mexborough (1897) 2 QB, at p 115 . (at p336)

14. But we do not agree with the suggestion made by the respondent, based on the authorities to which we have referred, that the privilege against exposure to forfeiture and penalty is a special invention of the courts of equity devised for application in suits for discovery and in the administration of interrogatories, commencing at a time when the Chancery Court granted discovery in aid of a common law action. Certainly Lord Hardwicke L.C. in Smith v. Read (1736) 1 Atk 526, at p 527 [1736] EngR 59; (26 ER 332, at p 332) , asserted: "there is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty." However, his Lordship was merely speaking of the rule in equity and did not direct his attention to the attitude of the common law. The better view is that equity looked to the existing model of the common law and applied the rule which it had established. In Pye v. Butterfield (1864) 5 B & S 829, at p 838 [1864] EngR 803; (122 ER 1038, at p 1042) , Crompton J., speaking of courts of equity, said: "I have no doubt that the exemption from a bill of discovery in cases where the discovery would lead to a forfeiture, was adopted in those Courts from the Courts of law." This statement was quoted, evidently with approval, by Lord Esher M.R. in Mexborough (1897) 2 QB, at p 116 . Chitty L.J. (1897) 2 QB, at p 121 was of the same opinion. (at p337)

15. Accordingly, the construction of s. 155 is to be approached on the footing that the privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a civil penalty is (a) not confined in its application to discovery and interrogatories; (b) available at common law as well as in equity; and (c) distinct from, though often associated in discussion with, the privilege against exposure to conviction for a crime. (at p337)

16. Before turning to s. 155 itself, we need to deal with one further point - the submission that the privilege against exposure to a penalty is confined in its application to testimonial disclosures in judicial proceedings and is inherently incapable of application in non-judicial proceedings. (at p337)

17. There is a body of authority to support this proposition. It is the view taken in Wigmore on Evidence, vol. viii, par. 2263. And it is the view that has been accepted by the Full Court of the Supreme Courts of New South Wales and Victoria (R. v. Kempley (1944) 44 SR (NSW)416 from which application for special leave to appeal was refused (Kempley v. The King (1944) ALR 249 ); Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 ; King v. McLellan [1974] VicRp 92; (1974) VR 773 ; see also R. v. Owen [1951] VicLawRp 57; (1951) VLR 393 ; Reg v. Carr (1972) 1 NSWLR 608 ; cf. Scott v. Dunstone [1963] VicRp 77; (1963) VR 579, at p 581 ). In Kempley reg. 17 of the National Security (Prices) Regulations 1939 (Cth), as amended, empowered the Commissioner to require any person to furnish information and answer questions and made it an offence for a person to refuse or fail to do so. Jordan C.J. said (1944) 44 SR (NSW), at p 429 :

"Since the rule of law which excuses a person from answering incriminating questions is a rule of evidence applicable to witnesses in a Court of Justice, it is not inherently applicable to such questioning as is provided for by reg. 17, and in the absence of any indication, such as is contained in reg. 15, that the rule is to be available here also: cf. Bradley v. Field (1913) 13 SR 451, at pp 458-460 . . . I am of opinion that it is not available." (at p338)

18. On the other hand there is an impressive stream of authority against the proposition. On the application for special leave to appeal in Kempley McTiernan J. evidently agreed with the view of Jordan C.J., but three members of this Court thought that the privilege was inherently capable of applying unless the statute otherwise provided. McTiernan J. said (1944) ALR, at p 253 :

"Regulation 17 does not contain any express provision excusing a person from answering on the ground that the answer might incriminate him . . ." (at p338)

19. Starke J. said (1944) ALR,at p 253 :

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

However, his Honour found it unnecessary to decide whether the regulations expressly excluded the privilege. And William J. considered that the privilege was available to a person interrogated under reg. 17 (1944) ALR, at p 254 . Latham C.J. thought that a person was bound to answer questions put to him under reg. 17. But it seems to us that his Honour reached this conclusion because he concluded as a matter of construction that the Commissioner was empowered by reg. 17 to inquire into possible offences, a construction rejected by Jordan C.J. in the Supreme Court. Consequently Latham C.J. appears to have proceeded on the view that the reguations excluded the privilege, rather than on the footing that the privilege was inherently incapable of applying because the inquiry was executive, not judicial. His Honour dealt with the point in this way (1944) ALR,at p 251 :

"In the case of regulations of this character there are special reasons for special powers of inquiry into possible offences. Upon this view the power of asking questions conferred by reg. 17 is not limited by any restriction enabling a person to refuse to answer questions as to offences possibly committed by him." (at p339)

20. An approach similar to that taken by the majority of this Court in Kempley was adopted by Walsh J. in Ex parte Grinham; Re Sneddon (1959) 61 SR (NSW) 862 where reg. 137A of the Regulations for Public Vehicles 1930 (N.S.W.), as amended, required the driver of a public vehicle to furnish information to an authorized officer for the purpose of an inquiry or inspection pursuant to the regulations. Walsh J. held that the regulation was beyond power because s. 262(6) of the Transport Act 1930 (N.S.W.), as amended, which conferred power to make regulations, did not empower the Executive "to alter . . . the general rule that a person is not bound to answer questions and, in particular, to answer questions which may incriminate him" (1959) 61 SR (NSW), at p 876 . Herron J. (with whom Clancy J. agreed) avoided the consequence of invalidity by construing reg. 137A so that it did not abrogate the privilege against self-incrimination. Herron J. expressly recognized that the privilege was available when he said (1959) 61 SR (NSW), at p 872 that, unless the provision was read down, it was so framed that "any right which the person addressed might have had to refrain from incriminating himself is taken away". (at p339)

21. In Commissioners of Customs and Excise v. Harz (1967) 1 AC 760 Lord Reid, speaking of s. 24(6) of the Purchase Tax Act 1963 (U.K.) which requires persons to furnish to the Commissioners information relating to goods or to the purchase or importation of them or to the application of a process of manufacture to them or dealings with them, said (1969) 1 AC, at p 816 :

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

All the other members of the House of Lords agreed with Lord Reid. (at p339)

22. The thrust of this comment is not that the privilege is incapable of applying to the statutory power to require the provision of information, but that the admissibility of the evidence depends upon the construction of the statute. His Lordship considered that, if a demand for information was made in the proper form, the trader was bound to answer the demand, "whether or not the answer may tend to incriminate him" (1967) 1 AC, at p 816 . Although the grounds for this conclusion were not expressed, the reasons for thinking that incriminating answers were admissible in evidence no doubt influenced the conclusion. (at p340)

23. Underlying the conflict between the two strands of authority is a controversy regarding the nature of the privilege. On the one side, reflected in the judgment of Jordan C.J. in Kempley (1944) 44 SR (NSW) 416 , is the notion that all forms of privilege, including the privilege against self-incrimination, are at bottom rules of evidence regulating the admissibility of evidence in judicial and quasi-judicial proceedings. Diplock L.J. gave expression to this view in dealing with legal professional privilege in Parry-Jones v. Law Society (1969) 1 Ch 1, at p 9 , when he described the privilege as "a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence". There is in addition the problem of deciding whether it is for the authority requiring the answer, production of documents or the provision of information, or the court in subsequent proceedings by way of prosecution for an offence, to decide whether the claim for privilege is correctly made. It is difficult to suppose that the determination is to be left to an unqualified person. And there are practical problems in leaving the determination of the correctness of the claim for privilege to a court in proceedings by way of prosecution for the offence of refusing to answer questions, provide information or produce documents. (at p340)

24. On the other side, reflected in the second stream of authority to which we have referred, is the view that the privilege against self-incrimination stands apart from other forms of privilege. The rule of the common law nemo tenetur seipsum accusare is seen as too fundamental a bulwark of liberty to be categorized simply as a rule of evidence applicable to judicial and quasi-judicial proceedings. (at p340)

25. So Williams J. thought in Kempley though it must be conceded that three of the earlier authorities on which he relied, Reg. v. Sloggett [1856] EngR 44; (1856) Dears CC656 (169 ER 885) , Reg. v. Scott [1856] EngR 19; (1856) Dears & BCC 47 (169 ER 909) , and Reg. v. Coote (1873) LR 4 PC 599 concerned procedures on oath - in two instances bankruptcy examinations - designed to reveal whether offences had been committed, with a view to deciding whether prosecutions should be instituted. In each case it was acknowledged that, in the absence of statutory provision to the contrary, a person could refuse to answer questions on examination on oath on the ground that the answer might tend to incriminate him. (at p341)

26. There is a stronger reason for holding that the privilege is available in the case of an examination on oath before a judicial officer which is a preliminary to committal for trial or summary prosecution than there is in the ordinary case where a statute imposes an obligation to answer questions, provide information or produce documents. On the other hand, if the object of imposing the obligation is to enable an authority or agency to ascertain whether an offence has been committed or a statutory provision has been contravened then it is reasonable to conclude that the privilege, though inherently capable of applying, has been impliedly, if not expressly, excluded by the statute. (at p341)

27. In the light of these competing considerations we are not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings. The issue of its availability in these proceedings therefore falls to be decided by reference to the statute itself. In the consideration of that question it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O'Toole [1977] HCA 41; (1977) 137 CLR 150 . (at p341)

28. In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings. (at p342)

29. Thus in Mortimer v. Brown [1970] HCA 4; (1970) 122 CLR 493 , the Court held that s. 250 of The Companies Act of 1961 (Q.) excluded the availability of the privilege on the public examination by a judge of directors of a company in a voluntary liquidation. Kitto J. after noting "that the evident purpose of the section, primarily even if not wholly, is to enable a suggestion of fraud or concealment of a material fact to be fully investigated" and that such a question must frequently involve consideration of evidence tending to incriminate individuals, went on to say (1970) 122 CLR, at p 496 :

"To read down the wide terms of the section so as to allow a danger of self-incrimination as a valid ground for refusing to answer a question would render the provision relatively valueless in the very cases which call most loudly for investigation. By providing in sub-s. (7)(c) that notes of a person's examination may thereafter be used in evidence in any legal proceedings against him, the section shows that the possibility of self-incrimination is contemplated as being inherent in the kind of examination that is authorized." (at p342)

30. Walsh J. (1970) 122 CLR, at p 498 said:

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

In my opinion the character and purpose of the provision are such that a construction which would curtail its operation in the manner and for the reason suggested ought not to be adopted." (at p342)

31. In King v. McLellan [1974] VicRp 92; (1974) VR 773 it was held that the terms of the obligation under s. 80F of the Motor Car Act 1958 (Vict.) on the driver of a motor car to furnish a sample of his breath for analysis by a breath analysing instrument when required to do so by a member of the police force would have impliedly excluded the privilege against self-incrimination if the privilege had had any application to the furnishing of a breath sample (1974) VR, at pp 778-779 . The obligation was expressed in general terms and the subject matter of the legislation did not suggest that the obligation was intended to be subject to any qualification. (at p342)

32. That the privilege is impliedly excluded in such circumstances is a conclusion which, as we have noted, may be more readily drawn where the obligation to answer questions or provide information does not form part of an examination on oath. The obligation to give an answer not on oath at an executive inquiry provides an illustration. It will be less readily drawn in cases where the obligation to answer questions and produce documents is an element in an examination on oath before a judicial officer whether or not an object of that examination is to ascertain whether an offence has been committed with a view to the institution of a prosecution for that offence. (at p343)

33. The comments made by Kitto and Walsh JJ. in Mortimer are apposite to s. 155. Sub-section (1) confers a power on the Commission to require the provision of information, the production of documents or the giving of evidence relating to contravention, or possible contravention, of the Act. It is significant that sub-s. (5) makes it an offence for a person to refuse or fail to comply with a notice under sub-s. (1) "to the extent that the person is capable of complying with it" for these words in themselves are quite inconsistent with the existence of a privilege entitling the recipient of a notice to refuse to comply, whether on the ground that compliance might involve self-incrimination or otherwise. Moreover, it is apparent that the purpose of conferring the power and imposing the obligation is to enable the Commission to ascertain whether any contravention of the Act has taken place, or is taking place, and to make the information furnished, the documents produced and the evidence given admissible in proceedings in respect of contravention of the Act, a purpose which would be defeated if privilege were available. As in Mortimer [1970] HCA 4; (1970) 122 CLR 493 the comment may be made that the provision is valueless if the obligation to comply is subject to privilege. Without obtaining information, documents and evidence from those who participate in contraventions of the provisions of Pt IV of the Act the Commission would find it virtually impossible to establish the existence of those contraventions. The consequence would be that the provisions of Pt IV could not be enforced by successful proceedings for a civil penalty under s. 76(1). (at p343)

34. On this view of the section the presence of sub-s. (7) presents no problem. Its object is to limit the use to which the material obtained can be put in criminal proceedings except as provided in pars. (a) and (b). It is understandable that no similar provision is made in respect of the use of the material obtained in proceedings for a civil penalty. The only proceedings of that kind which can be taken are proceedings under Pt IV of the Act, being proceedings in which the material obtained is intended to be admissible evidence. (at p344)

35. It may be said that on the construction which we favour that the first part of sub-s. (7) is redundant. Strictly speaking, this is so, but it is understandable that the draftsman considered its inclusion desirable so that the sub-section contains a comprehensive statement touching the exclusion of the privilege and the use to which the material can be put in proceedings. No doubt it was the prohibition against the use of the material in proceedings for a criminal offence otherwise than under the Act that was the mainspring for the introduction of the sub-section. The absence of any liability for a civil penalty, except in proceedings for a contravention of Pt IV, explains why it was not thought necessary to include a like provision in respect of the privilege against exposure to a civil penalty. (at p344)

36. The appellants contrast s. 155(7) with s. 15B(4) of the Australian Industries Preservation Act 1906 (Cth) as it was amended by Act No. 29 of 1910. Section 15B was similar to s. 155; it conferred power on the Comptroller-General to require a person to answer questions and produce documents. Section 15B(4) provided that no person was excused from complying on the ground that the answer or the production of the documents might tend to incriminate him or tend to make him liable to a penalty. Before 1910 and at the time when Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 was decided s. 15B(4), like s. 155(7), referred to the privilege against incrimination only and did not refer to exposure to a penaly. No doubt the amendment to s. 15B(4) in 1910 was introduced because at that time it had become necessary to insert s. 14B in consequence of the decision in Northern Collieries. Section 14B expressly provided that no person in a proceeding for an offence against Pt II be excused from answering any question, either viva voce or by interrogatory, or from making any discovery on the ground of tendency to incriminate or to expose to a penalty. It was probably thought that, unless s. 15B(4) was brought into line with s. 14B, it would receive a restrictive construction. (at p344)

37. The special circumstances which dictated the amendment of s. 15B(4) make it unsafe to base any conclusion on the contrast between that provision and s. 155(7). In any event the relationship between the Australian Industries Preservation Act and the Act is not sufficiently close to justify an inference or implication from the difference in the language of the two provisions. (at p344)

38. Finally, attention should be drawn to the bizarre consequences of the appellants' construction. The privilege against self-incrimination would be excluded, but not the privilege against exposure to a civil penalty. True it is that the amount of a civil penalty under Pt IV is very substantial. Even so, it is irrational to suppose that Parliament contemplated that a person could be compelled to admit commission of a criminal offence yet be excused from admitting a contravention of the Act sounding in a civil penalty. (at p345)

39. We would dismiss the appeals. (at p345)