Pyneboard Pty Ltd v Trade Practices Commission

[1983] HCA 9
(1983) 152 CLR 328

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(Judgment by: Brennan J)

Pyneboard Pty Ltd
vTrade Practices Commission

Court:

Judges: Mason ACJ
Murphy J
Wilson J

Brennan JDawson 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:
Brennan J

1. These two appeals were heard together. Each of the appellants had been served with notices issued pursuant to s. 155 of the Trade Practices Act 1974 (Cth) ("the Act") requiring it or him to furnish information and to produce documents. In each case, information and documents were required relating to matters that constitute or may constitute contraventions of s. 45 of the Act. Section 45, in Pt IV of the Act, relates to contracts, arrangements or understanding restricting dealings or affecting competition. (at p348)

2. Section 76 of the Act provides for a pecuniary penalty for a contravention of a provision of Pt IV. Section 77 provides that a pecuniary penalty may be recovered by proceedings in the Federal Court instituted by the Minister or by the Trade Practices Commission on behalf of the Commonwealth. The appellant in the first appeal, Pyneboard Pty. Ltd., and the appellants in the second appeal, Dunlop Olympic Ltd. and K. G. Norrish, applied to the Federal Court of Australia for declarations that the notice served upon it or him did not impose an obligation to furnish information or to produce documents which might tend to expose it or him to a penalty. The notices were challenged upon other grounds also, but those other grounds are not now material. (at p348)

3. The respective applications were refused at first instance and appeals to the Full Court of the Federal Court were dismissed in each case. In each case, an earlier judgment of the Full Court - Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman (No. 1) [1979] FCA 15; (1979) 36 FLR 450 - was held to conclude the question against the respective appellants. In that case Franki and Northrop JJ. (1979) 36 FLR, at p 474 had held that s. 155 of the Act in its terms "clearly removes all privilege of any kind expressed in the maxim nemo tenetur seipsum accusare and which would or might otherwise exist for refusing to answer questions or produce documents in response to a proper notice under s. 155." By special leave, the present appeals are brought against the respective orders of the Full Court of the Federal Court, raising for determination by this Court the question whether a person upon whom a valid s. 155 notice is served is obliged to furnish information or to produce documents if the furnishing of the information or the production of the documents might tend to expose that person to a penalty. The relevant provisions of s. 155 are as follows:

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

(a)

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

(b)

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

(c)

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

. . .

(5) A person shall not -

(a)

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

(b)

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

. . .

(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 p349)

4. The question raised for determination is a question of statutory construction: is sub-s. (5) subject to a qualification that a person may refuse or fail to comply with a notice, though he is capable of complying with it, if compliance with the notice might tend to expose him to a penalty? Before turning to the appellants' arguments in support of this proposition, we may put aside the question whether the obligation imposed by sub-s. (5) binds a person to furnish information, produce documents or give evidence before the Commission if a prosecution or a proceeding for recovery of a penalty has already been instituted against him (cf. Melbourne Steamship Co. Ltd. v. Moorehead [1912] HCA 69; (1912) 15 CLR 333 ). There are no pending proceedings in this instance. Accordingly, the judgments of this Court in Hammond v. The Commonwealth [1982] HCA 42; (1983) 152 CLR 188 relating to pending criminal proceedings, and of Franki J. in Brambles Holdings Ltd. v. Trade Practices Commission (No. 2) [1980] FCA 120; (1980) 44 FLR 182; 32 ALR 328 relating to pending civil proceedings, do not fall for consideration. (at p350)

5. The appellants' argument begins by showing that the privilege against exposure to a penalty is distinct from the privilege against self-incrimination, as Lord Esher M.R. held in Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QB 111, at p 115 . Though the privilege against self-incrimination is sometimes expressed to include the privilege against exposure to a penalty, the two privileges are in truth different grounds of excuse for not answering questions or not producing documents. An early example of a case where there was no question of self-incrimination is Reg. v. Newel (1707) Park 269 (145 ER 777) where the compellability of an assignee in Bankruptcy to answer questions before a sheriff's inquisition was upheld provided the answers did not subject him to a penalty or forfeiture. The next step in the appellants' argument is that the privilege against exposure to a penalty recoverable in civil proceedings, unlike the privilege against self-incrimination of an offence, was not taken away by sub-s. (7) and therefore remains to protect a person obliged to furnish information or to produce documents pursuant to a s. 155 notice. This argument assumes that the privilege against exposure to a penalty extends to and qualifies the obligation created by sub-s. (5) unless expressly excluded. That assumption is countenanced by the first part of sub-s. (7) which, by expressly excluding self-incrimination as an excuse for failing to comply with the requirements of a notice, implies that the privilege against self-incrimination would otherwise extend to and qualify the obligation created by sub-s. (5). But if sub-s. (7) had not been enacted, would the privilege against self-incrimination have extended to and qualified the obligation created by sub-s. (5)? If the answer is "no", two conclusions can be drawn: first, that the analogous privilege against exposure to a penalty does not extend to and qualify the obligation; and second, that the exclusion by sub-s. (7) of self-incrimination as an excuse for failing to comply with sub-s. (5) has been inserted ex abundanti cautela. Therefore the first question is whether the privilege against self-incrimination is implied, even if it is not statutorily expressed, as a qualification upon the obligation created by sub-s. (5). (at p351)

6. Section 155 makes an inroad upon the right to silence. At common law, there is no obligation to answer questions asked by an executive agency or to produce documents requested by an executive agency. But if the legislature chooses to arm the Executive with a power of compulsory interrogation - and the frequency with which the Executive is armed with such powers appears to be increasing - it is the function of the courts to ascertain the extent of the power and to determine, by construing the language which the legislature has used, whether the power is qualified by a privilege against self-incrimination. (at p351)

7. Sub-section (5) creates an obligation which arises by virtue of a notice given by a law enforcement agency, the Trade Practices Commission, in aid of the investigative functions conferred on it by s. 155. None of the Commission's powers and functions under s. 155 is judicial or quasi-judicial; they are wholly investigative. A provision similar in terms and context to sub-s. (5) was considered by the House of Lords in Commissioners of Customs and Excise v. Harz (1967) 1 AC 760 . The Finance Act 1946 (U.K.) conferred investigative powers upon the Commissioners of Customs and Excise with respect to goods subject to purchase tax, and s. 20(3) of that Act provided:

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

Lord Reid apparently held the view that the obligation created by the statute was not subject to the privilege against self-incrimination. He said (1967) 1 AC, at p 816 :

"If a demand for information is made in the proper manner, the trader is bound to answer the demand within the time and in the form required, whether or not the answer may tend to incriminate him, and, if he fails to comply with the demand, he can be prosecuted. If he answers falsely he can be prosecuted for that and if he answers in such a manner as to incriminate himself I can see no reason why his answer should not be used against him. Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not. Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute." (Emphasis added). (at p352)

8. Similarly, in R. v. Kempley (1944) 44 SR (NSW) 416 , Jordan C.J. held that the privilege against self-incrimination did not qualify an obligation to furnish information required by, or to answer a question put by, officials acting under reg. 17 of the National Security (Prices) Regulations. His Honour said (1944) 44 SR (NSW), at p 429 :

"Regulation 17, which enables any person to be required to furnish information or answer questions in relation to any goods or services or to any other matter arising under these regulations, contains no similar qualification. Since the rule of law which excuses a person from answering incriminating questions is a rule of evidence applicable to witnesses in a Court of Justice, it is not inherently applicable to such questioning as is provided for by reg. 17, and in the absence of any indication, such as is contained in reg. 15, that the rule is to be available here also: cf. Bradley v. Field (1913) 13 SR (NSW) 451, at 458-460 . I am of opinion that it is not available."

Although his Honour dissented on another aspect of the case, his observation on this point accorded with the opinion of the other members of the Full Court. An application for special leave to appeal against the judgment of the Full Court was refused by this Court: Kempley v. The King (1944) ALR 249 . Latham C.J., holding that the regulation covered inquiries into suspected offences against the regulations, said (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.

If a person questioned is bound to answer such questions, then the putting of the questions to him is lawful, and he is only complying with the law in answering. Accordingly there would be no misrepresentation in Maher's statement" (Maher being a prices officer) "that he was bound to answer all the question put to him."

McTiernan J. was of the same opinion. His Honour 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 . . . ".

Williams J., however, expressed the opposite conclusion (1944) ALR, at p 254 :

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

Starke J. found it "unnecessary to say whether reg. 17 excludes the rule" stating his opinion, however, in a way which noted no distinction between judicial examinations and interrogations by the Executive (1944) ALR, at p 253 :

"According to English law, the depositions on oath of a witness legally taken are admissible in evidence against him if subsequently tried on a criminal charge - Reg. v. Coote (1873) LR 4 PC 599 . But where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded. And whether the rule is excluded must depend upon the provisions of the legislative act or the nature of the subject . . . "

Rich J. (1944) ALR, at p 252 did not advert to the division of opinion among other members of the Court. After considering these judgments, Jordan C.J. in Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360, at p 368 held that the Full Court should adhere to the view "that answers are compellable notwithstanding that they are incriminating". (at p353)

9. In Reg. v. Travers (1958) SR (NSW) 85 , the Court of Criminal Appeal held that when a police superintendent asked a police officer a question and directed him to answer it, the police officer who was statutorily bound to obey orders could not refuse to answer the question on the ground that the answer might tend to incriminate him. The Court said (1958) SR (NSW), at p 107 :

"We think that in requiring an answer to be given it is necessarily intended, in the absence of any indication to the contrary, that any right which the person addressed might have had to refrain from incriminating himself should be taken away." (at p354)

10. In Ex parte Grinham; Re Sneddon (1961) SR (NSW) 862 the Supreme Court in banco considered the meaning and validity of reg. 137A of the Regulations for Public Vehicles purportedly made under the Transport Act 1930 (N.S.W.). Regulation 137A required the driver of a public vehicle to furnish information to any authorized officer "for the purpose of any enquiry or inspection pursuant to or arising under these regulations". Walsh J. held that the regulation-making power in the Act did not authorize the making of a regulation which imposed an obligation to answer questions, particularly to answer questions which may incriminate the person asked. He held reg. 137A was invalid accordingly for it imposed an unqualified obligation to answer. He said (1961) SR (NSW), at p 876 :

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

Herron J., with whom Clancy J. agreed, saved the validity of reg. 137A by reading it down, saying that "unless it receives some limiting construction" (it) "is so framed that any right which the person addressed might have had to refrain from incriminating himself is taken away: Reg. v. Travers (1958) SR (NSW) 85, at p 107; (1961) SR (NSW), at p 872 ". Thus it appears that their Honours would not have held the obligation to furnish information to be qualified by privilege if there had been power to make a regulation imposing an unqualified obligation. (at p354)

11. Upon the cases, the better view is that a simple statutory obligation to furnish information to a law enforcement officer is not qualified by a privilege against self-incrimination. Of course, none of the cases referred to bind this Court to hold that, apart from subs. (7), the obligation imposed by sub-s (5) would not be qualified by a privilege against self-incrimination. However, in Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 I have expressed my reasons for holding that the scope of the privilege against self-incrimination is limited to judicial proceedings, governing the obligations to give discovery and to testify in such proceedings. (at p355)

12. In recent times, when the obligations of a party or of a witness to answer questions and to produce documents in judicial proceedings have come to rest on a statutory foundation, the privilege has been held applicable prima facie to qualify the statutory obligation: see Naismith v. McGovern [1953] HCA 59; (1953) 90 CLR 336, at p 342 ; Mitcham v. O'Toole [1977] HCA 41; (1977) 137 CLR 150, at p 152 . But the question for decision in this case is not whether the privilege applies generally to a statutory obligation to furnish information or to produce documents in judicial proceedings; the question is whether the privilege applies when the statute imposes the obligation to furnish information or to produce documents when required by a law enforcement agency in aid of an investigation by it into contraventions of the law. (at p355)

13. To construe a statutory provision, clear and absolute in its terms, as though it were qualified by privilege is to import a principle applicable to judicial procedure into the area of investigation by a law enforcement agency. There are, of course, significant differences between a statutory obligation to furnish information or to produce documents as a party or witness in judicial proceedings and an analogous obligation imposed in aid of an investigation by a law enforcement agency. In judicial proceedings, the validity of a claim of privilege is judicially decided (Cleave v. Jones [1852] EngR 231; ; (1852) 7 Exch 421, at p 428 [1852] EngR 231; (155 ER 1013, at p 1016) ; Lamb v. Munster (1882) 10 QBD 110 ). If a decision upon a claim of privilege were needed to determine whether and to what extent there is an obligation to furnish particular information or to produce particular documents to a law enforcement agency conducting an investigation into a contravention of the law, how and by whom would the claim be decided? Would the obligation be defeated merely by the person from whom the information is sought claiming privilege? Or would the claim of privilege defeat the obligation only if it were admitted by the agency which is seeking to enforce the obligation? Neither of these solutions is likely to represent the intention of the legislature. Neither corresponds with the privilege which protects a witness in judicial proceedings, for that depends upon the opinion of the judge. (See Ex p. Reynolds; In re Reynolds (1882) 20 Ch D 294 ; Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395, at pp 403, 404 , and Goddard L.J.'s oft-quoted statement of the rule in Blunt v. Park Lane Hotel Ltd. (1942) 2 KB 253, at p 257 : ". . . the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for." (Emphasis added.)) (at p356)

14. Would the content of the obligation be ascertainable in practice only in and by a prosecution for its breach? Or in and by some other judicial proceeding? That is hardly a practicable solution when the statutory obligation falls to be discharged within a time specified in the s. 155 notice. Where judicial control of the privilege is not practicable, it is difficult to imply a qualification of privilege affecting the statutory obligation. (at p356)

15. Moreover, the purpose of investigating suspected contraventions of Pt IV would be frustrated by a qualification which makes the statute ineffective to compel the furnishing of information or the production of documents tending to show such a contravention. In Mortimer v. Brown [1970] HCA 4; (1970) 122 CLR 493 , a case arising under s. 250 of The Companies Act of 1961 (Q.), Walsh J. regarded the character and purpose of the provision as a criterion by which to determine whether the obligation thereby created (namely, an obligation to submit to examination in a judicial proceeding) was qualified by the privilege against self-incrimination. He said (1970) 122 CLR, at p 498 :

"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."

His Honour observed (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." (at p356)

16. And so would s. 155 be rendered relatively valueless if privilege against exposure to a penalty were allowed as a ground of non-compliance with sub-s. (5). Section 155 creates obligations in aid of an investigation "relating to a matter that constitutes or may constitute a contravention of this Act" (sub-s. (1)). Proof of some of the practices and of many of the elements of the practices proscribed by Pt IV is likely to be available only from persons who have contravened the relevant provision or who have otherwise become liable to a penalty pursuant to s. 76(1). To allow such a person exemption from the obligations created by sub-s. (5) upon the ground that compliance with the obligation may tend to expose him to a penalty would so hobble investigation as to render much of Pt IV unenforceable. (at p357)

17. Therefore I do not accept the appellants' argument that a privilege against exposure to a penalty is to be implied in qualification of the obligation created by sub-s. (5). Rather, no qualification is to be implied arising from a privilege against exposure to a penalty in the absence of a contrary statutory provision. Sub-section (7) does not so provide expressly. Nor, on analysis, does it so provide by implication. (at p357)

18. Sub-section (7) falls into two parts: the first part denies that self-incrimination is an excuse for failing to comply with the requirements of a notice; the second part limits the admissibility in criminal proceedings of the evidentiary material obtained by use of a s. 155 notice. The two parts relate to different legal questions arising at different times. For the reasons stated, the first part must be taken to have been inserted ex abundanti cautela. But it was an appropriate cautionary step for the draftsman to take in the course of providing a limitation upon the use in evidence of the material disclosed or produced by a person served with a notice under s. 155. The limitation upon the use in evidence of that material is expressed in the latter part of sub-s. (7) and is enacted in conformity with the practice to which Lord Campbell C.J. alluded in Reg. v. Scott (1856) 7 Cox CC 164, at pp 170, 171; Dears & Bell 47, at p 60 [1856] EngR 19; (169 ER 909, at p. 914). :

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

If it were not for the second part of sub-s. (7), it would be necessary to ascertain as a matter of construction of the whole of the Act whether the legislature intended that the evidentiary material obtained by use of a s. 155 notice would be admissible against the person from whom it was obtained in any criminal proceeding, in accordance with the principle stated by Lord Reid in Commissioners of Customs and Excise v. Harz (1967) 1 AC 760, at p 816 cited above. Contraventions of Pt IV cannot be the subject of criminal prosecution (s. 78) and subs. (7) accordingly does not affect an investigation under s. 155 of a matter that constitutes or may constitute a contravention of Pt IV. If a person served with a notice with respect to an investigation of a matter constituting a contravention or a possible contravention of Pt IV were thereby required to furnish information or to produce a document which might tend to incriminate him, the statutory exclusion of the excuse of self-incrimination by sub-s. (7) would merely confirm that person's obligation to furnish the information or produce the document. The circumstance that subs. (7) does not relate to the privilege against exposure to a penalty gives no reason for implying that privilege as a qualification upon the obligation created by sub-s. (5). It follows that the appellants' argument fails. (at p358)

19. It is unnecessary to consider the argument that the privilege against self-incrimination does not apply to corporations and to consider what was said upon that question by the Court of Appeal in Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB, at pp 408, 409 . (at p358)

20. The appeals should be dismissed. (at p358)