Case: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188
Outcome: considered
are a number of instances, of course, where this Court and the High Court in its original jurisdiction have assumed a jurisdiction in relation to criminal proceedings then pending before a State court: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 ; Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48. However, in each of those cases the proceedings pending in the State court involved the alleged commission of a crime against a law of the Commonwealth. In Hammond, Mr Hammond had been charged with conspiracy in relation to the substitution of kangaroo meat for beef in the export market, apparently an offence against s 86(1)(a) of the Crimes Act 1914 (Cth). Not only that, but the prosecuting body was the Commonwealth as were, effectively, the commissioners conducting the Royal Commission. In De Vonk , the applicant was charged with conspiring to defraud the Commonwealth as was Mr Watson in Watson . In each case, the question of whether a contempt was being committed was part of a matter arising under a law made by the Parliament or in which the Commonwealth was a party. Federal jurisdiction was, therefore, clear. Granted then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] . Against that it may be said that the Board's function of protecting the public is being thwarted. This is, in a sense, true. No doubt matters of public interest inform the breadth of injunctive relief which may be granted: see Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 198-199 per Gibbs CJ (with whom Mason and Murphy JJ relevantly agreed) and 208 per Deane J. In that case the public significance of the investigation being performed by the Royal Commission made it appropriate only to prevent examination of the plaintiff and not any other witness. No doubt too, there is a public interest served by protecting the populace at large from unscrupulous tax agents, an interest to which the powers in s 252K seem naturally inclined. However, there is a countervailing public interest in ensuring the proper operation of the criminal justice system. In this case the former does not warrant a narrowing of the injunctive relief I am otherwise minded to grant. The effect of my orders will be that the Board will be entitled to continue its inquiries so long as it does not divulge any of its results to other persons during the pendency of the criminal proceedings. It will also be restrained during the same period from concluding whether the registration of CAP should be suspended or cancelled as a result of the matters arising out of the Midnight Seas' complaint. For practical reasons, these conclusions must apply mutatis mutandis to David. (e) Challenges to the notice for information I have already noted that CAP's initial responses to the Board were largely not to the Board's satisfaction and that it had, consequently, issued a notice to CAP on 16 January 2009 formally requiring CAP to furnish it with information. That information was required by the Board to be provided initially by 2 February 2009 but this was subsequently extended to the close of business on 9 February 2009. Some of the information sought in the notice was provided to the Board on 4 February 2009 but in respect of the balance a further extension was sought. That extension was not forthcoming and, assuming the notice to be valid, CAP had failed to comply with it by 10 February 2009. That failure may well have constituted an offence against reg 168 of the Income Tax Regulations 1936 .