Case: Commissioner of Taxation v De Vonk (1995) 61 FCR 564
Outcome: discussed
of Taxation v De Vonk (1995) 61 FCR 564 ( De Vonk ) concerned an examination under s 264 of the Income Tax Assessment Act 1936 (Cth). The examination was to encompass matters in respect of which the respondent was facing criminal charges. The Full Court (Foster, Hill and Lindgren JJ) held that the legislature should not be taken by s 264 of the Income Tax Assessment Act 1936 (Cth), as fortified by ss 8C and 8D of the Taxation Administration Act 1953 (Cth), to have authorised the compulsory interrogation of persons in circumstances where that might interfere with the administration of justice. The submission of the Commissioner of Taxation on that issue is echoed to some degree by the submission on behalf of the ACC in this matter. It was there said the legislation, by necessary implication, required the respondent to answer questions directly related to the criminal charges because he could not rely on the "doctrine of contempt of court" (per Foster J at 569). Hill and Lindgren JJ at 588 expressed the question, as I prefer to do, as whether by the relevant legislative provisions the legislature intended the examination power to be used in circumstances where, so to do, might tend to constitute a real risk of interference with the administration of justice. That contention was rejected. It was also said that, although information obtained in the proposed examination could be provided to the prosecutor, the answers could not be used in evidence because they were given under compulsion. Nevertheless, it was conceded that there was a risk that the answers given to questions directly concerning the criminal charges would tend to incriminate the respondent and in so doing could interfere with the course of justice: see at 584 (per Hill and Lindgren JJ). That case clearly confronted the question whether, on the facts, there was a real risk that requiring answers to the question objected to would interfere with the administration of justice. The principle recognised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (No 2) [1982] HCA 57 ; (1982) 152 CLR 179 and applied in De Vonk was not in issue. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . As was explained in Hammond , the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle. There is an abrogation of the privilege against self-incrimination in s 30(4) and (5), which is described by Hill and Lindgren JJ in De Vonk at 579 as one of the "fundamental rights and freedoms". It is limited to its terms. It does not impliedly extend to the wider principle recognised, inter alia, in Hammond . Indeed, the careful expression of its terms indicates to the contrary. As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges. I do not consider that, having rejected the primary contention of the ACC, that there is a further discretion to be exercised along the lines contended for by the ACC, but in any event, in the present circumstances, I would not exercise any such discretion in favour of declining to grant the injunctive relief proposed. Unlike the circumstances in De Vonk and Mansfield , the factual material indicates clearly the intention of the examiner to ask questions directly relevant to the charge whilst the charge is outstanding against the applicant. No undertaking not to do so has been proffered. Whilst there is some risk of further debate as to whether a particular question or questions may be directly relevant to the charge, it is to be noted that the present application arose only where a question which required, in answer, material directly relevant to the charge was raised. An injunction restraining the examiner from asking questions directly relevant to the charge does not generally impede the special investigation. Nor does it, on the evidence, impede the examination except to a limited extent. There is nothing to indicate that it would significantly impair the special investigation. The time of the hearing of the charge is not disclosed in the material. If the charge is heard, either by plea or trial, the applicant may be further examined in the course of the special investigation to answer questions directly relating to the charge.