A v Boulton [2004] FCA 56

FEDERAL COURT OF AUSTRALIA

A v Boulton [2004] FCA 56 AUSTRALIAN CRIME COMMISSION – examination for purposes of a special Australian Crime Commission operation/investigation – applicant not yet charged but claimed that this was imminent – whether s 30 of Australian Crime Commission Act 2002 (Cth) abrogates privilege against self-incrimination – whether by not providing "derivative use immunity" as former legislation had done Parliament manifested intent not to abrogate privilege – whether Australian Crime Commission lawfully entitled to examine person likely to be charged – whether such examination amounts to contempt of court Australian Crime Commission Act 2002 (Cth) ss 4, 4A(2), 7A, 7B(3), 12, 22, 23, 24, 24A, 25A, 28, 29, 30, 32(4), (5), 46B(1), 49B(1) and 57 Judiciary Act 1903 (Cth) ss 39B, 78A Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 National Crime Authority Legislation Amendment Bill 2001: Revised Explanatory Memorandum item 12 Royal Commissions Act 1902 (Cth) ss 6A(2), 6DD, Crimes Act 1914 (Cth) s 23B(2) Customs Act 1901 (Cth) National Crime Authority Legislation Amendment Act 2001 (Cth) National Crime Authority Act 1984 (Cth) Sorby v The Commonwealth (1983) 152 CLR 281 at 289-90, 294, 298, 309, 310, 316, 317 considered Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340, 341, 351 considered Rees v Kratzmann (1965) 114 CLR 63 at 80 referred to Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 509 referred to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 at 570, 572, 584-5, 597 considered Hammond v The Commonwealth (1982) 152 CLR 188 at 198, 200, 205, 206 distinguished Kastigar v United States 406 US 441 at 453 (1972) referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564 at 583 referred to Azzopardi v R (2001) 205 CLR 50 at 91 referred to Mansfield v Australian Crime Commission [2003] FCA 1059 at [49], [65] followed Mortimer v Brown (1970) 122 CLR 493 referred to Commissioners of Customs and Excise v Harz [1967] 1 AC 760 at 816 referred to HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 at 157, 166, 170 followed Lam Chi Ming v The Queen [1991] 2 AC 212 at 218 referred to R v Scott (1856) Dears & B 47 referred to Regina v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 30, 40 considered Hamilton v Oades (1989) 166 CLR 486 at 496, 508 considered R v Sang [1980] AC 402 referred to R v Hertfordshire County Council; Ex parte Green Environment Industries Ltd [2000] 2 AC 412 referred to Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 referred to The Queen v Rogerson (1992) 174 CLR 268 at 276 considered R v Vreones [1891] 1 QB 360 at 369 referred to R v Murphy (1985) 158 CLR 596 at 609 referred to Justice G L Davies, "The Prohibition Against Adverse Inferences from Silence: A Rule without Reason?" (2000) 74 ALJ 26 at 31 Queensland Law Reform Commission, The Abrogation of the Privilege Against Self-Incrimination, Discussion Paper WP No 57, August 2003