A sequel of sorts to Re an application under the Major Crime (Investigative Powers) Act 2004  VSC 381 played out in Federal Court last week. The very different outcome serves as an example of how influential the Charter of Human Rights and Responsibilities Act 2006 has been to Victorian law.
In Stoddart v Boulton  FCA 1108, an application for an injunction was lodged in Federal Court to restrain the Examiner of the Australian Crime Commission from compulsorily examining a woman about matters involving her husband.
The powers of the Australian Crime Commission Act 2004 (Cth) are like the powers conferred by the Major Crime (Investigative Powers) Act 2004 (Vic) in many respects. Section 30(2) of the Act prohibits a witness at an examination from refusing or failing to answer any question put to them.
In the case of Mrs Stoddart, she refused to answer questions on the grounds of spousal privilege, then brought action for an injunction to permanently stay the Examiner from further questioning her. She relied upon a series of obiter remarks in previous cases that strongly suggested the existence of spousal privilege or immunity at common law. The argument was then developed along similar lines to Re Major Crime, though interestingly Chief Justice Warren’s decision was not specifically referred to; in the absence of a specific and express intention of parliament, a basic common law right should not be considered to be abrogated (the right in this case being spousal privilege, rather than privilege against self-incrimination through use of derivative evidence).
In the Commonwealth jurisdiction, of course, there is no Charter of Human Rights to re-balance the scales in favour of the protection of the individual. In the absence of such statutory protection, the Federal Court found that spousal privilege was impliedly abrogated by the provisions of the ACC Act:
In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband’s privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife’s privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the perseveration [sic] of personal liberty.
(perserveration is, in fact, a word, but in the circumstances I think preservation may have been intended by Reeves J).
This decision reinforces the significance that a proposed Commonwealth Bill of Rights could hold. As Jeremy Gans said on the Law Report, a number of law enforcement mechanisms at Commonwealth level would need to be reviewed if such a Bill becomes a reality.