Nugent v Stewart[2015] QSC 338

SUPREME COURT OF QUEENSLAND

1. The applicant, Mr Nugent, is a police officer.  In February 2015 he was informed by the second respondent, Mr Thompson, that two sets of allegations were being made against him.  The first was that he had committed the offence of misconduct in relation to a public office (s 92A Criminal Code 1899).  The second was that he had engaged in conduct which amounted to a breach of discipline or misconduct. 
2. As a consequence of those allegations, on 5 March 2015 Mr Nugent attended two interviews with Mr Thompson.  In the first, Mr Thompson sought to ask him questions about the possible criminal charge.  Mr Nugent was given the usual warning, he claimed privilege, and the interview went no further. 
3. This application concerns the second interview.  In it Mr Thompson sought to ask Mr Nugent questions about the disciplinary matters. Mr Nugent was a Communication Room Supervisor at Toowoomba Communications. His duties included: supervising staff, monitoring the QCAD System and monitoring incoming and outgoing jobs. He was asked, and answered, a number of questions about his role, the limits of his authority and how he came to occupy the position. At various times during the interview Mr Nugent responded to particular questions with words to this effect:

“I refuse to answer that question and claim privilege against self-incrimination.”

4. Some of the questions he responded to in that way were:
   1. “So with … calls to the centre, where does the call go to firstly?”
   2. “…in your section … what is the policy … in regard to recording of telephone conversations?”
   3. “Are you aware of any … directive that, … email that has been recently sent … by the staff of the … Toowoomba PCC in relation to … directives, in relation to private mobiles?”
   4. “Are you aware of any other policy provisions in relation to use of … private mobile phone calls whilst performing your duty as a communications officer?”
   5. “… on … 13^th of February, what shift were you working?”
   6. “How many staff were working on the 13^th of February, 2015 at … Toowoomba PCC?”
   7. “Are there any mobile phones supplied for Toowoomba Police Communication System? – Yes.

And so there are work mobile phones? --- Yes.

Under what circumstances are they used? --- I refuse to answer that question and claim privilege against self-incrimination.

… do you have a personal mobile phone number --- I refuse to answer that question and claim privilege against self-incrimination.

On the … 13^th of … February, 2015 whilst working at Toowoomba PCC, did you … use your mobile phone? --- I refuse to answer that question and claim privilege against self-incrimination.”

8. “Do you … know Senior Sergeant Tom Messingham?”

5. Mr Nugent was then told that the crux of the investigation concerned his interactions with Senior Sergeant Messingham on the evening of 13^th February 2015. All questions he was then asked about that matter and other persons apparently concerned with that matter were met with a claim of privilege.
6. The applicant seeks declarations that:
   1. Nothing in the Police Service Administration Act 1990, the Police Service (Discipline) Regulations 1990 or any directions given to members of the Queensland Police Service generally, or the applicant specifically, abrogates the applicant’s right to refuse to answer questions in a disciplinary interview in reliance upon his privilege against self-incrimination;
   2. That the applicant was entitled to exercise that privilege in a disciplinary interview on 5 March 2015.
7. The respondents accept that Mr Nugent has the standing to bring this application. 

Incrimination privilege

8. The authorities which have been referred by the parties in their submissions concern either or both of the privilege against self-incrimination (incrimination privilege) and privilege against self-exposure to a civil penalty (penalty privilege).  It is incrimination privilege with which this application is concerned. 

The “reminder” at the interview

9. After the formal parts of the interview had been dealt with, Mr Thompson said the following to Mr Nugent:

“I want to remind you of the Commissioner’s direction.  … pursuant to s 4.9 of the Police Service Administration Act 1990, the Commissioner has directed all members of the police service – and that includes police officers, police recruits and staff members – to truthfully and completely and promptly answer all questions directed to them by a member responsible for conducting an inquiry or an investigation on behalf of the Commissioner, into any matter including an administrative or a disciplinary complaint.  That direction is located in s 4.4.9 of the Complaint and Resolution Procedures Policy.  I remind you that you are bound by that direction.  I also remind you that should you refuse to or fail to comply with the Commissioner’s direction, you commit a breach of s 9(1)(c) of the Police Service (Discipline) Regulation 1990.  Failure to comply with the lawful direction of the Commissioner provides grounds for disciplinary action.”

The legislative background

10. The respondents submit that, on a proper interpretation of the Police Service Administration Act 1990 (the Act), the Police Service (Discipline) Regulations 1990 (the Discipline Regulation) and the Police Service Administration Regulation 1990 (the Administration Regulation) and related policy the privilege against self-incrimination has been abrogated such as to require a police officer to answer questions in a disciplinary interview, whether or not the police officers answers might tend to incriminate that police officer. 
11. The legislation and regulations referred to by both parties include the following:
12. Section 2.3 of the Act sets out the functions of the police service.  They include:

“(e)The upholding of the law generally;

(f)The administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of –

…

(iii)the powers, duties and directions prescribed for officers by any Act;”

13. The Commissioner is given the power under s 4.9 of the Act to give directions to, among others, officers as follows:

“(1)In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service. 

(2)A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.

(3)Subject to subsection (2), every officer or staff members to whom a direction of the commissioner is addressed is to comply in all respects with the direction.

… .”

14. Section 7.2 of the Act imposes duties on officers in respect of matters of misconduct and breaches of discipline.  So far as relevant, it provides:

“7.2 Duty concerning misconduct or breaches of discipline

1. (1)
   In this section—

conduct means conduct of an officer, wherever and whenever occurring, whether the officer whose conduct is in question is on or off duty at the time the conduct occurs.

officer includes a police recruit.

(2)If any officer or staff member—

(a)knows or reasonably suspects that conduct to which this section refers has occurred; or

(b) is one in respect of whom it can be reasonably concluded that the officer or staff member knew or reasonably suspected that conduct to which this section refers has occurred;

it is the duty—

(c)of the officer or staff member, in the case of conduct that is misconduct, to report the occurrence of the conduct, as soon as is practicable, to the commissioner and to the chairman of the Crime and Corruption Commission; and

(d)of the officer, in the case of conduct that is misconduct or a breach of discipline, to take all action prescribed by the regulations as action—

(i)to be taken in the circumstances of the case; and

(ii)to be within the authority of an officer of the rank or description to which that officer belongs.

(3) The commissioner may, by written instrument, exempt stated officers or staff members who have or are likely to have knowledge of conduct that is an alleged contravention of the Anti-Discrimination Act 1991 from compliance with subsection (2), generally or on stated conditions.

(4)The commissioner may give an exemption under subsection (3) only if the commissioner is reasonably satisfied giving the exemption will not adversely affect the welfare of the officers or staff members affected by or involved in the conduct.

(5)However, if a person is given an exemption generally because the person is likely to have knowledge of an alleged contravention of the Anti-Discrimination Act 1991 and the person is the person against whom the complaint for the contravention is made, the exemption does not operate in relation to the complaint against the person.

(6)Also, the commissioner may, by written instrument, exempt an officer or staff member from compliance with subsection (2), generally or on stated conditions, if the officer or staff member—

(a)is appointed to provide confidential counselling services to officers and staff members; or

(b)is a prescribed person under section 5A.21A.

(7)An exemption under subsection (6) only operates while the officer or staff member is providing professional counselling services in an official capacity.

(8)If a person is not required to report misconduct under subsection (2) because of an exemption under subsection (3), the commissioner also is not required to report the misconduct.”

15. The objects of the Discipline Regulations are set out at s 3.  It provides:

“3 Object

The object of these regulations is to—

(a)provide for a system of guiding, correcting, chastising and disciplining subordinate officers; and

(b)ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as—

(i)to protect the public; and

(ii)to uphold ethical standards within the Queensland Police Service; and

(iii)to promote and maintain public confidence in the Queensland Police Service.” 

16. Section 9 of the Discipline Regulation provides for disciplinary action to be taken in certain circumstances and includes:

“For the purposes of s 7.4 or Part 7A of the Act, the following are grounds for disciplinary action-

…

(c)a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner;

(d)a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned;

… .”

17. Section 10 of the Discipline Regulation sets out the possible sanctions which may be imposed:

“10 Disciplines that may be imposed

Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are the following—

(a)cautioning or reprimand;

(b)a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units;

(c)a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank);

(d)forfeiture or deferment of a salary increment or increase;

(e)a reduction in the officer’s rank or classification;

(f)dismissal from the police service.”

18. The respondents also rely on a direction given by the Commissioner in the 2011/12 Complaint and Resolution Procedures Policy at s 4.4.9.  It provides:

“Pursuant to ss 4.9(1) and 2.5 of the Police Service Administration Act 1990, all members of the Police Service (including police officers, police recruits and staff members), are instructed to truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an inquiry or investigation on behalf of the Commissioner.  In the case of a staff member, a direction can only be given where the allegations are made in relation to duties performed in the Service (i.e. there is a nexus with official duties).  This includes an administrative or disciplinary complaint.

This is NOT intended to apply to complaints that involve, or are likely to involve, allegations of criminal offences.  In that case, a criminal record of interview, ion compliance with the Police Powers and Responsibilities Act 2000 and the Police Responsibilities Code, must be attempted before any directed interview. At the outset of a discipline interview, the Commissioner’s direction should be reinforced in the following terms:

‘Pursuant to s 4.9 of the Police Service Administration Act 1990, the Commissioner has directed all members of the Police Service (including police officers, police recruits and staff members) to truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an inquiry or investigation on behalf of the Commissioner into any matter, including an administrative or disciplinary complaint.

That direction is located in s 4.4.9 of the Complaint and Resolution Procedures policy.  I remind you that you are bound by that direction.

Should you refuse or fail to comply with the Commissioner’s direction, you commit a breach of s 9(1)(c) of the Police Service (Discipline) Regulations 1990.  Failure to comply with a lawful direction of the Commissioner provides grounds for disciplinary action.’

… .”

Abrogation of the incrimination privilege

19. While penalty privilege is not recognised as being available outside judicial proceedings^[1], it is accepted that incrimination privilege is available in non-curial proceedings. This flows from its nature as a basic and substantive common law right^[2].
20. Notwithstanding the nature of this privilege, a statute can, either expressly or by necessary intendment, abrogate the right. But, in order to do so, such a statute must express this departure from a fundamental right with “irresistible clearness”^[3]. As Kiefel J said in X7 v Australian Crime Commission : “That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.”^[4]
21. If the relevant statute does not specifically abrogate the right, then the privilege will apply – unless an inference can be drawn from the statute that it is intended to abrogate the privilege. In X7 Hayne and Bell JJ express the requirement in this way:

“It is important, but not determinative, to observe that the ACC Act does not provide expressly for the compulsory examination of a person charged with an indictable Commonwealth offence. The applicable rule of construction recognises, however, that legislation may necessarily imply that its provisions work some fundamental alteration to the general system of law, or the qualification of some fundamental right, even though the Act does not expressly provide for that effect. But the implication must be necessary, not just available or somehow thought to be desirable. It is, therefore, important to consider whether the purpose or purposes of the ACC Act generally, or of the examination provisions in particular, would be defeated by reading the ACC Act's provisions as not permitting the examination of a person charged with an indictable Commonwealth offence about the subject matter of the charge.”^[5] (emphasis added)

22. The correct approach to consideration of this issue was summarised in Hamdan v Callanan^[6] by Muir JA (with whom Gotterson JA and Mullins J agreed) in this way:

“[10] The propositions stated by the appellants in paragraph [5] to [7] above are largely uncontroversial. As for the contentions in paragraphs [8] and [9], there is little to be gained from analysing the primary judge’s reasons in order to see whether she erred as alleged. If, as a matter of construction, the relevant provisions of the Act abrogated the appellants’ right to silence, the appeal must fail. If they did not, the appellants will succeed.

[11] Whether such provisions abrogated the right to silence depends on whether the legislature has, in the provisions of the Act, “made its intention in that regard unambiguously clear“. Some of the other ways in which the test to be applied have been expressed are referred to below. They all tend to amount to much the same thing and the outcome of this case does not depend on any fine distinctions or different nuances between the various formulations.

[12] Argument before this court proceeded, correctly, on the assumption that Parliament could abolish or interfere with established common law protections, including the right to refuse to answer questions, the answer to which may tend to incriminate the person asked. The right against self-incrimination was accepted by the respondent, at least implicitly, as a fundamental freedom or principle which attracted the ‘principle of legality’.

[13] It is a ‘settled principle that statutory provisions are not to be construed as abrogating fundamental rights or important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect’.

[14] In Lee v New South Wales Crime Commission, Kiefel J, referring to Potter v Minahan, stated that it was a requirement of the principle of legality that a statutory intention to abrogate a fundamental freedom or principle must be expressed with ‘irresistible clearness’.

[15] Hayne and Bell JJ, in this context, observed that ‘… such an alteration can be made if it is made clearly by express words or necessary intendment’.

[16] In X7, French CJ and Crennan J used the formulation ‘clear words or necessary implication to that effect’.

[17] In their reasons in Lee, Gageler and Keane JJ warned against undue extension of the principle of legality:

‘The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.’

[18] Their Honours further explained that:

‘The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”’.. (citations omitted)

[19] The approach expressed in the above paragraph is consistent with that articulated by Mason ACJ, Wilson and Dawson JJ in Pyneboard Pty Ltd v Trade Practices Commission:

‘In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings.’ ” (citations omitted)

23. The respondents accept that the legislation does not expressly abrogate the right. They argue that abrogation occurs by necessary implication through the operation of the Act and s 9 of the Discipline Regulation.
24. The applicant’s case is based largely on the decision of Adamson J in Baff v Commissioner of Police (NSW) ^[7]. In that case her Honour considered the provisions of the relevant New South Wales legislation (Police Act 1990 and Police Regulation 2008) and held that incrimination privilege had not been abrogated by that legislation. In doing so, her Honour distinguished Police Service Board v Morris ^[8] and Commissioner of Police v Justin ^[9]. A substantial part of the submissions, both written and oral, was devoted to the examination of these cases. In Baff, Morris was distinguished on the basis that it dealt with penalty privilege and anything said about incrimination privilege was merely obiter. The decision in Justin was said to have been based on a misunderstanding of Morris.
25. I do not accept that the reasoning employed by Adamson J should be applied in this case. There is, though, no dispute about the appropriate principles of construction which must be applied. The question which I have to answer is the one posed by Muir JA in Hamdan, that is: “does a legislative intention to abrogate the privilege against self-incrimination emerge with sufficient clarity from the provisions of the Act to satisfy the various tests identified earlier?”^[10]

Is there an intention to abrogate?

26. Section 4.9 of the Act gives the Commissioner the power to give such directions to officers “as the Commissioner considers necessary or convenient for the efficient and proper functioning of the police service”. Each officer is required by s 4.9(3) to comply with such a direction.
27. It is important, when considering the context in which these provisions appear, to remember that the police service is a disciplined force the members of which voluntarily undertake a “curtailment of freedoms which they would otherwise enjoy”^[11].  The formality with which members of the police do surrender some rights which might be enjoyed by “civilians” is emphasised by the oath or affirmation they take when they join the service.^[12]
28. The nature of this service was described by Wilson and Dawson JJ in Morris:

“It is essential to bear in mind that the Act and Regulations here are dealing with a disciplined force, the members of which voluntarily undertake the curtailment of freedoms which they would otherwise enjoy. It is in that context that it may be necessary to draw the implication that the privilege is excluded by a provision designed to further the effectiveness of an organization based upon obedience to command. To admit of exceptions, such as the privilege against self-incrimination, without the possibility of having regard to the circumstances in which they might have to be applied, may be alien to the nature and purposes of the organization which the legislation seeks to regulate.”^[13] (emphasis added)

29. Brennan J said, to similar effect:

“The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means — the primary and usual means — of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. It cannot be thought that the Police Regulations intend a police officer to be able to cloak with his silence activities that are prejudicial to the achievement of these purposes. To permit, under a claim of privilege, a subordinate officer to refuse to give an account of his activities whilst on duty when an account is required by his superior officer would subvert the discipline of the police force.”^[14] (emphasis added)

30. A failure or refusal to comply with a lawful direction from the Commissioner exposes an officer to s 9 of the Discipline Regulation and the exercise of disciplinary action. The sanctions available range from a reprimand to dismissal.
31. Neither the Act nor the Regulations provide any exception to these requirements which may be imposed on an officer. The obligation to comply is expressed in an absolute way and is reinforced with the threat of disciplinary action. In other words, the legislation compels the officer to answer a question which is within the ambit of the Commissioner’s direction and, so, allows the necessary inference to be drawn that privilege may not be claimed.
32. While the obligations were slightly differently expressed in Morris, and while it is arguable that incrimination privilege was not at the heart of the decision there are, nevertheless, strongly expressed views by members of the Court which require attention. The statements by Wilson, Dawson and Brennan JJ in [28] and [29] and others set out below are, in my respectful opinion, “seriously considered dicta” and should, in the absence of other binding authority, be followed.^[15] 
33. Further analysis in favour of finding that there has been abrogation can be found in the words of Gibbs CJ:

“Regulation 95A(7) is not a provision which itself authorizes the holding of an interrogation or expressly confers a power to require answers to be given to questions. The regulation applies to orders of a variety of kinds and in many if not most cases in which the disobedience of a lawful order is alleged, the privilege against giving answers which might tend to incriminate or expose to penalty could not have any possible relevance. Starke J. regarded the fact that the words of the regulation are of the widest possible description and apply to lawful orders of every kind as indicating that it is improbable that the legislature ever turned its mind to the principle of self-incrimination when framing its provisions. With great respect I would regard the matter differently; it seems to me that the character of the regulation, which is primarily designed to secure the obedience to orders rather than to compel the answering of questions, indicates both that the application of the privilege would be inappropriate and that the obligation to obey lawful orders is not intended to be subject to any unexpressed qualification.”^[16]

34. To similar effect was this statement from Wilson and Dawson JJ:

“The legislature must have intended that any cause for suspicion touching a member's performance of his duties could be the subject of interrogation by a superior officer and that the member would be obliged to answer the questions put to him whether or not those answers would tend to incriminate him.”^[17]

35. The Commissioner’s ability to oversee “the efficient and proper administration, management and functioning of the police service” would be substantially handicapped if it were not possible to require officers to answer questions about their conduct in the course of their employment. Similarly, the ability to claim incrimination privilege is inconsistent with the objects of the Discipline Regulations. It is not necessary to afford the legislation undue width as the objects of the Act and the Regulations, together with the provisions for the making of directions, and the consequences for failing to comply  with such a direction, make it clear that their operation results in an abrogation of the incrimination privilege.
36. The application is dismissed.