By Anna Dziedzic
In Lee v New South Wales Crime Commission  HCA 39, the High Court split 4:3 on the application of the ‘principle of legality’ — a rule of statutory interpretation which requires parliament to use clear statutory language if it intends to restrict fundamental rights or depart from general principles of law. This post attempts to trace whether the differences between the members of the Court reflect merely a different interpretation of the NSW crime legislation in question, or lie at the deeper level of the rationale and operation of the principle of legality.
NSW’s criminal assets recovery legislation
Father and son Jason Lee and Seong Won Lee were arrested for money laundering, drugs and firearms offences. After they were charged — but before the completion of their trial — the NSW Crime Commission applied to the NSW Supreme Court for various orders under the Criminal Assets Recovery Act 1990 (NSW).
This Act sets out a scheme for the confiscation of property if the Supreme Court finds it ‘more probable than not’ that a person has engaged in serious crime related activity (s 3(a)). There is no requirement for the person to have been convicted of a criminal offence.
Section 31D authorises the Crime Commission to seek orders for the examination of a person about the person’s affairs or those of another. Such examinations are to be held before the Supreme Court. During an examination, the person must provide information even if it tends to incriminate him or her, but such information is not admissible in criminal proceedings (s 31A). In other words, the legislation abrogates the privilege against self-incrimination but provides ‘direct use’ immunity.
The Crime Commission applied for an order that Jason Lee and Seong Won Lee be examined on oath before the Court. The Judge hearing the application refused to make the order on the grounds that it would expose the Lees to questioning about matters relevant to the criminal charges they were facing, creating a real risk of interference in their ongoing criminal trials. The NSW Court of Appeal overturned this decision. Jason and Seong Won Lee then appealed to the High Court.
Question for the High Court
The question for the High Court was whether the Criminal Assets Recovery Act authorised the compulsory examination of a person facing criminal charges where the examination would deal with matters that were the subject of the pending criminal proceedings. The question was one of statutory interpretation and the answer turned on the application of the principle of legality.
The ‘principle of legality’ is a rule used by courts to interpret legislation. A court will not interpret a statute to restrict a fundamental right or depart from the general system of law unless that interpretation is required by the express words or a necessary implication of the statute.
The Lees argued that requiring them to answer questions about matters relating to pending charges interfered with their right to remain silent. They argued this departure from the fundamental principles of the accusatorial system was not clearly expressed or implied by the terms of the Criminal Assets Recovery Act. As such, the Act could not be interpreted to permit an examination in these circumstances.
The question in Lee was similar to that considered by the High Court in X7 v Australian Crime Commission  HCA 29. In X7, a majority of the Court held the Australian Crime Commission Act 2002 (Cth) did not authorise the compulsory examination of a person subject to pending criminal charges.
All Judges in Lee followed X7 in holding that the right to silence is an important aspect of the criminal justice system and that its abrogation by legislation attracts the principle of legality. (I explain why the right to silence is considered so fundamental in my post on X7.) However, the members of the Court in Lee came to different conclusions on the application of the principle of legality.
The majority — comprising French CJ, Crennan, Gageler and Keane JJ — held that the Criminal Assets Recovery Act clearly disclosed a legislative intention to abrogate the privilege against self-incrimination and the right to silence, including in circumstances where the person being examined has been charged with a criminal offence. This legislative intention was apparent from the objectives and provisions of the Criminal Assets Recovery Act, which rested on the premise that recovery proceedings could be conducted at the same time as criminal proceedings. Further, the requirement that an examination take place before a court served to protect the person being examined from unfair prejudice in pending criminal proceedings and mitigated the risk of interference with the administration of justice.
The minority — comprising Hayne, Kiefel and Bell JJ — held that the language of the Criminal Assets Recovery Act was not sufficiently clear to permit such a significant departure from fundamental principles of criminal justice. For the minority, the Act did not unambiguously deal with the particular case of an examination of a person facing pending charges. In these circumstances, examination raises a real risk to the administration of justice. The minority did not consider that this risk was ameliorated by conducting the examination before a court because the risk lay not in asking a particular question, but in the fact of the examination itself.
Differences in the process of statutory interpretation
The members of the Court clearly came to different views on the meaning of the provisions of the Criminal Assets Recovery Act. But does this reflect a more fundamental difference about the process of statutory interpretation?
The judges in the majority considered that where the legislative purpose is sufficiently clear, and restricting a right or departing from a general principle of law is integral to achieving that purpose, the principle of legality will have no work to do. Subject to constitutional limits, the parliament has the power to make laws that abrogate rights and modify fundamental principles of the common law. The principle of legality requires only that parliament’s intention to do so be clearly expressed. Justices Gageler and Keane put the matter this way:
The principle [of legality] 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 the legislature sets out to achieve’.
The judges in the minority criticised this approach on the basis that it assumed the answer to the central question. For the minority, the point of the principle of legality is that any restriction of a right or departure from the general system of law must be clearly dictated by express words or necessary implication and cannot be assumed from the general purpose and language of the Act
Underlying rationales for the principle of legality
In a recent article in the Melbourne University Law Review, Brendan Lim maps two rationales for the principle of legality.
The first rationale is based on an assumption about what the legislature actually intended. The most commonly cited statement of this rationale is by O’Connor J in Potter v Minahan  HCA 63, who held that ‘[i]t is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.
The second rationale is a claim about what legislatures should do. It holds that the legislature should use clear words when making laws which impinge on rights or alter the general system of law in order to enhance the political process and hold the legislature to account. This rationale is set out in Coco v The Queen  HCA 15, where it was said that ‘curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights’.
In Lee, Justice Kiefel and the joint reasons of Justices Gageler and Keane each discuss the origins and rationale of the principle of legality. Both judgments cite Potter v Minahan, indicating that the first rationale, which focuses on the legislature’s actual intention, continues to be persuasive.
However, Justices Gageler and Keane also consider the second rationale for the principle of legality. Their Honours cite Coco v The Queen, as well as a statement by Lord Hoffman in the UK case of R v Secretary of State for the Home Department; Ex parte Simms  UKHL 33, who justified the principle of legality on the basis that ‘Parliament must squarely confront what it is doing and accept the political cost’. Their Honours conclude that these more recent justifications do not depart from the older rationale set out in Potter v Minahan, but rather reinforce and update it. Importantly, while the second rationale continues to focus on legislative intention, it also directs attention to the court’s role in upholding good legislative practices. As Justices Gageler and Keane note, it ‘respects the distinct contemporary functions, enhances the distinct contemporary processes, and fulfils the shared contemporary expectations of the legislative and the judicial branches of government’.
It is difficult to say whether this difference in emphasis directly informed the different conclusions reached in Lee. Because the second rationale focuses on legislative process and accountability, it might inform the majority’s emphasis on the parliament’s power to alter fundamental rights and common law protections in pursuit of legitimate legislative objectives. Meanwhile, the continuing influence of the first rationale for the principle of legality might underlie the minority judges’ emphasis on the fundamental importance of the right to silence and their insistence on a clearly expressed legislative intention to restrict it.
Reading X7 and Lee together
The decision in Lee can be compared to X7 v Australian Crime Commission, decided three months earlier. X7 also involved the application of the principle of legality to a statutory scheme that abrogated the privilege against self-incrimination. It was heard by a bench of five justices prior to the appointment of Justices Gageler and Keane. Justices Hayne, Kiefel and Bell held that the Australian Crime Commission Act did not disclose a clear intention to restrict an accused person’s right to silence and so did not authorise the compulsory examination of a person subject to pending criminal charges. Chief Justice French and Justice Crennan dissented.
The different results in Lee and X7 may be understood by reference to the different nature and objectives of the compulsory examination schemes in each case. Most significantly, examinations under the Australian Crime Commission Act were intended to obtain information about criminal activity to inform the Commission’s investigative and enforcement work, and were conducted by executive officers. In contrast, examinations under the Criminal Assets Recovery Act were for the purpose of recovering proceeds of crime and were conducted before a court, which has inherent powers to uphold the fairness of the proceedings.
For Justice Hayne, however, ‘[a]ll that has changed between the decision in X7 and the decision in this case is the composition of the Bench’. The judges in the minority considered that the principles which they had recognised and applied in X7 were equally applicable in Lee, and that the doctrine of precedent required that X7 be followed.
Regardless of how the different results in Lee and X7 are rationalised, the decisions do suggest a divide between members of the Court on the application of the principle of legality. While the interpretation of the relevant statutes provides a clear point of difference between the judgements in Lee and X7, it may be that the judgments also reveal deeper differences regarding the operation and the rationale for the principle of legality, which may play out in cases to come.
What next for Jason Lee and Seong Won Lee?
Jason Lee and Seong Won Lee were convicted of the offences outlined above on 16 March 2011. Prior to their trial the Lees were summoned to attend compulsory examinations by the NSW Crime Commission, this time under the New South Wales Crime Commission Act 1985 (NSW). The Lees challenged their convictions on the ground that the prosecution received transcripts of the examinations contrary to the Commission’s non-publication order. The NSW Court of Criminal Appeal held that the release of the transcripts did not lead to any actual unfairness in the trial and upheld the convictions.
On 13 December 2013, the High Court granted special leave to appeal this decision. While the issues before the Court will not engage the principle of legality, argument will certainly draw upon the principles identified in X7 and Lee about the importance of the right to silence and the effect of its abrogation on the accusatorial process of criminal justice.
AGLC3 Citation: Anna Dziedzic, ‘Digging Down to the Principle of Legality: Lee v New South Wales Crime Commission’ on Opinions on High (3 February 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/02/03/dziedzic-lee>.