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. Continue reading