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Key decisions

  • Deputy Commissioner of Taxation v Shi [2021] HCA 22
  • Chetcuti v Commonwealth of Australia [2021] HCA 25

Evidence

Privilege against self-incrimination

In Deputy Commissioner of Taxation v Shi [2021] HCA 22 (4 August 2021) the High Court was required to determine whether a judge of the Federal Court of Australia (being Steward J before his elevation to the High Court) erred in refusing to order that a privilege affidavit, sworn by the respondent (‘Shi’), be filed and served on the appellant (‘Commissioner’) pursuant to s 128A(6) of the Evidence Act 1995 (Cth) (‘Evidence Act’).

The Commissioner had obtained ex parte orders in the Federal Court of Australia freezing Shi’s assets worldwide (‘Freezing Orders’). The Federal Court made ancillary orders requiring Shi to disclose the details of all of his worldwide assets (‘Disclosure Order’). Shi partly objected to complying with the Disclosure Order under s 128A of the Evidence Act, on the grounds that some of the information required to be disclosed may tend to incriminate him. Shi complied with the process set out in s 128A which included the preparation of an affidavit that contained the information required to be disclosed, but to which Shi objected to disclosure (‘Disclosure Affidavit’). Section 128A(6) of the Evidence Act creates an exception to the privilege against self-incrimination. Under s 128A(6) a Court may, nonetheless, make an order requiring the Disclosure Affidavit to be served on the other party if satisfied that:

  1. the information disclosed tends to prove that the relevant person is liable under Australian law;
  2. the information disclosed tends not to prove that the relevant person is liable under the law of a foreign country;
  3. the interests of justice require the information to be disclosed.

Steward J, at first instance, held that he was satisfied that the Privilege Affidavit tended to prove that Shi had committed an offence under Australian law, but considered that it was not in the interests of justice to disclose the privileged information because the Commissioner could otherwise obtain the information by exercising his compulsory examination powers under s 353-10 of Schedule 1 to the Taxation Administration Act 1953 (Cth). The Commissioner appealed unsuccessfully to the Full Court of the Federal Court (Lee and Stewart JJ, Davies J dissenting). The majority considered that the Commissioner bore the onus of proving the matters in s 128A(6)(a) and (b) of the Evidence Act. And, in respect of s 128A(6)(c), all of the judges of the Full Court considered that Steward J was wrong to take into account the Commissioner’s compulsory examination powers. But the majority upheld Shi’s notice of contention that the interests of justice did not require the disclosure of the Disclosure Affidavit because there were other ways in which the execution of the Freezing Order could have been assisted, such as the ability to examine a judgment debtor under s 108 of the Civil Procedure Act 2005 (NSW). Additionally Lee J considered that the derivative use immunity, in s 128A(8), would be difficult to enforce in the circumstances.

The High Court (Edelman J dissenting) allowed the Commissioner’s appeal. The majority held that since Shi himself did not produce any evidence that the Disclosure Affidavit may tend to incriminate him in respect of the law of a foreign country, the Court could be satisfied that s 128A(6)(b) of the Evidence Act had been met (see Keifel CJ, Gageler and Gleeson JJ at [9] and Gordon J at [67]). In respect of s 128A(6)(c), the majority held that both Steward J and the Full Court took into account irrelevant considerations (Kiefel CJ et al at [11] and Gordon J at [68]). The majority considered that the evaluation of the interests of justice is informed primarily by balancing the public interest in disclosure against the potential detriment to the person objecting to disclosure (Kiefel CJ et al at [12]). The majority also considered that Lee J’s concerns could be ameliorated by making an order confining the disclosure of the Disclosure Affidavit to certain named lawyers. Edelman J, in dissent, argued that it was for the Commissioner to prove s 128A(6)(a) and (b) of the Evidence Act.

Constitutional law

Aliens

In Chetcuti v Commonwealth of Australia [2021] HCA 25 (12 August 2021) the High Court was required to determine whether the appellant (‘Chetcuti’) was a further exception (in addition to Aboriginal Australians: Love v The Commonwealth (2020) 375 ALR 597) to s 51(xix) of the Constitution (‘Aliens Power’) because Chetcuti was not an alien at the time he settled in Australia.

Chetcuti was born to Maltese parents in 1945 in Malta, when it was still a colony of the United Kingdom. Chetcuti was born with the status of a British subject under the British Nationality and Status of Aliens Act 1914 (UK). From 1 January 1949, Chetcuti had the status of a citizen of the United Kingdom and Colonies, under the British Nationality Act 1948 (UK). That is until 21 September 1964 when Malta gained its independence and, under the Malta Independence Act 1964 (UK), Chetcuti became a citizen of Malta.

Chetcuti came to Australia with his parents in 1948. At the time, Chetcuti had the status of a British subject under the Nationality Act 1920 (Cth) by virtue of his birth in a British colony. At the commencement of the Australian Citizenship Act 1948 (Cth) (‘Australian Citizenship Act’) on 26 January 1949, Chetcuti maintained his status as a British subject by virtue of his citizenship of the United Kingdom. Chetcuti lost this status on Malta’s independence but then seemed to regain it in 1965, under the Australian Citizenship Act, until that status was abolished in 1987.

In 1993 Chetcuti was convicted for murder. On 1 September 1994, at the commencement of the relevant provisions of the Migration Legislation Amendment Act 1994 (Cth), Chetcuti was granted an Absorbed Person visa under the Migration Act 1958 (Cth) (‘Migration Act’). But in 2017, the responsible Minister decided to cancel Chetcuti’s Absorbed Person Visa because of Chetcuti’s conviction. Chetcuti was then detained under the Migration Act.

Chetcuti brought a proceeding in the original jurisdiction of the High Court in which he challenged his detention, arguing that he is not within the reach of the Aliens Power. Nettle J held otherwise and gave judgment for the Commonwealth. Chetcuti appealed. But the High Court (Steward J dissenting) upheld Nettle J’s decision.

The plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) were not persuaded by Chetcuti’s argument that ‘the status of non-alien attaches indelibly to a person’ (see [13]). The plurality, in a joint judgment, considered (at [14]) that the answer to Chetcuti’s argument could be found in the majority’s judgment in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (‘Shaw). In Shaw, the majority held that the Aliens Power reached all those people who entered Australia after the commencement of the Australian Citizenship Act on 26 January 1949 and who were not born to Australian parents or who had not been naturalised as Australians. The plurality considered that the reasoning employed by the majority to reach this conclusion was equally applicable to people who had entered into Australia before 26 January 1949. That reasoning, the plurality noted (at [16]), rested on the following four propositions:

  1. a common law notion of a ‘British subject’ was never an immutable element in the law of the Constitution;
  2. the Commonwealth Parliament exercised the Aliens Power in establishing, by the Australian Citizenship Act, the status of an Australian citizen on and from 26 January 1949;
  3. on and from 26 January 1949, those people who were not Australian citizens were aliens and those who had the status of British subjects were still aliens but a class of aliens that enjoyed special privileges;
  4. by 26 January 1949, Australian sovereignty had developed to a point at which the constitutional term ‘subject of the Queen’ no longer referred to an Imperial Crown but rather a subject of the Crown in right of Australia (i.e. an Australian citizen).

The plurality also observed that the Australian Citizenship Act did not ignore those British subjects who had entered Australia before 26 January 1949 (at [26]). The Australian Citizenship Act included transitional provisions which provided that British subjects will become Australian citizens on 26 January 1949 if:

  1. they were born in Australia and would have been an Australian citizen if the Australian Citizenship Act had been in force at the time of their birth;
  2. they were naturalised in Australia;
  3. they had been, immediately prior to 26 January 1949, ordinarily resident in Australia for a period of at least five years.

The plurality noted that Chetcuti missed out on becoming an Australian citizen on 26 January 1949 because he had, at that time, been a resident in Australia for less than five years (at [33]). But, Chetcuti’s position was not irremediable because, under the Australian Citizenship Act, by virtue of his United Kingdom citizenship, he could become an Australian citizen by registration any time until that right was removed by an amending Act in 1973. Gordon J and Edelman J, in separate judgments, also dismissed Chetcuti’s appeal. Gordon J agreed with the plurality that the majority’s reasoning in Shaw meant that Chetcuti’s appeal must be dismissed (at [36]). Edelman J did not apply Shaw but came at the matter from a different angle. Edelman J argued that the only question that needed to be decided in Chetcuti’s appeal was whether Chetcuti was a constitutional alien at the time of his detention (2017) because Chetcuti’s status was ‘not cryogenically frozen and impervious to the application of the Constitution to new political and social facts and circumstances’ (at [56]). Edelman J also argued that, following Love, the meaning of the term ‘alien’ was not whatever definition Parliament ascribed to the term in legislation (at [66]-[69]). Instead, Edelman J argued, the constitutional meaning requires a search for the ‘essential character of the constitutional idea of alienage’ (at [69]). Edelman J identifies this essential character to be an ‘absence of membership of the Australian political community’. Edelman J concludes that Chetcuti was from 2017 not a member of the Australian political community and, as such, an alien, because he did not have Australian parents, was not an Australian citizen (because he neither became registered or naturalised) and was a citizen of a foreign country (at [94]).

Steward J was the sole dissenting voice. Steward J considered that the majority in Shaw drew a ‘bright line’ by selecting 26 January 1949 as the date by which the Imperial Crown divided and he argued that this convenient constitutional fiction should not now be disturbed (at [134]). Steward J was the only member of the High Court to allow Chetcuti’s appeal.



Dr Michelle Sharpe
is a barrister in Castan Chambers in Melbourne.