Chief Executive, Queensland Health v Jattan [2010] QCA 359

SUPREME COURT OF QUEENSLAND CITATION: Chief Executive, Queensland Health v Jattan [2010] QCA 359 PARTIES: CHIEF EXECUTIVE, QUEENSLAND HEALTH (applicant/appellant) v RIMAL RAVINESH JATTAN (respondent) FILE NO/S: Appeal No 4315 of 2010 SC No 2442 of 2010 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 17 December 2010 DELIVERED AT: Brisbane HEARING DATE: 15 November 2010 JUDGES: Holmes and White JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed with costs CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where respondent was a registered pharmacist – where respondent gave evidence under compulsion of summons pursuant to s 28 Australian Crime Commission Act 2002 (Cth) before an examiner of the Australian Crime Commission (ACC) – where respondent was issued with a “notice of proposed action” under s 24 of the Health (Drugs and Poisons) Regulation 1996 (Qld) suspending his endorsement to dispense controlled and restricted drugs and poisons – where the facts and circumstances forming the basis for the notice of proposed action included evidence given by the respondent at the ACC hearing – where s 30(5) Australian Crime Commission Act 2002 (Cth) provides that answers given at Australian Crime Commission examinations are not admissible in evidence against the answerer in “a proceeding for the imposition of a penalty” – whether the notice of proposed action a “proceeding” – whether notice of proposed action a proceeding “for the imposition of a penalty” -- 1 of 12 -- 2 Australian Crime Commission Act 2002 (Cth), s 25A, s 28, s 30(4), s 30(5) Corporations Act 2001 (Cth) Health (Drugs and Poisons) Regulation 1996 (Qld), s 24(1) National Crime Authority Legislation Amendment Act 2001 (Cth), s 4, s 5, s 7, s 9, s 10 Queensland Civil and Administrative Review Tribunal Act 2009 (Qld) A v Boulton (2004) 136 FCR 420; 207 ALR 342, cited Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23, distinguished Bowen-James v Walton [1991] NSWCA 29, distinguished Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135, cited Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49, cited Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102, cited Health Care Complaints Commission v Windgate (2007) 70 NSWLR 323; [2007] NSWCA 326, cited Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9, cited Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; [1983] HCA 9, cited R v Deemal [2010] 2 Qd R 70; [2009] QCA 131, cited Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42, distinguished COUNSEL: B Walker SC, with H Bowskill, for the applicant P J Davis SC, with S A McLeod, for the respondent SOLICITORS: DLA Phillips Fox for the applicant Gilshehan & Luton for the respondent [1] HOLMES JA: I agree with the reasons of Boddice J and with the order he proposes. [2] WHITE JA: I have read the reasons of Boddice J and agree with his Honour that the evidence obtained under compulsion pursuant to the Australian Crime Commission Act 2002 (Cth) may not be used by the appellant as part of the basis for the delegate of the appellant forming the view that the respondent’s endorsement as a pharmacist should be cancelled. I agree with his Honour that the issuing of the notice was a proceeding for the imposition of a penalty and attracted the use immunity in s 30(5) of the Australian Crime Commission Act. I agree that the appeal should be dismissed with costs. [3] BODDICE J: On 18 October 2007 the respondent, a registered pharmacist, gave evidence under compulsion of a summons issued under s 28 of the Australian Crime -- 2 of 12 -- 3 Commission Act 2002 (Cth) (“the Act”). A recording of the evidence was provided to Queensland Health pursuant to a publication direction made at the hearing.1 [4] By a notice of proposed action, dated 31 January 2010 (“the notice”), a delegate of the appellant advised the respondent it was proposed to cancel his endorsement as a pharmacist to obtain, dispense, sell, and possess or otherwise deal with all and any controlled drugs, restricted drugs and S2, S3 and S7 poisons. The notice, which was issued under s 24(1) of the Health (Drugs and Poisons) Regulation 1996 (“the Regulations”), set out the grounds relied upon by the delegate, and the facts and circumstances forming the basis for those grounds. Those facts and circumstances included evidence given by the respondent at the hearing before the ACC examiner and other documentary evidence.2 [5] The respondent challenged the validity and/or lawfulness of the notice on the ground that the delegate had relied upon evidence which was inadmissible by virtue of s 30(5)(b) of the Act. The primary judge upheld that challenge, declaring that the notice was not validly issued under s 24(1) of the Regulations, and the appellant was not entitled to rely on that evidence in making any determination in respect of the notice. [6] The appellant asserts the primary judge erred in law in making those declarations. The critical issue for determination is as to the proper construction of s 30(5)(b) of the Act, and s 24 of the Regulations. The legislation [7] The Act, which regulates the operation of the ACC, provides various powers, including coercive powers to investigate “serious and organised” crime.3 An ACC examiner may summon a person to appear before an examination to give evidence and to produce such documents or other things as are referred to in the summons.4 A person served with a summons to appear as a witness at an examination may not refuse to answer questions. However, s 30(4) and (5) of the Act limits the use of answers provided where the examinee, before answering the question, claims the answer may tend to incriminate the person, or make the person liable to a penalty. [8] Relevantly, s 30 provides: “Use immunity available in some cases if self-incrimination claimed (4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if: (a) a person appearing as a witness at an examination before an examiner: (i) answers a question that he or she is required to answer by the examiner; or 1 See ACC Act, s 25A(9). 2 AB 26-32. 3 See generally A v Boulton (2004) 136 FCR 420 at [9], [67]-[71]. 4 ACC Act, s 28(1). -- 3 of 12 -- 4 (ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and (b) in the case of the production of a document that is, or forms part of, a record of an existing or past business--the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and (c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (5) The answer, or the document or thing, is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; other than: (c) confiscation proceedings; or (d) a proceeding in respect of: (i) in the case of an answer--the falsity of the answer; or (ii) in the case of the production of a document-- the falsity of any statement contained in the document.” [9] Relevantly, the Regulations: (a) prohibits a person from having in their possession, or dispensing, issuing, prescribing, purporting to prescribe or selling a controlled drug, restricted drug or poison unless the person is under the regulation endorsed to do so; (b) authorise a pharmacist, to the extent necessary to practise pharmacy, to: (i) obtain a controlled drug or restricted drug; (ii) dispense or sell (other than by wholesale) a controlled drug, restricted drug or certain types of poisons; (iii) possess a controlled drug or restricted drug in certain circumstances. (c) contain specific provisions regulating the manner in which controlled drugs, restricted drugs and certain poisons can be prescribed and dispensed, obtained and sold and about the keeping of records and storage of such items. These restrictions operate as conditions of an endorsement. -- 4 of 12 -- 5 [10] Chapter 1 Part 5 of the Regulations contains general provisions dealing with “endorsements”. That term is broadly defined in Appendix 9 to the Regulations and includes licences and permits that may be applied for and granted under the regulations as well as an “authority” that a person has under the regulations because of the person’s occupation. [11] Applications for an endorsement are considered by the appellant who may grant the endorsement, with or without conditions, or refuse it.5 In deciding whether an applicant is a suitable person to hold, or continue to hold, an endorsement, the appellant may have regard to a range of matters, including the person’s “character and standing”.6 [12] The holder of an endorsement must not contravene a condition of the endorsement and there is power to suspend or cancel an endorsement on specified grounds.7 By that procedure, the endorsement holder is given a written notice stating the proposed action, and the grounds relied upon and inviting the endorsement holder to show, in writing, within a stated time, why the proposed action should not be taken.8 Primary decision [13] The issue before the primary judge was one of statutory interpretation. It involved the meaning of the term “a proceeding for the imposition of a penalty” in s 30(5)(b) of the Act. [14] At first instance, the appellant submitted the notice did not establish the existence of “a proceeding”, and that any proceeding was not “for the imposition of a penalty”. The respondent submitted the notice was “a proceeding for the imposition of a penalty”. [15] The primary judge found the issue of the notice was a precedent step to the cancellation or suspension of an endorsement and that whole process is a “proceeding”9. As that process is begun by the issue of the notice, the issue of that notice itself is properly to be characterised as a “proceeding”. In reaching this conclusion, the primary judge relied on a dictionary definition for “proceeding”. That definition was: “a particular action or course of action” together with “a piece of conduct or behaviour; a transaction”.10 [16] The primary judge further held that the notice was a proceeding “for the imposition of a penalty”. In reaching this conclusion, the primary judge relied on the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Rich v Australian Securities and Investment Commission11 to find that whilst proceedings to suspend or cancel an endorsement may have a public interest component in that such action protects the public, the nature of the order sought, namely, cancellation or suspension of an endorsement required by a pharmacist to practise as a pharmacist, meant the notice was “a proceeding for the imposition of a penalty” within the meaning of s 30(5)(b) of the Act. The effect of denial of the right to practise as a pharmacist consequent upon wrongdoing “must be seen as penal”.12 5 Health (Drugs and Poisons) Regulation 1996, s 18(1). 6 Regulations, s 15. 7 Regulations, s 23. 8 Regulations, s 24(1). 9 Judgment at [18], AB 110. 10 Judgment at [19], AB 110. 11 (2004) 220 CLR 129 at paras 28-37. 12 Judgment at [30], AB. -- 5 of 12 -- 6 Appellant’s contentions [17] The appellant submits the primary judge erred in finding that the issue of the notice should be characterised as a “proceeding” as the context in which that word appears in s 30(5) of the Act meant it ought to have been given the specific narrower legal meaning provided in the dictionary, namely, “a legal action or process; any act done by authority of a court of law; a step taken by either party in a legal case …”.13 It was further submitted it would not have been Parliament’s intention, in making provision for the limited use immunity contained in s 30(5) of the Act, for that immunity to operate in a broader fashion than the common law privilege. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission,14 Gleeson CJ, Gaudron, Gummow and Hayne JJ said there was little reason why that privilege “should be recognised outside judicial proceedings”. That view was reinforced by the majority in Rich at 142 [24]. A “proceeding” in s 30(5)(b) of the Act refers to a judicial proceeding for the imposition of a penalty. [18] The appellant also relied on the process undertaken in s 24 of the Regulations to support a contention that that action was not a “proceeding”. It was submitted the decision of the High Court in Albarran v Companies Auditors and Liquidators Disciplinary Board15 supported this contention. [19] The appellant further contended that even if the notice did constitute a “proceeding”, neither the notice nor the overall process is properly described as “a proceeding for the imposition of a penalty”. In support of this contention, the appellant relied upon the distinction drawn in the disciplinary jurisdiction as to the specific purpose for which disciplinary powers are exercised, namely the protection of the public in the public interest, not for the punishment of an individual.16 The appellant submitted this distinction remained relevant and had been confirmed by the High Court in Albarran. [20] The appellant submitted the primary judge erred in finding that the approach adopted in Rich resolved the matter as in Rich the High Court was careful to note that the issue in that case was “about the application of these privileges to discovery in judicial proceedings. No wider question arises”.17 In Albarran, the High Court reinforced the confines of Rich. Respondent’s submissions [21] The respondent submits the primary judge correctly held the issue of the notice was “a proceeding” as any decision of the appellant in respect of the notice may ultimately conclude in a de novo hearing in the Queensland Civil and Administrative Tribunal (“QCAT”). The words “a proceeding” may encompass both judicial and administrative proceedings.18 The statutory scheme of s 30 of the Act is to protect an examinee from the consequences of the abrogation of the privilege against self-incrimination and the penalty privilege by limiting the use of the evidence thereby created and that as such administrative proceedings fall within “a proceeding”. The fact the evidence was provided to Queensland Health does not 13 Appellant’s outline of submissions at [23]. 14 (2002) 213 CLR 543 at 553-554. 15 (2007) 231 CLR 350. 16 Appellant’s outline of submissions at [37]. 17 Appellant’s outline of submissions at [40]. 18 Respondent’s submissions at [4]-[5]. -- 6 of 12 -- 7 support a submission it was Parliament’s intention that the evidence may be used by that body in administrative proceedings, as s 25A of the Act means bodies such as Queensland Health may have access to the evidence, but are subject to the restrictions in s 30(4) and (5) of that Act as to the use that can be put to the answers given in examination. [22] The respondent further submitted that the action taken constituted “a proceeding for the imposition of a penalty” as “orders other than pecuniary orders may impose a ‘penalty’”.19 The notice may lead to the cancellation of a pharmacist’s endorsement, removing from him the right he currently holds to dispense medicines, thereby adversely affecting his livelihood, the removal of such a right would constitute the imposition of a “penalty”. Discussion [23] The appellant’s contention that the notice was not properly to be characterised as “a proceeding” can be dealt with shortly. The dictionary definition of “proceeding” includes both a narrow and a wider definition. As the word “proceeding” is capable of such a variety of meanings, its meaning in any particular case is to be derived from the statutory context and objects of the legislation in question.20 [24] The statutory context of the word “proceeding” in s 30(5) of the Act, when viewed in light of the object of the Act, which include the establishment of an investigative body to investigate federally relevant criminal activity, which is given broad coercive powers with limited use of information so obtained, supports the broad definition adopted by the primary judge. [25] That the notice forms part of a “proceeding” is also supported by the provisions of the Regulations. The taking of steps to cancel or suspend an endorsement of a pharmacist is subject to a de novo review by QCAT.21 The appellant accepted an application for review before QCAT would be “a proceeding”.22 To suggest that review is a proceeding, but the initial steps taken, which result in that review, are not would result in the incongruous position whereby the delegate, in reaching a decision whether to cancel or suspend an endorsement, may rely upon evidence given before the ACC examiner, but QCAT, in reviewing that decision de novo, could not receive such evidence. Such a result could not have been the intention of Parliament. [26] The breadth of the term “proceeding” also informs as to the meaning of the words “admissible as evidence”. Those words are not to be constrained to evidence admissible in court proceedings. “Evidence” includes material relied upon in “a proceeding”. In context, that can include the facts and circumstances and documentary material relied upon in the proceeding. [27] The true issue in dispute is whether the notice constitutes a proceeding “for the imposition of a penalty”. Resolution of that issue requires a consideration of the privileges against self-incrimination and exposure to penalties, the nature of the process involved in a cancellation or suspension of an endorsement, and the extent of the use immunity set out in s 30(5) of the Act. 19 Respondent’s submissions at [27]. 20 R v Deemal [2010] 2 Qd R 70 at 77 [19]. 21 Queensland Civil and Administrative Review Tribunal Act 2009 (Qld), s 20. 22 Transcript 1-28/20. -- 7 of 12 -- 8 [28] The privilege against self-incrimination is deeply entrenched in our common law. Similarly, the privilege against exposure to penalties, although having its origin in the rules of equity relating to discovery, has long been recognised by the common law.23 Penalties which attract the privilege are not confined to monetary exactions. The term “penalty” embraced the wider concept of penalty as understood in the law of relief in equity against the exaction of penal payments in contractual disputes and the forfeiture of property interests.24 Exposure to loss of office is exposure to a penalty or forfeiture.25 An order disqualifying a person from acting in the management of the corporation on the ground that the person has contravened the law is also to seek a penalty or forfeiture.26 [29] Whilst the privilege against exposure to penalties relates to a broad range of “penalty”, a distinction has long been recognised between “punitive” and “protective” proceedings. Under that distinction a “protective” proceeding was not punitive or penal. That distinction continues to exist,27 although adopting such a classification diverts attention from the relevant question about whether the privilege against exposure to penalties ought apply to a particular case.28 [30] The application of the privilege against self-incrimination in relation to a penalty imposed in disciplinary proceedings has been recognised in Police Service Board v Morris.29 Although the existence of a right to silence or a privilege against self- incrimination in disciplinary proceedings was subsequently doubted in Bowen- James v Walton,30 those comments need to be followed with caution in light of Rich.31 [31] Whilst the High Court in Albarran recognised the ongoing distinction between disciplinary action for the protection of the public and an adjudication of guilt or the infliction of punishment, that discourse occurred where the court was considering whether a provision of the Corporations Act 2001 was invalid on the ground that the power to impose a penalty or otherwise to punish a person was exclusively part of the judicial power of the Commonwealth. That context may be contrasted to what was being considered by the High Court in Rich. The joint majority judgment in Albarran specifically noted that Rich “concerned a different field of discourse, namely, the application of the body of law concerning privileges against penalties and forfeitures to court proceedings …”.32 [32] In assessing whether the privilege against exposure to penalties is applicable, a consideration of the kinds of relief sought in the proceeding must be undertaken. Neither the purpose which the applicant may have in seeking relief nor the effects on person’s other than the appellants of obtaining that relief bear upon whether the 23 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 336; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553-554 [13]. 24 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 143 [26]. 25 Rich at 144 [28]; Police Service Board v Morris (1985) 156 CLR 397 at 403. 26 Rich at 144 [29]. 27 Albarran. 28 Rich. 29 (1985) 156 CLR 397 at 403. 30 New South Wales Court of Appeal, 7 August 1991, unreported. 31 Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; see also Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451. 32 Albarran at 356 [9]. -- 8 of 12 -- 9 proceedings expose the individual to penalties.33 Accordingly, in considering whether the general principle of privileges against exposure to penalties has application in a particular case, it is not of assistance to examine why the orders sought in the proceedings might be made or what purposes might be achieved by their making. Whether it is possible to characterise proceedings as having a purpose of protecting the public is not determinative. Instead, attention must be focused upon the nature of the orders sought.34 [33] In determining whether “a proceeding” is properly to be characterised as “for the imposition of a penalty” when considering the use immunity under s 30(5) of the Act, it is necessary to have regard to the nature and context of the proceeding in question rather than the purpose for which orders may be sought. [34] The nature and context of the notice is that it is part of a process by which the appellant can suspend or cancel the authority of the respondent to deal with specified drugs as part of the practice of his profession as a registered pharmacist. Factors relevant in a determination of whether that authority ought to be suspended or cancelled are broad ranging. They may properly be characterised as including factors relevant to the respondent’s “fitness” to be the holder of such an authority. Assessment of the “fitness” of a person to hold an endorsement under the Regulations is plainly in the public interest and may properly be characterised as being for the protection of the public. However, the issue before this Court is not whether the respondent is a suitable person to hold that authority. The question is whether the respondent, having been compelled to provide information to the ACC after claiming privilege, is entitled to the protection of the use immunity provided by s 30(5) of the Act. [35] Section 30 of the Act was introduced by amendment in 2001.35 Prior to that amendment, the Act (then known as the National Crime Authority Act 1984) provided that the privilege against self-incrimination may be used to found a reasonable excuse for answering a question or providing a document or thing except in certain circumstances. Relevantly, the then s 30 provided: “(4) Subject to subsections (5), (7) and (9), it is a reasonable excuse for the purposes of subsection (2) for a natural person - (a) to refuse or fail to answer a question put to him or her at a hearing before the Authority; or (b) to refuse or fail to produce a document or thing that he or she was required to produce at a hearing before the Authority, that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him or her. (5) It is not a reasonable excuse for the purposes of subsection (2) for a person - 33 Rich at 144 [31]. 34 Rich at 146 [34]-[35]. 35 National Crime Authority Legislation Amendment Act 2001 (Cth), s 12. -- 9 of 12 -- 10 (a) to refuse or fail to answer a question put to him at a hearing before the Authority; or (b) to refuse or fail to produce a document or thing that he or she was required to produce at a hearing before the Authority, that the answer to the question or the production of the document or thing might tend to prove his or her guilt of an offence against a law of the Commonwealth or of a Territory if the Director of Public Prosecutions has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against him or her for an offence against a law of the Commonwealth or of a Territory other than proceedings in respect of the falsity of evidence given by the person and the Director of Public Prosecutions states in the undertaking - (c) that, in his or her opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and (d) the general nature of those grounds. … (7) It is not a reasonable excuse for the purposes of subsection (2) for a person - (a) to refuse or fail to answer a question put to him or her at a hearing before the Authority; or (b) to refuse or fail to produce a document or thing that he or she was required to produce at a hearing before the Authority; that the answer to the question or the production of the document or thing might tend to prove his or her guilt of an offence against a law of a State if the Attorney-General of that State, or a person authorized by him or her, being the person holding the office of Director of Public Prosecutions, or a similar office, of that State, has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first- mentioned document or thing, will not be used in evidence -- 10 of 12 -- 11 in any proceedings against him or her for an offence against a law of that State other than proceedings in respect of the falsity of evidence given by the person and the Attorney- General of that State, or the person so authorized, states in the undertaking - (c) that, in his or her opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and (d) the general nature of those grounds. … (9) For the purposes of subsection (2) - (a) it is not a reasonable excuse for a corporation to refuse or fail to produce a document or thing that the production of the document or thing might tend to incriminate the corporation; and (b) it is not a reasonable excuse for a natural person to refuse or fail to produce a document that is, or forms part of, a record of an existing or past business (not being, in the case of a person who is or has been an employee, a document that sets out details of earnings received by the person in respect of his or her employment and does not set out any other information) that the production of the document might tend to incriminate the person. (10) Subsections (5), (7) and (9) do not apply where the offence in respect of which the answer to a question or the production of a document or thing, as the case requires, might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of.” [36] The amendment of s 30 to its present form broadened the powers of the ACC examiner to obtain information under compulsion with a corresponding extension of the use immunity. The Explanatory Memorandum noted: “Proposed subsection 30(5) will mean that, in the circumstances set out in proposed subsection 30(4), the answer, document or thing, cannot be used as evidence against the person, except in limited circumstances. However, contrary to the current position, any evidence that is derived from that answer, document or thing may be used against the person. The Authority is unique in nature and has a critical role in the fight against serious and organised crime. This means that the public interest in the Authority having full and effective investigatory powers, and to enable, in any subsequent court proceedings, the use against the person of incriminating material derived from the evidence given to the Authority, outweigh -- 11 of 12 -- 12 the merits of affording full protection to self-incriminatory material. The proposed provision is comparable to section 68 of the Australian Securities and Investments Commission Act 1989.” [37] The reference to the ability to use any evidence that is derived from the answer, document or thing is significant. It draws a distinction between use in proceedings of the answer, document or thing directly provided under compulsion and the use of that material in further investigations undertaken by the ACC. That distinction serves to explain the power to allow publication of the evidence in s 25A(9) of the Act. That publication is subject to the use immunity powers. [38] An understanding of the derivative use of any material obtained under compulsion aids in a determination of whether the notice issued by the appellant constituted a proceeding “for the imposition of a penalty”. Whilst the appellant’s conduct may properly be a matter for consideration in determining whether to cancel or suspend his endorsement for the protection of the public, the proceedings instituted by the appellant are properly to be characterised as involving the imposition of a penalty, as that term is used in s 30(5) of the Act. The nature of the relief sought is to remove from the respondent an existing entitlement with consequent effects on his ability to practise his profession. The appellant sought to do so by relying upon evidence given under compulsion. As such, the cancellation or suspension of an endorsement is punitive in effect.36 This conclusion follows from the recognition in Rich that when considering the application of a privilege against exposure to penalties, characterisation of proceedings as protective is not determinative. [39] The fact that at the end of the respondent’s examination, the ACC examiner ordered that a transcript of the respondent’s evidence be provided to Queensland Health does not support a contention that any action to be taken by Queensland Health in relation to that material would not constitute a proceeding for the imposition of a penalty. Provision of that transcript was consistent with the intention of the Act that answers, documents or things provided under compulsion may be used by a relevant authority as the basis for further investigation. Section 30(5) specifically prohibits the direct use of the answer, document or thing in a proceeding. [40] The evidence provided by the respondent under compulsion cannot be used in a proceeding for the imposition of a penalty. The notice issued by the appellant was issued as part of a process whereby the respondent’s authority to undertake essential functions of his practice as a registered pharmacist may be suspended or cancelled by the appellant. That proceeding, in its context, is properly to be characterised as a proceeding “for the imposition of a penalty”. The evidence provided by the respondent to the ACC examiner under compulsion could not properly be used as a basis for the notice. [41] The primary judge correctly held the notice was invalid, and that the evidence given by the respondent to the ACC examiner under compulsion could not properly form part of that notice. [42] The appeal should be dismissed with costs. 36 cf Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523. -- 12 of 12 --