Warren’s Charter

No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing,
might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other 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) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) 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.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights:

  • Warren rejected the applicant’s miserly argument that the meaning of the Charter’s self-incrimination rights should reflect the miserly statutory practice in Australia of routinely abrogating the privilege against self-incrimination and only supplying a use immunity. Rather, the Charter’s rights (whether derived from 24(1) or 25(2)(k)) should be read as reflecting the common law. (I’d prefer if she’d said ‘at least’.)
  • Warren rejected the applicant’s miserly argument that the Charter’s self-incrimination rights should reflect narrow readings of those rights in, inter alia, Hong Kong and the UK, rather than the wider readings in the US and Canada. To the contrary, she held, the Canadian decisions are the most apt because they share our reasonable limits jurisprudence. The fact that Canada’s Charter is constitutional doesn’t make a difference to interpretation, just remedies. Also, the Honkers decisions weren’t that compellingly reasoned. (I’d also say that they involved a significantly narrower questioning scheme – stock market regulation – with a qualitatively different function.)
  • Warren rejected the applicant’s miserly argument that existing Victorian procedural and evidence law provides sufficient protection against derivative self-incrimination. In one of the most thoughtful analyses of the limitations of Victorian evidence law I’ve ever read, she pointed out that existing fairness jurisprudence is directed to the trial itself, not methods of obtaining evidence, except for the public policy immunity, which, as a discretionary remedy provides much less protection than an immunity. Likewise, the courts’ powers to prevent an abuse of process are too narrow to meet the wider concerns protected by the privilege. (My god, did I write this?)
  • Warren therefore rejected the applicant’s arguments that s39’s abrogation of the privilege against self-incrimination somehow doesn’t abrogate the privilege. Broadly, she held that the Charter’s protections should be interpreted as providing a real, not fictional, protection, and that no such real protection could be magicked up using ordinary interpretation principles or relying on vague generalisations about court powers. (Swoon.)
  • Now, onto reasonable limits. Warren here writes a lovely decision that works its way through the 7(2) factors. She noted the burden on the applicant and the applicant’s failure to actually demonstrate much about the horrors of organised crime. Conceding that the MC(IP)A is a rational way of fighting the gangs, she then turned to proportionality – Ha, Hollingworth! – and concluded that the goal could still be achieved with derivative immunity. Again, she did a tour de force of derivative immunity law, pointing out that the prosecution could always seek to convince a court that they would have got the tainted evidence anyway. (Best 7(2) analysis ever! Actually, it’s the only s7(2) analysis ever.)
  • Now, onto interpretation. She held that the interpretation issue here is only a little bit beyond the common law, which has long required pretty clear statutory language to abrogate the privilege against self-incrimination. Rather than wading into Ghaidan, she left that to another day, correctly noting the the ACTCA has dissed Ghaidan. Instead, she correctly saw that she could save the MC(IP)A either by reading s39 as preserving derivative use immunity (which it was silent on) or by following Bongiorno’s suggestion. She opted for the former, because it provides more protection to defendants (as it extends to defendants who are not yet charged) while simultaneously giving a freer hand to the Chief Examiner. Brilliant. In deciding this, Warren rejected the applicant’s miserly argument that s25(2)(k) only applies once the defendant has been charge; to the contrary, she correctly held, it protects present and future defendants alike. (Swoon!)
  • Having resolved the Charter problem using s32, she didn’t have to make a declaration of inconsistent interpretation (yet! How will the government respond to this?)
  • And she did all this without rabbitting on at length about abstract Charter issues (Bell!)

For those keeping score, the result isn’t exactly what I predicted in my blogging. I thought that s39 couldn’t be saved by reinterpretation and that a declaration would have to be made. I also thought that there might be room for a Charter s. 38 argument but Warren doesn’t discuss that. [EDIT - Actually, she does at footnote 20.] SARC’s reports were also a little narrower in their readings of Charter s25(2)(k) and a bit broader in their take on Charter s7(2).

Anyway, this is genuinely the best thing that’s ever come from the Charter so far. Indeed, it’s one of the few things to genuinely flow from the Charter at all to date. Between this and Momicilovic, maybe we’re at a tipping point here. (Of course, I’m bracing for disappointment.)

But I wonder if the human rights lobby will be shouting these wonders – which, after all, benefit suspected organised criminals facing charges and will lead to the exclusion of probative evidence of their guilt – from the rooftops. How will the public cope with a real feelgood human rights story? (Indeed, I wondered about this in relation to Bongiorno’s challenge in my Inside Story piece almost a year ago:

The case bristles with political dangers. Attorney-general Rob Hulls could respond by raising countless technical arguments to deflect the threat or simply exercise his prerogative to ignore any judicial declarations of Charter incompatibility. Or he could step back and allow the courts, the parliament and the public to engage in the human rights dialogue that is meant to be the statute’sraison d’être. It’s a step by the Charter’s founding father that would exhibit considerable faith in Victorians, courage in the face of political risk and trust in his Charter.

Over to you Rob (and Phil.)

[EDIT:  Over a month later and still no media release from VEOHRC about the stunning outcome of its intervention in this case. And yet, the Commission does have time to proudly announce unsurprising and non-determinative tribunal rulings where VEOHRC didn't even intervene. I guess some human rights are more equal than others.]

13 thoughts on “Warren’s Charter

  1. I believe Warren CJ has made a serious error that could be fatal in an appeal. She has overlooked s 47 of the Act, which inter alia states:

    “47 Documents or other things produced to Chief Examiner

    (1) If a document or other thing is produced at an examination or to the Chief Examiner in accordance with a witness summons, the Chief Examiner may inspect the document or thing and may then authorise in writing a member of the police force to do any one or more of the following—

    (a) inspect the document or thing;

    (b) in the case of a document, take extracts from it or make copies of it, if the member of the police force considers it necessary for the purposes of the investigation of the organised crime offence;

    (c) take any photographs or audio or visual recordings of the document or thing that the member of the police force considers necessary for the purposes of the investigation of the organised crime offence;

    (d) subject to this section, retain the document or thing if, and for so long as, the member of the police force considers that retention of the document or thing is reasonably necessary—

    (i) for the purposes of an investigation into an organised crime offence; or

    (ii) to enable evidence of an organised crime offence to be obtained for the purposes of any proceeding in relation to that offence.

    (2) For the purpose of doing anything referred to in subsection (1)(a), (b) or (c), the Chief Examiner may authorise the member to retain the document or other thing for a period not exceeding 7 days that is necessary to do that thing.”

    Warren CJ’s interpretation of s 39 is incompatible with s 47(1)(d)(ii).

    In my view, the provisions of s 47 and the following extrinsic material (from the relevant Second Reading Speech) lead irresistibly to the conclusion that allowing derivative use of the relevant compelled evidence is one of the purposes of the Act:

    “[t]he limitation on the use of information or evidence obtained will not extend to the use of other information or evidence derived as a result of those answers in a criminal prosecution against the witness, nor the use of those answers in a prosecution against a third party. Whether the evidence can be used in other proceedings will depend upon the admissibility of that evidence as determined in accordance with the ordinary rules of evidence.”

    I agree with your initial view expressed in your earlier blogging. Warren CJ should have issued a declaration of inconsistent interpretation.

  2. Yes, I agree that Warren CJ’s ruling is untenable when it comes to documents. The right against self-incrimination shouldn’t apply to documents at all, but rather only to the act of producing them (which reveals, e.g. that the person’s knowledge of where the document are and perhaps what’s in them.) The fault is in s39 which, unlike the Commonwealth anti-terrorism statute it’s based on, grants use immunity to subpoened documents, rather than to the production of them. Warren CJ’s extension of derivative immunity compounds this existing flaw. I don’t think s47 (which isn’t about admissibility) proves that point on its own, but it certainly exemplifies the problem.

    More broadly, I still think that a declaration of inconsistent interpretation was the correct result (subject to Charter s. 38 avoiding the problem in a backhand way.) But that’s because I (and you) take a much narrower view of Charter s. 32 than most of the Charter folks here in Victoria. Everyone before Warren CJ, i.e. the government and the Commission, prefers interpretation to declarations; both parties see declarations as a potential political disaster (though for slightly different reasons.) People who are having their rights infringed (like the mystery defendant in this case) feel the same, because they see declarations as worthless. I feel differently, because I see declarations as the most transparent version of the rights dialogue…

    Anyway, the documents point may well give the government a hook to either appeal or to amend the legislation. We’ll find out by the end of year, I suppose.

  3. Thanks Jeremy. It will be interesting to see the decision of the Court of Appeal in Momicilovic. However, regardless of that decision, I think that the scope of the s 32(1) interpretative obligation will remain uncertain until determined by the High Court.

  4. I have to admit that I was surprised that a declaration of inconsistent interpretation was not issued. Warren CJ notes the issues around Ghaidan, but states that her conclusions mean that she doesn’t have to decide the point. However, without that broader interpretive methodology, the court must surely be more constrained in reading additional words in to the statute. When the MCIPA is read as one of many provisions on the statute books, it appears that a trend emerges that Parliament makes a decision in each case whether to provide for use immunity or derivative use immunity. Indeed, a quick search through Victorian statutes with the words “self-incrimination” on Austlii suggests that derivative use immunity is the exception (granted, one shouldn’t be overhwelmed by the weight of regulatory statutes where the Hong Kong approach might be more appropriate). It therefore does not seem to me open to add derivative immunity in through normal interpretive principles that require the use of clear language in order to displace fundamental rights. It would only be through a more robust interpretive process that the words “and any evidence solely derived from the answer, document or thing” can be added to s39(3) of the Act.

    I was also interested to see Warren CJ’s statements at [161]-[162] concerning the application of the Charter to uncharged persons. I suspect that this involves a broader use of s25 than was involved in Sabet, though Warren CJ acknowledges the limited scope of the words.

    Finally, Warren CJ adopted what might be called the iterative method of interpretation espoused in Kracke (normal meaning, then engagement, then consistency, rather than rights compatible meaning straight up). My understanding is that this process came under fire in Momicilovic by the amicus submissions and appeared to receive a favourable hearing. But we’ll have to wait to see what the outcome of that decision was. If we are all very lucky, Jeremy may weaken his resolve again for that decision.

    Overall, I agree with Jeremy’s characterisation of the applicant’s arguments as “miserly”. Some day, hopefully, we’ll see the government make arguments that don’t seek the minimise, limit or avoid the application of the Charter.

  5. In Warren’s defence on Charter s. 32, the sort of interpetation she did here – reading in an immunity into a statute that abolishes a privilege – is something the common law does all the time. Arguably, doing the sort of reading in that the common law does (e.g. like reading in a mens rea into a criminal offence) doesn’t require swallowing Ghaidan whole. However, such a reading in is still problematic here because of the deliberate nature of Parliament’s decision to only provide a use immunity.

    Sabet is notably MIA in the whole judgment. Given that Sabet was, until now, the leading case on interpreting Charter s. 25, that omission has gotta be deliberate. Hopefully, we’ve seen the last of that lousy judgment. As I argued in my blogging on Sabet, Hollingworth’s reliance on the heading to s25 was never tenable in light of s25(2)(k). If the right against self-incrimination is limited to criminal proceedings, then what good is it? In contrast to that sort of pathetic reading down of rights, Warren’s willingness to read s25 as covering future charges, as well as present ones, is exactly the kind of boldness that is appropriate in a statute that contains a reasonable limits provision.

    This case really shows the weakness of the government’s litigation strategy to even serve the government’s own purposes. The best argument the government had going for it in this case was Charter s. 7(2) and, in particular, that derivative immunity wasn’t a reasonably available alternative because it is just too difficult to achieve in practice, i.e. that Chinese walls and the like would tie the investigative process in knots. That may be a winnable argument, but it required cogent evidence. Warren’s description suggests that the government barely tried. It’s yet another sign that the government’s lawyers are way short of a human rights culture.

    Yes, Warren did do the ‘ordinary meaning first; Charter second’ approach that many (including me) disagree with. But doing so had one major advantage here: it made it perfectly clear that the present result flowed ONLY from the Charter and would not have been reached otherwise. That’s a potent political point (and one I imagine that many would wish had not been made so clearly.)

  6. One further thought: a different problem with Warren’s solution is the potential for prosecutions outside of Victoria. The UEL’s compelled self-incrimination regime specifically excludes foreign self-incrimination, because immunity can’t be guaranteed outside the Australian legal system. The same is true for immunity granted by Charter-inspired re-readings of s39, no? So, surely the only option for those is a declaration…

  7. The following extracts from Alert Digest No 9 of 2004 of the Scrutiny of Acts and Regulations Committee provide further compelling evidence that allowing the relevant derivative use is one of the purposes of the Act:

    “The Committee notes this extract from the explanatory memorandum –

    However, this does not prevent information that is derived from an answer given or a document or thing produced by the witness being admissible against the witness in any proceeding. That is, the person will not have what is referred to as a “derivative use immunity”. The answer given or document or thing produced (which cannot be used as evidence against the witness in subsequent proceedings) may lead to other information that incriminates the witness (which may be used as evidence against the witness in subsequent proceedings). A court could admit derived information, subject to the court’s general discretions and the rules of evidence.

    The Committee notes that under the proposed Act a person will be compelled to give evidence that may subject that person to a pecuniary penalty under the Confiscation Act 1997 or to give evidence that is not protected by the privilege against self-incrimination (derivative use) which may lead to further evidence, independently obtained inculpating that person with an offence. The Committee also notes that the provisions (with certain safeguard provision) apply to children between 16 and 18 years.

    The Committee is of the opinion that the provisions may abridge the right to silence and the privilege not to give self-incriminatory evidence to a person in authority.

    The Committee also notes the Second Reading Speech makes it clear that there is no immunity for ‘derivative use’ of information obtained in the course of an examination. The Committee will seek clarification from the Minister whether that fact will be clearly communicated to a witness in language capable of understanding by a reasonable person as part of the preliminary requirements before questioning commences as may be contemplated by clause 33.

    The Committee will seek further advice from the Minister concerning the possible abrogation of long standing common law rights and why these provisions are justified in the context of the objectives of the proposed legislation.”

  8. James, there’s no doubt that Parliament intended in 2004 to deny derivative use immunity to examinees. That much is clear from Warren’s analysis of the ordinary meaning of s39. The debate, instead, is over what Parliament intended in 2006 when it enacted Charter s. 32. Yes, the words ‘consistently with its purpose’ are there, but the word ‘purpose’ is not defined. Is it talking about whatever Parliament’s intention was on the very point of contention (as you argue) or it it talking about some other intention, such as Parliament’s desire to create a new and effective tool for investigating organised crime? Warren’s implicit view is that Charter s. 32 refers to the latter.

    A couple of quibbles, though, on your reliance on SARC’s Alert Digest. One of the few sensible bits of Sabet was Hollingworth J’s skepticism about what SARC’s commentaries actually contribute to understanding the meaning of a statute. In short, it cannot be assumed that what SARC says reflects Parliament’s intentions. An arguably more meaningful SARC-sourced contribution is the publication of Ministerial responses to its queries, which presumably do more closely reflect Parliament’s thinking (or, at least, will be more likely to be assumed to be gospel by Parliament.)

    Interestingly, in this case, the Minister’s response on the derivative use immunity issue (published in Alert Digest No 1 of 2005, question 1(b)) completely fails to give a specific justification for it, instead just delivering some generalised ‘it’s just our policy’ gibberish. Arguably, that sort of half-hearted justification is a sign that Parliament wasn’t really committed to the whole derivative-use issue. Arguably. But a further complication here – and a typical problem for SARC correspondence – is that the correspondence only arrived after the bill had been enacted, so how can it really cast light on Parliament’s intention at all?

  9. Thanks Jeremy.

    Although the Minister’s response was published after the bill was enacted, that does not change the fact that the earlier Alert Digest alerted Parliament to the omission of derivative use immunity.

    The significance of the earlier Alert Digest is that it proves that the omission of the immunity was not the result of any inadvertence or oversight on the part of Parliament. Furthermore, the clause and the omission were debated in Parliament.

    The Minister’s response published in the later Alert Digest is irrelevant, as is the quality of his arguments in that response.

    Warren CJ said that the protection provided by her interpretation does not go against the “grain” of the legislation. But consistency with the “grain” of the Act is not enough. The Charter expressly requires consistency with the “statutory provision”. Clearly, one of the purposes of s 39 is to increase the effectiveness of the fight against major crime by allowing the relevant derivative use.

    In my view, Warren CJ’s interpretation does not satisfy the requirement that the interpretation must be consistent with the purpose/s of the statutory provision being interpreted.

    It would be nonsense to argue that the purpose of the Charter overrides any inconsistent purpose of other legislation. If that were the case, the following words in s 32(1) of the Charter would be otiose: “So far as it is possible to do so consistently with their purpose”.

  10. Well, it could have been the result of Parliament being inadvertent or overlooking SARC. Anyway, didn’t Warren quote the 2R speech as specifically mentioning the rejection of derivative use immunity? Surely, that’s the best evidence of Parliamentary intention.

    No, I didn’t say that the purpose of the Charter overrides all inconsistent legislative purposes. I said that what the Charter may override some, depending on whether or not they fall within the word ‘purpose’ in Charter s. 32. As Evans and Evans argue in their text, the problem is that purposes come at a variety of levels: overall goals, narrower ideas about the effectiveness of achieving them, specific details. Derivative use is arguably the third or maybe the second of these, while Charter s. 32′s purposive gloss is about the first of these. Arguably. I’m no zealot on these things.

    It’s true that Warren’s ‘grain’ test is very Ghaidanish, which doesn’t fit with her purported refusal to choose between Ghaidan and the narrower ACT view.

    • I think the argument that Parliament inadvertently omitted to provide derivative use immunity is implausible and unrealistic, given the wording of s 39, the provisions of s 47, the Second Reading Speech, the Explanatory Notes, the earlier Alert Digest and the debate on the clause and omission.

      Nevertheless, I thank you for sharing your views with me. I suppose we’ll both have to wait until the courts finally settle these difficult issues.

  11. Sorry to bug you again Jeremy. I’ve been thinking about this case and want to add a few more comments which I think are important.

    In my view, Warren CJ’s decision is difficult to justify even if ‘purpose’ is given a broad interpretation or is taken to mean ‘thrust’.

    It seems reasonably clear that the general ‘purpose’ or ‘thrust’ of the Act is to increase the effectiveness of the fight against major crime by allowing authorities to use certain coercive powers, but limiting the use of the compelled evidence in ways that do not extend to derivative use immunity.

    Warren CJ’s interpretation is inconsistent with that purpose/thrust. Despite finding that it is a necessary implication of the Act that it allows the derivative use of compelled evidence, Warren CJ significantly modified s 39 by adding implied words which provide derivative use immunity. Her formulation of the immunity applies not just to the admissibility of derivative evidence against persons who have given compelled evidence under s 39, but also to the admissibility of derivative evidence against persons ‘affected by s 39’ unless the evidence is discoverable through alternative means.

    That formulation protects not only the ‘minnows’ compelled to testify, but also the ‘big fish’ exposed by the compelled evidence of others.

    There can be no doubt that Warren CJ’s interpretation of the Act has seriously weakened its intended operation and effectiveness in the fight against major crime. Her interpretation may be beneficial for the protection of rights, but in my view it is not consistent with the general purpose or thrust of the Act.

    You have indicated that the intention of the Charter is what matters – not the intention of the earlier Act. However, the intention of the Charter is that all statutory provisions must be interpreted consistently with their purpose. In order to identify the purpose of any particular statutory provision, it is necessary to consider the intention of the Parliament that enacted that provision. It is not a case of choosing between the intention of the Charter and the intention of the other legislation. In effect, the intention of the Charter is that the intention of the other legislation must be taken into account to identify the applicable purpose.

    You have also pointed out that reading in an immunity into a statute that abolishes a privilege ‘is something the common law does all the time’. It is true that the courts sometimes interpret legislation as not abolishing common law immunities. But where that occurs, it is the common law that provides the immunity – not the legislation. In contrast, Warren CJ considered that the relevant common law immunity was not sufficient and therefore manufactured a legislative immunity. The manufacturing of that immunity arguably constituted an exercise of legislative power. If so, the question arises whether the Charter or the Australian Constitution prohibits such an exercise of legislative power by the Victorian Supreme Court.

    It should also be noted that Warren CJ’s interpretation of s 39 has rendered s 47(1)(d)(ii) inoperative.

    • I must correct myself. In my last post I said: ‘Warren CJ considered that the relevant common law immunity was not sufficient and therefore manufactured a legislative immunity.’

      That’s incorrect. She manufactured a legislative immunity because the common law immunity had been abrogated and because she considered that the Act required re-interpretation to make it consistent with the Charter rights.

      However, the fact remains that she manufactured a legislative immunity.

      Moreover, in performing that lawmaking task she exercised a wide discretion in designing the immunity.

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