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  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.]