Bongiorno’s challenge

Last Friday’s Stateline brought some major Charter news:

As part of its election commitment, the Victorian Government introduced a Charter of Human Rights. Now Supreme Court judge Justice Bernard Bongiorno has questioned whether aspects of coercive powers legislation are in conflict with the Charter. He’s called for written submissions before deciding on the matter and has halted the granting of coercive orders to police in cases where the subject of the order has already been charged.

Um, ‘election commitment’? The Bracks Government was elected to its second term in 2002 and its third term in November 2006. Hulls’s Justice Statement announcing the Charter consultation was in May 2004 and the Charter was on the statute books in July 2006. George Williams has said that the short time frame was designed to fit in with ‘the electoral cycle’. So, let’s not engage in any revisionism, OK?

Anyway, assuming that Stateline can be trusted on the rest of its story, this is, at last, a significant Charter challenge to some significant Victorian legislation that has significant legs. Interesting that the Charter issue appears to have been raised by Bongiorno himself. That’d be the third time he’s done that (see here and here.) The challenge appears to be to the Major Crime (Investigative Powers) Act 2004, which was passed in the midst of the gangland war. (Don’t mention the war!) Its provisions allow for a ‘coercive powers order’ in the following situation:

5(1) Subject to subsection (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.

8 The Supreme Court may make a coercive powers order if satisfied-

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to- (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community.

The order allows the issuing of a ‘witness summons’ to anyone over 16. That’s an offer you can’t refuse:

37(1) A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse- (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner.

(2) A person appearing as a witness before the Chief Examiner must not- (a) at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or (b) without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

39(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.

So, what’s the problem? Well, it probably isn’t the Charter right to freedom of expression, because that it is glossed by a significant exception:

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-…  (b) for the protection of national security, public order, public health or public morality.

Rather, the likely ground of challenge is the Charter’s two rights affording a privilege against self-incrimination:

24(1) A person charged with a criminal offence… has the right to have the charge…  decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-… (k) not to be compelled to testify against himself or herself or to confess guilt.

The latter right might seem like the relevant right, given that the Chief Examiner is allowed to question people who are charged with a criminal offence:

29(2) The Chief Examiner may commence or continue to conduct an examination of a person despite the fact that any proceedings are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the examination.

Yikes. But the Major Crimes (Investigative Powers) Act 2004 contains a limited right against self-incrimination that, arguably, means that defendants who are coercively questioned won’t be testifying against themselves:

39(3) The answer… is not admissible in evidence against the person in- (a) a criminal proceeding…

Charter s. 24’s requirement of a fair hearing may well be broader (and, indeed, has interpreted as being a broader self-incrimination right by the European Court of Human Rights.) Accordingly, it may catch something missed by both s39(3) and Charter s. 25(2)(k): the use of derivative evidence. Section 39(3) does not prevent defendants from having evidence led against them that the police discovered because of their answers to coerced questions. So, for example, if a defendant is asked to reveal where she buried a body, she may well find the police adducing evidence of a forensic examination of that very body at her own trial a couple of weeks later. Arguably, such a hearing won’t be a fair one. It might even be argued that, in such circumstances, the coercive questioning is itself unfair, given that it may be very difficult for a defendant to prove that the police’s new evidence resulted from her coerced answers.

The Chief Examiner himself rocked up on Stateline to defend his questioning:

DAMIEN MAGUIRE: My personal view as a lawyer, but also based upon legal advice, is that the legislation under which we operate is compatible with the human rights charter, the Charter of Human Rights and Responsibilities. However, that’s a matter which may be subject to debate. But at the moment, the view is, I think if the Government, the police and myself, that the legislation is compatible with the human rights charter.

ANDREW MCINTOSH, OPPOSITION POLICE SPOKESMAN: It is a major embarrassment because all of that previous legislation that’s still in force that predated the Charter of Rights could easily have to be reviewed in light of the Charter of Rights and could lead to unforeseen consequences.

A hint of the legal advice Maguire was given appears in the Statement of Compatibility to the Police Integrity Bill 2008, which gives similar powers to the Director, Police Integrity:

In other jurisdictions equivalent rights to s 25(2)(k) have been interpreted as being limited to ‘testimonial disclosures’. It does not apply to the production of real evidence; for example, fingerprinting, compulsory breath testing, or compulsory production of documents. Further, the right has been interpreted as not precluding compulsory questioning, in separate proceedings, provided there is a use immunity: see particularly the decision of the Court of Final Appeal of Hong Kong (including Sir Anthony Mason) in HKSAR v. Lee Ming Tee [2001] HKFCA 14. The right clearly makes the accused a non-compellable witness in the criminal proceedings against him or her, and reflects the rule that confessions are admissible only if they are voluntary. However, the right does not preclude compelling an accused to be a witness in other proceedings provided there is an immunity protecting against the use of statements made in those proceedings in respect of the criminal proceedings relating to the accused. The use immunity is sufficient to ensure the accused is not indirectly made a witness against himself. Accordingly, the provisions are compatible with s 25(2)(k) of the charter.

The ability to use compulsory questioning powers in respect of persons who have been charged with an offence has the potential to prejudice a fair trial, particularly if the evidence of that person were to be published. However, the bill contains a number of safeguards to ensure a person’s fair trial is not prejudiced. Where the DPI is or becomes aware that other proceedings are on foot, clause 46(2) directs the DPI to take all reasonable steps to ensure that the conduct of the investigation does not prejudice the proceedings. A similar safeguard exists in respect of compulsory questioning powers of the SIM. Further, in determining whether an examination is to be open to the public, the director is directed to weigh the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements. Accordingly, the provisions are compatible with the right to a fair hearing in s 24(1) of the charter.

SARC, in its report on the bill, took issue with this part of the Statement:

The Committee observes that Australian evidence law does not provide a basis for a court to refuse to admit evidence merely because it was obtained as a result of information obtained during a compulsory examination of the person being tried. The Committee also observes that United States and Canadian courts have held that the use of evidence derived from compelled answers (where such evidence could not have been obtained but for those answers) is incompatible with defendants’ rights to due process in those countries’ respective constitutions: Kastigar v United States 406 US 441, (1972); R v S.(R.J.) [1995] 1 SCR 451. The Committee therefore considers that clauses 69(1) and 125(1) may limit the Charter rights of criminal defendants who have previously been compulsorily examined about subjects that could have led to or aided their investigation or prosecution to a fair hearing of the charge against them.

The Committee additionally observes that overseas decisions have held the admission of evidence derived from compulsory questioning in a later criminal prosecution of the person questioned may be compatible with fair hearing rights where the compulsory questioning was for a narrow regulatory purpose and directed to persons who had freely chosen to make themselves subject to such inquiries. For example, the Hong Kong decision cited by the Statement of Compatibility related to questioning by an agency responsible for regulating public share trading about public share trading activities and occurred long before any criminal prosecution.

The Committee notes… that the relevant function of the Director of Police Integrity is to ‘publicly expose serious misconduct’ (clause 6(2)(d)) and that ‘serious misconduct’ is defined by clause 3 to include any indictable offence punishable by imprisonment, any conduct that affects Victoria Police’s reputation or public confidence and any disgraceful or improper conduct (whether in the member’s official capacity or otherwise.) The Committee observes that the function in clause 6(2)(d) may extend to the investigation of virtually any crime committed by a police officer, including crimes that are committed privately by the police officer. The Committee also observes that the Director’s function in clause 6(2)(d) may also include investigating criminal conduct by private citizens, to the extent that that conduct relates to possible misconduct by a police officer. The Committee considers that clause 69(1), by permitting this function to be exercised through the compulsory self-incriminating questioning of all such persons and not providing for the inadmissibility in a later prosecution of such a person of evidence that would not have been obtained but for that questioning, may be incompatible with the Charter right of compulsorily questioned people to a fair hearing on any criminal charges they later face.

SARC asked the Minister some questions about this and posted the Minster’s response here. The Major Crimes (Investigative Powers) Act lacks the occupational tie in the Police Integrity BIll (unless you count ‘organised crime’ as an occupation!) The Act was, of course, passed before the Charter. SARC’s extensive report on it under its old ‘rights and freedoms’ term of reference is here.

It seems clear enough that there’s little room for the interpretation mandate to move on this issue and that any attempt to use the conduct mandate on the Chief Examiner (or the Supreme Court) will fail under Charter s. 38(2). Rather, what’s at stake is a declaration of inconsistent interpretation:

36(1) This section applies if- (a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) the Supreme Court has had a question referred to it under section 33; or (c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).

(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

I find Charter s. 36(1) to be a puzzling mystery (in cases where there isn’t room for reinterpration at least), but going on his past performance, I imagine that Bongiorno will brush those issues aside. Indeed, I’m quite baffled about Bongiorno ‘halting’ coercive orders pending his determination. Given that declarations have no legal effect, what is his justification for doing so?

The powers that be are upbeat about the challenge, which they see as a terrific opportunity for a public and parliamentary discussion on the otherwise little-known coercive powers regime:

JOSEPHINE CAFAGNA: Stateline understands the Supreme Court will decide on the matter in December. In the meantime, the Chief Examiner says it’s his hope the public becomes better informed about his role.

DAMIEN MAGUIRE: Certainly, yes, I think that is the reason that I agreed to take part in this interview. It’s very important that people – repeating myself – who understand that coercive powers are being utilised, but they are being utilised in a confined context and they are being utilised in a strict regime where independent persons and organisations are involved.

… KATHY BOWLEN: And in a statement released this afternoon, Attorney General Rob Hulls says if a court finds that a particular provision is incompatible with the Charter, it’s up to Parliament to decide whether to amend the law.

So, we might see a decision on a declaration of inconsistent intepretation before Christmas! That’d make a fine conclusion to an otherwise disappointing year.

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