More on Bongiorno’s challenge

Further to this previous post, I’ve belatedly noticed that the Charter issue relating to the coercive questioning powers in the Major Crimes (Investigative Powers) Act 2004 is discussed in the Annual Report of the Special Investigations Monitor (SIM). Here’s the discussion:

During one application for a CPO in the period under review, His Honour Justice Bongiorno raised the possible conflict between s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and s. 39 of the MCIP Act. The application concerned a person who was already charged by police for the offences the subject of the application for the coercive powers order. His Honour expressed concern that Victoria Police sought to summon that person to attend for examination and therefore be compelled to testify against himself/herself or to confess guilt contrary to s. 25(2)(k) of the Charter. Accordingly, His Honour sought written submissions on the matter and adjourned the application for the coercive powers order until resolution of the potential conflict.

Subsequent to this application for a CPO before Justice Bongiorno, a further two applications for a CPO and an application for an extension of a current CPO were made before His Honour Justice Cummins. The two applications for a CPO were adjourned on the grounds that the same issue as that raised by Justice Bongiorno applied. In respect of the application for an extension of a current CPO, His Honour Justice Cummins imposed a condition in the following terms:

“Any person who has been charged with any offence linked to the organised crime offence – the subject of the CPO – will not be summoned to give evidence (at an examination) until resolution of the issue with respect to s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006.”

The Chief Examiner has advised the SIM that on the instructions of the Chief Commissioner of Police, written submissions, to which the Solicitor General has contributed, have now been compiled by the Victorian Government Solicitor’s Office and submitted to His Honour Justice Bongiorno for consideration. Important issues are involved which are yet to be determined by the Supreme Court.

This fits what I previously discussed. It’d be great to see those written submissions. I’ve never entirely understood why these things aren’t published somewhere. How likely is it that the Solicitor-General’s arguments are going to be full of confidential information? 

What is of particular interest is the news that Cummins J imposed a condition on an existing CPO barring its use in relation to charged defendants. Previously, I couldn’t see how a potential breach of the Charter required that this step was taken. But I hadn’t noticed this provision of the Major Crimes (Investigative Powers) Act 2004:

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.

It could be argued that the interpretation mandate now requires that s8(b)(ii) be interpreted to require the Supreme Court to refuse an order (or impose conditions on it) if to do otherwise would be to authorise a breach of Charter rights. On the other hand, though, there’s a question of whether or not this interpretation is tenable, given the balancing test between crime-control and due-process envisaged by s8(b) and the apparent purpose of the legislature to strike such a balance. Presumably, this issue could be resolved by some close attention to Charter s. 7(2).

Interestingly, the same SIM report discusses a court judgment, CR v Attorney-General [2007] VSC 263, about the limits of the Supreme Court’s power to impose conditions on a CPO:

9(1) A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).

(2) A coercive powers order must also specify-… (g) any conditions on the use of coercive powers under the order.

Some cheeky judges started imposing a condition that any witness summons be made by the court (rather than by an alternative provision allowing the Chief Examiner to make the summons.) The Chief Ex challenged this as overriding the legislation’s permission for him to do exactly that. But the court held that the rights component of s8(b) allows courts to override the legislation in that way:

….in determining whether to make a coercive powers order, the Court may take into account the potential effect of the “use of the coercive powers” on the rights of members of the community, both in a general sense and specifically. A fortiori, in determining where the public interest lies under s. 8(b) the Court may, and should, take into account the potential effect, both general and specific, of the use by the Chief Examiner of the coercive powers under s. 15, should a coercive powers order be made. It is at this point, again, that s. 9(2)(g) comes into play. It is important to bear in mind that the conditions contemplated by that sub-section are conditions on “the use” of coercive powers under the coercive powers order. Those conditions are not to be found “in the air”. Rather, the Court would determine those conditions by a proper judicial consideration of the materials before the Court in assessing where the public interest lies under s. 8(b). Such an assessment itself would involve consideration by the Court of the effect of the “use” of coercive powers – including those under s. 15 – on the rights of the community. …. Indeed, it is only logical and sensible that, in assessing and determining the balance to be struck between the nature and gravity of the offence alleged, and the potential impact of the use of coercive powers under s. 8(b), the Court take into account any conditions which it might impose on the use of coercive powers under s. 9(2)(g). The imposition of such conditions might so ameliorate the potential impact of the use of coercive powers as to weight the public interest in favour of the making of the order, where the Court would otherwise not be minded to make such an order.

Fascinating. This would seem to sugest that a court has the power to override the provision allowing the Chief Examiner to examine people notwithstanding criminal charges. 

It is worth noting, though, that such limitations on the ‘use’ of the coercive powers orders could not directly resolve the major rights problem of the whole scheme: the potential for evidence ‘derived’ from coerced answers to be used in later proceedings. Neither the court issuing the orders nor the CE implementing them has power to control what happens down the track. That’s a matter for the court down the track (who won’t be bound by provisions like s8(b), unless the Charter s. 6(2)(b) argument somehow gets up.) So, if derivative evidence is a problem, then the only approach a court could take pursuant to s8(b)(ii) is to impose a condition like the one Cummins imposed or just not issue the order.

Justice Kaye took the view that its task will involve striking a balance on a case-by-case basis. The court issuing the CPO:

must by appropriate analysis, only impose conditions which, on the facts, are necessary to ensure that there is an appropriate balance between, on the one hand, the need to use the coercive powers provided by the Act to properly investigate the alleged organised crime offence and, on the other hand, the potential impact on rights of members of the community resulting from the exercise of coercive powers under the coercive powers order sought from the Court”.

But is that true under the Charter?

If courts are acting in an adminstrative capacity in making CPOs, then they are bound by the conduct mandate to completely refrain from actions that limit rights. Interestingly, the Chief Examiner argued that courts do act administatively (which would, it was argued,  mean that the court has no ‘residual’ powers to circumvent the workings of the legislation.) Kaye pointedly didn’t resolve this issue.  I guess Tate will run the same argument that was adopted in Sabet: that this will all have to be resolved by pondering the High Court’s Chapter 3 jurisprudence. But, as she represented the CE in this case – alas, defeated by the A-G himself, acting as contradictor – it’s hard to see how she could now claim that the court was acting in a non-administrative capacity (and, hence, Charter-free, to protect the precious common law.) But maybe she’ll raise Charter s. 38(2) (at long last?) Or will she run Charter s. 7(2) as a defence to the conduct mandate, as usual?

The SIM, it must be said, is upbeat about the rights-oriented reading given to s9(2)(b) by the court:

The judgment provides an important and valuable analysis of the legislation with which, with respect, the SIM agrees. The decision has been accepted by the Chief Commissioner and the Chief Examiner and was not subject to appeal.

But I wonder if all these fine folks had contemplated the possible impact of the Charter way back then, six months before it fully commenced? Interesting times…

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