Attorney-General's Reference No 1 of 2012

The Attorney-General referred a question of law to the Supreme Court of Tasmania concerning the admissibility of evidence obtained in contravention of the Tasmania Police Manual. The dispute arose during pre-trial proceedings where the admissibility of admissions made by an accused was challenged on the grounds that the questioning was not audio-visually recorded, contrary to a provision within the Police Manual. The trial judge had ruled the evidence inadmissible, finding that the breach of the Manual constituted a contravention of Australian law for the purposes of section 138(1)(b) of the Evidence Act 2001 (Tas).

The legal issue before the Full Court was whether a breach of a provision within the Tasmania Police Manual, which was not an express order published under section 93 of the Police Service Act 2003 (Tas), amounted to a contravention of an Australian law for the purposes of section 138(1)(b) of the Evidence Act 2001 (Tas). Section 138 of the Evidence Act provides a discretion to exclude improperly or illegally obtained evidence, defining "Australian law" broadly to include state laws. The court was required to determine if the Police Manual, in its entirety, constituted "Australian law" such that a breach of its provisions, other than explicit orders, would be considered a contravention of Australian law.

The Court reasoned that for a contravention of Australian law to occur under section 138, there must be disobedience of a command expressed in a rule of law. While the Police Service Act 2003 (Tas) requires police officers to comply with "all orders in the Manual" and "any lawful direction or lawful order given by a senior officer," the Court distinguished between "orders" within the Manual and other provisions. It held that a breach of a provision within the Manual that did not constitute an "order" as contemplated by the Act, and was not a lawful direction or order from a senior officer, did not amount to a contravention of an Australian law. Therefore, the question referred was answered in the negative.