R v IBAC

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 01691

R	First Plaintiff
and
M	Second Plaintiff
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSIONER	Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21, 22 MAY 2015
DATE OF JUDGMENT:	7 AUGUST 2015
CASE MAY BE CITED AS:	R & ANOR v IBAC
MEDIUM NEUTRAL CITATION:	[2015] VSC 374

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CRIMINAL LAW — Independent Broad-based Anti-corruption Commission — Examination of persons — Where persons under investigation for criminal offences — Whether legislation authorises examination of persons under investigation with respect to matters the subject of the investigation — Whether the ”companion principle” applies to persons under investigation for criminal offences — Accusatorial system of justice.

STATUTORY INTERPRETATION — Whether Independent Broad-based Anti-corruption Commission Act 2011 (Vic) grants power to examine persons, under investigation for criminal offence, publicly or at all — Principle of legality — Effect of the abrogation of the privilege against self-incrimination — Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 117.

ADMINISTRATIVE LAW — Jurisdictional error — Whether Commissioner’s opinion that jurisdictional conditions satisfied was a reviewable error — Whether decision affected by irrelevant considerations, a failure to take into account relevant considerations or legal unreasonableness — Effect of an express statutory obligation of reasonableness.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr D Grace QC with Mr C Carr	Tony Hargreaves & Partners
For the Second Plaintiff	Mr D Dann	Tony Hargreaves & Partners
For the Defendant	Mr E Woodward SC with Ms J Davidson	Independent Broad-based Anti-corruption Commission

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Statutory regime............................................................................................................................... 10

The plaintiffs’ claims....................................................................................................................... 15

Grounds 1 & 2 - Does the IBAC have power to examine the plaintiffs; or to examine them publicly? 17

The plaintiffs’ submissions........................................................................................................ 17
The defendant’s submissions.................................................................................................... 21
Consideration.............................................................................................................................. 26
Application of X7 principles to this case................................................................................ 35
Case law.............................................................................................................................. 37

Does the IBAC Act abrogate the privilege against self-incrimination for suspects?........... 45

Powers to ensure no prejudice to a fair trial................................................................................ 49

Further consideration of X7....................................................................................................... 52

Ground 3 – Was the Commissioner’s decision to examine the plaintiffs publicly erroneous? 55

The Commissioner’s reasons..................................................................................................... 55
Alleged errors re s 117 criteria.................................................................................................. 58
Jurisdictional error...................................................................................................................... 60
Relevant and irrelevant considerations................................................................................... 63
Legal unreasonableness............................................................................................................. 65
The effect of an express statutory obligation of reasonableness................................ 68
Exceptional circumstances – The failure to consider the administration of justice 73
Exceptional circumstances – Comparing the alleged conduct with that expected from Victoria Police....................................................................................................................... 74
Exceptional circumstances – Was the Commissioner’s decision affected by legal unreasonableness?................................................................................................. 75
Public interest – The Commissioner took into account an irrelevant consideration being the garnering of public acceptance of the investigation........................................ 77
Public interest – Taking into account the irrelevant consideration that the investigation was due to a possible culture of tolerance........................................................................ 78
Public interest – Was the decision that public examinations were in the public interest affected by legal unreasonableness?................................................................................. 80
Unreasonable damage to reputation – Failing to take into account the relevant consideration that the plaintiffs would not have the opportunity to cross-examine Person A. 81
Unreasonable damage to reputation – Failure to consider the effects of reputational damage on the plaintiffs’ ability to obtain fair trials............................................................ 82
Unreasonable damage to reputation – Legal unreasonableness............................... 83

Orders................................................................................................................................................. 86

HIS HONOUR:

By an originating motion between parties filed on 16 April 2015, the plaintiffs seek declarations and remedies in the nature of certiorari and prohibition pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 for the purpose of preventing the defendant from:

(a) holding an examination of the plaintiffs; or alternatively,
(b) holding an examination of the plaintiffs which is open to the public

pursuant to Pt 6, Div 1 of the Independent Broad-based Anti-corruption Commission Act 2011 (‘the IBAC Act’).

Background

Shortly before midnight on Wednesday 14 January 2015, a woman, who is identified anonymously as Person A, was arrested for being drunk in a public place. She allegedly resisted arrest and was very abusive. She was conveyed by divisional van to the Ballarat Police Station where she was taken to a cell at about midnight. It is the conduct of the police, after Person A was placed in the cell, which forms part of an investigation called Operation ROSS and is relevant to the plaintiffs.

In an affidavit sworn 8 May 2015, Mr Robert Sutton, the Director of the Operations Division of the Independent Broad-based Anti-corruption Commission (‘the IBAC’), alleges that certain closed-circuit television (‘CCTV’) footage shows the following conduct with respect to Person A, who is a 51 year old woman with mental health and alcohol abuse issues:

(a)appears to be intoxicated while held in the police cells at Ballarat on the evening of 14 January 2015;
(b)appeared to be a difficult prisoner in that she appeared to be demanding and argumentative at times and is seen to be violent at times;
(c)was able to leave the cell on two occasions and was involved in scuffles with two female officers (neither of these officers being the plaintiffs). During the second scuffle, Person A was sprayed with Oleoresin Capsicum (OC) foam;
(d)after being sprayed with OC foam was able to hide within the custody area, was later located, dragged back to the cell, placed on her stomach and handcuffed with her hands behind her back. She was forcibly strip searched in the presence of both male and female police officers. She does not appear to be resisting at this time;
(e)was laying face down on her stomach, appeared to be compliant and had her hands secured by handcuffs behind her back when Plaintiff 2 [the second plaintiff in this proceeding] entered the cell and appears to kick the left hip of Person A with her right foot. Plaintiff 1 [the first plaintiff in this proceeding] is then seen to enter the cell and appears to stand on the back of Person A’s left knee. Plaintiff 1 is then observed to stand on Person A’s ankles with his full weight. At this time Plaintiff 2 is seen to crouch down toward Person A’s head and Person A’s head is seen to move. Plaintiff 1 is then seen to change feet in that he turns to face inside the cell and remains standing on Person A’s ankles with his full weight. Plaintiff 2 is observed still crouching over the upper torso of Person A. Plaintiff 1 is observed to stomp on Person A’s right calf with his right foot whilst turning around. Plaintiff 1 is then observed to step off Person A’s ankles and kick her left shin with his left foot prior to exiting the cell. At this time it is observed that Person A’s underwear is still pulled down to below her buttocks. Plaintiff 1 is then seen to re-enter the cell and stomp on Person A’s left calf with his left foot. Plaintiffs 1 and 2 appear to speak to Person A. Plaintiff 1 then exits the cell briefly then walks back in and stomps on the left calf of Person A with his left foot and holds her leg down. It appears that Plaintiff 2 then pulls Person A’s underwear up to cover her buttocks and Plaintiff 1 removes his foot from Person A’s left calf. Plaintiff 2 then pushes Person A to a seated position so that she is leaning against the cell wall.

It is further alleged, in the affidavit of Mr Sutton, that Person A was held in custody for 16 hours after being arrested for being intoxicated when the usual holding time is 4 hours, and that she was also subjected to the following:

(a)that despite repeatedly asking for a blanket Person A is not supplied with a blanket until about 7.00 am (after 7.5 hours in custody) on the morning of 15 January 2015. This is despite being left in her wet shirt and underpants after having showered due to the deployment of OC foam;
(b)that Person A is not supplied with a change of clothes at any time as required by policy after showering in her clothes after the deployment of OC foam; and
(c)that after advising police officers that the water tap in the cell was not working, Person A flushes the toilet in the cell to fill a cup so that she can drink.

On 17 January 2015, the first plaintiff made a statement as part of the investigation by Victoria Police into the offences committed by Person A. In summary, the statement principally described the first plaintiff’s following observations of the conduct of Person A including:

(a) after he was called to assist ‘with transport of a drunk female back to the Ballarat Police Station’;
(b)after her arrival at the police station and being placed in a cell;
(c)subsequently assisting in her handcuffing after the application of OC foam;
(d)her conveyance to the Ballarat Base Hospital;
(e)her treatment in the hospital grounds and forcible placing in the rear of the divisional van; and
(f)escorting her back to a cell and removal of handcuffs.

On 19 March 2015, after reviewing the CCTV footage of Person A, the Victoria Police Professional Standards Command (‘Professional Standards’) notified the IBAC pursuant to the Victoria Police Act 2013 of the issues concerning the arrest of Person A, and provided a copy of the relevant CCTV footage. Person A has not at any time lodged a complaint with Victoria Police or the IBAC.

On 20 March 2015, the IBAC commenced an investigation, on its own motion, pursuant to s 64(1)(c) of the IBAC Act, into the alleged conduct by members of Victoria Police stationed at Ballarat Police Station towards certain persons with whom they had physical contact in the course of their duties.

On 1 April 2015, the Independent Broad-based Anti-corruption Commissioner (‘the Commissioner’) issued a witness summons to each of the plaintiffs pursuant to s 120 of the IBAC Act requiring that they each attend on Wednesday 15 April 2015 ‘to give evidence before IBAC in relation to [their] knowledge of matters the subject of the scope and purpose described in a document attached to the respective witness summonses entitled “Preliminary Information and Directions for Public Examinations in Operation ROSS”’.[1] At the same time, each plaintiff was also served with a confidentiality notice pursuant to s 42 of the IBAC Act, which prohibited each of them from disclosing restricted matters, as defined in s 3 of the IBAC Act, which are:
[1]Italics in original.

(a) any evidence given to the IBAC;
(b)the contents of any document, or a description of any thing, produced to the IBAC;
(c)the contents of any document, or a description of any thing, which the IBAC has made a copy of or seized under Div 3 or Div 4 of Pt 4;
(d)the existence of, or any information about, a confidentiality notice or a witness summons;
(e)the subject matter of an investigation in relation to which a witness summons has been issued;
(f)any information that could enable a person who has been, or is proposed to be, examined by, or who has produced, or may produce, any document or thing to, the IBAC, to be identified or located; and
(g)the fact that a person has been, or is proposed to be, examined by, or has produced, or may produce, any document or thing to, the IBAC.

The scope and purpose of the public examinations were described in the document titled ‘Preliminary Information and Directions for Public Examinations in Operation ROSS’ as follows:

(a)allegations of serious police personnel misconduct (within the meaning of the IBAC Act) on account of alleged unnecessary and/or excessive use of force towards certain vulnerable persons at Ballarat Police Station;
(b)whether any human rights have been violated by any such alleged conduct;
(c)the sufficiency and appropriateness of internal reporting by Victoria Police members involved in or associated with such alleged conduct; and
(d)the handling by Victoria Police of complaints made by such persons concerning such alleged conduct.

On 2 April 2015, the Assistant Commissioner of Professional Standards issued a Notice of Interim Action to each of the plaintiffs, which stated in substance as follows:

Whereas you are reasonably believed to have committed an offence punishable by imprisonment.
…
Take notice you are suspended from Victoria Police with pay from 2 April 2015.
…
Unless you are otherwise notified, this action will take effect until this notice is withdrawn or substituted or you are charged with an offence punishable by imprisonment (whichever occurs first).

The Professional Standards file number on the Notice of Interim Action was C3-3-2361-2014. The Victoria Police Manual Procedures and Guidelines indicates that the ‘C3-3’ designation at the start of the file number is consistent with Professional Standards assessing the classification of the complaint as ‘Criminality (not connected to duty)’. The suspension was authorised by s 135(1) of the Victoria Police Act 2013, which provides as follows:

If the Chief Commissioner reasonably believes that a police officer or protective services officer has committed an offence punishable by imprisonment, the Chief Commissioner may cause an investigation into the matter under the criminal
law to be commenced and may, at any time during that investigation—
…
(c) suspend the officer with pay.

By letter dated 7 April 2015 to the Acting Assistant Commissioner of Professional Standards, in response to the respective Notices of Interim Action, the Legal Manager of the Police Association requested answers to the following questions:

·what is the nature of the offence alleged?
·when did the alleged impugned conduct occur?
·when are the Members to be interviewed pursuant to s 464 of the Crimes Act?

By letter dated 10 April 2015 to the Secretary of the Police Association, the Acting Assistant Commissioner of Professional Standards in substance responded to the questions as follows:

(a)the offence in question is an allegation of assault;
(b)the impugned conduct occurred on 15 January 2015; and
(c)no interview will take place pursuant to s 464 of the Crimes Act 1958 until conclusion of the IBAC public hearing and will be reassessed after that time.

On 10 April 2015, written submissions on behalf of the second plaintiff were delivered to the IBAC in which it was submitted that all of the examinations in Operation ROSS should be in private. Alternatively, it was submitted that other courses should be considered including:

(a)the second plaintiff’s examination be held in private;
(b)non-publication orders; and
(c)restriction on persons present orders.

On 12 April 2015, written submissions on behalf of the first plaintiff were delivered to the IBAC in which it was submitted that the first plaintiff should not be compelled to attend for examination. Alternatively, it was submitted that the examination of the first plaintiff should be conducted in private.

By reasons dated 15 April 2015, the submissions of both plaintiffs were rejected by the Commissioner. On 17 April 2015, the Commissioner delivered revised reasons rejecting the plaintiffs’ submissions.

On 15 April 2015, the plaintiffs were each provided with a copy of the written opening address by counsel assisting the IBAC Deputy Commissioner, who had been appointed to preside over the examinations in Operation ROSS. The opening address identified that the events under investigation relate to four incidents that occurred on three separate occasions and stated:

While each incident will be considered separately, the similarity of the matters under investigation and the time frame over which they occur raise questions as to the conduct of a number of personnel at the Ballarat Police Station and whether a systematic culture has been allowed to develop which culture is inimical to the high standards demanded of, and met by, the vast majority of the members of the Victoria Police Force. It is apposite to mention at this point that Ballarat Police Station has been identified by both IBAC and Victoria police [sic] as having a high incidence of complaints since at least 2010. Of these complaints allegations of excessive use of force and “duty failure” are predominant.

The opening address then set out the following summaries of the four incidents involving the treatment of four separate individuals at Ballarat Police Station (incident A being that involving Person A and the plaintiffs):

INCIDENT A
15.At about 11.00 pm on the night of 14 January 2015 Person A was arrested in Ballarat for being drunk in a public place. She was handcuffed and conveyed to the Ballarat police station where she was registered and placed in a cell. She was, as so many intoxicated people with whom the police have to deal, a difficult person.
16.Evidence indicates that at the time Person A was originally spoken to by police, an ambulance was called and attempts were made to have her go to the Ballarat hospital for medical examination. Person A's behaviour was reported as being aggressive, abusive and continually resisting arrest.

17. Person A was placed in Cell 1 at the Ballarat police station at around 11.40-11.45 pm on 14 January 2015. While at the police station and before being locked up Person A was reported as continuing to be argumentative and abusive. The handcuffs were removed during her processing. The female custody sergeant advised Person A that she had been arrested for being drunk in a public place and that she would be released in about four hours. The station records indicate that Person A was ‘moderately’ affected by alcohol. She was then secured in the cell.
18.In fact Person A was not released from Ballarat police station for over eighteen hours.
19.During that time evidence reveals that Person A was able to exit the cell on two occasions, both exits leading to scuffles with two female police officers. During the second scuffle Person A was sprayed by both female police officers with Oleoresin Capsicum (OC) spray.
20.OC spray is also known as “pepper spray”. It is a lachrymatory agent made from extract of chilli peppers. It contains the neurotoxin “capsaicin”. The spray when used deploys as foam, rather like shaving cream. When it comes into contact with skin, eyes, mouth, throat and lungs it causes an immediate sensation of intense pain and tearing in the eyes and inflames the respiratory tract resulting in uncontrollable fits of coughing and breathing difficulties.
21.While under the effect of the spray Person A was able to hide in one of the rooms within the Ballarat police station custody area.
22.Other police officers attended to assist their comrades with Person A. During this assistance Person A was located, restrained, dragged back to the cell, handcuffed with her hands behind her back, searched by having her pants pulled from her in the presence of male officers so that she was left wearing only a T shirt, bra and underpants. Those underpants were for some time positioned between her knees and buttocks in the presence of male officers depriving her of any covering of her buttocks and genitals. She was assaulted by kicking, stomping and being stood upon. During all of these events the evidence shows that the OC spray was still all over her face with no opportunity being taken to assist with after care to help alleviate either the presence or the effects of the spray.
23.Police present at all of the above events will be asked to explain what was happening in relation to Person A and why it happened the way that it did.
24.Officers not directly sprayed with the OC spray were nevertheless affected by it remaining in the air of the custody centre. In fact one of the officers who deployed the spray was attended by ambulance officers at the Ballarat police station and later taken to the Ballarat Base Hospital by ambulance for medical treatment. No such treatment was provided at that time or later to Person A. An explanation will be sought for why this did not occur.
25.The ambulance officers were not called upon to examine Person A while they were at the police station.
26.Eventually Person A was taken to a shower by way of after care. However, while in the shower she remained handcuffed with her hands behind her back. Accordingly, she was not able to use her hands to try and remove the spray. On exiting the shower after about twenty minutes she was wrapped in a large blanket or towel and taken by the police van to the Ballarat Base Hospital. On arrival at the hospital she was recorded as being ‘aggressive, violent and agitated’. The examination was apparently carried out with Person A remaining in the rear of the van because there was a concern that she would escape. On examination she was reported as being handcuffed, intoxicated and her eyes being ‘slightly red’. She was cleared as being fit to be returned to cells and she was.
27.It was about 11 degrees Celsius in Ballarat that night with a very high humidity level and had been raining.
28.From about 2.40 am on being returned to the cells Person A was left in Cell 9 without her pants, or any replacement garment for her. She was left without a blanket. She remained in her clothes still wet from the shower. It was not until after 7.00 am that a blanket was provided to Person A. Replacement pants were not provided until much later in the day.
29.Police present at all of the above events will be asked to explain what was happening in relation to Person A and why it happened the way that it did.
30.Police officers from Ballarat police station not involved in the events of the night/morning of 14 January and 15 January 2015 but who subsequently had the opportunity to ascertain what had occurred will also be called to advise these examinations of what they learned and what actions they took in response.
INCIDENT B
31.On 8 December 2010 Person B attended at the front counter of the Ballarat police station. Person B was there to lodge a complaint concerning the treatment of her son. She wished her complaint to be recorded.
32.Evidence indicates that in response to this female’s request to a male police officer to record her complaint she was forcibly handled by the male police officer, assisted by a female police officer, was arrested and detained at the police station.
33.Allegations have been made as to the treatment of Person B while in police custody.
34.The male police officer will be asked to explain his actions in relation to Person B.
INCIDENTS C AND D
35.On the night/morning of 24 and 25 April 2009 Person C attended at the front counter of the Ballarat police station to enquire about her son who had been arrested earlier that night.
36.A male police officer, the same officer involved in incident B and one of the senior officers present at the time of Incident A, ordered Person C to leave the police station. When Person C refused to do so the male police officer went to the front of the counter and placed Person C in what can best be described as a chokehold. That is, from behind he had his right arm around Person C’s neck as he pushed her through the front doors of the police station.
37.The male officer will be asked to explain his action in relation to Person C.
38.On exiting the police station the male officer in question apparently formed the view that one of the friends present with Person C was wanted in relation to other allegations.
39.The male police officer then placed this person, Person D, in a similar chokehold and pushed her back into the police station and detained her for a period while enquiries were made.
40.Again, the male police officer will be asked to explain his actions in relation to Person D. In particular the use of the chokehold as an approved method of containment by Victorian police will be questioned.

On the afternoon of 15 April 2015, the plaintiffs applied to this Court for an interlocutory injunction restraining the Commissioner from proceeding with the public examinations until the hearing and determination of the originating motion.

On 17 April 2015, the Commissioner determined to adjourn the public examinations in Operation ROSS and, accordingly, interlocutory orders were not required and the matter proceeded to trial on 21 and 22 May 2015.

Statutory regime

The main purpose of the IBAC Act is to establish the IBAC.[2]
[2]IBAC Act s 1(1).

The objects of the Act are to—

(a)       provide for the identification, investigation and exposure of—
(i)       serious corrupt conduct; and
(ii)      police personnel misconduct;

(b)      assist in the prevention of—
(i)       corrupt conduct; and
(ii)      police personnel misconduct;
(c)facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community and the ways in which corrupt conduct and police personnel misconduct can be prevented;
(d)assist in improving the capacity of the public sector to prevent corrupt conduct and police personnel misconduct;

(e) provide for the IBAC to assess police personnel conduct. [3]

[3]IBAC Act s 8.

The IBAC has the statutory functions conferred on it by the IBAC Act or any other Act[4] but, without limiting the generality, the following functions are specifically conferred by s 15 of the IBAC Act:
[4]IBAC Act s 15(1).

(a)       to identify, expose and investigate serious corrupt conduct;[5]
[5]IBAC Act s 15(2)(a). See IBAC Act s 4 for the definition of ‘corrupt conduct’.
(b)      to identify, expose and investigate police personnel misconduct;[6]
[6]IBAC Act s 15(2)(b). See IBAC Act s 5 for the definition of ‘police personnel misconduct’.
(c)       to assess police personnel conduct;[7]
[7]IBAC Act s 15(2)(c). See IBAC Act s 5 for the definition of ‘police personnel conduct’.
(d)education and prevention functions for the purpose of achieving the objects of the Act;[8]

(e) for the purpose of achieving the objects of the Act:
(i)to receive information, conduct research and collect intelligence, and to use that information, research and intelligence in support of investigations;
(ii)to report on, and make recommendations as a result of, the performance of its duties and functions.[9]

[8]IBAC Act s 15(5).

[9]IBAC Act s 15(7).

The IBAC may conduct an investigation in accordance with its police personnel conduct investigative functions, relevantly, including of its own motion.[10]
[10]IBAC Act s 64(1)(c).

For the purposes of an investigation, the IBAC may hold an examination;[11] and it may regulate the procedure of the examination as the IBAC considers appropriate.[12]
[11]IBAC Act s 115.
[12]IBAC Act s 116(b).

Under the heading ‘Examinations generally to be held in private’, s 117 of the IBAC Act provides as follows:

(1)Subject to subsection (2), an examination is not open to the public unless the IBAC considers on reasonable grounds—
(a) there are exceptional circumstances; and
(b) it is in the public interest to hold a public examination; and
(c)a public examination can be held without causing unreasonable damage to a person's reputation, safety or wellbeing.

(2)The IBAC must not hold an examination in public if the examination may disclose particulars likely to lead to the identification of a person who has made an assessable disclosure.
(3)However, the IBAC may hold an examination in public if the information that may be disclosed is information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(4)For the purposes of subsection (1)(b), the factors the IBAC may take into account in determining whether or not it is in the public interest to hold a public examination include, but are not limited to—
(a)whether the corrupt conduct or the police personnel conduct being investigated is related to an individual and was an isolated incident or systemic in nature;
(b)the benefit of exposing to the public, and making it aware of, corrupt conduct or police personnel misconduct;
(c)in the case of police personnel conduct investigations, the seriousness of the matter being investigated.

(5)Not less than 7 days before a public examination is held, the IBAC must—
(a)inform the Victorian Inspectorate that the IBAC intends to hold the public examination; and
(b)provide a written report to the Victorian Inspectorate giving the reasons the IBAC decided to hold a public examination in accordance with subsection (1).

(6)A judicial officer is not required to attend a public examination but may consent to doing so.

IBAC may issue witness summonses to persons to attend to give evidence at an examination and/or to produce documents or other things.[13] A person who is served with a witness summons is guilty of contempt of the IBAC if, among other things, the person, without reasonable excuse, fails to attend or to produce required documents or other things or to answer any question relevant to the subject matter of the examination.[14]
[13]IBAC Act s 120.
[14]IBAC Act s 152.

Section 144 of the IBAC Act under the heading ‘Privilege against self-incrimination abrogated-witness summons’ provides as follows:

(1)A person is not excused from answering a question or giving information or from producing a document or other thing 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)Any answer, information, document or thing that might tend to incriminate the person or make the person liable to a penalty is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for—
(a)       perjury or giving false information; or
(b)       an offence against this Act; or
(c)       an offence against the Victorian Inspectorate Act 2011; or
(d)an offence against section 72 or 73 of the Protected Disclosure Act 2012; or

(e) contempt of the IBAC under this Act; or
(f) a disciplinary process or action.

At any time, the IBAC, as it considers appropriate, may provide any information acquired in the performance of its duties and functions to specified persons including a prosecutorial body.[15]
[15]IBAC Act s 41(1)(c).

Section 70 of the IBAC Act under the heading ‘Investigation when other proceedings on foot’ provides as follows:

(1)The IBAC may commence or continue to investigate a matter despite the fact that any proceedings (whether civil or criminal) are on foot, or are commenced, in any court or tribunal that relate to, or are otherwise connected with, the subject matter of the investigation.
(2)If the IBAC is or becomes aware that such proceedings are on foot, or have been commenced, the IBAC must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings.

Under the IBAC Act, the IBAC may at any time provide ‘special reports’ to each House of the Parliament on any matter relating to the performance of its duties and functions,[16] subject to the following relevant limitations:
[16]IBAC Act s 162(1).

(a)If the IBAC is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in a report under s 162, the IBAC must not include in the report any information which would prejudice the criminal investigation, criminal proceedings or other legal proceedings.[17]
(b)The IBAC must not include in a report under s 162 a statement as to—
(i)a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit, any criminal offence or disciplinary offence; or
(ii)a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence.[18]

Further, in its annual report, ‘if the IBAC is aware of a criminal investigation or any criminal proceedings or other legal proceedings in relation to a matter or person to be included in its annual report, the IBAC must not include in the annual report any information which would prejudice the criminal investigation, criminal proceedings or other legal proceedings’.[19]

[17]IBAC Act s 162(5).

[18]IBAC Act s 162(6).

[19]IBAC Act s 165(5).

Section 42(1), under the heading ‘Confidentiality notice’, provides as follows:

If during an investigation the IBAC considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—
(a)that investigation; or
(b)the safety or reputation of a person; or
(c)the fair trial of a person who has been, or may be, charged with an offence—

the IBAC may issue a confidentiality notice in respect of that investigation to a person (other than an IBAC Officer or a Victorian Inspectorate Officer) specifying the restricted matter or restricted matters in accordance with this section.

The plaintiffs’ claims

The plaintiffs seek to set aside the decision of the Commissioner to examine each of the plaintiffs under s 115 of the IBAC Act and, alternatively, to set aside the decision to investigate each of the plaintiffs in a public examination on the following grounds:

(i)In the circumstances, the IBAC Act does not confer power to examine the plaintiffs; or to examine them publicly. (Grounds 1 & 2)
(ii)The Commissioner’s decision to examine the plaintiffs publicly pursuant to s 117 of the IBAC Act was erroneous in that:
a.The decision that all of the criteria of s 117(1) of the IBAC Act were satisfied was not reasonable, such that the decision was infected with Wednesbury unreasonableness.

S. 117(1)(a): Exceptional Circumstances
b.The IBAC Commissioner failed to take into account a relevant consideration in determining whether there were exceptional circumstances, namely whether their public examination would interfere with the fair trial of the Plaintiffs.
c.The IBAC Commissioner took into account an irrelevant consideration in determining whether there were exceptional circumstances, in that he assessed whether the circumstances were exceptional by reference to ordinary police conduct, rather than by reference to the conduct that may be considered by the IBAC, thereby lowering the gravity of conduct that might be considered exceptional.
S. 117(1)(b):The Public Interest
d.The IBAC Commissioner took into account irrelevant considerations, namely garnering public acceptance of the investigation and any report and the use of IBAC’s exceptional powers, and failed to take into account a relevant consideration, namely the public interest in ensuring a fair trial, in determining whether it was in the public interest to examine the Plaintiffs.
e.The IBAC Commissioner misconstrued the test for whether it was in the public interest to examine the Plaintiffs publicly, in that the Commissioner took into account his opinion that a possible culture of tolerance ‘require[d] investigation, and if found to exist, exposure and eradication, all in the public interest’, given that:
i. The fact that such a culture required investigation was not relevant to whether such investigation should take place publicly; and
ii. The fact that such a culture required exposure if it was found to exist could not be relevant to whether the investigation – intended to determine whether such a culture existed or not – should take place publicly.
S. 117(1)(c):Unreasonable Damage to Reputation
f.The IBAC Commissioner failed to take into account a relevant consideration, namely that the plaintiffs would not have the opportunity to cross-examine Person A, and took into account an irrelevant consideration, namely that the plaintiffs’ reputations would not be unreasonably damaged because they had the opportunity to seek to cross-examine witnesses (other than Person A), given that Person A was the sole witness to the Plaintiffs’ impugned conduct.
g.The IBAC Commissioner failed to take into account a relevant consideration in determining whether public examinations would cause unreasonable damage to the reputations of the Plaintiffs, namely whether the damage to the reputations of the Plaintiffs would be unreasonable because of its effects on their ability to obtain a fair trial, due to the adverse publicity that would result, and the effect of public examinations on the Plaintiffs’ ability to call good character evidence at trial, in that such evidence is based upon the good reputation of an accused person.

(together Ground 3)

Grounds 1 & 2 - Does the IBAC have power to examine the plaintiffs; or to examine them publicly?
The plaintiffs’ submissions

In summary, the plaintiffs submitted as follows:

(a)The privilege against self-incrimination is a substantive common law right and not merely a rule of evidence.[20]
(b)The right of a person, who is suspected of having committed a crime, to remain silent in response to the questions of investigating officials applies to suspected persons at all stages of the accusatorial process of investigation and not just at trial or after a person is charged with an offence.[21]
(c)The right, relevantly, to avoid answering incriminating questions, is part of the fundamental principle of the common law that every stage of the process of criminal justice, investigation, prosecution and trial, is accusatorial and it is ‘fundamental in our criminal law that the onus of proving a criminal offence lies upon the prosecution and that, in discharging that onus, it cannot compel the accused to assist it in any way’.[22]
(d)Accordingly, if s 64 of the IBAC Act was to permit compulsory examination of a person suspected of a crime, the IBAC Act ‘would effect a fundamental alteration to the process of criminal justice’.[23]
(e)As a matter of statutory construction, legislation will not be interpreted as effecting a fundamental alteration to the process of criminal justice unless the statutory intention is expressed clearly or in words of necessary intendment.[24]

[20]Reid v Howard (1995) 184 CLR 1, 11 (Toohey, Gaudron, McHugh and Gummow JJ); X7 v Australian Crime Commission (2013) 248 CLR 92, 136–7 [104] (Hayne and Bell JJ) (‘X7’).

[21]X7 (2013) 248 CLR 92, 117–8 [41] (French CJ and Crennan J), 137 [105], 138 [109] (Hayne and Bell JJ).

[22]Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 527 (Deane, Dawson and Gaudron JJ); approved in X7 (2013) 248 CLR 92, 120 [47] (French CJ and Crennan J); see also 118 [42] (French CJ and Crennan J) and 140 [118] (Hayne and Bell JJ).

[23]X7 (2013) 248 CLR 92, 140 [118] (Hayne and Bell JJ).

[24]Ibid 109–10 [24] (French CJ and Crennan J), 141 [119] (Hayne and Bell JJ).

With respect to the facts of this case, it was submitted on behalf of the plaintiffs as follows:

(a)The plaintiffs were each plainly persons suspected of, and likely to be charged with, serious criminal conduct. So much could be inferred from the following:
(i)The plaintiffs had each been suspended from Victoria Police which, under s 135(1) of the Victoria Police Act 2013, required that:
A. an investigation had been commenced; and
B.they were each ‘reasonably believed to have committed an offence punishable by imprisonment’.

Further, the Professional Standards file number indicated that the complaint was classified as ‘Criminality (not connected to duty)’.[25]
[25]See [11] above.
(ii)The letter from Professional Standards dated 10 April 2015 stated that no interview would take place pursuant to s 464 of the Crimes Act 1958 until the conclusion of the IBAC public hearing, thereby confirming that it was intended that the IBAC public hearing would be an integral part of any criminal investigation.[26]
[26]See [13] above.
(iii)The ‘Preliminary Information and Directions for Public Examinations in Operation ROSS’ document stated that Operation ROSS was to investigate allegations of ‘serious police personnel misconduct (within the meaning of the IBAC Act)’. Under s 5 of the IBAC Act, police personnel misconduct means –
(a)in relation to a public officer who is a police officer or protective services officer—
(i)conduct which constitutes an offence punishable by imprisonment; or
(ii)conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
(iii)disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);

(b)in relation to a public officer who is a Victoria Police employee or police recruit, conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it.

Accordingly, it was submitted that the examinations of the plaintiffs, as persons who were suspected of, and likely to be charged with, serious criminal offences, would be part of the criminal accusatorial process; and to compel them to answer questions in an examination would be a fundamental departure from the accusatorial nature of the process of criminal justice. As matter of statutory construction, the IBAC Act should not be interpreted as permitting such a departure unless such intention was made clear by express words or necessary intendment.

The plaintiffs submitted that the IBAC Act does not disclose an intention to permit the compulsory examination process to be exercised in respect of persons who are the subject of the accusatorial process of justice (whether at an investigative or curial stage) about the subject matter of that investigation or charge for the following reasons:

(a)The functions of the IBAC do not necessarily require that the examination powers be exercised in respect of persons suspected or charged with criminal offences. The examination provisions under the IBAC Act have ample work to do without applying to persons the subject of the accusatorial process of investigation and trial.
The IBAC’s objects include identifying, investigating, exposing, preventing and assessing particular conduct, and educating about the detrimental effects of, and means of prevention for, corrupt conduct and police personnel conduct.[27] Accordingly, while investigations may result in prosecutions (as contemplated by the IBAC’s powers) that is not the purpose of the examination powers which distinguish it from the examination powers under the Crime and Misconduct Act 2001 (Qld) considered in Hamdan v Callanan.[28] The compulsory examinations under the Crime and Misconduct Act 2001 (Qld) only permitted examinations after police investigations into a particular major crime had been effectively exhausted.[29] Even though investigation under the IBAC Act may result in referral for consideration by investigatory or prosecutorial bodies,[30] and incidental charges may be laid,[31] such IBAC investigations must not result in publication of a finding that a person committed a criminal offence or a recommendation or an opinion that a person should be prosecuted for an offence.[32] Accordingly, because the provisions of the IBAC Act have other work to do, the examination powers are not, by necessary intendment, directed to those the subject of a criminal investigation or charge.
(b)The special reports to the Houses of Parliament provisions in s 162(5), and the annual report provisions in s 165(5), demonstrate that the IBAC Act was designed not to interfere with the criminal justice process, both during the investigatory stage and after charge.
(c)Section 42 of the IBAC Act provides confidentiality provisions for the protection of the fair trial of ‘a person who has been, or may be, charged with an offence’, which demonstrates that the IBAC Act seeks to avoid interference with the criminal justice process.
(d)Section 117 of the IBAC Act provides for the examinations to be conducted in private except in strictly limited circumstances, which is indicative of an intention to provide protection against the risk of interference with any subsequent criminal trial.
(e)The IBAC must refer a complaint or notification to (relevantly) the Chief Commissioner of Police if the IBAC considers that the subject matter of the complaint or notification is relevant to the Chief Commissioner’s duties and functions and it would be more appropriate for the Chief Commissioner to investigate.[33] This provision is not applicable to ‘own motion’ investigations such as the present case.
(f)Section 70, which permits investigations while criminal or other proceedings are on foot, requires the IBAC to take all reasonable steps to ensure that its investigation does not prejudice such other proceedings. Section 70 is a provision intended to deal with the prospect of contempt, which would arise after a person was charged. There is no indication that it permits interference with the criminal justice system before a person is charged.
[27]IBAC Act s 8.
[28][2014] QCA 304 (‘Hamdan’).
[29]Crime and Misconduct Act 2001 (Qld) s 28(1).
[30]IBAC Act ss 73 and 74.
[31]IBAC Act s 190.
[32]IBAC Act ss 162(6) and 165(6).
[33]IBAC Act s 73(1).

The defendant’s submissions

The defendant emphasised that in this case, unlike most of the cases upon which the plaintiffs seek to rely, no criminal charges have been laid. Accordingly, no question of contempt of court could arise.

The defendant submitted that the plaintiffs had identified no evidence in support of their contention that there would be any prejudice in any subsequent criminal trial. The defendant pointed to the written statement made voluntarily by the first plaintiff to Victoria Police and an apparent oral statement of the second plaintiff that she intended to adopt the first plaintiff’s statement. It was contended that it was highly unlikely that either of them would make admissions beyond those already made.

The defendant submitted that limiting the power to conduct examinations to persons who are the subject of a criminal investigation would undermine the entire scheme and purpose of the IBAC Act for the following reasons:

(a)Pursuant to s 120(2)(a) of the IBAC Act, the IBAC is empowered to issue a summons to a person if satisfied that it is reasonable to do so, having regard to ‘the evidentiary or intelligence value of the information, document or thing sought to be obtained from the person’.
(b)The plaintiffs are persons from whom valuable information can be obtained. That information goes well beyond possible assault, in respect of which the Chief Commissioner appears to have commenced an investigation, but extends to the treatment to which person A was subjected whilst in the custody of the Ballarat Police including:
(i) the use of OC foam;
(ii) the forcible strip searching of Person A;
(iii)strip searching Person A and leaving her semi-naked in the presence of male police officers;
(iv)failing to provide Person A with a blanket;
(v)failing to provide Person A with water, as a consequence of which she drank water from the toilet in her cell; and
(vi)holding Person A in custody for 16 hours for intoxication when the usual hold time is 4 hours, and without bringing her before a court for bail to be considered.

(c)To prevent the IBAC from carrying out an examination as a result of a subsequent decision by the Chief Commissioner to investigate part of the conduct to be examined would have the effect of subordinating the IBAC’s investigations to police investigations, which is not consistent with the IBAC Act.
(d)To constrain the way in which the IBAC conducts its investigations by precluding the examination of police officers who are, or may be, the subject of criminal investigation by Victoria Police would significantly affect the capacity of the IBAC to conduct effective investigations and fulfil its functions set out in s 15 of the IBAC Act. Accordingly, precluding the IBAC from examining the plaintiffs would have the effect of substantially interfering with the IBAC’s functions to identify, expose and investigate police personnel misconduct (s 15(2)(b)) and assess police personnel conduct (s 15(2)(c)).

With respect to the imminence of any prosecution, the defendant submitted that the present case is significantly different from X7 v Australian Crime Commission[34] for the following reasons:
[34](2013) 248 CLR 92.

(a)The majority in X7, as a matter of statutory construction, held that the AustralianCrime Commission Act 2002 (Cth) (‘the ACC Act’) did not empower an examiner to examine a person who had been charged with a criminal offence with respect to the subject matter of the offence charged.
(b)The defendant referred to the comments of Edmonds J in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority as follows:
An administrative process cannot constitute an interference with the due administration of justice in criminal proceedings which are yet to be commenced. It is not sufficient that criminal proceedings be imminent or on the cards.[35]

(c) Despite the fact that offences of conspiracy or attempting to pervert the course of justice may be committed before proceedings are before the court,[36] a contempt ‘is not ordinarily…committed unless and until the curial process has been commenced’.[37]

(d)Further, in this case, the defendant contended there was no evidence for concluding that the laying of charges was imminent or likely.

[35](2013) 218 FCR 447, 459 [54].

[36]R v Rogerson (1992) 174 CLR 268.

[37]A v Boulton (2004) 204 ALR 598, 622 [144].

In particular, the defendant submitted as follows:

(a)In X7, Hayne and Bell JJ specifically identified the case of a person suspected of wrongdoing, but who had not yet been charged with any offence, as the case in which the powers under the ACC Act might lawfully be exercised.[38]
(b)In Sorby v The Commonwealth, the High Court drew a distinction between a person charged with a criminal offence and a person who had not been charged.[39]
(c)In Hamdan, the Queensland Court of Appeal noted the limited assistance obtained from X7 where the proceeding concerned the abrogation of the privilege against self-incrimination in respect of an ‘uncharged suspect’.[40]

[38](2013) 248 CLR 92, 131 [83].

[39](1983) 152 CLR 281, 299 (‘Sorby’).

[40][2014] QCA 304 [43].

As to statutory interpretation, the defendant submitted as follows:

(a)A proper interpretation of the IBAC Act demonstrates an intention by the Parliament to authorise the IBAC to examine (at least) persons who have not been charged with an offence. The defendant referred to the provisions of the IBAC Act including the power to hold public hearings in s 117, the requirement to take steps to avoid prejudicing criminal proceedings in s 70(2), the requirements for reports not to express views on whether an offence has been committed or prejudice criminal proceedings or investigations in ss 162 and 165, the express powers to disclose information to and refer matters to various bodies including a prosecutorial body in ss 41 and 74, and the power to issue confidentiality notices in s 42(2). It was also submitted that the power under the IBAC Act to conduct investigations into corrupt conduct under s 60(2) demonstrates that Parliament intended the IBAC to conduct public examinations for the purposes of investigating conduct that also amounted to a criminal offence.

(b) The Parliament’s intention for the IBAC to be able to undertake its function ‘as a truth-seeking body that is able to undertake full and proper investigations’ despite the privilege against self-incrimination, and for the information obtained from such examinations to be made available to the Chief Commissioner of Police and others, was demonstrated by the Statement of Compatibility for the Independent Broad-based Anti-corruption Commission Amendment (Examinations) Bill 2012 which included the following statement:

Section 25(2)(k) of the charter provides that a person charged with a criminal offence is entitled without discrimination not to be compelled to testify against himself or herself or to confess guilt.
The bill inserts new section 82ZC(1) [s 144] which provides that a person is not excused from answering a question, giving information, or producing a document or other thing 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. The purpose of the provision is to assist the IBAC in its function as a truth-seeking body that is able to undertake full and proper investigations.
Where, in the course of an investigation, the IBAC discovers evidence of criminal conduct and the IBAC is of the opinion that the evidence is of sufficient probative force to permit prosecution, the IBAC may refer a matter to a prosecutorial body. Accordingly, it is not considered that the bill will engage the rights in criminal proceedings. In any event new section 82ZC(1) [s 144] is limited by subsection (2) which provides that any answer, information, document or thing is not admissible in evidence against the person before any court or person acting judicially, except in limited circumstances:
proceedings for perjury or giving false information;
an offence against the IBAC Act or the Victorian Inspectorate Act 2011;
contempt of the IBAC under the IBAC Act; or
a disciplinary process or action (which is limited to public officers and police personnel).

If it were the case that self-incriminating information obtained from a person was disclosed in accordance with the act, for example to the Chief Commissioner of Police, it would be a matter for the police to determine what use is made of that information. The bill makes it clear that the answer or information itself cannot be used in proceedings other than those listed at new section 82ZC(2) [s 144(2)]. It would be a matter for the court to determine whether other evidence derived from that information is admissible.
Further protection for persons the subject of criminal proceedings is provided by sections 86(5) and 89(5) of the IBAC act. These provisions state that if the IBAC is aware of a criminal investigation or criminal proceedings in relation to a matter or person to be included in a special report or annual report the IBAC must not include in that report any information which would prejudice the criminal investigation or criminal proceedings.[41]
[41]Victoria, Parliamentary Debates, Legislative Assembly, 19 April 2012, 1783 (Andrew McIntosh MP).

Consideration

The history of the development of the privilege against self-incrimination or ‘the right to silence’ has been helpfully recorded in numerous cases and articles.[42] The so-called ‘right to silence’ is in fact ‘a convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin’, with differing ‘incidence and importance, and also as to the extent to which they have already been encroached upon by statute’.[43] In Lee v New South Wales Crime Commission,[44] Gageler and Keane JJ identified the most pertinent principles and rules for the case now under consideration, as the following:

(a)The right of any person to refuse to answer any question except under legal compulsion.
(b)The privilege of any person to refuse to answer any question at any time on the ground of self-incrimination.
(c)The right of any person who believes he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.
(d)The right of a person charged with a criminal offence to a fair trial, ‘more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial’.[45]

[42]See, for example, Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 526 (Deane, Dawson and Gaudron JJ); Azzopardi v The Queen (2001) 205 CLR 50, 93–96 [125]–[135] (McHugh J); John Henry Wigmore, Evidence in Trials at Common Law (Little, Brown and Company, revised ed, 1961), vol 8, §2268–9.

[43]Azzopardi v The Queen (2001) 205 CLR 50, 57–8 [7] (Gleeson CJ) cited in Lee v New South Wales Crime Commission (2013) 251 CLR 196, 313 [318] (Gageler and Keane JJ).

[44]Ibid (citation in original).

[45]Dietrich v The Queen (1992) 177 CLR 292, 299 (Mason CJ and McHugh J).

Although the privilege against self-incrimination may be fundamental, a series of decisions of the High Court in the twentieth century established that royal commissions of inquiry could be instituted by the Parliament, which could investigate the commission of criminal offences and for that purpose exercise coercive powers to require persons to give evidence under examination.[46] In McGuinness v Attorney General (Vic), Dixon J explained that commissions of inquiry and report were not constitutionally invalid:

For while the principle that the Crown cannot grant special commissions, outside the ancient and established instruments of judicial authority, for the taking of inquests, civil or criminal, extends to inquisitions into matters of right and into supposed offences, the principle does not affect commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos.[47]

[46]Clough v Leahy (1904) 2 CLR 139.

[47]McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 102.

In Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation,[48] a joint Federal/State royal commission was established into the activities of the Builders Labourers’ Federation, including, among other things, an inquiry into whether the union or its officials had engaged in illegal activities. The High Court held by a majority that the Crown could appoint a commission of inquiry into the question of whether an individual had committed an offence. However, Gibbs CJ opined that ‘the establishment [or continuance] of a royal commission to inquire into the question whether an offence had been committed, when a prosecution for the offence was already pending’ may amount to a contempt of court.[49]
[48](1982) 152 CLR 25.
[49]Ibid 54.

An example of such a contempt came before the High Court in Hammond v The Commonwealth.[50] A person, who had been committed to trial on a charge of conspiracy with respect to the export of meat, was called before a royal commission into malpractices in the handling of meat, and was asked questions about the conspiracy for which he had been committed for trial. The court granted an injunction restraining the commission from examining the witness. Gibbs CJ (with whom Mason and Murphy JJ agreed) said:

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. In the Builders Labourers' Case I expressed the opinion that, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings. Of course, the present inquiry is not simply into allegations against the plaintiff. It is an inquiry into alleged malpractices in connexion with the export of beef that are said to have caused immense damage to the reputation of our meat industry. It would be neither necessary nor right to adjourn this inquiry because a prosecution had been commenced against the plaintiff. But the public interest can be met, and the interest of justice at the same time safeguarded, if the inquiry proceeds to its conclusions without further examination of the plaintiff.[51]

Hammond was an instance where the continuation of the examination of a person, who had been charged with an offence, would have been a contempt of court because there was a real risk that the exercise of the compulsory examination would give the prosecution real advantages in a criminal proceeding to the detriment of the accused.

[50](1982) 152 CLR 188 (‘Hammond’).

[51]Ibid 198–9.

In X7, French CJ and Crennan J (who were in the minority) said of Hammond:

It is critical to appreciate that the injunctive relief in Hammond was granted in circumstances where criminal proceedings were pending and the prosecution was to have access to evidence and information compulsorily obtained which could establish guilt of the offences, and which was subject only to a direct use immunity.[52]

Similarly, in Lee v New South Wales Crime Commission, Gageler and Keane JJ (who were in the majority) said:
Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason only of the exercise of a statutory power to compel the examination on oath of a person against whom criminal proceedings have been commenced but not completed where the subject matter of the examination will overlap with the subject matter of the proceedings. The majority in X7 does not appear to us to have embraced such a proposition.[53]

[52](2013) 248 CLR 92, 115 [36].

[53](2013) 251 CLR 196, 315 [322].

In X7, the plaintiff had been arrested and charged with three indictable offences under the Criminal Code Act 1995 (Cth). After his arrest, but before his trial, the plaintiff was summonsed to appear and give evidence at an examination conducted under the ACC Act. The ACC Act empowered an examiner to summons a person to appear and be compulsorily examined. The privilege against self-incrimination was specifically abrogated and a direct use immunity provided under the ACC Act. With respect to the conduct of the examination and the publication of the evidence, ss 25A(3) and 25A(9) of the ACC Act provided as follows:

(3)An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.
…

(9) An examiner may direct that:
(a) any evidence given before the examiner; or
(b)the contents of any document, or a description of any thing, produced to the examiner; or
(c)any information that might enable a person who has given evidence before the examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

On the first day of X7’s examination, after the examiner explained that his evidence before the Australian Crime Commission (‘ACC’) would not be disclosed to his prosecutors, X7 answered questions concerning the subject matter of the offences with which he had been charged. On the second day, he declined to answer questions on those matters; and he was informed that he would be charged with failing to answer questions. A direction was then given under s 25A(9) that:

(a)the evidence given by X7, the contents of documents produced by him during the examination, any evidence that might enable X7 to be identified, and the fact that X7 had given evidence must not be published (except for purposes not relevant here); and
(b)prosecutors or police officers associated with the prosecution of the offences with which the person had been charged were not entitled to receive a copy of the evidence given by X7 at the examination.

X7 filed a writ of summons and statement of claim in the High Court seeking certain declarations and injunctions; and the matter proceeded as a case stated reserving the following questions for consideration by the Full Court:

(1)Does Div 2 of Pt II of the ACC Act empower an examiner appointed under s 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?
(2)If the answer to Question 1 is “yes”, is Div 2 of Pt II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?

There was no issue that, for the purposes of interpreting the ACC Act, the abrogation of the privilege against self-incrimination invoked the application of the principle of legality, which required express words or necessary intendment. The principle was explained by Kiefel J as follows:

The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.[54]

Her Honour’s reference to ‘irresistible clearness’ picks up those words used in Maxwell’s On the Interpretation of Statutes, where the learned author states with respect to the principle of legality:
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.[55]

[54]X7 (2013) 248 CLR 92, 153 [158] (citations omitted).

[55]Peter Benson Maxwell, On the Interpretation of Statutes (Sweet & Maxwell, 4^th ed, 1905) 121 (citation omitted) cited by O’Connor J in Potter v Minahan (1908) 7 CLR 277, 304 and often since applied – see X7 (2013) 248 CLR 92, 131–2 [86] n 167 (Hayne and Bell JJ).

The ACC and the Commonwealth avoided the argument that the provisions allowing the compulsory examination of a person charged were invalid as a legislative authorisation of executive interference with the curial process of a criminal trial by conceding that the ACC Act did not authorise a contempt. Rather, the defendants contended that the provisions when properly applied meant the use, which would be made of the answers, avoided what would otherwise have been a contempt.[56]
[56]X7 (2013) 248 CLR 92, 134 [95] (Hayne and Bell JJ).

However, the ACC and the Commonwealth contended that the combined effect of:

(a) the direct use immunity; and
(b)section 25A(9) of the ACC Act, which imposed an obligation to direct that there be no, or limited, publication of what was said or produced at an examination ’if the failure to [give such a direction] might prejudice … the fair trial of a person who has been, or may be, charged with an offence’;

meant that (subject to the appropriate directions being given under s 25A(9)) the fair trial of the person would not be prejudiced by the continuation of the examination; and the ACC Act should be read as ‘specifically contemplat[ing] that examination powers may be used after charges have been laid’.[57]

[57]Ibid 130 [81]–[82].

Hayne and Bell JJ (with whose reasons Kiefel J substantially agreed) rejected this submission for the following reasons:

(a)The privilege against self-incrimination is quite distinct from the ‘[t]he fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown’ and its ‘companion rule that an accused person cannot be required to testify to the commission of the offence charged’.[58] This companion rule was described by Kiefel J in Lee v New South Wales Crime Commission, as ‘the prosecution cannot compel a person accused of a crime to assist in the discharge of its onus of proof’.[59]
(b)There was no express reference in the ACC Act to the examination of a person who had been charged with, but not tried for, an offence about the subject matter of the pending charge. The general words of s 25A(9) about not prejudicing the fair trial of ‘a person who has been, or may be, charged with an offence’ could be read as extending to the examination of a person who has been charged. However, it could also properly read (and have ‘ample work to do’) as having a more limited reference to the examination of a person, who may be suspected of wrongdoing; but who has not yet been charged.[60]
(c)The legislative history of the ACC Act provided no assistance in dealing with the question of construction.[61]
(d)‘[C]ompelling answers to, questions about the subject matter of a pending charge (regardless of what use may be made of those answers at the trial of an accused person) fundamentally alters the process of criminal justice. It is that observation which is critical to the question of statutory construction which must be answered in this case.’[62]

[58]Ibid 136 [102] quoting from Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 503 (Mason CJ and Toohey J).

[59](2013) 251 CLR 196, 261 [159]; Lee v The Queen (2015) 308 ALR 252, 260 [33]. This is referred to as the ‘companion principle’ in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448 (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[60]X7 (2013) 248 CLR 92, 131 [83]. Presumably it could also be read as an obligation to avoid prejudice to the fair trial of a person, who has been charged, being caused by the examination of other persons.

[61]Ibid 131 [84].

[62]Ibid 131 [85].

After considering the accusatorial process, which included the investigation, prosecution and trial of the indictable Commonwealth offence,[63] their Honours concluded that the use of the answers to assist the prosecution of the pending charge was only one way in which the course of criminal justice might be disturbed.[64] Their Honours concluded that the examination would:

fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that had been laid by being required to answer questions about the subject matter of the pending charge.[65]

[63]Ibid 140 [118].

[64]Ibid 134 [95].

[65]Ibid 142–3 [124] (emphasis in original).

Accordingly, their Honours concluded:

if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt.[66]

[66]Ibid 143 [125].

The minority, French CJ and Crennan J, recognised the fundamental right of the accused not to be tried unfairly[67] and ‘the accusatorial nature of a criminal trial and the interrelationship between an accused’s right not to give evidence or answer incriminating questions on the one hand, and on the other, the fundamental principle stated in Woolmington v Director of Public Prosecutions: “that the prosecution must prove the guilt of the prisoner is part of the common law … and no attempt to whittle it down can be entertained”’.[68] However, their Honours interpreted the ACC Act as permitting the examination of X7, although he had been charged, because the safeguards provided by ss 25A(3) and (9) were ‘capable of preventing a compulsory examination from occasioning an unfair burden on the examinee when defending criminal charges’.[69] In particular, their Honours noted that an accused may remain silent at the trial, without the compulsorily obtained evidence being used against him; and to the extent that he ‘will nevertheless be affected by compulsory examination after he has been charged with offences, that consequence is necessarily implied by the terms of the examination provisions’.[70]
[67]Ibid 116 [37].
[68]Ibid 119–20 [46] (citation omitted).
[69]Ibid 123 [57].
[70]Ibid 123–4 [57].

French CJ and Crennan J also were of the opinion that a failure by the examinee to prevent the prosecution obtaining an unfair forensic advantage could be remedied by the Court’s power to restrain a threatened contempt, as in Hammond,[71] or to issue constitutional writs pursuant to s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth).[72]
[71](1982) 152 CLR 188.
[72]X7 (2013) 248 CLR 92, 124 [59].

Accordingly, the fundamental difference between the majority and the minority was that the majority considered that, although the ACC Act had abrogated the privilege against self-incrimination, it had not with ‘irresistible clearness’[73] abrogated the rights of the accused encompassed by the companion principle. The minority considered that, because of the practical protections, which could be provided to the accused in the ACC Act, the inference of abrogation of the companion principle was sufficiently clear.
[73]Ibid 132 [86] (Hayne and Bell JJ) adopting a quote from United States v Fisher, 6 US 358, 390 (1805).

Application of X7 principles to this case

In this case, the plaintiffs’ principal contention is as follows:

(a)The majority in X7 identified the interference with the accusatorial process of criminal justice as effecting a fundamental alteration to the process of criminal justice.
(b)The accusatorial process included the investigatory stage prior to the laying of charges.
(c)Accordingly, requiring a person to be examined about matters the subject of an offence with which he or she is under investigation and is likely to be charged, was a fundamental alteration to the process of criminal justice. Such a fundamental alteration required the IBAC Act to be interpreted subject to the principle of legality, and a proper interpretation is that the IBAC Act does not demonstrate, with irresistible clearness, an intention to effect such a fundamental alteration.

Counsel for the plaintiffs conceded that the reasoning in X7 would not have extended to a person who had not been charged; but submitted that that was because s 25A(9) provided mechanisms which could avoid prejudice to the fair trial of a person who had not been charged, as was discussed by Hayne and Bell JJ.[74]
[74]See X7 (2013) 248 CLR 92, 131 [83].

(b)The plaintiffs are correct that the Commissioner dealt with this issue with respect to the public interest test, which was plainly because, in the plaintiffs’ submissions to which he was responding, the issue was only raised with respect to the public interest test.
(c)I consider that a fair reading of the Reasons by this Court should have regard to all of the factors that the Commissioner identified as considerations in determining whether there should be a public examination. I consider the plaintiffs’ submission that the Commissioner was required to identify the administration of justice issue in considering each of the criteria of s 117 to be an overly technical and segmented approach; and not in accordance with the substantive approach the Court should take in reading the Reasons of the decision-maker.
(d)I do not consider that, if the Court was to take the segmented approach in determining whether there were ‘exceptional circumstances’, the Commissioner was bound to take the administration of justice consideration into account, particularly when he took the consideration into account in determining the public interest issue.

Exceptional circumstances – Comparing the alleged conduct with that expected from Victoria Police

[218]See [96(e)] above.

The plaintiffs allege that the Commissioner took into account an irrelevant consideration being that the alleged conduct ‘borders on gratuitous brutality, and is therefore in itself exceptional from the point of view of conduct that might be expected from trained and experienced members of Victoria Police in the circumstances at hand; namely, in dealing with one woman who posed no apparent physical threat but albeit was proving difficult at the time’.[219] The plaintiffs alleged that for the conduct to be relevantly exceptional it was necessary for the Commissioner to compare the conduct with ‘police personnel misconduct’ as defined in s 5 of the Act, which specifically includes conduct ‘which constitutes an offence punishable by imprisonment’.
[219]Reasons 3–4.

The defendant disputed the plaintiffs’ contention that the seriousness of the conduct could be irrelevant; and further submitted that, under s 64 of the IBAC Act, the IBAC was empowered to investigate ‘police personnel conduct’, which may or may not involve misconduct. Accordingly, if it were appropriate to make any comparison, it would be with police personnel conduct as defined in the IBAC Act. Thus, it could not be said that the Commissioner erred by describing the alleged conduct as serious.

I accept the defendant’s submissions on this point. In my opinion, the description of the alleged conduct as serious, in the circumstances summarised by the Commissioner, could not be said to be an error; and I do not consider that, in making the relevant determination, the Commissioner was bound not to take the seriousness of the conduct into account.

Exceptional circumstances – Was the Commissioner’s decision affected by legal unreasonableness?

The plaintiffs submitted that although ‘exceptional circumstances’ were not defined in the IBAC Act, regard should be had to the following authorities:

(a)In R v Steggall,[220] Nettle JA (as his Honour then was) considered the term ‘exceptional circumstances’ in the context of the Sentencing Act 1991. Nettle JA said:
[220](2005) 157 A Crim R 402.
I do not accept that the sentencing judge misconceived the meaning of ‘exceptional circumstances’ for the purposes of s 31(5A). In Owens v Stevens, Hedigan J said of the expression ‘exceptional circumstances’ in Clause 15 of Schedule 5 to the Magistrates Court Act 1989 (Vic), that:
The use of the phrase ‘exceptional circumstances’ is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does not mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

The sentencing judge considered that those observations were equally applicable to s 31(5A) and, with respect, I agree with his Honour.[221]

(b)In R v Ioannou, Redlich JA considered that the circumstances to meet the exceptional circumstances test set out in the Sentencing Act 1991 must be ‘clearly unusual or quite special or distinctly out of the ordinary.’[222] His Honour went on to say that ‘As these expressions indicate, the circumstances cannot fall within the range of normally anticipated consequences, behaviours or exigencies. Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable expectation or contemplation.’[223]

[221]Ibid 406 [12] (citations omitted).

[222](2007) 17 VR 563, 568 [17].

[223]Ibid.

The plaintiffs further submitted that the gravity of the alleged misconduct and the prevalence of complaints suggesting cultural problems were an insufficient basis upon which the Commissioner could be satisfied on reasonable grounds that there were ‘exceptional circumstances’.

The defendant submitted that the Reasons identified that the examinations were part of a broader investigation covering conduct at the Ballarat Police Station particularly towards vulnerable women over an extended period. The purpose of the investigation was not just to establish whether assaults had taken place; or whether there was a culture at the police station of acceptance of such conduct. The investigation was also as to why Victoria Police had not identified and eradicated the culture and to identify what could be learned by Victoria Police. In particular, the conduct of these examinations in public would not only expose misconduct, but would encourage other persons to come forward with relevant information, which is critical for the investigation to properly assess whether the putative culture existed or exists. The need for public exposure was accentuated by the fact that vulnerable women in these circumstances are not likely to make a complaint; and, in fact, Person A has not made a complaint.

This last consideration was identified in the Reasons with respect to the public interest. However, for the same reasons as previously expressed, I consider that it was properly a matter to which the Commissioner could have regard when making the overall determination that the examination should be in public. The plaintiffs did not take issue with the defendant’s reliance on this consideration with respect to the exceptional circumstances criterion.

Taking into account the stringent requirements for the ‘unreasonableness’ test on judicial review and the limited role of the Court when reviewing the exercise of administrative discretion, I do not consider that it could be concluded that no reasonable decision-maker could have considered that exceptional circumstances existed for the purpose of determining whether the examination should be public. In particular, the assessment of what conduct is exceptional is not an objective fact, a matter about which there has been any evidence; or a matter of procedure with which the Court is well familiar. In this regard I note that the Commissioner notes in the Reasons that ‘a considerable number of police jurisdiction related examinations have been so conducted since IBAC become (sic) fully operational in February 2013, this being the first time I have decided that examinations in IBAC's police jurisdiction ought be open to the public.’[224]

Public interest – The Commissioner took into account an irrelevant consideration being the garnering of public acceptance of the investigation

[224]Reasons 2–3 [5].

The plaintiffs submitted that the Commissioner took into account an irrelevant consideration being the garnering of public acceptance of the investigation and any report. It was submitted that it was plain from paragraph 11 of the Reasons that the Commissioner’s approach was to adopt the meaning given to the phrase ‘the public interest’ by Gleeson CJ in ICAC v Chaffey.[225] It was contended that this was an error because in ICAC v Chaffey, Gleeson CJ was considering a different statutory regime where the only mandatory consideration for determining whether an examination would be public or private was the public interest. It was submitted that, as the IBAC Act required further preconditions including exceptional circumstances, the adoption of the meaning given to that phrase in a different statutory context by Gleeson CJ in ICAC v Chaffey, was an error.
[225](1993) 30 NSWLR 21, 29-30.

I reject the plaintiffs’ submission for the following reasons:

(a)Although the Commissioner cited ICAC v Chaffey in the Reasons,[226] I do not consider that a fair reading of the Reasons indicates that the Commissioner adopted an inappropriate definition of ‘public interest’.
(b)In my opinion, the garnering of public acceptance of the investigation was a proper consideration for the Commissioner to take into account in determining whether it was in the public interest for the examinations to be public.
(c)I do not consider that, because the IBAC Act has preconditions other than the public interest, it follows that the observations by Gleeson CJ in ICAC v Chaffey about public interest were inapposite, when the Commissioner was considering whether it was in the public interest to hold a public examination.

Public interest – Taking into account the irrelevant consideration that the investigation was due to a possible culture of tolerance

[226]Reasons 5 [11].

The plaintiffs contended that, in determining whether it was in the public interest to examine the plaintiffs publicly, the Commissioner considered it relevant that there was a culture of tolerance within the Ballarat Police Station of unnecessary aggressive behaviour towards vulnerable females. The plaintiffs referred to paragraph 10 of the Reasons where the Commissioner stated, with respect to the public interest element, that he had concerns regarding the possible culture at Ballarat Police Station of aggressive behaviour towards vulnerable females and said:

This in turn [gives] rise to concerns mentioned above of a culture of tolerance within that police station of such behaviours which were considered to require investigation, and if found to exist, exposure and eradication, all in the public interest.

It was submitted that the identification of whether there was such a culture and the need, if it existed, of exposure was not a consideration relevant to whether or not the examinations should be public.

I reject the plaintiffs’ submissions. The Reasons make it plain that the serious nature of the allegations, the fact that there were indications of systemic behaviour towards vulnerable females and the need to encourage persons with relevant information to come forward and to discourage behaviour of this type, were all part of the basis upon which the Commissioner found it was in the public interest that the examination should be public.

The Commissioner did take the consideration into account in determining the public interest element; but I do not consider that he was bound not to do so. On the contrary, they would appear to be proper and relevant considerations.

It should be noted that the IBAC Act identifies factors which the IBAC may take into account in determining whether or not it is in the public interest to hold a public examination as including, but not being limited to:

(a)whether the corrupt conduct or the police personnel conduct being investigated is related to an individual and was an isolated incident or systemic in nature;
(b)the benefit of exposing to the public, and making it aware of, corrupt conduct or police personnel misconduct;
(c)in the case of police personnel conduct investigations, the seriousness of the matter being investigated.[227]

[227]IBAC Act s 117(4).

The Reasons disclose that the Commissioner took each of these factors into consideration in determining that the public examination was in the public interest.

I do not consider that the Commissioner took into account any irrelevant consideration, nor did he fail to take into account any relevant consideration, in making his determination that it was in the public interest to hold the examinations in public.

Public interest – Was the decision that public examinations were in the public interest affected by legal unreasonableness?

The plaintiffs submitted that there were no considerations that permitted the Commissioner to consider on reasonable grounds that it was in the public interest to depart from the normal course of examinations taking place in private. As indicated above, I reject that submission and consider that the Commissioner’s determination to have examinations in public was not so unreasonable as to warrant judicial intervention.

The plaintiffs made an alternative submission that, even if the considerations the Commissioner weighed in favour of a public examination were legitimate, those considerations could be largely achieved by the public examination of others, rather than the plaintiffs. I accept that, in one sense, it could be said by each witness who has been summonsed to give evidence that it was not necessary for that witness’s examination to be in public because the IBAC’s objectives could be ‘largely’ achieved by limiting the public examinations to the other witnesses. The plaintiffs are key participants in a major incident which is part of the IBAC investigation. I do not consider that the Commissioner’s determination that it is in the public interest for the plaintiffs to give evidence in public, together with the other witnesses to be called as part of the investigation, is legally unreasonable.

In concluding that it was open for the Commissioner to weigh the importance of requiring the plaintiffs to give evidence rather than limit the open examinations to the other witnesses, I am mindful of the comment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd that when the ground of asserted unreasonableness relied upon by an applicant is giving too much or too little weight to one consideration or another ‘a court should proceed with caution … lest it exceed its supervisory role by reviewing the decision on its merits’.[228]

Unreasonable damage to reputation – Failing to take into account the relevant consideration that the plaintiffs would not have the opportunity to cross-examine Person A

[228](1986) 162 CLR 24, 42. See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 627 [44] (Gleeson CJ and McHugh J).

The plaintiffs submitted that although the Commissioner had regard to the fact that the plaintiffs would have the opportunity to cross-examine relevant witnesses, Person A was not to be called. As a consequence, it was submitted that the plaintiffs would not be in a position to properly defend their positions and reputations; and any restorative effect from the cross-examination of other members of Victoria Police would be nullified by the perception of a ‘culture of [police] looking after each other’. It was submitted that there were aspects of the circumstances in respect of which Person A could give evidence; and without such evidence, the plaintiffs’ evidence may appear to be simply self-serving.

The defendant conceded that the IBAC did not currently propose to call Person A to give evidence; but said that that did not preclude the plaintiffs from making an application to the IBAC delegate that Person A be called. The delegate would be empowered to consider the application in the circumstances and, if the delegate considered that it was necessary in fairness to the plaintiffs’ reputational issues, the delegate would be in a position to weigh that consideration and act appropriately and fairly.

In the Reasons, the Commissioner did not refer to any effect on the plaintiffs as a result of the lack of any present intention to call Person A. I consider it a matter of pure conjecture as to whether the failure to call Person A is likely to have a positive or negative effect on the plaintiffs’ reputational issues; and note that the plaintiffs’ submissions to the Commissioner made no point about reputational issues arising from the failure to call Person A.

In my opinion, the Commissioner is not bound to take into consideration, in considering the reputational criterion, whether or not Person A would be called. As submitted by the defendant, whether or not Person A will be called is a matter that can be dealt with by the delegate, particularly if it appears that the evidence of Person A would contribute significantly to the fairness of the hearing.

Accordingly, I do not consider that the failure to refer to the current intention not to call Person A as being a matter that warrants judicial intervention.

Unreasonable damage to reputation – Failure to consider the effects of reputational damage on the plaintiffs’ ability to obtain fair trials

The plaintiffs submitted that, although it was accepted that damage to the plaintiffs’ reputations was likely to result from a public hearing, the Commissioner failed to have regard to how the damage to reputation would impact on the administration of justice issues, in particular, in the plaintiffs’ obtaining a fair trial (if charges are subsequently laid).

The Commissioner did have regard to the effect of the public examinations on ‘any theoretical jury trial’. He concluded that such a trial would be a considerable time in the future and the resilience of juries was well recognised by the courts as a result of their memories of such events fading over time.[229] He said it was ‘well recognised in the authorities that trial judges have broad and usually effective powers to ensure a fair trial, including power to exclude evidence and to give strong directions to juries, with the ultimate protection for an accused who cannot receive a fair trial being a permanent stay.’[230]
[229]The Commissioner cited R v Glennon (1992) 173 CLR 592.
[230]Reasons 10.

Further, I do not consider that a proper interpretation of the reputational criterion under s 117 required the Commissioner to consider the effect of the public examination on a fair trial. As the defendant submitted: ‘There will be power in the delegate who is a very, very experienced member of counsel to manage that process as it continues and to ensure fairness. There is no reason to think that won’t occur.’ As I have said above, during the course of the examinations, it may well be necessary for the delegate to give consideration as to the procedures that should be adopted to ensure that there is no irremediable prejudice to a potential future trial of the plaintiffs or anybody else.

Accordingly, as stated above, I consider that the Commissioner did give consideration to the possible effect of the public examinations on any potential trial; and that he was not bound, when considering the reputational criterion, to give any further consideration to that matter. I do not consider the Reasons with respect to the interaction between reputational damage and a fair trial warrant judicial intervention.

Unreasonable damage to reputation – Legal unreasonableness

Section 117(1)(c) of the IBAC Act provides that an examination is not open to the public, unless the IBAC considers on reasonable grounds (among other things) that a ‘public examination can be held without causing unreasonable damage to a person’s reputation’.

The plaintiffs submitted as follows:

(a)The words ‘unreasonable damage’ referred to damage, which was beyond the minimum that was necessary to achieve a purpose for which the IBAC was exercising its powers.
(b)Similar considerations would arise as were considered by Mahoney JA in John Fairfax Group Pty Ltd v Local Court of New South Wales.[231] In considering whether a person should be referred to by a pseudonym to avoid reputational damage, Mahoney JA suggested the courts were obliged to avoid such damage to the extent it was possible to do so, consistently with the court’s functions.[232]
(c)The stated purposes of the investigation could be achieved ‘in large part’ by the examination of the other members who dealt with Person A, who are not the subject of criminal investigation.
(d)Accordingly, the likely damage to the plaintiffs’ reputations by examining them publicly was not necessary and therefore unreasonable.

[231](1991) 26 NSWLR 131.

[232]Ibid 163–164.

The defendant submitted that:

(a)The plaintiffs’ interpretation would have the effect of preventing public examination of persons the subject of the central focus of investigations in most instances.
(b)‘Unreasonable damage’ was most likely to arise where a person’s reputation was impugned in a collateral way in the conduct of an investigation. However, where the person has a central role in the investigation, any consequential damage to reputation was not ‘unreasonable’.

The expression ‘unreasonable damage to reputation’, in my opinion, requires an evaluative assessment by the decision-maker in determining, in prospect, a range of factors including:

(a) What damage is likely to be caused by the public examination?
(b) To what extent is the damage to reputation likely to be unjustified?
(c)Whether the seriousness of the conduct being investigated necessitates the consequential damage to reputations; and the extent that the examinee will have the capacity to fairly test and prevent, or at least minimise, damage to reputation, particularly unjustified damage.
(d)To what extent might there be collateral damage to reputations of persons:
(i)who are not related to the subject matter of the investigation; or

(ii) who are unable to fairly protect themselves.
(e)To what extent will the delegate be in a position to control procedures to minimise unnecessary damage to reputation.

I am not suggesting that in every case the decision-maker will be bound to consider each of these considerations or that the list is in any way exclusive. In my opinion, on a fair reading of the Reasons, the Commissioner has had regard to many of these factors including the seriousness of the matters to be investigated, the importance of the plaintiffs’ evidence being part of the public examinations, the ability for the plaintiffs to be represented for the purpose of minimising damage to reputation and the power of the delegate to control procedures by calling Person A if necessary or otherwise.

Further, in this case, the likely damage to the plaintiffs’ reputations will arise from the showing of the CCTV footage and, possibly, the evidence of other witnesses. It is not immediately apparent that any unreasonable damage to the plaintiffs’ reputations will be caused by their examinations taking place in public, which is the determination in respect of which the plaintiffs take objection. One might expect that it is the examination of the plaintiffs, which will enable the plaintiffs to explain matters that could otherwise impact on their reputations.

I do not consider that the Commissioner’s opinion, that there would not be unreasonable damage to the reputations of the plaintiffs as a result of their public examinations, could be said to be so unreasonable as to warrant judicial intervention.

Orders

I propose to order that the plaintiffs’ originating motion be dismissed and I will hear the parties on other orders.

---

the Crown could not lawfully appoint a special commission to perform the fundamental duty of a court of criminal jurisdiction, to determine the guilt or innocence of persons said to have committed offences against the law.

See also Dr Catriona Ross, Kristin Richardson, Adam Delacorn, Bella Lesman, Bronwen Merner, ‘Independent Broad-based Anti-corruption Commission Amendment (Examinations) Bill 2012’ (Current Issues Brief No 2, Parliamentary Library, Victorian Department of Parliamentary Services, 2012), 6-7.

[2015] VSC 374

7 AUGUST 2015