R v IBAC

Case [2015] VSC 374 7 August 2015

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v IBAC

Details

AGLC: R v Ibac [2015] VSC 374
Case: [2015] VSC 374
Decision Date: 7 AUGUST 2015

CaseChat Overview and Summary

The matter before the court was a prosecution brought against the Independent Broad-based Anti-corruption Commission (IBAC) by the Attorney-General of Victoria. The dispute centred on the interpretation and application of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic), specifically in relation to the power to examine persons under investigation for criminal offences. The High Court of Australia was tasked with determining the extent of IBAC's powers under the Act, including whether the "companion principle" applied to persons under investigation for criminal offences and the effect of the abrogation of the privilege against self-incrimination.

The court was required to address several legal issues, including whether the legislation granted IBAC the power to examine persons under investigation for criminal offences publicly or at all. Additionally, the court had to consider the application of the principle of legality in the context of statutory interpretation, and whether the abrogation of the privilege against self-incrimination had any bearing on the scope of IBAC's examination powers. The court also needed to determine whether the Commissioner's opinion that jurisdictional conditions were satisfied constituted a reviewable error and whether the decision was affected by irrelevant considerations, a failure to take into account relevant considerations, or legal unreasonableness.

In its judgment, the court held that the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) did not grant IBAC the power to examine persons under investigation for criminal offences publicly or at all. The court found that the abrogation of the privilege against self-incrimination did not extend to granting IBAC the power to examine persons publicly. The court also determined that the Commissioner's opinion that jurisdictional conditions were satisfied was a reviewable error, as the decision was affected by irrelevant considerations. The court emphasised the importance of the principle of legality in statutory interpretation, and held that the effect of the abrogation of the privilege against self-incrimination was limited to the examination of persons in private, not publicly.

The final orders of the court were that the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) did not grant IBAC the power to examine persons under investigation for criminal offences publicly or at all, and that the Commissioner's opinion that jurisdictional conditions were satisfied was a reviewable error. The court's decision clarified the scope of IBAC's examination powers and reinforced the importance of statutory interpretation in accordance with the principle of legality.

Orders