HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJR & ANOR APPELLANTS
AND
THE INDEPENDENT BROAD-BASED ANTI-
CORRUPTION COMMISSIONER RESPONDENTR v Independent Broad-based Anti-corruption Commissioner
[2016] HCA 8
10 March 2016
M246/2015
ORDER
1.Appeal dismissed with costs.
2.Order 2 of the orders of French CJ and Keane J made on 13 November 2015 be vacated.
On appeal from the Supreme Court of Victoria
Representation
D Grace QC with O P Holdenson QC for the appellants (instructed by Tony Hargreaves & Partners)
R M Niall QC, Solicitor-General for the State of Victoria with E W Woodward SC and J M Davidson for the respondent (instructed by Independent Broad-based Anti-corruption Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Statutory interpretation – Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic) ("IBAC Act") – Investigation by Independent Broad-based Anti‑corruption Commission into allegations of assault and human rights violations by officers of Victoria Police – Where appellants were police officers suspected of involvement in alleged assault – Where appellants summoned to give evidence at public examination – Whether power to hold examination under Pt 6 of IBAC Act exercisable in relation to persons who have not been, but may be, charged with offence relating to subject matter of examination.
Statutory interpretation – Common law rights – Whether s 144 of IBAC Act abrogates privilege against self‑incrimination.
Words and phrases – "abrogate", "companion principle", "compulsory examination", "police personnel misconduct", "principle of legality", "privilege against self‑incrimination".
Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic), ss 5, 8, 15, 42, 84(2), 120, 144.
FRENCH CJ, KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ. The principal issue in this appeal is whether the power of the Independent Broad‑based Anti‑corruption Commission ("the IBAC") to hold an examination under Pt 6 of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic) ("the IBAC Act") is exercisable in relation to persons who have not been, but might subsequently be, charged and put on trial for an offence relating to the subject matter of the examination. Also at issue is whether s 144 of the IBAC Act is effective to abrogate such an examinee's privilege against self‑incrimination.
The appellants raise no issue as to the competence of the Victorian legislature to enact the provisions in question, or as to whether the exercise of the powers so conferred in the circumstances of this case involves an abuse of power by the IBAC or any other functionary of the executive government of the State. The appeal is confined to questions of statutory construction: the appellants contending that the IBAC Act does not, on its proper construction, authorise an examination, or compel the giving of answers which might tend to incriminate the examinee, where there are reasonable grounds to suspect that the examinee may be guilty of an offence.
For the reasons which follow, the appellants' contentions cannot be sustained, and their appeal…
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- Case
- [2016] HCA 8
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were twofold: first, whether the power to hold a public examination under Part 6 of the *Independent Broad-based Anti-corruption Commission Act 2011* (Vic) could be exercised in relation to persons who might be charged with an offence related to the investigation's subject matter; and second, whether section 144 of the Act abrogated the common law privilege against self-incrimination.
The Court reasoned that the *IBAC Act* conferred broad investigative powers on IBAC, including the power to hold public examinations. It held that the statutory language did not restrict this power to only those who had already been charged, nor did it require IBAC to await the outcome of any criminal proceedings before exercising its compulsory examination powers. Regarding the privilege against self-incrimination, the Court applied the principle of legality, stating that any abrogation of such a fundamental common law right must be clear and unambiguous. The Court found that section 144 of the *IBAC Act*, which required witnesses to answer questions truthfully but provided immunity from prosecution for answers given, did not abrogate the privilege against self-incrimination in a manner that would prevent IBAC from compelling evidence from individuals who might be suspects.
The appeal was dismissed with costs.
Orders
Orders of the court
1. Appeal dismissed with costs.
2. Order 2 of the orders of French CJ and Keane J made on 13 November 2015 be vacated.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ, GAGELER J
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