R v Independent Broad-based Anti-corruption Commissioner

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HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

R & ANOR  APPELLANTS

AND

THE INDEPENDENT BROAD-BASED ANTI-
CORRUPTION COMMISSIONER  RESPONDENT

R 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.

  1. 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.

  2. 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.

  3. For the reasons which follow, the appellants' contentions cannot be sustained, and their appeal…

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Details
Case
[2016] HCA 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by police officers against decisions of the Independent Broad-based Anti-corruption Commissioner (IBAC) to summon them to give evidence at a public examination concerning allegations of assault and human rights violations by Victoria Police officers. The dispute centred on whether IBAC had the power to compel evidence from individuals who had not yet been charged with an offence related to the subject matter of the investigation.

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

For the reasons which follow, the appellants' contentions cannot be sustained, and their appeal should be dismissed.Background On 20 March 2015, the IBAC, of its own motion, commenced an investigation into the conduct of certain members of Victoria Police stationed at the Ballarat police station. The investigation, named "Operation Ross", was concerned with whether officers of Victoria Police assaulted a female in a cell at the Ballarat police station on 15 January 2015 as well as with a number of other incidents alleged to have occurred at the Ballarat police station in recent years which might have involved human rights violations in respect of other women. On 1 April 2015, the IBAC, having been satisfied of the matters referred to in s 117(1) of the IBAC Act, issued a witness summons to each of the appellants, requiring them to give evidence in a public examination of their knowledge of matters falling within the scope of Operation Ross. Attached to each witness summons was a document titled "Preliminary Information and Directions for Public Examinations in Operation Ross", which listed the following areas of examination:"1.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.2.Whether any human rights have been violated by any such alleged conduct.3.The sufficiency and appropriateness of internal reporting by Victoria Police members involved in or associated with such alleged conduct.4.The handling by Victoria Police of complaints made by such persons concerning such alleged conduct." Each appellant was also issued with a confidentiality notice from the IBAC, specifying matters related to the examination which were to be treated as confidential. On 2 April 2015, the appellants were issued with a Notice of Interim Action from Victoria Police, informing them that they had been suspended from duty on the basis that they were reasonably believed to have committed an offence punishable by imprisonment. On 10 April 2015, Victoria Police informed the Secretary of the Police Association on behalf of the appellants that the offence to which the Notice of Interim Action referred was an allegation of assault occurring on 15 January 2015. The Secretary was advised that "[n]o interview will take place until conclusion of the IBAC public hearing". In written submissions, the IBAC Commissioner ("the Commissioner") foreshadowed that he would, if he were permitted to do so, adduce evidence that the Notices of Interim Action were subsequently withdrawn by Victoria Police. As will become apparent, it is not necessary to take this aspect of the matter any further. Whether or not Victoria Police reasonably suspects or has at some earlier time suspected either appellant to have committed an offence is immaterial to the resolution of the question of statutory construction raised by the appellants. On 10 April 2015, written submissions were delivered to the IBAC on behalf of the second appellant, in which it was submitted that the public examinations in Operation Ross should be held in private, or alternatively that the second appellant's examination should be held in private. On 12 April 2015, written submissions were delivered to the IBAC on behalf of the first appellant, in which it was submitted that the first appellant could not be compelled to give evidence, or alternatively that the first appellant's examination should be held in private. On 15 April 2015, the Commissioner delivered reasons for his decision rejecting the appellants' submissions[1].[1]The Commissioner's reasons for dismissing the submissions were revised on 17 April 2015.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ GAGELER J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL, KEANE, NETTLE AND GORDON JJ, GAGELER J

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