SQH v Scott - [2022] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

SQH v Scott [2022] QSC 16

PARTIES:

SQH
(applicant/appellant)
v
MICHAEL JOHN SCOTT
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(first intervenor)
QUEENSLAND HUMAN RIGHTS COMMISSION
(second intervenor)

FILE NO/S:

BS No 11211 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2022 (restricted); 4 March 2022 (public)

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2021; 18 June 2021

JUDGE:

Williams J

ORDER:

The Court orders that:

1. Leave to appeal is granted.

2. The appeal is dismissed.

I will hear further from the parties in respect of costs and as to whether any further orders are required.

CATCHWORDS:

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITY – QUEENSLAND –APPEAL – GROUND OF APPEAL – ERROR OF LAW – where the respondent, as the presiding officer at a Crime and Corruption Commission hearing, made a decision to require the applicant to answer the question “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs”, after ruling that the applicant did not have a reasonable excuse, pursuant to section 194 of the Crime and Corruption Act 2001 (Qld) (CC Act) – where the applicant applies for leave to appeal under section 195(1) of the CC Act and, if leave is granted, an order setting aside the respondent’s decision – where the Attorney-General for the State of Queensland and the Queensland Human Rights Commission have intervened pursuant to sections 50 and 51 of the Human Rights Act 2019 (Qld) (HR Act) – where the applicant claims a reasonable excuse because compulsory examination would lock the applicant into a version of events from which the applicant cannot depart at trial, especially when that version would include details about co-defendants – where the respondent claims that the fact of the applicant’s existing charge is not capable of constituting a reasonable excuse – whether the respondent erred in finding that the applicant did not have a reasonable excuse under section 194(1) of the CC Act because the coercive hearing occurred after the applicant had been charged and therefore had the capacity of constraining the applicant’s legitimate forensic choices in the future conduct of the applicant’s trial and, in the circumstances of this case, constituted a reasonable excuse

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITY – QUEENSLAND –APPEAL – GROUND OF APPEAL – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant submits that the applicant’s answers can be made available to the legal representatives for each co-defendant, which would limit the applicant’s forensic choices at trial – where the respondent claims that the applicant has not advanced any factual or legal basis, beyond assertion, for why section 201 of the CC Act is relevant to a claim of reasonable excuse – whether the respondent failed to have regard to a relevant consideration, namely section 201 of the CC Act and the impact that the availability of the coerced material to the applicant’s co-defendants would have on the capacity of the safeguards in the CC Act to quarantine coerced answers from the applicant’s trial

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant submits that the limits on human rights imposed by the presiding officer’s decision are not justified – where the applicant further submits that the respondent’s consideration of less restrictive alternatives lacked logic and substance and the fair balance must take into account that the evidence would be made available to the legal representatives for each co-defendant – where the respondent claims that the jurisdictional prerequisite in section 59(1) of the HR Act is not met, with the consequence that the applicant cannot raise any purported non-compliance with section 58(1) of the HR Act – where the respondent further claims that, in any event, the respondent’s decision is compatible with the human right in section 32(2)(k) of the HR Act – whether the respondent acted unlawfully pursuant to section 58(1)(a) of the HR Act in that the decision that he made was not compatible with the applicant’s human right protected by section 32(2)(k) of the HR Act

Crime and Corruption Act 2001 (Qld), s 4, s 180, s 189, s 190, s 194, s 195, s 197, s 200A, s 201, s 202
Evidence Act 1977 (Qld), s 130
Human Rights Act 2019 (Qld), s 3, s 4, s 8, s 13, s 25, s 26, s 31, s 32, s 48, s 50, s 51, s 58, s 59

Crime and Misconduct Commission v WSX & EDC [2013] QCA 152, considered
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, considered
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, considered
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, considered
NS v Scott [2018] 2 Qd R 397; [2017] QCA 237, considered
PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, considered
Re Application under Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381, considered
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2013) 266 CLR 325; [2018] HCA 53, considered
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, considered

COUNSEL:

S C Holt QC, with M J Jackson, for the applicant/appellant
N Kidson QC, with R Berry, for the respondent
G A Thompson QC, with K J E Blore, for the first intervenor
P Morreau for the second intervenor

SOLICITORS:

Hannay Lawyers for the applicant/appellant
Crime and Corruption Commission for the respondent
Crown Law for the first intervenor

The Queensland Human Rights Commission for the second intervenor

The applicant[1] seeks leave to appeal a decision of the respondent made on 13 October 2020 under s 194(3)(b) of the Crime and Corruption Act 2001 (Qld) (the CC Act).
[1]For ease of reference, the applicant/appellant is referred to as the applicant in these reasons.
The Further Amended Originating Application[2] and Further Amended Notice of Appeal Subject to Leave,[3] relate to a decision by the respondent that the applicant did not have a reasonable excuse not to answer a question from the respondent, namely: “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs?”
[2]A Further Amended Originating Application was filed by leave on 22 June 2021.
[3]A Further Amended Notice of Appeal (subject to leave) was filed by leave on 22 June 2021.
The Further Amended Originating Application and the Further Amended Notice of Appeal Subject to Leave, contains the following three grounds of appeal:
“1. The respondent erred in finding that [the applicant] did not have a reasonable excuse under s 194(1) of the [CC Act] because the coercive hearing occurred after [the applicant] had been charged and therefore had the capacity of constraining [the applicant’s] legitimate forensic choices in the future conduct of [the applicant’s] trial and, in the circumstances of this case, constituted a reasonable excuse.
2.The respondent failed to have regard to a relevant consideration, namely s 201 of the [CC Act] and the impact that the availability of the coerced material to [the applicant’s] co-defendants would have on the capacity of the safeguards in the [CC Act] to quarantine coerced answers from the applicant’s trial.
3.The respondent acted unlawfully pursuant to s 58(1)(a) of the Human Rights Act 2019 in that the decision that he made was not compatible with the applicant’s human right protected by s 32(2)(k) of the Human Rights Act 2019.”
Subject to the grant of leave to appeal, the applicant seeks orders that the appeal be allowed, the decision of the respondent be set aside and costs.
Both the Attorney-General for the State of Queensland and the Queensland Human Rights Commission have intervened to make submissions in respect of Ground Three. The intervention is pursuant to ss 50 and 51 of the Human Rights Act 2019 (Qld) (HR Act) respectively.
The intervenors do not address Grounds One and Two and their involvement is confined to the application of the HR Act, specifically in respect of Ground Three, but also relevant preliminary issues that arise under the HR Act.
The preliminary issues include the following:
(a)The requirement of leave to appeal.[4]
(b)The requirement of s 59 of the HR Act (the piggyback clause) and the impact on Ground Three.
(c)The proper approach to s 48 of the HR Act (the interpretive clause).
(d)The exception in s 58(2) of the HR Act.
[4]Generally but also relevant to the next issue in respect of section 59 of the HR Act.
It is appropriate to consider these issues prior to considering the more substantive issues.
Confidentiality
The hearing of the application for leave to appeal and the appeal was conducted in closed court as required by s 195(9) of the CC Act. Orders were made protecting the confidentiality of the transcript of the hearing, exhibits, submissions and documents on the Court file. These orders are consistent with the requirements of s 200A of the CC Act.
Further, an order was made that these reasons may be published consistent with s 200A(7) of the CC Act. Section 200A(7) states:
“Nothing in this section prevents the publication of reasons for a decision in the proceeding if the publication does not identify–
(a)      a person; or
(b)      information that may prejudice–
(i)       an investigation being conducted by the commission; or
(ii) a specific intelligence operation being undertaken by the commission; or
(iii)      the performance of another function of the commission.”
To facilitate compliance with s 200A(7), these reasons will be provided to the parties for the identification of any information of concern prior to the reasons being made publicly available.
If necessary, information will be redacted in the public version of these reasons to protect information identified as being within s 200A(7)(b)(i) to (iii) of the CC Act.
Statutory scheme – CC Act
The application for leave to appeal is made pursuant to s 195 of the CC Act. Section 195 of the CC Act relevantly states:
“195     Appeals to Supreme Court
(1) A person may appeal against a decision of a presiding officer given under section 194(3)(b) if—
(a)      the person applies for leave to appeal the decision within 7 court days after the person is given the presiding officer’s reasons for decision; and
(b)      the Supreme Court grants leave to appeal.
(2) The Supreme Court may grant leave to appeal only if the court is satisfied—
(a)      if the appeal relates to a document or thing—the document or thing has been given to the commission and placed in safe custody; and
(b)      in all cases—the appeal has a significant prospect of success or there is some important question of law involved.
(3) An application for leave to appeal must state the grounds of the application.
(4) The Supreme Court must deal with an application for leave to appeal and the appeal expeditiously.
(5) On hearing the appeal, the Supreme Court may make an order—
(a)      affirming the presiding officer’s decision; or
(b)      setting aside the presiding officer’s decision.
(6) If the court affirms the presiding officer’s decision about a document or thing, the commission may access the document or thing.
(7) If the court sets aside the decision about a document or thing, the court must make an order directing that the document or thing be delivered to the person.
(8) A person may appeal only once under subsection (1) in relation to a particular reasonable excuse claimed by the person for not answering a question or producing a document or thing at a commission hearing.
(9) An application for leave to appeal, and an appeal, under this section are to be heard in closed court.
Note—
See also section 200A in relation to the confidentiality of proceedings under this section.
(10) However, the court may permit a person to be present at a hearing for the application for leave to appeal, or appeal, in the interests of justice.”
The relevant decision the subject of the application is a decision pursuant to s 194 of the CC Act. Section 194 of the CC Act states:
“194     Presiding officer to decide whether refusal to answer questions or produce documents or things is justified
(1) This section applies if a person claims to have a reasonable excuse, including a reasonable excuse based on a claim of legal professional privilege, for not complying with a requirement made of the person at a commission hearing—
(a)      to answer a question put to the person; or
(b)      to produce a document or thing that the person was required to produce.
(1A) The presiding officer must decide whether or not there is a reasonable excuse.
(1B) The presiding officer must decide, after hearing the person’s submissions—
(a)      that the requirement will not be insisted on; or
(b)      that the officer is not satisfied the person has a reasonable excuse.
(2) If the presiding officer decides, after hearing the person’s submissions, that the person has a reasonable excuse based on self-incrimination privilege for not complying with the requirement—
(a)      the presiding officer may require the person to comply with the requirement; and
(b) section 197 applies in relation to the answer, document or thing given or produced.
(3) If the presiding officer decides the person did not have a reasonable excuse for not complying with the requirement, the presiding officer must—
(a)      give the person reasons for the decision; and
(b) require the person to answer the question, or to produce the document or thing as required by the attendance notice, subject to the person’s right of appeal under section 195; and
(c) advise the person that the person may appeal the presiding officer’s decision to the Supreme Court within the time allowed under section 195.
Note—
A refusal to comply with the requirement to answer the question or produce the document or thing is an offence against section 185 or 192.
(4) If—
(a)      the person is required to produce a document or thing under subsection (3); and
(b) the person informs the presiding officer that the person wishes to appeal or consider an appeal under section 195;
the person must immediately seal the document or thing and give it to the commission for safekeeping.
Maximum penalty—85 penalty units or 1 year’s imprisonment.
(5) The commission must—
(a)      give the person a receipt for the sealed document or thing (the sealed evidence); and
(b)      place it in safe custody at the commission’s place of business at the earliest reasonable opportunity.
(6) A person must not open the sealed evidence unless authorised to open it under this Act or a court order.
Maximum penalty—85 penalty units or 1 year’s imprisonment.
(7) If the person fails to apply for leave to appeal within the time allowed under section 195, or leave to appeal is refused under that section, the commission may access the sealed evidence.”
Section 4 sets out the statutory purpose of the CC Act as follows:
“4         Act’s purposes
(1)      The main purposes of this Act are—
(a)      to combat and reduce the incidence of major crime; and
(b)      to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.
(2) The Act also has as the purpose to facilitate the commission’s involvement in a confiscation related investigation.”
Further, s 5 of the CC Act sets out how those purposes are to be achieved and includes in s 5(2) as follows:
“The commission is to have investigative powers, not ordinarily available to the police service, that will enable the commission to effectively investigate major crime and criminal organisations and their participants.”
Chapter 4 deals with hearings, deciding claims, privilege and excuse. Pursuant to s 176 of the CC Act, the Crime and Corruption Commission (the Commission) may authorise the holding of a hearing in relation to any matter relevant to the performance of its functions. Further, pursuant to s 177 of the CC Act, generally a hearing is not open to the public (however, that is subject to stated exceptions).
Section 180 of the CC Act sets out generally how hearings are to be conducted:
“180     Conduct of hearings
(1)      When conducting a hearing, the presiding officer—
(a)      must act quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before the presiding officer; and
(b)      is not bound by the rules of evidence; and
(c)       may inform himself or herself of anything in the way he or she considers appropriate; and
(d)      may decide the procedures to be followed for the hearing.
(2) The presiding officer or a person nominated by the presiding officer for the purpose may administer an oath, or take a statutory declaration, required by the presiding officer.
(3) The presiding officer may, by order, prohibit the publication of—
(a)      an answer given, or document or thing produced, at a commission hearing or anything about the answer, document or thing; or
(b)      information that might enable the existence or identity of a person who is about to give or has given evidence before the commission at a hearing to be ascertained.
(4) The presiding officer is taken, for the purposes of the hearing, to be the commission.”
Section 183 of the CC Act, which is contained in Part 2, provides that a person attending at a Commission hearing to give sworn evidence must not fail to take an oath when required by the presiding officer.
Division 3 (Refusal to answer) Subdivision 1 (Crime investigations and intelligence and witness protection functions) contains ss 189 and 190 of the CC Act which state as follows:
“189     Application of sdiv 1
This subdivision applies only in the context of the following—
(a)      a crime investigation;
(b)      an intelligence function hearing; or
(c)       a witness protection function hearing.
190     Refusal to answer question
(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.
Maximum penalty—200 penalty units or 5 years imprisonment.
(2)      The person is not entitled—
(a)      to remain silent; or
(b)      to refuse to answer the question on a ground of privilege, other than legal professional privilege.
(3)      If—
(a)      the person refuses to answer a question on the ground the answer to the question would disclose a communication to which legal professional privilege attaches; and
(b)      the person has no authority to waive the privilege;
the person must, if required by the presiding officer, tell the officer the name and address of the person to whom or by whom the communication was made.
Maximum penalty—200 penalty units or 5 years imprisonment.”
Sections 194 and 195 of the CC Act appear in Division 4 (Deciding claims) and apply in relation to crime investigations, intelligence and witness protection functions.
Section 197 of the CC Act, contained in Division 5 (Restrictions on use) states:
“197     Restriction on use of privileged answers, documents, things or statements disclosed or produced under compulsion
(1)      This section applies if—
(a)      before an individual answers a question put to the individual by the commission or a commission officer or produces a document or thing or a written statement of information to the commission or a commission officer, the individual claims self-incrimination privilege in relation to the answer or production; and
(b)      apart from this Act, the individual would not be required to answer the question or produce the document, thing or statement in a proceeding if the individual claimed self-incrimination privilege in relation to the answer or production; and
(c)       the individual is required to answer the question or produce the document, thing or statement.
(2) The answer, document, thing or statement given or produced is not admissible in evidence against the individual in any civil, criminal or administrative proceeding.
(3) However, the answer, document, thing or statement is admissible in a civil, criminal or administrative proceeding—
(a)      with the individual’s consent; or
(b)      if the proceeding is about—
(i) the falsity or misleading nature of an answer, document, thing or statement mentioned in subsection (1) and given or produced by the individual; or
(ii)      an offence against this Act; or
(iii) a contempt of a person conducting the hearing; or
(c)       if the proceeding is a proceeding, other than a proceeding for the prosecution of an offence, under the Confiscation Act and the answer, document, thing or statement is admissible under section 265 of that Act.
(4) Also, the document is admissible in a civil proceeding about a right or liability conferred or imposed by the document.
(5) In a commission hearing, the presiding officer may order that all answers or a class of answer given by an individual or that all documents or things or a class of document or thing produced by an individual is to be regarded as having been given or produced on objection by the individual.
(6) If the presiding officer makes an order under subsection (5), the individual is taken to have objected to the giving of each answer, or to the producing of each document or thing, the subject of the order.
(7) Subsection (2) does not prevent any information, document or other thing obtained as a direct or indirect consequence of the individual giving or producing the answer, document, thing or statement from being admissible in evidence against the individual in a civil, criminal or administrative proceeding.”

Section 201 of the CC Act is set out in full below at [237]. Generally, it provides that the Commission must give evidence to the defence unless a Court orders otherwise and the evidence must only be used for the defence to the charge.
Section 202 of the CC Act provides other protective features and states as follows:
“202       Publication of names, evidence etc.
(1) A person must not, without the commission’s written consent or contrary to the commission’s order, publish—
(a) an answer given, or document or thing produced, at a commission hearing, or anything about the answer, document or thing; or
(b) information that might enable the existence or identity of a person who is about to give or has given evidence before the commission (witness) at a hearing to be ascertained.
Maximum penalty—85 penalty units or 1 year’s imprisonment.
(2) A person does not contravene subsection (1) if any of the following applies to the publication—
(a) the answer given, or document or thing produced, was given or produced at a public hearing and the publication is not contrary to the commission’s order;
(b) the witness appeared at a public hearing and the publication is not contrary to the commission’s order;
(c)      the publication is made—
(i)       for the purpose of defending a charge of an offence and is relevant to the defence; and
(ii)      to a person charged with the offence or a lawyer representing a person charged with the offence;
(d) the publication is made for the purpose of making a submission to the parliamentary committee about the conduct of the commission’s investigation;
(e) the publication is made for the purposes of a disciplinary proceeding or to start a prosecution for an offence.
(3) Also, a person does not contravene subsection (1)(b) if—
(a) the person is the witness, or the publication is made with the witness’s implied or express consent; or
(b) the information mentioned in the provision has been generally made known by the witness or by the commission.
(4) The commission may apply to a Supreme Court judge for an order prohibiting a publication mentioned in subsection (2)(e).
(5) In this section—
publish includes publish to a single person, whether the publication is made orally or in writing.”
Statutory scheme – HR Act
The HR Act commenced in Queensland on 1 January 2020.
Section 3 of the HR Act states the main objects as follows:
“3 Main objects of Act
The main objects of this Act are—
(a) to protect and promote human rights; and
(b) to help build a culture in the Queensland public sector that respects and promotes human rights; and
(c) to help promote a dialogue about the nature, meaning and scope of human rights.”
Section 4 of the HR Act outlines how the objects are to be primarily achieved as follows:
“4 How main objects are primarily achieved
The main objects are to be achieved primarily by—
(a) stating the human rights Parliament specifically seeks to protect and promote; and
(b) requiring public entities to act and make decisions in a way compatible with human rights; and
(c)requiring statements of compatibility with human rights to be tabled in the Legislative Assembly for all Bills introduced in the Assembly; and
(d) providing for a portfolio committee responsible for examining a Bill introduced in the Legislative Assembly to consider whether the Bill is compatible with human rights; and
(e)providing for Parliament, in exceptional circumstances, to override the application of this Act to a statutory provision; and
(f) requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights; and
(g) conferring jurisdiction on the Supreme Court to declare that a statutory provision can not be interpreted in a way compatible with human rights; and
(h)providing for a Minister and a portfolio committee to report to the Legislative Assembly about declarations of incompatibility; and
(i) providing for how to resolve human rights complaints; and
(j) providing for the Queensland Human Rights Commission to carry out particular functions under this Act, including, for example, to promote an understanding and acceptance of human rights and this Act in Queensland.”
Section 5 of the HR Act states that the Act binds all persons, including the State. In respect of public entities, the Act applies to the extent the public entity has functions under Part 3, Division 4.
The statutory scheme includes Division 2 dealing with interpretation. Section 6 refers to Schedule 1 which contains definitions of particular words used in the HR Act.
Section 6 of the HR Act defines “human rights” to mean the rights stated in Part 2, Divisions 2 and 3.
Further, s 8 of the HR Act defines “compatible with human rights”. This provision is set out in full at [110] below.
Relevantly to the current application, “public entity” is defined as including “(f) an entity established under an Act when the entity is performing functions of a public nature”. Further, “perform a function” is defined in Schedule 1 as “includes exercise a power”.
Part 2 of the HR Act deals with human rights in Queensland. The starting position under s 11 of the HR Act is that all individuals in Queensland have human rights.
Section 12 recognises that the human rights under the Act are in addition to other rights and importantly states:
“A right or freedom not included, or only partly included, in this Act that arises or is recognised under another law must not be taken to be abrogated or limited only because the right or freedom is not included in this Act or is only partly included.”
Section 13 of the HR Act sets out the circumstances in which a limitation may be placed on a human right. This provision is set out in full at [111] below.
Division 2 sets out specific civil and political rights. These rights largely draw on the International Covenant on Civil and Political Rights (ICCPR), however there are some differences in language and not all rights in the ICCPR have been incorporated into the HR Act.
Relevant to the current application are ss 25(a), 26, 31 and 32(2)(k) of the HR Act, which provide as follows:
“25       Privacy and reputation
A person has the right—
(a) not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)      not to have the person’s reputation unlawfully attacked.
26      Protection of families and children
(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2) Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.
(3) Every person born in Queensland has the right to a name and to be registered, as having been born, under a law of the State as soon as practicable after being born.
…
31      Fair hearing
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice.
(3) All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
32      Rights in criminal proceedings
(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—
(a)      to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication the person speaks or understands;
(b)      to have adequate time and facilities to prepare the person’s defence and to communicate with a lawyer or advisor chosen by the person;
(c)       to be tried without unreasonable delay;
(d)      to be tried in person, and to defend themselves personally or through legal assistance chosen by the person or, if eligible, through legal aid;
(e)      to be told, if the person does not have legal assistance, about the right, if eligible, to legal aid;
(f)       to have legal aid provided if the interests of justice require it, without any costs payable by the person if the person is eligible for free legal aid under the Legal Aid Queensland Act1997;
(g)      to examine, or have examined, witnesses against the person;
(h)      to obtain the attendance and examination of witnesses on the person’s behalf under the same conditions as witnesses for the prosecution;
(i)       to have the free assistance of an interpreter if the person can not understand or speak English;
(j)       to have the free assistance of specialised communication tools and technology, and assistants, if the person has communication or speech difficulties that require the assistance;
(k)      not to be compelled to testify against themselves or to confess guilt.
(3) A child charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child's rehabilitation.
(4) A person convicted of a criminal offence has the right to have the conviction and any sentence imposed in relation to it reviewed by a higher court in accordance with law.
(5) In this section—
legal aid means legal assistance given under the Legal Aid Queensland Act 1997.”
Part 3 deals with the application of human rights in Queensland and Division 3 deals with the interpretation of laws. Section 48 of the HR Act is contained within Division 3 and sets out the requirements in relation to the interpretation of all statutory provisions. The provision is set out in full at [107] below.
Section 49 contains a process for a referral of a question of law on the interpretation of the HR Act to the Supreme Court for determination. Section 50 relates to the application of the HR Act or in relation to the interpretation of a provision in the HR Act.
Section 53 of the HR Act provides for the Supreme Court to make a declaration of incompatibility where the Court is of the opinion that a statutory provision cannot be interpreted in a way compatible with human rights.
Division 4 sets out obligations on public entities. Section 58 of the HR Act states as follows:
“58       Conduct of public entities
(1)      It is unlawful for a public entity—
(a)      to act or make a decision in a way that is not compatible with human rights; or
(b)      in making a decision, to fail to give proper consideration to a human right relevant to the decision.
(2) Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.
Example—
A public entity is acting to give effect to a statutory provision that is not compatible with human rights.
(3) Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
(4) This section does not apply to an act or decision of a private nature.
(5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
(a)      identifying the human rights that may be affected by the decision; and
(b)      considering whether the decision would be compatible with human rights.
(6)      To remove any doubt, it is declared that—
(a)      an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
(b)      a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).”
Section 59 of the HR Act deals with relief and is set out in full at [82] below.
Section 108 of the HR Act deals with the application of the Act and states:
“This Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.”
This is subject to ss 106 and 107 but those sections are not relevant to the current application.
Factual background
The background facts will only be referred to in these reasons in general terms and to the extent necessary. The background facts are not controversial between the parties.
The applicant and the applicant’s partner were charged in relation to a number of offences. The charges followed police officers executing a search warrant at the residence of the applicant and the applicant’s partner, during which certain items were located.
Subsequently, an attendance notice was issued by the Commission pursuant to s 82(1)(a) of the CC Act requiring the applicant to attend to be examined in relation to the applicant’s knowledge of offending in a specified geographical area.
The applicant attended in accordance with the attendance notice. The respondent was the presiding officer for the purposes of the hearing. The full transcript of the hearing is in evidence.
The hearing proceeded as a closed hearing pursuant to s 178(3) of the CC Act and a non-publication order was also made pursuant to s 180(3) of the CC Act.
The respondent also ordered a “blanket” self-incrimination protection pursuant to s 197(5) of the CC Act.[5]
[5]The parties were requested to provide further submissions on the relevance of this order to the issues raised in the application and appeal. No party considered there were any additional issues that needed to be considered arising out of the respondent’s order pursuant to s 197(5) of the CC Act.
Further, pursuant to s 60(2) of the CC Act, the respondent informed the applicant that the Commission may, in effect, share information with other entities.
The applicant was represented by Counsel and a solicitor at the hearing.
Following the applicant being sworn, the respondent asked the applicant “what is your knowledge of [Co-accused#1][6] and [Co-accused#2][7]’s involvement in the trafficking of dangerous drugs?”.
[6]The applicant’s partner and co-accused in respect of the offences arising out of the execution of the search warrant.
[7]The evidence does not identify what offence Co-accused#2 was charged with (though reference was made to the applicant being charged) and it is not clear whether Co-accused#2 was a co-offender with the applicant. However, Co-accused#2 was alleged to be involved with Co-accused#1.
The applicant declined to answer the question and claimed to have a reasonable excuse not to answer the question. The applicant indicated “this question touches on my current charge” and that answering the question “has an impact on [the applicant] receiving a fair trial.”
The respondent then indicated that he “provisionally require[d] [the applicant] to answer that question”. The applicant confirmed that despite being required to answer the question the applicant claimed a reasonable excuse not to answer the question.
Counsel on behalf of the applicant then made submissions to the respondent in respect of the applicant’s claim of a reasonable excuse. These submissions included:
(a)The applicant had been charged together with Co-accused#1.
(b)The risk of derivative evidence being obtained.[8]
(c)The right protected by s 32(2)(k) HR Act: “not to be compelled to testify against themselves or to confess guilt”.[9]
[8]Particularly as considered in X7 v Australian Crime Commission (2013) 248 CLR 92.
[9]As considered in DAS v Victorian Human Rights & Equal Opportunity Commission [2009] VSC 381 and also X7 v Australian Crime Commission (2013) 248 CLR 92.
Counsel for the applicant placed particular reliance on the statement by Hayne and Bell JJ in X7 v Australian Crime Commission at [124]:
“Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, 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 has been laid by being required to answer questions about the subject matter of the pending charge.”[10]
[10]In submissions on this application, it is noted that this statement was approved by the High Court in Lee v The Queen (No 2) (2014) 253 CLR 455 at [41] and also in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325 at [76].
Counsel Assisting then made submissions, including:
(a)The statutory scheme in the CC Act, including the purposes (s 4), the powers of the Commission (s 5(2)), the Commission’s major crime function (s 25), the power to hold hearings (s 176) and the major referral regime (ss 26, 27(5) and 60(2)).
(b)The respondent’s orders authorised the provision of information from the hearing to certain entities, including investigators. However, the information would not be given to prosecutors consistent with the requirements in Lee v The Queen.[11]
[11](2014) 253 CLR 455.
(c)The “blanket” protection against self-incrimination made pursuant to s 197(5) provided that any answers given under compulsion at the examination would not be admissible in a prosecution against the applicant.
(d)“Reasonable excuse” has previously been considered by the Court of Appeal in Crime and Misconduct Commission v WSX[12] where it was recognised as an objective test as follows:
[12](2013) 229 A Crim R 286 at 293 per de Jersey CJ, Gotterson JA and Mullins J.
“[37] Whether reasonable excuse exists is a matter for objective determination, and the consequences of a refusal to answer, to both the examinee and the appellant Commission, are relevant considerations.”
(e)There were two purposes to the examination of the applicant:
(i)To obtain information in relation to other targets of the investigation;[13] and
(ii)To obtain derivative evidence which may be used in the prosecution of any person who may be charged in relation to the investigation.[14]
(f)Section 331 of the CC Act makes it clear that the Commission may commence an investigation or a hearing despite criminal proceedings having been commenced.
(g)Section 331(2) provides safeguards to the witness’ right to a fair trial. These include a closed hearing, a direction under s 202 and an order under s 180(3). In respect of the application, it was a closed hearing and non-publication orders were made under s 180(3) and orders under s 60 identifying the entities to which disclosure could be made.
(h)Section 197 abrogated the right to silence, with Parliament’s intention evidenced in the clear terms of the section.
(i)Reliance was placed on the decisions in Strickland (a pseudonym) v Director of Public Prosecutions (Cth),[15] X7 v Australian Crime Commission and NS v Scott,[16] particularly in respect of derivative use evidence and the discretion to exclude evidence under s 130 of the Evidence Act 1977 (Qld), or at common law.
(j)On balance, the “protective” orders dealt with the issue identified in Strickland and in the circumstances ensured the applicant’s right to a fair trial.
[13]This would include Co-accused#1 and Co-accused#2 who were primary targets of the investigation.
[14]It is foreseeable that this could be the offences the applicant was then currently charged with, as well as any new charges brought as a result of the investigation.
[15](2018) 266 CLR 325.
[16][2018] 2 Qd R 397.

Counsel Assisting also specifically addressed the HR Act and in particular sections 8 and 13. It was submitted that by operation of the relevant sections of the CC Act[17] the limitations on human rights were authorised by law. That is, the limitations were not incompatible with the applicant’s human rights as a result of the protective measures in place and the limitations were reasonable and demonstrably justifiable.
[17]Sections 82, 176, 183, 190 and 331.
In support of this conclusion, Counsel Assisting referred to and relied on a number of contentions including:
(a)There were similarities between the current facts and the facts in DAS v Victorian Human Rights & Equal Opportunity Commission: namely, an investigation into organised crime, involved serious offences with considerations of detriment to society and the difficulty in obtaining evidence other than from the individuals involved in the alleged organised crime.
(b)While there was a limitation on the applicant’s human right, whether the limitation was proportionate required consideration of the nature and severity of the offending and the number of people involved in the alleged syndicate.
(c)Further, considerations of public interest supported the questioning of people involved in organised crime, particularly those lower in the hierarchy or who were less culpable due to their knowledge or actions. The objective of the questioning was to gather information on the principal targets and, also, specific individuals who in effect enable the expansion or the criminality or assist in the avoidance of detection.
Following the submissions, the respondent proceeded to give a ruling on the applicant’s claim of a reasonable excuse not to answer the question asked.
The respondent’s reasoning included the following:
(a)Co-accused#1 was the applicant’s partner and co-accused in respect of the charges. Co-accused#2 had also been charged in respect of matters covered by the investigation.
(b)Protective orders were made at the commencement of the examination, including:
(i)Protection in respect of self-incrimination privilege under s 197(5) of the CC Act.
(ii)Non-publication order under s 180(3) of the CC Act.
(iii)No publication of information under s 202 of the CC Act, together with information to be shared only with identified agencies under s 60 of the CC Act.
(c)These orders addressed the concerns recognised by the High Court in Lee v The Queen.[18] As a result, answers given by the applicant at the examination would not be provided to the prosecutors in respect of the applicant’s prosecution.
[18](2014) 253 CLR 455.
(d)The claim of reasonable excuse was “not particularly factual, it was rather legally based”.
(e)The claim had two bases:
(i)The applicant’s answers might be used derivately against the applicant, to the extent that they touched upon the subject matter of the applicant’s own criminal charges. Consistently with the principles identified in X7 v Australian Crime Commission, this could give rise to a reasonable excuse.
(ii)Being compelled to answer questions about the applicant’s own alleged criminal conduct would infringe the applicant’s human rights under the HR Act, particularly the rights in s 32(1) and 32(2)(k).
(f)The relevant provisions of the CC Act included the purpose in s 4; the powers of the Commission in s 5; the major crime function in ss 25, 26 and 27; and the conduct of hearings in ss 82, 183 and 190 of the CC Act.
(g)The application of s 197 and the “use immunity” in s 197(2) which operates so that the “answer, document, thing or statement” given or produced at the examination is not admissible against the applicant. The making of the “blanket order” pursuant to s 197(5) attracts that protection.
(h)A consideration of the authorities in respect of examinations at coercive hearings of individuals with existing or pending charges against them, including the High Court decisions in Hammond v The Commonwealth,[19] X7 v Australian Crime Commission, Lee v The Queen and Strickland (a pseudonym) vDirector of Public Prosecutions (Cth). The respondent concluded that these cases could be distinguished given s 331 of the CC Act.
(i)Section 331 of the CC Act is a clearly expressed legislative statement that a person charged with a criminal offence may be subject to a compulsory examination by the CCC.
(j)The facts in NS v Scott are very similar to the facts concerning the applicant. In NS v Scott the Chief Justice recognised that the use of derivative use evidence does not necessarily prejudice a fair trial. The nature of the evidence and whether it is available from other sources are relevant factors. Section 130 of the Evidence Act 1977 (Qld) may also provide a basis for an application to exclude the evidence on the ground of unfairness.
(k)In NS v Scott, the Chief Justice also stated that “in particular circumstances” a charged person who fears a derivative use of answers may have a reasonable excuse. An example of this would be questions designed to incriminate the witness by eliciting the nature of the defence, in order to “arm the prosecution with the means of rebutting it”. The respondent concluded that the forensic purposes of the examination did not establish such an intention.[20]
(l)Section 197(7) of the CC Act clearly provides that evidence “obtained as a direct or indirect consequence” of evidence given at the examination was not inadmissible by reason of s 197(2).
(m)By reason of s 197(7) and s 331 of the CC Act and the community interest in obtaining the information sought[21], the applicant did not have a reasonable excuse on the first basis claimed.
[19](1982) 152 CLR 188.
[20]The purposes of the examination were identified in the absence of the applicant and the applicant’s legal representatives. The respondent then stated them as part of the reasons.
[21]Identified as the purpose for calling the applicant.
The respondent then proceeded to consider the second basis in respect of the HR Act:
(a)The respondent identified the two key provisions to be considered: ss 13 and 32 of the HR Act, in particular s 32(2)(k).
(b)The respondent concluded that s 32 of the HR Act was engaged even though the examination proceedings were administrative and not criminal.
(c)The respondent acknowledged that the decision made at the Commission hearing could impinge upon the rights of a person charged in a criminal proceeding, including the right not to be compelled to testify against themselves or to confess guilt (s 32(2)(k) HR Act).
(d)In respect of s 13 of the HR Act the respondent identified that the human rights enshrined in the HR Act can be subject to reasonable limits provided that they can be demonstrably justified for the “reasons” set out in s 13.
(e)The respondent concluded that:
(i)The legislative intention is clear that a person charged with a criminal offence can be compelled to give evidence at a Commission hearing and can be compelled to testify against themselves or to confess guilt.
(ii)But for the “legislative protections in place” there would be an infringement of the right in s 32(2)(k) of the HR Act.
(iii)The protective features and orders mitigate against that limitation of the right.[22]
[22]These include the closed hearing, the blanket order in respect of self-incrimination, information from the examination not to be provided to the prosecution and cannot be used in evidence against the applicant.
(iv)The legislation also clearly shows the legislative intention that there is no derivative use immunity pursuant to s 197(7) and a witness can be called to give evidence even though criminally charged.
(f)The respondent then considered the specific factors set out in s 13(2) of the HR Act in considering whether the limit on the human right in s 32(2)(k) was “reasonable and justifiable”. The respondent concluded that these factors were not exhaustive and were not mandatory, but “may be relevant”.
(g)The respondent’s reasoning can be summarised as follows:
(i)Section 13(a) – the nature of the human right: it is a long standing and fundamental right. The respondent took into account the importance of the right to silence; that is, an accused person is not to be required to assist the prosecution in the discharge of the onus of proving its case beyond reasonable doubt.
(ii)Section 13(b) – the nature of the purpose of the limitation: the legislative purpose of the limitation is to enable major crime, including organised crime, to be investigated, including where a witness is facing criminal charges. Criminal activity of this nature causes harm to the community.
(iii)Section 13(c) – the relationship between the limitation and its purpose: obtaining evidence that may lead to further evidence would be helpful to achieve the purpose of investigating organised crime.
(iv)Section 13(d) – whether there are any less restrictive and reasonably available ways to achieve the purpose: there are not any less restrictive and reasonably available ways to achieve the purpose. In reaching this conclusion the respondent considered:
(A)       The applicant had previously exercised the applicant’s right to silence and declined to participate in a police record of interview.
(B)       Whether there was any other practical way to obtain the information sought from the witness which was less restrictive and reasonably available. None could be identified.
(C)       The applicant’s compelled evidence together with the protections in place was the only option available to achieve the purpose.
(v)Section 13(e) – the importance of the purpose of the limitation: the legislature has spoken very clearly about the importance of investigating organised crime.
(vi)Section 13(f) – the importance of preserving the human right: but for the protective features, the importance of preserving the human right may have prevailed.
(vii)Section 13(g) – the balance between the matters in (e) and (f): on balance, when the protective features are taken into account, the limits that the legislation and the case law put on the human right can be demonstrably justified in a democratic society.
(h)On these bases, the respondent concluded that the applicant did not have a reasonable excuse for not answering the question on the basis of the applicant’s human rights under s 31 of the HR Act.[23]
[23]Section 31 is the right of a person charged with a criminal offence to have the charge decided including “after a fair and public hearing”.
As a result of these conclusions, the respondent indicated that he did not think the applicant had a reasonable excuse not to answer the question and required the applicant to answer the question. The applicant was informed of the applicant’s appeal rights as required by s 194(3)(c) of the CC Act. The applicant indicated that the applicant wished to appeal the decision and the matter was adjourned.
Leave to appeal
Pursuant to s 195(1) of the CC Act, leave to appeal is required. Further, s 195(2) sets out the matters that the Court must be satisfied of to grant leave. Section 195(2) relevantly states as follows:
“The Supreme Court may grant leave to appeal only if the court is satisfied–
…
(b)in all cases – the appeal has a significant prospect of success or there is some important question of law involved.”
The Further Amended Originating Application and the Further Amended Notice of Appeal Subject to Leave, state the reasons relied upon by the applicant as to why leave should be granted. The applicant contends that leave to appeal should be granted as:
“1. The appeal has significant prospects of success.
2. The appeal raises important questions of law because the decision of NS v Scott [2018] 2 Qd R 397 considered s 331 of the Crime and Corruption Act 2001 but was decided prior to the Human Rights Act 2019 and Strickland v Director of Public Prosecutions (Cth) (2018) 266 CLR 325, in particular:
a. Whether the requirement to act compatibly with s 32(2)(k) of the Human Rights Act 2019 alters the approach to the question of reasonable excuse for persons already charged with criminal offences and who are questioned about matters associated with those alleged offences.
b. Whether, in a case where a person is coercively questioned about matters relating to alleged offences with which they have already been charged, the likelihood of the answers to those questions being disclosed to a co-defendant under s 201 of the Crime and Corruption Act 2001 amounts to a reasonable excuse for refusing to answer those questions.”
The application for leave to appeal was heard at the same time as the appeal. Lengthy written and oral submissions were made as to the substantial grounds of appeal, including submissions by the Attorney-General for the State of Queensland and the Queensland Human Rights Commission in respect of the issues under the HR Act.
The threshold issue of leave to appeal is also relevant to the submissions about the operation of s 59 of the HR Act, which is discussed further below.
The applicant relied upon its substantive submissions in support of the application for leave to appeal. Further, Counsel for the applicant also contended that the “row of parties at the bar table indicate the answer to the [important question of law involved], at least in respect of Ground Three, is yes”.[24]
[24]T1–13, L8-9 (26 May 2021).
The questions of law that the applicant identifies as arising in the appeal are:
“3. First, whether the decision of Strickland v Director of Public prosecutions (Cth) alters the approach to the question of ‘reasonable excuse’ under section 194(1) of the CC Act when the coerced hearing occurred after the appellant had been charged and [the applicant’s] answers have the capacity to constrain [the applicant’s] legitimate forensic choices in the future conduct of [the applicant’s] trial.
4. Second, the impact of section 201 of the CC Act and the likelihood of the appellant’s answers being disclosed to a co-defendant under that provision and whether that amounts to a reasonable excuse for refusing to answer those questions under section 194 of the CC Act.
5. Third, whether the requirement to act compatibly with section 32(2)(k) of the [HR Act] alters the approach to the question of ‘reasonable excuse’ for persons already charged with criminal offences and who are questioned about matters associated with those alleged offences.” (footnotes omitted)
Counsel appearing on behalf of the Queensland Human Rights Commission addressed the question of leave to appeal in oral submissions in the following terms:
“… our submissions do not traverse as to the merits … of the grounds raised in one and two, but we would suggest, respectfully, that there is an important question of law involved in the questions raised, and it is of that kind principally because the questions raised now must be looked at in light of the requirements of the Human Rights Act. So … grounds 1 and 2 require the court to engage with the application of the Human Rights Act to those grounds by way of the interpretive mandate in section 48, sub (1) of the … [HR] Act.”[25]
[25]T1-45, L9-15 (26 May 2021).
Counsel for the respondent contended in respect of the issue of leave to appeal:
“With leave to appeal … under the [CC] Act … the test for leave to appeal is fairly rigorous. It’s either an important question of law or significant prospects of success. So it’s a higher bar, even on a leave to appeal application generally.
So in the [CC] Act itself … there is an indication of also limiting … appeals to important questions of law or significant prospects of success. And it can be masked to some extent when applications for leave to appeal are just heard instanter with the actual appeal. ”[26]
[26]T1-14, L12-20 (18 June 2021).
Further submissions were also made by the respondent in respect of how the requirement for leave interacts with s 59 of the HR Act. These will be considered further below in respect of the “piggyback” issue.
The issues considered by the Court of Appeal decision in NS v Scott are very similar to the issues raised here. However, that decision was before the HR Act came into operation and also before the High Court decision in Strickland (a pseudonym) v Director of Public Prosecutions (Cth).
It is not disputed that the operation of the HR Act raises important questions of law, particularly those identified in the third question set out above. While there are now a few single judge decisions of this Court considering the operation of the HR Act, the operation of the HR Act in conjunction with the CC Act, and in particular coercive examinations, has not been the subject of judicial consideration.[27]
[27]Extensive reference has been made in submissions to decisions in Victoria and overseas jurisdictions all of which are helpful. However, there are differences in the various human rights statutory schemes and this may have some impact on the application of the relevant principles.
However, given s 59 of the HR Act, some focus needs to be given to the non-human rights questions, namely the first and second questions identified above.
It is apparent from the cases referred to in submissions that whilst general principles have been identified from the various authorities, they often turn on the particular facts being considered. Each of the decisions by the High Court on these issues highlights the fundamental importance of the right of an accused person to a fair trial and associated rights in the context of criminal proceedings.
This case presents facts with the additional element of there being co-accused, which is relevant to both the first and second questions. At the risk of oversimplifying the issue, the applicant’s case raises whether the outcome in NS v Scott should still be arrived at taking into account the principles identified by the High Court in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) and also the operation of s 201 of the CC Act by which evidence from the examination may need to be provided to the co-accused.
In all of the circumstances, these are important questions of law. They go to issues central to the administration of the criminal justice system in Queensland and the intersection of the criminal justice system with coercive examination of a charged person by a statutory body. I am satisfied that leave to appeal should be granted in respect of Grounds One and Two.
In respect of Ground Three, similarly important questions of law are raised. The HR Act in Queensland is relatively new and there is not mature jurisprudence on its application generally,[28] let alone in respect of the important powers and functions of the Commission contained in the CC Act.
[28]While Victoria has extensive judicial consideration of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter), there are differences between the HR Act and the Victorian Charter which require careful consideration in the application of some of the authorities.
Accordingly, leave to appeal is granted in respect of Ground Three. In reaching this view I have also factored in my consideration of the issues raised in respect of s 59 of the HR Act discussed below.
The requirements of s 59 HR Act (the piggyback clause) in respect of Ground Three
Section 59 of the HR Act deals with relief and states as follows:
“59       Legal proceedings
(1) Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
(2) The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
(3) However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
(4) This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including—
(a)      a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and
(b)      a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
(5) A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
(6) Nothing in this section affects a right a person may have to damages apart from the operation of this section.”

Generally, s 59 of the HR Act contains a mechanism that allows human rights claims to be brought in conjunction with other proceedings brought on a ground of unlawfulness: that is, a claim for unlawfulness arising on a human rights basis is “piggybacked” on to proceedings claiming unlawfulness on another basis.
At the outset there was some consensus that if a ground of appeal under s 195 of the CC Act is based on an independent allegation of unlawfulness, then a human rights claim may be “piggybacked” on it. However, there was a dispute about a number of issues including:
(a)Whether the applicant’s Grounds One and Two were allegations of unlawfulness as required by s 59 HR Act.
(b)Whether the applicant’s Grounds One and Two meet the leave threshold in s 195(2)(b) of the CC Act.
The applicant and the Queensland Human Right Commission adopt the written submissions on behalf of the Attorney-General in respect of this issue.
The Attorney-General submitted that the requirements of s 59 of the HR Act may be met in circumstances where an appeal may, but need not, be based on a ground of unlawfulness. For example, an error of law. Provided an allegation of unlawfulness was made, then an allegation of human rights unlawfulness may be “piggybacked”.
Further, the Attorney-General submitted that this interpretation is consistent with the purpose of s 59; that is, to only allow human rights to be agitated in court proceedings that would otherwise be brought, and not to increase litigation.
The written submissions on behalf of the Attorney-General helpfully developed these contentions, including by reference to Victorian authorities considering s 39 of the Victorian Charter on which s 59 is based.
Additionally, whilst not commenting on the substance of Grounds One and Two, the Attorney-General’s submissions recognise that Grounds One and Two could be characterised, respectively, as an error in finding there was no reasonable excuse and a failure to have regard to a relevant consideration.
These two grounds are akin to administrative law grounds of unlawfulness and for the purposes of s 59 of the HR Act are clearly capable of providing an independent ground of unlawfulness.
The respondent originally submitted that Grounds One and Two did not amount to unlawfulness.[29] However on the second day of submissions, Counsel for the respondent conceded the point in the following terms:
“I can say now that, having had the benefit of hearing the applicant’s submissions the previous day and a better understanding of the way in which their cases are put, is that we don’t take any issue that they’ve made allegations of unlawfulness in relation to both of their grounds.”[30]
[29]Respondent’s written submissions at [47] and reply submissions at [3].
[30]T1-13, L30-34.
In these circumstances, it is not necessary to consider further the issue of whether Grounds One and Two provide independent allegations of unlawfulness.
Whilst I have already addressed the issue of leave to appeal above, it remains necessary to consider the second issue as to whether the applicant’s Grounds One and Two meet the leave threshold in s 195(2)(b) of the CC Act to the extent that it is relevant to the ability of the human rights claim to be “piggybacked”.
The respondent submits that Grounds One and Two do not raise important questions of law.[31] It is also inherent in the respondent’s substantive submissions that the applicant does not have “significant prospects of success” and in these circumstances the respondent contends that leave to appeal should be refused.
[31]Respondent’s written submissions at [48].
This position is highlighted in the respondents reply submissions which state:
“4. … whilst all parties (including the respondent) have been proceeding on the basis that, if leave to appeal is granted under s 195(2) of the CC Act then the Court should hear and determine the appeal instanter, that does not alter the fact that an application for a grant of leave is separate to, and a precondition for, an appeal. If, as the [respondent] has submitted, it is the appeal that would constitute the relevant proceeding for the purposes of s 59(1) of the HR Act – so that an independent ground of appeal must be available upon which a human rights ground can ‘piggyback’ – the issue is whether it would be permissible for an appeal to be prosecuted solely on the basis of a ground of unlawfulness under the HR Act in the event that neither proposed ground 1 or 2 satisfies the threshold for a grant of leave.”
In respect of the respondent’s submissions on this issue, the Attorney-General’s submissions at [29] state:
“… That appears to be a submission that the applicant will not succeed on the first and second grounds of [the applicant’s] application. As s 59(2) of the HR Act makes clear, that is irrelevant to whether s 59(1) is satisfied. Provided the independent grounds of unlawfulness are ‘non-colourable’[32] and able to withstand a strike-out application,[33] the applicant may agitate human rights arguments ‘even if [the applicant] may not be successful in obtaining relief or remedy’ on the independent grounds of unlawfulness (s 59(2)).[34]”
[32]Kheir v Robertson [2019] VSC 422 [99]–[101] (McDonald J).
[33]Pamela Tate SC S-G, ‘A Practical Introduction to the Charter of Human Rights and Responsibilities’ (Speech, Seminar Program of the Victorian Government Solicitor’s Office, 29 March 2007) 15 [95(8)].
[34]An example of this from Victoria is provided by Certain Children v Minister for Families and Children [No 2] (2017) 52 VR 441, 598 [549] (Dixon J).
The respondent and the Attorney-General’s submissions consider the case of PJB v Melbourne Health[35] in respect of this issue. The Attorney-General refers to the case as authority for the proposition that a requirement to seek leave to appeal is not an impediment to satisfying the “piggyback” clause. The respondent submits that the case is distinguishable as leave to appeal was granted in respect of independent grounds alleging unlawfulness.
[35](2011) 39 VR 373, 440 [303] (Bell J).
PJB v Melbourne Health concerned an appeal from a decision of the Victorian Civil and Administrative Tribunal including a ground that the Tribunal had taken an irrelevant consideration into account and unreasonableness in the Wednesbury sense. Bell J concluded at [303] that under s 39(1) of the Victorian Charter the appellant was entitled to rely on unlawfulness under the Charter whether or not the other grounds of unlawfulness were determined.
It appears from the reasons that leave to appeal had been granted by the Court and the appeal proceeded on the eight questions of law set out in the notice of appeal. It does not appear to be an example of where the application for leave to appeal and appeal are heard together.
In the current case, the issues raised in Grounds One and Two arise in the context of a coerced examination by the Executive of a person charged with a criminal offence about matters relevant to the offences for which the witness and co-accused have been charged. These are matters which by their very nature are likely to raise issues of the proper exercise of the powers of the decision maker and, now with the operation of the HR Act, human rights issues, including the interpretation of the governing statute.
It is now accepted that Grounds One and Two raise a ground of unlawfulness. They are clearly arguable grounds as is evidenced by the submissions made orally and in writing in respect of the merits on these two grounds. I have concluded that the two grounds raise important questions of law and accordingly leave has been granted.
Section 59 is an “enabling provision” and I agree with the submission of the Attorney-General that it should not be read unduly narrowly. In the context of the Victorian Charter, it has been recognised that:
“… [t]he additional jurisdiction that it confers on courts and tribunals to grant relief or remedy is an important means of giving effect to and vindicating human rights.”[36]
[36]Goode v Common Equity Housing Ltd [2014] VSC 585 at [25] (Bell J).
Further, s 59(2) makes it clear that the ability to include a ground based on human rights unlawfulness does not depend on the ultimate success of the non-human rights unlawfulness grounds. A good illustration of this is the decision of Dixon J in Certain Children v Minister for Families and Children [No 2].[37] In that case, his Honour stated at [550]:
“In this proceeding, the plaintiffs sought relief in the nature of certiorari, injunctions and declarations in relation to the impugned acts and decisions, on the basis of jurisdictional error. Those claims failed, but the plaintiffs having succeeded on their Charter claim are entitled to relief. In this proceeding, on the finding of s 38(1) Charter unlawfulness, regardless of whether the administrative law claims were made out, s 39(1) of the Charter permits declaratory relief, as well as mandatory and prohibitory injunctions directed at the impugned acts and decisions.”
[37](2017) 52 VR 441, 598 [549].
Given the approach I have taken in respect of leave, it is not necessary for me to determine whether Ground Three must fail if leave was refused on the basis that on the merits those two grounds could not be established.
As leave has been granted, all three grounds should be considered on their merits. By virtue of s 59(2) of the HR Act there is no impediment to an outcome where the applicant is only successful on Ground Three.
The proper approach to s 48 HR Act (interpretive clause)
A preliminary issue has also been raised in respect of the proper approach to s 48 of the HR Act.
Section 48 of the HR Act states as follows:
“48       Interpretation
(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
(3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(4)      This section does not affect the validity of—
(a)      an Act or provision of an Act that is not compatible with human rights; or
(b)      a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
(5) This section does not apply to a statutory provision the subject of an override declaration that is in force.”
In submissions the parties agreed, at a general level, that s 48 of the HR Act does not change the construction of the CC Act. However, there remains disagreement on the proper approach to the application of s 48.
It is uncontroversial that s 48(1) contains two elements: first, consistency with the purpose and second, compatibility with human rights.
Section 8 of the HR Act defines “compatible with human rights” as follows:
“8 Meaning of compatible with human rights
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
(a) does not limit a human right; or
(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”
Section 13 of the HR Act sets out the circumstances in which a limitation may be placed on a human right and states as follows:
“13       Human rights may be limited
(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a)      the nature of the human right;
(b)      the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
(c)       the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d)      whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e)      the importance of the purpose of the limitation;
(f)       the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g)      the balance between the matters mentioned in paragraphs (e) and (f).”
At the outset it is important to note that the Victorian Charter does not have a provision equivalent to s 8 of the HR Act: it does have an equivalent to s 48 (except for s 48(2)) and s 13. In respect of the Victorian authorities which are referred to in submissions, this difference needs to be kept in mind.
It is necessary to consider the proper approach to the interpretive clause.
There was some debate initially about whether ambiguity was required as a precondition to the application of s 48 of the HR Act:
(a)The applicant and the Queensland Human Rights Commission submit that ambiguity is not required.
(b)Whilst the Attorney-General in written submissions contended that it is appropriate to treat ambiguity as a threshold enquiry, it was ultimately submitted that there was some “confusion” as the parties were speaking about different meanings of ambiguity.[38] Grammatical or language ambiguity is not required, rather ambiguity of meaning as a whole is required. That is, there needs to be a constructional choice open.[39]
[38]T1-56, L16-17 (18 June 2021).
[39]T1-57, L13-27 (18 June 2021).
The parties agree that a remedial approach is not permissible under s 48, which is consistent with the High Court authority of Momcilovic v The Queen.[40]
[40](2011) 245 CLR 1.
Different approaches may be permitted so long as the consistency with purpose is maintained. The application of the standard principles of statutory interpretation are to be applied. The consideration of human rights is now incorporated as part of context and also purpose where consistent with the purpose of the provisions.
Ultimately, the applicant, the respondent and the Attorney-General reach the position that s 48 of the HR Act does not result in a different interpretation of s 194 of the CC Act.
The Attorney-General also acknowledges that the impact of human rights is already relevant to the notion of “reasonable excuse”: similar to the construction of “unacceptable risk”.[41] In this case, the impact on the witness’ human rights is “intrinsic to the notion of reasonable excuse”.[42] This is evidenced in the comments of the Court of Appeal in Crime and Misconduct Commission v WSX & EDC[43] and also the Queensland Court of appeal in NS v Scott[44] as to the balancing exercise that is required to be undertaken to determine whether there is a reasonable excuse.
[41]Nigro v Secretary, Department of Justice (2013) 41 VR 359, 387 [102] (Redlich, Osborn and Priest JJA).
[42]Attorney-General’s submissions at [12].
[43](2013) 229 A Crim R 286 [37], [41] (de Jersey CJ, Gotterson JA and Mullins J agreeing).
[44]At [35]-[36].
The Queensland Human Rights Commission submits that as a result of s 48 of the HR Act, the exercise of the power in s 194 is conditioned on a human-rights compatible decision.
The Attorney-General submitted that:
“Section 48 does not alter that understanding of ‘reasonable excuse’. While the impact on human rights is already relevant to determining what is a reasonable excuse, that enquiry is given more structure by the obligations under s 58(1) of the HR Act to consider human rights and to make decisions that are compatible with human rights”.[45]
[45]Attorney-General’s submissions at [14].
I accept this articulation of the approach and find it particularly helpful in the current context.
In the circumstances of this case, it is not necessary for me to exhaustively determine how s 48 of the HR Act operates more broadly and I do not do so.
The exception in s 58(2) of the HR Act
Another issue arises under the HR Act which also needs to be considered at this initial stage.
Division 4 of the HR Acts sets out obligations on public entities. It is accepted that the respondent was a public entity for the purposes of s 58 of the HR Act when making the decision that is the subject of the current application.
Section 58 of the HR Act is set out in full at [41] above.
Relevantly, s 58(1)(a) of the HR Act provides that it is unlawful for a public entity to decide in a way that is not compatible with human rights.
Section 58(2) of the HR Act carves out from that obligation the situation where the public entity “could not reasonably have acted differently or made a different decision because of a statutory provision”. This brings into focus the scope of the discretion itself under s 194 of the CC Act.
The Attorney-General has addressed this issue in the written submissions and the applicant and the Queensland Human Rights Commission adopt those submissions.
The respondent agrees with the Attorney-General’s contention that s 58(2) will not be relevant where more than one course of action is reasonably open.
There is then some divergence as to the discretion in s 194 of the CC Act.
The Attorney-General, with whom the applicant and the Queensland Human Rights Commission agrees, submits that the discretion in s 194 leaves it to the presiding officer to decide whether any claim constitutes a reasonable excuse.
Further, it is contended that the presiding officer can only decide whether a witness has a reasonable excuse under s 194 after balancing the public benefit against the harm caused to the witness’ interests.
In support of this position, the Attorney-General identifies:
(a)This is consistent with the exercise of a discretion, not the absence of a discretion.
(b)The existence of a reasonable excuse is not “objective and self-executing”.[46]
(c)To say that the presiding officer has no choice but to find that the applicant did not have a reasonable excuse “inverts the analysis”. That is, it confuses a conclusion about “how to” exercise a discretion with the existence of the discretion in the first place.[47]
(d)This is consistent with the decision in NS v Scott.
[46]Lyons v Queensland (2016) 259 CLR 518, 534 [50] (Gageler J).
[47]Attorney-General’s submissions at [32].
In addition, the applicant submits:
(a)The phrase “reasonable excuse” is “quintessentially the language of discretion”.[48]
(b)The Court of appeal held in NS v Scott that the exercise of the discretion can be informed by issues of self-incrimination. This is so even though there is the “general and obvious legislative intention” to permit the abrogation of the privilege where appropriate and to permit derivative use of coerced evidence obtained by such abrogation.[49]
(c)The statutory scheme does not compel the abrogation of the privilege.
(d)NS v Scott is not authority for the proposition that there is no discretion.
[48]Applicant’s reply submissions at [32].
[49]Applicant’s reply submissions at [32].
Conversely, the respondent submits that NS v Scott is authority for the following:
(a)The legislature expressed its intention “with irresistible clearness” that a witness can be compelled to answer even if the result may be the obtaining of further evidence in relation to a charge against him.
(b)The legislature did not intend by the reasonable excuse provision to provide “any general or complete protection against self-incrimination through derivative use.”[50]
[50]Respondent’s submissions at [33].

To provide some structure to the discussion of the various positions below, at the outset I will identify the various positions of the parties.
First, the applicant contends that the limits on human rights imposed by the respondent’s decision are not justified. Particular focus is given to the respondent’s lack of logic and substance in the consideration of the less restrictive alternatives and also that the balancing exercise must take into account that the evidence would be made available to co-accused under s 201 of the CC Act.
The Queensland Human Rights Commission also contends that the limits on human rights imposed by the respondent’s decision are not justified. The focus is on the existence of less restrictive alternatives and further that there is insufficient evidence at the balancing stage.
Both the respondent and the Attorney-General contend that any limit of human rights by the respondent’s decision was justified.[134]
[134]This is an alternative position on behalf of the respondent, whose primary position is that the decision does not limit the right.
The respondent focuses, in particular, on s 197(7) which recognises that to otherwise allow for a derivative use immunity would undermine the purposes of the CC Act to combat and reduce major crime. The respondent also focuses on, in respect of the balancing stage, the extensive safeguards implemented to ensure that the balance struck is fair.
The Attorney-General adopts the alternative submissions of the respondent. The Attorney-General makes the additional point that the Court should be slow to disturb the balance struck by the respondent where he gave detailed consideration to human rights.
Applicant’s position on compatibility
The issue of compatibility requires a consideration of:
(a)Section 58(1) which makes it unlawful for public entities to act or make decisions in a way that is not compatible with human rights.
(b)Section 8 which contains the meaning of “compatible with human rights”.
(c)Section 13 which provides that a human right may be subject under law “only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”. Section 13(2) sets out seven factors that are relevant to deciding whether a limit on a human right is reasonable and justifiable.
Importantly, the applicant points to the onus being on the Commission as the public entity which seeks to limit a human right to demonstrate the limits are justified in the circumstances.
The approach to the exercise was described by the Victorian Court of Appeal in RJE v Secretary to the Department of Justice.[135] Nettle JA (as his Honour then was) endorsed the approach of Mason NPJ in HKSAR v Lam Kwong Wai.[136] Mason NPJ stated as follows:
“… first task is to ascertain the meaning of the [relevant statutory provisions] according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. Our second task is to consider whether that interpretation derogates from [the rights in question] as protected by [the Charter]. If that question is answered “Yes”, we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the [Charter] … and consequential [reinterpretation of the legislative provision consistently with the purpose of the Act or a declaration of inconsistency] …”
[135](2008) 21 VR 526 at 554 [105] per Nettle J and adopted by Warren CJ in Re Application under Major Crime (Investigative Powers) Act2004 (2009) 24 VR 415 at [53].
[136](2006) 9 HKCFAR 574.
It is the third step which is being considered here and it is submitted that the standard of proof is high, requiring a “degree of probability which is commensurate with the occasion”.[137]
[137]Bater v Bater [1951] P 35 at 37 per Denning LJ.
The applicant identifies the ultimate question as being:
“[W]hether the limitation on the right against self-incrimination as guaranteed by s 32(2)(k) ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors’?”[138]
[138]Re Application under Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415 at [144].
The applicant submits that the answer to that question is “no” and relies on the following reasons:
(a)The respondent correctly made findings that the nature and importance of the right has an important role in the accusatorial process.
(b)The purpose is prima facie important to justify any limitation. Further, the relationship between the purpose and whether any less restrictive means exists exist in a general sense. Here, the objective of identifying others is not sufficiently specific.
(c)The safeguards are insufficient to justify the limitation because of the two additional consequences placed on the applicant’s human right, namely, the constraint on the applicant’s forensic choices and the impact of s 201 of the CC Act.
Looking at each of the factors in s 13(2), the applicant’s position is:
(a)Section 13(2)(a) nature of human right: s 32(2)(k) right is an important feature of the criminal justice system and it is a right “the importance of which cannot be overstated”. The applicant refers to the High Court authorities considering the bundle of rights including the right to silence and the privilege against self-incrimination. Further, from a practical perspective, the applicant points to the very purpose of the questioning as being to gather evidence that could and likely would be used against the applicant at the applicant’s trial. It is in these circumstances that the requirement to answer questions by “an emanation of the executive” for that purpose is a limitation on the right and demonstrates the foundational importance of it.
(b)Section 13(2)(b) nature of the purpose of the limitation: the applicant acknowledges there is a public interest in identifying those responsible for serious criminal offending. The applicant points to the non-specific and general nature of the current investigation (that is a geographical region and organisational structure) as not meeting that purpose in this case.
(c)Section 13(2)(c) rational connection: the applicant accepts that the limitation has a rational connection to the purpose. That is, requiring answers for the purpose of gathering evidence has the capacity to advance an investigation.
(d)Section 13(2)(d) no less restrictive and reasonably available ways: the applicant submits that the respondent’s consideration of this issue lacked logic and substance. The reasoning does not address the statutory criteria. The respondent identified that the applicant had declined to participate in a police interview and that the various protective measures could only be afforded in a coercive context. The applicant contends that if coercive questioning becomes the only option merely because someone exercised their lawful right to silence then the bar in respect of s 13 would be set “extraordinarily low”.
(e)Section 13(2)(e) the importance of the purpose of the limitation: the applicant contends that the respondent’s reasons do not permit a meaningful assessment of the importance of the purpose of the limitation. It is contended that no effort is made by the respondent to identify the importance of the limitation on the right that justifies the interference with it.
(f)Section 13(2)(f) the importance of preserving the human right, taking into account the nature and extent of the limitation: the applicant contends that the limitation on the human right is profound. It is submitted:
“[T]he use of derivative evidence in a trial of a person already charged, together with the high likelihood that the actual coerced evidence will be in the possession of the co-defendants, is as significant a limitation as can realistically be conceived.”
It is submitted that the respondent’s reasons do not provide a justification for the limitation.
(g)Sections 13(2)(e), (f) and (g) fair balance: the applicant submits that the protective features are insufficient to cure or justify the limitation on the applicant’s human rights in the circumstances of this case. It is accepted that the protective features can alleviate the imbalance but in the circumstances where the applicant has co-defendants and the very question asked was in relation to the role of the applicant’s co-defendants, this is a different situation. The applicant points to s 201 of the CC Act and that the answers given can be made available as being a significant feature. The applicant puts this as highly as that the evidence “almost certainly will be” made available to the legal representatives for each co-defendant.
In respect of s 201, the applicant relies upon sub-section (2) which provides that the Commission must give the evidence consequently to co-defendants. The applicant contends that the provision of the evidence under s 201 and its potential use at trial undermines the other protective features.
Ultimately, the applicant contends that the respondent has not discharged the high onus.
Queensland Human Rights Commission’s position on compatibility
The Human Rights Commission made separate submissions in respect of the proportionality exercise and the application of s 13(2) of the HR Act.
In respect of the requirements of s 58(1)(a) of the HR Act, the Queensland Human Rights Commission submits that the judicial task involves a more significant level of intensity than is ordinarily encompassed under traditional judicial review grounds. In this respect, reference is made to the decision of R (Daly) v Secretary of State for the Home Department:[139]
“… The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality … But the intensity of review is somewhat greater under the proportionality approach … I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, … the intensity of the review … is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review … And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in cases involving Convention rights. In law context is everything.”
[139][2001] 2 AC 532, 547-8.
The Queensland Human Rights Commission notes that Garde and John Dixon JJ adopted this approach in Certain Children v Minister for Families and Children[140] and Certain Children v Minister for Families and Children (No 2).[141]
[140](2016) 51 VR 473 [2016] at [212]-[213].
[141](2017) 52 VR 441 at [208]-[212], [216]-[218].
The Human Rights Commission submits that these cases indicate the following principles:
(a)The determination of human rights unlawfulness requires “an assessment that is closer to merits review than is usual in judicial review”. That is, it goes further into the facts and reasons and what is required varies from case to case.
(b)There is a limited degree of deference to the decision-maker and this reflects the different institutional functions of the Court and executive decision-making. The Court is exercising supervisory jurisdiction and the degree of weight given to the original decision-maker’s views will vary in accordance with the context, relevant expertise and experience and whether the decision is supported and justified by transparent reasoning.
(c)The proportionality must be judged objectively by the Court.
In respect of the specific decision of the respondent, the Queensland Human Rights Commission acknowledges that it is a balance between the applicant’s fair trial rights, privacy and family rights and the public interest in the effective investigation and prosecution of major crime.
Considering the s 13 factors, the Queensland Human Rights Commission’s position is as follows:
(a)Section 13(2)(a) and (f) in relation to the nature of the human right and the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, the relevant human rights here form a fundamental component of a fair trial and the criminal justice system. They are of high importance and the impact of not observing the right is significant.
(b)Section 13(2)(b) and (e), the purpose of the limitation may be consistent with societal views depending upon the circumstances being considered. For example, societal attitudes to interrogation may be less justifiable for lower level criminal cases but for more serious organised crime, the purpose of the limitation is likely to be important.
(c)Section 13(2)(c), it is acknowledged that the limitation does help to achieve its purpose.
(d)Section 13(2)(d) as to whether there are any less restrictive and reasonably available ways to achieve the purpose, the question should be asked whether there are any reasonable alternatives which would result in an “as effective investigation” but which lessen the effect of the limitation. This includes consideration of alternatives such as:
(i)A requirement that answers are “necessary” to achieve the purpose, rather than merely “helpful”.
(ii)Consideration of other sources for the information first.
(iii)Allowing for derivative use immunity for any evidence that would not have otherwise been available without the compelled account.
(iv)The applicant not be required to give evidence against the applicant but only as to others.
(v)The applicant not be required to give evidence as against the applicant’s partner.
(e)Section 13(2)(g) being the balance of the matters at paragraphs (e) and (f), it is acknowledged that:
“The balance here is fine, and must be considered case-by-case. Both sides of the scales represent important public interests. The impact on human rights is significant (jeopardising criminal law rights relating to personal liberty).”
This is in the context that the CC Act provides a discretion to be exercised with an ability to not invoke coercive powers on a case by case basis.
It is ultimately contended that to justify the decision pursuant to s 13, the onus on the respondent assumes greater relevance in a case such as the current case. Further, additional evidence or reasoning may be required, particularly to demonstrate the effectiveness of deploying such powers in meeting crime-fighting aims.
It is in this context that the Queensland Human Rights Commission contends that coercive power is more likely to be justified where it is necessary to obtain evidence showing or tending to show culpability of a serious organised crime. That is, whether testimony is needed to effectively investigate and prosecute systemic and structural serious criminal offending.
The Queensland Human Rights Commission’s ultimate position is that the respondent’s decision finding that there was no reasonable excuse and compelling the applicant to answer the question was not compatible with human rights, within the meaning of s 58(1)(a) of the HR Act.
Respondent’s position on compatibility
The respondent’s position in relation to the second stage of the enquiry in relation to justifiable limits is presented in the alternative. The respondent submits that any limit on the right in s 32(2)(k) is reasonable and demonstrably justifiable in accordance with s 13(2) of the HR Act. The respondent relies upon analysis undertaken in respect of the factors in s 13(2) of the HR Act.
Considering the factors in s 13(2) of the HR Act, the respondent’s position is as follows:
(a)Section 13(2)(a) nature of the human right: the respondent accepts that it is a fundamental principle of the common law for the prosecution to prove the guilt of an accused person beyond reasonable doubt. That principle is complemented by the “companion rule” that an accused person cannot be required to testify to the commission of the offence charged.
(b)Section 13(2)(b) purpose of limitation: the respondent points to the provisions of the CC Act which provide the Commission with a variety of investigative powers, not ordinarily available to the Police Service. The purpose of the investigative powers is to enable the Commission to investigate major crime, criminal organisations and also their participants. It is submitted that there is a high public interest in identifying those responsible for serious criminal offending. In respect of the particular investigation in these proceedings, the respondent points to the organised crime activity in the relevant region in Queensland.
(c)Section 13(2)(c) limitation helps achieve purpose: The respondent’s position is that the power to compel answers and use the evidence obtained enables further investigations to be undertaken and further evidence to be obtained consistent with the Commission’s statutory function. The function of investigating crime includes the gathering of evidence for prosecution. In this regard, reliance is placed on [34] of NS v Scott. Further, it is submitted that the limitation is rationally connected to its purpose.
(d)Section 13(2)(d) no less restrictive in reasonably available ways: it is submitted that the respondent expressly turned his mind to whether there was any less restrictive and reasonably available way to achieve the purpose. The respondent was satisfied that in circumstances where the applicant had declined to participate in a police interview and the protections that could be afforded to the applicant under the CC Act were only available in a coercive context.
(e)Sections 13(2)(e), (f) and (g) balance: the respondent submits that whilst the applicant may be compelled to give an answer which might otherwise be the subject of a claim of privilege against self-incrimination, this is balanced against the protections in place in respect of the applicant being tried fairly, including:
(i)A direct use immunity preventing the evidence given by the applicant being admissible against the applicant. It is submitted that the principle of being convicted “out of [the applicant’s] own mouth” is a principle matter to which the privilege against self-incrimination is directed.
(ii)Non-publication orders to ensure that no answers given by the applicant, the applicant’s identity as a witness or any record of the hearing can be included in any brief of evidence against the applicant and this material cannot be published to any officer of a prosecuting agency with carriage of, or involvement in the prosecution of the applicant for any charge whether arising from a current, or any other investigation.
(iii)The Court’s inherent jurisdiction to supervise and control its own processes. This includes considerations of admissibility of evidence, including under s 130 of the Evidence Act 1977 (Qld).
(iv)The Court’s obligation under s 5(2)(a) of the HR Act to ensure a fair hearing under s 31 of the HR Act.

In respect of the consideration relevant to s 13(2)(d) above, the respondent points to the Explanatory Notes in relation to the enactment of s 197(7) of the CC Act. This provision was implemented following a recommendation of the Parliamentary Crime and Corruption Committee Report No 97. The Explanatory Notes recognise that if the Commission were unable to derive evidence from answers provided by individuals under compulsion, this would significantly undermine the effectiveness of the coercive powers under the CC Act and also the objective of combating and reducing the incidence of major crime and corruption in Queensland.[142]
[142]Explanatory Notes to the Crime and Corruption and Other Legislation Amendment Bill 2018 at p 9.
These amendments were consistent with reforms in Victoria and the Commonwealth. The Victorian Reforms in 2014 included the effective removal of the derivative use immunity that had been found by Warren CJ in Re Application under Major Crime (Investigative Powers) Act 2004. The statement of combability under s 28 of the Victorian Charter in respect of the reforms states that:
“There are significant difficulties in detecting and prosecuting organised crime offences. Criminal organisations are well known to engage in serious violence against persons who provide information to police. They use that reputation to ensure that even persons who are not involved in the offences do not assist police with their investigation. This code of silence can operate both within the criminal organisation and outside it. The [amendment] aims to assist in the detection and prosecution of such offences and thereby prevent further offences.
The inability to use any evidence derived from answers, against the person who gave them, significantly undermines the effectiveness of the coercive powers scheme in achieving that aim. Because of the code of silence and culture of fear, the chief examiner may examine a person without being aware of the level of criminal activity in which that person is involved or which the person knows about. By providing answers that lead to the discovery of evidence against them, that person can be effectively immunised from prosecution. This undermines the ability to prosecute persons responsible for serious organised criminal offences, which is an important purpose of the act. In addition, the risk of a person immunising themselves from prosecution adversely affects the way in which Victoria police and the chief examiner use the powers under the act, reducing the scope and value of the chief examiner’s powers …
I consider that ensuring that derivative evidence is able to be used is necessary to enable serious organised crime to be investigated and prosecuted. While it may limit the privilege against self-incrimination, the reading in of a derivative use immunity significantly undermines the important purposes of the act and there are no other less restrictive means reasonably available.”[143]
[143]Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 57^th Parliament, 1^st Session, 26 June 2014 (Book 9), 2382.
The respondent also refers to the Commonwealth reforms which were amendments in 2015 to the Australian Crime Commission Act 2002 (Cth). This included authorising derivative use of examination and hearing material. In respect of those amendments, the Explanatory Memorandum stated:[144]
“The measures in Schedule 1 to specifically authorise the derivative use of examination material are necessary to achieve the legitimate aim of protecting the community from serious and organised crime. ACC examinations are used in support of special operations and special investigations that deal with some of the most serious criminal activities, including drug trafficking, child sex offences, cybercrime, superannuation fraud and other financial crime, and terrorism. These activities cause significant harm to individuals in the Australian community, to Australian society and the economy, and ultimately undermine Australia’s national security.
…
Further, examinations and hearings are used in support of investigations into serious and organised criminal activities and law enforcement corruption issues, both of which have demonstrated a long-standing resistance to traditional law enforcement methodologies.
…
Further, it would not be appropriate to include a derivative use immunity in these provisions. Previous experience under the National Crime Authority Act 1984 (NCA Act) demonstrated that providing a derivative use immunity for examination material undermined the capacity of the National Crime Authority (NCA) to assist in the investigation of serious criminal activities. Prior to its removal under the National Crime Authority Legislation Amendment Act 2001, the derivative use immunity in the NCA Act required the prosecution to prove the provenance of every piece of evidence in the trial of a person that the NCA had examined before it could be admitted. This position was unworkable and did not advance the interests of justice as pre-trial arguments could be used to inappropriately delay the resolution of charges against the accused.”
[144]Explanatory Memorandum, Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth), 18-9.
The respondent further refers to and relies on the comments by Holmes CJ in NS v Scott that the use of derivative evidence does not necessarily prejudice a fair trial. This depends on the nature of the evidence and whether it is available from other sources.
It is in these circumstances that the respondent submits that any limit imposed on the applicant’s human rights by the CC Act is demonstrably justified under s 13(2) and therefore compatible with human rights under s 8(b) of the HR Act.
The Attorney-General adopts the respondent’s submission that the limits on human rights are justified at the second stage of the analysis under ss 8(b) and 13. The Attorney-General raises a further reason in addition to that referred to by the respondent in relation to deference which is discussed below.
Consideration
In respect of the compatibility test pursuant to s 13, this is a balancing exercise requiring a consideration of the various competing interests in respect of each factor. Ultimately here the compatibility considerations largely come down to balancing the public interest in combating and reducing major crime and the private or personal concerns of those with information that may assist with the investigations.
In respect of some of the factors, there is not much of a difference between the parties. The divergence really is the factor in (d) (other less restrictive and available ways) and the balancing exercise in (e), (f) and (g).
While it is submitted that there are other less restrictive available ways of achieving the purpose, this does not address the “code of silence” that is often present in respect of organised crime. Theoretically there may be other less restrictive options available. However the reality, as discussed in the explanatory material quoted above, is that due to the nature of organised crime the objects and purpose of the CC Act would be undermined if evidence derived from coerced examinations could not be used by the Commission in undertaking its statutory task.
The protections put in place in accordance with the legislative scheme provide direct use immunity and confidentiality in respect of the identity of the witness and any evidence given. A further protective order requires limited disclosure of the evidence to prevent it from being given to the prosecution.
The Court still has a supervisory role to play under s 31 of the HR Act at the ultimate trial and also has a discretion in respect of admissibility of evidence under s 130 of the Evidence Act 1977 (Qld).
Parliament in passing the amendment to include s 197(7) of the HR Act intended that derivative use immunity was not to be available in the context of coercive examinations, including of charged persons being asked about the subject matter of the charges.
In all of the circumstances, while the decision of the respondent limited the applicant’s human rights in ss 31 and 32(2)(k) of the HR Act, the limit was justified under ss 8(b) and 13 of the HR Act and it was substantively compatible with human rights under s 58(1)(a) of the HR Act.
The respondent’s compatibility analysis was not as extensive as the analysis and submissions at the hearing of the application for leave and the appeal. However, it is largely consistent with the approach contended for by the respondent and the Attorney-General at the hearing of the application for leave and appeal. No error is made out in respect of the respondent’s reasoning and decision.
Accordingly, Ground Three is not established.
Deference
It is agreed by all parties that the respondent’s decision is not challenged on the basis of the procedural limb in s 58(1)(b) of the HR Act. However, the role of deference is in dispute.
At a general level, the applicant contends that deference should not be accorded to the primary decision-maker as this would blur the distinction between the two limbs identified in s 58(1) of the HR Act, compatibility is a legal conclusion and the principle of deference has never been adopted in Australian administrative law.
The Queensland Human Rights Commission acknowledges that in appropriate cases there can be limited deference, particularly if there is well-reasoned and transparent human rights reasoning. However, this is to be considered in the context that it is submitted that the intensity of the review under s 58(1)(a) is greater than is usual in judicial review.
The Attorney-General raises the issue of deference as an additional basis for the conclusion that any limit imposed on the human right was justified. It is on this basis that the Attorney-General submits that there is a need to give appropriate weight to the primary decision-maker’s decision when reviewing compatibility with human rights.
That is, in circumstances where there is a thorough and well-reasoned consideration of human rights, more weight can be given to that assessment. Here, it is submitted that the respondent engaged in a robust proportionality analysis and complied with the procedural limb in s 58(1)(b) of the HR Act. It is submitted that the Court should be slow to disturb the balance arrived at by the respondent.
It is convenient to start with the Attorney-General’s submissions as to why deference should be accorded to the respondent’s compatibility assessment in this case.
The Attorney-General submits that the substantive and procedural limbs of s 58(1), while they are distinct, are not unrelated. The Attorney-General also refers to a number of cases in support of this proposition including:
(a)PJB v Melbourne Health where Bell J recognised:
“The better … the consideration given to human rights at first instance, the harder it will be to challenge the act or decision concerned”.[145]
(b)In Minogue v Thompson, Richards J observed:
“… more weight can be given to a decision-maker’s assessment that a limit on a human right is justifiable, in accordance with s 7(2),[146] where that assessment is the result of a thorough and well-reasoned consideration of relevant rights”.[147]
[145](2011) 39 VR 373, 441-2 [310].
[146]The equivalent of s 13 of the HR Act.
[147][2021] VSC 56 at [50].
Ultimately, it may be a question of what weight is to be given to the judgment of the primary decision-maker.
Here, the Attorney-General submits that the respondent gave detailed consideration to human rights which discharged his procedural obligation under s 58(1)(b) and (5) of the HR Act. The consideration was assisted by submissions from Counsel Assisting and also from the applicant’s Counsel.
In the reasons for his decision, the respondent construed the right in s 32(2)(k) in a broad way and recognised that his decision could impinge upon the right of an accused person in a criminal proceeding at a future point in time. It is submitted that in effect, the respondent also took into account the right to a fair hearing in s 31(1) of the HR Act as well as the right in s 32(2)(k).
It is submitted that the decision-maker here considered the wide impact of the decision on human rights.[148]
[148]Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293 at [268] (Ryan J).
Considering the analysis that was undertaken by the respondent, the Attorney-General considers that appropriate weight and latitude should be given to that reasoning and that is a further factor that this Court should take into account in being slow to disturb the balance struck by the respondent.
The applicant submits that this submission is wrong for three reasons.
(a)First, the two limbs of s 58 are distinct and the concept of deference based on exposed reasoning interferes with the statutory regime. That is, it blurs the distinction between the two independent limbs.
(b)Second, compatibility is a legal conclusion and if a decision is incompatible with human rights, it is unlawful because of that status. The conclusion of incompatibility is not affected by an expression of reasoning of the decision-maker and accordingly, there is no place for deference.
(c)Third, on a more general level, administrative law in Australia has not adopted a principle of deference. The applicant submits that the High Court has expressly refused to do so when the issue has been raised.[149]
[149]See Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.
The Queensland Human Rights Commission also addresses the issue of deference. In this regard reference is made to the High Court decision in McCloy v New South Wales[150] and also the decisions in Certain Children v Minister for Families and Children[151] and Certain Children v Minister for Families and Children (No 2).[152]
[150](2015) 257 CLR 178.
[151](2016) 51 VR 473.
[152](2017) 52 VR 441.
It is submitted that these cases recognise there can be “limited” deference. This may include fact finding, discretionary considerations and balancing. It is acknowledged that this position remains good law pursuant to the recent decision in Minogue v Thompson.[153]
[153][2021] VSC 56 at [80]-[82].
However, this needs to be considered in the context that the compatibility analysis is necessarily more intense than traditional review as it requires an objective assessment of the fact-finding that was undertaken and an evaluation on review of the balance struck between the competing considerations.
Consideration
Given my reasoning above it is not necessary to determine the issue in respect of deference and I do not do so.
However, I note, at a general level, that while deference may have a role as contended for in the submissions, until there is a “mature” practice of engagement with the principles in the HR Act, this may have an impact on the weight to be given to the analysis in any event.
Orders
Accordingly, the orders of the Court are:
1.Leave to appeal is granted.
2.The appeal is dismissed.
I will hear further from the parties in respect of costs and as to whether any further orders are required.

CITATION:	SQH v Scott [2022] QSC 16
PARTIES:	SQH (applicant/appellant) v MICHAEL JOHN SCOTT (respondent) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (first intervenor) QUEENSLAND HUMAN RIGHTS COMMISSION (second intervenor)
FILE NO/S:	BS No 11211 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 February 2022 (restricted); 4 March 2022 (public)
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2021; 18 June 2021
JUDGE:	Williams J
ORDER:	The Court orders that: 1. Leave to appeal is granted. 2. The appeal is dismissed. I will hear further from the parties in respect of costs and as to whether any further orders are required.
CATCHWORDS:	CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITY – QUEENSLAND –APPEAL – GROUND OF APPEAL – ERROR OF LAW – where the respondent, as the presiding officer at a Crime and Corruption Commission hearing, made a decision to require the applicant to answer the question “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs”, after ruling that the applicant did not have a reasonable excuse, pursuant to section 194 of the Crime and Corruption Act 2001 (Qld) (CC Act) – where the applicant applies for leave to appeal under section 195(1) of the CC Act and, if leave is granted, an order setting aside the respondent’s decision – where the Attorney-General for the State of Queensland and the Queensland Human Rights Commission have intervened pursuant to sections 50 and 51 of the Human Rights Act 2019 (Qld) (HR Act) – where the applicant claims a reasonable excuse because compulsory examination would lock the applicant into a version of events from which the applicant cannot depart at trial, especially when that version would include details about co-defendants – where the respondent claims that the fact of the applicant’s existing charge is not capable of constituting a reasonable excuse – whether the respondent erred in finding that the applicant did not have a reasonable excuse under section 194(1) of the CC Act because the coercive hearing occurred after the applicant had been charged and therefore had the capacity of constraining the applicant’s legitimate forensic choices in the future conduct of the applicant’s trial and, in the circumstances of this case, constituted a reasonable excuse CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITY – QUEENSLAND –APPEAL – GROUND OF APPEAL – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant submits that the applicant’s answers can be made available to the legal representatives for each co-defendant, which would limit the applicant’s forensic choices at trial – where the respondent claims that the applicant has not advanced any factual or legal basis, beyond assertion, for why section 201 of the CC Act is relevant to a claim of reasonable excuse – whether the respondent failed to have regard to a relevant consideration, namely section 201 of the CC Act and the impact that the availability of the coerced material to the applicant’s co-defendants would have on the capacity of the safeguards in the CC Act to quarantine coerced answers from the applicant’s trial HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant submits that the limits on human rights imposed by the presiding officer’s decision are not justified – where the applicant further submits that the respondent’s consideration of less restrictive alternatives lacked logic and substance and the fair balance must take into account that the evidence would be made available to the legal representatives for each co-defendant – where the respondent claims that the jurisdictional prerequisite in section 59(1) of the HR Act is not met, with the consequence that the applicant cannot raise any purported non-compliance with section 58(1) of the HR Act – where the respondent further claims that, in any event, the respondent’s decision is compatible with the human right in section 32(2)(k) of the HR Act – whether the respondent acted unlawfully pursuant to section 58(1)(a) of the HR Act in that the decision that he made was not compatible with the applicant’s human right protected by section 32(2)(k) of the HR Act Crime and Corruption Act 2001 (Qld), s 4, s 180, s 189, s 190, s 194, s 195, s 197, s 200A, s 201, s 202 Evidence Act 1977 (Qld), s 130 Human Rights Act 2019 (Qld), s 3, s 4, s 8, s 13, s 25, s 26, s 31, s 32, s 48, s 50, s 51, s 58, s 59 Crime and Misconduct Commission v WSX & EDC [2013] QCA 152, considered Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, considered Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, considered Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, considered Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, considered NS v Scott [2018] 2 Qd R 397; [2017] QCA 237, considered PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, considered Re Application under Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381, considered Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2013) 266 CLR 325; [2018] HCA 53, considered X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, considered
COUNSEL:	S C Holt QC, with M J Jackson, for the applicant/appellant N Kidson QC, with R Berry, for the respondent G A Thompson QC, with K J E Blore, for the first intervenor P Morreau for the second intervenor
SOLICITORS:	Hannay Lawyers for the applicant/appellant Crime and Corruption Commission for the respondent Crown Law for the first intervenor The Queensland Human Rights Commission for the second intervenor