Re an application under the Major Crime (Investigative Powers) Act 2004  VSC 381 (7 September 2009) In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, has found that a provision of the Major Crime (Investigative Powers) Act 2004 (Vic), which provides for the abrogation of the privilege against self-incrimination, must be interpreted as extending derivative use immunity to a person, so as to be compatible with human rights.
The case involved an application by a Detective of Victoria Police for a coercive powers order under the Major Crime (Investigative Powers) Act 2004. Under the Act, if a member of the police force successfully applies to the Supreme Court for a coercive powers order in relation to an individual, that individual may be compelled by witness summons to attend before the Chief Examiner to provide evidence. Relevantly, s 39 of the Act expressly abrogates the privilege against self-incrimination. At the request of the Court, the Victorian Equal Opportunity and Human Rights Commission intervened in the matter to make submissions on the interpretation of s 39 of the Act in accordance with the Charter, specifically, the right to a fair trial (s 24(1)) and the right not be compelled to testify against oneself (s 25(2)(k)). The Commission submitted that the rights in s 24(1) and s 25(2)(k) of the Charter include a right not to be required to incriminate oneself such that, where that right is abrogated, the abrogation must be accompanied by both a direct use immunity and a derivative use immunity. The Commission submitted that s 39 of the Act can be reinterpreted pursuant to the interpretive obligation in s 32 of the Charter, consistently with its purpose, so as to be compatible with the rights in ss 24(1) and 25(2)(k). To this end, it is possible to read derivative use immunity into s 39 of the Act.
In short, Her Honour found that in interpreting s 39 of the Act, derivative use immunity must be extended to a witness interrogated pursuant to the terms of the Act, where the evidence elicited from the interrogation could not have been obtained, or the significance of which could not have been appreciated, but for the evidence of the witness. Derivative use of the evidence obtained pursuant to compelled testimony must not be admissible against any person affected by s 39 of the Act unless the evidence is discoverable through alternative means.
Nature and Scope of the Rights
In her judgement, Warren CJ considered at length the scope and nature of the fair hearing right (s 24(1)) and the right against self-incrimination (s 24(2)(k)). Her Honour emphasised the fundamental nature of both of these rights and accepted the Commission's submission that the Court should have regard to the common law in interpreting the scope of the right against self-incrimination, in particular where the privilege is recognised as including both direct and derivative use immunity. Her Honour noted that the Commission’s submissions were fortified by jurisprudence from Canada, where the self-incrimination privilege is understood to extend to both direct and derivative use immunity.
As to the interpretive exercise in s 32 of the Charter, Warren CJ made some helpful observations. Her Honour noted that the interpretive obligation in s 32 creates a new dynamic for the interpretation of legislation in Victoria. Her Honour followed the direction provided by the Court of Appeal in RJE v Secretary, Dept of Justice  VSCA 265, (which endorsed the approach of Mason NPJ in HKSAR v Lam Kwong Wai  HKCFA 84) and set out the following steps for interpreting legislation in accordance with the principles set out in the Charter:
- Ascertain the ordinary meaning of the legislation according to normal principles of statutory construction and determine whether a human rights compatible result may be reached without recourse to the Charter;
- Where a human rights compatible result cannot be achieved in the usual course of interpretation, and recourse to the Charter is necessary, ask whether the Act limits rights;
- If the Act does limit rights, is the limitation on rights demonstrably justified by reference to s 7 of the Charter?
- If the limitation is not demonstrably justified by reference to s 7, can the Act be re-interpreted by recourse to s 32?
1. Ordinary meaning of s 39
Her Honour adopted the construction of the Act proffered in C v Chief Commissioner of Police (2008) 20 VR 174, in which Smith J held that the privilege is effectively removed by s 39 in light of the fact that the evidence, information or documents produced in an examination conducted pursuant to the Act, can be used to gather evidence to use against the person giving the evidence. To this end, notwithstanding the Act's silence on the derivative use of evidence, Smith J points out that derivative evidence is inferentially permitted, consistent with Parliament's intention as evinced in the Second Reading Speech.
Accordingly, under the ordinary meaning of the Act, the common law privilege is removed entirely (including direct and derivative use immunity) and is replaced by a limited immunity provided for in s 39(3) of the Act. The applicant submitted that the ordinary meaning of s 39 was human rights compatible and that the Court need not refer to the Charter in its decision because: (1) the Court has an inherent power to prevent interferences with the course of justice; and (2) the trial judge has an inherent discretion to exclude prejudicial or unfair evidence in the interests of ensuring that a trial is not unfair. Chief Justice Warren rejected these arguments. Her Honour observed that these discretions do not focus on the way in which the evidence was obtained, but rather on whether the use of the evidence is prejudicial or unfair, for example because the evidence is unreliable. Moreover, there is no guarantee that the evidence will be excluded, as is required by the right in s 25(2)(k) of the Charter. Further, Her Honour found that the residual discretion of a trial judge to exclude evidence is an insufficient mechanism for upholding the rights contemplated by the Charter, stating that ‘the focus of the common law discretion is on ensuring that a trial is not unfair, which is not coextensive with the right to a fair hearing that is protected by the Charter’. In conclusion, Warren CJ found that on the ordinary meaning of the statute, the relevant provision was not compatible with human rights and therefore the Charter had some work to do.
2. Does the Act limit rights?
Chief Justice Warren emphasised that human rights should be construed in their broadest possible way before consideration is given to whether they should be limited in accordance with s 7(2) of the Charter. In this context, Her Honour found that the way the Act is currently applied is in breach of ss 24(1) and 25(2)(k) of the Charter because no distinction can meaningfully be drawn between the harm that may flow from incriminating information provided directly, and incriminating evidence derived from such information. From the witness's perspective, derivative information can present consequences as damaging as the original self-incriminating information. Her Honour considered and posed examples in order to work through the implications in hypothetical scenarios of the application of s 39 in practice. These examples highlighted that the Charter rights were engaged and were limited.
In finding that the Act limits the relevant Charter rights, Her Honour relied upon s 32(2) of the Charter, having regard to international jurisprudence in relation to the nature and scope of the right to a fair hearing and the right against self-incrimination. In particular, Her Honour observed that in Canada and the United States, derivative use immunity is required for consistency with protected rights. Her Honour accepted the Canadian position which recognises the existence of derivative use immunity in a similar manner to the common law of Australia, and also applies a purposive approach to the interpretation of human rights in a manner similar to the Charter.
3. Is the limitation on rights demonstrably justifiable by reference to s 7 of the Charter?
Chief Justice Warren observed that human rights as guaranteed by the Charter are not absolute and in some instances, it is necessary to limit rights in circumstances where the exercise of the right would interfere with the operation of a free and democratic society. Her Honour noted that the causal links between an individual's compelled evidence and the use that may be made of evidence that derives from it are essential to understanding whether any limitations in the Act on the right against self-incrimination may be justified in a free and democratic society. Her Honour stated, ‘It is the causal link that will determine in each case whether the right has in fact been limited’.
Her Honour observed that the right to a fair hearing and the privilege against self-incrimination are
rights which define the relationship between the individual and the state and protect people against aggressive behaviour of those in authority. They reflect the philosophy that the state must prove its case without recourse to the suspect. They are fundamental to the criminal justice system and their importance should not be underestimated.
Chief Justice Warren stated that the onus of demonstrably justifying a limitation rests with the party seeking to uphold the limitation, and the standard of proof is high. Her Honour helpfully provided the following guidance: ‘the evidence required to prove the elements contained in s 7 should be 'cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit’. In this case, Her Honour recognised that a balance must be struck between the principle against self-incrimination and the state's interest in investigating organised crime offences. Her Honour systematically considered the factors in s 7(2) of the Charter in the context of this case. Her Honour noted that the ‘more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justifiable’. While noting the important purpose of the abrogation of the privilege, which is to respond to perceived difficulties in investigating organised crime in circumstances where derivative evidence cannot be used, Her Honour posed the important question of whether this abrogation achieves the purpose in the least restrictive way possible.
After considering the factors in s 7, Warren CJ found that the limitation contained in s 39 is more drastic than justified, and importantly, the purpose of the limitation may still be achieved whilst retaining a form of derivative use immunity. Her Honour's approach (in adopting the Canadian case of S(RJ))  1 SCR 451), allows investigations to take place under the Act and will not exclude the Crown from using evidence that was discovered as a result of witness testimony but could have been discovered without the testimony; and evidence that was discovered after the testimony was given, but independently of the testimony. Importantly, Her Honour's decision means that a person cannot be compelled to incriminate themselves from their own testimony in circumstances where the evidence could only have been discovered as a result of that testimony. Her Honour stated that the Crown bears the onus of establishing which evidence is derivative in this regard. Her Honour observed that in Canada, it has been possible to effectively investigate offences as serious as terrorism while respecting derivative use immunity. Her Honour noted that the applicant has shown ‘no real reason why this should not be the case in Victoria ... This is a less restrictive means of achieving the purpose of the limitation, but which also gives effect to a reasonable limitation on the right against self-incrimination’.
Her Honour held that the application of the Charter should not be limited to persons who have already been charged, ‘but should include, more generally, the compulsion of persons to give evidence on oath and then to have that evidence subsequently used against them in a derivative way’.
4. Is re-interpretation possible?
Chief Justice Warren accepted the Commission's submission that the Act can be re-interpreted pursuant to s 32 to be compatible with the right to a fair hearing and the self-incrimination right. In this regard, Her Honour accepted the Commission's submission that the words providing for derivative use immunity may be read into s 39 to ensure that such immunity always operates in relation to compelled testimony. Her Honour found convergence between the Act and the Charter and held that the re-interpretation is the most appropriate means of ensuring the right against self-incrimination is protected and that a fair hearing is guaranteed.
Summary and Analysis
This is a powerful and progressive decision for the Charter. It is the first decision that squarely and comprehensively deals with the role of the Charter in statutory interpretation in Victoria. In particular, the judgment shows the significance of s 32 in construing statutory provisions (so far as it is possible to do so consistently with the purpose of the section) in a way that is compatible with human rights, subject to the reasonable limits demonstrably justifiable in a free and democratic society. Further, Her Honour's decision provides significant guidance to courts and tribunals as to the methodology to be used in the application of s 32, and provides a comprehensive analysis of the reasonable limitations test in s 7(2).
The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2009/381.html.
Tessa van Duyn is Senior Advisor, Human Rights, Victorian Equal Opportunity and Human Rights Commission