Applicant v Respondent

Supreme Court of Victoria|2007-07-24|Before: KAYE J

CRIME - Major Crime (Investigative Powers) Act 2004 - Coercive Powers Order - Power of Court to specify condition affecting power of Chief Examiner to summons witness - Sections 9(2)(g) and 15.

Dr John Lynch, Crown Counsel, on behalf of the Attorney-General.

1 These are applications in four proceedings to vary the terms of coercive powers orders made under the Major Crime (Investigative Powers) Act 2004 ("the Act") in each of those proceedings. The applicant is the officer in charge of the Office of the Chief Examiner. He is represented by the Solicitor-General, Ms P. Tate SC, and Dr S. McNicol. The applications involve important questions concerning the correct construction of the Act. Accordingly, the Attorney-General has undertaken to act as a contradictor and to present submissions in opposition to each application. He has been joined as the respondent to the applications, and is represented by Dr K. Emerton, Crown Counsel.

2 In each proceeding, the original coercive powers order was made under s.5 of the Act. Each order contained an express condition that an application for a witness summons made in respect of a named person be brought before the Supreme Court and that the Court would exercise supervision/discretion over any other summons applications with respect to the particular coercive powers order. The applicant seeks an order in each proceeding setting aside that condition. It has been submitted that the imposition of that condition was invalid because it exceeded the power of the Supreme Court under the Act.

3 The applications for the variation of the original coercive power orders have been made under s.10(1)(b) of the Act. Ordinarily, it would not be appropriate to seek an order from a judge of this Court varying an earlier order made by a judge of the Court on the basis that the previous order had been made without power. However, as the original coercive powers orders were not made in applications inter partes, it may not be open to the applicant to appeal those orders to the Court of Appeal. Accordingly, while the procedure is somewhat unusual, I accept that it is open to me to vary the original coercive powers orders, if I were to conclude that the imposition of the relevant condition was beyond the statutory power of the Court.

4 It is first necessary to outline the basic structure and provisions of the Act. Section 1(a) of the Act states that the purpose of the provisions with which I am concerned is to provide a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences. The phrase "organised crime offence" is defined, in s.3, to mean an indictable offence which is punishable by imprisonment of more than 10 years and which:

(b) involves substantial planning and organisation; and

(d) has a purpose of obtaining profit, gain, power or influence.

5 Section 21(a) of the Act provides for the appointment of a Chief Examiner by the Governor in Council. Under s.29, the Chief Examiner may conduct an examination of a person in relation to an organised crime offence, if, inter alia, the Chief Examiner has received a copy of a coercive powers order made in respect of that offence.

6 Part 2 of the Act contains provisions for the making and implementation of coercive powers orders. Section 4 provides:

A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made."

7 Under s.5(1), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being, or is likely to be committed. Sub-section (2) provides that such an application may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner. Sub-section (3) specifies the contents of the application. Sub-section (4) requires that the application must be supported by an affidavit of the applicant setting out certain prescribed matters.

8 Section 8 of the Act contains the power of the Supreme Court to make a coercive powers order. It provides:

The Supreme Court may make a coercive powers order if satisfied-

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to-

(i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and

(ii) the impact of the use of coercive powers on the rights of members of the community."

9 Section 9 of the Act stipulates what must be contained in a coercive powers order. Section 9(2)(e) provides that the order must specify the period for which it remains in force, being a period not exceeding 12 months. Section 9(2)(g) provides that the order must specify "any conditions on the use of the coercive powers under the order."

10 Section 10 provides that a member of the police force, on whose application a coercive powers order has been made, or another person on his or her behalf, may apply to the Supreme Court for an extension of the order for a period not exceeding 12 months, or for a variation of any of the other terms of the order. Under s.11, if the Chief Commissioner or her delegate is satisfied that the powers under the coercive powers order are no long required for the purpose for which the order was made, the Chief Commissioner or her delegate must immediately give notice in writing to the Supreme Court to that effect. Such a notice must be filed with the Supreme Court.[1] On the filing of such a notice, the coercive powers order is revoked.[2] Section 12(1) provides that the Supreme Court may revoke a coercive powers order at any time before the expiry of the order. Section 12(2) provides that on revoking a coercive powers order, the Court must give notice of that revocation to the Chief Examiner and the Chief Commissioner, must revoke any witness summons issued under s.14, and must give notice in writing of the revocation of each witness summons to the person to whom the summons was directed. Under s.13, upon being notified that a coercive powers order has been revoked, the Chief Examiner must revoke any witness summons issued under s.15, must give notice in writing of such revocation to the person to whom the summons was directed, and must release from attendance each witness who has been summoned to attend an examination in reliance on the order.

11 The power to issue witness summonses to appear before the Chief Examiner is contained in s.14 and s.15 of the Act. Under s.14, if a coercive powers order is in force, the Supreme Court, upon application by a member of the police force, may issue: a summons to attend an examination before the Chief Examiner to give evidence; a summons to attend at a specific time and place to produce specified documents or other things to the Chief Examiner; or a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things. Section 14(4) prescribes the contents of the application for a summons. Section 14(6) provides that on an application before it, the Supreme Court may issue a summons if the Court is satisfied it is reasonable in the circumstances to do so, after considering the evidentiary or intelligence value of the information sought to be obtained, the age of the person who is to be summonsed, and any mental impairment to which that person is known to be subject.

12 Section 15 contains the power of the Chief Examiner to issue witness summonses. Section 15(2) provides that if a coercive powers order is in force in respect of an organised crime offence, the Chief Examiner may issue, on his own motion, or on application of a member of the police force, a summons or summonses of the same nature as those referred to in s.14. Section 15(3) provides that the Chief Examiner may determine the procedure for making an application for an issue of a summons under s.15. Section 15(4) is in similar terms to s.14(6), and permits the Chief Examiner to issue a summons if the Chief Examiner is satisfied that it is reasonable in the circumstances to do so after a consideration of the evidentiary or intelligence value of the information sought to be obtained, and the age of the person to whom the summons is directed, and any mental impairment to which the person is known to be subject. Section 15(6) requires the Chief Examiner, on issuing a summons, to record in writing the grounds on which the summons is issued and, if the summons is directed to a person suspected to be under the age of 18 years, the reason for suspecting or believing that the person is aged 16 years or above.

13 Section 18(2) provides that if a coercive powers order is in force, and if a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court or to the Chief Examiner for an order that the person be delivered into the custody of the member for the purpose of bringing that person before the Chief Examiner to give evidence at an examination.

14 Part 4 of the Act is concerned with the conduct of examinations by the Chief Examiner. Section 29(1) provides:

"(1) The Chief Examiner may conduct an examination of a person in relation to an organised crime offence if -

(a) the Chief Examiner has received a copy of a coercive powers order made in relation to the offence; and

(i) the Chief Examiner has received a copy of a witness summons directed to the person requiring him or her to appear before the Chief Examiner at an examination to give evidence or to produce specified documents or other things or do both; or

(ii) the Chief Examiner has issued such a witness summons directed to the person; or

(iii) the Chief Examiner has received a copy of an order made under s.18 in respect of the person; or

(iv) the Chief Examiner has made such an order in respect of the person."

15 Under the Act, the Chief Examiner is not bound by the rules of evidence in conducting an examination and may regulate the conduct of the examination proceedings as he or she thinks fit.[3] A witness giving evidence at an examination may be represented by a legal practitioner.[4] The Chief Examiner, the legal practitioner, or any person authorised by the Chief Examiner may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates.[5] The Chief Examiner may take evidence on oath or affirmation.[6] A person served with a witness summons who fails to attend, and a person appearing as a witness who refuses or fails to answer a question, or without reasonable excuse refuses or fails to produce a document which he or she was required to produce by the witness summons, is guilty of an offence.[7] It is also an offence for a person appearing as a witness to give evidence which is false or misleading in a material particular, or to produce a document or other thing which the person knows to be false or misleading.[8] The privilege against self-incrimination is expressly abrogated.[9] A person is entitled to refuse to answer a question or produce a document on the grounds of legal-professional privilege.[10] Section 41 contains the procedure for determining claims of legal-professional privilege. It is an offence to hinder or obstruct the Chief Examiner in the exercise of his or her functions or to disrupt an examination before the Chief Examiner.[11] The Chief Examiner may inspect any document or thing produced before him or her.[12] A person attending before the Chief Examiner may be guilty of contempt in the circumstances prescribed by s.49.

16 Part 5 of the Act contains a detailed set of provisions designed for the oversight of compliance by the Chief Examiner with the Act. That oversight is undertaken by a Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004.

17 The applications in these cases are for variations of the terms of four coercive powers orders, which were made as follows:

(a) Coercive powers order No. 6 of 2006 made by Coldrey J on 2 November 2006 for six months. That order was extended on 18 April 2007 by Teague J for two weeks, and was further extended on 14 May 2007 by King J for six months.

(b) Coercive powers order No. 7 of 2006 made by Teague J 16 November 2006 for six months and extended on 15 May 2007 by King J for six months.

(d) Coercive powers order No. 9 of 2007 made by Teague J on 4 April 2007.

18 In each of the four proceedings, the original coercive powers orders were expressed to be subject to the following condition:

"This order is made on the condition that an application for a witness summons with respect to [named person] is to be brought before the Supreme Court and the Court will exercise supervision/discretion over any other summons applications with respect to this Coercive Powers Order thereafter."

19 The respective orders which were made extending coercive powers orders No. 6 and No. 7 of 2006 were all expressed to be subject to the same condition as that which I have just quoted.

20 The issue which I must determine is whether the Court, in granting a coercive powers order, has power to impose such a condition which has the effect of precluding the Chief Examiner from issuing a witness summons under s.15 in relation to the matter which is the subject of the coercive powers order. The applicant has submitted that the Court does not have such a power, and that in each case the condition which was so imposed was unlawful and invalid. Accordingly, it has been submitted that I should now make orders, under s.11, varying the original orders so as to delete that condition.

21 There were two major legs to the submissions made by Ms Tate on behalf of the applicant. First, Ms Tate submitted that the power of the Supreme Court to make a coercive powers order is essentially an administrative power, and not an exercise by the Court of a judicial function. In that respect, Ms Tate likened the provisions of the Act to those found in the Australian Crime Commission Act 2002 (Cth). Under that legislation the Board of the Australian Crime Commission has the power to make the initial determination that an application or investigation is a special one. Such a determination entitles the Commission to exercise a range of coercive powers under the Act. The power of the Board to make that determination has been characterised as an administrative, and not a judicial, function.[13] Similarly, it was submitted, the power of the Supreme Court to make a coercive powers order is of an administrative, and not judicial, nature. In particular, it was pointed out that a coercive powers order does not determine the rights of a party, but, rather, acts as a foundation for the investigative role of the Chief Examiner in a particular matter.[14] Ms Tate submitted that, as the power of the Court to make such an order is administrative, the sole source of the power is derived from the Act itself. In making such an order, the Court may not rely on any inherent or residual power or jurisdiction.

22 Secondly, Ms Tate submitted that, on its proper construction, s.9(2)(g) does not empower the Court to impose a condition, as part of a coercive powers order, which has the effect of ousting the power of the Chief Examiner, under s.15, to issue a witness summons. Ms Tate submitted that a coercive powers order is the foundation of the regime of investigative powers reposed by the Act in the Chief Examiner. Under the Act, the role of the Supreme Court is essentially limited to the making, varying and revocation of coercive powers orders. By contrast, once a coercive powers order is made, and unless and until it is revoked, the Chief Examiner has the central and integral role in the investigation of the organised crime offence which is the subject of the coercive powers order. Under the Act, the Chief Examiner has a considerable and extensive range of powers which have been deemed necessary to facilitate the proper investigation of the relevant organised crime offence which is the subject of the order. It was submitted that in this context s.4 is of critical importance, providing that a coercive powers order "authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made". Thus, s.4 itself expressly authorises the use of the coercive powers vested in the Chief Examiner under the Act, including the powers under s.15. The power of the Supreme Court to impose a condition under s.9(2)(g) was not intended to restrict, remove or limit the use of any of the coercive powers of the Chief Examiner in a manner which effectively ousts any such power. In other words, it was submitted, a coercive powers order authorises the use of "powers provided by this Act." The power of the Chief Examiner to issue witness summonses is a power expressly provided by the Act, which is enlivened by the making of the coercive powers order, and which may not be excluded by the specification of a condition under s.9(2)(g).

23 Ms Tate submitted that the Act intended that the powers of the Supreme Court and the Chief Examiner to issue witness summonses be concurrent. Section 9(2)(g) contains no express power for the Court to exclude the power of the Chief Examiner under s.15 from issuing witness summonses with respect to the investigation of an organised crime offence in relation to which a coercive powers order has been made. Indeed, the reference to "conditions" in s.9(2)(g) occurs in the context of a list of matters, which are required to be set out in the order, and which are otherwise "prosaic". Section 9(2)(g) assumes, rather than expressly stipulates, the existence of a power to impose conditions in the making of an order. In that context, it is unlikely that Parliament would have conferred a significant power on the Court, under s.9(2)(g), which enables the Court to nullify a statutory power of the Chief Examiner.

24 It was further submitted that the grant of a coercive powers order, and the obtaining of a witness summons, are two separate and distinct stages, which each require the consideration of different specified preconditions. In making a coercive powers order, the Court must refer to the criteria specified in s.8. By contrast, in issuing a witness summons, the Court (under s.14) and the Chief Examiner (under s.15) are principally required to consider the evidentiary or intelligence value of the information sought to be obtained through the issue of the summons. It was submitted that by imposing the condition in each of the orders under consideration, the Court has in effect wrongly introduced, as a restriction on the use of a coercive powers order, the considerations which are relevant to the obtaining of a witness summons. Further, by doing so, the Court has arrogated to itself a supervisory role which is not envisaged by the statute. Under the Act, the role of the Court, after making a coercive powers order, is quite restricted. By contrast, under Part 5 the Special Investigations Monitor is given the primary and overriding responsibility of supervising the activities of the Chief Examiners. The Court has wrongly endeavoured to intrude upon that role by imposing the condition as to the further issue of witness summonses under the coercive powers order which are under consideration.

25 Thus, it was submitted on behalf of the applicant that s.9(2)(g) does not permit the Court to impose a condition which removes or abrogates the statutory power of the Chief Examiner to issue a witness summons. It was submitted that the condition removes the power conferred by Parliament on the Chief Examiner. Such a condition is beyond the authority of the Supreme Court and should be set aside as invalid.

26 In response, Dr Emerton submitted that the question whether, in making a coercive powers order, the Court was acting in a judicial or administrative capacity, has limited relevance to the issue which I must determine. It was accepted that, on either view, the power to impose a condition of the type found in each of the orders made in these cases must be found within the empowering legislation itself. Dr Emerton submitted that, on a proper construction of the Act, the Court has the power to impose conditions of the type which were attached to each of the coercive powers order which are under consideration.

27 Dr Emerton submitted that such a construction derives from a proper consideration of the framework of the Act. The legislation is directed to the investigation of "organised crime offences", which, by definition, involve activities of a serious kind which are often not susceptible of successful investigation by the use of the usual powers of investigation, provided to the police. Because of the nature of the offences under investigation and the character of the potential offenders involved, the investigative powers conferred by the Act are extraordinary measures which either limit or exclude a number of the protections which are commonly available to persons who are the subject of police investigation. Consequently, the legislation has provided a system of checks and balances to ensure that the far reaching investigative powers conferred on the Chief Examiner are subject to appropriate control and monitoring. In that context, the role of the Supreme Court is important. The Court alone has the power to make the coercive powers order. It may constrain or limit the use of coercive powers by the Chief Examiner by imposing conditions under s.9(2)(g). The Court, of its own motion, may at any time revoke a coercive powers order.[15]

28 Dr Emerton pointed out that in determining whether to grant a coercive powers order, the Court is required by s.8(b) to balance the nature and gravity of the alleged organised crime offence, in respect of which the order is sought, against the impact of the use of the coercive powers on the rights of members of the community. The primary impact of any coercive powers order is upon those persons who may be the subject of witness summonses issued in respect of the order. By reposing in the Court, as well as the Chief Examiner, an express power to issue a witness summons, the Act has provided to the Court the option to retain control over who may be required to attend for examination pursuant to a coercive powers order, in order that the Court may, in an appropriate case, reach the requisite level of satisfaction under s.8(b) that it is in the public interest to make the coercive powers order. In a particular case, the Court may consider that it can only be justified, under s.8, in making a coercive powers order in that case, if it imposes a condition of the type which is attached to each of the orders with which we are presently concerned.

29 Dr Emerton further submitted that the "oversight" role of the Special Investigations Monitor is of quite a different kind to the role of the Supreme Court. In essence, the Special Investigations Monitor exercises a power of review of the exercise of the Chief Examiner's powers. The Special Investigations Monitor does not oversee or supervise those powers as they are being exercised, but, rather, reviews them subsequent to the exercise of the power. By contrast, under provisions such as ss.10, 12 and 20, the Court retains some ongoing powers to review and revise a coercive powers order made by it.

30 Thus, it was submitted that, in that context, the legislation specifically empowers the Court, under s.9(2)(g), to impose a condition, as part of a coercive powers order, upon the exercise of any of the powers of the Chief Examiner. In specifying any such condition, the Court exercises a discretionary power. In the four cases which are under consideration, no submission had been made by the applicant that the judge had failed to exercise his or discretion properly. Rather, the only submission which has been made is that the Court had no power at all to impose a condition of the kind found in each of the orders made in these cases. Dr Emerton submitted that, for the above reasons, the Court does have such a power, and accordingly that I should not make any orders varying the original orders.

31 As a preliminary issue, it is first necessary to determine the correct meaning of the condition to which each of the coercive powers orders have been made subject. It was acknowledged by both parties that, on its literal construction, the condition does not by its terms expressly affect the right of the Chief Examiner, of his own motion, to issue a witness summons under s.15. Rather, the condition is expressed to require (a) that an application for witness summons with respect to the person therein named be brought before the Supreme Court, and (b) that the Court exercise "supervision/discretion over any summons applications" with respect to the coercive powers order. However, Ms Tate informed me that the Chief Examiner, as a matter of caution and comity, has acknowledged that the intent and tenor of the condition in each order is that only the Supreme Court issue a witness summons in respect of the coercive powers order made by it. Both parties have submitted to me that the Chief Examiner, in adopting that construction of the condition, has acted correctly, so that the condition, on its proper construction, operates effectively to exclude the power of the Chief Examiner to issue a witness summons of his own motion.

32 In my opinion, the parties were correct in their submissions as to the effect and construction of the condition. Notwithstanding the language in which the condition has been couched, it is clear that the intent and purpose of the condition is that a witness summons may only be issued, with respect to the coercive powers order, by the Court. If the Court had intended to reserve to the Chief Examiner the power to issue a witness summons of his own motion, that would readily deprive the condition of any practical effect. It could not be sensibly maintained that that was within the contemplation of the Court in imposing the condition in each of the coercive powers orders.

33 Ms Tate, in the course of submissions, informed me that the judges who made the orders made it apparent, during the course of the application for the order, that the Court was seeking to exercise a supervision/discretion over any witness summons which was to be issued in relation to the coercive powers order made by the Court. Indeed, in the application for coercive powers order No. 9 of 2007, Teague J issued an edited version of his ruling,[16] in which his Honour indicated that the intention of the order was that " ... further application to the Court would be required for any witness or witnesses sought to be examined in relation to this matter."[17] Accordingly, notwithstanding the literal terms in which each of the conditions have been couched, in my view the correct construction of the conditions is that any witness summons to be issued in respect of the coercive powers order made by the Court would only be issued on application made to the Court.

34 As I have stated, the first leg of the applicant's argument raised the question whether the power of the Court to make a coercive powers order is an administrative power or a judicial power. However, in the course of submissions it became common ground that, even if the Court were exercising a judicial power in making such an order, the only possible source of the condition with which I am concerned could be s.9(2)(g) of the Act. It was accepted, and in my view correctly so, that even if the Court were exercising a judicial power in making a coercive powers order, nonetheless the imposition of such a condition could not be based on any inherent power of the Court. Accordingly, it is not necessary for me to determine whether the correct characterisation of the power of the Court to make a coercive powers order is administrative or judicial. It is inevitable that that question will arise squarely for decision in future contexts. Accordingly, it is undesirable that I express any view in relation to it, and I therefore decline to do so.

35 Thus, the question which arises in this case is whether s.9(2)(g) of the Act permits the Court to impose a condition of the type to which each of the coercive powers orders under review were made subject.

36 The appropriate starting point for determining that question lies in the interaction between s.4 and s.9(2)(g). As I have noted, under s.4 a coercive powers order authorises "the use" of the coercive powers provided by the Act. Those coercive powers include: the power of the Chief Examiner to issue a witness summons (s.15); the power of the Chief Examiner to conduct an examination of a person to whom such a summons has been directed (s.29(1)); the power of the Chief Examiner, in the course of such an examination, to ask questions which the witness is compelled to answer (s.36, 37(2)(a)); and the power of the Chief Examiner to compel the witness to produce a document or things (s.36, 37(2)(b)).

37 At the same time, s.9(2)(g) expressly provides that the coercive powers order, which is the source of authority for the use of the coercive powers, may specify conditions "on the use" of those powers. That is, while a coercive powers order is the foundation of "the use" by the Chief Examiner of the statutory coercive powers, the same order may also, at the same time, contain express conditions on "the use" of those same powers.

38 It was submitted on behalf of the applicant that the Court may not, in imposing a condition under s.9(2)(g), limit, restrict or exclude the use of a power expressly given to the Chief Examiner by statute. It was submitted that the only conditions contemplated by s.9(2)(g) are conditions which do not have the effect, in any way, of limiting or derogating from the statutory powers reposed in the Chief Examiner.

39 It is conceivable that some conditions may be imposed under s.9(2)(g) which do not, in any practical sense, detract from the coercive powers given to the Chief Examiner by the Act. However, ordinarily, it might be expected that a condition on the "use" of a power would, in some way, qualify, limit or reduce the ambit of the exercise of that power. Indeed, one of the conditions postulated by the applicant, in the course of submissions, as an example of a condition under s.9(2)(g) - a condition that a witness not be examined at the same time as another - is a condition which limits the power of the Chief Examiner under ss.29 and 36. There is nothing in s.9(2)(g) which requires it to be read down so as to confine it to the specification of conditions which do not limit, reduce or restrict the use by the Chief Examiner of powers reposed in him by the Act.

40 Further, there is nothing in the Act, and nor is there anything about the nature of the power provided by s.15, which would have the effect that under s.9(2)(g), the Court may only specify conditions as to the use of the power under s.15 which do not limit or reduce the ambit of the power given to the Chief Examiner under s.15. In other words, there is nothing in the Act or in s.15 which would support giving to s.9(2)(g) a more restrictive construction, in its application to the powers provided under s.15, that in its application to the other powers provided by ss.29, 36 and 37. It thus follows that s.9(2)(g) entitles the Court, in a coercive powers order, to specify a condition which has the effect of limiting, restricting or derogating from the use of coercive powers given to the Chief Examiner by the Act, including the power under s.15 to issue a witness summons.

41 The applicant submitted that in imposing the condition in each of the coercive powers orders which are before me, the Court has erroneously conflated the power to make a coercive powers order under ss.4, 5 and 8 with the power to issue a witness summons under ss.14 and 15. The applicant is correct in submitting that the making of a coercive powers order, and the issue of a witness summons, are separate steps in the investigative regime established by the Act. The making of a coercive powers order is a prerequisite, and precursor, to the issue of a witness summons. However, there is a clear relationship between those two steps. Firstly, they may both be necessary preconditions to the conduct of the examination of a witness under s.29(1). Under that section, in order that the Chief Examiner conduct an examination of a person, there must be, first, a coercive powers order in respect of an organised crime offence in relation to which the person is to be examined and, secondly, there must be either a witness summons or an order under s.18 in relation to that person. In other words, in effect, the issue of a witness summons or the making of an order in respect of a person in custody is a necessary second step, sequential to the making of the coercive powers order, which is required for the commencement of an examination by the Chief Examiner.

42 Secondly, contrary to the submissions of the applicant, there is an important relationship between, on the one hand, the considerations which are relevant to the making of a coercive powers order, and, on the other hand, the potential effect of the issue of witness summonses under a coercive powers order. Under s.8(b), the Court, in determining whether to make a coercive powers order, must first determine whether it is in the public interest to do so, having regard to the nature and gravity of the alleged organised crime offence in respect of which the order is sought, and the impact of the use of the coercive powers on the rights of members of the community. The applicant submitted that the reference in s.8(b)(ii) to the "impact" of the use of the coercive powers on the rights of members of the community is to be construed generally, so that the Court weighs, not the potential impact on the rights of members of the community in the specific case in hand, but, rather, the general circumstance that a coercive powers order necessarily impacts on recognised rights of members of the community. In my view, there is no warrant to read s.8(b)(ii) down in the manner contended by the applicant. Under s.5(3)(c), the application for a coercive powers order must set out, inter alia, particulars of the organised crime offence in respect of which the coercive powers order is sought. Under s.5(5), the Court may require the applicant to provide any additional information that the Court requires in relation to the application. In those circumstances, it might be expected that the Court, in most cases, would be in a position to make some assessment of the potential impact of the coercive powers order sought by the applicant, both quantitatively and qualitatively. There is no reason why s.8(b)(ii) does not intend the Court to take into account the potential specific effects of the making by it of the coercive powers order in the case in hand.

43 Thus, in determining whether to make a coercive powers order, the Court may take into account the potential effect of the "use of the coercive powers" on the rights of members of the community, both in a general sense and specifically. A fortiori, in determining where the public interest lies under s.8(b), the Court may, and should, take into account the potential effect, both general and specific, of the use by the Chief Examiner of the coercive power under s.15, should a coercive powers order be made.

44 It is at this point, again, that s.9(2)(g) comes into play. It is important to bear in mind that the conditions contemplated by that sub-section are conditions on "the use" of coercive powers under the coercive powers order. Those conditions are not to be found "in the air". Rather, the Court would determine those conditions by a proper judicial consideration of the materials before the Court in assessing where the public interest lies under s.8(b). Such an assessment itself would involve consideration by the Court of the effect of the "use" of coercive powers - including those under s.15 - on the rights of the community. It follows that the determination by the Court, under s.9(2)(g), of the conditions, if any, to be specified in respect of the use of any coercive powers provided under the Act - including those under s.15 - must be made in the context of the same considerations which govern the determination under s.8 whether it is in the public interest to make a coercive powers order. It thus follows that there is a necessary and important inter-connection between the factors which would apply to the determination as to whether a coercive powers order is to be made, on the one hand, and, on the other hand, the determination of whether conditions should be imposed by the Court on the use of coercive powers, including those under s.15, if such an order is made.

45 Indeed, it is only logical and sensible that, in assessing and determining the balance to be struck between the nature and the gravity of the offence alleged, and the potential impact of the use of coercive powers under s.8(b), the Court take into account any conditions which it might impose on the use of coercive powers under s.9(2)(g). The imposition of such conditions might so ameliorate the potential impact of the use of coercive powers as to weight the public interest in favour of the making of the order, where the Court would otherwise not be minded to make such an order. As submitted by Dr Emerton, a coercive powers order both enlivens the coercive powers provided by the Act, and also may condition or regulate their use.

46 Thus, it follows that there is a necessary and relevant interrelationship between the making of a coercive powers order and the determination of conditions on the power of a Chief Examiner to use coercive powers provided under the Act, including those under s.15. That relationship, in my view, supports the existence of the power of the Court under s.9(2)(g) to impose a condition which might limit or restrict the coercive power of the Chief Examiner to issue a witness summons under s.15.

47 In this context, it might be further observed that there is some similarity, at least in part, between the type of considerations relevant to the making of a coercive powers order, under s.8, and those which must be taken into account in determining whether to issue a witness summons. Under s.14(6) the Court, and under s.15(4) the Chief Examiner, may issue a witness summons if satisfied "that it is reasonable in the circumstances" to do so after considering the evidentiary or intelligence value of the information sought to be obtained, and the age of the person and any mental impairment to which the person is known to be subject. In making that determination the Court (or Chief Examiner) must determine, in light of the evidentiary or intelligence value of the information sought, whether it is "reasonable in the circumstances" to issue the witness summons. I would expect that, in making that determination, the Court (or the Chief Examiner) would take into account a number of circumstances, including the nature and gravity of the offence alleged, the potential impact on the person to be summoned, and other relevant matters. No doubt for that purpose s.14(5) has given to the Court the power to require the applicant to provide any additional information that the Court requires in respect to an application for a witness summons.

48 It was submitted by the applicant that s.9(2)(g) should be construed in light of the structure of the Act. In particular, it was submitted that under the Act the role of the Supreme Court is principally confined to issuing a coercive powers order. The Court does not play any role in the investigative processes, nor in supervising those processes. Rather, under Part 5 it is the role of the Special Investigations Monitor to supervise the exercise by the Chief Examiner of the coercive powers invested in him by the Act.

49 It is correct that the Act does not envisage that the Court be actively involved in investigative processes undertaken by the Chief Examiner. However, the role of the Court does not end upon the making by it of a coercive powers order. Under s.10, the Court, on application by a member of the police force, may extend the period of operation of a coercive powers order, or may vary any of the terms of the order. Under s.12, the Court, of its own motion, may revoke a coercive powers order. Section 14 provides for the Court to issue witness summonses on the application by a member of the police force. Under s.17(3), the Court may make an order for substituted service of a witness summons. Section 18 provides that the Court, or the Chief Examiner, may order that a person, who is held in prison or a police gaol, be delivered into the custody of a police member for the purpose of bringing that person before the Chief Examiner to give evidence. Section 20 provides that the Court, or the Chief Examiner, may give a person to whom a witness summons is issued a notice requiring that the summons or order be confidential. Section 46(1) provides that, on application by a member of the police force, the Court may issue a warrant for the arrest of a person, where the Court is satisfied that there are reasonable grounds to believe that the person has absconded or is attempting to, or likely to attempt to, evade service of a summons.

50 Furthermore, while it is correct that the Special Investigations Monitor has detailed powers by which he might monitor the examinations undertaken by the Chief Examiner, on the other hand the Monitor has no power to impose a direction or regulation on the use by the Chief Examiner of the coercive powers stipulated by the Act. Only the Supreme Court has the power, expressly given to it under s.9(2)(g), to expressly regulate or direct the use by the Chief Examiner of the coercive powers provided under the Act. There is nothing in the role of the Special Investigation Monitor which restricts or qualifies the power given to the Court under s.9(2)(g). Indeed, the absence of any capacity on behalf of the Special Investigations Monitor to impose any restriction on the use by the Chief Examiner of his coercive powers supports the construction of s.9(2)(g) contended for by the respondent.

51 Further, the application of ordinary principles of statutory interpretation supports that construction of s.9(2)(g). The provisions of the Act constitute a far reaching intrusion into, and derogation of, basic rights of members of the community. The powers provided by the Act affect the liberty of any person who is the subject of a witness summons. They also derogate from the right of a person summonsed before the Chief Examiner to exercise his or her right to silence, and expressly derogate from the right of a person not to incriminate himself or herself. It is fundamental that courts apply a strict construction to statutory provisions which derogate from or affect longstanding common law rights.[18] That approach is based on the presumption that Parliament is cognisant of the common law rights of members of the community, and thus Parliament only intends to derogate from those rights where it expressly and clearly evinces an intention to do so.[19] It is a corollary of, and consonant with, that principle that a statutory provision such as s.9(2)(g) should be constructed in a manner which enables the Court to impose conditions which, in appropriate cases, may ensure some degree of protection to members of the community in respect of their longstanding fundamental rights.

52 Thus, I do not accept the proposition relied on by the applicant that, under s.9(2)(g), the Court is not permitted, in an appropriate case, to specify a condition which limits or restricts a coercive power provided to the Chief Examiner under the Act. Accordingly, I consider that, under s.9(2)(g) the Court does have the power, in an appropriate case, to specify a condition which limits or restricts the use of the power of the Chief Examiner under s.15 to issue a witness summons.

53 In each case, the determination of what condition or conditions is or are to be specified will be the product of the Court's assessment, on the materials before it, of what is required to ensure that an appropriate balance is maintained between, on the one hand, the need to use coercive powers to investigate the alleged organised crime offence and, on the other hand, the potential impact of the use of such coercive powers on the rights of members of the community. In some cases, the Court, under s.8, might only be satisfied that it is in the public interest to make a coercive powers order if the Court were to specify a condition or conditions affecting or limiting the use of one or more of the coercive powers provided to the Chief Examiner under the Act. Thus, in some cases, it might be appropriate to specify a condition which affects or limits the use by the Chief Examiner of his power under s.15 to issue a witness summons.

54 In particular, the Court's assessment, on the materials before it, of the potential impact of a coercive powers order on the rights of members of the community may give rise to a concern as to the potential reach and effect of the inquiry which is intended to be undertaken by the Chief Examiner under the coercive powers order which is sought from the Court. The materials which are before the Court may, of necessity, be such that without the imposition of a relevant condition affecting the Chief Examiner's powers under s.15, the Court might consider that the impact on the rights of members of the community might be disproportionate to the nature and gravity of the organised crime offence which is to be the subject of the coercive powers order sought from the Court. In such a case, and without the specification of a condition affecting or limiting the Chief Examiner's powers under s.15, the Court may not consider that it is in the public interest to grant a coercive powers order. Equally, in other cases, because of the nature of the subject matter which is to be the subject of the examination by the Chief Examiner under the coercive powers order, or because of the identity or characteristics of persons who it is anticipated may be the subject of witness summonses to be issued under the coercive powers order, the Court may be unable to be satisfied, under s.8, that it is in the public interest to make a coercive powers order, unless, at the same time, the Court imposes a condition affecting or limiting the powers of the Chief Examiner to issue a witness summons under s.15. As I have stated, in each case, the specification of such a condition would be based on a proper assessment by the Court, under s.8, of what is necessary, in the public interest, to ensure that, upon the making of the coercive powers order, there is an appropriate balance between the need to investigate the organised crime offence which is alleged, and the need to protect the community from the impact on its rights resulting from an exercise of the coercive powers in light of the nature and gravity of the alleged organised crime offence which is the subject of the examination.

55 Accordingly, as I have stated, I am of the view that s.9(2)(g) entitles the Court to impose a condition which has the effect of limiting or restricting the use by the Chief Examiner of one or more of the coercive powers given to the Chief Examiner under the Act. The next question is whether the Court has the power, under s.9(2)(g), to specify a condition which has the effect that a witness summons, in relation to an organised crime offence in respect of which a coercive powers order has been made, may only be issued on application to the Supreme Court under s.14. In other words the question is whether the Court has the power, under s.9(2)(g), in an appropriate case, to exclude the power of the Chief Examiner to issue a witness summons under s.15.

56 It might be argued that, by providing for the specification of a condition or conditions on "the use" of coercive powers under a coercive powers order, s.9(2)(g) contemplates that there must, in each case, be some residual use of a coercive power after the imposition of such a condition. However, as pointed out by Dr Emerton, coercive powers are referred to collectively in s.9(2)(g). Thus, a condition which permits the use of some coercive powers, but not others, would be properly characterised as a condition "on the use of coercive powers" for the purposes of s.9(2)(g). In this context, the interrelationship between s.4 and s.9(2)(g) is, again, of some relevance. Under s.4, a coercive powers order authorises "the use ... of powers" provided by the Act. In s.9(2)(g), the same phrase is employed: the Court may impose conditions "on the use of coercive powers under the order." The employment, in both provisions, of the collective phrase "the use ... of (coercive) powers" reflects a statutory intention that under s.9(2)(g), the Court does have the power to restrict or exclude the use of one or more of the coercive powers provided by the Act.

57 Ms Tate submitted that, as a matter of statutory construction, s.9(2)(g), could not empower the Court to impose a condition which has the effect of "ousting" a statutory power expressly vested in the Chief Examiner. She submitted that the effect of the condition which was imposed in the four cases before me is to re-write s.15(2), by inserting a qualification at the commencement of s.15(2) to the effect that the power of the Chief Examiner to issue a witness summons is "subject to the contrary order of the Court."

58 Clearly, the Court would not have the power, as a matter of "policy", and without reference to the facts of the particular case before it, to impose a condition which wholly excludes the power of the Chief Examiner to issue a witness summons under s.15. Although, as I understand it, in the large majority of the nine cases in which coercive powers orders have been issued under the Act the Court has imposed a condition of the type with which I am concerned, the applicant did not contend before me that the Court had acted on erroneous discretionary grounds, or that the Court had adopted an overriding policy in circumstances which could amount to a miscarriage of the Court's discretion. Rather, Ms Tate quite properly confined her submissions to the question whether, in any case, the Court has the power, under s.9(2)(g), to impose a condition which has the effect of excluding, in that case, the power of the Chief Examiner to issue a witness summons under s.15. In that light, in my view, the imposition, in an appropriate case, of a condition of the type specified in each of the four cases before me would not constitute an "ouster" of statutory powers vested in the Chief Examiner, or the re-writing by the Court of s.15(2), as contended by the applicant. In each such case, such a condition would be no more than a condition specified by the Court "on the use of coercive powers", based on the particular facts put before the Court in that case.

59 As I have stated, the applicant did not contend that the Court has misused its discretion, in each of the cases before me, in imposing the condition which is the subject of debate in these cases. Ms Tate has confined the applicant's arguments to a submission that the Court does not have the power to impose such a condition under s.9(2)(g). For the reasons I have set out, I do not accept that submission. However, as I have demonstrated, the specification of a condition in any case, under s.9(2)(g), can only be the result of the Court's proper consideration and assessment of the materials before it in the particular case in hand, and upon the proper application by the Court of the criteria stipulated by s.8 to the facts of the case. That is, the Court is not "at large" in specifying conditions under s.9(2)(g). Regardless of whether the Court is exercising an administrative or a judicial power in granting a coercive powers order - a question on which I expressly refrain from expressing any view - the Court must act judicially[20] and must, by appropriate analysis, only impose conditions which, on the facts, are necessary to ensure that there is an appropriate balance between, on the one hand, the need to use the coercive powers provided by the Act to properly investigate the alleged organised crime offence and, on the other hand, the potential impact on rights of members of the community resulting from the exercise of coercive powers under the coercive powers order sought from the Court.

60 However, for the reasons which I have set out, I have reached the conclusion that the Court does have power, under s.9(2)(g), to specify a condition to a coercive powers order which has the effect, in the particular case, of precluding the Chief Examiner from issuing a witness summons under s.15. In each case before me, the applications to vary the coercive powers orders were based solely on the proposition that the Court has no such power. It accordingly follows that, in each case, the application to vary the coercive powers order must be dismissed.

[13] X v Australian Crime Commission [2004] FCA 1475; [2004] 139 FCR 413 at 421 [32].

[14] Compare Love v Attorney-General (NSW) (1990) 169 CLR 307 at 320-321.

[18] Potter v Minahan (1908) 7 CLR 227 at 304 (O'Connor J); Sargood Bros v Commonwealth [1910] HCA 45; (1910) 11 CLR 258 at 279 (O'Connor J); Ferguson v Union Steamship Company of New Zealand Ltd [1884] VicLawRp 103; (1884) 10 VLR (L) 279 at 284 (Stawell CJ); 289 (Williams J); Taikato v R [1996] HCA 28; (1996) 186 CLR 454 at 460; Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436-7.

[19] Al-=Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 577 (Gleeson CJ).

[20] Grollo v Palmer and ors [1995] HCA 26; (1995) 184 CLR 348 at 367 (Brennan CJ, Deane, Dawson and Toohey JJ).

Crime (Investigative Powers) Act 2004