Plaintiff v Defendant

Supreme Court of Victoria|2021-06-08|Before: Niall JA

JUDICIAL REVIEW - Statutory interpretation - Whether s 464ZFAC of the Crimes Act 1958 empowers a senior police officer to authorise the taking of a DNA profile sample - Whether requiring the plaintiff to provide a DNA sample constituted a breach of human rights under the Charter of Human Rights and Responsibilities - Whether the power to authorise the taking of a DNA sample is discretionary - Right to enjoy human rights without discrimination - Right not to have privacy unlawfully or arbitrarily interfered with - Crimes Act 1958 ss 464ZFAC, 464ZF, , - ss 7, , 13, , .

1 This application for judicial review concerns the nature and scope of the power in s 464ZFAC of the Crimes Act 1958, which empowers a senior police officer to authorise the taking of a DNA profile sample from adult persons who have been convicted of an indictable offence.

2 The plaintiff pleaded guilty to a persistent breach of an interim family violence order, which is an indictable offence. Following that conviction, a senior officer of Victoria Police authorised the taking of a DNA sample under s 464ZFAC. The plaintiff accepts that he satisfies the express criteria for the giving of an authorisation in respect of him, but contends that the senior police officer had a discretion to take into account the circumstances of the offending and that he suffers from a cognitive impairment that would make taking the sample distressing and something that he is not capable of understanding. He contends that the authorisation was unlawful and in breach of his rights under s 8 (non-discrimination) and s 13 (privacy) of the Charter of Human Rights and Responsibilities Act 2006 (the 'Charter').

3 For the reasons that follow, the plaintiff has failed to make out his grounds, and the proceeding must be dismissed.

4 On 13 August 2019, an interim family violence intervention order ('the interim order') was issued in the Magistrates' Court prohibiting the plaintiff from going within 200 metres of his wife and daughter. He breached the interim order on a number of occasions. On 16 December 2019, the plaintiff pleaded guilty to one charge of persistent contravention of the interim order in relation to conduct occurring between 14 and 23 October 2019.[1] The contraventions involved the plaintiff walking into the front yard of his former family home and, on one occasion, attending his daughter's school. To that point, the plaintiff had no prior criminal history.

5 The offence to which the plaintiff pleaded guilty is an indictable offence, albeit that it was, in the plaintiff's case, dealt with summarily in the Magistrates' Court. The matter was adjourned for six months on the basis that the plaintiff sign an undertaking to be of good behaviour and no conviction was recorded.

6 On 14 January 2020, the plaintiff pleaded guilty to a further charge of persistent contravention of the interim order and that charge was adjourned without conviction.

7 On 10 July 2020, Inspector Matley, a 'senior police officer',[2] acting under the authority of the Chief Commissioner, authorised the taking of a sample of the plaintiff's DNA pursuant to s 464ZFAC(2) of the Crimes Act on the basis that the plaintiff had pleaded guilty to a DNA offence on 16 December 2019.

8 On 28 July 2020, the plaintiff was served with a notice, under s 464ZFAD, to attend a specified police station and provide a DNA sample, by means of a buccal swab. That notice was given under the name of Leading Senior Constable Gray. The notice contained all of the information required by s 464ZFAD(3).

9 It appears from the evidence filed in this Court that the plaintiff's offending arose in the context of him suffering a significant cognitive impairment. That evidence discloses that, since 2015, the plaintiff has had multiple hospital admissions in the context of alcohol withdrawal. On 30 May 2019, a MRI scan showed reduced brain volume in keeping with the plaintiff's history of heavy alcohol use. On 21 November 2019, Dr Matt Treeby assessed the plaintiff and observed severe learning and memory difficulties. The plaintiff's cognitive impairment is reflective of a diagnosis of an Acquired Brain Injury ('ABI') and a severe memory impairment consistent with Korsakoff's syndrome. Dr Treeby found that the plaintiff does not have the capacity to make reasoned and informed lifestyle or complex financial decisions, and that the ongoing appointment of an independent administrator and guardian would be appropriate.

10 Due to his cognitive impairment, the plaintiff is under a guardianship order made under the Guardianship and Administration Act 2019. The current guardianship order, dated 13 February 2020, reappointed the Office of the Public Advocate ('OPA') as the plaintiff's guardian, with powers and duties to make decisions concerning accommodation and access to services, including the NDIS.[3]

11 The evidence does not establish, and there is no reason to believe, that Inspector Matley knew of the plaintiff's condition or that he was under a guardianship order at the time Inspector Matley gave the authorisation.

12 On 29 July 2020, the plaintiff's guardian contacted the Mental Health Legal Centre, expressing her concern regarding the plaintiff's inability to understand the process involved and the significant distress and confusion he would experience if he were required to provide a DNA sample.

13 On 30 July 2020, the plaintiff's guardian wrote to Victoria Police, advising them of the plaintiff's ABI and resulting severe cognitive impairment and of her concerns regarding the distress and confusion that the plaintiff would likely experience as result of having to submit a DNA sample.

14 On the same day, the plaintiff's solicitor, Lucy Carter, emailed LSC Gray requesting that he reconsider requiring the plaintiff to provide a DNA sample. On 31 July 2020, LSC Gray advised that he had sent the file to the 'DNA Management Unit' who would determine the appropriate course.

15 In her affidavit, Ms Carter deposed that on 31 July 2020 Acting Sergeant Smith, an officer based at the DNA Management Unit, told her that 'they' would be proceeding with obtaining DNA from the plaintiff. She said that the plaintiff had pleaded guilty to an indictable offence and it was their intention to obtain a DNA sample from everybody who had pleaded guilty or been found guilty of a DNA offence as allowed under s 464ZFAC, no matter the circumstances or public benefit. Ms Carter was not cross-examined on her affidavit.

16 The plaintiff has not yet attended the police station nor provided the sample. In the event the plaintiff fails to provide a DNA sample in accordance with the notice, a police officer may apply to the Magistrates' Court pursuant to s 464ZFAA(6) for a warrant pursuant to s 464ZFAA(7).[4] That step has not been taken pending the outcome of the current proceeding.

17 The Crimes Act has, for some time, provided for the compulsory taking of DNA and other forensic samples from certain persons. For present purposes the two categories are: persons who are being investigated in relation to a particular criminal investigation (pre-conviction samples); and those who have been convicted of indictable or other specified crimes (post-conviction samples). Until relatively recently, the compulsory obtaining of DNA samples required an order of the Magistrates' Court. In respect of post-conviction samples, the orders were commonly made at the same time as sentence was imposed. Orders made by magistrates for the taking of pre-conviction samples, as part of an investigation, have been the subject of a number of proceedings in this Court.[5]

18 Certain amendments to the Crimes Act 1958 in 2019,[6] transferred some of the powers to require the giving of a DNA sample from the Magistrates' Court to Victoria Police. It is convenient to set out the key legislative provisions.

Post-conviction sample: Section 464ZFAC

19 Section 464ZFAC, was inserted by s 62 of the Justice Legislation Amendment (Police and Other Matters) Act 2019, as part of a suite of measures that conferred powers on police officers to require the giving of a DNA sample. Section 464ZFAC empowers a 'senior police officer' to authorise the taking of a DNA profile sample in certain circumstances post-conviction. It relevantly provides:

(1) In this section -

DNA offence means -

(a) an indictable offence or an offence specified in Schedule 8; or

(b) any offence of conspiracy to commit, incitement to commit or attempting to commit an indictable offence or an offence specified in Schedule 8.

(2) A senior police officer may authorise the taking of a DNA profile sample from a person if -

(a) the person -

(i) is found guilty of a DNA offence; or

(ii) is found not guilty of a DNA offence, other than an offence heard and determined summarily, because of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(b) it is not more than 6 months after -

(i) the final determination of an appeal against the conviction or the verdict of not guilty because of mental impairment (as the case requires); or

(ii) the expiration of any appeal period; and

(c) the person is not under the age of 18 years at the time -

(i) the finding of guilt for the DNA offence is made; or

(ii) the finding of not guilty for the DNA offence because of mental impairment is made; and

(d) the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely.

...

(8) If on appeal a conviction for the DNA offence or the verdict of not guilty for the DNA offence because of mental impairment (as the case requires) is set aside, an authorisation for a sample to be taken from a person in respect of the DNA offence ceases to have effect.

(9) An authorisation given under this section must be in writing signed by the senior police officer giving it.

20 Once an authorisation is given under s 464ZFAC, s 464ZFAD provides that a notice to attend must be attached to the authorisation and served on the relevant person. The s 464ZFAD notice requires the relevant person to attend the police station specified in the notice for the purpose of having the DNA profile sample taken. The notice must state certain matters including, details of the authorisation; that if the person fails to comply an application for a warrant to arrest the person may be made without further notice; that the person may wish to seek legal advice; and that reasonable force may be used to take the sample.

21 The consequences of a failure to comply with a notice are provided for in sub ss 464ZFAA(6), (7) and (8).[7] In the event that a person fails to comply with a notice, a police officer may apply to the Magistrates' Court for a warrant.[8] If a magistrate or registrar is satisfied that the notice has been served and the DNA sample has not been provided, the magistrate may issue a warrant authorising the officer to arrest and detain the person for a reasonable period in order to take the sample.[9]

22 As part of the same suite of amendments, the power to obtain a pre-conviction sample as part of an investigation was also conferred on a senior police officer. The contrast in the terms in which that power was conferred is relevant to the arguments on the construction of s 464ZFAC.

Pre-conviction sample taken by police: Section 464SE

23 Section 464SE empowers a senior police officer to authorise the taking of a DNA profile sample in certain circumstances pre-conviction:

(1) A senior police officer who is not involved in investigating the offence for which the taking of a sample is required may authorise the taking of a DNA profile sample from a DNA person if the senior police officer is satisfied that -

(a) the person is a DNA person who is -

(i) under lawful arrest by warrant; or

......

(b) the person is not incapable of giving informed consent by reason of mental impairment; and

(c) for a DNA person who is an adult, the person has refused to give consent to a request under section 464SC(1); and

(d) ........

(e) for a DNA person who is an adult, there are reasonable grounds to believe the person has committed the indictable offence in respect of which the authorisation is sought; and

(f) .........; and

(g) the taking of the sample without the consent of the person is justified in all of the circumstances.

24 Before a senior police officer gives an authorisation under s 464SE, s 464SF requires the officer to give the person a reasonable opportunity to say whether there is any reason why a DNA profile sample should not be taken.

25 This power was formerly conferred on the Magistrates' Court under s 464T.

26 It is also convenient, for the purpose of contrast, to refer to the earlier provisions of the Crimes Act where the power to order a DNA sample be provided post-conviction resided in the Magistrates' Court.

Post-Conviction sample taken in the Magistrates' Court under earlier legislation

27 The analogue to s 464ZFAC, prior to its insertion, was s 464ZF. It sets out the forensic procedure following the commission of a 'forensic sample offence':

.....

(2) If at any time on or after the commencement of section 25 of the Crimes (Amendment) Act 1997 a court finds a person guilty of -

(a) a forensic sample offence (within the meaning of that term as then in force); or

(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence -

a police officer, at any time following that finding but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiration of any appeal period (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.

...

(8) A court hearing an application under subsection (2) or (3) -

(a) must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order under subsection (2) or (3); and

(b) must be satisfied that, in all the circumstances, the making of the order is justified; and

(c) may make such inquiries on oath or by affirmation or otherwise as it considers desirable.

...

Section 464T pre-conviction Magistrates' Court under earlier legislation

28 Finally, the analogue to s 464SE, prior to its insertion, was s 464T. It enabled a police officer to apply to the Magistrates' Court for an order requiring certain persons to undergo a compulsory procedure pre-conviction. Section 464T(1) provided for an application to be made in relation to a suspect. The section continued:

(2) An application under subsection (1) -

(a) must be in writing supported by evidence on oath or by affirmation or by affidavit; and

(b) if the person is a detained or protected person, must state that fact and identify the place where the person is held or resides; and

(c) must specify the type of compulsory procedure sought to be conducted.

(3) The Court may make an order directing a person to undergo a compulsory procedure if the Court is satisfied on the balance of probabilities that -

(a) the person is a relevant suspect; and

(b) there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and

(c) ....

(f) there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence; and

(g) the person has refused to give consent to a request under section 464R(1) or the person is incapable of giving informed consent by reason of mental impairment; and

(h) in all the circumstances, the making of the order is justified.

29 On an application under s 464T, the affected person was required to be present in Court,[10] and the magistrate was required to give reasons for their decision.[11]

30 The plaintiff challenges the authorisation on the basis that the power in s 464ZFAC is discretionary and the provision does not compel a senior police officer to authorise the taking of a DNA profile sample from a person found guilty of a DNA offence. The plaintiff relies on the use of the word 'may' in s 464ZFAC(2). The plaintiff says that the relevant power was previously conferred on magistrates under s 464ZF, which also used the word 'may' and which was also discretionary.

31 The plaintiff relies on the decision of the Court in Lednar v Magistrates' Court.[12] That case concerned a decision of a magistrate to require the taking of a DNA sample under s 464ZF in its earlier form (set out above at paragraph 27). The plaintiff referred specifically to the following passage in the reasons for judgment of Gillard J in that case:

...the first matter for the court to consider is the seriousness of the circumstances of the forensic sample offence. It would be relevant to consider the prisoner's criminal record and the propensity if any of further offending. In addition, the magistrate should take into account that the scope and purpose of the section is to obtain DNA samples not only to assist in the investigation of past offences but also to provide some deterrence to the person providing the DNA sample from committing offences in the future. In addition, the sample may be used to investigate future offences. It is factors such as those which a magistrate should take into account in determining whether the order should be made. Overall, in considering all matters the magistrate must be satisfied that in all the circumstances the making of the order is justified.[13]

32 The plaintiff next submits that the defendant did not appropriately exercise his discretion by failing to take into consideration the subject-matter, scope and purpose for which the power is conferred. The plaintiff submits that the officer who gave the authorisation did not take into account these factors and made no inquires of the plaintiff in respect of them. As a result, so it is argued, the officer failed to take into account the following:

(a) The plaintiff has no criminal history;

(b) The offending was at the lowest range, as illustrated by the disposition of an undertaking without a conviction being recorded;

(c) The minimal risk of re-offending;

(d) Obtaining the sample would have no deterrent effect on the plaintiff due to his cognitive deficits;

(e) The offending was consistent with severe memory loss;

(f) DNA played no role in the investigation and prosecution of the offending; and

(g) Providing the sample would cause considerable distress, as attested to by his guardian and treating practitioners.

33 The plaintiff submits that taking those matters into account, it is 'not evident that the authorisation is justified'.

34 The plaintiff also relies on s 32 of the Charter to support his construction of s 464ZFAC as conferring a discretionary power. Further, the plaintiff says that the defendant acted inconsistently with its obligations under s 38 of the Charter by failing to consider the plaintiff's rights, to not have his privacy unlawfully or arbitrarily interfered with (s 13) and the right to enjoy his human rights without discrimination (s 8).

35 The plaintiff submits that the obligation on Victoria Police to act in accordance with the rights protected under the Charter requires that all of the plaintiff's circumstances be taken into consideration in exercising the discretion to require a DNA sample, including, the severity of the offending; the role of DNA evidence in the offending; the likelihood of future offending; and the psychological distress likely to be caused to the plaintiff by the taking of the DNA sample.

36 In relation to discrimination, the plaintiff also relies on the principle of legality to submit that a duty would treat different people the same without allowance for their differences. In this case, he submits that the impact of requiring a sample is greater on the plaintiff because he cannot comprehend the nature or purpose of the exercise of the power on him and it is likely to cause him significant distress.

37 The plaintiff seeks declarations that the authorisation was unlawful and was in breach of the defendant's obligations under s 38 of the Charter and an order quashing the authorisation.

38 The defendant submits that s 464ZFAC obliges a senior police officer to give an authorisation where the relevant statutory preconditions are met; the exercise of the power is not discretionary in that situation. In those circumstances, s 38(2) of the Charter provides that the senior police officer is not required to comply with s 38(1) of the Charter because the officer could not have acted differently.

39 The defendant submits that it is clear from the relevant legislative provisions that Parliament intended very different approaches to apply to the authorisation of DNA samples by police in pre-conviction and post-conviction contexts.

40 The defendant distinguishes between the decision to 'give' an authorisation under s 464ZFAC and the decision to 'execute' the authorisation (under s 464ZA) or to enforce the authorisation by obtaining a warrant (under s 464ZFAA). The defendant submits that the authorisation itself does not allow for the compulsory taking of a sample.

41 The defendant submits that the giving of an authorisation is permitted by law and is not arbitrary, so there can be no breach of s 13 of the Charter. In any event, the taking of the sample involves either no, or very limited infringement of the rights and is manifestly justified. Further, only one decision was reasonably open to the decision maker and therefore, by operation of s 38(2), s 38(1) does not apply.

42 In order to succeed, the plaintiff must show that at the time the authorisation was issued, the decision maker was obliged to inquire into and consider his personal circumstances and that these matters fed into the discretion conferred by s 464ZFAC.

43 Although, the first step in the argument as framed by the parties was whether s 464ZFAC is discretionary, it is not enough for the plaintiff to establish that the power is discretionary. He must go further and say that the decision maker was obliged to take into account his personal circumstances, including by making inquiries. Thus, the critical issues turn not just on the nature of the power but on the identification of the limits on its exercise and whether it was lawfully exercised in this case, including by reference to the Charter.

44 The plaintiff starts his submissions by saying that the use of the word 'may' in s 464ZFAC confers a discretion. I accept that the use of the word 'may' as opposed to 'shall'[14] or 'must' generally indicates that the power is discretionary. As both parties have submitted, s 45 of the Interpretation of Legislation Act ('ILA') confirms that usual position. As s 45(1) provides, the word '"may" [...] shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.'

45 Two points can be made immediately. Section 45, like most if not all provisions of the ILA, is subject to a contrary intention. Given the force of the language used in s 45, and its reinforcement in s 45(3), contrary intention should not lightly be found. Nevertheless, in some situations the word 'may' simply expresses the conferral of a power or function. Indeed, putting to one side s 45 for the moment, it is worth recalling that 'the word "may", in its natural meaning, is permissive or enabling only, and it lies on those who assert that there is an obligation to exercise the power conferred to show, as a matter of construction of the Act as a whole, that this is so'.[15]

46 Windeyer J said in Finance Facilities,[16] the question whether a power is discretionary 'does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'.'[17] In Shields v Chief Commissioner of Police,[18] Bell J held that a power conferred on the Chief Commissioner to dismiss an officer which was expressed using the phrase 'may dismiss' on satisfaction of criteria going to suitability conferred a power not a discretion.[19] In large part that was because of the nature of the criteria which required the Commissioner to be satisfied that the person was 'unsuitable to continue as a member'.[20] It was not possible to contemplate how the Commissioner could exercise a discretion to keep an officer in the force, who the Commissioner was satisfied was unsuitable to continue.

47 The second, and related point is that not all discretions are of equal breadth. Some are very narrowly confined but remain a discretion. In such cases, the significance of the power being discretionary may be no more than the decision maker is not liable to an order for mandamus to compel the making of the decision.

48 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[21] the High Court observed:

"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[22]

49 The critical point here is not whether the power is discretionary but what the senior officer may take into account in the exercise of the power. In this respect, it is important to differentiate between the matters that the senior officer is bound to take into account (mandatory relevant considerations in the Peko Wallsend sense); [23] those considerations the decision maker is permitted but not obliged to take into account; and those matters the decision maker is prohibited from taking into account (the so, called 'irrelevant considerations'). That is, what are the limits that define and confine the power?

50 The nature of the power and the factors that condition its exercise are to be discerned by reference to the provision as a whole. The only matters that a decision maker can take into account are those that the statutory provision permits, both expressly and by implication. The less constrained the power, the more scope a decision maker has to consider matters. Generally, expressed powers will only be constrained by the purpose and context of the Act.

51 In summary, on its proper construction, s 464ZFAC does not permit the senior officer to take into account the seriousness of the offence or the circumstances of the offender when deciding whether to give the authorisation. The consideration of such matters would fundamentally alter the nature of the decision, being one to authorise a senior officer to take steps to obtain a DNA sample.

52 The power in s 464ZFAC is a limited one (to give an authorisation) and the criteria are tightly prescribed. As to the seriousness of the offence, s 464ZFAC addresses that issue by prescribing those offences that trigger the power to give an authorisation. There is no scope for the decision maker to narrow the range by taking into account the specific circumstances in which the offence was committed.

53 As to the personal circumstances of the offender, there is nothing to suggest that these are to be considered and no process is provided for those matters to be ascertained before a decision is made. The contrast with the earlier forms of the provision, when the power was conferred on magistrates and with the cognate power conferred on senior police officers with respect to pre-conviction samples, is telling. Under those different regimes, the decision maker must make an assessment of whether the taking of the sample is justified. No such evaluative exercise is required, or permitted, by s 464ZFAC.

54 The Charter does not lead to a different construction of the provision.

55 I will now set out, in further detail, my reasoning that has led me to those conclusions and why the plaintiff cannot succeed.

56 First, there is no doubt that the criteria in s 464ZFAC were met on 10 July 2020 when Inspector Matley issued the authorisation. There is no evidence one way or the other on whether Inspector Matley had any knowledge of the particular circumstances of the plaintiff or that he considered any other matter other than the matters listed in s 464ZFAC.

57 Section 464ZFAC sets out certain and limited criteria for the authorisation. The criteria are all capable of being known, or ascertained, by the officer without recourse to the affected person. They are objective in nature, involve matters of record and do not require any evaluative assessment. None of them depend on the individual circumstances of the person. They may be contrasted with the criteria for an order for DNA collection of a person where there has been no conviction and for the purpose of investigation which requires the issuing officer to consider whether the 'taking of the sample without the consent of the person is justified in all the circumstances'.[24]

58 Having stipulated that the relevant criteria for the taking of a DNA sample is conviction of an indictable offence or an offence found in schedule 8, the Act does not suggest that the pool of candidates should be reduced by reference to an assessment of the individual circumstances in which the particular offence occurred. There is nothing in the Act to suggest that the senior police officer should turn his or her mind to whether the particular instance of offending would render the person more or less likely to offend or otherwise assess the utility of obtaining the sample. That assessment has been made by the identification of the relevant offence.

59 It may be accepted that the reach of the provision is wide. And the net will catch many people who may never have another interaction with the criminal law. For those that do commit further offending, there will be very many who will be apprehended and prosecuted without the assistance of DNA evidence. For those people there will be little or no utility in having their DNA profile retained on a database. Nevertheless, accretions to the database is not dependent on an individual assessment of the utility of having each new sample added to the database. Such an exercise would be very difficult to undertake. Section 464ZFAC does not provide any means or criteria pursuant to which it could be undertaken.

60 The fact that an individual's culpability for the offending for which they are convicted may be low or reduced due to endogenous factors, such as mental illness or other factors, is also not identified as a relevant factor. The taking and retention of a sample is not punishment that should be made to correspond to culpability and again, there is no mechanism for the senior police officer to rank this factor in the decision making. Unlike with pre-conviction samples, the officer does not have to make an assessment that the taking of the sample is 'justified'.

61 For similar reasons, the impact that the taking of the sample may have on an individual is not identified as a relevant consideration. The senior police office is not required to determine whether the taking is justified and no individual assessment as to utility or impact is required or permitted.

62 Second, an authorisation is directed to a member of Victoria Police. It merely provides authority to an officer to take steps to obtain a sample. It is in the nature of an internal permission to ensure that the criteria are met.

63 Third, and relatedly, the giving of an authorisation of itself does not authorise the officer to exercise any coercive powers in relation to the person. It marks the start of the process of collection of the DNA profile sample. A notice to the person has to be served together with the authorisation requiring the person to attend. It is not an offence to fail to attend and the police cannot of their own motion arrest or compel attendance. If the person fails to attend it is necessary to obtain a warrant from the Magistrates' Court in order to compel the attendance. For the purpose of this proceeding it is not necessary nor desirable to say anything about the circumstances in which the power to apply for and issue a warrant may be exercised or the factors that might be taken into account.

64 Fourth, there is no express obligation on the senior police officer to put the person on notice that an authorisation might be given and none can be implied. That is so because the authorisation itself does not affect rights or interests in a way that would require affording procedural fairness. More importantly, the Act provides for notice expressly by the giving of a notice to attend.[25] It would subvert the order marked out by the scheme if the senior officer was required to give the affected person notice before authorisation in circumstances where notice is required to be given in accordance with s 464ZFAD. Again, a contrast can be drawn with the pre-conviction powers, where an evaluative assessment of whether the taking of the sample is justified is required, and the person is given an express opportunity to be heard on whether he or she should be required to give the sample.

65 Fifth, there is no express obligation to conduct investigations or make inquiries beyond the stipulated criteria. Again, none should be implied.

66 Sixth, no assistance can be gleaned from decisions of the Court, such as Lednar, respecting the powers of magistrates to issue orders compelling a forensic sample to be taken from suspects in aid of a particular investigation. The purpose of those provisions is far narrower and the terms in which they are cast are very different.

67 Seventh, for the reasons I now address, the Charter does not assist the plaintiff on the construction of the provisions.

68 As part of the construction exercise, it is necessary to consider the potential operation of the Charter. Section 32 requires that legislation be interpreted in a way that is compatible with human rights, so far as is possible to do so consistently with their purpose.[26] The process of construction contemplated by s 32 is orthodox, informed by the text, context and purpose of the provision. As was made clear in Momcilovic,[27] the process remains one of construction. Section 32 has important work to do both in identifying possible constructions that may legitimately arise from the text and in resolving constructional choice between competing constructions.

69 Both in his notice under s 35 of the Charter to the Attorney General and the Victorian Equal Opportunity and Human Rights Commission and in his written submissions, the plaintiff identifies the rights in ss 8 and 13 of the Charter as being relevant.

70 Section 8 provides for equality before the law and the equal protection of the law without discrimination. Section 13 relevantly provides that a person has the right not to have his or her privacy 'unlawfully or arbitrarily interfered with'.

71 Neither s 8 nor s 13 provide any assistance in determining the meaning of s 464ZFAC.

72 There is a constructional choice in relation to the question whether the word 'may' in s 464ZFAC provides for a discretion or imposes a duty. There is a related constructional question as to whether the section permits the decision maker to take into account the individual circumstances of the person from whom it is intended that a DNA sample should be taken.

73 Even if it is accepted that the taking and retention of a DNA sample might involve some interference with privacy, and even if it is accepted that there are competing constructions open on the text, that is not sufficient to engage s 13. The interference must be unlawful or arbitrary.[28]

74 Whichever construction is chosen between the competing candidates, the giving of an authorisation and the subsequent taking of the DNA sample would be lawful. Similarly, neither construction would, if accepted, allow for an arbitrary interference because on either construction, there would remain a rational and non-arbitrary basis for the taking of the sample. On either construction, the authorisation could only be given (and a sample taken) if the affected person is an adult, has been convicted of an indictable or identified offence, has had an opportunity to appeal the conviction, and the Chief Commissioner does not already possess a sample that may be retained indefinitely. Those matters are not arbitrary. Further, the decision to confer the power on a senior police officer is similarly not arbitrary. Police have both a common law and statutory responsibility for the suppression, detection and prosecution of crime and the protection of the community.

75 It is to be remembered that the purpose of taking the sample is to prevent and prosecute crime. DNA samples taken from crime scenes, including DNA that may be deposited, through various means, on the body, clothing or items belonging to victims, can be compared with the entries in the DNA database as a means to both identify and rule out potential suspects. To require persons convicted of indictable, or other prescribed offences, to provide a sample to the database is neither irrational nor arbitrary. The fact of conviction provides a rational point of distinction.

76 In circumstances where neither of the competing constructions would, if accepted, produce an unlawful or arbitrary exercise of the power, then s 32 does not assist in resolving the constructional question. Section 32 requires a compatible construction. Even if, in the case of constructional choice, it required a court to choose the most compatible, I do not see how the Court could rank two non-arbitrary interferences with privacy given that both are compatible.

77 The plaintiff submits, although the submission remained undeveloped, that because the taking of a sample affects him disproportionality because of his cognitive impairment, it involves discrimination in breach of s 8 of the Charter.

78 Discrimination generally involves treating people differently by reference to an extraneous attribute, or treating people in the same way without regard to relevant differences.[29] In a general sense, if the legal and practical effect of a law imposes a disproportionate burden on persons with particular attributes or if a law prevents or impedes the enjoyment of Charter rights because of a relevant attribute then there may be discrimination. However, the particular role played by s 8 is not free from difficulty.

79 In Victoria Police Toll Enforcement v Taha,[30] Tate JA considered the second limb of s 8(3) which protects substantive equality, one that accommodates difference. Her Honour observed that this is a principle of equality that recognises that uniformity of treatment between different persons may not be appropriate or adequate and that disadvantaged or vulnerable persons may need to be treated differently to ensure they are treated equally.[31] In Taha, the legislative history of the relevant provision recognised that people with special circumstances may require different treatment from those without those characteristics. Tate JA noted that some offenders may suffer from an impairment that limits their ability to raise issues with the Court. In Taha, Tate JA observed that a construction which required the person to raise his or her impairment with the Court before it could be taken into account was incompatible with the right to equality under s 8(3). Section 32 compelled its rejection in favour of a construction which is compatible with that right.

80 I am not persuaded that s 8 of the Charter assists the plaintiff in his construction. First, s 464ZFAC operates on convictions and to that extent is neutral. Second, even if in its practical effect, the taking of a sample might be relatively more burdensome for those with an impairment, as I accept it is in this case, I am not persuaded that of itself would render the anterior decision to give an authorisation a breach of s 8. The circumstances are very different to those considered in Taha, where the power was conferred on a court in the context of potential imprisonment. Further, even if it did, it would not produce a different construction to the one I favour.

81 Put shortly, a construction which required the senior officer to make inquiries and to take into account the impact that taking a sample may have in a particular case is simply not open and would involve a substantial and impermissible departure from the scheme marked out by the text when read in its context. In this respect, I note that the power to authorise under s 464ZFAC also applies to persons who have been found not guilty by reason of mental impairment and who may well suffer cognitive deficits that would prevent an understanding of the process.

82 Before leaving the construction of s 464ZFAC, I should return to where the parties started: does s 464ZFAC impose a duty or discretion? For the reasons I have given, the question need not be answered in this case because even if there were a residual discretion of some kind, the factors that the plaintiff seeks to rely on would not be relevant to it. On the other hand, if the issue arose in the context of mandamus, I would have some difficulty in arriving at a conclusion that the section imposes a duty. That is principally for two reasons. First, the use of the word 'may', generally connotes a discretion (but does not, as I have explained, provide for its limits). The second is that the repository of the power is the very broad class of senior police officers. The power does not expressly depend on satisfaction or the state of mind of a particular officer in relation to a particular person and there is no trigger for its operation. Once the person is convicted of an indictable offence it is not easy to see who would thereby become subject to the duty: is it every senior police officer, those assigned to a particular function or would it be the Chief Commissioner?

83 In Ellis v Stevenson[32] the Court of Appeal in addressing the former s 464T said:

We observe that the existence of a general discretion to refuse an order is perhaps a question in itself, but for the sake of the argument we have been prepared to assume its existence in favour of the appellant, the more especially as Mr Hill was not disposed to argue to the contrary. The most recent analysis by the High Court in Mitchell raises the possibility that the term 'discretion' is not altogether apt in this situation and that subs (3) is to be read as doing no more than conferring a power upon the court and spelling out the conditions for its exercise, with the result that if there is any 'discretion' in the court it seems from the operation of the par (h) as a condition attached to the exercise of the power and, as the argument in this case tended on occasion to suggest, from the word 'may' in the conferring of the power.[33]

84 In my view, the semantic distinctions between power, duty and discretion need not finally be resolved. The conditions for the exercise of the power were present and satisfied, the factors personal to the plaintiff were not known and not relevant to the giving of an authorisation under s 464ZFAC.

85 Applying the above construction, it has not been shown that the making of the authorisation was unlawful. That conclusion is the same whether or not the power to give an authorisation is properly described as a duty or a discretion. The individual circumstances were not before the senior officer, and there was no obligation on him to seek out the information. In any event, the matters relied on by the plaintiff were not relevant to the exercise of the power in s 464ZFAC.

86 The material provided to LSC Gray and to officers in the DNA Management Unit came after the authorisation had been made. The provision of that information did not render the earlier authorisation unlawful.

Section 38 of the Charter and the authorisation

87 Given my conclusion as to the construction of the Act, there was no breach of s 38 of the Charter. Section 38(1) provides that a decision maker must give consideration to human rights and not act incompatibly with them. However, s 38(2) provides that s 38(1) does not apply if the decision maker, acting reasonably, could not have come to a different decision. On the proper construction of the Act, all of the statutory criteria were satisfied, there was no other relevant material and the material sought to be relied on by the plaintiff is irrelevant to the power to give an authorisation. Section 38(2) applied.

88 Further, given the terms of s 13, a lawful and non-arbitrary interference with privacy is not incompatible with the Charter and therefore does not need to be justified under s 7 of the Charter. I am also not persuaded that the giving of the notice engaged s 8 of the Charter. For that reason there was no breach of s 38.

89 Even if it were relevant to consider whether the authorisation was incompatible with the plaintiff's rights, the giving of the authorisation was, in my opinion, clearly justified under s 7 of the Charter.

90 A very similar issue was considered by the House of Lords in Regina (S) v Chief Constable of the South Yorkshire Police.[34] In that case, the House of Lords considered whether the taking, retention and use of DNA samples breached art 8 (privacy) and art 14 (discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

91 Lord Steyn, with whom Lord Rodger, Lord Carswell and Lord Brown agreed, concluded that the taking of a DNA sample involved an interference with a person's private life but was plainly objectively justified having regard to the importance of DNA to the prevention and prosecution of crime.[35] His Lordship held that the retention of the DNA did not infringe art 8 but even if it did it was plainly justified.[36] He reached the same conclusion on discrimination.

92 Baroness Hale of Richmond alone amongst the Appellate Committee thought that the retention and storage of DNA profiles of samples constituted an interference with the appellants' rights under art 8. But each member of the Committee, Lady Hale included, was quite clear that, even if it did, it was readily justified under art 8(2).

93 I reach the same conclusion. To the extent there is any interference with the plaintiff's rights by the taking of the sample I am satisfied that it is relatively minor. It was justified by the important role that a DNA database plays in the prevention and detection of serious crime.

94 I accept that the taking of a DNA sample, even though it only involves fleeting and minor physical contact, may cause distress for the plaintiff. That distress may be compounded by his lack of comprehension caused by his cognitive functioning. My conclusion means that, on the proper construction of the provisions, these impacts are not relevant to the giving of an authorisation which commences the process for DNA collection. Once the authorisation was given, a notice under s 464ZFAD was required to be served.

95 I note that the plaintiff's application for judicial review was out of time but the defendant did not object to an extension being granted. I shall extend the time to bring the originating motion but it must be dismissed. In accordance with a position agreed between the parties there will be no order as to costs.

[1] The plaintiff was subsequently charged with further contraventions but the authorisation in this case relates to the 16 December 2019 contravention.

[2] Within the meaning of s 464 of the Crimes Act 1958.

[3] The original guardianship order commenced on 4 February 2019.

[4] The defendant has undertaken to the plaintiff that it will not seek a warrant while these proceedings are on foot.

[5] eg Lednar v Magistrates' Court (2000) 117 A Crim R 396; [2000] VSC 549 (Gillard J); Pavic v Magistrates' Court (Vic) (2003) 140 A Crim R 113; [2003] VSC 99 (Nettle J).

[6] Justice Legislation Amendment (Police and Other Matters) Act 2019.

[7] S 464ZFAD(5) provides that s 464ZFAA(6), (7), and (8) apply to the notice as it were a notice given under that section.

[14] Referred to in s 45(2) of the ILA.

[15] Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 124; [1971] HCA 12 (Gibbs J) referring to; Julius v. Lord Bishop of Oxford (1880) 5 App Cas 214; Ward v. Williams [1955] HCA 4; (1955) 92 CLR 496, 505; [1955] HCA 4 and Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, 215.

[16] Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12.

[18] Shields v Chief Commissioner of Police (2008) 19 VR 33; [2008] VSC 2.

[21] (2000) 203 CLR 194; [2000] HCA 47 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ).

[22] Ibid [19] (Gleeson CJ, Gaudron and Hayne JJ) (citations omitted).

[23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 ; [1986] HCA 40 (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ).

[26] Charter of Human Rights and Responsibilities 2006 (Vic) s 32(1).

[27] Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[28] PJB v Melbourne Health (2011) 39 VR 373; [2011] VSC 327 (Bell J); WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 (Warren CJ, Hansen JA, Bell AJA).

[29] Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53 (Gaudron J).

[31] Ibid [210]; Re Lifestyles Communities Ltd (No 3) [2009] VCAT 1869, [135] and [139] (Bell J).

[32] (1996) 86 A Crim R 368 (Brooking, Phillips and Charles JJA).

[33] (1996) 86 A Crim R 368, 375 (Brooking, Phillips and Charles JJA) (citations omitted); Marrogi v Magistrate Court [2017] VSC 80 (Ginnane J).

[34] [2004] 1 WLR 2196; [2004] UKHL 39. cf RWC v The Queen [2005] 3 RCS 99 a case decided under different rights in the Canadian context in which the Canadian Supreme Court upheld a case based on infringement of privacy in the DNA information.

Human Rights and Responsibilities Act 2006

Administration Act 2019

Legislation Amendment (Police and Other Matters) Act 2019

(Mental Impairment and Unfitness to be Tried) Act 1997

(Amendment) Act 1997

At a glance

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Judgment (138 paragraphs)

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Legislation Cited (5)

Cases Cited (11)