Plaintiff v First Defendant

Supreme Court of Victoria|2008-02-29|Before: SMITH J

the application for a coercive powers order may be made before an affidavit is prepared or sworn.

(7) If subsection (6) applies, the applicant must -

(a) provide as much information as the Supreme Court considers is reasonably practicable in the circumstances; and

(c) not later than the day following the making of the application, send the duly sworn affidavit to the Supreme Court, whether or not a coercive powers order has been made.

(8) An application under subsection (1) must be heard in closed court.

The Supreme Court's power to make a coercive power order is set out in s.8 of the Act.

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.

The Supreme Court is also given the power to extend or vary coercive power orders.

Extension or variation of coercive powers order

(1) Subject to subsection (2), 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 -

(a) an extension of the order for a period not exceeding 12 months from the day on which it would otherwise expire; or

(b) a variation of any of the other terms of the order.

(2) An application under subsection (1) may only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner.

(3) Section 5 applies to an application for extension or variation of a coercive powers order as if it were an application for an order.

(4) On an application under this section, the Supreme Court may, at any time before the expiry of a coercive powers order, make a new order providing for -

(a) the extension of the original order for a period not exceeding 12 months from the day on which it would otherwise expire; or

(b) variation of the other terms of the original order.

(5) A coercive powers order may be extended or varied more than once.

(6) If the Supreme Court makes an order under this section, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order."

Reference should also be made to s.14:

(1) This section applies if a coercive powers order is in force in respect of an organised crime offence.

(2) On application under sub-section (3), the Supreme Court may issue the following witness summonses -

(a) a summons to attend an examination before the Chief Examiner to give evidence;

(b) a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner;

(c) a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things.

(3) A member of the police force may apply to the Supreme Court for the issue of a summons referred to in sub-section (2) -

(a) at the time of the making of the coercive powers order; or

(b) at any later time while the coercive powers order is in force.

(b) must state the name and rank of the applicant; and

(d) must indicate the evidentiary or intelligence value of the information sought to be obtained from the person to whom the summons is to be directed; and

(e) if the applicant suspects that the person to whom the summons is to be directed has a mental impairment, must state that suspicion; and

(f) if the applicant suspects or knows that the person to whom the summons is to be directed is under the age of 18 years, must state that suspicion or knowledge and the suspected or known age of the person.

(5) The Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application.

(6) On application under sub-section (3), the Supreme Court may issue a summons directed to a person, other than a person referred to in sub-section (7), if the Court is satisfied that it is reasonable in the circumstances to do so, after consideration of -

(a) the evidentiary or intelligence value of the information sought to be obtained from the person; and

(b) the age of the person, and any mental impairment to which the person is known to be subject.

(7) The Supreme Court must not issue a summons directed to a person known to be under the age of 16 years.

(8) A summons must require the person to whom it is directed to attend at a specified place on a specified date and at a specified time and from day to day unless excused or released from further attendance -

(b) to produce for examination by the Chief Examiner any documents or other things described in the summons that are in the person's possession or control; or

(c) both to give evidence and produce for examination any documents or other things described in the summons that are in the person's possession or control.

(9) A summons, other than a summons referred to in sub-section (10), must be served a reasonable time before the date on which the person is required to attend.

(10) The Supreme Court may issue a summons that requires the immediate attendance before the Chief Examiner of the person to whom it is directed if the Court reasonably believes that a delay in the person's attendance is likely to result in -

(d) serious prejudice to the conduct of the investigation of the organised crime offence.

(a) the general nature of the matters about which the person is to be questioned, unless the Supreme Court considers that this disclosure would prejudice the conduct of the investigation of the organised crime offence; and

(b) that a coercive powers order has been made under this Act by the Supreme Court and the date on which the order was made.

(b) must include a statement that if the person summoned is under the age of 16 years at the date of issue of the summons the person need not comply with the summons but must -

(i) if the Supreme Court issued the summons, give notice in writing and proof of age to the Supreme Court and the Chief Examiner; or

(ii) if the Chief Examiner issued the summons, give notice in writing and proof of age to the Chief Examiner.

(13) The applicant must cause a copy of a summons to be given to the Chief Examiner as soon as practicable after the summons is issued."

6 Persons who receive a witness summons must attend for questioning and must answer all questions put to them. Such persons are permitted by the Act to have legal representation and legal professional privilege is protected.[1] Where that privilege is claimed in respect of a document or thing, the Chief Examiner may withdraw the requirement to produce the document or thing or refer the claim to the Magistrates' Court.[2] If the claim is made in respect of oral communications, the Chief Examiner will determine the claim. While there are obvious practical reasons for this course, it has the result that the person seeking information of the oral communication will decide whether the basis of the claim for withholding it is valid.

7 As to the examinations, it should be noted that the Act provides that no rules of evidence apply and no rules apply as to the manner of the questioning.[3] The hearings are held in private.[4] A person who fails to attend an examination or, having attended, refuses or fails to answer questions or refuses or fails to produce documents or things without reasonable cause is liable to a maximum term of imprisonment of five years.

8 The privilege against self-incrimination is abrogated by s.39 with the result that a person who receives a witness summons is not excused from answering questions, giving information or producing documents or other things at an examination on the ground that to do so might tend to incriminate that person or make that person liable to a penalty.[5] The Act, however, limits the effect of the abrogation of the privilege against self-incrimination[6] by providing that any answer or document or other thing produced is not admissible against the person in question in a criminal proceeding or penalty proceeding other than:

• a proceeding in respect of an offence against the Act,[7]

• a proceeding under the Confiscation Act 1997, or

• a proceeding in respect of a false answer given at an examination or the falsity of any statement contained in a document produced at the examination.

It is important to note other limits of the protection given. It does not extend, for example, to prevent the use against the person examined, in criminal or penalty proceedings against that person, of information or other evidence derived from the evidence, document or thing given by the person in the examination.[8] Thus the Act has not provided the protection required to effectively preserve the privilege while gaining the benefit of the information. To the extent that the evidence, information or documents produced in an examination can be used to gather evidence to use against the person summoned, the privilege is effectively removed. This is also a significant change. The statutory limits on the abrogation also do not prevent, in a prosecution against a third party, the use of evidence produced in an examination - subject to the rules of evidence. One situation where this could occur would be where the person previously examined is called as a witness in a criminal proceeding but is unwilling to give evidence and is declared hostile or the procedure described in R v Thynne[9] is invoked. In such situations, the witness could be questioned on the evidence previously given to an examiner. The issue would then arise as to whether, or to what extent, the evidence given by the person when so questioned could be relied upon in subsequent criminal or penalty proceedings against that person.

9 The rights affected by these provisions are fundamental rights. As Kaye J said[10]

"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 derogates from the right of a person not to incriminate himself or herself."

The right to silence and the privilege against self-incrimination are rights which define the relationship between the individual and the State and protect people against aggressive behaviour of those in authority. They reflect the philosophy that the State must prove its case without recourse to the suspect.[11]

10 On 2 November 2006 a coercive powers order was made by this Court which was operative for a period of six months. On 18 April 2007 by order of this Court the coercive powers order was extended for 14 days. On 14 May 2007 it was further extended for a period of six months. It has, I understand, been further extended.

11 On 15 March 2007, a witness summons was issued by this Court pursuant to ss.14 and 15 of the Act directed to the plaintiff. With it was served a notice of the confidentiality of the summons under s.20 of the Act. The plaintiff failed to attend at the time, date and place specified in the summons and, on 2 April 2007, a warrant was issued for his arrest. He was arrested and bailed to appear on 26 April 2007. On that day an adjournment was requested of the summons and granted to enable, inter alia, the present application to be issued. The plaintiff issued his originating motion on 8 May 2007 seeking revocation of the relevant coercive powers order. Because the Chief Examiner indicated that he proposed to proceed with the questioning then scheduled for 9 May 2007, the plaintiff sought and obtained the injunctions referred to above.[12]

12 On 12 June 2007 the defendants notified the plaintiff of a dispute concerning the plaintiff's right to bring the application. On 2 July 2007 the plaintiff prepared and served a notice of a constitutional matter arising in the matter because of the defendants' objection to the proceedings that the proceeding by the plaintiff was incompetent. The notice recorded that this is a question of construction but that the plaintiff would be contending that if the scheme is to be construed in the manner the defendants argue, then it confers functions on the Supreme Court which

"substantially impair its institutional integrity and are therefore incompatible with its role as repository of federal jurisdiction".

The notice was served on all State and Territory Attorneys-General and the Commonwealth Attorney-General. The only Attorney-General who has elected to intervene is the Attorney-General of this State. He did so pursuant to s.78A Judiciary Act 1903 (Cth), advising the Court of that intention on 9 August 2007. By order made 13 August 2007, Master Kings directed that the question of

"the competency of the proceeding and the constitutional issue be set down for hearing ...".

13 This is not the first application to this Court relating to the relevant coercive powers order (together with some other coercive power orders). An issue raised in an earlier application concerned the fact that each order contained an express condition that an application for a witness summons made in respect of a known person be brought before the Supreme Court and that the Court would exercise supervision/discretion over any other summons application with respect to the particular coercive powers order. The matter came before Kaye J.[13] The argument that was put to him was that the imposition of that condition was invalid because it exceeded the power of the Supreme Court under the Act. His Honour held that the Court is permitted under s.9(2)(d) in an appropriate case to specify a condition which limits or restricts the use of the power of the Chief Examiner to issue a witness summons.[14] Accordingly, his Honour concluded that the Court had the power in an appropriate case to so limit or restrict the use of the power of the Chief Examiner under s.15 to issue a witness summons.

14 Counsel informed the Court that five people had been charged as the result of the present investigation, four of them named in the relevant order. Subsequent to the hearing counsel for the plaintiff and defendants informed the Court that a committal proceeding commenced in January 2008 involving several defendants including one identified in the relevant coercive powers order as an alleged offender. In early February 2008, the plaintiff was called by the prosecutor pursuant to cl.15(2)(b) of Schedule 5 Magistrates' Court Act 1989 to give evidence in the committal proceeding. The plaintiff gave evidence and was cross-examined. The same counsel have also informed me that it is the opinion of the defendants that there is a lack of detail within the evidence given by the plaintiff and as a result they still wish to examine him pursuant to the witness summons issued on 15 March 2007.

Preliminary issue between the parties and consequential issues

15 As noted above, the preliminary issue raised by the defendants is whether a person in receipt of, and subject to, a summons to witness issued under a coercive powers order can apply to the Court under s.12 of the Act to have the order revoked.

16 The defendants' position is that the power to revoke under s.12 may be initiated only by the Court on its own motion and no-one can apply to the Court to revoke the order. The plaintiff's position is that s.12 entitles any person, who satisfies the common law standing test, to apply under that section.

17 In putting their case, the defendants have, among other things, submitted that the construction of s.12 that they advance is supported by the proper categorisation of the power conferred on the Court to grant and revoke coercive powers orders as administrative and not judicial. The plaintiff has responded to that submission by arguing that, if that proposition is accepted, the provision is invalid on a proper application of the principles enunciated in Kable's case[15] and subsequently developed in other cases. The plaintiff also argues, however, that, accepting its construction, the Kable issue does not arise. The plaintiff submits that that is another reason why the plaintiff's construction of the section should be preferred. The defendants contest the argument based on the principles enunciated in Kable's case. So too does the Attorney-General.

Proposed approach to the issues - will categorisation of the s.12 power assist?

18 There have been extensive and detailed submissions on both the matter of construction and the application of the Kable principles. As noted, the latter issue arises because of the defendants' argument that their construction of s.12 is supported by the categorisation of the s.12 powers and functions as administrative. In the course of considering the submissions, I have come to the conclusion that the analysis of the various issues raised will best proceed by first considering whether the categorisation of the powers and functions given to the Court under s.12 will assist in the construction of s.12. To that end it is necessary to briefly refer to the arguments advanced by the defendants in support of its categorisation of those powers and functions.

The categorisation of s.12 powers and functions

19 In supporting the proposition that the powers and functions conferred by s.12 of the Act are administrative, the defendants' argument focused primarily on the question of the categorisation of the powers and functions conferred by ss.5 and 8. A strong and detailed argument was put that the power to make a coercive powers order should be categorised as administrative. The arguments advanced, however, in support of the categorisations of the power to make a revocation order as an administrative power were not detailed. It was put that the power to make the coercive powers order is administrative and that the power to revoke such orders is part of the administrative scheme of court supervision of coercive powers orders. It was also put that the power to revoke is administrative because it involves the undoing of something administrative.

20 There is an attraction in the neatness and symmetry of treating all aspects of the role of the Court in relation to coercive powers orders as being of the same character. As counsel for the defendants submitted "... the undoing sets at nought that which has already been made". In their written submissions, the defendants asserted that "the power to revoke a coercive powers order is of an identical character".

21 It does not automatically follow, however, that because

• there is a statutory scheme for the making and revoking of coercive powers orders, and

• the power to make a coercive powers orders is administrative

then the power to revoke such orders should also be categorised as administrative.

22 The defendants relied on a number of cases dealing with the power vested in courts to issue various types of warrants. They provide support by way of analogy for the categorisation of the power to make coercive power orders. But while they also identify criteria relevant to the categorisation of the power to revoke, the analogy argument is not available. For the circumstances in which the revocation power is to be exercised are vastly different to the circumstances in which the power to make the coercive powers order is to be exercised. So too are their respective purpose and consequences.

23 The coercive powers order is made at a time when relevant individuals' rights exist but have not been affected and there is a clear need to proceed secretly in making orders that limit those rights. The coercive powers order itself, however, gives rise to extensive enforceable rights and obligations under the Act. The coercive powers order enlivens statutory rights, powers and obligations in police officers, the Chief Commissioner, delegates of the Chief Commissioner[16] and Chief Examiner and examiners[17] under which third-party rights can be affected significantly. In particular, the order provides the authority for the issuing of a witness summons and thereby significantly and adversely affects the rights of any person the subject of such a summons, a person who, albeit for good reason, will not have had the opportunity to be heard on the matter.

24 It is also strongly arguable that a coercive powers order having been made, a triable issue is created because the Court had to reach a conclusion as to whether the pre-requisites for the making of an order[18] were satisfied. Further, any alleged offender named would have an interest in challenging the validity of the order. I note that it was conceded by counsel for the defendants that a coercive powers order is open to collateral challenge by application for judicial review of the witness summons order.

25 The revocation of a coercive powers order is likely to be considered after fundamental rights have been affected and at least some of the people affected are likely to have become aware of that fact. The secrecy in relation to such individuals will have been at least partially lost. On occasions, situations will arise in which it is likely that some people will have an arguable basis to challenge the order. Section 12 will serve that purpose. Any need for secrecy can be addressed by appropriate suppression orders and limits on access to documents.

26 Ultimately, to determine whether s.12 confers administrative powers and functions, it is necessary to consider the relevant criteria. Applying, for example, the criteria advanced on behalf of the defendants[19], it would be relevant to consider

• whether the exercise of the powers and functions under s.12 involves an adjudication to determine the rights of individuals,

• whether the making of a revocation order is an order inter partes,

• whether there may be a lis or dispute in existence between individuals,[20]

• whether the application is made on notice and whether an application for an order gives rise to any enforceable rights in third parties,[21]

• Whether the order once made is enforceable as an order of the Court.[22]

27 Examining such criteria, it becomes apparent that the question of whether the powers and functions conferred by s.12 are administrative raises issues similar to those to be considered in construction of the section in determining the preliminary issue whether s.12 may be invoked by the Court alone or whether third persons affected by a coercive powers order can invoke the section. The argument based on categorisation is, in my view, therefore, ultimately circular.

28 I have a further difficulty with the argument. It is sought to mount an argument of statutory construction as to the content of a power and function conferred on the Court by relying on the labelling of that power and function. But to label powers and functions as administrative, while it may be important in the Kable context, is not helpful in the present context. Administrative law has long abandoned such a categorisation approach in determining whether a person or body was subject to judicial review.[23] Parliament passes legislation conferring administrative powers and functions on bodies and individuals where it has the intention that people affected by the exercise of such powers and functions can make applications to the administrative body and have a right to be involved in the process. There does not seem to me to be any particular magic or help to be found in the present context in the label "administrative". What matters is the substance not the form.

29 It must also be borne in mind that the distinction is more apparent than real in the present context in that it is well established that, where judges and courts are invested by statute with administrative powers and functions, the judge in exercising the powers and functions has a duty to act judicially - that is, "in a just and fair manner, with judicial detachment"[24], which, unless excluded by the statute, will include acting in accordance with the requirements of natural justice, including giving a person affected the right to be heard.[25] Thus, even if the defendants' arguments were to be accepted that the power to revoke a coercive powers order is administrative, the question to be resolved would be how should the Court perform its duty to act judicially when exercising the power to revoke. The answer to that question would depend on the intention of the Parliament as revealed on the proper construction of the relevant provisions.

30 For these reasons, I have come to the conclusion that it is premature, and ultimately unhelpful, to explore the question whether s.12 of the Act confers administrative powers or functions in determining the construction issue in this case. Once that issue is determined, then, should it matter, the categorisation and the Kable issues can be considered. I turn to the construction arguments.

The construction submissions of the parties - contrast with other sections

31 The parties advanced arguments based on a comparison of s.12 with other sections of the Act.

• Plaintiff's submission. Counsel for the plaintiff submitted that s.12 is to be contrasted with s.5 and s.10 of the Act. It was put that s.5 is very prescriptive in relation to applications to the Supreme Court for a coercive powers order. It spells out who can apply and the matters that have to be established to the satisfaction of the Court before an order will be made. It also sets out in detail what the applicant must put in the application and requires that an application can only be made with the approval of the Chief Commissioner or a delegate of the Chief Commissioner. It sets out other procedural requirements such as an accompanying affidavit in support of the application and the matters that it must cover. It provides that the Supreme Court can require further information. There is also a procedure for urgent applications in which the requirement that the necessary affidavit accompany the application is waived but it is required that the affidavit be provided not later than the day following. Counsel submitted that similarly there were detailed provisions in s.10 setting out how extensions or variations of coercive powers orders were to be sought. In particular, the section states who may apply, the need for approval of the Chief Commissioner or delegate to the Chief Commissioner, the application of s.5 to it, limits on the period of time for an extension and the power to vary more than once.

As to s.12, counsel submitted that it was a wide free-standing power with no limits whatsoever expressed upon it as to who may apply or how the application may be considered. Counsel submitted that it would encompass a situation, for example, where there had been a change of circumstances which no longer justified a grant of the coercive powers order. Counsel submitted that it is understandable that it was intended to give the Court the supervisory and remedial function through a revocation power, having regard to the extremely severe interference with common law rights introduced by the legislation once a coercive powers order is made. Counsel also submitted that there needed to be, and one would expect, the utmost clarity in such a provision if Parliament had intended to prohibit any person with standing from applying to have the order revoked. Counsel submitted that the plaintiff's construction would also enable the Chief Commissioner, or delegate to the Chief Commissioner, to seek revocation in circumstances where the power given under s.11 to the Chief Commissioner or delegate was not available - that is, where the situation was not one where the order was no longer required for the purpose for which it was made.[26] An example suggested was where it was thought better to have the order revoked and apply for a broader one when a variation or extension had been rejected. Counsel submitted that any person whose interests were affected by the coercive powers order would be able to apply under s.12 to have it revoked - in other words the filter was the ordinary standing test. While submitting that the Court would also, under the provision, be able to intervene on its own motion, counsel raised the question as to whether it was likely that relevant matters would come to its attention without an interested person bringing them to its attention.

Counsel submitted that ss.5 and 10 were intended to strictly limit who might be involved, and it was significant that when one came to s.12 there was no such concern. Counsel submitted that on the authorities, where you have a power without prescription given to the Court, the proper construction is one that confers wider, not narrower, effect.[27] Counsel also submitted that the provisions should be construed so as not to abrogate rights and freedoms absent express language or necessary implication. Given the intrusion of the legislation into the liberties of citizens, it should be interpreted beneficially. Counsel referred to other fundamental rights as equality before the law and access to the Courts. Counsel argued that the same principle applied and that, absent a clear indication to the contrary, a person whose liberties and fundamental rights are affected should be entitled to challenge decisions.[28] Counsel for the plaintiff submitted that it was significant that Parliament had not included the words "on its own motion" and there were no words to that effect in the section. Counsel drew attention to examples of drafting of such provisions in the Supreme Court Act 1986.[29]

• Defence submissions. Counsel for the defendants submitted that there were several reasons why, as a matter of construction, it should be concluded that s.12 envisaged the Court acting on its own motion only. Relying upon similar provisions to those referred to by plaintiff's counsel, counsel for the defendants also argued that there was a stark comparison to be made between s.12 and ss.5 and 10. Counsel also referred to s.14, the section empowering the Supreme Court to issue witness summonses which specifically addresses the question of who can apply under those provisions. Counsel submitted that these sections demonstrated that when Parliament wanted to confer an entitlement to obtain orders from the Supreme Court, it expressly dealt with that by permitting the application and stating who was to make it and what was to be in it. The absence of any provisions in s.12 about who may apply to revoke or how the application is to be made indicated that Parliament did not intend that there be an application.[30]

Counsel for the defendants also referred to the fact that s.5(8), and s.10(3) dealing with the application for the coercive powers order and its extension or variation, expressly require the relevant application to be held in a closed court. Counsel pointed out that there is no provision that the revocation application is to be heard in closed court. Counsel argued that if it was intended that third parties could make a revocation application you would expect a requirement for a closed court. Counsel submitted that, therefore, Parliament never contemplated that an individual person could invoke the power.

Counsel also submitted that this intention for which they argued reflected the reality that a third party applicant will not know on what material the judge acted and whether the judge rejected most of that which was put forward. It was put that any attempt to obtain access to that material would be confronted by public interest immunity and, therefore, there would not appear to be a great deal of scope to enable a person to challenge the original making of the order with a view to having it revoked.

Counsel also drew attention to the fact that in CR v A-G (Victoria)[31] Kaye J assumed that the power in s.12 would be exercised on the Court's own motion.

• Contrast with other sections - Analysis of issues. It is common ground that there is a stark difference between s.12 on the one hand and ss.5 and 10 of the Act on the other - the sections that specifically address the coercive power orders.

The defence argument assumes that similarities in the nature of the respective applications and the situations dealt with in the sections are such that the failure to specify who may apply for a revocation order is an indication of an intention not to empower anybody with the right to so apply. But there is a clear distinction to be drawn between the circumstances dealt with by ss.5 and 10 on the one hand and by s.12 on the other. Section 5 empowers the Court to make a coercive powers order and so start the coercive power process. Section 10 allows further extensions and variations of such orders and that process. This regime of coercive power orders, in combination with witness summonses, has the effect of significantly limiting and removing fundamental common law rights and involves considerable secrecy. In those circumstances, it is important, and no doubt was seen by those responsible for the legislation and the Parliament to be important, that it spell out in some detail who could apply, the circumstances in which they could apply, the circumstances in which an order could be made and what material had to be supplied to the Court in support of any such application. Those provisions state the parameters with a great deal of particularity because they start the coercive process. Section 12 comes into operation after a coercive powers order has been made and the coercive process is in place and will be available where witness summonses have been issued. In that situation, interested parties will be identifiable. There is no need to specify who may apply because normal standing principles will be applicable in the absence of any other provision to the contrary. Section 12 is intended to give further control of the statutory scheme to the Supreme Court by enabling it to revoke coercive powers orders in appropriate circumstances. It is also noteworthy that the Parliament did not attempt to specify any test for revocation.[32] In my view, s.12 is a very important safeguard provided by the Parliament for all citizens of this State.

As to the absence of a provision in s.12 requiring a closed court for the hearing of an application to revoke, s.12 again deals with a very different situation. As time elapses from the making of the coercive powers order and its implementation, more and more people will become aware of its existence and its secrecy will be reduced. Protection of the secrecy of the coercive powers order and action taken under it has been left by the Parliament to the Court under the powers that it has to close a court hearing and to make suppression orders. It should be noted that there might be cases where it would be in the community interest for the Court to hold an open hearing of an application to revoke if there was, for example, an allegation of abuse of power. It might detract from the credibility of the Court supervision of the legislation in such situations if the Court was seen to be trying to protect those who were alleged to have abused the legislation.

In my view, the stark differences between s.5 and s.10 on the one hand and s.12 on the other, strongly support the conclusion that the Parliament intended a broad and flexible approach to s.12 so that any person whose rights were affected directly or indirectly by the coercive powers order could apply to seek to have that order revoked.

As to the practical considerations relied upon to support the defendants' interpretation, obviously anyone affected by a coercive powers order will labour under the difficulty of a lack of information and obstacles to obtaining it, such as public interest immunity. They are likely to limit the occasions on which people will be in a position to seek revocation. But they are not insurmountable and they raise issues which can, and would be, dealt with by the Court case by case applying any relevant statutory provisions and the common law as it acts judicially in exercising the powers. Further, as counsel for the plaintiff submitted, there are other bases for seeking revocation of a coercive powers order - for example a person might seek revocation in circumstances where investigations had been carried out, charges had been laid as a result and the investigation appeared to be completed. Section 4 defines the authority given by a coercive powers order as one for:

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

An argument might be mounted by a person affected by the order, for example, a person who has received a summons to witness, that the coercive powers order authorises the use of powers for the purpose of investigating an organised crime offence and, charges having been laid, that purpose of investigating would no longer be served.

As to that argument, I note that counsel for the defendants drew attention to the fact that s.20(3) of the Act envisaged a confidentiality notice being given to a person receiving a witness summons in circumstances where a person has been charged with an offence and that s.29(2) empowers the Chief Examiner to conduct examinations despite the fact that there are proceedings on foot or instituted. Those provisions, however, do not address the issue and would not assist the defendants to meet arguments that the investigation was over. They proceed on the assumption that the investigation of the organised crime offences is continuing.

As to Kaye J's assumption as to the power of the Court to act on its own motion under s.12, that assumption is shared by all parties. His Honour, however, was not called upon to consider the present situation.

For these reasons, I find the construction argument based on a comparison of sections advanced for the plaintiff the more persuasive. It may also be supported by an additional explanation for the different approaches in the relevant sections, an explanation that flows from consideration of the proposition already referred to, namely, that a court or judge exercising an administrative power has a duty to act judicially.

Assuming, as argued by the defendants, that the powers conferred on the Court by ss.5, 10 and 12 are administrative powers, the Court, as already discussed, would be under a duty to act judicially when exercising those powers. Parliament should be assumed to have intended that consequence if its intention was to confer administrative powers. But the duty to act judicially, carries with it an obligation to act fairly. That obligation should not create difficulties in an application for the exercise of the power to revoke but would, in fact, assist the Court to exercise it. But it may well have been thought necessary for the same reason to address that obligation in the provisions empowering the Court to activate the coercive powers scheme and make orders for witness summonses. For example, any necessary limits to the duty to act fairly would need to be spelt out in legislation. This may provide an explanation for the provisions included which limit those who may participate and on whom the order is to be served. If this analysis be accepted, it could be said that Parliament chose to allow the duty to act judicially to apply, unlimited by statute, in relation to the exercise of the power and function to revoke the coercive powers order. On that analysis, one would also expect the Parliament to have intended not only that the Court could invoke the power to revoke the order on its own motion but that it would hear and determine any application brought before it by a person with standing.

Not having had the benefit of submissions of counsel on this possible analysis, I have not taken it into account in reaching my decision and do no more than note it.

Construction submissions of the parties -Practical consequences

The plaintiff and defendants advanced arguments that the construction proffered by the other would have an adverse impact on the operation of the statutory scheme.

(a) Defence construction - Power to revoke rendered ineffective?

• Parties' submissions. As to the defence position that the intent of Parliament was that the power to revoke was one to be exercised only on the Court's own motion, Counsel for the plaintiff submitted that such a construction would render the power largely ineffective. It was put that the Court would rarely become aware of any circumstances that might be relevant to the revocation of the order.

Counsel for the defendant sought to address that argument by identifying situations where circumstances could come to the attention of the Court warranting revocation of the order.

o An order is made under the provisions of s.5(6) in circumstances where it was impracticable for an affidavit in support of the application complying with the section to be filed. The affidavit, when filed, does not support the facts relied on and which it had been said would be sworn.

o Material submitted in support of an extension or variation application which disclosed that the original application had been made on an erroneous basis of fact or that circumstances had changed and it was no longer warranted.

o The Court subsequently identifies that the indictable offence relied upon did not qualify because the penalty was less than ten years.

o The statutory offence alleged in support of the application is subsequently declared invalid by the High Court and there was no other offence relied upon.

Analysis. I accept the proposition that it would be rare for the Court to become aware of circumstances that would warrant consideration of revocation of a coercive powers order absent assistance. In reality, the Court would not have the opportunity to review coercive powers orders made and the Act has not given it a specific monitoring role. The most likely situations in which the issue of revocation on the Court's own motion might arise are the first two situations listed above which were identified by the defendant - where matters emerge in an extension or variation application or in an affidavit filed after the order is made.

The operation of s.12 would be severely limited if it was confined to those circumstances because the Court alone could invoke it. If it was so limited, there would be the potential for situations where a person who had a legitimate argument about the validity of a coercive powers order, or about whether the authority under it had ceased, would be unable to test the situation before being compelled to give evidence. As argued by the plaintiff's counsel, there are also likely to be situations where it would be beneficial for the Chief Commissioner or Chief Commissioner's delegate to be able to apply under s.12 for revocation. It makes more sense, therefore, to conclude that the Parliament took the view that there needed to be a general power given to the Court to revoke coercive powers orders where circumstances are brought to its attention by individuals affected by the orders warranting such a course.

It must also be remembered that considerable power has been given to those administering the coercive powers order and the Chief Examiner. Experience shows that such powers can be abused or misapplied - sometimes deliberately. In such a situation, it is important that those involved are aware that their actions can be scrutinised. The plaintiff's construction makes the safeguard provided by s.12 a meaningful one.

(b) Plaintiff's construction frustrates the investigation?

• Defence submission. Counsel for the defendants submitted that to permit a person affected by a coercive powers order to seek to attack the order by challenging the material relied upon and the grounds relied upon was likely to frustrate the investigation if there was disclosure of the fruits of that investigation or if the alleged offenders were alerted; for this could close off some avenues of enquiry. Counsel submitted that if a wide construction was given to s.12(1) it would put the whole regime at risk on the application of one witness and the authorities would be denied the fruits of the investigation gathered from others. Counsel submitted that ultimately any disclosure was inconsistent with the scheme of the Act. Counsel emphasised the confidentiality notice provisions involved in this case. Counsel relied on a passage from NCSC v The News Corporation Limited and Others [1984] HCA 29; (1984) 156 CLR 296 where, dealing with an NCSC inquiry, it was said[33]

"It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For the investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry."

It was also submitted that the plaintiff's construction would deprive defendants of the potential fruits of examinations of others through witness summonses even though those witnesses were not opposed to being questioned and the relevant applicable facts differed. Counsel submitted it was unlikely, in those circumstances, that Parliament intended that a person receiving a summons to witness could have the right to make an application under s.12.

• Analysis of risk argument. The defendants' argument is overstated. First, it is inconsistent with the Act itself to argue that any disclosure is inconsistent with the scheme. Provision is made in the Act, in various situations, to allow controlled disclosure.[34] Secondly, the argument focuses on one area of potential attack on the coercive powers order - attack on its validity on the basis of the material upon which it was made. As already noted there will be other possible avenues of attack which will involve minimal disclosure of sensitive material. That having been said, there is of course a risk of information getting into the hands of the wrong people as the result of any disclosure under the operation of the statutory scheme but it contains its own provisions to deter people from disclosure.[35] The risks can also be controlled by careful application of public interest immunity and limitations on access to information, for example, to legal advisers on strict terms as to confidentiality - described by counsel for the defendants as unusual but not as something that could not be done. There are, therefore, ways to avoid the result that an application to revoke will result in alleged offenders or potential witnesses gaining information and looking over the shoulders of those conducting the inquiry.

As to the concern expressed about a successful application by one of a number of persons being investigated affecting the fruits of the investigation of all others, that does not follow. Unless the order was revoked on the ground that the order itself was invalid, the witness summonses would remain valid to the extent that they had been executed. If what was alleged was a change of circumstances (for example, the investigation was no longer warranted or the investigation had ended), then the earlier actions on the witness summonses and the evidence obtained would not be rendered invalid. If the original order was obtained by fraud or was invalid then the "fruit" would have been obtained illegally. Whether it could be used at any trial would depend upon the application of Bunning v Cross.[36]

Construction arguments of the defendants - Improbable consequences of the plaintiff's construction

32 The defendants suggested some improbable consequences of the plaintiff's construction.

• The defendants' submissions. Counsel put that it was most unlikely that Parliament intended that a third party be able to make an application to revoke a coercive powers order. The consequences, it was put, would be surprising. It would allow the alleged offender and witnesses to apply. But the alleged offender would have no knowledge of the making of the order and particular witnesses would not be identified at that time and some would not be for a long time.

The next consequence discussed was that the argument for the plaintiff seemed to envisage that any individual who had received a summons to witness would be entitled to seek revocation of a coercive powers order. If successful this would result in the revocation of all witness summonses (the effect of s12(2)(b)). This, it is said, would be an odd result when the others did not care. It would be unreasonable or unfair for the coercive powers order to be struck down merely because only one of all the people affected applied**.**

• Analysis. As to the first proposition, it might have some force if the issue raised was limited to examining the circumstances at the moment the coercive powers order was made. But, thereafter, more and more people would become aware of the making of the order and that their rights have been affected.

As to the second issue, we are not concerned with a consensual system. Further, a person seeking revocation of a coercive powers order, would have to demonstrate a basis for revoking that order, not a basis for setting aside a summons to witness. In other words, the challenge would be to the order itself which conferred the coercive powers. If the application is made out, the Court will have reached the conclusion that the application was soundly based and that the original order was invalid or is no longer authorised. This will affect the whole investigation. If such circumstances existed, one would hope, and expect, that the relevant authorities themselves would in any event not want to proceed further under the relevant order; for example, by pursuing the summonses to witness against the other persons who had not sought to apply to have the order set aside. If the circumstances are such that a coercive powers order should be revoked, then it should not matter who makes the application as long as they satisfy the standing criteria.

33 Counsel for the defendants argued that in the event of an application being available under s.12 the applicant would effectively be confined to O56 grounds. Why this should be so is not readily apparent. The provision is not limited expressly. Further, judicial review would be available anyway. As noted above, counsel for the defendants accepted that judicial review of the witness summons process would be available. As counsel for the plaintiff submitted, there are many issues which could not be considered on judicial review, such as whether the criteria which have to be satisfied to support a coercive powers order set out in s.8 are continuing or not and, if so, in what proportions. Others are referred to above.

34 The foregoing account and analysis of the submissions of the parties highlights the difficulty facing the defendants in this case. In advancing an interpretation that the power to invoke s.12 rests solely with the Court, they are seeking to imply a limit on what is, on its face, a provision which would allow anybody with standing to seek to invoke that power. It would have been a simple matter for Parliament to spell out in s.12 that the power to initiate an application to revoke a coercive power order was to be confined to the Supreme Court but it chose not to do so. It could also have spelt out the procedures to be followed but chose not to do so. Absent such provisions, the common law can apply.

35 The defendants face the further difficulty that s.12 is a safeguard provision operating in a special situation. It empowers the independent judicature to intervene to terminate the operation of a coercive powers order. It is intended to provide a safeguard for all, which can be activated by anyone whose fundamental rights and liberties have been affected by the making of a coercive powers order and action taken under such an order, including the issuing of summonses to witness. The legislation enables the State to compel innocent persons to provide information in circumstances where to do so could be dangerous for them. It can be used to compel people unconnected with the alleged crime, who happen to be privy to information, such as investigative journalists, to divulge information and sources. In such circumstances, the defendants need to establish a clear intention on the part of Parliament that the power to invoke the safeguard of s.12 lies with the Court alone if their argument is to succeed.

36 A comparison of the section with other provisions in the Act, for the reasons stated above, does not assist the defendants' construction. Rather, it strongly supports the plaintiff's construction. An examination of the consequences of the interpretations does not, in my view, again for the reasons stated above, assist the defendants to demonstrate an intention to limit the power to invoke s.12 to the Court. Considered separately and in combination, the matters raised by the defendants do not support the construction sought. Rather they support that of the plaintiff.

37 For the foregoing reasons, I have come to the conclusion that the plaintiff is entitled to apply to the Court under s.12 of the Act to seek an order revoking the coercive powers order.

38 To conclude, I note that counsel for the plaintiff referred to the rights set out in the provisions of the Charter of Human Rights and Responsibilities Act 2006, namely, ss.8 [37], 13[38] and 21[39]. Counsel submitted that they were part of the substantive law of this State and argued that Victorians now had those rights. Counsel submitted that while the statutory requirement in s.32, to interpret legislation compatibly with the human rights provisions, was not yet in operation,[40] s.12 should be construed in such a way as not to abrogate the right of access to the Courts and the opportunity to be heard and should not be construed to deny a remedy for intrusions into rights and liberties. Thus the existence of the human rights stated in the legislation as part of our law were relied upon to reinforce the arguments already advanced.

39 At the time of the hearing, s.32 of that Act was not in operation.[41] Section 32 came into operation on 1 January 2008. The parties have not had the opportunity to put arguments to me on the basis of the rule of interpretation contained in that section. But in view of the conclusions I have reached independently of that Act, it is not necessary to explore these issues further.

40 It becomes necessary to consider how the plaintiff's application under s.12 may be best dealt with by the Court . My tentative view is that the most satisfactory way to proceed is that the application for revocation be dealt with by the judge who made the original order or, should that judge not be available, a judge who made an extension order. Those judges are already seized of the matter and have a knowledge of the material upon which the order was based and the extension orders granted. They are best placed to determine how the application should proceed. Such a course also serves to limit the numbers of judges who have to become privy to the relevant information. I do not, at present, see any difficulty in the fact that those judges made the original order or extended it. The situation is analogous with the common situation where an order, such as an injunction, is made for reasons of urgency in the absence of a party and is adverse to that absent party. There the judge making the original order will normally revisit the issues later with the benefit of submissions from the party adversely affected. It is not uncommon in those situations for that judge to come to a different decision.

[6] See also Second Reading Speech of the Minister, Hansard Legislative Assembly 5 October 2004, 615.

[7] Eg s.37, failure to attend or answer questions; s.38, giving false or misleading evidence; s.43, publishing evidence; s.44, hindering or disrupting an examination; note, contempt of court, s.49, where the Chief Examiner may initiate proceedings with a certificate "charging the person" with contempt where the person refuses to produce documents or other things or answer questions (s.49) and issue an arrest warrant (note double jeopardy provision s.50).

[8] This should be compared with legislation which abrogates the privilege but ensures that such evidence cannot be so used - e.g. Uniform Evidence Act s.128.

[10] CR v Attorney-General of Victoria, para 51.

[11] Australian Law Reform Commission, Report 26, Interim Evidence, Vol. 1, 484 ff.

[12] Mr Maguire was joined by orders made on 11 May 2007.

[13] CR v A-G of Victoria [2007] VSC 263.

[16] Eg ss.10, 11 and 14.

[17] See Parts 2 and 3 under which third party rights can be affected significantly.

[19] cf Love v A-G (NSW) (1990) 169 CLR 307, 320.

[20] For example, may there be a lis or dispute between the applicant police officer who obtained the order, the Chief Examiner and the person served with a summons to witness, a dispute concerning issues as to the validity of the original coercive powers order?

[22] Para 43 of Attorney-General submission.

[23] For example, Arthur Yates & Co Pty Ltd v Vegetable Seeding Committee [1945] HCA 55; (1945) 72 CLR 37, 79-81; Ridge v Baldwin [1963] UKHL 2; [1964] A.C. 40; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, 491; FAI Insurances Ltd v Winneke [1982] HCA 26; (1981-82) 151 CLR 342, 408.

[24] Love v A-G (NSW) (1990) 169 CLR 307, 320-2; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 360; Ousley v R (1997) 192 CLR 69, 145_; Wilson v Minister of Aboriginal and Torres Strait Islander_ Affairs (1996) 189 CLR 1-17.

[25] See, for example, discussion Kiao v West [1985] HCA 81; (1985) 159 CLR 550, 583, 600-1, 623-33; Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 365-367.

[26] An example suggested was where it was thought better to have the order revoked and apply for a broader one when a variation or extension had been rejected.

[27] Citing Electric Light and Power Supply Corporation v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554, p.559.

[28] Relying generally on A2 v Australian Crimes Commission [2006] FCAFC 147; (2006) 155 FCR 456 [22]; Plaintiff v Commonwealth (2003) 211 CLR 476, 492; Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543; DPP v Garde-Wilson [2006] VSCA 295; [2006] 15 VR 640, 646.

[29] Sections 30, 33KA(1), 33ZF, 102(3) and Rules.

[30] An issue not debated was whether the Court has an implied power to revoke the coercive powers order of its own motion so that s.12 must have been intended to have a broader operation. Compare Kabourakis v The Medical Practitioners' Board of Victoria (2006) VSCA 301, Re Lawlor (1979) 1 ALD 167, Customs v Kawasaki Motors (No 1) [1991] FCA 519; (1991) 32 FCR 219.

[32] Compare s.8 setting out the matters to be considered before making a coercive powers order.

[34] Sections 7, 20(5) and (6), 43, 68.

[35] Section 7, 20(5), (6), 43(3), 68(2).

[36] Or s.138 of the Uniform Evidence Act when it comes into force.

[37] Right to equality before the law and equal protection before the law.

[41] cf R v Williams [2007] VSC 2 [48] and [56], Tomasevic v Travaglina and County Court of Victoria [2007] VSC 337.

Crime (Investigative Powers) Act 2004

Human Rights and Responsibilities Act 2006

3 The scheme of the Act has been described by Kaye J in CR v A-G (Victoria) [2007] VSC 263. I set out below the provisions of particular relevance to this case.

At a glance

Court

Decision date

Before

Source

Judgment (188 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (17)