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INQUIRIES BILL 2014
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21 August 2014
Statement of Compatibility
NAPTHINE
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INQUIRIES BILL 2014
Statement of compatibility
Dr NAPTHINE (Premier) tabled following statement in accordance with Charter of
Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities Act 2006 (charter act), I make this statement of
compatibility with respect to the Inquiries Bill 2014 (bill).
In my opinion, the bill, as introduced to the Legislative Assembly, is
compatible with human rights as set out in the charter act. I base my opinion
on the reasons outlined in this statement.
Overview
The primary purpose of the bill is to provide for the establishment and
conduct of executive inquiries in Victoria, and to make related amendments.
Specifically, the bill provides for:
the establishment and conduct of three types of executive inquiry: royal
commissions, boards of inquiry and formal reviews (inquiries);
powers for each type of inquiry;
matters relating to privilege, secrecy and protection from liability in
relation to inquiries; and
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offences in relation to inquiries.
Human rights issues
1 Human rights protected by the charter act that are relevant to the bill
Section 13(a): Privacy
Section 13(a) of the charter act provides that a person has the right not to
have his or her privacy unlawfully or arbitrarily interfered with.
Powers to obtain evidence
The bill provides royal commissions and boards of inquiry with a range of
powers to coercively obtain evidence.
Both commissions and boards may compel a person to produce a document or
thing, to answer questions on oath or affirmation, to attend the inquiry to
give evidence and/or produce a document or thing, and have power to inspect,
retain and copy documents or things produced. In addition, commissions have
power to enter and search premises (under a warrant issued by a magistrate),
and to inspect, retain and copy documents or things found.
The right to privacy is relevant to these coercive powers, as a person may be
required to disclose personal information to the inquiry in a public hearing.
This information could also be included in a report of the inquiry.
In my opinion, the bill does not limit the right to privacy. Commissions and
boards are established to inquire into significant matters of public
importance. The ability to compel evidence is necessary to ensure these
inquiries are effective and can achieve this important function.
These broad powers are limited by the purposes and subject matter of the
inquiry, and a person may object to the production of evidence which is not
relevant to the inquiry's subject matter.
The coercive powers in the bill are subject to limitations and safeguards
which protect personal information. Commissions and boards may conduct their
inquiries in private, where appropriate, and may exclude persons from inquiry
proceedings and prevent the disclosure or publication of evidence. The
execution of a search warrant is subject to procedural safeguards, including
announcement and notification requirements. In addition, the bill includes
confidentiality provisions and offences which ensure that evidence cannot be
taken advantage of or inappropriately used or disclosed.
Disclosure of information
The bill provides that an inquiry may disclose information or provide
documents to another person or body where the disclosing person considers
that:
the information or document is relevant to the performance of the functions
of the person or body to whom it is given; and
it is appropriate to disclose the information or to give the document.
While this provision allows for the disclosure of personal information, it
ensures that inquiries have flexibility to share important information with
other relevant persons and bodies (e.g. police, prosecutors or integrity
bodies) where appropriate.
Section 13(b): Reputation
Section 13(b) of the charter act provides that a person has the right not to
have his or her reputation unlawfully attacked.
The bill requires royal commissions, boards of inquiry and formal reviews to
report on their inquiry. These reports may be tabled in Parliament. The right
to reputation is relevant, as reports may include adverse findings about
individuals. However, the bill ensures that reputations are not unlawfully or
arbitrarily damaged, by providing that an inquiry (a) must adhere to the
requirements of procedural fairness, (b) cannot make a finding that is adverse
to a person unless satisfied that the person has been given an opportunity to
respond to that finding, and (c) must consider and fairly set out in its
report any such response.
Section 20: Property
Section 20 of the charter act provides that a person must not be deprived of
his or her property other than in accordance with law. The right requires
search and seizure powers to be clear, confined, formulated precisely, and
accessible to the public.
As outlined above, royal commission officers may inspect, retain and copy
relevant documents and things found in the execution of a search warrant. The
bill clearly sets out the scope and operation of this power, including the
circumstances in which property may be seized. The occupier of the relevant
premises must be provided with receipts for any seized items, as well as
copies of any seized documents or things (where a copy can be readily made) as
soon as practicable, unless contrary to the public interest. Seized property
must also be returned if the retention is no longer necessary for the purposes
of an inquiry or if the property is required as evidence in a legal
proceeding.
Any interference with the right to property is strictly confined, and does not
limit this right.
Section 24(1): Fair hearing
Section 24(1) of the charter act provides that a person charged with a
criminal offence or a party to a civil proceeding has the right to have the
charge or proceeding decided by a competent, independent and impartial court
or tribunal after a fair and public hearing.
In my view, the right to a fair hearing does not apply to inquiries
established under the bill. These inquiries will not constitute a 'tribunal'
for the purposes of the charter act. Further, examinations by inquiries will
not constitute civil or criminal proceedings, as they do not possess the key
features inherent to these proceedings (e.g.
determining issues between parties in a binding way, such as by finding fault
and imposing penalties).
Notwithstanding this conclusion, I note that the bill includes a range of
general protections which promote fairness for participants in inquiry
proceedings. For example, inquiries must comply with the requirements of
procedural fairness, a person may be allowed to be legally represented, and
must be given an opportunity to respond to any proposed adverse findings.
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Section 15(2): Freedom of expression
Section 15(2) of the charter act provides that every person has the right to
freedom of expression. This includes the freedom to seek, receive and impart
information and ideas.
The right may be subject to lawful restrictions reasonably necessary to
respect the rights of other persons or for the protection of national
security, public order, public health or public morality.
Restrictions on publication
As noted above, inquiries may make an order to prevent the publication of
information or evidence given to it.
This allows an inquiry to protect sensitive information and thereby protect
the privacy of individuals and public order. As such, the right is not
limited.
Exemption from Freedom of Information Act 1982
The bill provides that the Freedom of Information Act 1982 does not apply to
any document in the possession of an inquiry, or to certain documents in the
possession of any other person or body during the existence of an inquiry.
This exemption is aimed at protecting the integrity of the inquiry process
during the life of the inquiry, and is appropriate given the sensitivity of
the information that inquiries will handle. It ensures inquiries can operate
effectively and without the danger that sensitive material will be publicly
released.
As such, I consider that the exemption does not limit the right to expression.
Section 25(1): Presumption of innocence
Section 25(1) of the charter act provides that a person charged with a
criminal offence has the right to be presumed innocent until proved guilty
according to law.
The bill creates criminal offences in relation to a person's participation in
inquiries. Several of these offences shift the burden of proof from the
prosecution to the accused. As such, the right to be presumed innocent is
relevant.
A number of offences include a 'reasonable excuse' exception.
In my view, these offences place an evidentiary burden on the accused, but
they do not transfer the legal burden of proof. This is because, once the
defendant has pointed to evidence of a reasonable excuse, the burden will
shift to the prosecution to prove the absence of the exception or defence
raised.
Courts in other jurisdictions have generally taken the approach that an
evidential onus on a defendant to raise a defence does not limit the
presumption of innocence.
For these reasons, I consider that the placing of an evidentiary burden on a
defendant does not constitute a limit on the right in s 25(1). Further, even
if this were found to limit the right, the limitation would be reasonable and
justifiable under section 7(2) of the charter act.
Section 12: Freedom of movement
Section 12 of the charter act provides that every person lawfully within
Victoria has the right to move freely within Victoria.
As outlined above, the bill permits a commission or board to compel the
attendance of persons at a hearing. The right to freedom of movement is
relevant to the extent that a person may be required to attend at a particular
place and time. However, I consider that any interference is minor and lawful.
As a result, the right is not limited.
Section 17(2): Best interests of the child
Section 17(2) of the charter act provides that every child has the right,
without discrimination, to such protection as is in his or her best interests
and is needed by him or her by reason of being a child.
This right is relevant to the extent that the bill allows coercive powers
(outlined above) to be exercised with respect to persons under 18 years of
age. The bill provides that such powers must be exercised subject to the
requirements of procedural fairness. It also provides for commissions and
Boards to take account of the age of a child when determining whether to allow
them to participate in, or be legally represented at, an inquiry.
I am satisfied that these requirements ensure the best interests of children
are considered by inquiries and, as such, this right is not limited.
2 Human rights that are limited by the bill
Section 25(2)(k): Protection against self-incrimination
Section 25(2)(k) of the charter act provides that a person who has been
charged with a criminal offence has the right not to be compelled to testify
against himself or herself or to confess guilt. This is also an aspect of the
right to a fair trial protected by section 24.
As explained above, inquiries established under the bill will not constitute
civil or criminal proceedings. Nevertheless, this right is relevant to clauses
of the bill relating to the subsequent use of evidence given to inquiries.
The bill partially abrogates the privilege against self-incrimination for
royal commission inquiries.
It provides that it is not a reasonable excuse for a person to fail to comply
with a requirement to provide information on the basis that it might tend to
incriminate the person or make him or her liable to a penalty, except in
relation to proceedings that have been commenced against the person but not
finally been disposed of. The privilege against self-incrimination is only
abrogated for commissions, which will investigate matters of the greatest
public importance and, therefore, require access to the broadest suite of
evidence gathering powers.
The abrogation of this privilege is balanced by a use immunity, which ensures
material given to a commission by a person is inadmissible in any subsequent
proceedings against that person (with limited exceptions, discussed below).
The immunity:
extends to information, answers, documents and things (although, as
discussed below, documents are treated differently from other materials in
certain respects);
applies directly to all materials obtained by a commission, whether by
compulsion or voluntarily, including material obtained as a result of an
abrogation of privilege. In the case of self-incriminating material, the
Supreme Court has held that similar immunity
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provisions extend to other evidence obtained as a direct result of such
materials; and
applies in all subsequent criminal, civil, administrative proceedings before
a court or tribunal or any disciplinary proceedings.
There are limited exceptions to this use immunity, which allow materials to be
used in a proceeding for an offence under the bill or for perjury or
destruction of evidence under the Crimes Act 1958. Documents may also be used
where they are, or could have been, obtained independently of their production
to the commission, either before or after that production. This ensures
authorities are not prevented from making use of documents that have, or could
have, been obtained independently of a royal commission's inquiry.
While the bill limits the protection against self-incrimination, I consider
that this limitation is reasonable and justified. The privilege against
self-incrimination is abrogated only in a royal commission proceeding, and
continues to apply in respect of any proceedings against a person which remain
on foot. Additionally, the use immunity ensures self-incriminating evidence
will be inadmissible against a person in subsequent proceedings in most
circumstances. Where materials are capable of being admitted in subsequent
proceedings, this would be a matter for the relevant court or tribunal to
determine, based on the rules of evidence and having regard to other
considerations including the circumstances of the production of the evidence
to the commission.
The measures outlined above limit any possible disadvantage to a person who is
required to give self-incriminating evidence to a royal commission.
To the extent that the bill allows such evidence to be used against a person
in subsequent proceedings, I consider that this is reasonable and justified.
The bill seeks to balance the need for authorities to use relevant evidence to
which they would otherwise be entitled; the need for commissions to access the
materials needed to undertake an effective inquiry; and the need to protect
the rights of individuals who provide self-incriminating evidence. I consider
that there is no less restrictive means available to ensure this balance.
The Hon. Dr Denis Napthine, MP
Premier