SCRUTINY OF ACTS AND REGULATIONS COMMITTEE Inquiry into ... · being the director, police integrity, or the special investigations monitor — could use the compulsory questioning

4 June 2008 Scrutiny of Acts and Regulations Committee 1

SCRUTINY OF ACTS AND REGULATIONS COMMITTEE

Inquiry into Police Integrity Bill

Melbourne — 4 June 2008

Members

Mr C. Brooks Mr E. O’Donohue Mr C. Carli Mrs I. Peulich Mr K. Eideh Ms J. Pulford Mr K. Jasper Mr R. Smith Mr T. Languiller

Chair: Mr C. Carli

Deputy Chair: Mr K. Jasper

Staff

Executive Officer: Mr A. Homer Business Support Officer: Mr S. Dinsbergs

Witness

Mr G. Davies, manager, discipline-legal, Police Association of Victoria (sworn).


The CHAIR — I would like to welcome everyone here. I declare open these public hearings of the Scrutiny of Acts and Regulations Committee of the Parliament of Victoria concerning the Police Integrity Bill and the Public Health and Wellbeing Bill. The purpose of these hearings is to report to the Parliament on whether the proposed laws test or infringe on the scrutiny terms of reference of this committee.

The first witness is Mr Gregory Davies of the Police Association of Victoria. Mr Davies, first of all, thank you for attending these proceedings. In regard to the Police Integrity Bill, the committee is seeking written and oral evidence as to whether the provisions in the proposed laws constitute an undue trespass of rights or freedoms and whether the provisions are incompatible with the rights set out in the Charter of Human Rights and Responsibilities. Anything you say or publish before the committee today is protected by parliamentary privilege; however, once you leave the hearing anything you say or publish outside the room is not so protected. In the next day or two you will be provided with a draft copy of the transcript of your evidence. You will have an opportunity to correct anything that Hansard reporters may not have correctly recorded; however it is not an opportunity to add anything additional or different to what you have actually said at the hearings.

I would like to invite you now to make a statement to the committee on the relevant issues that may be involved in this proposed legislation. Following your opening statements, members of the committee may have questions they may wish to put to you. The committee has determined that it will take sworn evidence.

Mr DAVIES — My name is Gregory John Davies. I am the manager of the legal department of the Police Association of Victoria. Firstly, I thank members of the committee for the opportunity to make this presentation today, and thank you for the chance to provide you with a written submission, which has been provided. There are a number of issues that were not able to be covered in our written submission due to time constraints. I will try to cover those matters today, and I hope that they do not take up much of your time.

The Police Association’s submission is that the Police Integrity Bill fails to comply in a number of areas with the Charter of Human Rights and Responsibilities Act, which is an act that has been operational since some four to five months ago. The first area where we believe the bill does not comply is in the area of clause 69, which deals with compulsory questioning and derivative evidence in criminal proceedings. Section 24(1) of the charter 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.

Section 25(2) of the charter provides that a person charged with a criminal offence is entitled without discrimination to a number of minimum guarantees, which include having ‘adequate time and facilities to prepare his or her defence and to communicate with a lawyer or adviser chosen by him or her’, and finally that they not ‘be compelled to testify against himself or herself or to confess guilt’. That right of not being compelled to testify against oneself or to make any admission of guilt is enshrined in section 464 of the Crimes Act. It is the inalienable right of every citizen of Victoria or person who is in this state at the time of any criminal interview to answer ‘No comment’ to allegations that are made against them. This bill will abrogate that right for police officers in this state and will create a class of approximately 11 000 people out of a state of 5 million who are the only people within this state who will no longer enjoy that fundamental right.

In the High Court case of Hammond v. The Commonwealth, Justice Murphy stated that the privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the horrors of the Star Chamber. Victoria has adopted a code of criminal procedure calculated to protect persons from self-incrimination. He also said that these laws deliberately eschew inquisitorial methods, the abuse of which so offended the British nation as to cause it to revolt and eradicate them.

Clause 69(1) of the bill abrogates that privilege against self-incrimination, and in the words of Justice Murphy, this is an extraordinary step and requires the Parliament to take great care to ensure that the abrogation of such a fundamental right is finely balanced against the interests of an individual.

Clause 24 permits the director, police integrity, to disclose information obtained from an examination to another law enforcement agency such as the Victoria Police. This means that answers to questions provided under coercive examination will be able to be passed to other organisations in order to obtain other evidence, which is commonly referred to as derivative evidence, that may be used in a criminal prosecution against that person. Nothing in clause 69 prevents the admission of derivative evidence against an accused person, so while the specific answers given to questions asked under coercive powers cannot be used, any evidence that is obtained from those answers


can be used. The committee has observed that the use of derivative evidence derived from coercive powers has been found to be incompatible with human rights in both the United States of America and in Canada. The United Kingdom cases are more compelling and even more relevant to our jurisdiction. I will touch on those shortly. The statement of compatibility that accompanies the bill states, and I quote:

This is not to say that the DPI or SIM —

being the director, police integrity, or the special investigations monitor —

could use the compulsory questioning powers for the purpose of gathering further evidence against an accused for the purposes of the criminal proceeding.

The statement acknowledges, therefore, that coercive powers should not be employed to supplement available evidence against a person in criminal proceedings. Yet the bill will allow exactly that to occur. The direct use immunity is consistent with the approach generally taken in Australia across all jurisdictions. If the prosecution seeks to lead evidence derived from answers given in response to coercive questioning, the court retains the discretion whether the evidence should be admitted in that particular case.

In Hammond v. The Commonwealth the High Court dealt with the appropriateness of conducting a coercive examination when there are concurrent criminal proceedings. The High Court held that to conduct a parallel non-judicial inquiry into the very matters which constitute the basis of criminal proceedings against the proposed witness constitutes an interference with the due administration of criminal justice. Chief Justice Gibbs stated in this particular matter:

It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.

Obviously in these matters, hearings conducted by the Office of Police Integrity, not all matters are held in private. Some of them are very public, which exacerbates the problem greatly.

In the decided matter of Pioneer Concrete (Vic) Pty Ltd v. Trade Practices Commission, a 1982 decision reported in the Commonwealth Law Reports, again His Honour Chief Justice Gibbs stated, and this is again in relation to coercive questioning:

… if the power were used to assist the party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court … the power is a drastic power and is capable of abuse and must be exercised with care.

An important distinguishing feature of the Hak Song Ra v. Australian Crime Commission matter is the fact that the Commonwealth Director of Public Prosecutions had formally ruled out any further criminal action against the proposed witnesses. There was no threat of criminal proceedings against them, yet the High Court held that there was potentially a contempt of court and that the power was in fact a drastic power. Chief Justice Gibbs said:

It was said that the privilege is only against testimonial disclosure — disclosure that may be used in evidence — and that since, under both the commonwealth and the state acts, the answers are not admissible in evidence there is no infringement of the privilege … Again, I am not satisfied that this is correct; I would incline to the view that the privilege is against the disclosure of one’s own criminality.

In other words, quite clearly it does not need to be evidence given during a trial, be it criminal or civil; the mere fact that a person is coercively forced to admit criminality is a breach of a person’s human rights.

Clause 69(3) does not go far enough to protect the rights of witnesses under examination. The minister’s response acknowledges that clause 69(3) only prevents the use of a self-incriminating answer or document in a criminal proceeding. In order to satisfy the proportionality principle contained in section 7 of the charter, it is submitted that derivative evidence must be rendered inadmissible before such a fundamental human right as the privilege against self-incrimination is abrogated under clause 69(1).

If I can refer the committee to Hammond v. The Commonwealth to what Chief Justice Gibbs stated, and I will quote from it. This is in relation to a reporting of evidence given under coercive examination, which of course is at a lesser level than the use of the information in a trial; this is just the public reporting that he is talking about:

If a report could not be made in such a case —


as he ruled —

it is difficult to see any reason why the position would be different if the charge was merely contemplated and not pending.

This raises an issue as to whether a person has to be charged with a criminal offence before the right of self-incrimination steps into play or whether there is merely a contemplation that a person may be charged with a criminal offence. There is substantial legal argument as to when the commencement of a proceeding actually takes place. The bill does not address the issue and nor is it addressed in the charter. There is forceful argument that a commencement of a proceeding could be at the time, for example, of the initial issue of a warrant and well before the charging of any particular person.

I would like to refer the committee to the Western Australian legislation, the Corruption and Crime Commission Act of 2003. I quote section 23:

(1) The Commission must not publish or report a finding or opinion that a particular person has committed, is committing or is about to commit a criminal offence or a disciplinary offence.

(2) An opinion that misconduct has occurred, is occurring or is about to occur is not, and is not to be taken as, a finding or opinion that a particular person has committed, or is committing or is about to commit a criminal offence or disciplinary offence.

The reporting of such a matter is not covered in the decision, so we do not know whether His Honour was referring to the public reporting in a newspaper or the reporting to another government body. We would submit that reporting means exactly that: reporting to anyone under any circumstances. That is a matter that is not addressed either in the charter or in the bill.

As I have already stated, it is an inviolate right in Victoria that a suspect is entitled to exercise his or her right to silence in the course of a criminal interview conducted by the police pursuant to section 464 of the Crimes Act 1958. The statement of compatibility has acknowledged that the DPI or SIM should not use the compulsory questioning powers for the gathering of further evidence.

The Police Association submits that clause 69(1) is incompatible with the right to a fair hearing — I refer you to section 24 of the charter — and the right not to be compelled to testify against oneself or to confess guilt. In a practical sense, once the prosecution is aware of derivative evidence, it will be virtually impossible for an accused person to establish that a specific piece of evidence has been derived from the answers given by the accused in response to a coercive examination rather than through some other independent source. The rights of an accused can only be adequately safeguarded by excluding the use of derivative evidence under clause 69(1). There have been matters before the courts where it has been held that evidence unlawfully obtained can still be admissible.

I move now to the production and inspection of protected documents, if I may. I refer the committee to the 2008 Supreme Court decision in Ragg v. Magistrates Court of Victoria & Corcoris. Justice Bell recognised that both the right of the defence to obtain documents under subpoena and the prosecution’s duty to disclose represent fundamental human rights consistent with the right to equality before the law, which is referred to at section 8 of the charter, and the right to a fair trial, which is referred to in the charter at sections 24(1) and 25(2). Justice Bell adopted the introductory comments of Martin Hinton in his article entitled ‘Unused material and the prosecutor’s duty of disclosure’. Justice Bell decided that while the prosecution has a duty to disclose all such material in its possession, there had been matters not disclosed to the courts that may have been of use or of importance to the defence case. As I have stated, a prosecution is compelled to disclose such material; the OPI is not. The only way a defendant can gain access to this material, which is in the possession of the prosecution, is through the use of a subpoena.

To unduly restrict a defendant’s access to such material is incompatible with the defendant’s right to equality before the law and the right to a fair trial. One could say that it would be impossible for someone to receive a fair trial if the judge or magistrate presiding over the matter was not in possession of all of the facts. If the matters had been selectively presented to that judge or magistrate, they could not possibly be in possession of all of the material, the defence could not mount a fair defence to the accused or the defendant. It would in fact be impossible to receive a fair trial.

In that case of Ragg v. Magistrates Court of Victoria & Corcoris, Justice Bell identified the long held test for a defendant obtaining material under subpoena. I quote:


The defence has to establish only that ‘it appears to be “on the cards” that the documents will materially assist the defence’.

He went on to say:

On the basis of the above authorities, I consider the true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence.

Pursuant to clause 107(6) a court must refuse access to a document if the court determines that it is a protected document.

Clause 107(7) provides that a defendant will need to establish exceptional circumstances in order to gain access to a protected document in a criminal matter. There is no mechanism whatsoever to obtain a protected document in a civil matter.

In R v. Mokbel, Justice Gillard observed at paragraph 81 when dealing specifically with a subpoena issued against the OPI:

In my view, what His Honour said applies equally to the balancing process considering other public interest matters against disclosure. Adapting what His Honour said, in my opinion the principle is that the overriding need for a fair trial is that documents or things must be disclosed to an accused person if there is good reason to think that the disclosure may be of substantial assistance to the accused person in meeting the case for the prosecution. And, of course, meeting the case for the prosecution involves issues of credibility of Crown witnesses. Credibility not only in the sense of those matters bearing on the reliability of a witness such as memory and observation, but also to expose lack of truth, exaggeration or interest.

The restrictions sought to be imposed by clause 107 and clause 108 are draconian and trespass substantially upon the common-law rights of the accused persons.

If I can refer the committee to a decided case, a United Kingdom matter, Atlan v. The United Kingdom, a 2001 case, where it was stated that upon the unanimous findings of the court, violations of the United Kingdom charter had been made. It was found that the prosecution had repeatedly denied the existence of undisclosed material and failed to inform the judge of the true position when it appeared that there had been undisclosed material directly bearing on the defence advanced at the trial.

In Rowe and Davis v. The United Kingdom, a 2000 decision, which arose from proceedings in which an important ruling had been given by the Court of Appeal in England, it was stated that having reviewed the facts of the case and the development of English practice, the court found that the applicants’ rights had been violated. In so doing the court recognised it as a, and I quote:

… fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms —

that is the term that they used —

between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.

In addition article 6(1) of the United Kingdom charter requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused. This bill goes against, quite clearly, that proposition.

Clause 105 permits the director to deem certain documents to be protected documents. Ordinarily the question as to whether public interest immunity should apply to a document is a matter for a trial judge to determine. That is a fundamental cornerstone of justice in this state, the independent operation of our judiciary. Much as with the argument over mandatory sentencing, this bill will take away from our courts, our judges and magistrates, the opportunity to decide public interest matters and will remove that decision from them.

The mandatory exclusion of protected documents from civil proceedings is incompatible with section 8 of the charter, which is equality before the law, and section 24, the right to a fair hearing. Again, as observed by Justice Bell in Ragg v. Magistrates Court of Victoria & Corcoris, the equality of arms principle applies to both criminal and civil trials. The minister’s statement of compatibility states:


The procedures for criminal proceedings in clauses 107 and 108 enable greater participation of an accused without undermining the reasons why the documents should be kept confidential and is consistent with the approach set out by the House of Lords in R v H [2004] 2 AC 134 as being appropriate in public interest claims for non-disclosure of documents or things.

I am glad that the minister used that particular decision because a careful reading of it states that the derogation from the golden rule of full disclosure to an accused may be justified, but such derogation must always be the minimum derogation necessary to protect the public interest in question and must — and this is vital in this issue — never imperil the overall fairness of the trial. There is, of course, the further issue of the status of staff members from the Office of Police Integrity being accorded the status of a protected person and not being compellable or, in other words, not being able to be forced to get into the witness box and give any evidence. So the situation may well arise that not only may the documents not be produced but in the inability of being able to examine or cross-examine a member of the OPI staff, it may never come to light that such a document even exists.

Nothing in clauses 105, 106, 107 or 108 refers to the golden rule of full disclosure or to the need to ensure that adequate protection is afforded to the interests of the defence when dealing with public immunity issues. As identified by Justice Gillard, it is a well-established and common practice in Victoria for an inspection of subpoenaed documents to be limited to the legal representatives of an accused person. There is no provision in clause 107 for this to occur.

Justice Gillard also observed in R v Mokbel at paragraph 74, and I quote:

An accused man must have the opportunity to inspect any document which may provide an opportunity to cross-examine.

Justice Bell in Ragg v Magistrates Court of Victoria & Corcoris stated:

It is clear that the accused does not have to establish that the defence would actually be assisted by the production of the documents. A test of that kind would have the capacity to produce monstrous unfairness, is not supported by authority and was not put forward by Mr Ragg.

The defence has to establish only that ‘it appears to be ‘on the cards’ that the documents will materially assist the defence.’

The Police Association submits that the new test introduced by clause 107 of exceptional circumstances will, in the words of Justice Bell, produce monstrous unfairness. We further submit that clauses 105, 106, 107 and 108 are incompatible with the right to equality before the law, incompatible with the right to have adequate time and facilities to prepare a defence and communicate with a lawyer or adviser chosen by him or her, incompatible with the right to a fair trial, incompatible with the general principles of disclosure established under common law and recently articulated in the Mokbel and Corcoris decisions in the Victorian Supreme Court, and incompatible with the approach articulated by the House of Lords in R v H.

I move to clause 114 and the oversight by the special investigations monitor. It is the Police Association’s submission that the oversight powers contained in part 5 of the bill are manifestly inadequate. There is no provision for a complaint to be made to the SIM generally regarding the conduct of the OPI and its staff. Therefore, a complaint made in relation to alleged criminal conduct of a member of the OPI must be made to the Ombudsman, and the response to a criminal allegation made to the Ombudsman is not met with a criminal investigative response; it is met with an administrative response, which is entirely inappropriate, as inappropriate as if the situation were reversed and an administrative problem was met with a criminal investigation.

The case of the OPI v. Bolton, which is roughly one month old, provides a striking example of the need for the SIM to be empowered to receive and investigate complaints regarding the conduct of the OPI and its staff. It is evident from the facts in the OPI v. Bolton that the following issues relating to the conduct of the OPI in that matter warrant further investigation. That material has been provided to the committee prior to today. These are the matters. The OPI staff and investigators repeatedly denied the existence of audio recordings, both in writing and on oath, which had been subpoenaed by the defence. The presiding magistrate observed that if the audio recordings existed, they should be disclosed to the defence. An OPI investigator gave sworn evidence that no such audio recordings were made; that was contrary to what was recorded in her notes. The same OPI investigator subsequently recanted that evidence and swore that, ‘There is a very strong possibility that our interview was recorded’. The evidence of the OPI investigator was entirely at odds with the evidence of three other witnesses called for the prosecution, who all swore that their interviews with the OPI had been audio recorded. The audio recordings were never produced, despite the evidence of their existence, and are presumed to have been destroyed contrary to the Public Records Act.


In Atlan v. The United Kingdom in 2001 the prosecution repeatedly denied the existence of undisclosed material and failed to inform the judge of the true position. This was found to constitute a violation of article 6(1) of the UK charter, being the right to a fair trial. I will quote from that case. Again, it was the unanimous finding that a violation of that article was made. It states that:

… they had repeatedly denied the existence of undisclosed material and had failed to inform the judge of the true position …

Notwithstanding the fact that the matters arising in the Bolton case gave rise to issues of potential misconduct and the violation of section 24(1) of the charter by the OPI, there is presently no means by which Bolton can lodge a formal complaint to the special investigations monitor. The assistant director of the Office of Police Integrity, Mr Graham Ashton, was interviewed by the media on 12 February 2007. He made the following important observations, and I quote:

Noble cause corruption is something we focus heavily on at the OPI because it is often a misunderstood concept. Noble cause corruption is the breeding ground from which more endemic corruption occurs and more serious corruption grows out of that … there’s little understanding that the more serious corruption will generally flow from an environment that’s created by the noble cause corruption.

When he referred to an investigation into the Victoria Police armed offenders squad he stated, and again I quote:

So I think if you find that here you’ve got an elite squad that should be staffed by professionals doing a difficult job, you’re entitled to expect, I think, that the highest ethical standards are conducted in that squad because if they are investigating serious crimes the last thing a community wants is for prosecutions to be put at risk by slipshod investigations or by shoddy police work.

Mr Ashton’s comments are, with respect, of equal application to the operations of the OPI. Only a few OPI prosecutions have proceeded to hearing at this time. The fact that the problems identified in OPI v. Bolton have arisen so early in the active life of the OPI only reinforces the need for formal measures to be enacted to deal with complaints on a comprehensive basis. The material nondisclosure by the OPI of evidence relevant to the defence was only exposed in this matter through the use of a subpoena. The introduction of a protected document provision will probably prevent the future detection of such conduct, which is clearly capable of constituting a violation of an accused person’s right to a fair trial.

In relation to oversight matters the New South Wales Independent Commission Against Corruption Act establishes a parliamentary joint committee to oversee that ICAC body. Similar provisions have been incorporated in the Police Integrity Commission Act of 1996 in parts 6 and 7. In Queensland the Crime and Misconduct Act 2001 established the office of parliamentary commissioner, who has direct oversight of that body. The Australian Crime Commission is subject to the oversight of a joint committee of the commonwealth Parliament. In Western Australia section 188 of the Corruption and Crime Commission Act 2003 establishes the office of parliamentary inspector.

I suppose it is fair to say we only need to pick up today’s newspapers to see what happens or what is potentially able to happen with an anticorruption body such as the New South Wales Crime Commission, which has no direct oversight. There is no doubt that anticorruption-type bodies are equally as open to alleged corruption as any other body.

It is interesting to note that the accused person in that matter has a female partner who is currently on secondment from the New South Wales Crime Commission to the New South Wales Independent Commission Against Corruption. I do not make any allegations against either of them — that will be a matter for the police and ultimately the courts to decide upon if that is what is thought necessary — but it is a clear and stark example of what can happen when there is no appropriate oversight.

The bill dictates that the director must report annually to Parliament, and that is well and good. There is no compulsion for the director to report on any other matter to the Parliament at all. The bill uses the word ‘may’ report to Parliament, which clearly is not a compulsion upon him to report to the Parliament. That will leave the Parliament in the position where a bureaucrat, for want of a better term — and I do not use that in a derogative sense — will be deciding what is good and what is not good for the Parliament. The Parliament will not get the opportunity to make that decision.

I move on to clauses 109 and 110 relating to protected persons and critical incidents. Clause 109 makes it almost impossible for an aggrieved person to commence civil action against a staff member of the OPI. Subclauses (3) and (4) prohibit action being taken without leave of the Supreme Court, and the Supreme Court cannot grant leave unless they are convinced that there is a substantial ground for concluding that the OPI officer has acted in bad


faith. It is our submission that the term ‘acted in bad faith’ sets the bar as high, effectively, as being able to prove to the Supreme Court that someone has committed a criminal offence. It is a quite different proposition from the proposition advanced in the statement of compatibility that the proposed legislation protects OPI officers who are acting in good faith. Section 123 of the Police Regulation Act 1958 affords that level of protection to police officers in this state, but they must have been working, they must have been on duty and they must have been acting in good faith. That level of protection is provided by this bill to OPI officers where they are involved in critical incidents and certain criteria are met. For the remainder of their activities the bar is set at ‘ acted in bad faith’. If I can provide a very brief example where the rights of not only police officers but every other citizen of the state of Victoria are imperilled by this proposed act, it is simply this: two members of the OPI staff conducting a police investigation are at a police station; one of them is carrying a couple of cups of coffee and drops one accidentally, and because they are a very busy person they do not have time to step out, pick up a mop and clean it up. They are not acting in bad faith, no-one is in custody and it is not a critical incident, so they leave it as it is. A child comes into the police station to tell someone at the police station that they are lost and cannot find their parents. As they do they slip and break their neck. The OPI and the staff and the people who were involved in that cannot be sued. Surely that is not the intention of the Parliament with this bill.

Depending on the cause of action, it may be impossible to demonstrate bad faith to the Supreme Court without having access to adequate discovery and the protected documents procedure involved in civil matters, and the impossibility of compelling a member of the OPI staff to give evidence will probably prevent that. The common-law presumption of statutory interpretation that, where possible, statutes should not be interpreted as abrogating common-law rights is a presumption based on high authority of long standing, and some of those matters go back as far as 1904 to Clancy v. Butchers’ Shop Employees Union; Australian Tramways Employees Association v. Prahran and Malvern Tramway Trust of 1913; there is a 1954 decision, Commissioner of Inland Revenue v. West-Walker in New Zealand; and a Commonwealth Law Reports decision from 1987, Re Bolton, ex parte Bean.

It is our submission obviously that the protections afforded to OPI personnel in these circumstances are well beyond those that are afforded to police officers and other members of the public sector employed by the government in Victoria such that it basically makes the OPI, particularly without proper oversight, unaccountable to anyone. I will make a couple of final points, if I may. This bill confers upon the OPI the powers of a royal commission, but it goes beyond providing it with the powers of a royal commission; it provides it with something greater. Royal commissions do not charge people, they do not prosecute people; they make recommendations to the appropriate authorities, which then independently examine material and, if necessary, prosecute.

As far as compatibility with other states and territories within Australia is concerned, only the Northern Territory has legislation equivalent to our Charter of Human Rights and Responsibilities Act. No other state has it. This charter only came into force on 1 January this year, and the proportionality principle in section 7 of the charter is critical in relation to this bill. The provisions identified in the submission are not a reasonable or justified intrusion upon the human rights of police members. The objectives of the OPI can be achieved through less restrictive means by providing for the inadmissibility of derivative evidence; limiting the OPI’s role in coercively examining a suspect when criminal charges are imminent; and leaving public interest immunity claims, where they have been for 150 years in this state, for the good of the courts to determine, without legislative restrictions. It can be achieved by protecting OPI members who are acting in good faith rather than requiring proof of bad faith by having proper oversight in complaint procedures. The OPI will still be able to function and perform the role that Parliament wants it to perform, but the charter rights of police members will be preserved. Ladies and gentlemen, that is all I have for you. Again, I thank you for your time.

The CHAIR — Thank you, Mr Davies, and thanks to the Police Association for that submission. I will just open it up to questions.

Mr BROOKS — Thank you, Mr Davies, for your comments today. I will start with one of the first issues you raised in relation to clause 69 and the issue of compulsory questioning. It is an issue that was picked up in this committee’s earlier report. I note that both in your submission and in the verbal presentation then you did not refer to clause 46, which the minister included in his response to the committee to those earlier matters raised. That clause requires the DPI to take all reasonable steps to ensure that any proceedings that are on foot are not prejudiced; I think the word used in that clause is that the DPI ‘must’. I was just wondering whether you want to comment on whether you thought that was sufficient to protect the charter rights.


Mr DAVIES — I cannot say that it is sufficient, sir, because this places enormous responsibility on one person who effectively is not accountable to anyone. If he or she, whoever the director may be at any time, makes an incorrect decision or a number of incorrect decisions, it may or may not fall to the courts to ask the director to justify his or her actions. Without proper oversight these are, as I made mention earlier, draconian and very serious powers that are being basically unleashed without any control other than the reserve and hopefully good judgement of the person concerned. Of course ‘apprehended bias’ is a term you will probably be well aware of. Bias in an adjudicator does not necessarily have to be real; it only has to be apprehended in the mind of the accused. We may find ourselves, it is reasonable to say in our submission, in a position before a judge or before a magistrate where they say in relation to either the use of coercive information or the lack of provision of documentation that ‘I am not in a position to provide this accused person with a fair trial if you maintain your position that you will not release these documents or that you must rely upon derivative evidence as a result of coercive examination’. It is not inconceivable that that will place a trial judge in a position where he or she says to counsel, ‘Would you like to address me on the issue of a permanent stay because I will be most amenable to that sort of submission?’.

Mrs PEULICH — I do not have any questions at the moment. My one concern, Chair, is that the committee is scheduled to consider the evidence on Friday to finalise its report, and your Hansard transcript probably will not be available to us for a few days. I am asking perhaps through the Chair whether it would be possible to actually make speedier amendments to your Hansard record and make that available to us perhaps within a shorter time frame given the constraints on the committee. Some of the more technical, illustrative material I think would be most useful to our deliberations on this bill.

Mr DAVIES — Certainly if the material is made available to me, I will have it done immediately.

Mrs PEULICH — Chair, you are able to sort of facilitate that?

The CHAIR — If the Hansard material is available. I mean we will not have the Hansard material available for our report for Parliament, but I assume we would have it available on Friday.

Mrs PEULICH — We would need to have access to it before the meeting on Friday, Chair.

The CHAIR — Yes, we will have the Hansard notes, but they will not be corrected — all the presentations today — in time for our presentation to Parliament; this is going to be on Tuesday. Obviously we will speed it up.

Mr JASPER — Mr Davies, thanks for the submission that you provided. I join with your concerns in that you indicate in much legislation we get now there is often ‘may’ instead of ‘must’, and I think that there needs to be a review by Parliament itself in relation to that particular wording. The other issue relates to section 85, which has been used a lot within the Parliament over many years. I think it needs to be generally reviewed on the usage of section 85. There is comment on that in the submission, particularly in relation to sections 109 and 110. You would be aware that recently the Scrutiny of Acts of and Regulations Committee has extended its review because of the charter of human rights; it is really new to us as a committee in the use of that. You mentioned the Northern Territory is the only other jurisdiction in Australia that has a similar situation. The question I put to you is that all of your submission seems to centre on the fact of the failure of the bill to comply with the charter of human rights. As far as the scrutiny is concerned, is it a fair comment to say that this is the basis of your submission?

Mr DAVIES — It is certainly a very large proportion of the submission, Mr Jasper, yes. It was indicated to us that that is what we should direct our attention towards: compatibility with the charter. Quite clearly the charter, as you say, is new to you; it is certainly new to us as well. But it is an important document, and if it is to be a relevant and contemporary document that due regard is paid to, then it needs to be complied with. This is one of the very first major bills that has to comply with the requirements of that charter, and therefore in the constraints of the short time available that is what we have addressed. Certainly if we were given more time we could expand our submission several times over. The committee very graciously gave us an extra 48 hours to make our written submission, and we thank you for that, but nevertheless that gave us 12 days to go through what is a substantial piece of legislation. To try to research all of the various decided cases both here and throughout the British commonwealth is a fairly onerous task that cannot be done quickly. That is why we have restrained ourselves in the main to the compatibility with the charter.

Mr JASPER — So in general terms you would say that the charter of human rights is abrogating a lot of the responsibilities as far as your members are concerned?


Mr DAVIES — What we say is that the Charter of Human Rights and Responsibilities Act creates an expectation amongst all Victorians that they will be afforded a minimum level of human rights in this state, and what we also say is that the Police Integrity Bill removes a large number of those human rights for police officers in this state so that roughly 11 200 out of the approximately 5 million people in this state will not have the same human rights as everyone else.

Mr SMITH — Thank you for coming along today. I really appreciate your time, and I concur with you that there has been limited time to look at this legislation in enough detail. I want to start by asking you in reference to clause 69(3) whether this clause is in any way different to existing law that deals with public interest immunity, and then: does it go further?

Mr DAVIES — We are talking about privilege against self-incrimination being abrogated.

Mr SMITH — Yes.

Mr DAVIES — Clause 69(3) says that the answer, information, document or thing, is not admissible in evidence against the person before any court or person acting judicially except in proceedings for perjury or false information, a breach of discipline, a failure to comply with a direction under clause 47, an offence referred to in clause 68(3) or the contempt of the director.

Mr SMITH — Is it the view of the Police Association that that goes further than the public interest immunity laws?

Mr DAVIES — It is slightly different. Public interest immunity applications, as I alluded to earlier, are made to a judge or magistrate, and in the normal course of events the trial judge, having been privy to all of the information and all of the circumstances of the matter, the importance or otherwise of any particular information, documents or evidence, then makes an informed decision. This tends to take that decision-making away from the judiciary and provides them with a hard and fast set of rules. As I mentioned earlier in answer to one of Mr Brooks’s questions, we are then left in a position potentially where a trial judge says, ‘I cannot possibly afford this person a fair trial if I have to comply with these requirements. If the prosecution intends to maintain that line I will be prepared to take a permanent stay application’.

Mr SMITH — You have mentioned that you think the Parliament should have more oversight in these matters.

Mr DAVIES — Absolutely.

Mr SMITH — What is the view of the Police Association on extra powers of oversight the SIM should have?

Mr DAVIES — The Parliament can create those powers either through the offices of the special investigations monitor or by some other means that the Parliament decides is suitable. Whether that be a parliamentary committee, whether that be a parliamentary committee that exercises that oversight role through the special investigations monitor, the choice is the Parliament’s. No-one in this state in this day and age should be concerned about being answerable to someone. We are all answerable — I am answerable, the Parliament is answerable to the voting public, everyone is answerable. To create an office where a person is only required to supply an annual report — and without being glib, that might be three or four pages of a financial report and a glowing self-assessment of 12 months work well done; that is simply the fact of the matter — to require no more oversight than that places us on very dangerous ground, and as I said, the papers today are full of one such example from interstate.

Mr SMITH — That is true. Finally, was the Police Association consulted during the drafting of the bill at all?

Mr DAVIES — We were not consulted in relation to this bill at all. Its existence came as a complete surprise to us.

Mr SMITH — Thank you very much.


Ms PULFORD — Further on the matter of SIM oversight and reporting, how would you suggest that that interacts with the charter and the extent to which any charter rights are limited by what the Police Association says is the limitations imposed by the bill on SIM?

Mr DAVIES — I do not know that a complete oversight actually rectifies all of the problems in relation to the charter; in fact it clearly would not. Nevertheless, it would create a layer of accountability that does not exist. It would give the Parliament control, and ideally we are not talking about operational interference for political purposes if anybody were to raise that later on; we are not talking about that, we are talking about proper compliance with the act. Whilst there is a provision within the bill for the SIM to monitor compliance with the act, you cannot actually take any action. Unfortunately, while we have the highest regard for the office of SIM, and for the current incumbent for that matter, quite simply he is a toothless tiger.

The one complaint provision that has been extended from the current legislation is that if you are coercively examined by the OPI and you are not afforded the opportunity to give your full version of events you may, at present, within three days make a complaint in writing to the SIM and be investigated. This bill extends that time frame but does nothing else. Of course if an adverse finding comes out of a hearing and it is not handed down until the day after the time limitation expires, you have nowhere to go.

Mrs PEULICH — The 90 days is too short?

Mr DAVIES — I do not know whether there should be a time restriction on it because if it is a complex investigation that the OPI might be conducting it might be well beyond 90 days before its findings are made public. It may be, particularly when you consider that this bill also provides the director with the power to say ‘No, you cannot be legally represented before this’ — perhaps public coercive — ‘hearing by a lawyer. You can give us answers to our questions. We will make our findings public in due course, and you get a finding where you say, ‘That is not what I was talking about; that is something completely different. I have been taken out of context’, or ‘I did not get to address that point in the way that I wanted to. I would like to make a complaint to the SIM about it’, you cannot; you are statute-barred.

Mr SMITH — Good point.

Mrs PEULICH — In relation to the Police Association’s view that the entire regime should be subjected to parliamentary committee oversight, do you have any views as to what an appropriate structure may be? Obviously that is for Parliament to debate and so forth, but do you have a view that you could perhaps tease out?

Mr DAVIES — Absolutely. As I alluded to earlier, that is, as you say, a matter for the Parliament and it is not for us to tell the Parliament how to run its affairs, but it is our submission that either a parliamentary committee is created, a parliamentary committee that oversights an inspector-type role, or a special investigations monitor office, appropriately staffed, resourced and equipped. We are not talking about taking budget away from the OPI; we are not trying to diminish the role of the OPI in any way, we are simply trying to put appropriate safeguards in place when we are talking about these sorts of draconian powers. If 11 000-plus citizens of this state are to be subjected to a different human rights regime than the other 5 million-odd, there should be reasonable opportunities for redress, and that includes not only the monitoring role but the ability to sue, the ability to charge people with criminal offences if and when sufficient evidence arises that warrants that taking place.

How the Parliament decides to monitor it is entirely a matter for the Parliament, but one would imagine the simplest way would be to beef up the office of the SIM, provide it with sufficient resources, and gain a direct reporting line from the SIM to the parliamentary committee.

The CHAIR — You are asserting that police are being discriminated against as a category on the basis that — when we look at the charter, we have to look at the charter as to whether there are reasonable limits on people’s rights. It seems to me that the fact that the OPI is investigating police does not necessarily mean that the police are being discriminated against. It is a question of: are we meeting the reasonable limits test as per charter? Generally when we talk about discriminated groups we tend to talk about minorities or groups that are fairly identifiable, not police officers. It seems to me that our judgement has to be about the issue of reasonable limits. Can you elaborate on that?

Mr DAVIES — With all due respect, Mr Carli, I would say that 11 200 out of 5 million is certainly a minority and they are certainly identifiable — most of them are in blue uniforms. We have no issue with police


being investigated over allegations. We represent 98 per cent of the police force in this state and I can guarantee you that nobody wants to work with a corrupt person. We have had the ethical standards department and various versions of its predecessor which have conducted that role quite rigorously for a number of years and we take no exception to that whatsoever. What we do take exception to is the fact that a specific piece of legislation has been created that abrogates the rights held by every person in this state and applies it to 11 000 people, when the OPI itself has publicly said that, after over four years of operation, there is no evidence of generic or systemic corruption throughout the Victorian police force. There are certainly isolated incidents; unfortunately, there always will be, whether it be in a police force, whether it be in a local government, whether it be in any form of public life or private life for that matter. There will always be instances of people doing the wrong thing. We are quite happy to have those matters investigated and investigated thoroughly, rigorously and taken to their logical conclusion, but we think it is only fair that our members, who are sworn to uphold the law and uphold the right in Victoria, be afforded the same legal processes and same human rights as everyone else in the state.

The CHAIR — Mr Davies, thanks very much, and again thanks to the Police Association for its submission.

Mr DAVIES — Thank you, Mr Carli.

Mrs PEULICH — If you could expedite the return of your corrected Hansard transcript that would be useful.

Mr DAVIES — Absolutely. I will guarantee you I will have it back the same day that I get it.

Witness withdrew.





Members


Chair: Mr C. Carli


Staff


Witnesses

Mr J. Burnside, barrister (sworn), and

Ms G. King-Siem, barrister (affirmed), Liberty Victoria.


The CHAIR — Thank you for coming in on behalf of Liberty Victoria. The next witnesses will be Mr Julian Burnside and Ms Georgia King-Siem of the Victorian bar on behalf of Liberty Victoria. Thank you for attending these public hearings in regard to the Police Integrity Bill 2008. The committee is seeking written and oral evidence as to whether the provisions of the proposed law constitute an undue trespass to rights or freedoms and/or whether the provisions are incompatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.

Mr Burnside and Ms King-Siem, anything you say or publish before the committee today is protected by parliamentary privilege. However, once you leave the hearing anything you say or publish outside this perimeter is not so protected. In the next day or two you will be provided with a draft copy of the transcript of your evidence. You will have an opportunity to correct anything that the Hansard report has not correctly recorded. However, there is not an opportunity to put anything additional or different to that which was actually said by you at these hearings. I would like to invite you now to make your statement to the committee on the relevant issue that you see may be involved in this proposed legislation. Following your opening statement members of the committee may have questions that they may wish to put to you. The committee has determined that it will take sworn evidence. I ask that you take either an oath or an affirmation. Can you then state the name of the organisation and your position in it?

Mr BURNSIDE — We both appear on behalf of Liberty Victoria, the Victorian Council for Civil Liberties.

The CHAIR — Terrific. Over to you.

Mr BURNSIDE — Thank you. You will have received a written submission and I should say at the outset that it was prepared by others and of course prepared jointly with the human rights workshop. Di Sisley, who runs that, is also in charge of the human rights workshop and I think she was primarily responsible for preparing the written submission, and so although it is nominally in my name I have to say that all credit for it goes to Di Sisley and Liz Curran. I was not proposing to repeat what is already there because you have got it and there is not much point in reading it out to you, but there are some other matters that I did want to discuss in advance. Before I begin can I correct one small thing that the previous witness said? It is the ACT not the Northern Territory that is the other jurisdiction with a human rights act, just to save you any fruitless searches through the Northern Territory legislation.

The CHAIR — Thank you.

Mr BURNSIDE — Incidentally the ACT act has been on foot since 2004 and so far there are I think only four or five reported cases arising under that act. It does not seem to have caused any trouble.

Can I start with this observation? The director under the bill has enormous powers, extraordinary powers, and we make no complaint about that because by definition the director has to deal with extraordinary circumstances and it is not surprising that that involves the conferral of great powers. Those extraordinary powers include of course the ability to compel attendance; to compel a person to give evidence, even evidence that may relate the person; to authorise people to carry guns and defensive weapons; to authorise the arrest of people who have not complied with requirements; and the power to search and seize without warrant.

The conferral of these powers, as I say, is understandable but needs to be viewed with great caution, and a great deal we think will depend on two things. The first is the character of the person who occupies a position of director, and the second is the way in which the director’s powers are delegated to authorised officers and the nature of that delegation. It is very interesting to look at section 10 which deals with the required qualifications for the director. Subsection (2) sets out five requirements — some positive and some negative: you cannot be a former policeman in Victoria, and you cannot be a member of Parliament. All perfectly understandable. You have to have the ability to carry out the functions that is self-evident, but section 10(2)(a) sets out the core requirements and it lists that a person:

has been, or is qualified for appointment as, a judge of —

(i) the High Court; or

(ii) the Federal Court; or


(iii) the Supreme Court of a State or Territory; or

(iv) the County Court or —

an equivalent court in another state, which looks very distinguished because you think you are going to be getting a former Supreme Court judge as the director. But if you look carefully it is not just a person who has been one of those judges but a person who is qualified to be one of those judges. That means you have been a legal practitioner for five years. If the act says that the person who is eligible must have been a legal practitioner for five years, most people would probably think that that is not adequate. It is certainly not adequate as a repository of such great powers.

It is difficult to know why the bill frames the qualification in this way, which we say gives a very misleading view of the qualities that the person might have. I am not for a minute suggesting that a person of inadequate competence would be appointed, but there must be a reason for identifying these officers as a guarantee of quality, and we would rather prefer that the appointee be a former judge of a superior court. There is some hesitation about the County Court, and I do not say that in any adverse reflection on present or former members of the County Court, but we think the seriousness of the powers warrants a person of clear, demonstrable, distinguished legal service.

Having said that, can I mention the power to authorise? The power to authorise is a matter of concern simply because the functions that can be performed by the director can, of course, be delegated to authorised officers. The authorisations will very likely be global authorisations — in other words, people will be authorised for the duration of their time as officers. And so what you have got is replicated throughout the organisation: people who for most purposes have all the powers of the director, and there are no qualifications for the people who are authorised officers. You will be conferring, albeit filtered through the discretion of the director, extraordinary powers on people who may not have the required ability and characteristics to exercise those powers in a way which preserves and safeguards the rights of the community, including the rights, of course, of the police.

Can I go to two instances of that on which we also wish to make independent points? The power of search and seizure is dealt with in clauses 87 and 88. Clause 87 defines an authorised officer. It is a member of staff who is authorised under subclause (2). Subclause (2) states:

The Director may authorise a member of staff … to exercise the powers of an authorised officer under this Division.

As I say, there seems to be no restriction that the authorisation does not have to be for a particular purpose or for a particular function or for a particular investigation; it is just general. In the normal way of things you would expect it would be made as a matter of course and will operate indefinitely.

Clause 88 identifies the power to enter a public authority premises. It states:

An authorised officer may —

(a) enter at any time premises occupied by a public authority at which the authorised officer reasonably believes there are documents or other things that are relevant to an investigation —

and then can search, inspect and seize such things. That is a power of search and seizure without warrant — and that in itself is an extraordinary power — and that is delegated to a person who is authorised generally by the director. That seems to us to be a rather alarming power to confer generally on people who happen to be members of the staff. There are some constraints in that power because subclause (2) requires the person to identify themselves and say what they are doing and so on, but even so it is a power of search and seizure without warrant and therefore without the usual safeguards that would accompany the issue of a search warrant.

There is another concern which is less significant, but a concern nonetheless. Clause 90 deals with circumstances where an authorised officer has seized a document, disk or tape or other thing that can be readily copied, or a storage device the information in which can be readily copied. In those circumstances on request the authorised officer must give a copy of the thing or the information to the person as soon as practicable after. Then the problem: subclause (2) states that the authorised officer may refuse a request under that section if:

(a) the Director is satisfied that the work involved in copying the thing or information would substantially and unreasonably —

(i) divert the resources of the Office of Police Integrity from its other operations; or

(ii) interfere with the performance of the Director’s functions; or


(b) the Director is of the opinion that it is not in the public interest to give a copy of the thing or information to the person.

Now what we are talking about is the power to seize the database of a public authority. You would hope that in ordinary circumstances the database would be provided back to the authority, but the criteria for refusal are all one-sided. The director can refuse if doing so would substantially and unreasonably divert resources or interfere with the performance of his function. But there is no requirement to consider on the other hand the effect on the operation of a public authority whose database is taken away. It is potentially capable of crippling a public authority, and I am not sure that is what the Parliament intends.

Mrs PEULICH — Is there a definition of ‘public authority’, Mr Burnside?

Mr BURNSIDE — Yes, there is, in clause 3. Broadly speaking it is the sort of things you would expect. It means:

(a) Victoria Police; or

(b) a public service body within the meaning of the Public Administration Act 2004; or

(c) any other body, whether or not incorporated, established by or under an Act for a public purpose …

It is a very wide range of organisations. As anyone who depends on computers as much as I do would understand that losing your computer, in effect by having the hard drive taken, would bring you to an immediate stop. It seems to us that the obligation to provide a copy, or rather the ability to refuse to provide a copy, should be conditioned not only by reference to the practicality for the director but also to the practical consequences on the relevant organisation. As I say, you would think a director acting sensibly would not likely cripple a public authority, but in fact it would be desirable to see it in the bill. The next thing, if I may turn to it briefly — —

Mr JASPER — Do you think that subclause (3) provides some protection?

Mr BURNSIDE — Sorry?

Mr JASPER — Clause 90.

Mr BURNSIDE — You are saying clause 89?

Mr JASPER — And going onto subclause (3) and the other clauses there, which may provide some protection for the organisation?

Mr BURNSIDE — That is the power to seize.

Mr BROOKS — Clause 90, subclause (3).

Mr BURNSIDE — I am so sorry. It provides some protection. It does.

Mr JASPER — I would have thought so.

Mr BURNSIDE — Even so the discretion is not directly conditioned on such a thing, so you can imagine it would take you some while to get to the stage where you have an opportunity to make your submissions and get the result you want. It would be desirable, we think, and probably consistent with the intention of subclause (3), if the exercise of discretion itself were directly conditioned on a consideration of both sides of the ledger.

Mr JASPER — Thank you.

Mr BURNSIDE — I have lost my place because I was looking for clause 69(3), which was mentioned by the previous witness as giving rise to concerns.

Mrs PEULICH — Page 61?

Mr BURNSIDE — Yes. I should restrain the impulse to butt in on what someone else has said, but it is an occupational hazard. It seemed to us that the concern that was expressed may be overstated because in particular we cannot see that clause as giving rise to any risk of a judge saying, ‘Do you want a permanent stay because you


cannot get a fair hearing?’. What this is, is a fairly usual qualification that accompanies the abrogation of the privilege against self-incrimination.

Typically in legislation of this sort you see the privilege against self-incrimination is abrogated but the information which is compulsorily acquired cannot be used against you to prove commission of an offence, except for a limited range of what I call procedural offences — that is, telling lies during the investigation in which you are forced to give evidence, committing a contempt of the proceeding in which you are forced to give evidence and so on. The one exception to that I think would be clause 69(3)(b), so it could be used against the person in proceedings for a breach of discipline. That is atypical and it does mean that police are exposed to circumstances where they can be obliged to incriminate themselves for disciplinary matters. Whether that is a matter of concern for the committee is a separate thing, but it does not seem to us that you could find yourself in front of a Supreme Court judge on trial for a substantive offence and be unable to have a fair trial because of that section.

The next area of concern we have is the power to authorise the use of firearms, clause 103. In the same way but of less concern is clause 102, which relates to the use of defensive equipment. Again, the director is given power to authorise members of the staff to possess, carry and use firearms. This bypasses the usual police control on authority to use firearms. It is likely, in the ordinary way of things, that the authorisation will be given globally and without end. So you will simply have a whole range of people — who might or might not ever have served in services where carrying arms is part of the job and who certainly will not have been members of the Victorian police force, even if they have previously been a member of another police force — who will all be allowed to carry and use firearms.

It is difficult to understand why it is necessary or desirable that global authority to use firearms should be conferred on a small subset of people merely because they happen to work for the OPI. If the grant of permission were safeguarded by reference to qualification for appropriate training and the like, that would ameliorate the concern, and no doubt there will be occasions when it is appropriate for members of the staff to carry and use firearms. It is undesirable, however, that they should all be authorised, so that as a matter of course they can run around carrying guns in the same way that police, as a matter of course, can run around carrying guns. It is hard to see that their regular work would involve the requirement ordinarily to be armed. Obviously, I think, most citizens would be concerned at the idea that there is another subset of the community who can walk around the community armed. It needs safeguards, if it needs to be there at all.

I have been hesitant in the way I have framed this because in the ordinary way you might expect that the police could authorise members of the OPI staff to carry firearms, but, given the role of the OPI, it is also understandable that they might wish to bypass police authority. It follows that there has to be some other safeguard which is equivalent at least in effect to the requirement of police authority in other circumstances.

The next thing we wanted to mention arises under clauses 68 to 74, the compulsory evidence provisions. It has become common for investigating bodies to have power to take evidence compulsorily and it is probably too late in the day to complain about it, although traditionalists would complain about it. You will see that clause 70 has an exception in relation to legal professional privilege and that is desirable and, we would think, appropriate. But legal professional privilege appears to be the only substantial exception to the requirement to give evidence compulsorily; even Crown privilege is not an excuse for refusing to answer questions or produce documents.

We notice the significant absence of an exception for medical privilege. It is not unlikely that people being investigated are involved in whatever is suspected because of their involvement in drugs, and that may also mean that they themselves use drugs. That would mean that their medical records could be compulsorily acquired and used in the course of the investigation. It is a question of policy whether that is a desirable result. We do not know whether it has been considered and rejected, but medical privilege probably is right up there with legal professional privilege in terms of significance, and we have some difficulty seeing that it is justifiable that medical records could be compulsorily seized by the OPI, given the intrusive consequences that that would have.

The second exception that we think is worth considering — and it is purely a policy question of whether it is desirable — is what could colloquially be thought of as journalist privilege, although of course we accept that journalists do not have privilege in the orthodox sense. We mention it for this reason: it has often been the case, in this state and elsewhere, that stories about police corruption are broken first by the press and when a story gets into the press it then gets investigated by whatever bodies have power to investigate. It is easy to see circumstances where the OPI would immediately go to the journalist and force them to give evidence about their sources. It is


understandable, because it would be a natural short cut. Any responsible journalist will have all the details from sources; they generally do not make things up.

The question is: what is to happen to the journalist? The journalist, who in one sense has done a public service by revealing possible corruption, faces the possibility of either revealing their sources or going to jail. If they reveal their sources, then their career as a journalist is very likely finished, either because they will be whacked or because no-one will ever talk to them again. The question is whether that is really a cost that is worth paying in order to get the evidence, by forcing journalists to speak. We think that there is a shift in the mood in the last year or so, especially triggered by the Harvey and McManus contempt proceedings in the County Court, that suggests that maybe the policy decision ought to go the other way and journalists ought to be protected against compulsion to reveal their sources. We think on balance that there is a strong argument for adopting that position because the cost that it brings — a short cut not being available — is probably outweighed by the benefit it brings, which is the free revealing of information through the daily press.

Three small matters: first, clause 64.

Mrs PEULICH — Before you move away from this, would that apply to members of Parliament as well?

Mr BURNSIDE — The privilege?

Mrs PEULICH — Yes.

Mr BURNSIDE — Are they not dealt with separately? Parliamentarians are not privileged from compulsory evidence. Do they have benefits in the same way that journalists do, do they get evidence the same way? I am not sure about that; I do not know. You are well placed to answer that question. The idea that parliamentarians might be required to come and give evidence compulsorily to the OPI is slightly alarming. It is purely a policy question. I do not know how regularly occurrences like that would arise. If parliamentarians are regularly repositories of evidence about seriously bad behaviour, then I think there is probably a good argument that it is better to have politicians able to reveal these things in Parliament, with all the consequences that has.

Mr JASPER — And protections.

Mr BURNSIDE — And protections. Yes, but there is no protection. Parliamentary privilege would not help, because if you say in Parliament that you have information to show that — —

Mrs PEULICH — Derivative evidence.

Mr BURNSIDE — Well, you can be called in without, I think, breaching the parliamentary privileges. You could be called in and required then to say on oath the same thing that you said under privilege. The question is whether you are a compellable witness, not whether what was said in Parliament could ever be used against you for any purpose. If you are a compellable witness, then that may be a problem, in which case maybe parliamentarians ought to have the same privilege as journalists. I think it would be a very good double. It might lead to more accurate and friendly reporting of parliamentary proceedings, too.

Mrs PEULICH — I asked the question in view of your earlier comments.

Mr BURNSIDE — Clause 64 empowers a director to refuse specific legal representation to witnesses, but there are no guidelines for the criteria against which that refusal might be made. Generally speaking, people are entitled to retain the lawyer of their choice, and generally speaking, we hope, lawyers are reliable and understand their obligations. An open-ended ability to refuse to allow a witness to choose their own lawyer is at one level understandable, but at a different level also disturbing, and perhaps it ought to be conditioned on specific criteria.

The next is clause 51. It was only a minor point but clause 51 provides exemption from the Freedom of Information Act, which is indefinite. It ought to have a terminal point, we think. It is a matter for policy how long the terminal point should be in the future, but it should not be forever.

Finally, clause 58. Of course in the modern fashion when a witness is summonsed to give evidence they go into a cone of silence from which they can almost never emerge. They are not allowed to reveal to anyone what they have been asked to give evidence about, or I think even the fact that they have been required to give evidence. That includes, it would seem, that they cannot tell members of their family. That is a concern, especially it is a concern if


the person, by virtue of having to give evidence over a number of days, is absent from their work or perhaps from their commitments at home in circumstances where they are simply not allowed, as a matter of law, to give any explanation for their absence. That is a matter which deserves some amelioration, we think, to allow for the ordinary circumstances of family life and work life. I have said you cannot tell family members; I think it is true also that you cannot tell your employer or others who have a legitimate interest in knowing why you are absent or why you are going to be absent.

Ms KING-SIEM — I think the only exception to that is a legal representative, so you can obviously for the purposes — —

Mr BURNSIDE — That completes the things that I wanted to address directly, but Georgia may want to add — —

Ms KING-SIEM — The only thing I would probably add would be the oversight of the SIM, and that was, again, probably, as the previous speaker pointed out, that it appears that complaints can only be made by witnesses — that would seem to limit the role of the SIM — and that its complaints should be receivable by perhaps anybody and everybody who wished to lodge them with it. What the SIM does with that is another matter, but at least to have that avenue open.

The CHAIR — All right, thank you for that. We will just open up for questions.

Mr BROOKS — I have got a fairly general question, Julian. Thank you for your time today. That is about the things you have spoken about today. How would you tie those in to the terms of reference of this committee, particularly the role we have in terms of reporting on how bills sit within the charter of human rights? How would you tie those issues you have spoken about into, for example, the charter of human rights?

Mr BURNSIDE — There are various ways, which we have addressed in the written submission and which were addressed by the previous witness and no doubt by others, in which the rights in the charter are affected by the powers given in the act. The most direct tie-in is the nature of the person who is given the power. There are very many wide discretions. If the right person exercises those powers, then what you may get is an unreasonable entrenchment on the rights that the charter is concerned with. There are infringements in theory and there are infringements in practice, and I think we need to be concerned with what happens in practice. If the powers which are given are used sensibly, then we think an appropriate balance is struck between the rights that need protection and the interests which are being protected by this legislation. The context of this is that we all know that corruption can happen in organisations. We know that there are concerns about corruption in the police force as well as elsewhere. How then do you police the police? It is a problem that has been recognised for a very long time. You do it by conferring extraordinary powers. The extraordinary powers have the potential to affect the human rights of the community in some parts and of individual police members in other respects. Whether they do or not depends on how the powers are exercised, and that comes back directly to the first point we made.

Mrs PEULICH — I have two questions, if I may. Thank you for your submission. Having being born in a communist regime I am not much interested in the centralisation of power, dare I say. You were asking how do you police the police — a legitimate question that we are obviously all trying to come to terms with. How do we police a regime which breaks new ground or adopts new practices of investigation as well as legal proceedings? Are you in favour of a model of parliamentary oversight over and above just the annual reporting? Do you have a view on that?

Mr BURNSIDE — I think parliamentary oversight is a good idea, and I was inclined to agree with the comments of the previous witness, who was concerned that there is only a discretionary ability to report to Parliament, and even then it might only be an anodyne report.

Mrs PEULICH — Financial reports.

Mr BURNSIDE — Because until democracy completely fails, Parliament is where the buck stops, and on issues like this it seems desirable that Parliament should have an oversight. I rather thought, though, that Parliament might have oversight automatically by virtue of the director being an officer of the Parliament. How that works you would know better than I, but one way or another parliamentary oversight I think is a good idea.


Mrs PEULICH — My second question relates to your comments in relation to use of firearms and your view that training is required, although the bill is silent on that. Even though those officers may be subjected to a training program similar to that of the police force, they do not have the same regulations in terms of how those firearms are used, so do you feel that would adequately meet your concerns?

Mr BURNSIDE — I think they ought to be subject to the same prudential regime as police officers who are given permission to carry firearms.

Mrs PEULICH — Because here of course they can use them offensively, not just defensively, under this particular bill.

Mr BURNSIDE — Yes, that is right. I suppose it depends on what that means. I had understood that as being equivalent to the ability of police to use weapons offensively, in the sense that it has to be on occasions that justify the use of weapons. But all the safeguards that are supposed to control police use of offensive weapons ought to be implanted in this. As I say, we understand why going to the police for authority may not be possible or sensible in some circumstances, but you still need the same sort of prudential regime.

Mrs PEULICH — If I may, one last question, just coming back to the definition of the public authority. Now, where is that?

Mr BURNSIDE — Section 3, on page 7.

Mrs PEULICH — Do you feel that that is teased out sufficiently? Are there public authorities that we cannot envisage?

Mr BURNSIDE — No. I think it reaches public authorities that I cannot envisage. I did not have time to explore it to find out what sorts of bodies might be reached by it, but it is very wide, and that is probably enough to make the point.

Mr JASPER — Mr Burnside, I have noted the comments and the criticism or the suggestions on various clauses. But overall, does Liberty Victoria support the legislation? And what are your comments in relation to the use of the charter of human rights now that we are having to deal with legislation and regulations?

Mr BURNSIDE — I think, overall, we are not opposed to the bill. We think, subject to the comments we have made, that the balance between human rights and the objectives which are desirable has been appropriately struck. Does that deal with your question? I am not sure whether I got the second half.

Mr JASPER — No, just an overall comment I was looking for.

Mrs PEULICH — So it has been appropriately struck, notwithstanding your comments about how it could — —

Mr BURNSIDE — Subject to our comments.

Mrs PEULICH — Right.

Mr BURNSIDE — Because a great deal is going to turn on exactly how the powers are used. That is why we are concerned about the qualifications of the director — they are too broad — and why we are concerned about the way in which the director’s authority can be delegated to any number of people for an indefinite time. Then I think what you are doing is giving exceptional powers to people who may not have the wisdom to use them in appropriate ways. That is where the rights in the charter may lose out unreasonably.

Mrs PEULICH — So five years of legal experience does not quite make it?

Mr BURNSIDE — No; absolutely not. I am sorry.

Mr SMITH — I am just after your opinion on how the courts would test the powers used by the OPI, like those set out in clause 69 or 107. How would they test that those powers are being used for a proper purpose?

Mr BURNSIDE — Let me go to it specifically; 69. This is a pretty standard provision. You can be compelled to answer questions. Courts do not have a look-in about whether that compulsory power is being


appropriately used; it is simply a power which is given. Were you concerned about the exceptions to the power — in other words, the way in which the evidence could be used?

Mr SMITH — Yes, that is right.

Mr BURNSIDE — Paragraphs (a), (c), (d) and (e) all seem to be fairly orthodox exceptions. They are orthodox exceptions because they go to the process in which the person has refused to give evidence. Obviously if you have got compulsory powers to take evidence and a person perjures themself in that process, it seems reasonable that you can use the answer they gave to demonstrate that they perjured themself. Likewise, contempt; if they misbehave themselves or if they refuse to answer questions and the like, then the transcript has to be available to demonstrate that that is what happened. Those four subparagraphs are all directed at protecting the process that we are concerned with — namely, the compulsory taking of evidence. It is paragraph (b) that is the real exception: that means the evidence that you are required to give can be used against you for breach of discipline. Given that it is the OPI, given that the OPI is supposed to oversee the conduct of the police force, there is an interesting policy question of whether they should be able to force people to reveal their own breaches of discipline. I am assuming a breach of discipline is a much lower order thing than a criminal offence. It looks like the thin end of the wedge, so that is a reason for concern. Otherwise, it is an unexceptional provision.

Ms KING-SIEM — If I could just note that the same thing occurs in clause 125 as far as evidence given to the SIM — the same thing for discipline against personnel of OPI.

Mrs PEULICH — Just in relation to that, if that evidence or information can be used to issue disciplinary proceedings by the police department, would that not then facilitate the escape clause or create an escape clause?

Mr BURNSIDE — I am not sure I understand the question.

Mrs PEULICH — It is called the Office of Police Integrity.

Mr BURNSIDE — Yes.

Mrs PEULICH — If the transgressions are of such dimension that they warrant dismissal or departure, immediate separation, is that system workable?

Mr BURNSIDE — It is clearly workable. The question is whether as a matter of policy it is a good idea. One consideration would be that you have got compulsory powers, you can force people to give evidence and you can therefore require them to say that they did this, that and the other, which constitutes a disciplinary offence, which could lead to an admonishment

Mrs PEULICH — Or a dismissal.

Mr BURNSIDE — Or, at the extreme, a dismissal. That seems a harsh result, that a person can be required to give evidence against themself that results in their dismissal from the force. On the other hand, the OPI is there in order to clean up the force or to keep it clean. If it can force people to give evidence that results in the bad egg being dismissed, then you might think that is a good result.

Mrs PEULICH — Dismissed, but corruption not necessarily extinguished.

Mr BURNSIDE — You would have to postulate particular cases. I suppose if the person who is dismissed has also given honest evidence, you have presumably reached out to other people. If you get compulsorily acquired evidence from officer A that implicates officer B, then there is no question that officer A can then be called into court and give evidence against officer B for an offence. There is no doubt about that at all. That is the point of gathering evidence like this. The sensitivity that people have traditionally is in being forced to give evidence that incriminates you. You are required to give evidence that can incriminate you, but it cannot then be used to convict you of an offence — but it can be used to sack you. There is a significant qualification on the usual position.

The CHAIR — I suppose the question there is whether that can be compatible with a person’s rights under the charter.


Mr BURNSIDE — It is contrary to the usual expectation that you cannot be required to incriminate yourself, but that expectation has been diluted by any number of acts — the Trade Practices Act, the Australian Crime Commission Act, the Corporations Law. Many of these modern acts now force people to give evidence against themselves, but it can only be used for limited purposes, because the ability to investigate things thoroughly is regarded as more important than the time-honoured privilege against self-incrimination. Then you are safeguarded by saying, ‘You can’t be sent to jail by virtue of your own word’. It is really a matter of balancing that ancient privilege against the desirable objective of cleaning up a police force — that is the question. Section 7 of the charter makes it clear that rights should not be diminished except for some reasonable purpose. What is reasonable involves weighing up incommensurable integers like the privilege against self-incrimination and the desirability of an honest police force. You cannot weigh those readily against each another, and yet you have to try and strike a balance between them.

Ms PULFORD — Mr Burnside, many of your comments have related to questions of policy. I think we have certainly heard loud and clear your views about the appropriateness of a director and the way in which they would sensibly use the significant powers that are afforded to them by the legislation. We will need to weigh and give consideration to that question of reasonable limitations in respect to incrimination and the way that it relates to discipline in the context where the objective of the legislation is to provide for a very rigorous system of ensuring that our police force is as good as it can be. Putting aside questions of policy and some of those observations about the way the powers could be used if very broadly interpreted or not applied in the way that I think we would want them to be intended, are there, in your view, other provisions that quite specifically offend the charter?

Mr BURNSIDE — Other than the ones we have talked about?

Ms PULFORD — Yes. Obviously the policy considerations are not so much the work of this committee but specific examples.

Mr BURNSIDE — No, I think we have covered all of the ones that seem to affect the charter.

Ms PULFORD — Right to life, protection and security, some of those that were raised in the submission.

Mr BURNSIDE — Yes, that comes indirectly through the creation of a new armed force in the community. But can I say the policy questions are really what section 7 of the charter requires because it involves balancing the rights on the one hand against the legitimate objectives of the OPI on the other, and striking a balance between them is where you get the reasonable trade-off that section 7 contemplates. So it is all in the area of policy, I think, which is why I cannot give a clear answer and really only want to suggest — —

Mrs PEULICH — We will be quoting you on that, Mr Burnside.

The CHAIR — Obviously, our role is to inform the Parliament so that they can make those decisions.

Mr BURNSIDE — Okay, since you say you are going to quote me, I may have overstated saying it is all in the area of policy. It involves necessarily a substantial consideration of policy matters.

Mrs PEULICH — I agree with you.

Mr BURNSIDE — It may go beyond pure policy.

The CHAIR — Thank you very much. Thanks to Mr Burnside and Ms King-Siem, and again thank you to all those in Liberty Victoria who contributed to what has been a very good submission, and I am thanking them for being involved with our committee and our work.

Mr BURNSIDE — Thank you. Can I say that although Georgia only spoke a little bit she was absolutely instrumental in preparing me to come along today.

Mrs PEULICH — No doubt the power behind the throne.

Mr BURNSIDE — Yes. The brains of the operation. Thank you.

Witnesses withdrew.





Members


Chair: Mr C. Carli


Staff


Witness

Dr G. Hill, director, legal branch, Department of Premier and Cabinet (sworn).


The CHAIR — The next witness will be Dr Graham Hill, director of the legal branch, Department of Premier and Cabinet. Dr Hill, thank you for attending these public hearings. This is a hearing on the Police Integrity Bill. The committee is seeking written and oral evidence as to whether provisions in the proposed law constitute undue trespass to rights or freedoms and/or whether the provisions are incompatible with the rights set out in the Charter of Human Rights and Responsibilities. Dr Hill, anything you say or publish before the committee today is protected by parliamentary privilege; however, once you leave the hearing anything you say or publish outside the room is not protected. In the next day or two, you will be provided with a draft copy of the transcript of your evidence. You will have an opportunity to correct anything that the Hansard reporters may not have correctly reported, however this is not an opportunity to add anything additional or different to what you actually said at these hearings. I would like to invite you now to make a statement to the committee on the relevant issues that you see may be involved in the proposed legislation. Following your opening statement, members of the committee may ask questions. The committee has determined that it will take sworn evidence. Dr Hill, can you just give us your organisational position, please?

Dr HILL — I am the director of the legal branch at the Department of Premier and Cabinet.

The CHAIR — Thank you.

Dr HILL — The Office of Police Integrity was set up in 2004. The Police Regulation Act, which governs the Office of Police Integrity, and still does, required the special investigations monitor to report back to the Parliament within three years, and the report had to be on the provisions governing the OPI and how they were working. The SIM did report to the Parliament, I think, in October 2007, and one of the recommendations in the SIM’s report was that the OPI be governed by a stand-alone act, hence the creation of this bill that you are scrutinising at the moment.

The bill provides for a stand-alone act for the Office of Police Integrity, and it implements 19 recommendations made by the special investigations monitor to amend the OPI legislation. It also re-enacts all of the OPI provisions that are currently in the Police Regulation Act. So it goes into the Police Regulation Act, lifts those provisions out of it and it will put them in this stand-alone act. That is an important point for the committee to consider because it is a re-enactment, and a lot of the provisions that have been the subject of comment this morning are ones that are simply being re-enacted and have been there since 2004. Obviously, that does not relieve the committee of the obligation of scrutinising them. The fact that they are being re-enacted is irrelevant in that sense, but where it is relevant is that it is important that nobody thinks that this is a new direction that Victoria is going in or that this is something new or a departure. A lot of these provisions are simply re-enactments of what is already there.

The bill also makes some improvements and enhancements to the OPI. For example, it provides for legal assistance to be given to witnesses who appear before the OPI and does other things. I appear before this committee as a public servant and so I am apolitical and impartial. I am not here to defend policy but I can explain policy and speak to the bill. In that context, in regard to some of the issues that have been raised this morning, I might just mention access to the court — that is, the immunity that the OPI has under its legislation — oversight by its watchdogs, and protection of OPI documents from subpoena. I might mention those issues because in all three cases I think that the bill represents a quantum advance on what the current law is. As a result of the special investigation monitor’s recommendations and other decisions that have gone into creating the bill, and given that one of this committee’s terms of reference today, as the chair read out, is to see whether there is undue trespass on rights and freedoms, it may not be amiss to look at these three matters.

Access to the courts — that is, the ability to seek judicial review of what the OPI does — is actually enhanced by this bill over the current law. At the moment you could take the OPI to court if the OPI is investigating a complaint and you say the OPI lacks jurisdiction. You could also take the OPI to court if they are acting in bad faith. Those provisions are retained in the bill, but the bill also introduces the idea of a critical incident. So if there is an injury that results from use of a motor vehicle, or someone being in the custody of the OPI, or use of force, that sort of thing, then there is also recourse to the courts in the normal way where a critical incident occurs.

On the second point — oversight of the OPI by its watchdogs — the role of the SIM is retained in the bill exactly as it exists at the moment, with one change, and that is that the time for complaining to the SIM has shifted from a 3 day time limit to 90 days. So, in fact, recourse to the SIM is increased. The bill also enhances the Ombudsman’s role. Now that the Ombudsman and the director, police integrity, offices are held by separate people, the bill enhances the Ombudsman’s role by clause 26, which clarifies that you can disclose information to the Ombudsman


without fear of breaching the confidentiality provisions. If you get a witness summons and a confidentiality notice, you can raise that with the Ombudsman. You can also complain to the Ombudsman, and the Ombudsman has been investigating complaints.

The third matter is protection of OPI documents from subpoena. The bill does not provide a blanket protection of OPI documents in the same way that New South Wales does where the Police Integrity Commission Act provides that you just cannot subpoena Police Integrity Commission documents to court in a criminal proceeding. This bill does something different. The court still retains its discretion. Clause 107(7) states that at the end of the day the court can decide that the documents must go out to the litigant who is trying to subpoena them because the circumstances exist. Similarly, the court retains discretion as to the procedure in deciding whether documents should go out, whether it would be a confidential hearing, a closed court, confidential affidavit or an ex parte hearing. Similarly, the bill makes procedures and tools available to the court that might not be available at common law. So, for example, the use of special counsel to test the evidence is provided for in the bill but might not be available at common law.

In terms of those three matters — access to courts, oversight of OPI and protection of OPI documents — the bill actually would take the law in the direction that the people who have made submissions here today are suggesting that it should go. The government’s view is that the bill complies with the charter, and that is set out in a very detailed statement of compatibility that this committee commended the government on. The bill was crafted to meet the charter.

Two other points that I would like to make are that often when talking about OPI hearings people become confused, or it is dealt with in the same way as a criminal trial. OPI hearings are examinations in the course of someone’s employment with Victoria Police. They are not criminal trials; they are completely different. The abrogation, for example, of the privilege against self-incrimination, that applies to OPI hearings, but evidence given that goes beyond that privilege is not admissible in subsequent court proceedings. It is important to keep in mind that we are talking about hearings in terms of an investigation or an examination rather than a criminal trial, and comparisons between OPI hearings and how the courts work in some ways are spurious.

The other point I would like to make is, in regard to firearms the general law applies to firearms. Somebody using a firearm or carrying a firearm is not immune from the normal law that applies. Chair, I have taken extensive notes on what other speakers have said. I do not propose in my opening statement to go through them, but I am able to discuss any matters of concern.

The CHAIR — Terrific, Dr Hill.

Mr JASPER — Through you, Chair, would you be able to give comment back, when you get the transcript, to the committee in writing; so a written response to those various issues?

Dr HILL — I appear here of course as a representative of the minister, so I would need to go back to the minister and ask him whether we could do that.

Mr JASPER — Subject to the minister’s approval, would you be able to provide that information?

Dr HILL — We will raise that with him.

Mr BROOKS — Thank you, Dr Hill. Just one question — it is an issue that was raised by an earlier witness, Mr Davies from the Police Association, in relation to an incident. He gave an example of where a member of the OPI under this act might be in, say, a police station with a cup of coffee, drop the coffee and be called on to other matters; and a child entered the police station and was injured. The argument was put that that person would be protected under sections 109 and 110 of this bill and therefore would not be liable for any action. I wanted to ask you for your view on that particular point of view, particularly in light of the description of critical incident in this bill and the fact that in the example that was given it was suggested by Mr Davies that if that child was permanently impaired, would that qualify as a critical incident, and therefore would that person be afforded protection under this bill?

Dr HILL — It is extremely difficult to think of an example where a person would not have recourse against the OPI, because if the OPI is acting in bad faith, then the door is open to legal action. If it is a critical incident, the door is open to legal action, so it is hard to think up an example. Perhaps the example that was


proffered is itself an example of how difficult it is to think up circumstances, because that was a fairly extreme scenario. The first issue that would have to be examined is whether the OPI was acting in bad faith. That is a fairly wide avenue. You would also have to examine whether a critical incident had occurred — in other words, whether there was use of force, whether a person was in custody; those kinds of things, and they generally apply. I think in the example that was given, occupiers liability law might well kick in, and the person might have recourse against the occupier, which if it were a police station, would be the state of Victoria that has a duty of care to keep the floors clean.

Mrs PEULICH — Dr Hill, thank you very much for coming along at such relatively short notice and sitting through the other evidence, as you have. Just some small questions: you mentioned, and it has been a long time since I read the SIM report of October 2007, the adoption of 19 recommendations; do you recall the total number of recommendations?

Dr HILL — I believe there were 21.

Mr SMITH — I think 16 were adopted. I think that was what the evidence was earlier.

Mrs PEULICH — Okay. You also mentioned that provisions out of the police regulations have been lifted into the bill. You heard Julian Burnside’s comment and concern about authorised officers obviously not having the same training; that indeed there are no qualifications specified in the act. Do you think that that would ameliorate any sorts of concerns that the public may have about the manner in which investigations would be conducted and in particular the use of weapons, given that authorised officers do not have qualifications specified as is the case in the police regulations?

Dr HILL — I am not at all certain that it is the case in the Police Regulation Act. I think that standards within Victoria Police are often done by its internal regulations and its policies and procedures rather than the statute, so I am not sure that is the case. In terms of this particular bill, it would seem cumbersome to regulate those sorts of details in an act. It is an operational question for the OPI as to what policies and procedures they have in place. In doing this bill, of course, a lot of inquiries have been made and careful consideration has been given to those issues, and there have been discussions with the OPI about it, but I think I should leave it to it to say what policies and procedures it would have.

Mrs PEULICH — I note your staff have an internal manual, a draft guide, as to the application of the human rights charter and the legislative process, which one would expect. Were there concerns about this legislation that were generated by the consideration of that document?

Dr HILL — I am unable to talk about confidential communications between the public service and the minister, so I would not comment on that. But clearly this legislation is broad, extensive and engages a lot of human rights issues, and very careful consideration needed to be given to the charter of human rights.

Mrs PEULICH — Do you have concerns about the power of entry, search and seizure in the manner in which it is implemented here through this bill, being as broad as it is, and given that it can be applied to any public authority? I would also welcome your comment as to what you would see as fitting under that banner, under that umbrella.

Dr HILL — First of all, the bill distinguishes between public authorities and other premises — people’s homes, for example, where a search warrant is required. It would give the director power to enter public premises, which I believe he currently has under the Police Regulation Act; so does the Ombudsman, and so does the Auditor-General. The idea is that there is the distinction between public and private, and if they are government offices or if it is a police station, which is more relevant to this particular example, then you would expect the person to have a right of entry rather than trying to secure an invitation — and a right of entry without a warrant. I think that there are appropriate balances, as Mr Jasper pointed out in his question to Mr Burnside.

Mr JASPER — Dr Hill, the main thing I think, firstly, is that we hope we can get some approval from the minister for you to respond to the issues raised by the Police Association and Liberty Victoria, which I think we would find useful. On the recommendations, you said that the legislation is virtually a mirror of what was contained in the previous legislation and now coming into a separate bill, the Police Integrity Bill. Of the 19 recommendations — there seems to be some confusion as to how many recommendations were adopted — was it new information put into the legislation or was it basically a re-run of the legislation, which was previously


adopted? The third issue is the compatibility one; I would be interested to get responses in relation to that because, in particular, Liberty Victoria and of course the Police Association mentioned concerns in relation to the charter of human rights, which seems to be the key issue of concern. It would be good to be able to get your responses in relation to the charter.

Dr HILL — There were three points there. The first one concerned the minister and whether he would — —

Mrs PEULICH — Allow you to respond.

Dr HILL — Yes. We will take that one on board and find out. Your second point concerned — —

Mr JASPER — The recommendations.

Dr HILL — Of the special investigations monitor.

Mrs PEULICH — How many?

Dr HILL — I believe that 19 of the recommendations have been implemented, or would be implemented by the bill.

Mr SMITH — Out of how many?

Dr HILL — Out of 21, but with a report like the special investigations monitor has, there can always be issues about how you count them and what constitutes full or partial implementation. So, yes, the bill re-enacts the Police Regulation Act. It does the 19 things that the SIM recommended that it do. There are some other enhancements and improvements as well. It is a bit more than just a mirror re-enactment of the existing law.

Mr JASPER — Plus the recommendations and some other issues that you might have added in.

Dr HILL — Yes.

Mr JASPER — Thank you. Then the third issue is a compatibility one with the charter.

Dr HILL — It is the government’s view that this bill is compatible with the charter in every respect, and the statement of compatibility sets out, clause by clause, how we think it is, and nothing that has been said at this hearing today would alter that.

Mr SMITH — Just on that, you would say that the evidence presented so far is pretty much baseless?

Dr HILL — No, I would not put it like that. My comments were far more narrow than that. That is, that in the issues raised in detail by each of the witnesses, nothing in that would demonstrate that the charter had not been complied with, with this bill. I am very happy to answer any specific issue that they raised today.

Mr SMITH — After the minister says that you can?

Dr HILL — No, in verbal questions right now.

Ms PULFORD — The question about the broad range of authority and the wide-ranging scope that could be applied, particularly in terms of the delegation of powers that Mr Burnside raised, could you comment on that, and also about the experience of the director prior to appointment?

Dr HILL — I think those are quite recent amendments to the Police Regulation Act. In fact, I think from memory, they came into operation from 1 May, because from 2004 George Brauer was the director, police integrity. I know he has a law degree, but I am sure he has practised law for five years, so I do not think he would have satisfied the current qualifications. They have come into operation relatively recently. The Parliament quite recently has put a qualification in — and that is, that the person should be a legal practitioner for five years or more. The delegation to use coercive powers can also only be to a person who satisfies that qualification, which is the same qualification necessary to be appointed as a Supreme Court judge.


To raise the threshold any higher to, for example, a Supreme Court judge, would limit the pool of candidates that a future government could choose from for a director, police integrity. In the director, police integrity, you are looking for a person who can lead an organisation of a hundred people; who knows something about people management, strategic leadership; who knows something about investigation technique and who also has legal skills to wield the powers that he has. I am not sure Supreme Court judges satisfy all of those qualifications, or that that very tight definition of who could be appointed as director would be beneficial.

Mrs PEULICH — You would anticipate that it would be unlikely to be a judge?

Dr HILL — The current director is a former judge, as is the current special investigations monitor. I cannot comment on how future governments might choose. In my answer I was simply explaining the policy which was publicly stated at the time — that is, that you want to have a fairly wide pool of candidates that you can choose from, not too narrow.

The CHAIR — I just want to ask a question about clause 69 on compulsory questioning. We heard from Liberty Victoria that essentially they are fairly orthodox, almost stock standard, in Victorian law except for one part, which is clause 69(3)(b) and the issue of that breach of discipline. Liberty Victoria had some concerns about that. I wonder if you could pick that up?

Dr HILL — Again, if we think of it conceptually in two parts; one is an investigation into somebody’s employment with Victoria Police, the second part being exposure to a criminal trial prosecution to sanction. It is that first part, the course of their employment and disciplinary action that could be taken in the course of the employment, where information that is adduced using that coercive power would be available for use in disciplinary action. But it would not extend beyond that to criminal trial. The line is drawn between employment matters and matters of the criminal law.

Mrs PEULICH — In relation to the authority to possess, carry and use defensive equipment — just in reading through those provisions — in your earlier comments you said that much of the detail was just a lift out of the police regulations. Is it your view that this is just a lift out of the police regulations in terms of the manner in which weapons can be used?

Dr HILL — No. Defensive equipment and firearms — those two clauses are new, and are not currently found in the Police Regulation Act.

Mrs PEULICH — On a point of clarification, I think you implied that the delegation of power by the director, police integrity, could only be to a suitably qualified person. That was not my reading of the bill. Could you point to the provision where that is contained? I think in fact that the point being made by previous witnesses was that there were no qualifications specified for the authorised officers?

Dr HILL — No, there are. I am looking at clause 21 of the bill which talks about delegation by director. Subclause (2) says that the director, by instrument, may delegate to a senior relevant person a coercive power. A senior relevant person is defined further on in the clause, on the next page in my draft, and in paragraph (a) it replicates the qualifications that the director has — able to be appointed as a Supreme Court judge. Therefore if the director was not conducting an examination him or herself, the director could delegate to a person who has those qualifications to conduct the hearing. As we saw, Murray Wilcox, an ex-Federal Court judge, or Hartog Berkeley, I think, have conducted hearings in the past for the OPI.

Mrs PEULICH — But these qualifications do not necessarily infer, or require experienced use of firearms, do they?

Dr HILL — This is a delegation to use coercive powers. I think you might be talking about clause 103.

Mrs PEULICH — Yes, sorry, it was.

Dr HILL — Which authorises the director to — —

Mrs PEULICH — To authorise use.

Dr HILL — Yes. No, you are correct.


Mrs PEULICH — Okay. Right.

Dr HILL — There is nothing about experience there.

Mr SMITH — Dr Hill, can I just refer you to clause 49? The clauses before it basically set out how the director can request the chief commissioner to take some action or an investigation.

Dr HILL — Yes.

Mr SMITH — Paragraph (b) of that clause basically says that there is an option for the chief commissioner to tell the director that the investigation is not going to take place.

Dr HILL — Yes.

Mr SMITH — Where does that leave the request for the director?

Dr HILL — The director would then make an adverse report to Parliament to say that he had recommended something and that no action had been taken.

Mr SMITH — Thank you.

Mrs PEULICH — Given the preference of previous witnesses for some sort of parliamentary oversight, would you see that the main features of this bill were compatible with a parliamentary oversight mechanism — over and above the annual reporting?

Dr HILL — First of all I could not comment on the policy question of whether there should be — —

Mrs PEULICH — Just a functionality question.

Dr HILL — I am sure the bill would be compatible, or could be reworked to have that — —

Mr SMITH — Just to clarify my last question on clause 49, is there anything in the legislation which compels the director to make an adverse report to the Parliament?

Dr HILL — No.

Mr SMITH — Potentially it can just go away?

Dr HILL — Yes. You are talking about circumstances where the director has recommended that something should happen, has asked the chief commissioner to do that — —

Mr SMITH — To investigate.

Dr HILL — And she has exercised her operational independence to say, ‘No, I am not going to do it’.

Mr SMITH — There is nothing to compel the director to tell the Parliament that has happened?

Dr HILL — No.

The CHAIR — Thank you very much, Dr Hill, for sharing your morning with us. That concludes the first part of our hearings today.

Witness withdrew.

Documents

SCRUTINY OF ACTS AND REGULATIONS COMMITTEE Inquiry into ... · being the director, police integrity, or the special investigations monitor — could use the compulsory questioning