You may have heard of ICAC, a NSW body which investigates corruption in a range of public bodies, including the police force. Victoria has a similar organisation called IBAC, or the Independent Broad Based Anti-Corruption Commission.
Under the Victorian IBAC Act, the Commission can investigate police misconduct – and those who are called before the Commission do not have a right to silence, unlike voluntary interviews at police stations.
Last year, we watched respected Crown Prosecutor Margaret Cunneen take on ICAC and win in the High Court.
Just this month, IBAC faced the High Court too, when its powers were challenged by the Crown.
Investigating Police Misconduct
The situation started when IBAC began investigating allegations of police misconduct in Victoria.
Certain members of the Ballarat police station were alleged to have used unnecessary and/or excessive force on several occasions, particularly against women.
IBAC was specifically interested in allegations of excessive or unnecessary force, breaches of human rights and whether internal police investigations were carried out properly.
But when IBAC wanted to call police officers to testify, the Crown applied to the Supreme Court of Victoria for orders to stop this, or at the very least, to keep the proceedings private.
The Crown was unsuccessful in the Supreme Court, and again in the Court of Appeal.
It then appealed to the High Court arguing that IBAC could not compel officers to testify, and that calling them to do so could breach the privilege against self-incrimination.
The Companion Principle
The High Court pointed out that a fundamental principle of the criminal justice system is that the prosecution bears the onus of proving a person’s guilt – which is known as the ‘presumption of innocence’.
The Companion Principle says that a defendant cannot be required to assist in creating that proof. Of course in this case, the officers in question had not yet been charged with an offence, so there was a dispute over whether or not the principle applied.
The High Court found that:
“In the present case, the companion principle is not engaged because the appellants have not been charged; and there is no prosecution pending.”
The Court decided that:
“The appellants’ proposed construction [of the Act] would deny the IBAC access to precisely the kind of information about matters of grave public interest that may bear upon the discharge of its functions from the very people who are likely to have that information and who may be the only people who do.
This would tend to frustrate the statutory objective of identifying and reporting on police misconduct…
It is also to be borne in mind here that the appellants are duty-bound to give an account of their conduct in the course of their duties by reason of their membership of a disciplined police force.”
Accordingly, the Court unanimously agreed with the Court of Appeal, and refused the Crown’s application.
All too often, police who engage in serious misconduct are never made to face the music. It is therefore encouraging that there is an avenue for police officers suspected of abusing their power to potentially be
By the same token, it is concerning that the right to silence and the right against self-incrimination can be chipped away by legislation such as the IBAC Act.
Similar provisions exist in the ICAC Act in NSW – section 37 of which removes the right to silence:
“A witness summoned to attend or appearing before the Commission… is not entitled to refuse… to answer any question relevant to an investigation put to the witness…or to produce any document or other thing in the witness’s custody.”
ICAC’s perceived powers were significantly cut in 2015 by the Cunneen case – but the ICAC Act and its equivalents in other states are part of a worrying trend in the removal of fundamental legal protections such as the ‘right’ to silence, the ‘right’ against self-incrimination and the presumption of innocence.