The federal Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) comes into force today. At the Bill’s second reading speech in March, Minister for Justice Michael Keenan explained that the Bill responds to a set of recent court decisions on the powers of crime commissions (as discussed by Anna Dziedzic here, here and here.) In its X7 decision from 2013, a narrow majority of the High Court held that the Australian Crime Commission could not use its compulsory examination powers to examine a person charged with drug trafficking offences about those offences, while a later decision overturned drug convictions where the trial prosecutors had been illegally given access to transcripts of compelled examinations by the NSW Crime Commission. According to Keenan, the effect of these decisions have been felt well beyond the world of drug prosecutions:

These decisions have had a significant negative impact on the operations of the [Australian] Crime Commission and the [federal Law Enforcement] Integrity Commissioner. For example, following the decision in X7, the Crime Commission has stopped examining anyone who has been charged with an offence where the questioning might touch on the subject matter of the charges. This has already prevented the Crime Commission from obtaining valuable intelligence about the methodologies and activities of those involved in serious criminal activity, including recruiters and facilitators of foreign fighters and their links to other individuals.

The Act amends ss 24A and 25A of the Australian Crime Commission Act 2002 (Cth) to permit ‘post-charge’ examinations, even when those questions directly relate to the subject matter of yet-to-be-resolved charges. Other provisions narrow the Commissioner’s obligation to suppress the transcripts of compelled interrogations and specify when prosecutors may be given those transcripts and evidence derived from them, including a power for courts to permit the release of any such material to prosecutors of the person who was examined if required ‘in the interests of justice’. Both these changes go significantly further than a statute responding to the same cases enacted in NSW last year.

The federal Act has broader significance in how parliaments interact with High Court decisions interpreting statutes that touch on fundamental rights or freedoms. According to the Bill’s explanatory memorandum:

These amendments are based on the ‘principle of legality’, identified by the majority of judges in X7, which requires ‘that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness’.

Interestingly, Nettle J (who was appointed after these decisions were made) reportedly identified them as amongst Hayne J’s finest contributions to the law in his remarks at last week’s Centre for Comparative Constitutional Studies Constitutional Law Conference. As I outlined in my paper at that conference, the current law was developed in light of earlier High Court rulings that (like the more recent ones) were less than clear on the nature of the common law’s protections for criminal defendants and the type of statutory language that would displace them. As well, the Court is yet to address the extent of the federal parliament’s constitutional power to enact statutory changes of this sort. The Act is, accordingly, full of ‘severance’ clauses that seek to preserve as many parts of the legislation as possible even if some prove to be invalid under Chapter 3 of the Constitution.

The Act’s ultimate fate may depend less on the Constitution than on the courts’ inevitable role in the statute’s operation. Not only do the courts interpret such legislation and have key discretions under it (such as when to permit the distribution of information to prosecutors), but they also control criminal trials themselves, including whether or not such trials can go ahead. The Bill’s explanatory memorandum repeatedly cites a Western Australian trial ruling in a tax matter that a stay is not mandatory even when prosecutors have access to compulsory interrogations, so long as that access was lawful and gave the prosecutors no demonstrable advantage. However, the High Court is yet to hear an appeal on this point. It may have the opportunity next week, when it considers a special leave application by two convicted tax offenders who argue that their trial was rendered unfair by the dissemination of their own compulsory examinations by the Australian Crime Commission.