The High Court has dismissed an appeal against a decision of the Victorian Court of Appeal on the powers of Victoria’s anti-corruption commission. IBAC sought to hold a public examination of the appellants, who are two police officers accused of assaulting a woman in custody and who face criminal charges in relation to that incident, pursuant to s 115 of the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic). The VSCA upheld the trial judge’s holding that the IBAC Act permitted the examination of the appellants about facts that were also relevant to the ongoing criminal investigation. Before the High Court, the appellants argued that the IBAC Act did not contain any express words or necessary intendment that abrogated the privilege against self-incrimination or the companion rule (that a prosecutor cannot compel an accused to assist in discharging the prosecution’s onus of proof) that would allow IBAC to carry out the examination of the appellants.

The Court unanimously dismissed the appeal. The joint judges (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ) rejected the appellants’ central contention that the IBAC Act does not authorise an examination or the giving of answers that might incriminate an examinee when there are reasonable grounds to suspect that that person might be guilty of an offence. In dismissing the appellants’ first argument that authorising an examination would violate the principle of legality (that a statute will only abrogate common law rights where the language reflects parliament’s clear intention to do so) as in X7, the joint judges noted that in this instance the companion rule (the common law principle that an accused cannot be compelled to testify) is not engaged because the appellants have not yet been charged (see at [40]–[48]), and the Court declined to extend the operation of the principle to cover this situation (see [48]–[51]). Gageler J agreed with the orders proposed by the joint judges, and agreed with the reasoning of the VSCA that the Act manifests an unmistakable legislative intention that an examinee might be a person whose corrupt conduct or criminal police misconduct is the subject-matter of the investigation (at [73]ff). As Jeremy Gans notes, Gageler J also made several comments on how the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) may have affected the construction of the IBAC Act, which were not raised by the parties (see [71]–[72]).