Today, the High Court unanimously rejected an appeal by two anonymous Victorian police officers who argued that they should not be publicly examined by Victoria’s anti-corruption commission about an alleged assault of a detainee in a Ballarat police station because they had been notified that they may be prosecuted for the assault. The Court held that its recent decisions on a common law rule obscurely named the ‘companion principle’, which prevents executive action that interferes with the accusatorial process unless it is allowed by clear legislative language, does not apply to people who are not yet formally charged with an offence. Six of the Court’s seven judges explained their reasons in the usual short format that characterises the French court. But Gageler J added a more interesting concurrence discussing a statute the majority didn’t mention: Victoria’s Charter of Human Rights and Responsibilities Act 2006. This prompts the question: why wasn’t Victoria’s landmark human rights statute addressed by the balance of Australia’s peak court in a major decision involving the human rights of Victorians under a Victorian law?

Justice Gageler provides the short answer:

How the companion rule, operating as a common law principle of interpretation in Victoria, might relate to the human right recognised under the Charter of Human Rights and Responsibilities Act 2006 (Vic) of a person charged with a criminal offence “not to be compelled to testify against himself or herself or to confess guilt” was not explored in argument and is best left to another day.

Neither the police officers nor IBAC raised the Charter in their arguments (although it was mentioned by IBAC in its submission and orally). As an adversarial court itself, the High Court typically only addresses points of law the parties raise, although it sometimes raises points itself because it is loath to decide cases in an artificial way (for example, members of the Court themselves raised an otherwise neglected Charter provision in a 2011 case.) The Charter itself is also seen as containing its own limits on when it can be addressed by a court, because it requires a party to the litigation to notify the state’s Attorney-General and rights commission of Charter arguments raised in some courts. In 2015’s review of the Charter, members of Victoria’s criminal bar revealed that they are now loath to raise the Charter because of the complications the statute brings (at p.167.)

The absence of discussion of the Charter (or any other relevant statute) in decisions like these is unfortunate for several reasons: there is potential for injustice in the case at hand due to the omission and there is also uncertainty about whether the Court’s ruling will hold in future cases where the statute is raised. Indeed, the Charter was of potential importance not only to the police officers (because of the statute’s rights against self-incrimination) but also to IBAC (because its functions include ensuring that the Charter is considered by police officers.) Justice Gageler’s concurrence suggests that he is not concerned about these problems, because of his view (untested in argument) that the Victoria’s anti-corruption statute’s terms were clear enough to displace any impact of Victoria’s human rights statute. Instead, he raises a separate concern: that the majority reached its conclusion about the meaning of Victoria’s IBAC statute without any consideration of the detailed ‘statement of compatibility‘ with Charter rights that accompanied the relevant bill:

An interpretative technique which involves examining a complex and prescriptive legislative scheme designed to comply with identified substantive human rights norms in order to determine whether, and if so to what extent, that legislative scheme might butt up against a free-standing common law principle is inherently problematic. The technique is even more problematic if the common law principle lacks precise definition yet demands legislative perspicacity and acuity if it is not to create of its own force an exception to the scheme that is spelt out in the statutory language.

His concurrence raises the broader question of why the Court (and the parties) focus so much attention on a common law interpretative principle (one he characterises as ‘recently’ developed in case law that came just after IBAC’s own creation in 2012) in a jurisdiction that already has its own detailed regime designed to ensure that similar rights are taken account by legislatures and courts.