Re Application under the Major Crime (Investigative Powers) Act 2004 (Supreme Court) – Feb 2009

The case was an application for a coercive powers order under the Major Crime (Investigative Powers) Act 2004, which compels a person to appear before the Chief Examiner to provide evidence. Section 39 of the Major Crime (Investigative Powers) Act 2004 expressly removes a person’s privilege against self-incrimination.

The Commission intervened in this matter to make submissions to the Supreme Court about how the Court should interpret the Major Crime (Investigative Powers) Act 2004 in accordance with the Charter.

The Commission submitted that the right to a fair hearing and the a right not to be required to incriminate oneself (in sections 24 and 25(2)(k) of the Charter) mean that, where the privilege against self-incrimination is abrogated a person must be provided with immunity from the direct and derivative use of their evidence against them. The Commission argued that section 39 of the Act could be reinterpreted in accordance with the interpretation obligation in section 32 of the Charter, consistently with its purpose, to read a derivative use immunity into section 39 so as to be compatible with the human rights in sections 24(1) and 25(2)(k).

The Supreme Court accepted the Commission’s submission.