4. Compulsory and Coercive Examinations (Vic)¶
Scope and currency
Cheat sheet · CPA Pt 4.3 · Major Crime (Investigative Powers) Act 2004 (Vic) · IBAC and ACC · current to 13 August 2026
First, name the regime — there are two very different things called a "compulsory examination". The first is the judicial compulsory examination hearing in Pt 4.3 of the Criminal Procedure Act 2009 (Vic) (ss 103–106), by which an informant compels an uncooperative witness to attend the Magistrates' Court and be examined in chief before the committal. The second is a coercive examination before the Chief Examiner under the Major Crime (Investigative Powers) Act 2004 (Vic), before IBAC, or before an examiner of the Australian Criminal Intelligence Commission, in which the privilege against self-incrimination is abrogated by statute. The tests, the safeguards and the consequences of getting it wrong are entirely different. Gate 1 tells you which one you are in.
GATE 1 Which regime is this?
→ Informant wants a reluctant witness examined before the committal: Criminal Procedure Act 2009 (Vic) Pt 4.3, ss 103–106. Go to Part A. → Police want an organised-crime suspect or witness interrogated under compulsion: Major Crime (Investigative Powers) Act 2004 (Vic) — Supreme Court coercive powers order plus a Chief Examiner witness summons. Go to Part B. → Investigation of corrupt conduct or police misconduct: Independent Broad-based Anti-corruption Commission Act 2011 (Vic) — IBAC witness summons and examination. Go to Part B. → Commonwealth serious and organised crime: Australian Crime Commission Act 2002 (Cth) — Board determination for a special ACC operation or investigation, then examination before an Examiner. Go to Part B. → Defence wants a witness's evidence taken before trial: this is not a compulsory examination. Since 28 December 2025 the pathway is Criminal Procedure Act 2009 (Vic) ss 198, 198A and 198B; the Basha procedure is abolished by s 198C.
Part A — CPA Pt 4.3: the compulsory examination hearing (ss 103–106)¶
A1 Section 103 — application for the order
Who and when. Only the informant may apply (s 103(1)). The application may be made only after a charge-sheet has been filed against the accused in relation to the matter, and before the committal hearing commences (s 103(2)). The late-application filter. If the application is made after the committal mention hearing, the Magistrates' Court must not make the order unless satisfied that it is in the interests of justice to allow the making of the application at that time (s 103(3)). Mandatory disclosure by the informant (s 103(4)). The informant must inform the Court: (a) whether the person sought to be examined has been asked by the prosecution to make a statement and has refused to do so; (b) whether the informant is aware whether that person has obtained legal advice concerning the proposed examination; © whether that person is or has been a suspect in respect of the matter; (d) whether that person has been made aware of the application; and (e) any other information prescribed by the rules of court. Notice. The application may be made with or without notice to the accused (s 103(5)). But if the person sought to be examined is or has been a suspect, the informant must give reasonable notice of the application to that person or to a legal practitioner representing that person, whether or not a charge-sheet has been filed or a charge determined against them (s 103(6)). The accused has no standing. Under s 103(7) the accused (a) is not a party to the application and (b) may not address the court on it. The practical consequence is that there is no contradictor: the Court itself is the only safeguard against the coercive power being exercised lightly.
A2 Section 104 — the order
The power. On the application of the informant the Magistrates' Court may order a person to attend before the court on a date fixed by the court for the purpose of being examined by or on behalf of the informant, or producing a document or thing, or both (s 104(1)). The test. The Court may make the order "if it is satisfied that it is in the interests of justice to do so" (s 104(2)). There is no other statutory criterion — this is the whole test, and it is where the argument is won or lost. Setting aside. The Court may set the order aside at any time, on its own motion or on the application of the informant or of the person sought to be examined (s 104(3)). This is the examinee's remedy — the accused cannot be heard on the original application, but the proposed examinee can apply to set the order aside.
A3 Section 105 — service and enforcement
Service. The informant must serve notice of the order on the person to whom it relates and on the accused (s 105(1)), in the prescribed form, personally on the examinee (s 105(2)). Enforcement by contempt. Section 105(3) applies s 134(1) of the Magistrates' Court Act 1989 (Vic) to a person ordered to attend as if that person had been summoned as a witness, had been given or tendered conduct money, and the order were a witness summons. A person who without sufficient cause refuses or neglects to attend or to produce documents is therefore guilty of contempt of court.
A4 Section 106 — how the hearing runs
Representation of the examinee. The person ordered to attend is entitled to be represented by a legal practitioner at the hearing and may address the court personally or through that practitioner (s 106(1)). Form of the evidence. The evidence must be sworn or affirmed and given by way of examination-in-chief, and recorded in the same manner as evidence at a committal hearing (s 106(2)). The accused. The accused is entitled to attend the hearing (s 106(3)). If the Court determines that there are exceptional circumstances the accused may address the court personally or through a legal practitioner, but may not cross-examine a witness (s 106(4)). Privilege and compellability preserved. "Nothing in this section excludes or limits the operation of any other law as to the competence or compellability of a witness to give evidence" (s 106(5)). This is the critical distinction from Part B: the privilege against self-incrimination is not abrogated in a CPA Pt 4.3 examination, and legal professional privilege and client legal privilege under the Evidence Act 2008 (Vic) remain available. What happens to the transcript. The transcript of the compulsory examination is disclosed to the accused through the hand-up brief served under s 107 (contents prescribed by s 110), and once served it forms part of the depositions of the committal proceeding and may be tendered by the prosecution as part of its case.
CPA Pt 4.3 at a glance¶
| Question | Answer | Provision |
|---|---|---|
| Who applies? | The informant only | s 103(1) |
| When? | After the charge-sheet is filed and before the committal hearing commences | s 103(2) |
| After the committal mention? | Only if the Court is satisfied it is in the interests of justice to allow the application then | s 103(3) |
| Notice to a suspect examinee? | Reasonable notice must be given to the person or their legal practitioner | s 103(6) |
| Is the accused a party? | No, and the accused may not address the court on the application | s 103(7) |
| The test for the order | Interests of justice | s 104(2) |
| Can the order be set aside? | Yes, at any time, including on the examinee's application | s 104(3) |
| Enforcement | Contempt under s 134(1) Magistrates' Court Act 1989 (Vic) | s 105(3) |
| Form of evidence | Sworn or affirmed, examination-in-chief only, recorded as at a committal | s 106(2) |
| Cross-examination by the accused | Prohibited — even where the accused is permitted to address the court | s 106(4) |
| Privilege against self-incrimination | Preserved — other laws as to competence and compellability are untouched | s 106(5) |
Part B — Coercive examinations: the Chief Examiner, IBAC and the ACC¶
B1 MCIPA — the gateway to a coercive examination
Application. A police officer applies to the Supreme Court for a coercive powers order under s 5 of the Major Crime (Investigative Powers) Act 2004 (Vic); s 6 permits a remote application. It is an offence to publish a report of the proceedings on the application (s 7). The test — s 8(1). The Supreme Court may make a coercive powers order if satisfied (a) "that there are reasonable grounds for the suspicion founding the application for the order", and (b) "that it is in the public interest to make the order", having regard to (i) the nature and gravity of the alleged organised crime offence and (ii) the impact of the use of coercive powers on the rights of members of the community. In making the order the Court must have regard to any submissions of the Public Interest Monitor (s 8(2); Pt 1A, ss 3A–3D). "Organised crime offence" is defined in s 3AA, and the order itself is made under s 9; extension or variation is under s 10, and revocation under ss 12–12C, with special counsel appointable under s 12B. Reasonable grounds. The formation of the required state of mind is objective: it must be based on facts and circumstances sufficient to induce that state of mind in a reasonable person thinking reasonably about the information (George v Rockett (1990) 170 CLR 104; Prior v Mole [2017] HCA 10). A "parrot-like" recitation of the statutory formula in the supporting affidavit will not do. The summons. Once a coercive powers order is in force, a witness summons may be issued by the Supreme Court under s 14 or by the Chief Examiner under s 15; a summons directed to a person under 16 is dealt with by s 16; service is governed by s 17; a witness already in custody by s 18; and the confidentiality of the summons and of any order by s 20.
B2 MCIPA — conduct of the examination
When examinations may be held. Section 29 governs when the Chief Examiner may conduct an examination; s 30 the conduct of the examination; and s 35A permits a person to be examined without a summons. Preliminary requirements — s 31. Before any question is asked, the Chief Examiner must (a) confirm the witness's age if the witness may be under 18; (b) release a witness under 16 from all compliance; © inform the witness "that the privilege against self-incrimination does not apply but that there are restrictions on the use that can be made of evidence obtained" and specify those restrictions; (d) inform the witness that legal professional privilege applies and of its effect, and that subject to that privilege it is an offence not to answer, not to produce, or to give false or misleading evidence, and state the penalties; (e) inform the witness of any confidentiality requirements; (f) where applicable, inform the witness of the right to legal representation, to an interpreter, or to have a parent, guardian or independent person present; and (g) inform the witness of the right of complaint to Integrity Oversight Victoria and that exercising it will not breach the confidentiality requirements. Representation, privacy, evidence. The witness may be represented (s 34); the examination must be held in private (s 35); evidence is taken under s 36; legal practitioners and witnesses are protected by s 33; the examination is video-recorded under s 45; and a warrant may issue for the arrest of a witness under s 46. Where the s 31 requirements are not complied with, formally object on the record. Non-compliance is a statutory impropriety and is the foundation of a later s 138 exclusion argument.
B3 MCIPA — privilege, immunity, and the point most people get wrong
Abrogation — s 39(1). "A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty." Post-charge examination is expressly authorised — s 39(1A). "Subsection (1) applies whether or not the person has been or may be charged with an offence in respect of the subject-matter of the question, information, document or other thing." This subsection is the Victorian Parliament's clear-words answer to X7 and Lee; the companion principle is displaced to the extent of that clear language. Direct use immunity — s 39(3). The answer, document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty, other than proceedings for an offence against the Act, proceedings under the Confiscation Act 1997 (Vic), or a proceeding in respect of the falsity of the answer or of a statement in the document. There is NO derivative use immunity — s 39(4). "Nothing in subsection (3) prevents the admission in a criminal proceeding or proceeding for the imposition of a penalty of any evidence obtained as a direct or indirect consequence of an answer given at an examination or a document or other thing produced ... and any such evidence is admissible in the proceeding in accordance with the rules of evidence applicable to the proceeding." Advise the client accordingly: what they say cannot be used against them, but everything the police find because of what they say can be. Legal professional privilege survives — s 40, with the claim procedure in s 41 and an application to the County Court or Supreme Court to determine a claim under s 42. Section 37(4) provides that a person does not contravene s 37(2)(b) if, under s 41, the Chief Examiner withdraws the requirement to produce or the person seals the document and gives it to the Chief Examiner.
B4 MCIPA — offences, contempt and secrecy
Failure to attend or answer — s 37. A person served with a witness summons must not without reasonable excuse fail to attend, or fail to attend from day to day (s 37(1)); and a witness must not without reasonable excuse refuse or fail to answer a question required to be answered, or refuse or fail to produce a document or other thing required by the summons (s 37(2)). Contravention is an indictable offence carrying level 6 imprisonment (5 years maximum) (s 37(3)). A person under 16 at the date of issue of the summons does not contravene the section (s 37(5)). False or misleading evidence — s 38. Giving false or misleading evidence to the Chief Examiner is an offence. Hindering or obstructing — s 44, and contempt of the Chief Examiner — s 49. Enforcement is real: a witness who refused to answer questions has been sentenced to an immediate term of 6 months' imprisonment despite multiple mitigating factors (Chief Examiner v Camilleri [VSC 442] — confirm the year before citing). Publication and secrecy. It is an offence to publish a report of proceedings on the application for the order (s 7); confidentiality attaches to the witness summons and orders (s 20); publication of evidence is restricted by s 43; court proceedings involving the Chief Examiner are dealt with by s 48; and general secrecy obligations are imposed by s 68. Section 50 provides that there is no double jeopardy. Advise the client on the escape valve. The confidentiality obligations do not prevent a complaint to Integrity Oversight Victoria, and s 31(1)(g) requires the witness to be told that exercising the right of complaint will not breach those requirements. Oversight functions are in Pt 5 (ss 51–64).
B5 MCIPA — getting the material into, or keeping it out of, the prosecution
→ s 43 — restriction on publication of evidence: the default position is that examination evidence is "restricted evidence" and may not be published. → s 43A — release of restricted evidence to a person charged with an offence: the route by which an accused obtains restricted evidence where the court considers it desirable in the interests of justice; the witness, the Chief Commissioner and the Chief Examiner must be given an opportunity to make submissions. → s 43B — release of restricted evidence where the person is not yet charged: the route by which the Chief Commissioner obtains release of restricted evidence to the prosecution. → s 67 — information sharing: governs the sharing of information obtained from Chief Examiner proceedings with law enforcement agencies and other bodies. This is where a Lee problem is created or avoided — press for the dissemination log.
B6 The companion principle — examining a person who has been charged
X7 v Australian Crime Commission (2013) 248 CLR 92. In the absence of clear, express and unmistakable statutory language, a compulsory examination power does not authorise the compulsory examination of a person who has already been charged, about the subject-matter of the pending charge. Subjecting an accused to compulsory questioning post-charge fundamentally alters the accusatorial nature of the criminal trial, because it conscripts the accused to build the prosecution's case. Lee v New South Wales Crime Commission (2013) 251 CLR 196. The principle of legality yields to clear words: Parliament may abrogate the companion principle if it does so in clear and unequivocal terms, and the legislation there was sufficiently clear to authorise examination of a person already charged with a related offence. Lee v The Queen (2014) 253 CLR 455. Even where the examination is lawful, the dissemination of the transcript to police and to the prosecution team for use in preparing the trial is a fundamental breach of the accusatorial process: the prosecution obtains an unfair forensic advantage by learning the accused's defence, explanations and credit in advance. The convictions were quashed. Strickland v Director of Public Prosecutions (Cth) (2018) 266 CLR 325. Where the ACC examined persons after they were charged, or when charges were imminent, and the transcripts were systematically disseminated to the AFP and prosecutors, the use of coercive powers to assist a pending prosecution was an abuse of process striking at the heart of the accusatorial system. Because the prosecution had been permanently contaminated and no direction or change of prosecuting team could cure the unfairness, a permanent stay was granted. Mokbel v The King [2025] VSCA 243. The Victorian Court of Appeal applied the same structural principles in setting aside convictions where systemic collusion between senior police and a registered human source who was also defence counsel compromised the accusatorial process. A permanent stay remains an extraordinary remedy of last resort (Ballard v The King [2024] VSCA 26), but where the State's misconduct is so egregious that continuing the prosecution would be a profound affront to the administration of justice, the conviction must be set aside. The Victorian statutory overlay. In Victoria, s 39(1A) of the Major Crime (Investigative Powers) Act 2004 (Vic) supplies exactly the clear language X7 said was missing. The live battleground is therefore not usually whether the examination could be held, but what was done with the material afterwards — the Lee dissemination point and the ss 43, 43A, 43B and 67 machinery.
B7 Remedies where the examination was unlawful or the material was misused
→ Permanent stay: available where the coercive process has been used to subvert the accusatorial system and the contamination cannot be cured. The test is whether continuation would involve unacceptable injustice or unfairness, or whether there is a fundamental and incurable defect in the process leading to the trial (Strickland v DPP (Cth) (2018) 266 CLR 325; Ballard v The King [2024] VSCA 26). → Exclusion under s 138 Evidence Act 2008 (Vic): once the defence proves on the balance of probabilities that the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such an impropriety or contravention, the evidence is inadmissible unless the prosecution satisfies the court that the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. → Derivative evidence: s 138(1)(b) extends to evidence obtained "in consequence of" the impropriety. The "but for" test is the starting point for objective causation; if the misconduct cast the die for the later evidence and was not disclosed, the causal chain is complete (Mokbel v The King [2025] VSCA 243). → Gravity of the impropriety — s 138(3)(d): the three-tier spectrum is (i) unintentional, negligent or accidental non-compliance where no advantage was sought or gained; (ii) conduct known to be improper but not undertaken to gain an illicit advantage; and (iii) deliberate and conscious illegality pursued to obtain a forensic benefit not otherwise lawfully obtainable (Director of Public Prosecutions v Marijancevic [2011] VSCA 355). → Judicial review: if the s 8 gateway was not properly satisfied, or the IBAC or ACC threshold was not met, the order or summons is amenable to judicial review in the Supreme Court — move urgently, before the examination.
The regimes compared¶
| CPA Pt 4.3 (ss 103–106) | MCIPA 2004 (Vic) | ACC Act 2002 (Cth) | |
|---|---|---|---|
| Who triggers it | Informant applies to the Magistrates' Court | Police officer applies to the Supreme Court for a coercive powers order (s 5) | ACC Board determines a special ACC operation or investigation (s 7C) |
| Who conducts it | The Magistrates' Court; examination by or on behalf of the informant | Chief Examiner or an Examiner (Pt 3, Pt 4) | An Examiner appointed under the Act |
| Test | Interests of justice (s 104(2)) | Reasonable grounds for the suspicion + public interest (s 8(1)) | Board determination; examiner's satisfaction |
| Self-incrimination privilege | Preserved (s 106(5)) | Abrogated (s 39(1)), including post-charge (s 39(1A)) | Abrogated, subject to the Act's use provisions |
| Direct use immunity | n/a — privilege survives | Yes (s 39(3)), with carve-outs for offences against the Act, Confiscation Act 1997 proceedings and falsity | Provided for by the Act — verify the current provision |
| Derivative use immunity | n/a | No — expressly excluded (s 39(4)) | Verify — not established in the source materials |
| Legal professional privilege | Preserved (s 106(5)) | Preserved (s 40; procedure ss 41, 42) | Verify |
| Sanction for refusal | Contempt (s 105(3); Magistrates' Court Act 1989 s 134(1)) | Indictable offence, level 6 (5 years) (s 37(3)); contempt (s 49) | Contempt of the ACC referred to the Supreme Court or Federal Court |
| Private hearing | No — ordinary Magistrates' Court hearing; accused may attend (s 106(3)) | Yes — must be in private (s 35) | Yes |
Advising a client who has been summoned — the checklist¶
• 1. Identify the instrument. Is it a s 104 order of the Magistrates' Court, a s 14 or s 15 witness summons under the MCIPA, an IBAC witness summons, or an ACC s 28 summons? Everything that follows depends on the answer.
• 2. Attack the gateway. Inspect the coercive powers order and the affidavit that supported it. The suspicion must rest on objective facts capable of inducing that state of mind in a reasonable person (George v Rockett (1990) 170 CLR 104; Prior v Mole [2017] HCA 10). If the s 8 threshold was not met, commence judicial review in the Supreme Court urgently.
• 3. Raise the post-charge shield. If the client has been charged and the examination touches the subject-matter of the charge, object immediately and put X7 v Australian Crime Commission (2013) 248 CLR 92 and Strickland v DPP (Cth) (2018) 266 CLR 325. In Victoria, meet s 39(1A) head-on: concede the examination may be held, and direct the fight to dissemination and to ss 43, 43A, 43B and 67.
• 4. Enforce the s 31 preliminaries. Attend with the client (s 34) and hold the Chief Examiner to each limb of s 31(1). A failure to advise on the use restrictions, on legal professional privilege, or on the right of complaint to Integrity Oversight Victoria is an impropriety that will support a s 138 argument at trial.
• 5. Claim legal professional privilege item by item. Privilege survives (s 40). Object formally to each question touching communications with legal representatives, and be ready to have the claim referred under s 41 or determined by the County Court or Supreme Court under s 42.
• 6. Explain the immunity accurately. Direct use immunity under s 39(3) is real; derivative use immunity does not exist (s 39(4)). A client who believes that "nothing I say can be used" has been misadvised.
• 7. Explain confidentiality — and its limit. Disclosing the summons or the examination may be an offence, but a complaint to Integrity Oversight Victoria is expressly protected (s 31(1)(g)).
• 8. Preserve the record for trial. Take a full note, obtain the video-recording (s 45) and the transcript, and put the Crown on notice to disclose every act of dissemination — that record is the foundation of any later Lee or Strickland argument.
Currency watch¶
• 28 December 2025 — the Justice Legislation Amendment (Committals) Act 2025 (Vic) commenced. Because a CPA Pt 4.3 examination is an investigatory step taken before the committal stage, it survives the reforms; and because s 106(4) already barred the accused from cross-examining, the abolition of committal cross-examination does not change the unilateral character of the Pt 4.3 process. Matters with a filing hearing before 28 December 2025 continue under the former framework.
• s 198C CPA — the Basha procedure is abolished. Do not confuse a Pt 4.3 compulsory examination (a prosecution tool against a reluctant witness) with the defence pathway to pre-trial evidence, which is now ss 198, 198A and 198B.
• s 39(1A) MCIPA (inserted by No 55/2014) — post-charge coercive examination is expressly authorised in Victoria. An answer that simply recites X7 without engaging s 39(1A) is wrong on Victorian law.
• s 39(4) MCIPA (inserted by No 55/2014) — derivative use immunity is expressly excluded. one source flagged this as a gap; it is not a gap, it is a deliberate legislative choice.