An alleged organised crime figure has failed in a bid to have the High Court rule on the authority of the secretive Chief Examiner, who can seek jail for those who refuse to be interviewed or lie during coercive hearings.
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But the Melbourne man still has a court challenge pending against the powerful body, with the Supreme Court set to rule on his action later this month.
If the challenge is upheld, it could severely diminish the scope of the powerful intelligence body, or require an urgent amendment to Victorian law.
The Chief Examiner's office has interviewed hundreds of underworld figures in secret hearings since it was introduced during the height of the gangland war in 2005.
Lawyers for the man, referred to as XYN, as his identity is suppressed, argue that being interviewed by the Chief Examiner prior to a pending criminal trial constitutes contempt.
A removal application was made seeking the High Court – rather than the Supreme Court – to rule on the challenge.
The Chief Examiner sought to interview XYN prior to a criminal trial about the same alleged organised crime matters to which he has plead not guilty. The exact criminal charge or charges have also been suppressed.
XYN is subject to a coercive powers order issued by the examiner that expires in June.
Barrister Luke Howson, for XYN, argued last month that the High Court should hear the case that had been filed in December in the Supreme Court as it related to a matter of constitutional validity.
The orders sought by XYN in his Supreme Court motion state that section 29 of the Major Crimes (Investigative Powers) Act 2004 is beyond the legislative power of the Victorian Parliament, that the Chief Examiner be prohibited from examining the applicant until his trial and any appeals were complete, and costs.
High Court Chief Justice Robert French said during the January 19 hearing that he did not believe the trial needed to necessarily be delayed if the Supreme Court was yet to rule on XYN's application before it started.
In dismissing the application, he said there was "an air of unreality" about some of the submissions in support of XYN, but did not say this reflected on the strength of the Supreme Court action.
The case was similar to X7 v Australian Crime Commission, in which the High Court found that the commission did not have the power to hold a compulsory examination of a person who was charged with the offence that was to be the subject of the examination.
The Victorian government is understood to have strengthened the legislation governing the Chief Examiner after the X7 ruling in 2013.
