A 16-year-old who has been summoned to appear before the New South Wales Crime Commission could be forced to incriminate his brother in a terrorism investigation, the state’s supreme court has heard.
On Tuesday, Justice Stephen Rothman heard a novel challenge from the teenager – known only as SA – who was called to give evidence under the commission’s coercive powers in June.
The commission can compel people to attend hearings and answer questions. The proceedings are kept secret and the court heard that the teenager could face jail if he told his brother or mother about them.
Counsel acting for SA, Stephen Lawrence, told the court the issuing of the summons was a denial of procedural fairness and it should be quashed.
“He would have had to endure for an indeterminate period of time the reality that a summons had been issued and served upon him that perhaps … he has to deal with the stress and anxiety of this process having been commenced that will see him having to incriminate a sibling,” Lawrence said.
“He was in our submissions treated rather like an adult would be in such circumstances, and not with the sensitivity and concern in my submissions that raise issues of procedural fairness.”
Lawrence pointed to both guidelines from the commonwealth prosecutor’s office and international guidelines on the questioning of children to point to the “prejudicial” way the commission’s powers operated. “The international guidelines and the model law … strongly suggests that in judicial proceedings a child ought be heard, that their best interests must be considered,” he said.
Justice Rothman questioned SA’s counsel extensively on whether there was a sufficient case that procedural fairness had been denied. He pointed to the fact that SA could ask the commission for a hearing before the summons came into effect to request that it be set aside.
“The difficulty that I have is what he’s being told is to attend the commission and answer questions,” Rothman said. “If in fact he had concerns he has the capacity to ring them up and say, ‘Can I have a hearing?’”
Rothman said the case could have repercussions for issuing subpoenas more broadly to children if the challenge were to succeed.
The crime commission’s lawyer told the court that “simply being required to answer questions” should not be something that would trigger a need to afford procedural fairness to the boy.
“Plainly what someone affected by a summons could do is show up to the crime commission … and make a submission at the hearing that they should be excluded from the summons for particular reasons.”
The hearing continues.
