Prerogative writ - Application for order nisi - Whether arguable case - Prohibition - Failure to comply with rules of natural justice - Reasonable opportunity to be heard - Whether interference with right to silence constitutes lack of reasonable opportunity

Police Act 1892 (WA)

Commissioner of Police : Mr G T W Tannin & Ms R L Pearce

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Estate and Trust Agencies Ltd v Singapore Investment Trusts [1937] AC 898

King-Brooks v Roberts (1990-1992) 5 WAR 500

McMahon v Gould (1982) 7 ACLR 202

NCSC v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296

R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co [1953] HCA 22; (1953) 88 CLR 100

R v British Broadcasting Commission; Ex parte Lavelle [1983] 1 WLR 23

R v Commissioner of Police; Ex parte Edwards (1977) 17 ALR 445

R v Commissioner of Police; ex parte Ramsey [1993] 2 Qd R 171

R v Electricity Commissioners; Ex parte London Electricity Joint Committee Company [1924] 1 KB 171

R v Fowler; Ex parte McArthur [1958] Qd R 41

Re Locke & Ors; Ex parte Commissioner for Railways [1968] 2 NSWR 197

Re Refugees Review Tribunal [2000] HCA 57; (2000) 176 ALR 219

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40

South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378

Sullivan v Department of Transport (1978) 20 ALR 323

Tooth & Company v Parramatta City Council [1955] HCA 21; (1955) 97 CLR 492

1 This is an application for an order nisi directed to the Commissioner of Police seeking orders that he show cause why a writ of prohibition should not be issued to prohibit him from further proceeding with a notice of intention to remove the applicant from his office of sergeant of police with the WA Police Force pursuant to s 8 of the Police Act 1892 and further or alternatively he show cause why a writ of prohibition should not be issued to prohibit him from determining whether or not to recommend the removal of the applicant pursuant to the notice of intention.

2 The application specifies a series of grounds which may be distilled into a single ground that the Commissioner has denied the applicant procedural fairness and has therefore exceeded his power by failing to enable the applicant sufficient time to provide a response to the notice of intention without the applicant prejudicing his defence to certain criminal charges which have been brought against him. By leave the Commissioner has been heard on the application.

3 The applicant is a sergeant who is a sworn police officer but has been on sick leave since June or July 1998.

4 On 14 February 2000 the applicant appeared in the Court of Petty Sessions on charges of:

1. Corruption contrary to s 83 of the Criminal Code;

2. Creating a false document contrary to the Criminal Code s 424

3. Fraud contrary to s 409 of the Criminal Code.

6 The allegations are said to have arisen in the course of his duties as a police officer.

7 On 19 July 2000 an indictment was presented in the District Court charging the applicant with 14 counts of offences of corruption and false accounting.

8 The trial on this indictment is listed to commence in the District Court on 21 May 2001 and is estimated to conclude on 25 May 2001.

9 On 19 July 2000 an indictment was also presented, charging the applicant with three counts of fraud.

11 On 1 March 2001 the Director of Public Prosecutions wrote to the applicant's solicitors, inter alia as follows:

"Upon examining the transcript of the last hearing I see that one of the indictments has been overlooked and no dates fixed for its trial. I shall take this up with the Court."

12 The applicant remained on sick leave from the time the charges were laid until 6 February 2001 when he was served with a Notice of Intention to Remove from Police Force of Western Australia (Section 8 Police Act). The notice reads:

"TO: Gregory John Harrison

Sergeant 5709

I hereby give you notice that I intend, in the absence of being persuaded otherwise, to recommend to the Minister for Police, that he approve your removal from the Police Force of Western Australia.

The information and matters contained in the attached Summary of investigation, has caused me to lose confidence in either :

(a) your capacity to conduct yourself within the required standards of ethical conduct and integrity necessary to effectively discharge the functions of your office; or

(b) your competence to perform these duties at a level consistent with your rank and experience.

The allegations giving rise to that loss of confidence are as follows :

1. On 30 December 1996 Sergeant Gregory John Harrison 5709, whilst the Officer in Charge of the Crime Stoppers Unit, improperly paid Crime Stoppers reward payments numbered 147 and 148:

2. On 7 November 1996 and 12 November 1996 Sergeant Gregory John Harrison 5709, whilst the Officer in Charge of the Crime Stoppers Unit, improperly paid Crime Stoppers reward payments numbers 152 and 159:

3. Between 27 November 1996 and 17 March 1997 Sergeant Gregory John Harrison 5709 whilst stationed at the Crime Stoppers Unit claimed Travelling Allowances from the Western Australia Police Service for which he was not entitled.

Please advise me with twenty one (21) days from the service of this Notice why I should not recommend your removal from the Police Force of Western Australia.

From the date of service of this Notice you will be stood down from all duties and will continue to receive full pay, unless advised otherwise.

(Signed)

B E MATTHEWS

COMMISSIONER OF POLICE

5 February, 2001."

13 Accompanying the notice was a summary of the investigation which specified three grounds, which together cover the same factual matters as the two indictments.

14 On 22 February 2001 the applicant, through his solicitors, responded to the Commissioner of Police, stating inter alia:

"Your actions in respect to the Section 8 Notice leave our client in a most invidious, and in our view unfair, predicament. Our client will be vigorously defending the charges of fraud and corruption.

Understandably, on our legal advice, our client is, under no circumstances prepared to prejudice his defence by revealing or disclosing details in advance of the trial. Naturally, our client is not [in] a position to answer the Section 8 Notice until such time as the charges against him have been determined [in] the District Court of Western Australia. We point out these charges are listed for trial on 21 May 2001.

In view of this, we consider that your actions constitute an abuse of process and are unfair and unreasonable in the extreme...

Please advise us no later than the close of business Friday 2 March 2001 whether you intend to communicate your recommendation to the Minister for Police in the absence of a response from Sergeant Harrison."

15 On 26 February 2001 the applicant's solicitors received the following reply:

"...

I have carefully considered the issues raised in that letter. In my view the circumstances of this case are not such as to warrant deferral of the time period within which your client may respond to my Notice of Intention until after the conclusion of his prosecution for alleged criminal offences. The spirit of the Administrative (Appeal) Arrangements is to provide an efficient and effective process to enable action to be taken under section 8 of the Police Act 1892. The process is administrative in nature. It involves me in the exercise of a managerial discretion where I have lost confidence in an officer's suitability to remain a member of the Police Service and consider it to be appropriate to recommend the officer's removal from the Service. The process does not involve me making a decision as to the guilt or innocence of the member of any criminal offence.

In accordance with the existing Administrative (Appeal) Arrangements I have provided Detective Sergeant Harrison with an opportunity to put forward any matters he considers to be relevant to my loss of confidence in him. It is entirely a matter for Detective Sergeant Harrison whether he responds to the Notice of Intention. Pursuant to the spirit of those arrangements I do not intend to make public any response that he may choose to put forward for my consideration. Furthermore, the circumstances of such response would no doubt be considered to be an inducement rendering any admission made in the response inadmissible against your client in his pending criminal trial.

...

In the event Detective Sergeant Harrison chooses not to respond to the Notice of Intention, the next step would be for me to consider, in the absence of explanation from him, whether to recommend the Detective Sergeant's removal from the Police Service. It is not helpful to speculate at this point in time what my decision may be."

16 On 27 February 2001 the applicant's solicitors responded relevantly:

"The issue is not whether the information provided would be ruled inadmissible at the criminal trial, nor whether you do not propose to make it public.

The reality of the situation is that by making the information available to you it "loses" legal privilege, and could be made available to the investigating officers and Crown prosecutors for the purpose of assisting the prosecution case.

We point out that whilst information supplied under disciplinary demand or in response to a Section 8 Notice may be inadmissible at trial, it is not exempt from disclosure to such parties.

Indeed, if necessary we will cite examples where information obtained under disciplinary demand was provided to a Crown prosecutor by your predecessor and referred to in open court during sentencing submissions.

Understandably, we are not prepared to allow our client's interests to be prejudiced by permitting material obtained under duress or threat of removal from the Police Force to be made available to parties involved, directly or indirectly, in the criminal prosecution.

We also note that the charges against our client were preferred by officers of the Anti-Corruption Commission. The ACC may demand production of documents from you, and it would be open for them to compel you to disclose any response made by Mr Harrison.

...

Only now, some 10 weeks before his trial, is action commenced against him.

Bearing in mind the length of time that has passed since criminal charges were preferred, and your commencing Section 8 proceedings, we are somewhat perplexed at your refusal to agree to our reasonable request that Mr Harrison not be required to respond until the completion of the criminal proceedings.

Such a response could then be prepared and submitted expeditiously, and we submit that there would be no detriment to the Police Force in staying the response period."

17 On 28 February 2001 the applicant submitted to the Commissioner the following response:

"1. This memorandum is submitted in response to the Notice of Intention to Remove served upon me on 6 February 2001.

2. I am not prepared, at this stage, to provide a detailed response to the allegations contained in the Notice of Intention to Remove.

3. My reason for taking this stance is that in order to adequately address each allegation it would be necessary for me to disclose my defence to the criminal charges preferred against me.

4. Once the charges preferred against me in the District Court of Western Australia have been dealt with I will be in a position to provide a full and comprehensive response to the Section 8 Notice."

18 The Commissioner responded on 28 February 2001, concluding:

"I remain of the view that it is not in the best interests of the Service nor consistent with the spirit of the agreed Administrative (Appeal) Arrangements to defer the period within which Detective Sergeant Harrison may respond to the Notice of Intention."

19 I have set out the correspondence in some detail because it encapsulates the contentions of both sides. It also discloses to some extent the considerations which led the Commissioner to decline the request to postpone the requirement of a response until after the trial in May.

20 In support of his application, the applicant relies on an affidavit from his solicitor Mr G W Pidco sworn on 2 March 2001 and upon his own affidavit sworn 6 March 2001, both of which were taken as read. In the course of his affidavit the applicant deposes:

"19. In the course of seeking advice from my solicitors I have provided information in confidence which directly relates to my defence on the criminal charges.

20. I am unable to effectively respond to the Notice of Intention to Remove without disclosing this information."

21 There are a number of grounds which set out the history in narrative form before concluding:

"(h) The determination by the Respondent of a recommendation whether or not to remove the Applicant from his office with the Western Australian Police Force could result in the destruction or defeat of the Applicant's right or interest in maintaining such office, and would defeat or destroy his legitimate expectation to be heard in response to the Notice of Intention prior to any (possibly adverse) recommendation being made against him by the Respondent.

(i) In the circumstances, the Applicant is owed a duty of procedural fairness by the Respondent to enable the former to provide a sufficient response to the Notice of Intention without prejudicing the Applicant's right to defend the Charges.

(j) In the premises, the Respondent has denied the Applicant procedural fairness, or otherwise breached his duty to observe procedural fairness in the circumstances. Accordingly, the respondent has exceeded his power, or alternatively has no jurisdiction to determine whether or not to remove the Applicant from office pursuant to the Notice of Intention."

22 In Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998, Parker J held at 6:

"It will be apparent from this brief reference to settled authority that the threshold test which the applicant must satisfy is quite low. It is sufficient that the case is merely capable of being argued and it is not necessary for the applicant to show that the case have some reasonable or real prospect of success; in this respect contrast the test where prerogative relief is sought in respect of quasi-criminal proceedings ..."

23 In Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999, I ventured to suggest that the test may not be quite as low as that put by Parker J in Capobianco and I said:

"I would be inclined to adopt the test of arguable case as it was put by Malcolm CJ in Demptser v National Companies and Securities Commission (1993) 9 WAR 215 at 262 where he said:

'In my opinion, having regard to the context, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. In this context 'arguable case' necessarily has the same meaning as 'reasonable case' as that expression is used in O20 r19 of the Rules of the Supreme Court 1971. The case must be one which has 'some' chance of success: see Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 495.'

In that case Malcolm CJ was interpreting the appeal provision of the Justices Act. In my view the same reasoning is applicable in a consideration as to whether the applicant has disclosed an arguable case for an order nisi to issue for a writ of certiorari."

24 In the event, I refused an order nisi, and an appeal against that decision was dismissed. However, the Full Court did not need to consider the correctness of the views I have just set out and therefore did not do so.

25 In a case also involving the Commissioner of Police: Re Matthews; Ex Parte MacKenzie [2000] WASC 147, Templeman J, after considering the authorities including Capobianco and Perpetual Trustees, concluded at pars 11, 12 and 13:

"11 In my view, however, the lower standard to which Parker J referred, following Talbot v Lane (supra), is appropriate here. I take that view because Talbot v Lane was concerned with prerogative writs, in relation to which the order nisi procedure is intended to act as a filter to protect the Full Court against what Lord Diplock referred to as 'busybodies with misguided or trivial complaints of administrative error ....'

12 The Judge who hears the order nisi application is not to try the matter. As Malcolm CJ said in Savage v Teck Exploration Ltd, unreported; FCt of WA; Library No 7285; 16 September 1988:

'On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendments so that the matter may proceed to the Full Court on a proper basis.'

13 By contrast, the appeal procedure under the Justices Act, is in the nature of a preliminary hearing by one Judge, who is required to form a view about the prospects of the appellant succeeding before another Judge of equal standing."

26 In the end it seems that the difference of opinion relates to the definition of "arguable case", the authorities being at one in concluding that there must exist an arguable case before an order nisi can be granted.

27 I bear in mind that a single Judge does act as a filter to the Full Court in some respects. At its logical extension, a case may be said to be "arguable" simply because someone can be found to argue it. I do not consider the interests of justice require a test so low and, with respect, prefer to adopt by analogy the formulation of Malcolm CJ that "...an arguable case must have an argument with some prospect of success." That is the test I propose to apply in the present case.

Can a writ of prohibition lie against to the Commissioner of Police in respect of a notice under the Police Act s 8

28 The power to remove non-commissioned officers from the Service is found in s 8 which is in the Police Act Part 1:

"As to the appointment of officers and constables of the Police Force."

29 The Commissioner is given powers subject to the approval of the Minister to remove any non-commissioned officer from time to time as he shall think fit. The power to suspend, which is also contained in s 8 was considered by Anderson J in Menner v Commissioner of Police (1997) 74 IR 472 and that decision was in turn considered by the Full Court in Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998. Anderson J stated the following proposition for which he said there was copious authority:

"The prerogative power to dismiss an officer of the Police Force, being a power to dismiss at pleasure, may be exercised at any time and for any reason, or for no reason or for a mistaken reason. In this sense a police officer has no security of appointment: Coutts v The Commonwealth per Brennan J at 105. From this it follows that (unless statute otherwise provides, either expressly or by implication) there is no right in the office holder to be heard as a condition of the lawful exercise of the power to dismiss him: Ridge v Baldwin [1946] AC 40 per Lord Reid at 65-66; Malloch v Aberdeen Corporation [1971] 1 WLR 1578 per Lord Wilberforce at 1597; Coutts v The Commonwealth especially per Dawson J at 121."

30 The decision of Menner was discussed in Parker & Ors v Miller & Ors (supra).

31 Malcolm CJ at 56 held that the power to dismiss was a statutory power and was distinct from resort to the Crown prerogative.

32 Franklyn J, though in dissent as to the result, held also that the power was not an exercise of the royal prerogative at 10-11, as did Ipp J at 25. The actual decision in Parker v Miller did not need to examine the issue of natural justice and did not do so. As Anderson J based the conclusion, in the passage to which I have referred, as leading from an exercise that the prerogative power, it is at least arguable that the conclusion is wrong. I have not relied on this case in the reasons which follow.

33 In my view the applicant has standing to bring an application, he being clearly a person aggrieved.

34 I consider that Parker & Ors v Miller & Ors (supra) is authority for the proposition that certiorari, and I infer prohibition, may go to a decision of the Commissioner under s 8. At the very least the matter is clearly arguable.

35 Furthermore, although the Commissioner is given a wide, perhaps uncontrolled discretion, nevertheless I consider that at the least arguably, the Commissioner must comply with the rules of natural justice, bringing an unbiased mind to the decision-making, advising the affected officer of the general nature of the reasons for possible removal, and affording that officer a reasonable opportunity to be heard.

Is there an arguable case about a reasonable opportunity to be heard?

36 The nub of this application centres on a simple issue. The Commissioner has clearly afforded the applicant an opportunity to respond within a 21 day period. The issue is whether an arguable case exists that the opportunity is unreasonable because if the applicant does submit a response, it will prejudice his defence of the criminal charges, breach his right to silence and possibly lose his privilege against self-incrimination.

37 The respondent contends that O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342 provides the content of the extent of natural justice to be given to an applicant.

"... it would be enough if the Chief Commissioner, having given the appellant a fair opportunity to be heard, considered in good faith that the appellant was not fit to occupy the office of constable ...."

39 So much may be accepted. However the case does not provide guidance as to the fairness of the opportunity to be heard which is in issue here.

40 In support of the submission the applicant argues there is a prospect that any material obtained might be given to the prosecution by the Commissioner of Police for its use or perhaps seized under power by the Anti-corruption Commission.

41 Thus, it is said on the authority of Wendo v R [1963] HCA 19; (1964) 109 CLR 559 that the criminal trial court has a discretion to admit the evidence notwithstanding it may have been irregularly obtained. However, I consider the material would be involuntary and therefore inadmissible on the basis that it was obtained under inducement. Wendo therefore has no application. As to the material being given to the prosecution, the Commissioner has said he does not propose to make public any response and there is no evidence that he is proposing to give copies of the response to the ACC or DPP. The applicant is merely suspicious that he might do so.

42 The applicant cites in further support of his submissions, Reid v Howard [1995] HCA 40; (1995) 184 CLR 1; Hammond v The Commonwealth of Australia [1982] HCA 42; (1982-83) 152 CLR 188 and Edelsten v Messiter (1987) 11 NSWLR 51. Reid v Howard (supra) was a case where clients of a chartered accountant, having learned that he was misappropriating funds, applied for orders in the Supreme Court compelling him to disclose information about certain assets. The accountant claimed privilege against self-incrimination. The High Court held that there was no scope for an exception to privilege against self-incrimination in criminal or civil proceedings other than by statute or waiver. As Deane J put it at 5:

"Unless it appears that the assertion of potential incrimination is unsustainable a claim to the benefit of the privilege cannot, in the absence of statutory warrant properly be disregarded or overridden by the courts."

43 Reid v Howard's case involved the compulsion of a witness in a civil proceeding to give evidence arguably in breach of the privilege against self-incrimination.

44 Hammond v The Commonwealth of Australia (supra) was also a case of compulsion. A person committed for trial on charges of conspiracy was called before a Royal Commission and asked questions under compulsion about the conspiracy on which he had been committed for trial.

45 It was held by the High Court that the continuance of the examination would interfere with the due administration of justice, even though his answer would not be admissible in evidence against him.

46 In Edelsten v Messiter (supra), a medical practitioner was the subject of a complaint before the Medical Tribunal. There were current pending criminal proceedings involving the practitioner. The Medical Tribunal refused to grant an adjournment until those criminal proceedings had been resolved. The practitioner was not compellable as a witness in that he could claim a privilege against self-incrimination.

47 At 58 and 59 Hope JA outlined some of the principles of law which have developed in relation to an accused person's right to silence.

48 The appeal by the practitioner was dismissed by the Court of Appeal, although it may be that in part the judgment relied on the Medical Practitioners Act s 32w which gave the Tribunal a discretionary power to continue proceedings.

49 Principal (9) enunciated by Hope JA at 59 is as follows:

"Views have been expressed and implemented that so long as related criminal proceedings may be instituted or are pending, it is generally undesirable that disciplinary proceedings should be dealt with: Re a Solicitor (1938) 55 WN (NSW) 110; Re Levy; Ex parte Incorporated Law Institute of New South Wales (1887) 8 LR (NSW) 347. A possibly stronger view was expressed by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 266 that, while criminal proceedings are pending, it was only proper that disciplinary proceedings should not be brought on for hearing. These views do not appear to have been based on any power to compel witnesses to give incriminating answers."

50 While the prospect of tribunal disciplinary hearings during the pendency of criminal proceedings may be undesirable, they do not appear to be unlawful or beyond jurisdiction.

51 There is, I consider, a critical distinction between the power to compel answers and the present case which is an invitation to respond but not a compulsion to do so.

52 In Baker v Commissioner of Australian Federal Police [2000] FCA 1339 Gyles J considered the identical question posed here. After a careful examination of the authorities he said:

"[35] However, any such reconsideration would need to be undertaken either by a Full Court of this Court or the High Court. In any event, it would be unlikely to avail the applicants here. The staying or control of proceedings by a court involves a decision by a court, subject to appeal. Here, the substantive decision is committed by legislation to the respondent, and involves the exercise of a discretion. The weighting to be given to a consideration in the exercise of that discretion is not a matter for a court examining that decision on judicial review. Furthermore, the question of proceedings to restrain contempt of, or interference with, the criminal proceedings does not arise directly in this kind of judicial review application.

[36] The only presently operable decision is that to afford the applicants natural justice before the substantive decisions are made. The submissions on behalf of the applicants make clear that the breaches of s6 of the ADJR Act which are alleged depend upon their establishing the proposition that the use of the substantive power given to the respondent by s28 and s40K of the AFP Act in the circumstances here would override the applicants' right against self-incrimination. In my view, that proposition is inconsistent with authority which binds me. In those circumstances, the grounds alleged are not made out. I should indicate that there is nothing in the evidence to establish that the respondent will not take the existence of the criminal proceeding, and their direct and indirect effects, into account in making the substantive decisions in question. Further, there is no sound basis for the argument that the substantive decisions will be unreasonable in the requisite sense."

53 I accept and adopt the reasoning of Gyles J insofar as it is relevant to the present question.

54 I do not consider the authorities cited by the applicant including the comments made by counsel for the applicant in respect of the cases cited by the Commissioner support the proposition for which he contends in circumstances where a compulsion to answer questions is absent. Those cases deal with compulsory response or disciplinary hearings where the courts have held there is a discretion in the tribunal whether or not to continue.

55 The Commissioner relies in part on the evidence contained in an affidavit of Mr G E Lienert, an Assistant Commissioner of Police, and in particular upon a record of an interview with the applicant during the course of which he was under compulsion to answer questions. The affidavit was accepted into evidence and taken as read.

56 It is not desirable to set out any of the contents of that interview. I note however that the applicant then provided a detailed explanation in respect of allegations 1 and 3 in the Notice of Intention to Remove. Ground 2 does not appear to have been dealt with at that interview.

57 This material must be taken into account in deciding whether there is an arguable case that the applicant has been denied natural justice.

58 In my judgment there is no arguable case that the Commissioner has or will fail to accord procedural fairness to the applicant in the course he has adopted.

59 Bearing in mind the wide nature of the powers vested in the Commissioner by Parliament under the Police Act s 8, the other powers of management in Part 1, the opportunity already given to the applicant under compulsion to make explanation in respect of two matters, I am not persuaded that there is an arguable case of breach of the rules of procedural fairness if the Commissioner fails to extend the time for response until after the trials.

60 It is further argued that the Commissioner's action is arguably beyond power because the Commissioner acted in February when the first trial is listed for hearing in May.

61 I do not consider that timing is relevant. The second trial, for example, is not yet listed.

62 The Commissioner is, I think, bound to take into account the timing of his actions and the proximity of a trial and there is evidence here that he has done so.

63 However, once taken into account, the weight to be attributed to the proximity of the trial is a matter for him. Put another way, if the true principle is that the Commissioner has failed to provide a reasonable opportunity to be heard because he is acting in advance of criminal proceedings, then the proximity of those proceedings is immaterial because the damage will be done whenever the trial takes place. But that is not the true principle.

64 Rather, the true principle is that the Commissioner is bound to afford a reasonable opportunity to the applicant to make a response. He cannot compel a response. It is then a matter for the applicant to consider where his best interests may lie in the circumstances then confronting him and make a decision accordingly.

65 I do not consider it is arguable (in the sense I have expressed earlier) to suggest that the Commissioner has or will fail to accord procedural fairness by his actions to date. Nor is it arguable that the Commissioner has not provided the applicant, in the circumstances, with a reasonable opportunity to be heard.