Applicants A1 & A2 v Brouwer & Anor [2007] VSCA 139

Court of Appeal (Vic)|2007-06-28|Before: MAXWELL P, NEAVE AND REDLICH JJA

ADMINISTRATIVE LAW - Judicial review - Decision to terminate protection and assistance under Victorian witness protection program - Provision for internal review and appeal - Appeal to be determined within 72 hours - Whether Director, Police Integrity erred in defining nature of appeal - Whether Parliament intended powers of Chief Commissioner of Police on review and Director on appeal to be equivalent - Whether Chief Commissioner's specialist expertise relevant to determining nature of appeal - Whether presumption that appeal from decision of administrative body to another administrative body not de novo - Director required to conduct appeal as hearing de novo - Decision infected by jurisdictional error - Whether alternative basis of decision - Strange-Muir v Corrective Services Commission of NSW (1986) 5 NSWLR 234 considered - Witness Protection Act 1991 s 16(2), (3), (5), (6), (1), (2) -

ADMINISTRATIVE LAW - Privative clause - Whether provision precludes application for judicial review - Decision-maker immune from "action or proceedings" in respect of official acts - Ainsworth v The Ombudsman (1988) 17 NSWLR 276 considered - Judicial review not excluded - Witness Protection Act 1991 s 12(3).

PRACTICE AND PROCEDURE - Leave to appeal - Whether decision refusing prerogative relief interlocutory or final - Order dismissing application for certiorari to quash administrative decision final - Brygel v O'Keefe (Unreported, Court of Appeal, Winneke P, Hayne & Charles JJA, 17 April 1997) followed.

**1 In 2005, the applicants (identified in these proceedings only as A1 and A2) were included in the Victorian witness protection program established under s 3A of the Witness Protection Act 1991 ("the Act"). In June 2006, the Chief Commissioner of Police (by her delegate) terminated the protection and assistance provided to A1 and A2 under the program, in exercise of the power conferred by s 16(2) of the Act. The termination decision was confirmed by the Chief Commissioner under s 17(3)(b), following a review.

2 The applicants then appealed to the Director of Police Integrity, under s 17(5). The Director dismissed their appeal. The applicants sought judicial review under s 3 of the Administrative Law Act 1978, seeking relief in the nature of certiorari to quash the Director's decision. That application was dismissed by a judge of the Trial Division.

3 The applicants contend that they can appeal as of right from the Judge's decision. As a precaution, however, they filed an application for leave to appeal. Counsel for the Chief Commissioner contend that leave to appeal is required. Full argument was advanced on both sides on the substantive grounds of appeal and on the leave question.

4 We have concluded that no leave to appeal is required, and that the appeal should be allowed. We deal first with the substantive issues.**

**5 The principal issue in this appeal concerns the nature of the appeal to the Director under s 17(5) of the Act. The applicants contend that the Director misconceived the nature of the appeal and thereby committed jurisdictional error, such that his decision dismissing the appeal was a nullity.[1]

6 It is axiomatic that, where a statute confers a right of appeal from an administrative decision, whether to a court or to an administrative tribunal, the nature of the appeal is to be discerned from the terms of the statute.[2] There are various forms of appeal. In 1976, in Turnbull v New South Wales Medical Board ("Turnbull's case"),[3] Glass JA said:**

"Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below."

7 His Honour then identified six categories of appeal "[g]raded in ascending order, in accordance with the width of the corrective power exercised by the appeal court",[4] as follows:

(a) appeals to supervisory jurisdiction (judicial review);

8 In the 30 years since Turnbull's case was decided, there has been general acceptance of this typology.[5] There is, however, no definitive classification of appeals. As the High Court said in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission:[6]

"The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another."

**9 The difficulty in the present case is that - unlike, for example, s 169 of the Legal Practice Act 1996 - the Witness Protection Act 1991 does not state what type of appeal is contemplated. The Court is left to infer from the surrounding provisions what kind of appeal Parliament had in mind.

10 Worse still, the Director himself - the appellate tribunal - was obliged to decide what kind of appeal he was expected to conduct. Noting that he was required to determine an appeal "within 72 hours after receiving it",[7] the Director said:**

"I am therefore required to obtain and absorb all relevant materials and to determine the appeal within a remarkably short time. The Act provides no guidance on how the Director should determine the appeal but, in my view, the extremely tight statutory deadline of 72 hours cannot sensibly be read as requiring a complete investigation or re-hearing of the question of termination. It seems to me that the Director is required to take an approach such as that taken by courts of appeal. The Director should examine the decision of the Chief Commissioner with a view to establishing, first, that it is in compliance with the requirements of the statute and, second, that it was a decision reasonably open to the Chief Commissioner in all the circumstances prevailing at the time."[8]

**11 The appellate function which the Director thus defined for himself is wholly novel. It finds no place in the Turnbull typology. As counsel for the Chief Commissioner conceded, there is no precedent, either in statute or in case law, for the approach which the Director adopted. For the reasons set out below, we have concluded that the Director fell into error in so defining his task. But the Director is scarcely to be criticised on that account. The risk of error was always going to be high once Parliament made provision for an appeal in novel circumstances without stating expressly what kind of appeal it had in mind.

12 There is a simple way of avoiding this kind of difficulty, as Murphy J suggested more than 30 years ago in Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd.[9] The recognised categories of appeal, and their distinguishing characteristics, should be specified and defined in the Interpretation of Legislation Act 1984. Once that has been done, it should not be difficult for Parliament, when enacting legislation conferring a new right of appeal, to specify which type of appeal is contemplated. The applicable provisions of the Interpretation of Legislation Act 1984 would then specify the duties and powers of the appellate tribunal. The saving of time and money expended in the present case (most of the costs of which come out of the public purse) in the search for legislative intention should provide a powerful incentive for this overdue legislative change.**

**13 The process of termination of protection and assistance can - and, in this case, did - involve three distinct decision-making steps. The first was the decision of the Chief Commissioner to terminate, under s 16(2) ("the original decision"); the second was the confirmation of that decision by the Chief Commissioner on internal review, under s 17(3)(b) ("the review decision"); and the third was the decision of the Director on the appeal under s 17(6)(b) ("the appeal decision").

14 The text of the relevant provisions is as follows:**

(2) Protection and assistance provided to a person under the Victorian witness protection program may be terminated by the Chief Commissioner of Police if -

(a) the person deliberately breaches a term of the memorandum of understanding or a requirement or undertaking relating to the program; or

(b) the person's conduct or threatened conduct is, in the opinion of the Chief Commissioner, likely to threaten the security or compromise the integrity of the program; or

and the Chief Commissioner is of the opinion that, in the circumstances, the protection and assistance should be terminated.

Notice of involuntary termination, review and appeal

(1) If the Chief Commissioner of Police decides under section 16(2) to terminate protection and assistance to a person he or she must -

(a) take reasonable steps to notify the person of the decision; and

(b) notify the relevant approved authority (if any) of the decision.

(2) Within 28 days after receiving notification under sub-section (1)(a), a person may apply in writing to the Chief Commissioner for a review of the decision.

(3) If an application is made under sub-section (2), the Chief Commissioner -

(a) must review the decision and give the person a reasonable opportunity to state his or her case; and

(b) after the review, must confirm or reverse the decision; and

(4) If the Chief Commissioner confirms the decision, he or she must inform the person -

(5) Within 3 days after being informed of the confirmation of a decision to terminate protection and assistance, a person may appeal to the Director.

(a) must determine an appeal under sub-section (5) within 72 hours after receiving it; and

(b) in doing so, may make any decision that could have been made by the Chief Commissioner.

18. When does involuntary termination take effect?

(1) A decision of the Chief Commissioner of Police under section 16(2) to terminate protection and assistance to a person -

(d) if the person applies for a review of the decision in accordance with section 17(2), the Chief Commissioner notifies them that the decision has been confirmed and they do not appeal to the Director under section 17(5) - takes effect on the expiration of 3 days after the Chief Commissioner notifies the person of the confirmation of the decision; or

(e) if the person appeals to the Director - has no effect.

(2) A decision of the Director under section 17(6) that protection and assistance to a person be terminated takes effect when the Director notifies the person of the decision."

**15 Whereas inclusion of a person in the program is "the sole responsibility" of the Chief Commissioner (s 3A), termination of protection is not. The safeguards of review and appeal, recited in the memorandum of understanding between the witness and the Chief Commissioner, are intended to ensure that termination will not occur unless at least one of the circumstances set out in s 16(2) of the Act is made out. The regime of internal review (s 17(2)) and external appeal (s 17(5)) reflects the legislature's recognition of the profound consequences for a witness that may flow from termination.

16 The ramifications for a witness who has an ongoing need for protection and is prematurely withdrawn from the program are grave indeed. There will very likely have been significant changes in the witness's lifestyle upon his/her entering the program. The action which the Commissioner may take to advance the welfare of a witness entering the program, as reflected in s 3A of the Act, carries with it the likelihood of serious financial consequences, inconvenience and in some cases concern about personal safety for the witness if protection is terminated. This will be particularly so if protection is unexpectedly terminated. It is considerations of this kind which, in our view, explain why Parliament provided for a right of appeal to the Director where the Chief Commissioner determines to terminate protection and assistance under the program. The Director is also the person to whom complaints are to be made (by either party) in relation to matters dealt with in the memorandum of understanding ("MOU").**

17 As noted earlier, the Director decided that his function in determining the appeal was to answer the following two questions:

Was the review decision of the Chief Commissioner (to confirm the original decision) in compliance with the requirements of the Act?
Was the review decision reasonably open to the Chief Commissioner in all the circumstances prevailing at the time?

18 The Director answered both questions in the affirmative. In dismissing the appeal by A1, the Director said:

"46. I am satisfied that the decision of the Chief Commissioner to terminate protection and assistance to A1 was a decision which complied with the requirements of s 16(2) and was reasonably open to the Chief Commissioner. Therefore, in my view, the decision should stand."

The conclusion that A2's appeal should also fail was expressed in similar terms.

19 So far as compliance with s 16(2) was concerned, the Director concluded that s 16(2)(a) had no application, although the Chief Commissioner had relied on it. As to s 16(2)(b), he concluded that the Chief Commissioner had formed the requisite opinion, namely that -

"... the person's conduct or threatened conduct ... [was] likely to threaten the security or compromise the integrity of the program."

The Director went further and expressed himself satisfied that the Chief Commissioner had been reasonably entitled to take that view.[10]

"the circumstances that gave rise for the need for protection and assistance for the person [have] cease[d] to exist".

"On the basis of the information available to me, I am satisfied that the requirements of s 16(2)(c) were made out and the circumstances which gave rise to the need for protection of A1 under the program have ceased to exist."[11]

21 The Director then considered whether the Chief Commissioner's decision to terminate protection could be said to be a decision which was reasonably open to her. As already noted, the Director concluded that it was.[12]

**22 The first ground on which judicial review was sought was that the Director had misunderstood his function in determining the appeal under s 17(6). The Judge rejected this ground, holding that the Director's description of his appellate function was correct.

23 His Honour's reasons for that conclusion may be summarised as follows:

1. There was no power to adduce further evidence on the appeal. The Director's power was confined to allowing or disallowing the appeal, and confirming or reversing the decision of the Chief Commissioner made on the internal review.

2. The history and policy of the Act made it clear that it was Parliament's intention to leave the decisions concerning the program, and the participation of a witness in the program, to the Chief Commissioner and nobody else.

3. There is a presumption in appeals from one administrative body to another that the issue on appeal is whether the decision was correct when made. (His Honour referred to Strange-Muir v Corrective Services Commission of New South Wales,[13] discussed below.)

4. When Parliament introduced the program in 1996, its establishment and maintenance was a matter for the Chief Commissioner and it was left to the good judgment and discretion of the Chief Commissioner as to what action was necessary and reasonable to protect the safety and welfare of the relevant witness or family member.

5. Parliament left the decision to remove a witness from the program to the Chief Commissioner, who was required to form an opinion that in the circumstances the protection and assistance should be terminated. His Honour said:**

"This again is consistent with the Parliament's approach to leaving the scheme, its operation and application to the good sense of the Chief Commissioner, and is consistent with the sensitive nature of the program, the risks involved and the importance of safeguards."[14]

Parliament entrusted the Chief Commissioner with responsibility for reviewing his or her own decision to terminate protection (s 17(3)).
The appeal was entrusted originally to the Ombudsman and later to the Director, a person who was not required to have any legal qualification.
Parliament prescribed that the appeal must be determined within 72 hours.
Although the Director occupies an important position in a body concerned with the behaviour of Victoria Police, he would not have the same knowledge and understanding of the program as the Chief Commissioner.

24 Having set out these reasons (which we consider below), his Honour expressed his conclusion in these terms:

"131. In my opinion, the Director in stating his task on the appeal ... was correct. It was not a question of the Director considering afresh whether the plaintiffs' participation in the program should be terminated. All of the matters set out above lead to the conclusion that it was Parliament's intention that the appeal would be a narrow appeal, which required the Director to be satisfied that the Chief Commissioner did carry out her task as required by the Act and to determine whether on the facts the decision was open to her and was a reasonable one.

In summary, the Legislature left it to the Chief Commissioner to establish and operate the witness protection program, and left many of the decisions to the judgment of the Chief Commissioner, based upon the experience of the Victoria Police in conducting such a program in the past. It left the questions of inclusion in the program, the termination of a participant in the program and a review of that decision all to the Chief Commissioner. In the end, it was a matter of judgment for the Chief Commissioner in respect of each of these three steps. The appeal procedure was given to a separate body, independent of Victoria Police, but with the instruction to determine the appeal in a very short period of time. The express powers given to the appellate body were indeed restricted. All of these matters lead to the conclusion that it was Parliament's intention to leave all these important questions to the Chief Commissioner, with a right of appeal to determine whether, on the materials before the appeal body which were before the Chief Commissioner, the Chief Commissioner's decision was correct. I am satisfied that the Director did not misdirect himself on the nature of his function as an appellate body. There was no jurisdictional error. There was no error on the face of the record." (emphasis added)

25 For the reasons which follow, we respectfully disagree. We have concluded that the Director did misapprehend his appellate function and hence made a jurisdictional error.

**26 In our opinion, on a proper construction of the Act the Director was required to conduct the appeal as a hearing de novo. His function was to conduct what is commonly referred to in administrative law as "merits review". Just as the Victorian Civil and Administrative Tribunal ("VCAT") "stands in the shoes" of the primary decision-maker when exercising its review jurisdiction,[15] so the Director was required to decide for himself whether the power of termination under s 16(2) should be exercised.[16] The provisions do not support the learned Judge's conclusion that what was envisaged was an appeal in the strict sense.

27 Like VCAT, the Director would have before him all of the material which was before the Chief Commissioner, together with the Chief Commissioner's reasons for confirming the original decision.[17] In view of the matters required to be considered under s 16(2), and the possibility of delay between the original decision and the review decision (as occurred here), the Director must be able to consider any additional material which the parties wish to place before him on the appeal.[18] As with VCAT, the existence of that power is a matter of necessary implication, rather than express provision.[19]**

28 As counsel for the applicants pointed out, there are significant differences between the provisions which define the possible outcomes of the internal review by the Chief Commissioner under s 17(3) and those which define the possible outcomes of the appeal to the Director under s 17(6). At the conclusion of the internal review, the Chief Commissioner must "confirm or reverse" the original decision (s 17(3)(b)). If the original decision is confirmed, then it is that decision - the original decision of the Chief Commissioner under s 16(2)) - which operates. As provided by s 18(1)(d), the original decision -

"takes effect on the expiration of 3 days after the Chief Commissioner notifies the person of the confirmation of the decision."

29 The outcome of an appeal to the Director is defined quite differently. First, by force of s 18(1)(e), the original decision is of "no effect" once an appeal is lodged. That decision becomes inoperative and is never revived, whatever the outcome of the appeal. Secondly, the Director's power is not limited to confirming or reversing the Chief Commissioner's review decision. Under s 17(6)(b), the Director -

"may make any decision that could have been made by the Chief Commissioner."

30 Thirdly, a decision that protection and assistance be terminated is described by s 18(2) as a "decision of the Director". It is that decision of the Director, not any earlier decision of the Chief Commissioner, which operates following the conclusion of the appeal. Under s 18(2), the appeal decision of the Director under s 17(6) -

"takes effect when the Director notifies the person of the decision."

**31 In our opinion, the provision which is of decisive significance is s 18(2), because it identifies unambiguously the character of the Director's appeal decision. The subsection does that by identifying, as one of the decisions which the Director may make under s 17(6)(b), "a decision ... that protection and assistance to a person be terminated." The appeal process apart, a decision in those terms can only be made under s 16(2), and only by the Chief Commissioner. Thus, when the Director makes an appeal decision in those terms under s 17(6)(b), he is doing exactly what that provision authorises, that is, making "[a] decision that could have been made by the Chief Commissioner."

32 Counsel for the Chief Commissioner argued that, in authorising the Director under s 17(6)(b) to "make any decision that could have been made by the Chief Commissioner", Parliament intended the Director to have the same limited powers as the Chief Commissioner has when making the review decision under s 17(3)(b). That is, it was intended that the Director either confirm or reverse the original decision to terminate.

33 In our opinion, that construction is precluded by the language of s 17. First, if that had indeed been Parliament's intention, it must be assumed that s 17(6)(b) would have been drafted in identical terms to s 17(3)(b). That is, s 17(6)(b) would simply have provided that the Director "after the appeal, must confirm or reverse" the original decision of the Commissioner under s 16(2). The power which s 17(6)(b) confers on the Director is, however, expressed in quite different terms. Far from obliging the Director to do one of two things ("confirm or reverse"), s 17(6)(b) authorises the Director to make any decision that the Chief Commissioner could have made.

34 On ordinary principles of interpretation, the use of such strikingly different language must be taken to signify an intention to confer power of a different kind. The intention to differentiate between the two is further confirmed by the description of the Chief Commissioner's function under s 17(3) as a "review", while the Director's function under s 17(6) is described as an "appeal". (We do not overlook the fact that the nature of the appeal as we have identified it is what the VCAT Act describes as a "review").

35 Secondly, had Parliament intended that the Director on appeal be confined to confirming or reversing the Chief Commissioner's original decision, it must be assumed that a decision by the Director to confirm the original decision would have left the original decision as the operative decision. That is the effect of s 18(1)(d) when the Chief Commissioner on review confirms the original decision. The scheme as enacted is, of course, quite different. As already noted, the original decision ceases to exist when the appeal is lodged, so there is nothing left for the Director to confirm or reverse; and the operative decision on the appeal is the Director's own decision - to terminate or not to terminate, as the case may be. There is nothing to suggest that Parliament intended to assimilate the Director's powers on appeal with the Chief Commissioner's powers on review. On the contrary, there is every indication that Parliament deliberately differentiated the one from the other.

36 In short, the language of s 17(6)(b) and s 18(2) means what it says. The Director in his capacity as the appeal tribunal is authorised to do exactly what the Chief Commissioner is authorised to do in her capacity as original decision-maker about possible termination under s 16(2). Just as the Chief Commissioner must decide under s 16(2) whether protection and assistance should be terminated, by reference to the statutory criteria specified therein, so the Director under s 17(6)(b) must decide by reference to those same criteria whether protection and assistance should be terminated.

37 That what is contemplated is a fresh exercise of power is clear, particularly when s 17(6)(b) and s 18(2) are read with s 18(1)(e), which brings to an end the operative effect of the Chief Commissioner's original decision. This provision confirms that Parliament did not have in mind either an appeal by way of rehearing or an appeal in the strict sense, since both kinds of appeal are premised on the primary decision remaining on foot unless and until it is overturned, error having been demonstrated.

38 In our view, the language of s 17(6)(b) ("may make any decision that could have been made by the Chief Commissioner") is expressive of the same intention as that of s 51(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998, which confers on the Tribunal in its merits review jurisdiction "all the functions of the decision-maker." The language is not identical, as counsel for the Chief Commissioner pointed out, but the substance is the same. The intent is unmistakably clear. The Director in determining the appeal has the powers which the Chief Commissioner has in respect of termination. Indeed, the position here is even clearer than under the Victorian Civil and Administrative Tribunal Act 1998. Whereas a decision of VCAT is deemed to be a decision of the original decision-maker (s 51(3)(a)), the Director's decision on the appeal is a decision of the Director himself (s 18(2)).

39 As we shall see, the notion of a "fresh look" by an external agency is wholly consistent with the origin of the appeal provision - in an amendment to the corresponding New South Wales legislation. First, however, it is necessary to address the considerations which led the learned Judge to conclude that Parliament had in mind a "narrow appeal".**

40 As noted earlier, the Director described as "extremely tight" the 72 hour time limit imposed by s 17(6)(a). He concluded that the deadline -

"... cannot sensibly be read as requiring a complete investigation or re-hearing of the question of termination."[20]

In the view of the learned Judge, the requirement that the Director determine the appeal within 72 hours:

"strongly supports the view that the appeal is to be determined on the materials before the Chief Commissioner and upon full consideration of the reasons that the Chief Commissioner was required to give for the confirmation of the decision made under s 16 to terminate the assistance."[21]

In her submissions on the appeal, the Chief Commissioner argues that this stringent time limit would simply not permit a review on the merits of the kind for which the applicants contend.

**41 In our opinion, the time limit itself provides little assistance in the resolution of the present question. Most importantly, it does not justify, let alone require, any different construction of the key provisions. Put simply, the work required of the Director in determining the appeal would be substantially the same whichever type of appeal was undertaken.

42 As noted above, the Judge considered that the "narrow appeal" which he identified would still require the Director to examine all of the materials which had been before the Chief Commissioner and to give "full consideration" to the reasons given by the Chief Commissioner for her review decision. The same examination would be required if the Director were conducting an appeal in the strict sense or an appeal by way of rehearing. As we said earlier, a hearing de novo would likewise involve the Director reviewing all of the materials which had been before the Chief Commissioner, and the Chief Commissioner's reasons for the review decision.

43 Before determining an appeal, the Director would be obliged to provide some opportunity for the affected person(s) and the Chief Commissioner to make submissions. There is nothing in the Act to suggest that Parliament intended to exclude the rules of natural justice from the appeal process. Once again, this obligation to receive and review appeal submissions would impose the same burden on the Director whichever type of appeal was being conducted. The significance of the 72 hour time limit is that the content of natural justice would likely be confined to the filing of written submissions and would not extend to an opportunity to appear before the Director and make oral submissions. However that may be, the content of natural justice would be the same irrespective of the type of appeal being conducted.

44 The 72 hour time limit appears to have originated with the Witness Protection Act 1995 (NSW) ("the NSW Act"). When the bill for that Act was introduced, it contained no provision for appeal. If the Commissioner of Police decided to terminate protection and assistance, the only course open to the person affected was to request the Commissioner to review that original decision. The provision conferring a right of appeal to the Ombudsman was inserted into the NSW Act following the second reading speech debate, in which the Hon J Hannaford, then Leader of the Opposition, raised concerns about the limited nature of that internal review.

"It is lamentable that the Government has included in the legislation a specific type of appeal mechanism ... What is the mechanism for appeal? The Commissioner of Police makes the decision to take somebody off the witness protection program and if that person has a complaint the appeal goes to the Commissioner of Police to review his own decision. That would be the most stupid legislative arrangement of all times.

I can understand that this has been done, for it is consistent with the mind-set that I had to grapple with when I was Attorney-General: that the police know everything, do everything and must control everything."[22]

46 Mr Hannaford proposed a different appeal mechanism:

"In an amendment that I will move to attempt to secure an independent review, I will argue that the review should go to the Ombudsman and that the Ombudsman should deal with these matters within 72 hours. I have not chosen 72 hours at random. The experience in Hong Kong is that the vast majority of these matters are capable of being handled within 72 hours.[23]

... [T]he Ombudsman does not [currently] have the power I am advocating, that is, the power to read the papers, talk to everyone involved and make a decision within 72 hours.

My amendments will simply give someone the power to review and to decide whether people should be under protection or removed from protection."[24]

**47 Amendments were duly moved at the committee stage embodying Mr Hannaford's proposal. The amendments, which were supported by the Government, provided for an appeal to the Ombudsman. The appeal was to be determined within 72 hours and the Ombudsman was empowered "to make any decision that could have been made by the Commissioner".[25] In 2002, the provision was amended to give the Ombudsman seven days in which to determine the appeal. Introducing that amendment, the then Minister for Police explained that the 72 hour period "is sometimes too short, as it may be difficult to contact the participant."[26]

48 The corresponding Victorian Act[27] was passed the following year. There is a very close similarity between the language of s 17 of the Victorian Act and that of s 12 of the NSW Act. The Victorian Minister said, in introducing the legislation, that it was "designed to assist police in combating crime by facilitating complementary witness protection arrangements with the Commonwealth and other States."[28]

49 There being no indication in the second reading speech for the Victorian Act of the rationale behind the 72 hour time limit, the circumstances of its introduction into the corresponding New South Wales legislation are of some assistance. While the 72 hours was doubtless intended to ensure that the appeal process not be productive of undue delay, its proponent was evidently of the view that this would provide sufficient time for the Ombudsman to "read the papers, talk to everyone involved and make a decision",[29] in exercise of what Mr Hannaford described as -**

"the power to review and to decide whether people should be under protection or removed from protection."[30]

The specialist expertise of the Chief Commissioner

50 Critical to the trial Judge's reasoning was his view that -

"... [I]t was Parliament's intention to leave the decisions concerning the program and the participation of a witness in the program to the Chief Commissioner, and no one else."[31]

As noted earlier, his Honour's conclusion was summarised in these terms:

"... [T]he Legislature left it to the Chief Commissioner to establish and operate the witness protection program, and left many of the decisions to the judgment of the Chief Commissioner, based upon the experience of the Victoria Police in conducting such a program in the past. It left the questions of inclusion in the program, the termination of a participant in the program and a review of that decision all to the Chief Commissioner. In the end, it was a matter of judgment for the Chief Commissioner in respect of each of these three steps."[32]

51 Counsel for the Chief Commissioner made much of this point on the appeal. Thus s 16(2)(b) was said to be a ground of termination which -

"... depends on the Chief Commissioner's opinion about a matter with a substantial operational component, being a matter that is integral to the program, on which the Chief Commissioner is given very substantial discretion by s 3A(1) and "sole responsibility" by s 3B(1)."

Likewise, it was argued that the ground in s 16(2)(c) -

"... depends on an assessment of a particular witness's need for protection and assessment - a matter that, as s 3A(1) makes clear, depends on the Chief Commissioner's view as to what is necessary and reasonable to protect the safety and welfare of that witness."

52 The provisions here relied on are in these terms:

"3A(1) The Chief Commissioner of Police, through the establishment and maintenance of a Victorian witness protection program, may take such action as he or she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness."

"3B(1) The Chief Commissioner of Police has the sole responsibility of deciding whether to include a witness in the Victorian witness protection program, including cases where an approved authority has requested that a witness be included in the program."

**53 The submission for the Chief Commissioner was that Parliament was unlikely to have intended that the Director, with his distinct responsibilities under the Police Regulation Act 1958, should substitute his own opinion on operational matters "of such sensitivity and so integral to the survival of the program", for the judgment of the Chief Commissioner, "who has such experience and expertise in administering the program." The Director, so it was submitted, did not have the necessary expertise.

54 The nature of the material considered by the Chief Commissioner in her review is of significance in evaluating the argument as to the relative expertise of the Chief Commissioner and the Director. Superintendent Emmet Dunne was appointed by the Chief Commissioner to assist her in the review process. Mr Dunne collected all of the material concerning the applicants' conduct in the program and their need for protection and assistance ("the primary material"). The applicants were given access to all of the primary material.

55 In coming to her decision with respect to the termination of protection, the Chief Commissioner relied upon the primary material together with materials supplied to her by the applicants. After the appeal against her decision was lodged, the Chief Commissioner supplied to the Director all of the material upon which she had relied. The primary material included documents of the following types:**

witness profiles;
diary notes written by officers involved in providing protection to the applicants;
threat assessments;
press clippings which revealed that the applicant A1 had provided certain information to the media about A1's involvement with the program;
formal incident and debriefing reports prepared by officers involved in the program;
a warning notice issued to applicant A1 on the basis of an alleged breach of the memorandum of understanding.

**56 The threat assessments, which first commenced in April 2006 and were subject to ongoing review, were of particular significance to the Chief Commissioner in coming to the view that the ongoing risk to the safety of the applicants was sufficiently low to justify termination. The assessments were set out in table form. The tables document the nature of different threats to the safety of the applicants; the causal factors which might lead to those threats being realised; the nature of the existing controls which were in place in order to minimize the probability of the threats occurring; an assessment of the effectiveness of those controls; and an overall assessment of the threat (ie low, medium or high).

57 The threat assessments were prepared with respect to each applicant by four of the officers involved with the program, in consultation with two officers from the Risk Management section. On 16 January 2007, Commander Maloney wrote a 4-line memorandum to the Chief Commissioner, recording that he had again reviewed the assessments and that the overall threat assessment remained low for both applicants. The Chief Commissioner stated that she relied upon this review and the threat assessments in coming to her final decision.

58 The primary material, including the threat assessments, was forwarded to the Director when the appeal was lodged. We have examined that material. It is not voluminous. The information, and the opinions of the operational officers, could be assimilated in a normal working day.

59 We are not persuaded that the Chief Commissioner's expertise, relative to that of the Director, has any bearing on the nature of the appeal. What is of importance, in our view, is the expertise and operational knowledge of the officers upon whose written opinions and assessments both the Chief Commissioner and the Director would necessarily rely. The Director is provided with the same material on the appeal as the Commissioner has on the review.

60 The criteria for termination under s 16(2) are expressed in clear terms and are perfectly intelligible. They would have to be addressed by the Director whichever kind of appeal he was required to undertake, whether an appeal in the strict sense or by way of rehearing, or a hearing de novo, or the sui generis appeal which the Director defined for himself. As the Director's reasons for decision illustrate, even on his own approach he was obliged to give careful consideration to the applicability of the criteria, in the light of the material before him, in order to answer the two questions which he posed for himself. There is nothing in the Director's reasons to suggest that he encountered any difficulty in comprehending or applying any of those criteria. On the contrary, the Director demonstrated himself to be perfectly capable of doing so.

61 As counsel for the applicants pointed out, there is ample precedent for an appeal by way of a hearing de novo from a primary decision-maker with specialist expertise. In Georgoussis v The Medical Board of Victoria,[33] Smith J held that an appeal to a judge in chambers from the Medical Board's refusal of an application for registration was a hearing de novo, notwithstanding that the refusal was based on an opinion of the Board that the applicant's medical or surgical knowledge, experience and skill were not of international standing. The nature of the appeal was determined by the statutory provisions which, on their "ordinary and natural meaning" required that the question be decided afresh by the Judge, although -**

" ... where medical questions are involved the Court, if it in fact has the Board's opinion placed before it, will naturally attach great weight to that opinion ...".[34]

62 In fact, although the Director does not have day-to-day operational experience of the witness protection program, he is uniquely placed to discharge this appellate function because of his statutory obligation (under the Police Regulation Act) to oversee police conduct and his resultant familiarity with the exigencies of police operations. In deciding for himself whether or not protection and assistance should be terminated, the Director would no doubt give great weight to the expert views of the Chief Commissioner and the responsible officers.

63 As noted earlier, the trial Judge relied on Strange-Muir v Corrective Services Commission of NSW ("Strange-Muir").[35] In that case, McHugh JA referred to the presumption that, when the legislature gives to a court the power to hear an appeal from the decision of an administrative body, the court is to exercise original and not appellate jurisdiction.[36] His Honour then said:

"The position with respect to the hearing of an appeal by one administrative body against the decision of another administrative body is perhaps not so clear. No doubt the matter must ultimately be determined by the terms of the statute which confers the right of appeal. Unfortunately, however, legislation rarely gives any definite indication as to the nature of the hearing."[37]

64 His Honour then referred to two decisions[38] which, in his Honour's view, were -

"... consistent with the principle that, in the absence of a contrary legislative indication, the conferring of a right of appeal to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision."[39]

In the interests of uniformity, his Honour said, the two decisions should be taken as establishing -

"... a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the tribunal is empowered to hear additional evidence."[40]

65 In our respectful opinion, what was said in Strange-Muir has no bearing on the determination of the present appeal. First, even assuming that there is such a presumption, it must (as McHugh JA acknowledged) give way to contrary language in the particular legislation. For the reasons we have already given, the legislation here in issue makes it clear that what Parliament had in mind was a hearing de novo. Secondly, what McHugh JA said in Strange-Muir did not command the support of the other members of the New South Wales Court of Appeal. Priestley JA agreed with his Honour's conclusion but expressed himself to be -

"content to rest my opinion upon a reading of the words of the section in the context of that Act as a whole."[41]

His Honour did not adopt McHugh JA's reasons regarding the suggested presumption.

66 Thirdly, in Re Coldham; ex parte Brideson [No 2],[42] the High Court quoted what McHugh JA had said in Strange-Muir. Rather than expressing agreement, however, the Court merely said "[b]e that as it may ...", and went on to emphasise that -

"[W]hether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right."[43]

This passage was adopted by the Appeal Division in McDonald v Guardianship Board.[44] The Court rejected in that case McHugh JA's view that the reviewing tribunal does not make a new decision.

**67 Counsel for the Chief Commissioner argued that if, contrary to their principal submission, the Director's approach to his task was held to be erroneous, the Director's decision should nevertheless be upheld because he did, in the alternative, decide the question of termination for himself. Reference was made to passages in the Director's reasons which are said to demonstrate that he did satisfy himself that protection and assistance should be terminated.

68 We reject this submission. There are certainly isolated passages in the Director's reasons which, standing alone, suggest that the Director reached his own state of satisfaction. But when the reasons are read as a whole it is clear that - as would have been expected - the Director carried out the appellate task which he defined for himself. He posed, and answered, the wrong questions. It is not possible to say that, in the process, the Director also answered the correct question.

69 In view of our conclusion that the Director fell into jurisdictional error, no occasion arises to consider the application of s 12(3) of the Act. It was common ground that, whatever the true scope of this provision, it could not render the Director's decision immune from attack on the ground of jurisdictional error.

70 The question of the applicability of the immunity clause would only arise if, contrary to our view, there were no jurisdictional error, such that it became necessary to consider whether there were errors within jurisdiction and, if so, whether the immunity provision precluded judicial review on those grounds. Since, however, this last matter was fully argued, it is appropriate that we state our conclusion on the question.**

71 Section 12(3) of the Act provides as follows:

"No action or proceedings can be brought against any person to whom this section applies in respect of any act, matter or thing done by that person in the course of his or her duties in accordance with this Act."

**72 Counsel for the Chief Commissioner argued that this clause precluded the primary Judge from entertaining a claim that the Director erred in the exercise of his jurisdiction - that is, a claim other than that the Director strayed beyond the task confided to him by s 17(6). They argued that the reference to "action or proceedings" manifested an intention to protect the Director against every sort of legal proceeding.

73 For their part, counsel for the applicants argued that the immunity which s 12(3) confers was an immunity for specified persons against actions and proceedings against them. An application for certiorari is not, so it was submitted, a proceeding against the person but is an application for relief against an unlawful decision of that person in his/her official capacity. By way of contrast with s 12(3), attention was drawn to s 145 of the Social Welfare Act 1970 (Vic), which provided as follows:**

"All proceedings under this Act other than proceedings in respect of indictable offences shall be had and taken in a summary way and no such proceedings shall be removed by certiorari into the Supreme Court."[45]

74 Counsel for the Chief Commissioner relied on the decision of the New South Wales Supreme Court in Ainsworth v The Ombudsman.[46] That case concerned a privative clause in the Ombudsman Act 1974 (NSW), in these terms:

"35A(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith." (emphasis added)

75 Enderby J initially considered that this provision "was merely intended to exclude claims for damages being brought against the Ombudsman or his officers."[47] Ultimately, however, his Honour concluded that it was not so limited. His Honour noted that, in the period preceding the introduction of s 35A, there had been two sets of proceedings in the New South Wales Supreme Court in which actions of the Ombudsman were challenged in questions of power and jurisdiction.[48] His Honour said:

"After those decisions, it can easily be appreciated why it might have been considered by Government and the Parliament that the Ombudsman was vulnerable to such actions and that it was in the public interest that he be given some protection.

I know of no other problems in New South Wales at that time that might have been in the mind of Government or Parliament that could have led to the enactment of s 35A. None was suggested by counsel."[49]

**76 Enderby J considered it significant that the Ombudsman's office was a unique institution; did not deal directly or in any legal way with legal rights; investigated complaints and reported to Parliament; was a creature of Parliament; and could be likened to a Royal Commissioner.[50] Counsel for the Chief Commissioner argued, by analogy, that s 12(3) of the Act should not be read down, having regard to the nature of the Director's office and the Commissioner's and Director's duties under the Act.

77 They argued that the same considerations as applied in Ainsworth v The Ombudsman were applicable here, since the Director also holds office as an Ombudsman.[51] They further submitted that:**

"(b) The Director's functions are to ensure that the highest ethical and professional standards are maintained in the Force, and to ensure that police corruption and serious misconduct is detected, investigated and prevented.[52]

(c) Before performing any of his duties, the Director must take an oath or affirmation administered by the Speaker of the Legislative Assembly that he will faithfully and impartially perform the duties of his office and will not disclose any information received in the performance of those duties except as authorised by law.[53]

(d) The functions conferred on the Director (and the Chief Commissioner) by the Act[54] are directed to the operation of the witness protection program, which involves many complex and highly sensitive issues - dealing with informers, investigating crimes, preparing evidence for presentation in court, negotiating with potential witnesses, undertaking assessments of the threat to safety of potential witnesses and developing measures to protect their safety. There are good reasons to believe that the Parliament, which left so much of the administration of the program to the Chief Commissioner,[55] intended the words in s 12(3) (including the term "proceedings") to be given their normal meaning[56] and to include a proceeding by which judicial review is sought."

**78 It may be accepted that there are functional parallels between the office of Director and the office of Ombudsman. But at that point the analogy with Ainsworth's case breaks down. There were no equivalent background circumstances in Victoria which would support an inference that, at the time s 12(3) was enacted, the Victorian Parliament might have considered that the Director[57] was "vulnerable" to proceedings seeking judicial review of his decisions. Nor, more importantly, does s 12(3) of the Act contain any equivalent of the critical words in s 35A(1) ("whether on the ground of want of jurisdiction or on any other ground"). Those words clearly signified the intention of the New South Wales Parliament to oust judicial review.

"... by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied."[58]

In Herald & Weekly Times Pty Ltd v A,[59] this Court said that privative clauses should be strictly construed:

"Where ... there is a choice between a broader and narrower interpretation, the narrower should be preferred. This is especially so where ... the application of the privative clause would render the determination in question wholly immune from appeal. It is not lightly to be assumed that Parliament would have intended that result."[60]

**80 In our view, the phrase "action or proceeding ... against any person" means a proceeding in which the person is exposed to liability. The phrase is not apt to encompass a proceeding which challenges the validity of a decision made (or refused to be made) by that person. Such a proceeding, of which the present is an instance, is not as a matter of ordinary language an action "against" the person. Rather, the action is in respect of the person's official act, that is, the decision or refusal.

81 Our conclusion in this regard is reinforced by what was said in the Second Reading Speech, when the Minister said that the immunity protection under s 12 would ensure -**

"... that the ability of these officers to undertake their functions is not compromised."[61]

The statement for the purposes of s 85(5) of the Constitution Act 1975 was to the following effect:

"... [I]t is intended to alter or vary section 85 of the Constitution Act to the extent necessary to prevent actions or proceedings against them in the course of their duties under the Act."[62]

**82 These statements indicate that the legislature's concern was to ensure that those endowed with functions under the Act were not induced to act over-cautiously in order to avoid personal liability, whether civil or criminal. Had Parliament intended to prevent judicial review of decisions made under the Act, it must be assumed that this would have been stated expressly, and in quite different language.[63]

83 The language of s 150 of the Infertility Treatment Act 1995 provides an example of what would have been required had that been the legislative intention:**

"A decision or purported decision of the Authority under s 99(1) or a decision or purported decision of the Authority under s 106 or 107 in relation to an approval under s 99(1) cannot be appealed against, reviewed, challenged, quashed or called in to question on any account in any court or tribunal before any person acting judicially within the meaning of the Evidence Act 1958."

There are many such provisions in Victorian statutes.[64]

**84 In our opinion, the legal effect of the Judge's decision was finally to determine the rights of the parties in a principal proceeding. That being so, the order dismissing the proceeding was final, not interlocutory, and no leave to appeal is required. [65]

85 In advancing argument to the contrary, counsel for the Chief Commissioner cited Knight v Spadano,[66] in which this Court held that an order dismissing proceedings seeking prerogative relief was interlocutory in nature. Chernov JA (with whom Buchanan JA agreed) said:**

"... [T]he impugned decisions are not ancillary to any existing or anticipated proceedings between the parties and it might be said that a refusal to grant the relief sought finally determined the rights of the applicant for prerogative relief. But it is plain that the decisions of his Honour do not deprive the applicant of the right to bring like applications albeit on different material. It seems, therefore, that the decisions are not final. But it should be said that, whether an order dismissing an application for relief in the nature of a prerogative writ is interlocutory or final where there are no relevantly related proceedings between the parties, seems not to have been settled in this jurisdiction."[67]

**86 Chernov JA referred first to Brygel v O'Keefe.[68] In that case, an application for relief in the nature of certiorari (pursuant to O 56(1) of the Supreme Court Rules) had been refused by the trial Judge in the exercise of his discretion. The appellant had sought to have quashed a decision to refuse him a taxi driver's certificate under the Transport Act 1983. When the matter came before the Court of Appeal, the respondent objected that the appeal was incompetent, arguing that the order dismissing the proceeding was an "order in an interlocutory application" and that leave to appeal was therefore required.

87 Winneke P (with whom Hayne and Charles JJA agreed) said:**

"For my own part, I have some doubt that a court's order dismissing an originating motion on behalf of a plaintiff seeking certiorari is an interlocutory order. It would seem to me to be more in the nature of an order which finally disposes of the rights of the parties in the particular litigation that exists between them. That does not, of course, mean that the appellant is to be barred from making further applications for driver's certificates pursuant to ... the relevant legislation. I am, thus, prepared to assume that the appellant does not need the leave of this Court to appeal against the order of [the Judge]".[69]

In the event, the appeal was dismissed because the appellant could show no error in the exercise of the trial Judge's discretion.

**88 In Hornsby v Kaschke,[70] the trial Judge had quashed an order of the Magistrates' Court ordering pre-trial disclosure of certain items in connection with a Road Safety Act 1986 prosecution. The unanimous view of the Court of Appeal was that the Judge's order was interlocutory. Callaway JA and Chernov JA each concluded that the order was ancillary to the proceeding in the Magistrates' Court. Though it determined the proceeding before her, the Judge's order did not finally determine the rights of the parties in the principal proceeding.

89 Relevantly for present purposes, Callaway JA referred to what Winneke P had said in Brygel v O'Keefe, and to the decisions of the Court of Appeal in Hansford v His Honour Judge Neesham[71] and Thompson v His Honour Judge Byrne.[72] His Honour said that those decisions were "clearly distinguishable", as they were -**

"... all cases of refusal of relief in the nature of certiorari. It may well be that such refusal finally determined the rights of the parties in a principal cause: cf Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443 per Windeyer J."[73]

**90 In Hansford v His Honour Judge Neesham, and again in Thompson v His Honour Judge Byrne, the trial Judge had refused an application under O 56 for relief in the nature of certiorari. In Hansford v His Honour Judge Neesham, the applicant had sought to have his sentence quashed; in Thompson v His Honour Judge Byrne, the applicant had sought to have his conviction quashed. In both cases, the effect of the refusal of certiorari was finally to determine the rights of the parties in the relevant criminal proceeding. In both cases, the proceeding in the Court of Appeal was treated as an appeal, not an application for leave to appeal.

91 In Kassionis v Magistrates' Court of Victoria & Hanley,[74] the trial Judge had dismissed an application for orders in the nature of certiorari and prohibition in relation to procedural rulings made by a magistrate. The Court concluded that the order of the trial Judge was interlocutory because it did not finally determine the rights of the parties in a principal cause. Consistently with the decision in Hornsby v Kaschke, the Court held that the principal cause concerned the criminal charges, still undetermined, in the Magistrates' Court. Batt JA referred to what Winneke P had said in Brygel v O'Keefe, noting that -**

"... the certiorari there sought was to quash an administrative decision on the grounds of want of natural justice, so that there was no other proceeding pending, on one view."[75]

His Honour went on to suggest that what was said in Brygel v O'Keefe was, in any event, obiter.[76]

92 In Knight v Spadano, Chernov JA likewise took the view that what was said in Brygel v O'Keefe was obiter.[77] His Honour then referred to Monash University v Berg,[78] where the Full Court (Starke, Murphy and Marks JJ) held that the decision of a judge refusing relief in the nature of certiorari under the Administrative Law Act 1978 to quash an arbitrator's award was interlocutory. The Full Court in Monash University v Berg said:

"... [T]he orders appealed from did not finally determine the rights of the parties; the substantive legal rights of the appellant and the respondent are in no way finally determined by any of the orders made.

All that has been determined is the entitlement of the appellant and the respondent to have the respective orders sought on the motions and order for review respectively. There are alternative remedies open including those available if and when application is made to have the award enforced as a judgment of the Court.

The relief sought on the order for review was the setting aside of the award - relief in the nature of the writ of certiorari. Such orders are discretionary in any event and a refusal to grant such relief is interlocutory."[79]

93 The Full Court cited in support of its view the decision of the New South Wales Court of Appeal in Coles v Wood.[80] In that case, the trial Judge had dismissed an application for relief in the nature of certiorari to quash search warrants. The Court of Appeal concluded that the order of dismissal was interlocutory since it did not determine any rights as between the parties. Hutley JA (with whom Moffitt P and Samuels JA agreed) explained:[81]

"An order dismissing proceedings to quash a search warrant does not determine any rights; it does not preclude another application for the same order; nor does it stand in the way of any other kind of challenge to the validity of the warrant."

"Orders in the nature of the writ of certiorari are discretionary in the sense that a court is entitled according to proper principles to consider whether there is any utility in making the order. As an order can be refused on the grounds of utility and utility can easily change, any order simply dismissing an application for such a writ is necessarily interlocutory."[82]

94 In our respectful view, what was said in Brygel v O'Keefe is not only of (at least) high persuasive authority but is clearly correct. If the established test is applied, the only possible characterisation of the Judge's order in the present case dismissing the application for certiorari is that it is a final order. There is no other proceeding between these parties. The certiorari application having been refused on its merits, it could not be renewed. The rights of the parties have been finally determined.

**95 Accordingly, we would allow the appeal, set aside the decision of the Director dismissing the applicants' appeals, and remit their appeals to the Director for hearing and determination in accordance with law. Because the Director will once again be subject to the 72-hour time limit, we would direct that the operation of these orders be stayed for seven days, to enable the Director to examine these reasons for judgment.

[1] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ).

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