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[2007] VSC 66
Supreme Court of Victoria
2007-03-16
GILLARD J
Original judgment source is linked above.
REVIEW UNDER ADMINISTRATIVE LAW ACT 1978 - Decision of Director of Office of Police Integrity on an appeal from Chief Commissioner of Police - Section 17(5) of Witness Protection Act 1991 - Nature of appeal - Strict appeal - No jurisdictional errors demonstrated - Review dismissed.
1 This is the return of an order for review made pursuant to s.3 of the Administrative Law Act 1978, calling upon the defendants to the proceeding to show cause why the decision made by the Director of the Office of Police Integrity in dismissing an appeal pursuant to the Witness Protection Act 1991 ("the Act") should not be reviewed.
Parties
2 The plaintiffs, Applicant A1 and Applicant A2, are persons who were included in the Victorian witness protection program ("the program") established by the Act. Leave was given to them to bring the proceeding in the names of Applicant A1 and Applicant A2 in order to preserve their anonymity and protect their well being. The protection and assistance provided to them under the program was terminated and they sought a review of that decision by the Chief Commissioner of Police. The Chief Commissioner confirmed the decision and the plaintiffs exercised a right of appeal, which was dismissed. They are aggrieved by the appeal decision.
3 The first defendant, Mr G.E. Brouwer, is the Director of the Office of Police Integrity ("the Director") and the person authorised by the Act to hear an appeal against a decision made by the Chief Commissioner, confirming a decision to terminate a person's participation in the program. The second defendant, Ms Christine Nixon, is the Chief Commissioner of Police for this State ("the Chief Commissioner") and is the person who reviewed the decision to terminate the program in respect to the plaintiffs.
4 The third defendant, Deputy Commissioner Walshe, was at all relevant times an Acting Deputy Commissioner of Police for this State (later appointed Deputy Commissioner) and was the person who made the decision to terminate the protection program in respect to the plaintiffs. He was joined as a defendant by the plaintiffs as an over abundance of caution and although it is clear he was aware of this proceeding, Deputy Commissioner Walshe was not served with the order for review and took no part in the proceeding. By reason of s.3 of the Administrative Law Act 1978, the proper parties to an order for review are the tribunal or members thereof who made the decision "and also any party interested in maintaining the decision". Deputy Commissioner Walshe in my opinion is not a person interested in maintaining the decision which was made by Mr Brouwer as Director of the Office of Police Integrity, and should not be joined as a party to the proceeding. I did not understand counsel for the plaintiffs to press any argument that he should be retained as a party and, accordingly, I will order that he cease to be a defendant to the proceeding.
Basic Facts
5 The basic facts leading to this proceeding can be briefly stated and are not in issue.
6 On 26 April 2005, the Chief Commissioner decided pursuant to s.3B of the Act that the two plaintiffs be included in the program. By reason of s.3B, each of the plaintiffs and the Chief Commissioner were obliged to enter into a memorandum of understanding ("Memo of U") pursuant to s.5. They did so. Thereafter the plaintiffs were provided with protection and assistance in order to protect them and to facilitate their security. One of the plaintiffs was to give evidence in criminal proceedings. Part of the protection was a 24 hour armed police presence at their residence.
7 By letters dated 25 November 2005 and 15 February 2006, one of the plaintiffs was given formal warnings to the effect that the police would terminate all protection and assistance to him, because it was alleged he had behaved inappropriately or in a manner inconsistent with the Memo of U. He was informed that unless he complied with his obligations under the program, his participation in the program would be terminated. At the time, the said plaintiff disputed the truth and accuracy of allegations made against him in the warning notices.
8 On 13 June 2006, the said plaintiff met members of the police force and on that day he was handed a notice of cessation of protection and assistance signed by Acting Deputy Commissioner Kieran Walshe. The other plaintiff, being the said plaintiff's female partner, also received a document to the same effect.
9 Neither plaintiff was informed that it was proposed to terminate the protection prior to the receipt of the said notices. What occurred thereafter was an application to this Court for interlocutory relief, which was compromised after negotiations between the parties.
10 By notice in writing, the plaintiffs through their solicitors applied to the Chief Commissioner for a review of the decisions made by Deputy Commissioner Walshe terminating their participation in the program. Thereafter, between early July 2006 and December 2006, correspondence passed between the representatives of the plaintiffs and the Chief Commissioner, which included the Victorian Government Solicitor, relating to the material to be considered by the Chief Commissioner, the provision of material, submissions by the plaintiffs and concerns expressed by the plaintiffs' lawyers that they did not understand the case they had to meet. The correspondence went back and forth, with each party criticising the conduct and approach of the other party. Time limits were specified by the Chief Commissioner for the provision of material by the plaintiffs, and the dates were changed from time to time.
11 In January of this year, the Chief Commissioner reviewed the decision and on 16 January 2007, she confirmed the decision of Deputy Commissioner Walshe made on 13 June 2006 to terminate the protection and assistance provided to each of the plaintiffs under the program. The Chief Commissioner, as she was obliged to do, gave detailed reasons for her decision to each plaintiff.
12 By facsimile sent on 19 January 2007, the plaintiffs' solicitors lodged a notice of appeal with Mr Brouwer, the Director. In the facsimile the said solicitors raised a number of issues relating to the review by the Chief Commissioner, and were critical of the decision and the reasons. Prior to the lodgement of the appeal, the plaintiffs' solicitor had a discussion with an employee of the Office of Police Integrity, followed by a meeting involving the plaintiffs, their solicitor and two employees of the Office. A submission was lodged on behalf of the plaintiffs on 19 January 2007. As a result of the discussions and the written materials, Mr Brouwer listed some six grounds of appeal, which he considered.
13 The Director considered the material, including the reasons of the Chief Commissioner, and on 22 January 2007, he determined that the appeal should be dismissed and that the protection and assistance provided to each plaintiff under the program be terminated. He provided detailed reasons for his decision.
14 On 25 January 2007, as the judge sitting in the Practice Court, I ordered that the operation of the decision made by Mr Brouwer be suspended pursuant to s.9 of the Administrative Law Act 1978 and gave certain directions as to the institution of a proceeding under the said Act.
15 On 6 February 2007, I made an order for review, calling upon Mr Brouwer as the person who made the decision on the appeal to show cause why the same should not be reviewed. The matter was heard two days later.
16 In a nutshell, it was put on behalf of the plaintiffs that Mr Brouwer misunderstood his role as the body hearing the appeal, and accordingly acted without jurisdiction, and in the alternative, that Mr Brouwer should have held that the Chief Commissioner's decision was wrong and should be set aside.
Jurisdiction under the Administrative Law Act
17 The Administrative Law Act was passed in 1978. It gave to a person affected by a decision made by a tribunal the right to apply for an order for review calling upon the decision-maker to show cause why the decision should not be reviewed. The terms "decision", "person affected", and "the tribunal" are all defined by s.2 of the Act. The powers of this Court on the return of an order for review are set out in s.7, which provides, inter alia, that this Court may discharge the order or "exercise all or any of the jurisdictional powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings for relief" in the nature of the prerogative writs. This Court also has the power to make a declaration of invalidity and grant an injunction to restrain the implementation of the decision.
18 I am satisfied that the decision on the appeal made by Mr Brouwer is a decision within the meaning of the Act, that the plaintiffs are affected by it and that Mr Brouwer constituted a tribunal within the meaning of the Act. No argument was put to the contrary.
19 The nature of the jurisdiction of this Court was considered by the Full Court in Monash University v Berg and ors.[1] There is no doubt that one of the purposes of the Act was to overcome some of the technical difficulties of the prerogative writ jurisdiction of this Court, but equally, it is clear that the Act did not alter the jurisdiction which the Court has at common law to supervise the decision-making process of an administrative body. Whilst an order for review under the Act is not an application for judicial review pursuant to Order 56 of the Rules of Court, nevertheless the Court exercises the same common law supervisory jurisdiction that it has in respect of a judicial review. That jurisdiction is limited. The jurisdiction is not an appeal to this Court.
20 Having said that, the Act did effect a number of changes to the common law jurisdiction. First, a procedure was designed to eliminate the complexities involved in applications for prerogative writs.[2] Secondly, it liberalised the principles concerning locus standi.[3] Thirdly, it required the body in question to give reasons which would be incorporated into the record,[4] and, finally, it eliminated the effect of privative provisions in any statute passed before the Act designed to exclude the jurisdiction of this Court.[5]
21 The principles concerning a proceeding under the said Act were discussed in Monash University v Berg and ors[6] and Masters v McCubbery.[7]
22 Save for those changes, the Administrative Law Act did not change the common law jurisdiction of this Court to supervise decisions made by administrative bodies, and the supervisory controls apply to ensure that the tribunal is kept within jurisdiction and that in performing its jurisdiction, it observes the law.[8] An application must strictly conform with the provisions of the Administrative Law Act.[9]
23 The jurisdiction exercised by this Court is concerned with the legality of what was done by the decision maker and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether a decision was right or wrong. On a review, the question is whether the decision was made within jurisdiction and in accordance with the law. The review is not concerned with whether the decision was correct or not. This Court must confine itself to the decision making process and not treat the application as an appeal.[10]
24 The High Court in Craig v The State of South Australia[11] considered the prerogative writ jurisdiction in respect to administrative bodies and stated the law for Australia.
The Witness Protection Act 1991
25 The Act came into operation on 23 April 1991 and dealt in 15 sections with a limited form of protection to persons who were or may be witnesses in criminal proceedings in this State. The Act was concerned with the authorisation to make a new entry to assist change of identity in the Register of Births, Deaths and Marriages and this could be done upon the receipt of a Court order authorising the making of an entry. The application was to be made by the Chief Commissioner of Police and it was necessary for the Chief Commissioner to enter into a memorandum of understanding with the witness. The power was given to this Court to make an order. The Act then went on to provide the effect of an authorising Court order, the effect of any entries made in the Register and the requirement of secrecy. The Act did not deal with a witness protection program.
26 Nevertheless, there was a de facto witness protection scheme in place in 1991, which had been established and which was conducted by Victoria Police. The purpose was to safeguard witnesses and their families, both before and after giving evidence. The nature of the scheme in place was referred to in the Second Reading Speech delivered by the then Minister for Police and Emergency Services when he moved the reading of the Witness Protection Bill. It was noted that the scheme in place offered a witness a chance to change identities and commence a new life in another location. The Bill dealt with the question of obtaining a new birth certificate. The Minister set out the purpose of the Bill, which was to enable a new birth certificate and entry to be created, and the procedure that was to be followed. The authority to create the new entry in the Registry of Births, Deaths and Marriages was given to the police and in that way secrecy was maintained. The Minister then went on to state:
"The improvement to the Victorian Witness Protection Scheme effected by the Bill is the first step towards a national scheme currently being developed under the auspices of the Australian Police Ministers' Council."
27 He observed that the Victorian legislation would be amended when model legislation was drafted by the Commonwealth. He concluded by saying:
"The Bill will provide a major weapon in the armoury of the Victoria Police available to combat serious crimes. It will encourage witnesses to come forward, safe in the knowledge that they will be fully protected at all times against retribution from the criminals they have helped to convict."[12]
28 Statutory provisions dealing with a witness protection program were enacted by the Witness Protection (Amendment) Act 1996.[13] One of the purposes of the amending Act was to make further provision for the protection of witnesses. It established a statutory Victorian witness protection program. The amending Act made provision for certain persons to exercise statutory powers in relation to the creation, establishment and operation of the program. It is convenient to identify the statutory authorities given, and their purpose and effect, in a step by step analysis.
29 Before carrying out the analysis, it is necessary to make a number of general observations about the 1996 amendments. The legislation could be described as "bare bones" legislation, in that Parliament did not spell out in any detail the means by which the program was to be established and operated, or the steps to be taken to bring to an end the involvement of a person in the program. Indeed, it is clear that Parliament left many of the details and issues to be considered, determined and applied to participants in the scheme by the Chief Commissioner and her Deputies. Parliament authorised persons in the highest positions in Victoria Police - the Commissioner and Deputy Commissioners,[14] persons of responsibility, knowledge, wisdom, integrity and intelligence - to establish and work out the program and its operation to give effect to the main purpose of the Act, which was to facilitate arrangements for witness protection and security. The other important purpose of the amending legislation was to provide for arrangements and an exchange of information with authorities in other jurisdictions. It is clear that the Parliament of Victoria entrusted the important tasks to give effect to the purposes of the Act to responsible persons, namely, the Chief Commissioner of Police and, on an appeal, the Ombudsman and later the Director of the Office of Police Integrity.
30 In construing the 1996 amendments, it is relevant to note that it was known to Parliament that there was in place a de facto program which had been operated by the police for many years. During that period, Victoria Police would have gathered considerable knowledge, experience and understanding of the witness program, an understanding of the importance of protection and assistance given to the participants in the program and of the sensitivity surrounding the scheme, its operation and the participants. Importantly, Victoria Police would have an appreciation of secrecy and the necessity of maintaining confidentiality and care in the conduct of the program. Those facts explain the "bare bones" nature of the legislation, which left many matters for the consideration and determination of the Chief Commissioner.
31 I now turn to the scheme of the Act as amended.
A. Victorian Witness Protection Program
32 The program is defined by the Act as being the one "established and maintained by the Chief Commissioner of Police under s.3A".[15]
33 Section 3A provides:
(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."
34 This subsection authorises the Chief Commissioner to establish and maintain a program and in doing so, leaves it to the Chief Commissioner to take such action as is thought necessary and reasonable to protect the witness.
35 Subsection (2) identifies some of the matters that may be included in the action taken by the Chief Commissioner. The action includes applying for a document to establish a new identity or otherwise to protect the witness or family member, relocating a witness, and providing accommodation for the witness and family, and transport for the property of the witness or family member. Section 3A(2)(e) gives the Chief Commissioner wide powers to do anything that was necessary to ensure the safety of the witness or family member. It provides:
(e) doing any other things that the Chief Commissioner of Police considers necessary to ensure the safety of the witness or family member."
36 Subsection (3) prohibits the Chief Commissioner from permitting a witness or family member in the program to represent that he or she has a qualification or is entitled to some benefit that he or she does not have or is not entitled to.
37 It is clear that the details of the establishment of a suitable program and its operation, application and participation are left to the decision of the Chief Commissioner.
B. Inclusion in Program
38 Inclusion in the program of any witness or member of his or her family was left to the decision of the Chief Commissioner. The importance of the decision and the responsibility that was entrusted to the Chief Commissioner is underlined by s.3B(1), which provides:
"(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."
39 An "approved authority" means the Commissioner of the Federal Police, a Commissioner of another State's police force, the CEO of the Australian Crime Commission, and an authority or body of the Commonwealth or State which is authorised to conduct inquiries or investigations in relation to conduct that constitutes criminal conduct, misconduct or corruption.[16]
40 Section 3B(2) prescribes three prerequisites for inclusion in the program, namely -
(i) the Chief Commissioner has decided the witness be included;
(ii) the witness agrees; and
(iii) the parties enter into a memorandum of understanding.
41 Section 5 deals with the Memo of U. It must contain the basis on which the witness is included in the program, the details of the protection and assistance to be provided, and a provision to the effect that the protection and assistance may be terminated if the witness breaches a term of the memorandum. Subsection (2) provides for the inclusion of provisions which range from any outstanding legal obligations the witness has and how they might be dealt with, to future legal obligations and the issue of documents relating to a new identity. Subsection (2) provides guidelines of the provisions, which may be included in a memorandum and which no doubt provide some guidance to the Chief Commissioner when establishing the program and making a decision to include a person in the program.
42 It is noted that the Memo of U must contain a statement advising the witness of the right to complain to the Director "about the conduct of the Chief Commissioner ... or another member of the Police Force in relation to the matters dealt with in the memorandum". See s.5(3).
43 By reason of s.6(1) of the Police Regulation Act 1958, anything under that Act or any Regulation or any other Act concerning the authority and its application by the Chief Commissioner may be done and, if necessary, signed by a Deputy Commissioner, and shall be valid and effectual as if done or signed by the Chief Commissioner.
44 It is noted that under the Police Regulation Act, the Governor in Council may appoint up to four Deputy Commissioners. Section 4(5) authorises an Acting Deputy Commissioner while so acting to perform all functions of the Deputy Commissioner in whose place he or she acts.
45 Given those provisions, it is clear that the authority given to the Chief Commissioner under the Act can be performed by a Deputy Commissioner or an Acting Deputy Commissioner.
46 Section 6(1A) of the Police Regulation Act excludes that authority under s.6(1) in relation to the power given to the Chief Commissioner to dismiss a member of the Force under s.68 or to suspend a member under s.68A of the Police Regulation Act 1958. Save for that exclusion, the authorisation given under s.6(1) appears to be unlimited and, accordingly, reinforces the conclusion that it was the intention of Parliament that a Deputy Commissioner could perform the authority given to the Chief Commissioner.
47 The Legislature entrusted to the Chief Commissioner or a Deputy the sole responsibility for the decision to include a witness in the program. Other than the statutory requirements found in s.3B(2), which included the execution of a Memo of U under s.5 containing certain provisions, the decision is for the Chief Commissioner. Other than certain provisions in the Act which guide the Chief Commissioner, in the end, it is a decision for her and the Deputy, if so acting, based upon their experience, knowledge and understanding of the program and its purpose. The Legislature did not take it upon itself to prescribe the matters that must be taken in account by the Chief Commissioner in considering and determining whether a person should be included.
C. Termination of Protection and Assistance
48 Section 16 of the Act deals with cessation of protection and assistance. The phrase "protection and assistance" is not defined and it is clear that if a decision is made to terminate the protection and assistance, that means the witness no longer being a participant in the program. Subsection (1) requires termination if the participant requests in writing that the protection and assistance be terminated. Section 16(2) empowers the Chief Commissioner to terminate a participant's inclusion in the program. It provides:
"(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
(c) the circumstances that gave rise to the need for protection and assistance for the person cease to exist -
and the Chief Commissioner is of the opinion that, in the circumstances, the protection and assistance should be terminated."
49 It is noted first that the decision is for the Chief Commissioner. In order to bring the program to an end in respect to a particular participant, it is necessary for the Chief Commissioner to form an opinion that in the circumstances, the protection and assistance should be terminated. If the opinion is reached, it must be on the basis of one or more of the matters set out in paragraphs (a), (b) and (c) of subsection (2). Having formed that opinion, it would then be a matter for the discretion of the Chief Commissioner whether the protection and assistance should be terminated.
50 There is nothing in the Act which requires the Chief Commissioner to inform the participant that the Chief Commissioner is considering termination. There is no requirement that a hearing be held or that the participant have any input into the decision, nor is there any requirement that, the decision having been made, reasons should be given for it.
51 However, the Chief Commissioner is obliged first to take reasonable steps to inform the participant of the decision, if termination is the decision, and to notify any relevant approved authority of the decision. See s.17(1) of the Act.
52 Notice was given of the termination to the plaintiffs. However, other than a reference to the matters in s.16(2) of the Act, no reasons were given for the decision.
D. Review by Chief Commissioner
53 A person who has been a participant in the program which has been terminated has a right to apply for a review. Section 17(2) provides:
"(2) Within 28 days after receiving notification under subsection (1)(a), a person may apply and write in to the Chief Commissioner for a review of the decision."
54 The plaintiffs in this case sought such a review.
55 Section 17(3) of the Act makes provision for the review. It provides:
"(3) If an application is made under subsection (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
(c) after doing so, must inform the person in writing."
56 Section 17(4) provides that if the Chief Commissioner confirms the decision, the participant must be given the reasons for the confirmation and must be notified of his or her rights to appeal to the Director.
57 In this case, a review took place and the Chief Commissioner confirmed the decision to terminate the participation of the plaintiffs in the program.
58 It is observed that the Chief Commissioner was obliged to review the decision, which she did, and to give the plaintiffs a reasonable opportunity to state their case. In addition, the Chief Commissioner was obliged to and did provide reasons for her decision.
59 The review took some time to complete. As it was incumbent upon the Chief Commissioner to give the opportunity to the plaintiffs to state their case, the documentation to be placed before the Chief Commissioner was made available for inspection by the plaintiffs and their solicitors, and they were invited to forward material and submissions to the Chief Commissioner. Unfortunately, the plaintiffs and their solicitors adopted an aggressive, and to some extent obstructive, attitude to the review. Correspondence passed between their solicitors and officers of the Victoria Police assisting the Chief Commissioner and also the Victorian Government Solicitor, who at times provided assistance to the Chief Commissioner. A constant theme in the plaintiffs' solicitors' correspondence was that they did not know the case they had to meet and had not been given an opportunity to prepare and submit a case on the review.
60 The Act does not prescribe how the review was to be conducted, and whether the participants were entitled to appear before the Chief Commissioner in any type of hearing. No hearing was held. On the other hand, the legislation has drawn a distinction between "a review" and "an appeal". By 1996, the meaning of a "review", as distinct from an "appeal", had been discussed in the cases and required the decision maker to review the material, consider the decision afresh and make his or her decision on the material before him or her. There was no requirement to provide a hearing. No issue has been raised as to the lack of a hearing.
61 It has been put, not only in the plaintiffs' solicitors' correspondence, but also by their counsel, that they were in some doubt about the case put against them. I have difficulty with that proposition. The Memo of U required a statement of the basis on which a witness was to be included in the program. Reference to the memoranda discloses the reasons in respect to each plaintiff. When the notice of termination was sent to each of the plaintiffs, the notice referred to the matters set out in s.16(2) which were relied upon to terminate their participation. It was not difficult by reference to the memoranda and to those letters to ascertain what the issues were on the review. However, the review was made complicated and became protracted by the attitude of the plaintiffs and their solicitors, and their actions in sending substantial documentation and numerous recordings of telephone calls to the Chief Commissioner without identifying in any real way the issues and the relevance of the material. There is no doubt the most important issue was based on s.16(2)(c) of the Act, namely, that the circumstances which led to the plaintiffs' inclusion in the program had ceased to exist. The plaintiffs and their solicitors fully understood what it was that presented a risk to their security and safety. It would not have been difficult to address that very question. I do not accept the protestations of the plaintiffs and their solicitors that they did not understand the case put against them. In my opinion, they were designed either deliberately or naively to muddy the waters and to make the task of the Chief Commissioner on the review difficult. The attitude of the plaintiffs and their solicitors caused the review to be delayed. The delay extended the plaintiffs' participation in the program.
E. The Appeal
62 Section 17(5) gives the right to a participant whose inclusion in a program was terminated to appeal to the Director. Section 17(5) and (6) deal directly with that appeal. The subsections provide:
"17(5) Within three days after being informed of the confirmation of a decision to terminate protection and assistance, the person may appeal to the Director.
(a) must determine an appeal under subsection 5 within 72 hours of receiving it; and
(b) in doing so, may make any decision that could have been made by the Chief Commissioner."
63 The legislation does not state the nature of the appeal. Further, there is nothing in the Act which requires the Director to give reasons. However, by reason of s.8(1) of the Administrative Law Act 1978, it is strongly arguable that he would be required to give reasons. In any event he did so. The Act does not set out how the appeal should be conducted, and the only matters dealt with are, first, that the Director has to determine the appeal within 72 hours of receiving it; secondly, that the lodging of the appeal renders the original decision to terminate of no effect; and, thirdly, that on the appeal the Director may make any decision that could have been made by the Chief Commissioner.
64 The provisions of s.18 deal with the situation pending the appeal. Section 18 deals with the situation where the decision is made under s.16(2) to determine the participant's involvement. First, it deals with the situation where a person's location is not known and in that event, the termination takes effect at the end of a period of 28 days after steps have been taken to ascertain the location. Section 18(1)(b) is concerned with the situation where the person does not apply for review. Section 18(1)(c) deals with the position where a review takes place and it provides:
"(c) If the person applies for a review of the decision in accordance with section 17(2) and the Chief Commissioner notifies them that the decision has been reversed - has no effect; or ."
65 The decision which has no effect is the one originally made under s.16(2). Section 18(1)(d) deals with the situation where a person is informed that the decision has been confirmed and no appeal is made from that decision. It provides that the decision will take effect three days after the person was notified.
66 Section 18(1)(e) deals with the appeal to the Director and it provides:
"(e) If the person appeals to the Director - has no effect."
67 That is, the original decision to terminate has no effect.
68 It is clear, therefore, that if an appeal is made to the Director, the decision made by the Chief Commissioner under s.16(2) to terminate the protection and assistance has no effect. This means that if anything is to have any effect, it occurs after the Director has decided the appeal.
69 Section 18(2) provides that where the Director has decided on the appeal under s.17(6) that the protection and assistance be terminated, the decision "takes effect when the Director notifies the person of the decision".
70 It is clear from the consideration of sections 17 and 18 that when a person appeals to the Director, the earlier decision made under s.16(2) has no effect. The decision of the Director on appeal will be the effective one. Whilst s.17(6)(b) is expressed in directory language only, it is clear from both ss.17 and 18 that the Director, if he dismisses the appeal, is bound to make a decision confirming the original decision. This must be so, otherwise the decision on the appeal would have no effect.
F. Immunity from Proceedings
71 Section 12 of the Act deals with an immunity from any proceeding against certain persons. The section was enacted in 1991 and the persons who were protected by it were increased in 1996 to include the Ombudsman and later the Director.
72 Counsel for the Chief Commissioner drew attention to the section, which relevantly provides in sub-s.(3):
"3. 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."
73 The present proceeding seeks a review of the decision made by the Director on the appeal. He is one of the persons covered by the immunity. The question is whether the statutory immunity from any proceeding means that no attack can be made upon the decision of the Director on the appeal?
74 The jurisdiction invoked by the plaintiffs is the ancient common law prerogative writ jurisdiction of this Court. It is a jurisdiction which has been exercised by superior courts for many centuries in England and in Australia, the aim being to supervise the decision making process of inferior bodies, namely, statutory courts below the superior courts and administrative bodies. The Court of Kings Bench in England, after the revolution of 1688, used its prerogative writ jurisdiction, including its remedy of damages, to supervise the legality of these inferior bodies. The law developed along the lines of reviewing jurisdictional questions, the observance of the principles of natural justice and error on the face of the record.
75 The High Court in the case of Craig v The State of South Australia[17] discussed the jurisdiction in its modern setting. In particular, the Court was concerned with the writ of certiorari and its application to an inferior court. The Court was concerned with a decision of a court and emphasised[18] that it was necessary to distinguish between an inferior court amenable to certiorari, and those tribunals exercising powers which were also amenable to the writ. The Court's attention was drawn to what Lord Reid said in Anisminic Ltd v Foreign Compensation Commission,[19] where his Lordship identified the type of errors which may constitute error in law. In England, his Lordship's views have been applied to an inferior court, whereas the High Court was of the view that his Lordship's comments should be confined to errors made by an administrative tribunal. As their Honours said,[20] in the absence of a contrary intention in a statute or other instrument which established it, "an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law." Their Honours went on to identify examples of an administrative tribunal falling into an error of law.[21] The Court said:
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
(Emphasis added).
76 As a general proposition, a court will not, in the exercise of its prerogative writ jurisdiction, quash a decision where the administrative tribunal has made an error of fact or reached an unfair or unreasonable decision. As the High Court emphasised, a tribunal falls into error of law if it makes some error as enumerated by the Court, and as a result the tribunal's exercise or purported exercise of power is thereby affected. It is in those circumstances that it exceeds its authorities or powers. In other words, it has acted ultra vires and is guilty of jurisdictional error. But it is not simply a question of establishing error. The error must have affected the exercise or purported exercise of power resulting in the body exceeding its authority or powers.
77 The authority exercised by the persons defined in s.12 of the Act involves matters of a sensitive nature and may involve consequences to persons including injury or death. There is no doubt that s.12(3) provides an immunity to the named persons, including the Chief Commissioner and the Director, from any action or proceedings for damages as compensation for any injury suffered as a result of any act, matter or thing done by that person in the course of his or her duties in accordance with the Act.
78 The question is, does the sub-section protect the Director from this proceeding which invokes the common law jurisdiction? It is a matter of construing the Act to determine the intention of Parliament. Whether the particular section, generally known as a privative or ouster provision, does preclude judicial review depends upon the intention of Parliament.
79 The courts at the highest levels have consistently construed these clauses as not being effective to prevent judicial review of a decision where the end result is that the relevant decision was a nullity. That is, in cases of ultra vires or jurisdictional error, denial of natural justice or error on the face of the record.
80 A Privy Council decision on appeal from this Court considered in 1874 whether a privative clause could deprive this Court of its common law supervisory jurisdiction. The case was The Colonial Bank of Australasia v Willan.[22] In that case, the Court was concerned with the Courts of Mines created by the mining statutes of the 1860s and '70s in the Colony of Victoria. The Mining Statute of 1865 created a Chief Judge, who was to be one of the judges of the Supreme Court, and by s.172 gave an appeal to him in lieu of the appeal originally given to the Supreme Court. Section 244 provided:
"That no proceedings under that Act should be removed or removable into the Supreme Court, save and except as therein before provided."
81 Their Lordships noted[23] that the power to remove the proceeding relating to a winding up order into the Supreme Court was taken away by statute. The Privy Council went on to state:
"It is, however, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior court, but to control and limit its actions on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen's Bench will grant certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it."
(Emphasis added).
82 Their Lordships went on to consider what is meant by "want of jurisdiction" and the Judicial Committee said:[24]
"There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes."
"But an objection that the judge has erroneously found a fact which, though essential to the validity of order, he was competent to try, assumes that, having general jurisdiction over the subject matter, he properly entered upon the enquiry, but miscarried in the course of it. The superior court cannot quash an adjudication upon such an objection without assuming the functions of a Court of Appeal, and the power to re-try a question which the judge was competent to decide."
84 As their Lordships held, unless there is a defect which appears on the face of the record, a court will not, on certiorari, quash an adjudication made within jurisdiction on the ground that any such fact "however essential, has been erroneously found."[26]
85 There are many examples of Acts of Parliament containing a privative clause which sought to oust the prerogative writ jurisdiction. Despite such clauses, subject of course to the wording of the section in question, the courts have generally held that the attempts at ouster of the Court's jurisdiction did not operate to exclude jurisdictional error. In contrast, s.12(3), although couched in wide language, does not specifically address the question of excluding the common law jurisdiction. I agree with the submission of Dr Hanks QC, who appeared with Ms R. Orr for the Chief Commissioner, that there is no warrant to read down the wide application of s.12(3). But having said that, in my view, the clause does not exclude the quashing of an order because of jurisdictional error. Indeed, I did not understand Dr Hanks to suggest otherwise. However, he submitted, with some force, that the immunity provided in s.12(3) ousted any error in the course of the exercise of the jurisdiction. Indeed, there are many cases where the ouster provision has been held to exclude any interference with non-jurisdictional error of law. There is force in the submission that a non-jurisdictional error is covered by the sub-section and precludes relief.
86 The Privy Council decision in Colonial Bank, supra, has been applied many times in the cases. The cases accepted that the ouster-type provisions protect only non-jurisdictional patent errors of law. By way of example, see R v Visiting Justice at Pentridge,[27] where Harris J dealt with an ouster clause which was expressed to deny the prerogative writ of certiorari. His Honour held that notwithstanding such a privative clause, the Court still retained jurisdiction to control a proceeding of an inferior body upon the ground of manifest defect of jurisdiction. More recently, in Anderson v Judges of the District Court (NSW),[28] Kirby P, speaking for the Court of Appeal, said that there was a distinction between the wrongful or erroneous exercise of jurisdiction, which would fall victim to the terms of any section seeking to oust the common law jurisdiction, and an excess of jurisdiction which in the end would not amount to a proper exercise of the authority given to the decision making body. As his Honour emphasised, an erroneous exercise of jurisdiction would be ousted by the provision.
87 In my opinion, s.12(3) would protect the Director from any error made in the course of the proper exercise of his jurisdiction, assuming such exercise did not amount to a manifest defect in jurisdiction. This is made clear by what the High Court said in Craig's case.[29] An erroneous finding may result in the decision maker exceeding his jurisdiction, but only if "the tribunal's exercise or purported exercise of power is thereby affected".
88 If follows that some errors made in the course of exercising jurisdiction, as identified by the High Court, may amount to a defect in the exercise of the jurisdiction. In other words, the way the jurisdiction was carried out was not a proper performance of the decision maker's statutory authority. The law has moved on since the Privy Council decision in 1874. The statement by the High Court in Craig's case is the present law in Australia.
Grounds of Review
89 The order for review contained seven grounds and referred to an attached schedule, which alleged that there were particular errors made by the Director on the appeal. Plaintiffs' counsel in the end did not seek to rely upon the matters set out in the schedule, save that the alleged errors made by the Chief Commissioner when deciding the review were identified. This proceeding is not concerned directly with the decision made by the Chief Commissioner. The decision which is the subject of review is the appeal decision of the Director. Nevertheless, the Chief Commissioner's review was the subject of the appeal and the alleged errors were matters for consideration and determination on the appeal.
90 I now turn to the grounds.
A. Director Misunderstood his Appellate Functions
91 The ground is expressed as follows.
"1. The tribunal (the Director) misunderstood its proper functions in determining the plaintiffs' relevant appeal under s.17(6) of the Act in so far as it decided that it was empowered to perform its functions as if it were a Court of Appeal. Instead, it was required by the Act to positively satisfy itself as to whether the decision under appeal was made either correctly or wrongly in both fact and law, and, in so doing, to consider afresh whether the plaintiffs' participation in the programme should be terminated pursuant to s.16 of the Act."
92 This ground raises the questions of the nature of the appeal, and whether the Director correctly defined the appeal and performed his appeal function in accordance with the law. This ground raises a question of jurisdiction.
93 The common law did not recognise a right of appeal. An appeal from a decision to another body is a creature of statute. Ever since the 19th Century, Legislatures in the common law world have used a variety of words to describe the nature of an appeal. The descriptions range from a "strict appeal", "appeal in the nature of a re-hearing" to an "appeal being a re-hearing de novo". It is trite law that the nature of the appeal depends upon the intention of the Legislature which enacted the right of appeal. This oft-repeated observation expresses a simple notion, but proves often to be a difficult practical test to apply to the legislative provision. The courts over the last 150 years have spent far too much time in discussing this very question, and Parliament should by now appreciate that there are various types of appeal. Parliament should give consideration to the nature of the appeal and express it in clear and simple terms. Sometimes it does. Unfortunately, it did not do so in the Witness Protection Act.
94 As a general proposition, an appeal is a process by which the losing party has the right to go to a body to have the original decision set aside or varied on the ground that it is wrong. In other words, the party seeks on appeal to redress an error of the decision maker at first instance. The courts have often considered the nature of an appeal between courts. In the present proceeding, however, we are not dealing with an appeal from one court to another. In Turnbull v New South Wales Medical Board,[30] Glass JA[31] identified the various statutory appeal processes to a court.
95 In that case, the Court was dealing with a situation where a medical board had removed the name of a practitioner, who exercised a statutory right of appeal to the Supreme Court in accordance with rules of Court. The section provided that the Court may make such order in the matter as it thinks fit, having regard to the merits of the case and to the public welfare.
96 Glass JA stated:[32]
"Appeal is a term loosely employed to note 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."
97 His Honour then graded them in ascending order, his first reference being to appeals to the supervisory jurisdiction, which in my respectful opinion are not appeals. He then listed the following appeal processes:
(i) Appeals on questions of law only, which meant undetermined or wrongly determined issues of fact had to be remitted;
(ii) Appeals after a trial before judge and jury;
(iii) Appeals from a judge in the strict sense, that is, if the judge has fallen into error of law or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment.
(iv) Appeals from a judge by way of re-hearing. Glass JA observed:
"If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive."
(v) Appeals involving a hearing de novo, which means that all issues must be retried.
98 In this proceeding the appeal is not to a judicial body but to the Director, who occupies an administrative position.
99 As stated, the Director gave reasons for his decision on the appeal. In his reasons he addressed the nature of the appeal.
100 The Director stated the nature of the appeal at paragraphs 13 and 14. He said:
"13. Under s.17(6) of the Act I am required to determine an appeal 'within 72 hours after receiving it.' I am therefore required to obtain and absorb all relevant materials and to determine an 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.
14. To assist me in this task, the Chief Commissioner has provided me with the notices of cessation and the documents on which she relied in reaching her decision to terminate protection to A1 and A2. I note that the documents provided by the Chief Commissioner include correspondence and other documents provided by A1 and A2 in the course of the Chief Commissioner's review of the original decision to terminate. These documents put a number of arguments as to why the Chief Commissioner should not terminate protection and assistance to A1 and A2."
101 It is observed that the Director was of the opinion that the appeal required him to consider whether the Chief Commissioner's review was in compliance with the statute and, secondly, whether the decision was reasonably open to the Chief Commissioner. This involved the Director being satisfied that the Chief Commissioner in carrying out the review considered all relevant matters afresh, and that she considered the issues raised by s.16 as to whether it was appropriate to form the opinion and whether it was supported by sufficient evidence. The Director was bound to consider whether the plaintiffs were given a reasonable opportunity to state their case. The second part of his task was to determine whether on all the evidence, the decision made by the Chief Commission was reasonably open to her.
102 The Director took the view that the decision for him on appeal was not whether or not the plaintiffs' participation in the program should be terminated, but whether the findings and conclusion made by the Chief Commissioner in all the circumstances before her were reasonably open. The Director stated that he was required to take an approach "such as that taken by courts of appeal". By defining what he meant in paragraphs 13 and 14 of his reasons, it is clear that he is saying that that form of appeal is one taken by courts of appeal in certain circumstances. Of course, there are various types of appeal to courts of appeal, and the Director identified as his task one of the types of appeal heard by a court of appeal. What the Director was alluding to was what might be described as a "strict approach" to any appeal, namely, a consideration of whether the requirements of law were satisfied and whether the decision was reasonably open to the Chief Commissioner. The latter question is analogous to the approach of an appeal court to a verdict of a jury on a question of fact. Invariably, the test stated by the authorities is that the Court should not interfere with any finding of fact which was reasonably open to the jury, unless it was perverse.
103 In considering his reasons, it is clear that the Director took the view that his task was to consider, first of all, whether the Chief Commissioner had addressed all relevant issues before her; secondly, whether the plaintiffs had been given a reasonable opportunity to state their case; and, thirdly, whether it was open to her on a factual basis to come to the conclusions that she reached. It is clear from the reasons that the Director examined events leading to the review, the issues, the evidence and the conclusions to determine whether the Chief Commissioner had performed her review task in accordance with the law and made a decision which was open on the facts.
104 The Legislature enacted an appeal to the Director. It did not choose any other body to hear the appeal. It could have prescribed an appeal to a court or an administrative tribunal. It did neither. It entrusted the appeal originally to the Ombudsman, and later to the Director, without prescribing the nature of the appeal or the procedure that should be followed. The Director does not have to have legal qualifications for appointment. Of course, legal qualifications would not be a bar to appointment.
105 In the absence of any enactment concerning procedure, it is implied that the body has an inherent power to devise a procedure for the exercise of the statutory appellate jurisdiction. This is in order to enable the body to effectively perform its statutory function.
106 In Edgar v Greenwood,[33] Madden CJ held that where a function is prescribed for a public officer, judicial or quasi-judicial, and jurisdiction is given to him to deal with certain matters and no procedural rules are provided for dealing with them, the officer in question must do his best with the means that he has available to him. In the present case, the question of the procedure to be followed on the appeal was entrusted to the Director, who had an implied power to determine how the appeal should be conducted. As things turned out, persons from his office on two occasions prior to the appeal had discussions with the plaintiffs' lawyers, and those discussions identified the grounds of appeal. The Director then proceeded to consider the material that was made available to him, being the material that was before the Chief Commissioner. No criticism has been made of the procedure he adopted.
107 What did Parliament intend to be the nature of the appeal?
108 In Coal and Allied Operations Pty Ltd v AIRC,[34] the members of the High Court discussed the various types of appeal.
109 In that case, Gleeson CJ, Gaudron and Hayne JJ said:[35]
"It was pointed out in Brideson [No. 2] [1990] HCA 36; (1990) 170 CLR 267 at 273 that: 'The nature of an appeal must ultimately depend on the terms of the statute conferring the right of appeal'. 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."
(Emphasis added).
110 Their Honours then went on to describe what is normally understood by an appeal in the strict sense. Their Honours said:[36]
"It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the laws that stood when the decision was given as an appeal in the strict sense. ... In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substitute the decision that should have been made at first instance."
111 Their Honours emphasised, however, that if the appellate tribunal could receive further evidence and its powers were not restricted to making the decision that should have been made at first instance, then it is usual to infer that the appeal is by way of rehearing. This means an appeal is conducted on the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. However, as their Honours pointed out, even where there is an appeal by way of rehearing on the evidence below, the appellate body can only interfere if there was an error on the part of the primary decision maker.
112 Kirby J dissented, however he did discuss at some length the issue of the nature of an appeal. His Honour's observations are of assistance and in my respectful opinion represent the law.
113 His Honour, after noting that the cases had identified no fewer than six categories of appeal and observing that within the broad categories there are sub categories, then went on to say:[37]
"In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is the careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies."
114 Having observed that there is some guidance in defining an appeal in the strict sense or by way of rehearing, it is necessary to closely examine the statute and the functions of the appellate body. His Honour said:
"(That) it remains for the appellate body in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play."[38]
"Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be."
116 In an earlier case, Mason J discussed appeals from administrative bodies in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[41]. It is to be observed that his Honour's views concerned an appeal from an administrative body to a court. Often, such an appeal does require a rehearing de novo because of the difficulties involved in the appeal process and, in particular, in having a record and the evidence of what occurred below.
117 In Strange-Muir v Corrective Services Commissioner of NSW[42], McHugh JA (with whom Priestley JA agreed) said that there was a presumption as to the nature of an appeal where there was an appeal from one administrative body to another. He expressed his view in this way after referring to two authorities:[43]
"It is true that these two decisions were not uninfluenced by the terms of the legislation which they were considering. Nevertheless they are 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. Uniformity of approach in this area of the law is highly desirable. Accordingly, I think that those two cases should be taken as establishing that there was 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."
(Emphasis added).
118 Three members of the High Court in Re Coldham; Ex-Parte Brideson [No 2][44] discussed the case[45] without any criticism, but emphasised that the nature of the appeal must ultimately depend upon the terms of the statute conferring the right.
119 These principles provide guidance as to the nature of the appeal in the present proceeding. As has been stated on numerous occasions, in the end it is a question of the intention of Parliament as to the nature of the appeal. In determining that intention, there is the presumptive rule, there are questions of policy, there are questions of the powers given to the appeal body by the legislation, the nature of the appeal body and whether it comprises a trained lawyer, the history of the legislation, the surrounding circumstances and any particular legislative direction as to the conduct of an appeal and the decision making process.
120 In my opinion, the appeal to the Director was an appeal in the strict sense, in that the Director was required to be satisfied that on the review, the Chief Commissioner identified, considered and determined all issues relevant to the question of whether the plaintiffs' participation of the program should be terminated and whether the findings of fact made by her were open to her on the evidence before her. I reach that conclusion for a number of reasons.
121 First, the legislation dealing with the appeal is "bare bones legislation", with little legislative prescription as to the nature of the appeal. There was no power given to adduce further evidence. The jurisdiction given to the Director on the appeal was confined to him allowing or disallowing the appeal, and confirming or reversing the decision of the Chief Commissioner made on the review. In my opinion, s.17(6)(b), whilst expressed in directory language, required the Director to either confirm or reverse the decision made on the review. This is so because in the end it is the Director's decision which has effect, and not the decision made by the Chief Commissioner.
122 Secondly, the history and policy of the Act make 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. The history of the legislation shows that when the Act was enacted in 1991, it did not contain any provisions relating to a witness protection program. And yet it is clear from the Second Reading Speech that at that time such a program was in existence and conducted by Victoria Police. The purpose of the scheme which was then in place was to safeguard and protect witnesses and their families, both before and after the giving of evidence. There is no doubt that the provision and operation of such a scheme is essential to combating crime in this State, and is in the public interest. On the other hand, the scheme carries with it a risk of danger to the participants, and accordingly, those who have knowledge of the scheme must be few in number, and the scheme must be the subject of secrecy and confidentiality, with safeguards to protect the witness. How the scheme was to operate was a matter for Victoria Police, who would have been experienced in making provision for the necessary safeguards.
123 Thirdly, 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.
124 Fourthly, when Parliament enacted the 1996 Act which introduced the program, the establishment and maintenance of the program was a matter for the Chief Commissioner of Police. 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 witness or member of the family, and although s.3A did give some guidance as to the action that could be taken, in the end it was left very much to the decision of the Chief Commissioner. Further, Parliament entrusted the question of inclusion of witnesses into the program to the sole responsibility of the Chief Commissioner. Section 3B indicated what had to be satisfied, but having said that, Parliament gave no guidelines to the Chief Commissioner as to the decision that a witness be included. Parliament left that question to the judgment of the Chief Commissioner.
125 Fifthly, Parliament left the question of the removal of 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.[46] In forming that opinion, Parliament provided that the Chief Commissioner was to give consideration to three particular matters, the third of which covered a broad spectrum of circumstances which gave rise to the need for protection and assistance and the fact that they had ceased to exist. There was no requirement to have a hearing or indeed to give notice that the Chief Commissioner was proposing to terminate the assistance. It was left to the Chief Commissioner to make the decision, and if the decision was to terminate, the Chief Commissioner was bound to notify the witness.
126 Again, it is pertinent to observe that Parliament entrusted the Chief Commissioner with the task of forming the opinion. 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.
127 Sixthly, Parliament entrusted the Chief Commissioner with responsibility for reviewing his or her own decision. Parliament gave some guidance in relation to this review, namely, that the Chief Commissioner must review the decision and give the witness a reasonable opportunity to state his or her case. Again, it is pertinent to observe that the question of how the review was to be conducted was left to the judgment of the Chief Commissioner, who, because of his or her knowledge and experience of the witness program, would be in an excellent position to evaluate the witness's participation in the program, the participant's conduct and whether the circumstances which gave rise to the initial protection and assistance still existed and, if so, to what extent.
128 Seventhly, the appeal was entrusted originally to the Ombudsman, and later to the Director of the Office of Police Integrity, a person who was not required to have any legal qualification, but, more importantly, Parliament prescribed that the appeal must be determined within 72 hours. The Director, as the head of the Office of Police Integrity, occupies an important position in a body concerned with the behaviour of Victoria Police. On the other hand, as Ombudsman, and later Director, he would not have the same knowledge and understanding of a witness protection program that the Chief Commissioner had. The requirement that the appeal be determined within 72 hours after receiving it 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.
129 I am satisfied that the Director did not misdirect himself as to the nature of his jurisdiction when he stated that his function was to consider, first of all, whether the Chief Commissioner has complied with the requirements of the statute, and secondly, whether the decision was reasonably open to her in all the circumstances prevailing at that time. The requirements of the statute were that the Chief Commissioner must review her decision made under s.16(2) and must give the person in the program a reasonable opportunity to state his or her case.
130 This involved the Director considering whether the plaintiffs were given a reasonable opportunity to state their case, the Chief Commissioner's review of the decision, how she went about it, and whether she identified the issues and came to a conclusion on the evidence leading to the formation of an opinion. On the factual matters, it was a question of whether there was evidence to support the Chief Commissioner's findings of fact and whether the findings were reasonably open.
131 In my opinion, the Director in stating his task on the appeal at paragraphs 13 and 14 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.
132 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.
B. Chief Commissioner's Functions Non-delegable
133 This ground raises the question of the decision made by Acting Deputy Commissioner Walshe under s.16(2) when he terminated the program in respect of the plaintiffs. It was submitted that he had no power to make that decision under s.16(2) and therefore that the decision was a nullity. It was submitted that the Act intended that the Chief Commissioner was the only person who had that power. It was submitted that if that decision was made contrary to the statutory power, it was a nullity and everything which occurred thereafter was a nullity.
134 Section 16(2) authorises and empowers the Chief Commissioner to terminate the participation in the program. However, by reason of s.6 of the Police Regulations Act 1958, a Deputy Commissioner is given the same power. Section 6(1) applies to the present situation. There is nothing in the Act to suggest that the sub-section should not be construed in accordance with its wording. Indeed, the conclusion is reinforced by s.6(1A), which excludes the authority given by the sub-section in relation to particular matters. By reason of s.4(5), an Acting Deputy Commissioner may perform all the functions of the Deputy Commissioner in whose place he or she acts. I am satisfied that Acting Deputy Commissioner Walshe, as he was at that time when the decision was made, had the necessary power to terminate the plaintiffs' participation in the program.
135 Counsel for the plaintiffs sought and were granted leave to add an alternative ground to this ground, which in effect was that if Deputy Commissioner Walshe was empowered to terminate the program in relation to the plaintiffs, then he was the only person who was empowered and required by s.17(3) to conduct the review of the prior decision.
136 It was submitted that this followed because s.16 authorised the Chief Commissioner to bring the program to an end and s.19 authorised the Chief Commissioner to review that decision. It was submitted that in this context, it was the intention of Parliament that the same person should perform both tasks, especially as on the review the person would have a very good understanding and knowledge of the reasons for determination. In my opinion, there is nothing in the Act to lead to that conclusion. Further, it is clear from s.17(3) that the Chief Commissioner must review the decision. She is required, if the decision is confirmed, to give reasons. In my opinion, on the review the Chief Commissioner must consider the matter afresh and make her own decision based on all the material before her and after giving the participant a reasonable opportunity to state his or her case. A consideration of s.16(2) identifies the issues involved in reaching the decision and what would be relevant to those issues. I do not think that the Chief Commissioner in the present proceeding would be in any better or worse position by reason of the fact that she did not make the decision under s.16(2), nor do I think that Deputy Commissioner Walshe, because he had made the decision to terminate, was in any better position to conduct a review than some other person. Indeed, fairness may suggest that they should be different persons, although Parliament has not expressly provided for different persons making the decisions. I do not accept that it was the intention of Parliament that the person who made the decision under s.16(2) of the Act must conduct the review.
137 In my opinion, this ground, together with the additional ground, fails.
C. Denial of Procedural Fairness by Chief Commissioner
138 Grounds 3 to 5 of the order for review attack the decision-making process of the Chief Commissioner.
139 These grounds raise the following issues:
(a) That the Chief Commissioner did not give the plaintiffs a reasonable opportunity to be heard in that she relied upon material matters without prior warning, namely -
(i) that the Chief Commissioner relied upon a risk assessment which was received in the course of the review and not notified to the plaintiffs;
(ii) that she took into account irrelevant matters relating to the first plaintiff's conduct prior to his entry into the program; and
(iii) that she considered and made a finding under s.16(2)(b) which was not a ground relied upon to terminate the protection by Acting Deputy Commissioner Walshe.
140 As a general proposition, if a fact finding body makes a decision affecting the rights of another, and in so doing relies upon a matter which was never notified to the person affected by the decision, then there has been a denial of natural justice and the decision should be set aside. Under s.17(3)(a), the Chief Commissioner in performing the review was bound to give a reasonable opportunity to the plaintiffs to state their case.
141 In Keller v Drainage Tribunal and Montague,[47] Murray J held that for a body to decide the matter on a basis that was never raised by the parties and without giving them the opportunity to be heard, was a denial of natural justice.
142 The first observation is that the present proceeding is not concerned with the legality of the Chief Commissioner's review. It is concerned with the decision made by the Director on the appeal.
143 It was submitted, however, that if the Director did not conduct a merits review on appeal, that is, decide the matter himself, then on the Wednesbury principles the decision ought to be set aside. Wednesbury unreasonableness, as it is called, applies to any decision which is so obviously wrong or outrageous that no sensible person who applied his mind to the question could have arrived at that decision. I must say I have difficulty with the submission of the plaintiffs' counsel that that principle applied to the outcome of the appeal.
144 The matters raised by counsel are matters that are relevant on the appeal to the Director. It would be open to the plaintiffs to argue on the appeal that the review decision by the Chief Commissioner was not in accordance with the law, in that she did not give the plaintiffs a reasonable opportunity to state their case for consideration.
145 If on the appeal the matters were not considered, the interesting question arises as to whether this Court has jurisdiction on this review to quash the decision made on appeal.
146 What is jurisdictional error depends on whether it is an inferior court whose decision is under review or whether it is an administrative body.
147 In Craig's case, the High Court[48] discussed the question of jurisdictional error by an administrative tribunal. I have set out above at paragraph 73 what the Court said.
148 However, as noted above, jurisdictional error entails not only showing error, but also "the tribunal's exercise or purported exercise of power is thereby affected", resulting in the body exceeding "its authorities or powers". This important qualification was noted by the Court of Appeal in RSL of Australia (Victoria Branch) Inc v Liquor Licensing Commission.[49]
149 Phillips JA, speaking for the Court after referring to what the High Court said, stated:
"The appellants' outline omitted altogether the critical expression 'and the tribunal's exercise or purported exercise of power is thereby affected' which plainly serves to qualify all the descriptions of error which precede it. Thus, to ask a wrong question, to ignore relevant material and so on, is jurisdictional error if - but only if - 'the tribunal's exercise or purported exercise of power is thereby affected'. One may imagine readily enough a case in which that will be so, but again, there will be many cases - and perhaps more commonly - where it is not so. Ultimately, at all events when what is in question in the course of decision making (as was the case here), the task for the Court from which certiorari is sought must be to distinguish between, on the one hand, those matters which the tribunal is given the jurisdiction to decide, and even to decide wrongly (so that error does not go to jurisdiction), and on the other hand those in respect of which, while it may have the power to enquire into them, it does not have the jurisdiction to decide wrongly (so that error does go to jurisdiction)."
(Emphases added).
150 In my opinion, the Wednesbury principles have no application to this ground. The question is whether on the appeal these questions were dealt with and, if error is demonstrated, was the Director's exercise of power thereby affected to the point where it constituted a jurisdictional error?
151 In Coal and Allied Operations Pty Ltd v AIRC,[50] Kirby J highlighted the difficulties of determining whether there has been an error of law that goes beyond an error within jurisdiction and amounts to a jurisdictional error. His Honour said:[51]
"The remedies of judicial review invoked in this case are only available to require the correction of a category of legal mistake that goes beyond 'an error within jurisdiction' and amounts (relevantly) to a 'jurisdictional error'. ...
Distinguishing cases where the officer or authority has simply made a factual or legal error in the course of reaching a decision from cases where that error is classified as a constructive failure to exercise jurisdiction is not at all easy. What is ordinarily involved in the latter is a misapprehension on the part of a decision maker of the nature of the powers and functions which the decision maker is called upon to exercise or of the essential conditions by reference to which that exercise must occur. The misapprehension must be such that, in truth, it can be said that a purported exercise is not a performance of the powers and functions entrusted to the decision maker at all. It is a pretended or assumed discharge. But in the eye of the law, the powers and functions have never been lawfully performed."
(Emphasis added).
152 The questions, therefore, are whether the Director considered the issues which were identified, whether in considering the decision made by the Chief Commissioner on these matters, his decision demonstrated an error of law, and if so, whether that error of law amounted to jurisdictional error. I may say that the general principles I have stated above were relied upon by counsel for the Chief Commissioner, but in addition the immunity from proceeding provision in s.12(3) was also relied upon. However, for reasons stated, if there was an error, and if it was a jurisdictional error, then s.12(3) does not assist the Director.
153 The Chief Commissioner, in making her decision on the review, referred to all three statutory grounds found in s.16(2) as bases for the opinion that the protection and assistance should be terminated. It was submitted that the ground in s.16(2)(a) was not relied upon by Deputy Commissioner Walshe when he made his decision under s.16. Accordingly, it is submitted that in so deciding on the review, this denied the plaintiffs the opportunity to state their case. This matter was discussed in the reasons of the Director, who was of the opinion that it was not open to the Chief Commissioner on the review to rely on that ground. However, having said that, he noted, and in my opinion correctly, that s.16(2) provides alternative heads to the formation of the opinion by the Chief Commissioner.
154 The Director in his reasons said this:
"In my view, the Chief Commissioner was not entitled to rely on ground (a) in her review of the original decision. In the context of s.16(2), where only one of the three requirements needs to be satisfied, I cannot see that this could or should be seen as a fatal flaw in the decision making process, provided that one or more of the requirements originally relied upon by Mr Walshe are made out. That is not to say, however, that the matters referred to by the Chief Commissioner as being grounds under s.16(2)(a) should be entirely dismissed."
155 He then went on to observe that those matters would be relevant to the formation of the opinion.
156 Whilst it is strongly arguable that the Chief Commissioner was wrong in considering s.16(2)(a) as a head of evidence to form the opinion, without informing the plaintiffs and giving them an opportunity to state their case in respect thereto, the fact was that the Director did in the appeal process consider that matter and conclude that it was clear from the Chief Commissioner's reasons that she had formed the opinion on all grounds, which were in the alternative. In other words, there was ample evidence based on each of the other grounds to support her conclusion. In my opinion, the Director did not make any error in dealing with this issue on the appeal.
157 The next complaint concerned the finding made by the Chief Commissioner when considering the head of evidence under s.16(2)(b) of plaintiff A1's conduct prior to inclusion in the program. It was submitted that this was irrelevant and should not have been taken into account by the Chief Commissioner. That submission was upheld by the Director. He considered that question. He was of the view that the Chief Commissioner should not have taken the matters into account. I would question that conclusion. Section 16(2)(b) is concerned with a participant's conduct or threatened conduct in the course of the program, which is likely to threaten the security or compromise the integrity of the program. Conduct prior to his inclusion, including any warnings given, in my view could bear upon the conduct of the participant during the program. His attitude to the requirements of the program during that period can be seen in the light of his prior conduct. However, as I have stated, the Director gave consideration to that question and formed the view that the Chief Commissioner should not have relied upon it. However, as he pointed out in paragraph 21 of his reasons, there was significant conduct in the course of the program which justified a finding that plaintiff A1's conduct was likely to threaten the security or compromise the integrity of the program. As the Director pointed out, one of the categories of conduct was extremely serious and by itself provided a reasonable basis for the Chief Commissioner to form the opinion. In my opinion, the Director did consider the ground of complaint and in so doing and reaching his conclusion did not make any jurisdictional error.
158 In the course of considering the conduct, the issue of plaintiff A1's mental state was raised as an explanation of some of his behaviour. The Chief Commissioner considered that matter. So did the Director on the appeal.
159 Finally, it was put that the plaintiffs were not given a proper opportunity to meet the report prepared by Victoria Police as to the risk assessment. There were a number of reports. A criticism is made that the last report was not provided to the plaintiffs before the review decision.
160 The question of the last report and the later considerations of it, was discussed by the Director in his reasons. One matter that cannot be overlooked is that the risk assessment had been prepared based on an Australian Standard for risk management. A criticism was made that the risk assessment was incomprehensible. The Director noted that. He did not agree with the contention. Neither do I.
161 The threat assessment was carried out and prepared pursuant to an Australian Standard for risk management. It was performed in September 2006 and was reviewed in December 2006. On 21 December 2006, the officer responsible for reviewing the September assessment confirmed its accuracy, and the conclusion was that the risk was low. On 10 January 2007, the plaintiffs' solicitors received a copy of the review and were invited to make submissions, which they did on 11 January 2007. The Chief Commissioner considered the conclusions. During the course of the determination of the review, on 15 January 2007 the threat assessment was again reviewed and no change to the assessment was made. The Chief Commissioner took the view that since the later assessment did not reveal any new material that was adverse to the interests of the plaintiffs, it was not necessary to give them the opportunity to make further submissions. The Chief Commissioner concluded that the threat of harm to plaintiff A1 was low.
162 The Director considered the reasons and noted what had occurred in January 2007. The Director did not specifically refer to the later review of 15 January 2007, and it is clear from the material before him that it did not form a specific ground of appeal enumerated in paragraph 12 of his reasons arising out of discussions had between the plaintiffs' solicitors and representatives of the Director.
163 In my view, the fact that the later review merely confirmed the earlier review and was not conveyed to the plaintiffs did not compromise their position to present their case. The case that they were to meet included, inter alia, an assessment that the risk to plaintiff A1 was low. That was the state of the evidence before the Chief Commissioner and was the subject of submissions put by the plaintiffs' solicitors. The later review did not change the factual situation which the plaintiffs were given the opportunity to meet.
164 In my view, the plaintiffs have not established that, in carrying out the appeal process, the Director did not address the questions and issues of natural justice. In my view, he did. I am not persuaded that in performing his function in the appeal process raised, he made any jurisdictional error in respect to the matters raised. The grounds fail.
D. Decrease in Level of Risk
165 Ground 4 asserted that the Chief Commissioner and the Director misconstrued s.16(2)(c) in deciding that where the risk level of threat to the safety of a person in the program was downgraded to low, there was a sufficient basis for concluding that the need for protection and assistance for the person had ceased to exist. It was submitted that the fact that there was a low risk meant that it was not open to the Chief Commissioner to conclude that the need for protection and assistance had ceased to exist.
166 In considering this ground, it is again necessary to emphasise that this Court is not sitting on an appeal from the Director, but is exercising its common law review jurisdiction.
167 The Director on the appeal did consider this question. In particular, he addressed the question that the risk assessment described the risk as "low" and the argument that it could not be said that the need for protection and assistance for plaintiff A1 had ceased to exist. He then considered the factual matters relating to that. No error has been demonstrated which goes to jurisdiction in relation to his dealing with that. Indeed, in my view, what the Director did was in accordance with his duty as an appellate body to consider this question and determine whether the appeal should be allowed. He considered the ground and rejected it. No jurisdictional error has been demonstrated. The ground fails.
168 Nevertheless, I observe that s.16(2)(c) is concerned with the circumstances that gave rise to the protection and whether the need has ceased to exist. The fact that it is a low risk does not mean that one cannot fairly, reasonably and properly arrive at a conclusion that the need has ceased to exist. In arriving at that conclusion, it would be necessary to consider the risk or risks which led to inclusion in the program and compare that situation with the present situation. It would be open on the comparison to conclude that the need had ceased to exist even in the presence of the assessment of low risk.
169 No error has been established which demonstrates that the Director did not properly perform his task as an appellate body in respect to this issue.
E. Material Irrelevant Considerations
170 Ground 7 states that if the Director was acting within jurisdiction, he erred in law by failing to uphold the appeal on the ground that in the merits review, the Chief Commissioner took into account irrelevant considerations of the kind identified in paragraph 1 of the schedule attached to the order for review, and that this would have justified the upholding of the appeal.
171 The particulars of irrelevant matters were the finding by the Chief Commissioner of plaintiff A1's conduct prior to his formal entry into the witness protection program, and also her finding under s.16(2)(a) of the Act. I have already discussed these matters above.
172 The Director in his reasons considered both of these questions. He was of the view that both were irrelevant and could not be taken into account. However, he was satisfied that there was ample evidence supporting the s.16(2)(b) finding, ignoring the irrelevant matters prior to the formal entry, secondly, that s.16(2)(a) was an alternative basis for the formation of the opinion and, thirdly, that there was ample evidence to support the opinion on the other bases in s.16(2)(b) and (c).
173 In my opinion, the Director did address these questions. Accordingly, he was acting within jurisdiction. No error has been demonstrated.
174 Although not relevant to the outcome of this judicial review, in my opinion the Director's approach was correct. Ignoring the findings made on the review under s.16(2)(a), there was ample evidence supporting the other two grounds relied upon by the Director to form the opinion and, further, ignoring the irrelevant matters of pre-program conduct, there was ample evidence to support the findings.
175 This ground also fails.
Conclusion
176 In my opinion, the plaintiffs have failed to establish any jurisdictional errors or errors on the face of the record, for quashing the decision made by the Director on the appeal. Accordingly, the proceeding must be dismissed. I will hear the parties on the appropriate orders. Consideration may have to be given to orders made by Dodds-Streeton J last year, as varied by the Court in January this year. It will be necessary to make an order dismissing Deputy Commissioner Walshe as a party.
177 Before leaving this proceeding, I think it would be helpful if the Chief Commissioner and the Director adopted a number of procedural rules to ensure that all issues are identified and addressed, and that an opportunity is provided to a participant to respond to such issues.
178 The Act does not set out any procedures to be followed, save and except that in certain circumstances the statutory jurisdiction must be exercised in a certain way.
179 The common law did not require an administrative body to give reasons for its decision. Section 8(1) of the Administrative Law Act 1978 in some circumstances requires a decision maker to give reasons if requested to do so.
180 There is no obligation under the Act for the Chief Commissioner to give reasons for a decision to terminate a participant's involvement in the protection program pursuant to s.16(2). However, the Chief Commissioner is required by s.17(1) to take reasonable steps to notify the person of the decision.
181 It would be wise, in notifying the participants, to state the heads of evidence as set out in s.16(2) relied upon to form the opinion. Having specified which or all of the provisions were relied upon, it would be wise and helpful to identify by particulars the particular factual matters which were considered and taken into account. This would not be in the form of reasons, but rather particulars of factual matters. The benefit of this approach is that it would identify the issues for any review and focus the minds of all concerned on the questions of relevance and evidence to be considered on the review. I emphasise that particulars, and not evidence, be given at that stage. This would go a long way to avoiding the approach adopted by the plaintiffs and their lawyers in respect to the review.
182 On the review, it is necessary for the Chief Commissioner to identify the materials that are to be considered and for an opportunity of course to be given to the participant to consider the materials. This would ensure that the parties are ad idem as to the relevant issues on the review, which would then enable the participant to understand the case and be given the opportunity to state his or her case in response.
183 Where a participant is represented by a lawyer, it is important that the lawyer ensures that the case is properly put and to co-operate in the preparation of the review.
184 Once the participant is given notice that the Chief Commissioner on the review has confirmed the earlier decision, the participant has only three days to appeal to the Director. There is no reason why the participant could not, especially where assisted by a lawyer, identify grounds of appeal. It would be open to the Director in regulating the procedure on the appeal to make this a requirement, but there are strict time limits in relation to each step. Three days are given to lodge the appeal and having received it, the Director has 72 hours to decide it.
[1] [1984] VicRp 30; [1984] VR 383.
[2] See s.7.
[3] See s.11.
[4] See ss.8 and 10.
[5] See s.12.
[6] Supra.
[7] [1995] VICSC 209; [1996] 1 VR 635 at 640 and 653.
[8] See Quek v Victoria Legal Aid, [1999] VSCA 44; [1999] 2 VR 331 at 336.
[9] See Keller v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356.
[10] See Chief Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1173, and R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 655. Also see the observations of Denning LJ in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338 at 346.
[11] [1995] HCA 58; (1995) 184 CLR 163.
[12] See Hansard 15 November 1990 p. 2060.
[13] See Act No. 58/1996.
[14] See s.6 of the Police Regulation Act 1958.
[15] see s.3.
[16] see s.3.
[17] [1995] HCA 58; (1995) 184 CLR 163.
[18] At p.176.
[19] [1968] UKHL 6; [1969] 2 AC 147 at 171.
[20] At p.179.
[21] At p.179.
[23] At p.442.
[24] At pp.442-3.
[25] At p.443.
[26] See p.443.
[27] [1975] VicRp 86; [1975] VR 883.
[29] At p.179, quoted above at [19].
[31] At pp.297-8.
[32] At p.297.
[33] [1910] VicLawRp 27; [1910] VLR 137 at 144.
[34] [2000] HCA 47; (2000) 203 CLR 194.
[35] at p.202.
[36] at p.203.
[37] at p.223.
[38] At p.223.
[39] [2000] HCA 29; (2000) 203 CLR 1.
[40] at p.40.
[41] [1976] HCA 62; (1976) 135 CLR 616 at 621-2.
[43] at p.250.
[45] at p.273.
[46] See s.16(2).
[47] [1980] VicRp 43; [1980] VR 449.
[48] At p.179.
[49] [1999] VSCA 37; [1999] 2 VR 203 at p.210.
[50] Supra, at p.227.
[51] At p.227.
Applicants A1 & A2
Brouwer & Ors [2007] VSC 66
(1990) 170 CLR 267
(1966) 116 CLR 644
(1995) 184 CLR 163
(1992) 27 NSWLR 701
(2000) 203 CLR 194
(2000) 203 CLR 1
(1976) 135 CLR 616
(1986) 5 NSWLR 234
(1990) 1790 CLR 267