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.