Lednar v Magistrates' Court [2000] VSC 549

320. Accordingly, the only avenue open to the plaintiffs to challenge the orders is by way of common law judicial review.

323. The common law jurisdiction of this court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.

326. The jurisdiction of the court to review decisions of inferior courts and tribunals is limited.

329. The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.

332. The judicial review procedure is concerned with the legality of what was done by the court or Tribunal, 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 the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.

335. Judicial review is not concerned with whether the decision was fair or correct.

338. Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

341. The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 175-76. In a joint judgment the court said:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record." (Emphasis added).

345. In Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155, Lord Brightman at p.1173 said -

"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

349. In R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 Windeyer J said at p.655 -

"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is 'final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition ... I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts." (Emphasis added).

353. The High Court in Craig's case, supra, at p.176 identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.

356. But the court is not concerned with the correctness of the decision by the Magistrate whether it be in respect to questions of fact or law.

359. This is made clear by what Lord Reid said in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147 at 171 when he listed the types of grounds which would render a decision a nullity. His Lordship said -

"It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some other matter which, under the provision setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides the question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. ... If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law." (Emphasis added).

363. This court is not concerned to examine whether in fact each Magistrate made the right decision, whether he or she misapplied some principle of law, but is concerned to ensure that the Magistrate acted within jurisdiction and that in performing his or her decision making process, complied with the law.

366. The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra, at pp.176 et seq where the court drew a distinction between tribunals and inferior courts. After giving examples of jurisdictional error the court said at pp.179-180 -

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error." (Emphasis added).

370. It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling.

373. Sometimes there is controversy about what constitutes the record for the purposes of an order in the nature of certiorari. The Rules do require, as did the common law, the production of the record.

376. I refer to what the High Court said in Craig's case_,_ and emphasise that the jurisdiction is not appellate and it does not enable this court to substitute for the decision made, a decision which this court thinks should have been made.

379. Although the plaintiffs seek an order "in the nature of certiorari" quashing the orders of the first defendant they also seek further or other relief and it is clear from the grounds that they are not confining their attack upon the orders to an error on the face of the record.

382. Where the attack is made on grounds other than an error on the face of the record then the court can take into account any relevant material placed before it subject, of course, to rules of procedure and evidence.

385. Affidavits were filed by and on behalf of the plaintiffs and a number of members of the police force filed affidavits.

388. Rule 56.01(4) of the Rules of Court obliges the plaintiffs to state the grounds upon which the relief is sought. The originating motion sets out the grounds relied upon by the plaintiffs.

391. There are many grounds relied upon but it was clear from the submissions of counsel for both sides that there are a number of issues to be considered and determined.

(i) Did the audi alteram partem rule of natural justice apply to the applications made by members of the police force in respect of each of the plaintiffs?

(ii) Should the application have been heard and determined in open court?

(iii) Were the two conditions precedent to the making of an order pursuant to s.464ZF satisfied in respect to each plaintiff?

(iv) Was the procedure adopted by the police and Magistrates' Court a proper exercise of the jurisdiction of the court in accordance with the provisions of the Crimes Act?

(v) Was each order made in accordance with the law and in particular was there sufficient evidence to enable the Magistrate to make the order in accordance with the statutory provisions and did the Magistrate properly consider all matters before making an order?

(vi) Did the Magistrate in respect of each order give reasons for the decision?

(vii) Was a copy of the order and reasons served on each plaintiff?

(viii) If any plaintiff has established a right to relief are there any discretionary matters to deny the relief?

400. Before considering the issues it is necessary to consider whether the plaintiffs are entitled to an extension of time.

"(1) A proceeding under this order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose."

409. Paragraph 2 of that sub-rule makes it clear that if relief is claimed in respect of an order then the date when the grounds arose is the date of the order.

412. Hence the 60 days' period commenced to run from 1 March 2000 with respect to the first two plaintiffs and from 5 November 1999 in respect of Mr Hill.

415. Paragraph 3 makes it clear that the court shall not extend time "except in special circumstances".

418. In my opinion it would be a gross injustice if time was to run against an aggrieved party when he did not know of the existence of an order which he wished to challenge. In my opinion the failure to serve the orders within a reasonable period constituted a special circumstance and it is appropriate to consider the position as if the period of time commenced from the time when the order came to the notice of each plaintiff. By the time the order was actually brought to the notice of Mr Lednar time had expired. If time commenced to run when he was given notice on 9 June 2000, then the originating motion was issued within time. When approached in that way it is a special circumstance that service of the order was effected so late, thereby denying him the opportunity to issue within time. So far as Messrs O'Brien and Hill are concerned each had knowledge on 19 April 2000 and accordingly the 60 days' period expired on or about 18 June 2000.

421. Adopting that approach Mr Lednar is entitled to an extension of time. I do not accept the contention that he knew by being told on or about 1 March 2000 that an order had been made that that is sufficient. Section 464ZF(9) of the Act requires service of a copy of the order and the reasons for it upon each person the subject of an order. In my opinion the failure to serve the order on Mr Lednar within a reasonable time in the circumstances, constitutes a special circumstance and Mr Lednar is entitled to an extension of time.

424. The periods in relation to Messrs O'Brien and Hill are delays of approximately 44 days.

427. In Denysenko v Dessau [1996] VicRp 65; (1996) 2 VR 221, a person accused of an indictable charge sought and obtained adjournments of the committal on two occasions. The reason being that legal aid had not been granted. On the next occasion legal aid still had not been granted and the Magistrate refused a further adjournment and committed the defendant for trial denying him the opportunity to cross-examine prosecution witnesses. He sought legal aid to have the Magistrate's decision reviewed and legal aid was finally granted eight months after his application. He filed an originating motion seeking judicial review and sought an extension of time. In that case there was a delay of some seven and a half months after the 60 days' period had expired.

430. Two arguments were put in support of the application, namely, that the Magistrate's decision was demonstrably wrong and secondly, the delay by Legal Aid was of such a magnitude that both the error and the delay by Legal Aid constituted special circumstances.

"In my opinion the fact that the Magistrate's decision was demonstrably wrong cannot constitute a special circumstance within the meaning of the rule."

437. His Honour having noted that it was clear that the Magistrate had made an error went on to say this -

"If one was to hold that an erroneous decision by a Magistrate constituted a special circumstance, then it would follow that in any such case an aggrieved party would be able to ignore the 60 day requirement safe in the knowledge that he could successfully apply for an extension of time when minded to do so. In my opinion that cannot have been the intention of the framers of the rules. 'Special' when used in this connection must mean something unusual, uncommon exceptional or extraordinary. There is nothing unusual, uncommon exceptional or extraordinary in a judicial officer, whether he or she be Magistrate or Judge, making an error of fact or law in a particular case. Indeed one's experience is to the contrary. The circumstances which must be special must relate to the plaintiff's failure to commence a proceeding in time, not the decision for it to be reviewed." (Emphasis added).

441. On the question of legal aid His Honour referred to what Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at 417 where Fitzgerald J said -

"I doubt whether legislative intention that applications for review be considered expeditiously should be permitted to be frustrated by any delay in obtaining a grant of legal aid, except in exceptional circumstances. It seems to me that, in general at least, it is for the Legal Aid Commission to meet times fixed by statute or by the courts rather than for an absence of legal aid to provide an excuse for non-compliance." (Emphasis added).

445. Beach J agreed with that proposition and went on to say this -

"I consider that an absence of legal aid to assist a person to commence a proceeding for judicial review cannot amount to a special circumstance within the meaning of the rule."

449. In relation to what Fitzgerald J said it is to be observed that His Honour did not state that the delay by Legal Aid could never be a basis for an extension.

452. I respectfully disagree with Beach J's approach.

455. In construing Rules of Court it is necessary to determine the intention of the framers of the rules. The judges of the court would be well aware of the relevant matters considered in applications for extension of time in relation to bringing proceedings and appeals; factors such as the justice to both parties, period of delay, prejudice to either party and whether the applicant has an arguable case. If the judges intended to restrict the issue to circumstances which only related to the applicant's failure to commence the proceeding in time then the rules could have expressly so provided.

461. By way of example s.109(5) of the Magistrates' Court Act 1989 provides for an extension of time to appeal, but only if "the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances". The sub-section was considered by McDonald J in Schwerin v Equal Opportunity Board and Ors [1994] VicRp 60; (1994) 2 VR 279 and His Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.

464. Rule 56.02(3) does not confine the special circumstances to the failure to institute the appeal within time and reading Order 56 as a whole there is nothing in its provisions which limit the special circumstances to the failure to institute the proceeding.

467. In my opinion it was not the intention of the framers of the rule to so confine the paragraph in Rule 56.02 and in my opinion one has to consider all the circumstances which include not only the reasons for failing to bring the proceeding within time but also whether the plaintiffs have an arguable case and whether the defendants would be prejudiced by an extension of time.

470. In determining what are special circumstances it is necessary for the court to weigh up the interests of both the plaintiff and the defendant. The rules have prescribed a 60 day period during which a proceeding should be commenced and the rules should be complied with. Further, in the area of public law it is not only the interests of the parties that may be affected but also the public interest. A party that has the benefit of an order in its favour should be able to proceed and enforce or rely upon the order or decision once the period for judicial review has expired. Indeed it is a matter of some weight if a late attack is made upon an order where a party has relied upon it and would suffer detriment or prejudice if time was extended.

473. The court does have a discretion which it may exercise where special circumstances are established and what constitutes special circumstances in any particular case will depend upon the circumstances of the case. It is not appropriate to attempt to fetter the jurisdiction by seeking to define what are "special circumstances". In my opinion the chances of the plaintiff being successful in the application, the injustice to a plaintiff if the decision or order is allowed to stand, prejudice to the other party and difficulties concerning legal aid in my view are relevant factors to whether or not there are special circumstances. They have to be weighed and the court has to then determine whether in totality they constitute special circumstances.

476. The phrase "special circumstances" appears in various legislation and hence cases on what the phrase means have to be approached with some care.

479. The phrase appears in the English Solicitors Act of 1843 which authorised the court to order a taxation of a bill of costs after payment if "special circumstances" required it. Some of the early cases attempted to lay down what constituted special circumstances. However, later cases emphasised that each case must depend on its own particular circumstances. In Re P & M (1895) 39 Sol Jo 640, Chitty J said at p.640 -

"The question is whether special circumstances in the opinion of the court requiring taxation are shown. Lindley L.J. in Re Cheesman dealt with the question generally, saying: 'The court has got out of the narrow groove laid down by some of the earlier cases, which decide that there must be pressure and overcharge, or overcharge so gross as to amount to fraud, and it is now settled by Re Boycott and Re Norman that each case must stand on its own circumstances. The court cannot lay down a hard and fast rule not imposed by the Act; it must be judged in each case whether there are special circumstances such as to make it right or reasonable that the bill should be taxed although it has been paid.' In that opinion, which agrees with what had been laid down by Bowen L.J., I respectfully concur. It is dangerous to overlay the language of an Act of Parliament which has entrusted the court with a discretion by defining special circumstances under which alone taxation will be directed and reducing the discretion almost to a nullity." (Emphases added). I respectfully agree.

483. The question comes down to what matters are relevant to the issue, and in my opinion justice must be a relevant consideration. That is justice to both sides. Prejudice to the other party is a weighty matter but often can be overcome by some suitable order, for example, adjournment or costs.

486. In the present matter, Mr Holdenson QC expressly stated that if time was extended there would be no prejudice suffered by the members of the police force who applied and obtained the orders.

489. Mrs Hampel QC listed a number of reasons why time should be extended and which she submitted in totality established special circumstances.

492. The matters relied upon are first that the orders were made ex parte, no notice of intention to apply was given and the applicant did not have an opportunity to be heard; secondly, that the orders were not served before the taking of any sample; thirdly, that there was no opportunity to seek advice or challenge the orders made before execution; fourthly, that the three persons were in custody in country prisons without easy access to legal advice and without means; fifthly, that assistance has been provided to mount the challenge by the intervention of the Public Information Law Clearing House which resulted in lawyers being retained on a pro bono basis. Sixthly, that there were difficulties encountered in trying to obtain orders and information from the Magistrates' Court at Melbourne; seventhly, the legislation is new, giving powers of an extremely intrusive nature and that the questions raised by the judicial review were matters of public interest and importance; and finally, that there was no prejudice suffered by the members of the police force if the time was extended.

495. Without seeking to examine closely each particular factor put forward, in my opinion all the factors collectively constitute special circumstances and in particular that the applications were made in secret, without notice to any of the persons involved, without any public scrutiny of what took place before the Magistrate, that the orders were not served or specifically brought to the attention of the plaintiffs until a substantial time after the orders were made, that the legislation is new, the questions raised are novel and of importance to the public interest and finally, that the orders were executed at the time the second or third plaintiffs saw a copy of the order and before they could take any legal advice to do anything about it. The delays which occurred came about in no small part because of their incarceration in prisons which were in the country, and because of difficulties in obtaining information. In the absence of prejudice, in my view there are special circumstances and I extend time to bring the proceeding to 1 August 2000.

500. The common law of crime has evolved over many centuries. The law has always been protective of the rights of accused persons and has been much influenced by the philosophy that it is better to acquit 99 guilty persons than ever convict an innocent person.

503. The right to arrest was limited and the right to detain depended upon lawful arrest. No person was obliged to answer a policeman's questions. There was no right to photograph an accused person or compel a suspect to be fingerprinted.

506. An accused person has always had the right to silence. He or she can refuse to answer questions put by police and can stand mute at trial. In this State such conduct cannot be criticised at trial and no adverse inference can be drawn.

509. An accused person could not be required to do anything which may incriminate him or her. He was presumed innocent until proven guilty and could not be convicted unless the prosecution proved beyond reasonable doubt all the elements of the offence.

512. Over recent years Parliament has progressively modified many of the ancient rights of persons suspected of committing crimes to meet the community's concern over ever increasing criminal activity.

515. More sophisticated tools are now available to enable investigators to prove the commission of a crime. One of those is the obtaining and use of DNA, a form of genetic fingerprinting which is considered by scientific experts as a reliable means of identification. It serves as an investigative tool not only to convict criminals but also serves to clear persons wrongly accused of crimes.

518. It is recognised that a proper balance must be struck between bringing a criminal to justice and the rights of a persons suspected of a crime.

521. For many years now the police have had the power to apply to a Supreme Court judge for a listening device. Now see the Surveillance Devices Act 1999. A judge of the court may issue a warrant to members of the police force to use a surveillance device to enable them, inter alia, to listen to private conversations. See Part 4 of the Act. Of course secrecy is important, as is surprise, and such applications are made in closed court and publication of the proceeding is forbidden. See s.15(6) and (7).

524. A Consultative Committee on Police Powers of Investigation was established in 1984 under the then chairmanship of the Director of Public Prosecutions, Mr John H. Phillips QC and that committee in 1984 recommended that the common law rule concerning the right of police to detain a person for questioning and delay in taking a person before a justice should be relaxed to allow the police up to six hours to allow consensual questioning. The government accepted this recommendation and amended the Crimes Act.

527. In 1985 the government asked the then Director of Public Prosecutions, Mr John Coldrey QC to reconvene the Consultative Committee to examine the effectiveness of the amendment and it found that the fixed six hour limit on consensual questioning was too inflexible and recommended a number of changes to the law which were designed to strike a balance between the need to protect individuals from unlawful conduct and the need for effective law enforcement.

530. The Committee proposed changes to the law on consensual questioning and replacing the fixed time limit with a reasonable time, recommended a statutory basis for the right of suspects to communicate with friends and legal advisers and the mandatory tape recording of interviews for indictable offences.

533. The Committee's recommendations resulted in the Crimes (Custody and Investigation) Act 1988 which covered the topics of consensual questioning and the tape recording of confessions. It introduced subdivision 30A "Custody and Investigation" into the Crimes Act.

536. The Committee also reported on the questioning of fingerprinting and recommended that the police have power to obtain an order from a court requiring compulsory fingerprinting. This resulted in the Crimes (Fingerprinting) Act 1988 which also inserted provisions into sub-division 30A.

539. Section 1 of that Act stated the purpose as follows:

"(1) The purpose of this Act is to enable members of the police force to fingerprint certain persons either by consent or by order of the court."

543. Section 464M of the Crimes Act authorised a member of the police force to apply to a Magistrates' Court for an order directing that a suspect give his or her fingerprints.

546. Sub-section (1) provided that the application should be "without notice to any other person".

549. The section set out how the application was to be made and of what the court should be satisfied, before the order was made.

552. In contrast, s.464N concerned fingerprinting of children and that section gave jurisdiction to the Children's Court to make an order. Sub-section(9) required that the application must be served on the parent or guardian and if the young person was not in custody, on the young person. Sub-section (10) then went on to provide -

"(10) The court may dispense with the requirement of sub-section (9)(a) if satisfied that it is impracticable for the applicant to comply."

556. Sub-section (11) then addressed the question of representation and it provided -

"(11) With the leave of the court, a young person may be represented on an application under this section by a parent or guardian of the young person."

560. The Legislature made it clear that in relation to an adult person, application for an order to the Magistrates' Court was to be without notice, whereas if a child was concerned notice was required and the young person could be represented by a parent or guardian with the leave of the court.

563. Following on from the two reports the Consultative Committee reconvened to consider the difficult question of body samples and examinations.

566. The committee delivered its report in September 1989.

569. The preface to the report sets out the reasons why the investigative tools of the police should be increased. It stated -

"Advances in scientific knowledge and technology have, in the area of criminal investigation, resulted in the emergence of forensic science as a potent investigative and evidentiary tool and one which law enforcement agencies such as the Victorian Police increasingly seek to utilize. The value of a forensic procedure lies not merely in its capacity, either alone or in combination with other evidence, to implicate a person in the commission of a specific crime, but also in its ability to exculpate a person under suspicion. Developments in forensic science make it difficult to resist arguments in favour of granting to law enforcement agencies the power to pursue modern modes of investigation especially where the end product is objective or real evidence as distinct from the subjective evidence derived from records of interview and identification parades. The Committee has concluded that there is a case for empowering the police to undertake a number of forensic procedures as an adjunct to the traditional techniques of criminal inquiry. Nonetheless it must be recognized that the granting of powers (particularly coercive powers to any law enforcement agency), requires the balancing of a number of competing interests. Those interests include the need to identify and convict those who commit criminal offences; the need to ensure that individuals in our society are not subjected to unlawful or unfair treatment; and the need to preserve privacy and civil rights."

573. The report noted that the police did not have "any general power to obtain samples of biological fluids or other substances whether internal, adhering to the body of a suspect or to perform a physical examination of a suspect". See p.3 of report.

576. The Committee considered that the police should have powers to obtain body samples and to conduct examinations of suspects even in circumstances where the suspects were not consenting to the procedure.

579. The Committee drafted legislation to amend the Crimes Act.

582. The proposed legislation concerning compulsory procedures involved an application being made to a magistrate supported by information either written or oral establishing certain defined matters and required that the suspect be present before the magistrate during the application.

585. The report led to the passing of the Crimes (Amendment) Act 1993. Although the draft legislation put forward by the Committee formed the basis of the legislation, it did not correspond with the draft.

588. The same Act also amended the earlier provisions concerning the taking of fingerprints.

591. Section 464K concerned fingerprinting of adults and children aged 15 or above and if the suspect did not agree to providing fingerprints then power was given to the police to use reasonable force. The power was given to obtain the fingerprints without court order, unlike the provision introduced in 1988. However, s.464L was concerned with fingerprinting of children aged 14 or under which was concerned with consent and s.464M empowered the Children's Court to order fingerprinting. Again, notice of the application must be served on the parent or guardian, although the court could dispense with that if it was impracticable.

594. Sub-section (7) provided that the child was not a party to the application, could not call or cross-examine any witnesses and had a limited right of address to the court. Sub-section (8) gave the right to the child to be represented by a legal practitioner or with the leave of the court a parent or guardian.

597. Section 464R dealt with what was called a forensic procedure on an adult suspected of an indictable offence and a forensic procedure was defined by s.464(2) as meaning the taking of a sample from any part of the body "whether an intimate or non-intimate sample".

600. An "intimate sample" meant, inter alia, a blood sample, a sample of pubic hair or a sample of saliva.

603. Section 464S dealt with informed consent being given and s.464T concerned compulsory procedure which empowered a Magistrates' Court to order a person undergo the compulsory procedure.

606. Sub-section (4) provided that the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person was present and the only exceptions to that requirement was where an interim order was made under ss.464V and W.

609. Although the suspect had to be present, sub-s.(5) made it clear that he was not a party to the application, he was not entitled to call or cross-examine any witnesses, but had a limited right of addressing the court and under sub-s.(6) he was permitted to be represented by counsel or a solicitor.

612. The court was obliged to consider matters set out in sub-s.(3) and was obliged, to give reasons for its decision, state the evidence on which it is satisfied and cause a note of the reasons to be entered in the records of the court - see sub-s.(7).

615. It is noted that if the court failed to comply with sub-s.(7) the order was not invalidated.

618. Section 464U concerned a court ordered forensic procedure on a child and it followed the same form with respect to the notice of the application, the presence of the child and the right to address the court.

621. The law has now moved on. It was with this background that the amending Act the subject of the present proceeding was passed. In 1997 the Crimes (Amendment) Act was passed.

624. Its purposes are set out in s.1. Section 1(c) provided -

"The purpose of this Act is to - (a) ... (b) ... (c) Amend the Crimes Act 1958 so as to - (i) extend the range of offences for which a person can be compelled to undergo a forensic procedure; (ii) ... (iii) enable a member of the police force to apply to a court for a forensic sample from persons found guilty of certain offences; (iv) extend the grounds on which a member of the police force may apply for a court order directing a person to undergo a compulsory procedure; (v) to make provision for persons to volunteer to give samples to provide information for inclusion in a computerised data base."

628. The amending Act inserted a new s.464ZF which is concerned with the forensic procedure following the commission of a forensic sample offence.

631. This section is the one that gave power to the Magistrates' Court to make the orders which were made in the present proceeding.

634. It was enacted in a regime of legislation concerning compulsory procedures.

637. The previous two pieces of legislation established a pattern concerning procedures to be adopted to obtain evidence by compulsion. In some instances the member of the police force could take steps to demand that the evidence be given and in other instances it was necessary to make application to the Magistrates' Court. The procedure laid down in relation to an application to the Magistrates' Court differed. Sometimes nothing was said about notice, and the right to be heard, and sometimes notice was to be given. The legislation specifically set out a limited right to be heard. It could be inferred that where the legislation was silent as to notice and the right to be heard that no obligation existed to provide notice. This conclusion is reinforced by the fact that where a right to be heard was given it was indeed very limited. Where the legislation did not provide for notice, the rights affected were similar to the situation where a limited right to be heard was given.

642. Each of the plaintiffs submits that he was entitled to notice of the proposed application for the compulsory procedure, and was entitled to appear and be heard on the application before the order was made.

"(1) In this section - 'child' means a child aged 10 years or more but under 17 years; 'forensic sample offence' means any offence specified in Schedule 8. (2) If at any time on or after the commencement of section 25 of the Crimes (Amendment) Act 1997 a court finds a person guilty of - (a) a forensic sample offence; or (b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence - a member of the police force, at any time following that finding but not later than 6 months after the expiration of any appeal period or the final determination of an appeal (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly. (3) If - (a) at any time before the commencement of section 25 of the Crimes (Amendment) Act 1997, a person has been found guilty by a court of a forensic sample offence; and (b) at any time on or after that commencement, that person is serving a term of imprisonment or a period of detention in a prison, police gaol or youth training centre or as a security patient in an approved mental health service for any offence, whether or not a forensic sample offence - a member of the police force may apply to the Magistrates' Court or the Children's Court (as the case may be) for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly. (4) In any application to a court under sub-section (2) or (3), the member of the police force must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure. (5) If an application made under sub-section (3) is in respect of a forensic procedure to be conducted on a person who is a child, notice of the application must be served on the child and a parent or guardian of the child. (6) An order made by a court under sub-section (2) or (3) before the appeal period in relation to the forensic sample offence has expired or an appeal (if any) has been finally determined (whichever is the later), must not be executed unless - (a) that appeal period expires; or (b) an appeal (if any) is finally determined and the conviction for the forensic sample offence is upheld - which is the later. (7) If on appeal a conviction for the forensic sample offence is quashed, an order made by a court under sub-section (2) or (3) ceases to have effect. (8) A court hearing an application under sub-section (2) or (3) - (a) must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order under sub-section (2) or (3); and (b) must be satisfied that, in all the circumstances, the making of the order is justified; and (c) may make such inquiries on oath or otherwise as it considers desirable. (9) If a court makes an order under sub-section (2) or (3), it must - (a) give reasons for its decision and cause a copy of the order and reasons to be served - (i) if the order directs a person (other than a child) to undergo the forensic procedure, on the person; or (ii) if the order directs a child to undergo the forensic procedure, on the child and a parent or guardian of the child, and (b) inform the person ordered to undergo the forensic procedure that a member of the police force may use reasonable force to enable the procedure to be conducted. (10) A failure of a court to comply with sub-section (9) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a). (11) If a forensic procedure has been conducted on a person in accordance with this section, a copy of every forensic report must be given or sent by registered post as soon as practicable but not more than 7 days after the procedure was conducted - (a) if the person is not a child, to that person; or (b) if the person is a child, to that child and a parent or guardian of that child." (Emphasis added).

652. First, the section establishes two different procedures. The first is found in sub-s.(2) and covers a situation where a court finds a person guilty of a forensic sample offence or an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence. A member of the force within a certain time period may apply to the court in which the person was convicted for an order directing that he undergo a forensic procedure.

655. This means that the actual court which dealt with the convicted person makes the order and in practice this has usually been immediately after conviction and in the presence of the convicted person.

658. The orders made in the present matter which are under challenge were not made pursuant to sub-s.(2). They were made under sub-s.(3). Subject to the satisfaction of two conditions, a member of the police force may obtain an order directing a person to undergo a forensic procedure for the taking of a sample. The application is made to the Magistrates' or Children's Court.

661. Secondly, sub-s.(5) requires the service of a notice of the application on a child or a parent or guardian of the child. There is no similar requirement where the person concerned is an adult.

664. The third observation is that the section does not require notice to be given to the person who is to provide the forensic sample, nor does it set out any procedure whereby that person would have any right to notification of the application or to appear on the application. In this regard it is to be compared with some of the other provisions in sub-division 30A of the Act which do require notice of an application to be given to the person the subject of any proposed order.

667. Finally, the Legislature has not adopted the notice requirements and the limited right to be heard which was employed in s.464T which is concerned with orders being made for compulsory procedures in respect of persons who are suspected of committing an offence.

670. Many years ago, the common law established a rule that certain rights or interests of members of the community could not be interfered with by a decision, unless the individual was given a fair hearing.

673. In the case of The King v The Chancellor, Masters and Scholars of the University of Cambridge, (1723) 1 Strange 557; 93 E.R. 698 the court was concerned with an application to restore to Richard Bentleigh his academic degrees. He was not given an opportunity to be heard.

"Besides the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such a occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded that thou should not eat? And the same question was put to Eve also."

680. The rule of law known as the principles of natural justice comprise two separate common law rules designed to ensure a fair hearing is given to those whose rights or interests are affected by the decision.

683. The two rules are, first, the hearing rule, audi alteram partem, which requires proper notice be given to the person whose interests will be affected by an adverse decision and a fair opportunity to be heard.

686. The second rule is the bias rule which requires that a decision maker must not be affected by bias in his decision making role. The second limb of natural justice is not relevant in this proceeding and can be put to one side.

689. It is trite law, that courts of law are bound by the rules of natural justice. That observation is true when the court is acting as a court of law adjudicating disputes between parties. But courts sometimes are required by statute to exercise a different power or jurisdiction which does not involve it in a dispute resolution process.

692. Different considerations apply and the inference that the fair hearing rule applies is weaker than in a court context.

695. The notice - hearing rule applies to a court in the usual case before a court where there are two parties contesting an issue and a decision is made. The procedures adopted by the courts have developed to give effect to the objective of dispute resolution by a process of an impartial adjudicator honestly and fairly hearing the dispute. The presence of a lis inter partes necessarily involves the obligation to accord natural justice.

698. But the power given to the Magistrates' Court by s.464ZF is a specific power which does not involve the resolution of a dispute between two parties. The power is supervisory and administrative rather than truly judicial.

701. That is not to say that the rules of natural justice do not apply. They can. But as the courts have pointed out, a court exercising judicial review jurisdiction should be slow to impose upon administrative decision makers the same rules as would be applied in a court of law.

704. Gleeson CJ when discussing the obligation to have matters heard in public and in particular an inquiry by the Independent Commissioner Against Corruption said -

"To a substantial extent, the courts, in requiring bodies over whom they exercise jurisdiction to observe procedural fairness, have been influenced in their ideas of what constitutes procedural fairness by the procedures adopted by courts. As was pointed out by Lord Shaw of Dunfermline in Local Government Board v Arlidge (1915) A.C. 120 at 138, judges have tended to imitate methods of judicial procedure when enforcing requirements of procedural fairness. The authorities have repeatedly warned against making the uncritical assumption that what is required in a court is also necessary for an administrative body." ICAC v Chaffey (1992) 30 NSWLR 21 at 29.

708. But whether an inferior court is bound to accord natural justice will depend upon the nature of the proceeding and the provisions of the statute which gives it the particular jurisdiction or power it is exercising.

711. The law concerning the notice-hearing rule has developed in the areas of administrative, government, executive government and licensing decisions.

714. In the absence of an express power, the court in certain circumstances will imply the notice-hearing obligation into a statute.

717. Whether or not procedural fairness applies has been described as the "threshold test".

720. In Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B. (N.S.) 180; 143 E.R. 414 the defendant board was empowered by statute to demolish a house in the event of a failure to give the board seven days' written notice of intention to build. The plaintiff commenced building without giving the notice and had reached a certain stage when late one evening the employees of the board demolished the construction. The plaintiff sued the board in trespass submitting that whilst the statute authorised the board's actions, it's statutory powers should be subject to giving a party the opportunity to be heard before depriving him of his property.

"It seems to me that the board are wrong whether they acted judicially or ministerially. I can see they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions, beginning with Dr Bentleigh's case, and ending with some very recent cases, establish that, although there are no positive words in a statute requiring that a party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr Justice Fortesque in Dr Bentleigh's case, is somewhat quaint, but is very applicable, and has been the law from that time to the present." (Emphasis added).

727. What His Lordship said, has been quoted often and accepted as good law in Australia.

730. In The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395 Dixon CJ and Webb J said -

"For it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by an individual or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. (Their Honours referred to the Byles J dictum). ... It is hardly necessary to add that its application to proceedings in the established courts is a matter of course, but the rule is subject to sufficient indication of an intention of the legislature to the contrary. Such an intention is not be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment."

734. By 1924 it was well established that the obligation to accord natural justice applied not only to courts of law but any body of persons having authority to determine questions affecting the rights of others.

737. In R v Electricity Commissioners ex parte London Electricity Joint Commission Company (1924) 1 KB 171 Atkin LJ at 205 stated the principle as follows -

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."

741. It is noted that His Lordship referred to deciding questions "affecting the rights of subjects".

744. In Ridge v Baldwin [1963] UKHL 2; (1964) A.C. 40, Lord Reid exhaustively considered the authorities concerning the obligation in a case involving a policeman dismissed from office. He noted its application to interfering with property rights, forfeiture of leasehold interests and removal of licences. He also noted its application to deprivation of membership of a profession or social body and clubs. The basis for its application in those cases was the ruinous effect upon one's reputation to be deprived of membership of an organisation. He also observed that the principle applied to the functions of a Minister of the Crown or a government department and observed that more often than not their functions were of a different character.

747. In that case the statute was silent on the question of a hearing being given to the policeman and no hearing or indeed notice of the charges were in fact given to the policeman.

750. The House of Lords held that there was a duty to act judicially and the duty need not be expressed but could be implied from the existence of a power to make a decision affecting the rights of individuals.

753. Lord Hodson recognised the width of its application and after observing that the authorities established a number of matters said -

"One is that the absence of a lis or dispute between opposing parties is not a decisive feature although, no doubt, the presence of a lis would involve the necessity of the application of the principles of natural justice. Secondly, the answer in a given case is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that was the antithesis of a judicial capacity. The cases seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice." (Emphasis added.)

757. The decision in Ridge v Baldwin was followed in Australia and in particular the judgment of Lord Reid. See Banks v Transport Regulation Board (Vic) [1968] HCA 23; (1968) 119 CLR 222.

760. The High Court over the last 20 years has considered on a number of occasions the notice-hearing rule in relation to a variety of decision makers.

763. The modern statement of the law in this country can be traced back to what Mason J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: (His Honour referred to a number of authorities). The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation as well as to proprietary rights and interests." (Emphasis added).

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way."

774. In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ at p.598 stated the principle as follows -

"It can now be taken as settled that, when a statute confers power upon a public official to destroy defeat or prejudice a person's rights interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

778. Their Honours went on to quote what Mason J said in Kioa v West at p.584 and also quoted what Deane J said in Haoucher (1999) 169 CLR at p.653 where His Honour said -

"The law seems to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making."

782. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, at p.576 Mason CJ, Dawson, Toohey and Gaudron JJ said -

"It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may 'destroy defeat or prejudice a person's rights interests or legitimate expectations'. Thus what is decisive is the nature of the power, and not the character of the proceeding which attends its exercise."

786. The circumstances in which the principles of natural justice should apply are not closed. See Salemi v MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396 at 419 referring to the Privy Council decision of Durayappah v Fernando (1967) 2 A.C. 337 at 349.

789. The question is, what are the rights or interests which must be affected before the notice-hearing rule applies?

792. The authorities do establish that the interests that may be affected cover a broad range.

795. The interests affected include business and personal reputation, liberty of the subject, property interest, status and ability to earn a living.

798. Speaking in 1876, Stawell CJ said in Roebuck v Mayor etc of Geelong West [1876] VicLawRp 94; (1876) 2 VLR (L) 189 at p.191 -

"It is a well established rule of law that a man - and a corporation is on the same footing - is entitled to be heard before any order can be made by which his purse or person can be affected, even though the statute under which the order is made does not in terms require a hearing: Painter v Liverpool Gas Company. This principle is not limited in its application to proceedings which are, strictly speaking, judicial. Cooper v Wandsworth Board of Health." (Emphasis added).

802. The same point is taken up in The Commissioner of Police v Tanos, supra where Dixon CJ and Webb J referred also to prejudice by a decision in the person or property of an individual.

805. If the threshold test is satisfied the court then has to consider whether the common law requirements of the notice-hearing rule have been excluded by the provisions which establish the decision making process. In this case we are dealing with a statute. Sometimes statutes expressly state that the requirements of the rules of natural justice do not apply. That is not the case here.

808. It is therefore necessary to construe the statutory provisions in context giving effect to the purpose of the Act to determine whether or not it was the intention of Parliament to exclude the requirement.

811. In the early case of Roebuck v Mayor etc of Geelong West, supra, Stawell CJ at p.192 said -

"On the contrary, we think it is our duty to maintain and uphold this principle (right to be heard) unless it is clearly abrogated by plain and distinct enactment. It is not for us to scan the reasons of the legislature."

815. In The Commissioner of Police v Tanos, supra, Dixon CJ and Webb J stated the approach at p.396 -

"But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment." (Emphasis added).

Quoted with approval by Lord Wilberforce in Wiseman v Borneman (1970) AC 297 at 318.

820. In Kioa v West, supra, at p.585 Mason J said -

"When the doctrine of natural justice or the duty to act fairly in its application to administrative decision making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to enquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned."

824. More recently the High Court has said in Ainsworth v Criminal Justice Commission, supra, at p.576 -

"In particular they are incapable of excluding the rules of natural justice for they can only be 'excluded by plain words of necessary intendment'."

828. Whether or not the notice-hearing rule applies in a decision making process involves the consideration and determination of two questions. First, does the statute which confers the power upon the Magistrates' Court to make an order have the effect of destroying, defeating or prejudicing a person's rights, interests or legitimate expectations? Secondly, if it does has the statute excluded by plain words of necessary intendment the prima facie right of the person adversely affected by the decision, to notice of the application and the right to be heard?

831. Some judges of the High Court have raised the question about the requirements of the notice-hearing rule being based upon a common law duty or depending upon an implication to be drawn from the legislation conferring the authority - see Re Refugee Review Tribunal; ex parte Aala (2000) HCA 57 at paragraph 37 and paragraph 167.

834. The implication view was the opinion of Brennan J who expressed it in this way in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 591 -

"However, an obligation to accord natural justice may be implied as a condition governing the exercise of a statutory power or, I would add, a statutory function. In Kioa v West I stated the presumption that the observance of the rules of natural justice conditions the exercise of a statutory power thus: 'The presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised'."

838. In the recent Re Refugee Review Tribunal case at paragraph 167 Hayne J said -

"Even if the source of the obligation to accord procedural fairness is to be regarded as an open question, it is not one which must be resolved now. Indeed, it may be that for many purposes the competing views lead to no different result, the ultimate question being whether the obligation asserted is compatible with the terms of the relevant legislation. On either view, the obligation to accord procedural fairness is an obligation affecting how the decision maker is to go about the task of the decision making. It is a limitation on the power to decide." (Emphasis added.)

842. Whether or not the notice-hearing rule applies depends upon consideration of the two questions stated above.

845. But when expressed in that two step way, there is a risk that important matters may be overlooked. What the court is seeking to determine is what fair play demands in the circumstances.

848. The duty is to act fairly in the circumstances.

851. The duty to so act where a body exercises a power will readily be inferred where the decision impacts upon the rights, interests and expectations of the person the subject of the decision.

854. But in deciding whether the duty exists and its content, various matters must be considered and taken into account before reaching a conclusion.

857. In Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, Deane J at p.653 set out the relevant matters when he said -

"Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation), it is proper to discern a legislative intent that the donee of governmental execute power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g. Jackson, Natural Justice, 2nd ed. (1979), p.100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England, 4th ed. (1989), vol. (1), para. 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances."

861. The relevance of the purpose of the legislation was recognised by Lord Reid in Wiseman v Borneman (1971) AC 297 when he said at p.308:

"For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

865. I also refer to the speech of Lord Bridge of Harwich in Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at p.702 -

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision making body, the kind of decision it has to make, and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedures prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

869. It follows that factors such as the legislative framework in which the decision making process operates, the character of the decision making body, the nature of the hearing contemplated, whether there is a contest between parties and the resolution of a dispute, the rights interests or reasonable expectations affected and to what degree, the purpose of the act creating the power to make an order and the standing of the person making the complaint are all relevant to the twin questions of whether fair play is applicable and what fairness requires in a given set of circumstances.

874. In considering whether to make an order under s.464ZF, the Magistrate would be obliged to take into account the scope and purpose of the legislation.

877. I have traced through the evolution of sub-division 30A of the Act under the heading of Legislative Scheme.

880. In my opinion the scope and purpose of sub-division 30A which has been the subject of three substantial pieces of legislation passed in 1988, 1993 and 1997, was to provide more and more powers to the police to enable them to effectively investigate crimes and to provide them with the means of gathering evidence. The DNA provisions do provide evidence according to scientific experts which is highly reliable in respect to identification. The legislation was passed to enable evidence to be gathered to not only solve past crimes but to also solve future crimes and to act as a deterrent to hardened criminals who are tempted to continue on their criminal way of life.

883. It is important in my opinion to note that where there is a serious forensic sample offence committed in the past in the majority of cases the granting of an order will follow without much further consideration. If the forensic sample offence is serious and there is evidence which demonstrates that the prisoner by his past conduct is a repeat offender and likely to offend in the future then it is hard to see what arguments could be put forward to rebut the finding that in all the circumstances the making of the order is justified.

888. The starting point is to consider whether the orders made against the plaintiffs adversely and directly affected their rights, interest or status.

891. If it did, then there is the presumption that it was the legislative intent that the requirements of procedural fairness be observed. But although procedural fairness is required, its content in a particular case will depend on all the circumstances. Its content reflects what is necessary for procedural fairness. In answering the latter question, the matters listed above are all relevant to the determination.

894. An affirmative answer to the first question does not mean that fairness requires notice or a right to be heard.

897. What is fair in the circumstances is a decision of law for this court to decide. See R v Panel on Takeovers and Mergers, ex parte Guinness (1990) QB 146.

900. At the outset it is noted that the statement of principle by Stawell CJ in the Roebuck case in 1876 referred to the decision affecting "his purse or person".

903. The same phrase is used by Dixon CJ and Webb J in Commissioner of Police v Tanos, supra, at p.395.

906. Does the word "person" mean something in addition to affecting the liberty of the subject in the sense of freedom of movement or one's reputation?

909. The more modern statement of the principle talks about a person's rights, interests or legitimate expectations.

912. At all relevant times Messrs Lednar and O'Brien were seving a term of imprisonment.

915. By its very nature, a term of imprisonment involves the loss of many of the prisoner's rights. He no longer enjoys freedom of movement, he cannot complain that he is being physically restrained against his will, and he is subject to rules and regulations concerning prison discipline. On occasions he may be physically restrained in circumstances which would constitute a trespass to the person but which are justified to ensure prison discipline and the safety and welfare of not only the person involved but other prisoners and prison staff.

918. The effect of an order under s.464ZF(3) is to authorise the taking of an intimate sample by a medical practitioner or nurse.

921. The procedure is set out in s.464Z and the Chief Commissioner is given power to authorise a person to take a non-intimate sample. An intimate sample must be taken by a medical practitioner or a nurse. Section 464ZA(1) authorises a member of the police force to use reasonable force to assist the person authorised to conduct the procedure. There are other safeguards prescribed by the legislation, one being that the procedure must be video recorded if an intimate sample other than a blood sample is taken or the examination is of an intimate part of the body. See s.464ZA(4). The person the subject of the order must consent to a video recording.

924. There is no provision in the law which empowers any person to take an intimate sample which would include a blood sample from a prisoner. To take a sample without the informed consent of the prisoner would constitute a trespass to the person. The provisions of Division 30A of the Crimes Act 1958 provide a procedure which would justify in law what would be unlawful.

927. In my opinion the decision made by a Magistrate pursuant to s.464ZF does prejudice a person's rights or interests by reason of the fact that it justifies what would be an assault and battery on a prisoner which would otherwise be not only a crime but a civil wrong.

930. My conclusion is reinforced by the fact that the effect of a decision that a sample be provided may infringe the well established common law rule against requiring a person to provide evidence which may incriminate him.

933. In my opinion the order made against each plaintiff did affect in a direct way his rights or interests and accordingly the decision making process had to be conducted fairly.

936. But what was the content of the obligation to conduct the process in a fair manner?

941. The legislature enacted that the important decision affecting the plaintiffs should be made by a member of the Magistrates' Court. It is clear from the legislative history and the provisions of sub-division 30A, that the important decisions involving investigation and infringement of rights have been entrusted to the supervisory role of a judicial officer.

944. Clearly fair play demands that a Magistrate hearing an application under s.464ZF be unbiased, that he or she require adequate evidence of the matters that have to be considered and that the Magistrate comply with the statutory requirements, namely, the pre-requisites found in sub-s.(3)(b) and a consideration and determination of the matters in sub-s.(8) and any other relevant matter before an order is made. It is to be noted that the Magistrate is obliged to give reasons for the decision and to cause a copy of the order and reasons to be served on the person affected by the order.

947. In my opinion the content of fair play in each application contains as a minimum the matters that I have stated.

950. But does it require in the circumstances notice and an opportunity to be heard? In answering that question it is necessary to consider a number of relevant factors.

955. The effect of the execution of the order upon each plaintiff is a factor which would be known to the legislature and which would be relevant to the requirements of fair play in the decision making process.

958. Whilst it is accepted that there is an interference with the right of the person to his bodily integrity the fact is that the enforcement of the order would result in a minor assault without any permanent or lasting physical or mental effects. Whatever sample is provided, if done with co-operation, would not involve any pain or inconvenience to the prisoner. If the prisoner chooses not to co-operate then he brings upon himself the use of reasonable force to enable the order to be executed.

961. The execution of the order in relation to an intimate sample is carried out by a medical practitioner or a nurse and would involve minimal interference with one's bodily integrity. The means by which the order is executed involves minimal pain and realistically no lasting impression on the subject. There is no risk to the health of the subject. The fact is that there is minimal intrusion with very little affront to human dignity.

964. The argument based upon possible incrimination is also of little weight. Many procedures are now laid down in law to enable investigating police to obtain evidence which incriminates a person. On occasions the person is compelled to provide evidence such as fingerprinting. In considering this argument it cannot be overlooked that the object of the legislation is to exclude the principle against self-incrimination and further it cannot be overlooked that the DNA sample may provide a basis for clearing a person wrongly accused of a crime.

967. Whilst the making of an order does affect prejudicially the rights of the subject of the order, the fact is that the interference with rights is minimal and the execution under controlled circumstances results in little interference with the well-being of the subject.

972. The legislature has entrusted the decision to a Magistrates' Court. Being a trained judicial officer experienced in dealing with all kinds of disputes and other issues in the Magistrates' Court, the legislature no doubt was confident that in making an order the Magistrate would carefully consider all matters required by s.464ZF. Further, that the Magistrate would consider all matters relevant to the exercise of the discretionary power to make an order.

975. But it is clear that the Magistrate is not exercising his or her usual role as a judicial officer deciding disputes between parties.

978. Other than the fact that a member of the police force makes the application, there is no provision providing for any other party to the proceeding and in my opinion the subject of the order is not a party to the proceeding.

981. The decision making process requires the Magistrate to be satisfied with respect to the pre-requisites set out in sub-s.(3)(b) and the section requires the Magistrate to take into account the seriousness of the circumstances of a forensic sample offence and be satisfied that in all the circumstances the making of the order is justified. See sub-s.(8).

984. It is clear that the making of an order is discretionary. See sub-s.(3). It is also noted under sub-s.(8)(c) that the court "may make such enquiries on oath or otherwise as it considers desirable".

987. In exercising the discretion the court is required to take into account the scope and purpose of the statutory enactment. See FAI Insurance Ltd v Winneke [1982] HCA 26; (1981) 151 CLR 342 at 368, and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40.

990. In my opinion the first matter for the court to consider is the seriousness of the circumstances of the forensic sample offence. It would be relevant to consider the prisoner's criminal record and the propensity if any of further offending. In addition, the Magistrate should take into account that the scope and purpose of the section is to obtain DNA samples not only to assist in the investigation of past offences but also to provide some deterrence to the person providing the DNA sample from committing offences in the future. In addition, the sample may be used to investigate future offences. It is factors such as those which a Magistrate should take into account in determining whether the order should be made. Overall, in considering all matters the Magistrate must be satisfied that in all the circumstances the making of the order is justified.

993. The fact that a judicial officer is hearing the application in a role which is both investigative and supervisory in circumstances where it is not a hearing between parties provides a safeguard against orders being made unfairly and without proper consideration. The legislation has entrusted the decision making process to a person who can be relied upon to carry out the task in a fair manner.

Legislative Framework and Intention of Parliament?

998. Of all the factors which must be considered in determining the question of the content of the fairness rule the most important is the statutory framework and its purpose.

1001. This is relevant to the question whether the legislature has excluded the right to notice and to be heard.

1004. Section 464ZJ empowers the Governor-in-Council to make regulations in respect of any matter required or permitted by sub-division 30A. No regulations have been made with respect to the procedure involved in making application to the Magistrates' Court under s.464ZF, nor have any rules of court been made regulating the procedure.

1007. Mr P. Holdenson QC for the Chief Commissioner submitted that it was clear from the nature and purpose of the application, the provisions of s.464ZF and the surrounding provisions of sub-division 30A of the Act that it was the intention of Parliament to exclude notice and any right to appear in the application pursuant to s.464ZF.

1010. Mrs Hampell QC for each of the plaintiffs submitted that the legislature had not evinced an intention to exclude the application of the notice-hearing rule.

1013. At the outset it is observed that the section is silent as to procedure and save in the case of a child notice must be given, but there is no such requirement in respect to an adult. It is a matter of some substance that even though notice must be given to a child no procedure is provided for appearance or right to be heard by the child or any person on his behalf. No doubt the procedure to follow would be left to the Magistrate. Comparison is made with other provisions of sub-division 30A where procedural matters are addressed.

1016. In support of his submission Mr Holdenson QC referred to the following matters:

(i) There was no provision in s.464ZF or any other section of subdivision 30A which required notification to be given to the person affected by the order;

(ii) there was no requirement in the section or subdivision that the person subject to the order be present;

(iii) there was no provision in the section or subdivision 30A which entitled the person the subject of the order to call evidence or to cross-examine or attack the evidence in support of the application;

(iv) sub-section (5) of s.464ZF requires notice of the application to be given where the subject of the order is a child, either to the child and a parent or guardian of the child but no such requirement of giving notice to an adult;

(v) sub-section (9) required the court to give reasons for its decision and "cause a copy of the order and reasons to be served" on the person the subject of the order and if a child on the child and the parent or guardian leading to the conclusion that the legislature contemplated that the person would not be present and needed to be apprised of the order and the reasons;

(vi) the provisions of sub-s.(8)(c) gave power to the court to make enquiries on oath or otherwise as it considered desirable showing that the role was inquisitorial and when taken with the other provisions of sub-s.(8) clearly indicates that it was a matter for the court to ascertain the information and make a decision;

(vii) a comparison with the provisions of s.464T sub-ss.(4) and (5) which expressly state that the Magistrates' Court must not make an order directing a suspect to undergo a compulsory procedure unless the person is present and which goes on to provide that the person is not a party, may not call or cross-examine any witnesses and has a limited right of addressing the court;

(viii) the provisions of s.464ZF must also be compared with s.464U which is concerned with, inter alia, a forensic procedure on a child and if application is made to the Children's Court notice must be given to the parent or guardian of the child and in certain circumstances the child; and sub-s.(11) which deals with the fact that the court cannot make the order unless the child is present and sub-s.(12) which provides that the child is not a party, may not call or cross-examine witnesses and may address the court in a very limited way.

(ix) the provisions of s.464ZF must also be compared with provisions of s.464M which are concerned with the Children's Court ordering fingerprinting and again notice is to be given to the parent, guardian and the child, sub-ss.(7) and (8) deal with the fact that the child is not a party to the proceeding, may not call or cross-examine any witness and has a limited right of address.

1022. Mr Holdenson QC submitted that taking into account the scheme of sub-division 30A and the express references to notice and right to be heard in other secctions it is clear that in passing s.464ZF in the terms that it did, Parliament intended that the application should be heard without notice to the person the subject of the order and without giving him or her a right to be heard.

1025. Mrs Hampell QC drew attention to the provisions of sub-s.(5) of s.464ZG which is concerned with the destruction of identifying information. She emphasised that the sub-section expressly provided that the application could be made "without notice to any other person".

1028. Sub-section (5) enables a member of the police force to apply to the Magistrates' Court or Children's Court for an order extending the period during which the relevant information can be stored. Under sub-s.(3) unless certain events occur the Chief Commissioner is obliged to destroy any sample taken. However, sub-s.(5) enables the court to extend the period. The sub-section expressly states that the member of the police force may apply "without notice to any other person".

1031. Mrs Hampell QC submits that the legislature has expressly excluded the requirement. Therefore because s.464ZF has not expressly excluded notice it follows that fairness demands notice.

1034. In considering these submissions it must not be overlooked that subdivision 30A was first introduced into the Crimes Act in 1988 and has been added to by legislation in 1993 and 1997.

1037. In seeking to determine the intention of Parliament it is necessary to take into account the context in which the legislation was introduced because it is in that setting that one may be able to determine what the intention of Parliament was taking into account the existing statutory scheme.

1040. When considering s.464ZG(5) relied on by Mrs Hampell QC it is noted that the section was first inserted in 1989 and substituted in 1993. Sub-section (5) was introduced into the legislation in 1993. This was well before the present s.464ZF which was introduced in the latest legislation in 1997.

1043. In the 1993 legislation the original s.464ZF was concerned with blood samples following the commission of a serious sexual offence and it was confined to a situation where a court found a person guilty of a serious sexual offence and provided for a member of the force to apply to the court for an order directing the giving of a blood sample. There was nothing in the section which required notice or a right to be heard. It was in that context that one has to consider s.464ZG(5) which did expressly provide that an application to extend time could be made without notice to any other person.

1046. The 1997 legislation substituted s.464ZF which was in different terms to the original section. There was no change to sub-s.(5) of 464ZG.

1049. In those circumstances it is difficult to draw any conclusion from the comparison of the sections because they were introduced as part of statutory procedures which were different and at different times.

1052. The thrust of Mr Holdenson QC's argument is that there is nothing in s.464ZF which requires notice or a right to be heard, except sub-s.(5) which does require notice where the person affected is a child and from a comparison of the surrounding provisions which were passed in 1993, it is clear that Parliament had taken into account the statutory procedures set out in subdivision 30A and where necessary did expressly require notice but in other cases did not do so and one could then draw the inference that it did not intend that the plaintiffs in this proceeding, were entitled to notice or the right to be heard.

1055. In so arguing, Mr Holdenson QC is invoking the principles of statutory construction embodied in the maxims expressio unius est exclusio alterius (the express mention of one person or thing is to the exclusion of another) and expressum facit cessar tacitum (when there is an express mention of certain things, then anything not mentioned is excluded). If they did apply it would lead to the conclusion that s.464ZF when construed in context excluded any obligation of fairness in the form of the notice-hearing rule.

1058. It has been said on occasions that a court should apply these principles of construction with a degree of caution.

1061. In Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2; (1982) 148 CLR 88, the High Court at p.94 said -

"That maxim (expressio unius est exclusio alterius) must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument: Sounders v Evans. It is 'a valuable servant, but a dangerous master': Colquhoun v Brookes."

1065. The matters raised by Mr Holdenson QC are valid and relevant to the legislative intent. But the difficult question is the inference that the court should draw with respect to the intention of Parliament. In determining the question of legislative intent the factors already discussed are relevant as well as the wording and the history of the legislation.

1068. In determining what was the intention of Parliament it is necessary to look at the legislation which was passed in 1997 which substantially amended and added to subdivision 30A.

1071. Part 4 of the Crimes (Amendement) Act 1997 is concerned with forensic procedures. As I have stated it amended in a substantial way subdivision 30A and also added other procedures for the gathering of evidence.

1074. The court is required to give the Act a construction which promotes the object or purpose underlying the Act, (s.35(a) of the Interpretation of Legislation Act 1984).

1077. The court is entitled to consider any matter or document that is relevant to the question of construction (see s.35(b)) which would include proceedings in Parliament and any reports of Committee upon which the legislation is based.

1080. In determining whether the legislature intended to exclude the right of each of the plaintiffs to notice and an opportunity to be heard in the application under s.464ZF, it is necessary to consider the background to the legislation now found in subdivision 30A, the various amendments and the legislative framework employed with particular reference to procedures.

1083. The legislation which established subdivision 30A was enacted in 1988; the Crimes (Custody and Investigation) Act 1988. (No. 37 of 1988).

1086. Subsequently the subdivision was substantially added to by amending legislation in 1993 and 1997. The latter legislation enacted a new s.464ZF with which this proceeding is concerned.

1089. The 1988 legislation dealt with a variety of matters. They were as diverse as detention of persons in custody and what was a reasonable time to detain a person, the rights of the person in custody, the questioning or investigation of a person held for another matter and the right to an interpreter. The subdivision also provided for the tape recording of confessions and admissions.

1092. One section in sub-division 30A provided for a procedure leading to a decision.

1095. Section 464B provided that, a member of the police force, inter alia, could apply to a Magistrates' Court or the Children's Court if applicable, that a person held in prison and who was reasonably suspected of committing an offence be delivered into the custody of the investigating policeman for the purposes of questioning or investigation.

1098. The section went on to provide that the application had to be in writing stating the grounds and be served on the person or the officer in charge of where he was detained. The section provided that the Magistrates' Court or the Children's Court could order the person be brought before the court for the hearing of the application. The section went on to provide what would be the effect of an order upon the custody of the person involved.

1101. The section is still in the same form today save for a few minor formal amendments.

1104. This amending legislation was passed following the report of the Consultative Committee on Police Powers of Investigation under the Chairmanship of Mr John Coldrey QC dated April 1986. Section 464B was based upon the recommendation of the committee - see report pages 105-6.

1107. It is clear from s.464B that the procedure involved giving notice. Presence of the person in the court could be achieved by court order. Under sub-s.(5) if present the person the subject of the application may consent to the order.

1110. The section is silent on the right to be heard. But if brought before the court the person no doubt would be given the opportunity to be heard.

1113. The next substantial legislative changes to subdivision 30A were brought about by the Crimes (Amendment) Act 1993 (No. 129 of 1993).

1116. This legislation was also based upon the 1989 report of the Consultative Committee on Police Powers of Investigation, Body Samples and Examinations under the chairmanship of Mr John Coldrey QC.

1119. The amending Act covered a number of matters but was principally concerned with giving members of the police force further powers to obtain fingerprints and forensic samples and to conduct forensic examinations.

1122. A number of the new sections provided hearings before the Magistrates' Court or Children's Court. The sections were 464M, 464O(4), 464T, 464U, 464V and W which were concerned with interim orders, and 464ZF and 464ZG(5).

1125. A consideration of the various sections establishes that the legislature has laid down different procedures for different orders.

1128. Section 464M is concerned with a child being ordered to provide fingerprints. Notice was to be given and there was a limited right to be heard.

1131. The detailed procedure which is set out in the legislation is to be compared with the legislation concerning fingerprinting of adults and children aged 15 or above which is left to the members of the police force and does not involve any application before a court.

1134. This difference in approach to children is in accordance with the report of the Consultative Committee. The Committee recommended that children be treated differently to adults.

1137. It is also to be compared with the provisions of s.464O(4) which gives the right to a member of the police force to apply to a Magistrates' or Children's Court for an order extending the period during which fingerprints may be retained. The sub-section expressly provides that the application is without notice.

1140. Section 464T provides a procedure to obtain an order for a compulsory forensic procedure from a suspect.

1143. Notice must be given and the suspect has a limited right to be heard. The procedure set out in the section is far more detailed than that set out in s.464M.

1146. Section 464U is concerned with a forensic procedure involving a child who is a suspect. The section sets out the procedure in some detail which is similar to the procedure involving an adult and expressly provides that the child must be present.

1149. Sections 464V and W provide for urgent interim orders. Application may be made with or without notice.

1152. The original s.464ZF was concerned with blood samples following the conviction for a serious sexual offence. Section 464ZG was concerned with the destruction of information and the right to make application to the court for an extension of time so that the samples could be retained. It expressly provided that no notice was to be given.

1155. The legislation was based upon the recommendations of the Consultative Committee. The sections dealing with procedures showed that there were different procedures laid down by Parliament depending on the particular circumstances and showed that Parliament intended that different procedures were to apply.

1158. This brings me to the final piece of legislation being the Crimes (Amendment) Act 1997 (No. 81 of 1997).

1161. Part 4 is concerned with forensic procedures and substantially amended and added to sub-division 30A.

1164. Section 464ZF was repealed and the new section with which this proceeding is concerned was substituted.

1167. It is noted that under sub-s.(5) if application is to be made in respect to a child, notice of the application must be served on the child and the parent or guardian of the child.

1170. As has been observed the section is silent as to notice to an adult or the right to be heard by anybody.

1173. Section 464ZFB is concerned with retention of information following a finding of guilt and gives the right to make application to the Magistrates' or Children's Court for an order and expressly provides that no notice be given.

1176. Section 464ZGF is concerned with an application to the court where consent to retain a sample is withdrawn and no provision is made concerning notice. On the other hand the court is required to give reasons for its decision and cause a copy of the order and reasons to be served on the person who voluntarily gave the sample.

1179. In considering s.464ZF and whether the Parliament intended that the notice-hearing rule did not apply, it is necessary to consider the section as part of division 30A of the Crimes Act which has been added to by two substantial pieces of legislation since its passing in 1988. Section 464ZF must be construed in the setting of the whole sub-division but taking into account the fact that it was inserted in 1997 into a legislative scheme which did provide for various types of procedures to be followed in relation to different applications.

1182. It is also noted that in the 1989 report of the Consultative Committee that the Committee recommended that a procedure where a person refused to consent to undergo a forensic procedure involved an application to a Magistrate for a warrant to bring the person before the court for the hearing of an application. It is noted that it was recommended that the Magistrate should state the evidence upon which he was satisfied that the criteria test had been made out, that the Magistrate must inform the suspect that the police are authorised to use force or that an adverse inference could be drawn for refusing to comply. It was recommended that the Magistrate keep a record of his reasons and that they be made available for use at trial. The actual report makes little reference to a suspect being a person serving a custodial sentence but the recommendation at p.272 does refer to such a person. It is noted that s.464ZF is substantially different to what was recommended in that report in relation to procedures.

1185. The legislative history establishes a number of matters. They are -

(i) The legislation enacted in 1988, 1993 and 1997 shows increasing powers being given to police officers in investigation of crime;

(ii) sometimes the powers can only be exercised after a court order;

(iii) some sections set out a procedure to be followed, whereas others were silent;

(iv) some sections expressly required notice, some expressly provided that no notice was required;

(v) section 464ZF introduced in 1997 required notice to be given to a child the subject of the application, but otherwise was silent as to notice to an adult and the procedure that should be followed where notice was given to a child.

1191. Given that legislative history and framework, what was the intention of Parliament with respect to the decision making process under s.464ZF and in particular the obligation to accord procedural fairness?

1194. No doubt arguments can be advanced on both sides in respect to the legislative history and what Parliament was intending when it enacted different procedures in respect to different applications.

1197. In my opinion the legislative intention was to exclude the obligation to give notice to an adult and an opportunity to be heard.

1200. First, the earlier legislation in sub-division 30A set out in some sections a requirement of notice and went on to provide a very limited right of participation at the hearing. One could infer that where there was no provision in respect to the decision making process concerning notice and opportunity to be heard, that the legislature did not intend notice or a right to be heard. The rights affected were not greater or less than in those sections which dealt with the notice and the limited right to be heard.

1203. That was the established regime under sub-division 30A when the new section 464ZF was enacted.

1206. Secondly, sub-s.(5) specifically requires notice to be given to a child and is silent as to procedure. The Magistrate has power under sub-s.(8)(c) to make such enquiries on oath or otherwise as the Magistrate considers desirable in the circumstances. Accordingly it would be up to the Magistrate to determine what he or she would permit the person the subject of the order to say at the hearing.

1209. But it is significant that notice must be given to a child but not an adult. Taking into account the limited right to be heard in other provisions leads to the conclusion that the adult person was not entitled to notice.

1212. Thirdly, the requirement that the Magistrate must give reasons for his decision and cause a copy of the order and reasons to be served leads to the conclusion that the adult person would not be present - see Stewart v Lewis (1996) 1 Qd R 451 at 459.

1215. Fourthly, there is no express provision for notice to be given to an adult or right to be heard in s.464ZF or the other provisions of the sub-division.

1218. Fifthly, the fact that the Magistrate has the power to make such enquiries on oath or otherwise as the court considers desirable means that in an appropriate case the Magistrate could require that notice be given and that the person the subject of the order be brought before the court and be heard. This is left to the Magistrate.

1221. Sixthly, comparison with the other provisions of sub-division 30A and in particular 464M, 464T and 464U which are concerned with notice and limited participation at the hearing, leads to the conclusion that Parliament did not intend that notice be given under s.464ZF to an adult.

1224. My conclusion is reinforced by the fact that there may be a degree of urgency in making and determining applications under s.464ZF where the person is in prison. He or she may be released prior to the execution of the order. If there was a requirement that notice be given and a right to be heard, there could be delay in having the application heard.

1227. When introducing the Bill into Parliament on 9 October 1997, the Attorney-General, Mrs Wade, emphasised that Part 4 of the Bill made amendments "which will not only greatly assist the early detection of crime but which will also act as a significant deterrent to the commission of future offences". She stated -

"Community confidence in the criminal justice system is promoted through the early detection of serious crime."

1231. The purpose of obtaining DNA samples is to assist with the solution to unsolved crimes and also to deter the commission of further offences. Expedition may be necessary in some cases.

1234. Another matter which re-enforces my conclusion is that although the Consultative Committee recommended that the person be brought before a court before an order was to be made, that was not taken up by the government of the day.

1237. Finally, my conclusion is re-enforced by the other matters that I have discussed. The minor nature of the infringement of rights, the small impact of execution of the order on the person concerned, the legislative purpose and the fact that the decision was left to a responsible and careful judicial officer all support my conclusion that the procedural fairness rule in the circumstances of this case do not require notice to the applicant and a right to be heard prior to the order being made.

1242. The evidence leads to the conclusion that the applications were made at hearings which were not open to the public.

1245. Josephine Elizabeth McColl solicitor, swore in an affidavit on 1 August 2000 -

"On 14 April 2000 I attended the criminal co-ordinator's office at the Melbourne Magistrates' Court with my principal Robert Stary. We discussed the process for the application for an order under s.464ZF of the Crimes Act 1958 for an intimate sample to be taken. I was informed that the applications are made ex parte and heard in Chambers and consequently there is no tape recording of the proceedings."

1249. Section 125 of the Magistrates' Court Act provides -

(1) All proceedings in the court are to be conducted in open court, except where otherwise provided by this or any other Act or the Rules."

1256. Power is given to the court under s.126 to close proceedings to the public. Section 126 does not apply to an application under s.464ZF. Further, there is no evidence that the Magistrate made an order under the section in respect to the applications concerning the plaintiffs.

1259. Section 3 defines "proceeding" as - "any matter in the court including a committal proceeding ... ". In my opinion an application under s.464ZF is a proceeding and must be conducted in open court.

1262. There is nothing in the Magistrates' Court Act or any other Act which empowers the court to hear the application other than in open court.

1265. The Magistrates' Court Act authorises the making of rules of court in relation to a variety of matters. See ss.16, 141 and 142.

1268. The phrase "the rules" is defined in s.3 as meaning "Rules of court jointly made by the Chief Magistrate together with two or more Deputy Chief Magistrates, whether under the powers conferred by this Act or otherwise".

1271. There is no rule which entitles the Magistrates' Court to hear an application under s.464ZF in Chambers.

1274. Mr Holdenson QC submitted that in the event the court was of the opinion that the plaintiffs were not entitled to notice of the application or the right to be heard, it was open then to the Magistrates' Court to hear the proceeding in Chambers. He referred to the famous case of Scott v Scott (1913) AC 417. It is a well established principle of the common law that the administration of justice takes place in an open court. The general rule is subject to exceptions. The exceptions are rooted in the principle that if justice cannot be done in a particular case if it was heard in public then the court can be closed.

1277. In R v Chief Registrar ex parte New Cross Society (1984) 227 at p.235, Sir John Donaldson MR stated the well established common law principle when he said -

"It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen's courts are open to all. And when I say that they are open to all, I do not limit this to those who have business in the courts. The judges administer justice in the Queen's name on behalf of the whole community. No-one is more entitled than a member of the general public to see for himself that justice is done. Nevertheless it is well established that occasions can arise when it becomes the duty of the court to close its doors."

1281. His Lordship summarised the rules as follows at p.235 -

"The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, for the achievement of the paramount object of the courts which is to do justice in accordance with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done."

1285. I do not accept the submission that if the general common law rules applied, it would be open to a Magistrate to hear the application under s.464ZF in private in circumstances where the public did not have access to the hearing room. It is emphasised that the application is made to the Magistrates' Court and not to a Magistrate. It is a court proceeding.

1288. But the common law has been superseded by the statutory provision in the Magistrates' Court Act. Section 125 sets out the requirement that the proceedings of the court must be conducted in open court and the exceptions to that rule are found in s.126. Further, s.125 empowers the court to make rules concerning the hearing of a proceeding in a court not open to the public.

1291. This obligation is re-enforced in light of my ruling that the applications can be made without notice to the person concerned. The importance of public awareness and scrutiny cannot be overstated. The public and the media are entitled to scrutinise the hearing of the application and this can only be done in open court.

1294. I am satisfied that making orders against each plaintiff in Chambers instead of open court constituted a breach of the mandatory obligation under s.125 that all proceedings are to be conducted in open court.

1297. The difficult question that now arises is, what is the effect of such a breach of obligation. Does the court proceed without power in those circumstances and hence any order made is ultra vires and void? Or is the order made, voidable?

1300. Where there is a breach of a legal requirement such as a breach of s.125 of the Magistrates' Court Act, the effect of the breach upon the exercise of the power of the court is determined by the intention of Parliament. Clearly the court has power under s.464ZF to make the order. The power must be exercised in accordance with the relevant provisions of the Magistrates' Court Act.

1303. At common law the failure to administer the law in an open court results in the order made, being voidable.

1306. In McPherson v McPherson (1936) AC 177, an undefended divorce took place during a luncheon interval in the judge's law library in the courthouse at Edmonton, Alberta in Canada. This was not one of the regular courts in the courthouse. The public did not have access to the judge's law library.

1309. The Privy Council held that the judge presiding at the divorce proceeding was denying the public attendance in his court in breach of the right to be present. The Privy Council applied the principles of the common law in Scott v Scott, supra.

1312. The Privy Council rejected the submission that the irregularity rendered the orders null and void. After noting that there was no authority on the point, the judicial committee stated at p.203 -

"And their Lordships are of the opinion that neither on principle nor by authority can they be supported, that the decrees here in question were voidable only, and not void, and that the time for avoiding them has long gone by. ... Here their Lordships are dealing with a decree pronounced after a serious trial free from every other defect in procedure, and one entered and remaining on the court files as regular in every respect. To say that such a decree is void would seem to be out of the question. If the law was so to treat it, the remedy would be far worse than the disease it was designed to cure. To say that it is voidable states a result which, their Lordships think, entirely meets the case."

1316. Their Lordships went on to hold that by reason of delay and the establishment of rights in third parties that the right to avoid the orders was lost.

1319. In Dando v Anastassiou [1951] VicLawRp 30; (1951) VLR 235, Dean J was concerned with an order to review a decision convicting and fining the applicant in a criminal case where the charge was heard by a single Justice of the Peace in a small room located in the local police station. His Honour held that the proceeding had not been held in an open court contrary to the law.

1322. McPherson's case supra, was cited to His Honour.

1325. His Honour did not have to consider whether the order was voidable or void because there was no question of delay or any other factor affecting the right to avoid the order, and His Honour quashed the conviction and sent it back for a re-hearing.

1328. In Sepack Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court Yarram and Ors, an unreported decision of Fullagar J delivered 12 June 1990, His Honour was concerned with a motion seeking rectification of the Register of the Magistrates' Court and an order that the Magistrate complete the hearing by delivering in open court a judgment with reasons. The facts revealed that a Magistrate reserved his judgment in a proceeding, and the Magistrate delivered a written judgment but without reasons by a letter to the Clerk of Courts who posted a copy to each party and entered the decision on the Register.

1331. His Honour held that in the absence of some statutory authority a Magistrate was bound to deliver a judgment in open court. His Honour went on to say -

"The delivery of judgment otherwise than in open court has been described as ultra vires. See e.g. Reidy v Herry (1897) 23 VLR 508 and the decision of the Full Court of the Supreme Court of Queensland in Melville v Phillips (1899) 9 QLJ 114."

1335. In Wandin Springs v Wagner [1991] VicRp 85; (1991) 2 VR 496, McDonald J in very similar circumstances followed the decision of Fullagar J.

1338. Neither of these two cases turned on the provision in the relevant Act concerning the obligation to hear a proceeding in open court.

1341. The Legislature has not expressly provided that a breach of s.125 results in the proceeding being void, and in my opinion following the reasoning of the Privy Council in McPherson v McPherson supra, the effect of a breach of s.125(1) of the Magistrates' Court Act (1989) is that the order made is voidable at the instance of the person affected by it.

1344. The question is whether each plaintiff has lost his right by reason of the passage of time and the execution in respect to two of the plaintiffs of the orders made.

1347. There is no question of any third party rights accruing.

1350. The first plaintiff Mr Lednar has not given a sample pursuant to the order made against him. In my opinion he has not lost his right to have the order made against him avoided on the ground that it was not made in open court and in breach of s.125(1) of the Magistrates' Court Act 1989. In my opinion the order should be quashed.

1353. That brings me to the orders made against Mr O'Brien and Mr Hill.

1356. The orders have been executed in respect to the plaintiffs Messrs O'Brien and Hill. Both provided samples on 19 April 2000. Mr O'Brien at that stage had not been provided with a copy of the extract of the order according to his evidence although there is some dispute on that question by the police, and Mr Hill actually received a copy of his order on that day.

1359. It was not until their solicitors approached the Criminal Co-ordinator's Office at the Melbourne Magistrates' Court on 14 April 2000 that their solicitors became aware that the orders had been made ex parte and in Chambers. It was not until 26 April 2000 that the solicitors actually obtained material relating to them from the said office. In the meantime the orders had been executed.

1362. If an order is voidable, the person affected by it, does not necessarily lose his right to set it aside until he has notice of the terms of the order and something occurs thereafter which makes it impossible to set aside the order and in effect restore the status quo prior to the order being made. That is not to say that delay in itself may not be a discretionary basis for refusing to quash the order.

1365. I am satisfied in the circumstances of this case that neither Messrs O'Brien or Hill lost their right to come to this court to quash the orders even though they were executed.

1368. A court will refuse to make an order if the effect of it would achieve nothing but in my opinion even though the samples have been taken this court has power to order that the samples be delivered up for destruction.

1371. In my opinion each plaintiff is entitled to have the order made against him quashed on the ground that the order was made in breach of s.125(1) of the Magistrates' Court Act.

1376. In the light of my findings that the orders should be quashed it is not necessary for me to consider whether the two conditions precedent were satisfied prior to the making of an order pursuant to s.464ZF.

1379. However, if this proceeding is to go further, it is appropriate for me to briefly state my conclusions with respect to this issue. The parties did make submissions in relation to the issue.

1382. I am satisfied that the plaintiffs Messrs Lednar and O'Brien each prior to 1 July 1998 had been found guilty by a court of a forensic sample offence and at the time the order was made was serving a term of imprisonment.

1385. The circumstances with respect to Mr Hill are different.

1388. I am satisfied that prior to 1 July 1998, Mr Hill had been found guilty by a court of a forensic sample offence.

1391. The question is whether at the relevant time he was serving a term of imprisonment.

1394. The application for a forensic procedure order was made on 5 July 1999 and the order was made on 5 November 1999.

1397. At the date when the application was filed and the date when the order was made Mr Hill was not actually in prison. On 6 January 1999 he was sentenced to 12 months' imprisonment in relation to a variety of offences but as at 5 July 1999 he was no longer in prison. He was at that point in time serving his sentence by way of a combined custody and treatment order under s.18 of the Sentencing Act 1991.

1400. It was submitted on his behalf that although the prerequisite found in s.464ZF(3)(a) had been complied with the prerequisite found in sub-s.(3)(b) was not satisfied.

1403. In my opinion it is clear that the prerequisite found in sub-s.(3)(b) must apply at the date when the application is made to the court, that is, filed. This is clear from the provisions of s.464ZFA.

1406. Mr Holdenson QC submitted that the prerequisites were satisfied at 5 July 1999 because in fact he was serving a term of imprisonment by reason of s.18Q(6) of the Sentencing Act.

"That person is serving a term of imprisonment ... for any offence, whether or not a forensic sample offence."

1413. What is meant by the phrase "serving a term of imprisonment"?

1416. Section 18Q empowers a court in certain circumstances to impose a sentence of imprisonment of not more than 12 months "and an order that not less than six months of that sentence be served in custody and the balance be served in the community on the conditions attached to the order" - see s.18Q(1).

1419. The effect of such an order is provided for in sub-s.(6) in the following terms -

"(6) A combined custody and treatment order must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court." (Emphasis added.)

1423. In my opinion the submission of Mr Holdenson QC is correct and that for the purposes of sub-s.(3)(b) of the Crimes Act a person "is serving a term of imprisonment" if sentenced in accordance with the provisions of s.18Q of the Sentencing Act 1991.

1426. It follows that the two prerequisites concerning Mr Hill were satisfied in respect to his application.

1431. Before considering the procedures adopted by the police and the hearing and determination by the Magistrates' Court it is appropriate to consider the obligation resting on the Magistrate to give reasons for the order.

1434. Section 464ZF(9) requires the court if an order is made under sub-s.(2) or (3) to give reasons for its decision and cause a copy of the order and reasons to be served.

1440. In respect to each plaintiff, the Magistrates' Court followed the same procedure.

1443. The court record reveals a court order which sets out the order made and then there is a heading called - "Reasons:".

1446. Then underneath that heading appeared the following in respect to Messrs Lednar and O'Brien -

"The above-named person has been found guilty by the Magistrates' Court (Lednar) or County Court (O'Brien) of a forensic sample offence. Any appeal period from such sentence has expired. The seriousness of the circumstances of the forensic sample offence. In all the circumstances the making of the order is justified."

1450. The same wording was used in respect to the reasons concerning Mr Hill save that there was an additional sentence, namely -

"The appeal has been finally determined and the conviction for the forensic sample offence upheld."

1454. In my opinion the so-called reasons are not reasons.

1457. Section 464ZF(8) obliges a court to take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order and further, that in all the circumstances the making of the order is justified.

1460. The so-called reasons merely assert what the court must take into account and be satisfied of and does not give any explanation for so finding.

1463. In my opinion the reasons should as a minimum state that the seriousness of the circumstances of forensic sample offence have been considered, the effect of the consideration and that the said circumstances if it be the case lead to the conclusion that prima facie an order should be made and the reasons why. Further, the reasons should state that there is a reason or there are reasons why the order is justified and those reasons should be given.

1466. The effect of the failure to give reasons for the decision does not result in the order being invalidated and accordingly this court cannot grant any coercive relief.

1469. This is made clear by the provisions of sub-s.(10) which provide -

"(10) Failure of a court to comply with sub-s.(9) does not invalidate any order made by it but constitutes non-compliance for the purpose of s.464ZE(1)(a)."

1473. The evidence obtained as a result of the forensic procedure is inadmissible as part of a prosecution case in proceedings against that person for any offence.

1478. Sub-section (9) requires the service of a copy of the order and reasons on the person the subject of the order. In my opinion service must take place prior to the execution of the order and this is made clear by the provisions of sub-s.(9)(b). Further, in my opinion service means personal service on the person who should be given the opportunity to read and understand the court order prior to the procedure being carried out.

1481. There is some dispute as to whether or not Mr O'Brien was served with a copy of the order prior to it being executed. According to Mr O'Brien he did not receive a copy. According to Senior Sergeant Alex Amici just prior to the execution of the order on 19 April 2000 "Senior Constable Thomson served a copy of the court order by pushing a copy of the order across to the opposite side of the table dividing Thomson and O'Brien. This copy court extract was not actually handed to O'Brien but its contents were explained to him. The copy of the court order was later placed in O'Brien's property at the prison."

1484. There is evidence that Mr Hill was served with a copy of the order just prior to the execution of same.

1487. It is unnecessary for me to resolve these issues of fact. It would be difficult to do so on affidavits. Further, it is unnecessary for me to do so because the effect of the failure to serve does not invalidate the order but constitutes non-compliance for the purposes of s.464ZE(1)(a). See s.464ZF(10).

1492. It was submitted on behalf of each plaintiff that the court could infer from the material that was before each Magistrate, the fact that the orders made in respect to Messrs Lednar and O'Brien were two of some 48 applications that were heard ex parte before the same Magistrate in Chambers on 1 March 2000 and the lack of proper reasons that the Magistrate did not fully consider each application and determine same in accordance with the law.

1495. It is further submitted that the procedure which has been adopted by the Magistrates' Court is totally inadequate and fails to require sufficient evidence to enable a decision to be made in accordance with the law.

1498. Further, it is emphasised that the so-called "affidavit" is not a proper affidavit according to law and accordingly there is considerable doubt whether the applications were supported by sworn evidence.

1501. Section 464ZF is silent as to what procedure should be adopted by the Magistrate on an application and there are no rules or regulations which address the question.

1504. It is well established that in the absence of any statutory provision concerning procedure, any court has the power to formulate its own procedure and apply it.

1507. In McGrath v Dobie, [1890] VicLawRp 133; (1890) 16 VLR 646, the Full Court said at p.648 -

" ... It is proper to observe pointedly, in view of this present application, that all courts of justice have the control of their own proceedings and, their proceedings being in accordance with the usual and established practice of that court, and being a practice proper in itself and not inconsistent with the Act under which the jurisdiction is constituted, such practice is absolutely free from liability to be called in question."

1511. Section 464ZF(8)(c) permits the court on the hearing of an application to - "(c) make such enquiries on oath or otherwise as it considers desirable."

1514. Whilst in my opinion it would be appropriate that application should be supported by evidence on oath the question of the form of evidence and whether it be on oath is a matter for the Magistrate. Whilst the so-called "affidavit" is not in appropriate form I would not infer that the applications were not made on oath and if they were not that does not seem to me to be a failure to exercise the jurisdiction in accordance with the section.

1517. Sub-section (8) sets out what the court must take into account and what it must be satisfied of.

1520. I would not be prepared to infer that the fact that the court entertained on 1 March some 48 applications, 38 of which were applications under s.464ZF that the Magistrate did not fully consider each application and make an order in accordance with a proper exercise of the power. Further, I would not infer from the fact that the so-called "reasons" were in a standard form and did not constitute reasons that the Magistrate failed to properly consider each and every application in accordance with the requirements of s.464ZF and in particular sub-s.(8).

1523. The degree of satisfaction in respect to the matters to take into account, is ultimately a matter for the Magistrate. The very breadth of the authority given to the Magistrate to make such enquiries on oath or otherwise as he or she considers desirable under sub-s.(8)(c) makes it clear in my opinion that the court could rely upon hearsay evidence. However, the court should be vigilant to ensure that the factual matters which are before the court are accurate.

1526. Whether or not the Magistrate makes an order is a matter of discretion and the discretion is unconfined save that in considering and determining the application the matters set out in sub-s.(8)(a) and (b) must be taken into account.

1529. The High Court said in R v Australian Broadcasting Tribunal ex parte 2 HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49 -

"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except insofar as the subject matter and the scope and purpose of the statutory enactments may enable the court to pronounce given reasons to be definitely extraneous to any objects the legislature would have had in view' to use the words of Dixon J in Browning. In that case His Honour went on to remark (as he had done earlier in Swan Hill Corporation v Bradbury) 'on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power."

1533. The Magistrate is obliged to give effect to the subject matter, scope and purpose of the statutory provision and in my opinion it is clear that the object of an application under s.464ZF is to provide the means of obtaining reliable evidence to investigate old crimes and to deter future crimes and these matters should be taken into account by the Magistrate.

1536. Each plaintiff assumes a very heavy burden of persuading this court that the Magistrate did not take into account all proper matters and properly consider and determine the application.

1539. As Gibbs J said in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-9 -

"However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."

1543. In considering the submissions on behalf of the plaintiffs it must be borne in mind that although it is well recognised in the context of judicial review that the making of findings and the drawing of inferences in the absence of any evidence is an error of law there is no error of law simply in making a wrong finding of fact. So long as there is some basis for an inference, in other words it is reasonably open, there is no place for judicial review because no error of law has taken place. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6 per Mason CJ.

1546. I am not persuaded that the Magistrates concerned in the decisions relating to each of the plaintiffs did not properly exercise the jurisdiction of the court and did not take into account the requirements of s.464ZF and in particular sub-s.(8).

1549. The question of the sufficiency of evidence was ultimately a matter for the Magistrate and on the evidence that was available to the Magistrate in respect of each plaintiff, it was in my opinion open to the Magistrate to make the orders in question.

1552. It follows that the plaintiffs have failed to persuade the court that the Magistrates did not properly exercise their jurisdiction.

1557. Mr Holdenson QC submitted that there were discretionary factors that should be taken into account and result in the plaintiffs failing if they were able to establish any grounds.

1560. He relied upon delay. It can be taken into account. However, prejudice is a very important factor to weigh. There is no suggestion of prejudice being caused to the members of the police force who made the applications by reason of any delay in bringing the proceeding in this court. In my opinion there is no basis for any discretionary refusal based upon delay.

1563. In considering the submission concerning discretion it is necessary to take into account the basis for the order of this court quashing the orders made in the Magistrates' Court. The basis is that the orders were made in closed court contrary to the provisions of s.125(1) of the Act. The orders are voidable and in the absence of a compelling reason should be set aside.

1566. In my opinion there are no discretionary factors which would preclude this court making an appropriate order.

1571. I am satisfied that the orders made against each plaintiff be quashed on the ground that they were made contrary to the provisions of s.125(1) of the Magistrates' Court Act.

1574. It follows it is unnecessary to consider the further grounds raised by each plaintiff concerning the execution of the orders.

1577. Subject to submissions from counsel I propose to make the following orders -

(i) That the time for each plaintiff to commence a proceeding in this court pursuant to Order 56 be extended to 1 August 2000;

(ii) that the order made by the Magistrates' Court of Victoria at Melbourne on the first day of March 2000 against Garry Stephen Lednar pursuant to s.464ZF of the Crimes Act 1958 be set aside;

(iii) that the order made by the Magistrates' Court of Victoria at Melbourne on 1 March 2000 against Michael Martin O'Brien pursuant to s.464ZF of the Crimes Act 1958 be set aside;

(iv) that the order made by the Magistrates' Court of Victoria at Melbourne on 5 November 1999 against McPherson Alexander Hill pursuant to s.464ZF of the Crimes Act 1958 be set aside;

(v) order that the Chief Commissioner of Police for the State of Victoria produce to the solicitors acting for the second and third plaintiffs, Michael Martin O'Brien and McPherson Alexander Hill, the intimate sample taken from each man and all records and any related material and information derived from the intimate sample (including information which may or may not identify the person on whom the forensic procedure was conducted) or obtained from the analysis of the samples taken or procedures conducted by no later than 4.30 p.m. on the 29th day of December 2000.

1583. I will hear the parties on the question of costs.

I certify that this and the 81 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 22 December 2000.