A v Corruption and Crime Commissioner - [2013] WASCA 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: A -v- CORRUPTION AND CRIME COMMISSIONER [2013] WASCA 288

CORAM: MARTIN CJ
McLURE P
MURPHY JA

HEARD: 19 AUGUST 2013

DELIVERED : 18 DECEMBER 2013

FILE NO/S: CACV 74 of 2013

BETWEEN: A
Appellant
AND
CORRUPTION AND CRIME COMMISSIONER
First Respondent
CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Second Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :RE ROGER MACKNAY QC; EX PARTE A [2013] WASC 243
File No  :CIV 1940 of 2013

Catchwords:

Corruption and Crime Commission - Public examination - Closed-circuit television (CCTV) footage played during hearing - Certification that disclosure necessary in the public interest - Corruption and Crime Commission Act 2003 (WA), s 152

Administrative law - Certiorari - Application to quash decision to disclose CCTV footage - Public interest - Whether the Commissioner considered irrelevant considerations or failed to consider relevant considerations - Unreasonableness - Improper purpose - Education function - Misconduct function - Subsequent investigation and fair trial of appellant

Words and phrases - Necessary - Public interest

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 3, s 4, s 7A, s 7B, s 17, s 18, s 21A, s 23, s 28, s 30, s 36, s 43, s 46, s 94, s 95, s 96, s 99, s 137, s 139, s 140, s 142, s 145, s 151, s 152, s 153, s 154, s 157, s 158, s 159, s 160, s 167, s 179, s 181, s 182, s 183, s 208, s 209, s 214
Evidence Act 1906 (WA), s 21
Interpretation Act 1984 (WA), s 5
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Ms K A Vernon
First Respondent           :     No appearance
Second Respondent       :     No appearance
Intervener:     Mr R M Mitchell SC & Ms A B Preston-Samson

Solicitors:

Appellant:     Lyn Zinenko Lawyers
First Respondent           :     No appearance
Second Respondent       :     No appearance
Intervener:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Commission v Parish (1980) 43 FLR 129; (1980) 29 ALR 228
Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Bruce v Cole (1998) 45 NSWLR 163
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122; (2007) 34 WAR 325
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commonwealth v Baume (1905) 2 CLR 405
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Corruption and Crime Commission v Allen [2012] WASCA 242
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Craig v South Australia (1995) 184 CLR 163
Elcham v Commissioner of Police [2001] NSWSC 614
Ex parte WA Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Foley v Padley (1984) 154 CLR 349
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hunter v the Minister for Planning [2012] WASC 247
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363
Levi v Australian Securities Investments Commission (No 2) [2013] NSWSC 932
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
Maloney v Commissioner for Railways (1978) 52 ALJR 292; (1978) 18 ALR 147
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
McLennan v McCallum [2010] WASCA 45
Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
National Crime Authority v Gould (1989) 23 FCR 191
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275
O'Sullivan v Farrer (1989) 168 CLR 210
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45
R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
Re Mactiernan; ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S 20 [2003] HCA 30; (2003) 77 ALJR 1165
Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175
Re Roger Macknay QC; ex parte 'A' [2013] WASC 243
Re Shire of Carnarvon; ex parte Humphrey [2005] WASCA 182
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1
Russell v The State of Western Australia [2011] WASCA 246
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
State Drug Crime Commission of New South Wales v Chapman (1987) 12 NSWLR 447
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Water Board v Moustakas (1988) 180 CLR 491
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239
Williams v Minister for the Environment & Heritage (2003) 74 ALD 124
X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858
Zhang v Canterbury City Council (2001) 51 NSWLR 589

MARTIN CJ & MURPHY JA:

Summary

The appellant, whose name has been suppressed in these proceedings, was formerly a police officer stationed at Broome. He was involved in two incidents in which physical force was used against detainees at the Broome police station. Both incidents were recorded on closed‑circuit television (CCTV). The Corruption and Crime Commission (Commission) (the second respondent) commenced an investigation into the incidents in order to assess whether misconduct by public officers occurred or may have occurred during the arrest and detention of the two detainees or in the aftermath of the incidents to which we have referred.
The Corruption and Crime Commissioner (Commissioner) (the first respondent) decided to open the Commission's examination of the matters to which we have referred to the public on the ground that it was in the public interest to do so. That decision has never been challenged by the appellant.
During the public examination, in the course of her opening address, counsel assisting the Commission presented and played to the Commission the CCTV recordings to which we have referred. However, before that occurred, the Commissioner ordered that the CCTV recordings not be disclosed to the public until further order. The appellant and other witnesses gave evidence with respect to the incidents depicted on the CCTV recordings. After that evidence had been given, the Commissioner revoked the order which he had made preventing disclosure of the CCTV recordings to the public and further certified that disclosure of the CCTV recordings was necessary in the public interest (pursuant to s 152(4)(c) of the Corruption and Crime Commission Act 2003 (WA) (the Act)). The purpose of that certification was to enable the CCTV recordings to be provided to the media for public dissemination.
Before the certification could be implemented, and in particular before the CCTV recordings were provided to the media, the appellant commenced proceedings in the Supreme Court seeking orders quashing the decision of the Commissioner to disclose the CCTV recordings 'to the media and/or the public pursuant to s 151 and/or 152' of the Act. The orders were sought on the grounds that the Commissioner had wrongly exercised his discretion, had failed to take into account a number of specified considerations which were said to be relevant, and had taken into account irrelevant considerations. Those proceedings were dismissed - see Re Roger Macknay QC; ex parte 'A' [2013] WASC 243.
The appellant appeals from that decision. Appropriately, the Commissioner and the Commission have informed the court that they will abide by the court's decision and have not participated in the appellate process. However, leave was granted to the Attorney General of Western Australia to intervene in the proceedings, and in that capacity the Attorney General has acted as a contradictor to the relief sought by the appellant.
The grounds of appeal differ in a number of respects from the grounds which were advanced at first instance. For the reasons which follow, all grounds of appeal should be dismissed.

The scheme of the Act

It is convenient to commence by outlining the relevant statutory framework which governs the Commission’s operations.
The Act's primary purposes are to combat and reduce the incidence of organised crime, and to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector (Act, s 7A). These purposes are to be primarily achieved by establishing the Commission, which is able to authorise the use of investigative powers not ordinarily available to the police service to investigate organised crime, and to help public authorities to deal effectively and appropriately with misconduct (Act, s 7B).
The Commission's functions are specified in the Act (pt 2, div 2). They include receiving allegations of misconduct and investigating and dealing with such allegations, which may involve the reference of matters to, or taking action with, another authority. This 'misconduct function' is described in s 18 of the Act, which provides:
(1)It is a function of the Commission (the misconduct function) to ensure that an allegation about, or information or matter involving, misconduct is dealt with in an appropriate way.
(2)Without limiting how the Commission may perform the misconduct function, the Commission performs the function by -
(a)receiving and initiating allegations of misconduct;
(b)considering whether action is needed in relation to allegations and matters related to misconduct;
(c)investigating or taking other action in relation to allegations and matters related to misconduct if it is appropriate to do so, or referring the allegations or matters to independent agencies or appropriate authorities so that they can take action themselves or in cooperation with the Commission;
(d)monitoring the way in which independent agencies and appropriate authorities take action in relation to allegations and matters that are referred to them by the Commission;
(e)regardless of whether or not there has been an allegation of misconduct, investigating whether misconduct -
(i)has or may have occurred;
(ii)is or may be occurring;
(iii)is or may be about to occur; or
(iv)is likely to occur;
(f)making recommendations and furnishing reports on the outcome of investigations;
(g)consulting, cooperating and exchanging information with independent agencies, appropriate authorities and -
(i)the Commissioner of the Australian Federal Police;
(ii)the Commissioner of a Police Force of another State or Territory;
(iii)the CEO of the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;
(iv)the Commissioner of Taxation holding office under the Taxation Administration Act 1953 of the Commonwealth;
(v)the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;
(vi)the Director of the Australian Transaction Reports and Analysis Centre under the Financial Transaction Reports Act 1988 of the Commonwealth;
(vii)any person, or authority or body of this State, the Commonwealth, another State or a Territory that is declared by the Minister to be a person, authority or body to which this paragraph applies;
(h)assembling evidence obtained in the course of exercising the misconduct function and -
(i)furnishing to an independent agency or another authority, evidence which may be admissible in the prosecution of a person for a criminal offence against a written law or which may otherwise be relevant to the functions of the agency or authority; and
(ii)furnishing to the Attorney General or a suitable authority of another State, a Territory, the Commonwealth or another country, evidence which may be admissible in the prosecution of a person for a criminal offence against a law of the jurisdiction concerned or which may otherwise be relevant to that jurisdiction.
…
Section 4 of the Act provides that misconduct occurs if:
(a)a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment;
(b)a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person;
(c)a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or
(d)a public officer engages in conduct that -
(i)adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct;
(ii)constitutes or involves the performance of his or her functions in a manner that is not honest or impartial;
(iii)constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or
(iv)involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person, and constitutes or could constitute -
(v)an offence against the Statutory Corporations (Liability of Directors) Act 1996 or any other written law; or
(vi)a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).
Police officers are classified as 'public officers' under the Act (Act, s 3 and Criminal Code (WA) s 1). Pursuant to s 21A of the Act, the Commissioner of Police is required to notify the Commission of matters concerning, or that may concern reviewable police action in accordance with guidelines issued under s 30 of the Act (which empowers the Commission to issue guidelines with respect to matters referred to in s 21A). 'Reviewable police action' is defined by s 3 of the Act to mean any action taken by a police officer or an employee of the police service that is contrary to law, unreasonable, unjust, oppressive or improperly discriminatory (amongst other things). Section 21A provides that the Commission may deal with a matter notified under that section as if it were a notification of misconduct pursuant to s 28(2) of the Act.
The Commission's functions with respect to misconduct are not limited to investigation. The Commission has a further role in helping to prevent misconduct. Section 17 of the Act confers this 'prevention and education' function upon the Commission, and sets out a non‑exhaustive list of the ways this function may be performed. It provides:
17.Prevention and education function
(1)The Commission has a function (the prevention and education function) of helping to prevent misconduct.
(2)Without limiting the ways the Commission may perform the prevention and education function, the Commission performs that function by -
(a)analysing the intelligence it gathers in support of its investigations into organised crime and misconduct; and
(ab)analysing the results of its investigations and the information it gathers in performing its functions; and
(ac)analysing systems used within public authorities to prevent misconduct; and
(ad)using information it gathers from any source in support of its prevention and education function; and
(b)providing information to, consulting with, and making recommendations to public authorities; and
(c)providing information relevant to its prevention and education function to the general community; and
(ca)ensuring that in performing all of its functions it has regard to its prevention and education function; and
(cb)generally increasing the capacity of public authorities to prevent misconduct by providing advice and training to those authorities, if asked, to other entities; and
(d)reporting on ways to prevent misconduct.
For reasons which will appear, it is significant that the Act expressly provides that the Commission is to have regard to its prevention and education function when performing 'all of its functions' under the Act (s 17(2)(ca) above).
Part 6 of the Act specifies the various powers conferred upon the Commission which may be exercised in the performance of its functions. Those powers include the power to obtain information from a public authority or officer (s 94), the power to compel the production of documents or other things (s 95), and the power to summon witnesses to attend an examination and to give evidence or produce any record or other thing in that person's custody or control, or do both (s 96).
Part 7 empowers the Commission to conduct examinations (s 137) including examinations for the purposes of an investigation under the Act. Examinations are to be conducted in private unless the Commission otherwise orders (s 139 and s 140). The Commission may open examinations to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commission considers that it is in the public interest to do so (s 140(2)). If the Commission decides to open an examination to the public, the Commission may close the examination for a particular purpose (s 140(4)).
Part 9 of the Act concerns confidentiality, disclosure, secrecy and protection of witnesses, and contains a number of 'stringent' confidentiality provisions - see Corruption and Crime Commission v Allen [2012] WASCA 242 [22]. The critical provisions of the Act for the purposes of this appeal are ss 151 and 152.

Section 151 prohibits the disclosure of 'restricted matter' except as authorised or required by the Act.
151.Disclosure of certain information restricted
(1)In this section -
restricted matter means any of the following -
(a)any evidence given before the Commission;
(b)the contents of any statement of information or document, or a description of any thing, produced to the Commission;
(c)the contents of any document, or a description of any thing, seized under this Act;
(d)any information that might enable a person who has been, or is about to be, examined before the Commission to be identified or located;
(e)the fact that any person has been or may be about to be examined before the Commission.
(2)Subject to subsections (3) and (4), a restricted matter must not be disclosed.
(3)Unless the Commission orders otherwise, a restricted matter may be disclosed if that matter has already been disclosed at a part of an examination that was open to the public.
(4)A restricted matter may be disclosed -
(a)in accordance with a direction of the Commission;
(b)to a legal practitioner for the purpose of obtaining legal advice or representation relating to a notice, summons or matter;
(c)to a person for the purpose of obtaining legal aid relating to a notice, summons or matter;
(d)to an officer or agent of a body corporate by the body corporate or another officer or agent of the body corporate for the purpose of ensuring compliance with a notice or summons;
(e)by a legal practitioner for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client;
(f)by a legal practitioner referred to in paragraph (b) for the purpose of giving legal advice, making representations, or obtaining legal aid, relating to the notice, summons or matter;
(g)by a person referred to in paragraph (c) for the purpose of obtaining legal aid relating to the notice, summons or matter; or
(h)if that disclosure is otherwise authorised or required under this Act.
(5)This section does not apply to -
(a)the Commission or a relevant person as defined in section 152(1); or
(b)a relevant person as defined in section 208(1),
in relation to a restricted matter that is official information under section 152 or 208, as the case may be.
(6)This section does not apply to -
(a)an authority or person referred to in section 153 or 209; or
(b)any person or employee under the control of an authority or person referred to in section 153 or 209,
in relation to a restricted matter that is information to which section 153 or 209, as the case may be, applies.
(7)If a restricted matter is disclosed contrary to this section, any person who so discloses the matter, or causes the matter to be so disclosed, commits an offence.
Penalty: Imprisonment for 3 years and a fine of $60 000.
Restricted matter includes any evidence given before the Commission (Act, s 151(1)), and 'disclose' is defined as meaning 'to publish in any way' or to 'divulge or communicate to any person in any way' (Act, s 3). A person, other than the Commission or its officers or lawyers, who discloses restricted matter without authorisation under s 151(3) or (4) of the Act commits an offence (Act, ss 151(7), (2), (5) and (6)).
Relevantly, disclosure of restricted matter is permitted where the restricted matter has been disclosed as part of an examination that the Commission has determined should be open to the public under s 140, unless the Commission 'orders otherwise' (s 151(3)). As will be seen, the power to 'order otherwise' in s 151(3) was invoked by the Commission to order that the CCTV footage the subject of this appeal not be disclosed publicly until further order. Significantly, in the case of 'restricted matter' that is also 'official information' within the meaning of s 152, s 151 does not apply to or deal with disclosure by the Commission or its officers or lawyers (s 151(5)).
Section 152 concerns disclosure of 'official information' by the Commission. The purpose of the provision is to protect from disclosure by its officers or lawyers any information in the possession of the Commission relating to, amongst other things, investigations in which it is involved - Corruption and Crime Commission v Allen [43]. Section 152 provides:
152. Disclosure by the Commission or its officers
(1)In this section -
Commission lawyer means -
(a) a legal practitioner appointed to assist the Commission; and
(b)a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner's duties assisting the Commission;
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
official information, in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person’s functions under this Act;
produce includes permit access to;
relevant person means a person who is or was -
(a)an officer of the Commission; or
(b)a Commission lawyer.
(2)Subject to subsections (3), (4) and (6) a relevant person must not, either directly or indirectly -
(a)make a record of any official information; or
(b)disclose any official information.
Penalty: Imprisonment for 3 years and a fine of $60 000.
(3)Despite subsection (2), a relevant person may make a record of official information -
(a)under or for the purposes of this Act;
(b)otherwise in connection with the performance of the person’s functions under this Act.
(4)Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed -
(a)under or for the purposes of this Act;
(b)for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c)when the Commission has certified that disclosure is necessary in the public interest;
(d)to either House of Parliament or to the Standing Committee;
(e)to any prescribed authority or person; or
(f)otherwise in connection with the performance of the person’s functions under this Act.
(5)A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.
(6)Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.
(7)A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
(8)This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission’s functions under this Act.
The breadth of the definition of 'official information' is such that any information acquired by an officer or lawyer of the Commission, or the Commission itself, in the performance of functions under the Act will fall within the scope of s 152, with the result that s 151 will not apply to the disclosure of that information (s 151(5)). In this case it has never been contended at any point, either before the Commission, the primary judge, or during the appeal, that s 151 provides, of itself, sufficient authority to provide the CCTV recordings to the media.
Section 9(2) of the Act effectively provides that anything that may or must be done by the Commission under the Act can be effectually done by the Commissioner. It follows that the orders, directions and certificates of the Commission to which reference is made in s 151 and s 152 of the Act can be issued by the Commissioner.
Although less relevant to these proceedings, s 153 forms part of the scheme relating to disclosure contained within pt 9 of the Act. It provides:
153. Disclosure by other officials
(1)In this section -
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
produce includes permit access to.
(2)This section applies to information if, in circumstances referred to in section 152(4), it is disclosed to an authority or person for use in connection with the performance of a function of the authority or person under a written law.
(3)The authority or person, or any person or employee under the control of the authority or person -
(a)must not, either directly or indirectly -
(i)make a record of information to which this section applies; or
(ii)disclose any information to which this section applies,
except for the purpose for which it was disclosed to the authority or person; and
(b)cannot be required to produce or disclose the information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
Penalty, for a contravention of paragraph (a): Imprisonment for 3 years and a fine of $60 000.
(4)Subsection (3) does not prevent the disclosure of the fact that an allegation has been received or initiated by the Commission or the details of an allegation.

The public examination conducted by the Commission

The Commission's examination commenced on 10 June 2013. It is clear that the Commissioner had previously determined that the examination would be open to the public, pursuant to s 140(3) of the Act. After taking appearances, the Commissioner adjourned briefly to allow for the installation of equipment which would enable the Commissioner's opening remarks, and the opening address of counsel assisting the Commission, to be televised. When the examination resumed, the Commissioner made brief remarks concerning the role and responsibilities of police officers. He described the investigation to be undertaken by the Commission in these terms:
This investigation concerns two incidents at the Broome police station and particularly will examine issues of supervision and accountability in relation to those incidents, as those things are at the heart of the maintenance of discipline.
The scope and purpose of this series of examinations and investigation is to enable the Commission to make an assessment and form an opinion as to whether misconduct by public officers has or may have occurred during the arrest and detention of D1 and D4.
Counsel assisting the Commission then opened the case which would be presented. She referred to two incidents involving the use of force against persons in police custody occurring in Broome police station three weeks apart - in March and April 2013. Both incidents were said to involve the same police officer, described in the examination before the Commission as D5, and who is the appellant in these proceedings. Counsel advised the Commission that the relevant conduct had been captured on CCTV and went on to explain the reasons why the Commission had concluded that the examination should be conducted in public pursuant to s 140 of the Act. In that context, she stated that the main focus of the examination would not be upon the conduct of the officer who used the force, but rather would be on the actions taken or inaction of other officers who witnessed parts of the events. She also adverted to the investigation into the adequacy of supervision within the police service, and advised that the use of padded cells, the stripping of detainees, the use of restraints and police policies in relation to all of those matters would be the subject of investigation. In that context she asserted:
The benefits of public exposure of the investigation into those issues is obvious: in particular, public hearings are likely to be significantly educative of police officers; also, holding public examinations as part of the investigative process will assist in maintaining public confidence that these types of incidents are being investigated thoroughly and transparently. It may also encourage people to make complaints when they have concerns about how a detainee has been treated.
Counsel then went on to outline the steps that would be taken in order to prevent prejudice or the infringement of privacy. In that context, she referred specifically to the possible prejudice to the appellant, who may be subject to subsequent criminal charges. She proposed an order suppressing the identity of the appellant (which was made) and further proposed that before any particular witness was examined, specific consideration could be given to the question of whether that witness should be examined in public.
In relation to the CCTV recordings, counsel observed that there was potential for the events the subject of the Commission's investigation to stir up strong feelings amongst some members of the public, and in particular amongst the Broome community. She stated that on the whole, those matters did not outweigh the positive benefits of a public hearing, but that one matter that would require further consideration was whether the CCTV recordings should be made public. She proposed that before a decision was made on that subject, the Commission should hear submissions from all those with a relevant interest. In order to enable that to occur, she proposed that 'suppression orders' should be made, including an order that the CCTV recordings which were to be played during the course of her opening address (which, as we have noted, was being televised) were not permitted to be broadcast until further order. Although not specified, it seems clear that the order proposed by counsel was an order to be made pursuant to s 151(3). The Commissioner made the orders sought.
Counsel assisting the Commission then opened on the facts. During that opening she presented and played the CCTV recordings to the Commission. Before doing so, she sought and obtained confirmation that the CCTV recordings were 'to be suppressed until further order', which can be taken to be a shorthand reference to the non‑disclosure order made by the Commissioner pursuant to s 151(3) of the Act. The recordings were played in a number of instalments, and the Commissioner reiterated that 'at least until further order any reproduction of that footage has been suppressed, [and] is prohibited' (ts 10/6/13, 15). Counsel for the intervener informed the court that the cameras present during the public examination did not record the playing of the CCTV recordings.
After counsel's opening was completed, a number of witnesses were called. They were asked about the events depicted in the CCTV recordings. Transcript of that day's proceedings, including the opening observations of the Commissioner, the opening address of counsel assisting the Commissioner, and the evidence of the witnesses was published, and remains published, on the website of the Commission. It seems that no specific order was made, or certificate granted, to enable that publication to occur (although before each witness was sworn, the Commissioner advised the witness that he had determined that the examination was to be conducted in public, and that the evidence to be given by the witness may be published in due course).
The public examination resumed on 11 June 2013. The appellant attended in answer to a summons issued by the Commission requiring him to attend and be examined.
Prior to his examination, counsel for the appellant applied to the Commissioner under s 140(4) of the Act for an order that his examination be closed to the public. Counsel for the appellant submitted that holding his examination in public may be prejudicial to the appellant. In essence, she contended that if he was charged with criminal offences arising from the incident at some later point, and the examination was public and published in the media, his answers at the hearing could be indirectly used against him in relation to those later charges. She characterised this as an impermissible 'derivative use' of the answers, which she submitted would also undermine the appellant's 'right to silence'. Further, if the examination generated media attention, counsel submitted that this could lead to the jury at his trial having regard to the appellant's answers given at the hearing when considering their verdict (ts 11/6/13, 4 - 7, 10).
Counsel assisting the Commission submitted that if the appellant was charged, the matter might be dealt with in the Magistrates Court, or if it was dealt with in the District Court the appellant could apply to be tried by judge alone, potentially minimising any prejudice incurred from the public examination (ts 11/6/13, 7-8). Such prejudice would also be limited, in her submission, by the orders made suppressing the appellant’s identifying details.
In reply, counsel for the appellant submitted that the issue concerned the erosion of the appellant's privacy, and repeated her submissions regarding the potential prejudice to the appellant from the public examination.
The Commissioner ruled that it was appropriate for the examination of the appellant to be in public, on the condition that the appellant’s name and identifying details be suppressed. He had regard to, but ultimately rejected the appellant's submissions that a public examination would prejudice the appellant in any future criminal trial or amount to an impermissible 'derivative use'. He adopted the submissions of counsel assisting the Commission (ts 12). He accepted that the potential prejudice to the appellant was outweighed by the benefits of a public examination, and that prejudice to any future trial of the appellant could be addressed by suppression orders relating to his identifying details and by appropriate directions to the jury, which they should be assumed to have the capacity to follow (ts 11/6/13, 12).
The Commissioner's decision to decline to make an order closing the examination for the purposes of taking the appellant's evidence has not been challenged by the appellant at any stage. His evidence was given during the course of the public examination and subsequently transcribed and published on the website of the Commission. Counsel assisting the Commission examined the appellant at length in relation to the events depicted on the CCTV recordings, and at a number of points during the course of that examination portions of the CCTV recordings were played to the appellant. At various points during his evidence, the appellant denied the interpretation of the images depicted in the CCTV recordings put to him by counsel assisting the Commission. The examination of the appellant occupied all of that day's hearing.
The public examination resumed on 12 June 2013. More witnesses were called. Portions of the CCTV recordings were put to some of those witnesses during the course of their examination. As with the previous day's proceedings, the evidence given by those witnesses was transcribed and published on the website of the Commission, apparently without any specific order to that effect being made, although each witness was warned by the Commissioner that this was likely to occur before being sworn.
The public examination continued on 13 June 2013. Counsel representing a number of media organisations announced his appearance and challenged the validity of the 'suppression orders' made by the Commission restricting publication of the CCTV recordings. Submissions were put on a number of grounds, including an asserted lack of statutory power. In response to those submissions, the Commissioner referred counsel for the media organisations to s 151(3) of the Act. Counsel representing the media organisations then put further submissions in support of the proposition that the CCTV recordings should be released.

In reply, counsel assisting the Commission cited Ex parte WA Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177 in support of the proposition that s 152 of the Act applied to the CCTV recordings, because they came within the definition of 'official information' notwithstanding that those recordings had been played during the course of a public examination. She submitted that it was therefore necessary for a disclosure to fall within one of the provisions of s 152(4) before the CCTV recordings could be disclosed by the Commission to the media. As we have already noted, the proceedings before the Commissioner, the primary judge and this appeal have all been conducted on this basis, which has not been challenged.
Counsel assisting the Commission also responded orally to written submissions that had been presented to the Commission by counsel for the appellant in opposition to the disclosure of the CCTV recordings. Those submissions proceeded upon the assumption that disclosure could only occur if a certificate was issued by the Commission to the effect that disclosure was necessary in the public interest, in accordance with s 152(4)(c) of the Act. In those written submissions, the issue of such a certificate was opposed on a number of grounds including:
(1)that disclosure may prejudice the safety or reputation of the appellant, and would defeat the efficacy of any non-disclosure order in respect of the appellant's identity;
(2)that publication would be unfair to persons depicted in the footage, as they have not been charged with any offences;
(3)that disclosure may affect the integrity of any criminal investigation into the appellant; and
(4)that public disclosure could prejudice the fairness of a trial in relation to any criminal or civil proceedings arising from the incidents, and this would be prejudicial to the administration of justice.
In response, counsel assisting the Commission submitted that:
(1)the CCTV footage constituted 'official information' and therefore s 152 of the Act, and specifically s 152(4), had to be considered when determining whether the footage could be released;
(2)section 151 was not applicable, because s 151(5) provides that s 151 does not apply to the Commission in relation to a restricted matter that is official information; and
(3)pursuant to s 152(4), the footage can be disclosed if disclosure is necessary in the public interest (s 152(4)(c)).
Counsel assisting the Commission spoke to the public interest in the disclosure of the footage. She commenced by addressing the appellant's submissions with respect to the prejudice which might arise from the release of the CCTV recordings. She responded to the submission that the release may prejudice the safety or reputation of the appellant by observing that his identity had been suppressed. In her submission, this, alongside the pixelation of his face in any footage, would be effective to obscure the appellant's identity. In relation to the submission that the release of the footage would be unfair to the persons depicted in the footage, and may impact upon any investigation, counsel noted that the footage was sourced from police cameras and that the footage added little to the publicly reported evidence other than demonstrating visually what happened. As regards the allegation that disclosure may prejudice the fairness of any trial of the appellant, counsel observed that the footage would be admissible evidence at any trial (ts 13/6/13, 27).
Counsel assisting then addressed the reasons why in her submission it was in the public interest for the footage to be released. She relied upon the reasons she had enunciated in the course of her opening address explaining why the examination was being conducted in public as being relevant to the determination of whether release of the footage was necessary in the public interest; namely that the release of the footage would assist in maintaining public confidence that such incidents are being thoroughly and transparently investigated, that the release of the footage would be educative of police officers, and that it may encourage further complaints.
Counsel assisting noted that one of the core functions of the Commission is to educate. She submitted that this function extends to educating police officers, encouraging them to consider and take seriously their duty of care, and their duties to report and intervene. She pointed out that the appellant had said that he did not use excessive force, and submitted that in order to enhance the education function people should be allowed to assess whether that was the case by reference to the footage itself. For these reasons, she submitted that the release of the footage was necessary in the public interest.
Counsel for the appellant made oral submissions to the effect that:
(1)the Commissioner should focus on s 152 of the Act when determining whether to release the footage (ts 13/6/13, 31), and the release of such footage must be necessary in the public interest;
(2)the principles of open justice are of little or no relevance to the proceedings of the Commission, which are governed by specific statutory provisions vesting decisions with respect to public access with the Commission (citing Ex parte West Australian Newspapers);
(3)in considering the Commission's discretion under s 152, in Ex parte West Australian Newspapers the majority in the Court of Appeal held that it was relevant that there was no pending investigation or trial that could be compromised by the publication of the material;
(4)when considering whether to make a non-publication order, an important consideration is the need to preserve the integrity and efficacy of any future investigation, and that it was unclear what effect the release of the footage would have on the investigation of criminal charges;
(5)the Commission's primary function is to deal with misconduct. Whilst the Commission may have a role in assisting in the eradication of misconduct, the performance of this function is enhanced by the Commission ensuring that prosecutions will ultimately be conducted fairly. Publication of the CCTV recordings prior to them being tested in court might compromise the ability to investigate or charge a person with criminal offences;
(6)it was likely that the appellant would face criminal charges, and may be tried by jury, and therefore showing the CCTV recordings to the public may impinge upon the fairness of his trial because members of the public may have pre-judged the appellant based on such recordings;
(7)such prejudice could not be removed by directions to the jury, and even if directions are given, this overlooks the underlying principle which is that information should not be disclosed if the Commission forms the view that it may prejudice the fair trial of an individual;
(8)no weight should be given to the argument of counsel assisting the Commission that the public interest was served by the release of the CCTV recordings in furtherance of the Commission’s education function. The Commissioner of Police should instruct his officers what is acceptable behaviour. Even if the disclosure of the footage is educative to police, and police form part of the public at large, it does not follow that disclosure of these images of the appellant before any trial is 'necessary' in the public interest;
(9)the public have had described to them by reporters the contents of the CCTV recordings, and the appellant's evidence of the events depicted on the CCTV recordings. The public’s confidence in the transparency of the Commission and of its investigative procedures has already been served by the fact the examinations had been held in public; and
(10)regard must be had to the risk to the appellant's reputation.

The Commissioner's ruling

The Commissioner was of the view that the 'suppression' or 'non‑disclosure' order made in relation to the CCTV recordings should be lifted (ts 13/6/13, 44) and certified that disclosure of those recordings to the media, with the faces of persons whose identities had been suppressed pixelated, was necessary in the public interest under s 152(4)(c). He said that 'largely for the reasons put foward by senior counsel for the Commission' (ts 13/6/13, 44), the CCTV recordings should be released to the public including the media. He went on to identify the reasons, additional to those identified by counsel, why in his view release of the recordings was necessary in the public interest, stating:
I think the order in the circumstances in which this matter has proceeded really flows from the order that was made that there be a public examination. What has occurred is that counsel, senior counsel, has opened on a particular basis in relation to that material. Some evidence has been given by some witnesses in relation to that material.
Ms Vernon's client, D5, has given evidence which has strongly challenged a number of factual aspects. This is, to take a term from another context, really a case of best evidence. The position now is that different parties have talked about the same observable piece of information and have given extremely different descriptions of that and in those circumstances, the hearing being a public hearing, in my view it would almost be a perversion to leave the matter as it is.
I'm quite satisfied that it is necessary in the public interest that this material, which is objective material, be allowed to be in the public domain, given the dichotomy in relation to the evidence that has been arrived at. I think that is relevant to the function of [the] commission of which senior counsel has spoken. That is not expressly in relation to D5, but rather in relation to the commission's obligation to exercise oversight of [sic] a particular branch of the public service, that being the police force, and to inform in the way that senior counsel has described.
I arrive at that conclusion pursuant to section 152 subsection (4)(c) and I certify that disclosure is necessary in the public interest for those reasons. In those circumstances it is not necessary for me to consider whether or not section 152(4)(a) would permit disclosure. Clearly, the test under that section would be substantially lower than that in relation to subsection (4)(c) and, clearly, if that was available then, having regard to what I have said, then disclosure would be appropriate under that subsection, but it is not necessary for me to arrive at that point (ts 13/6/13, 44 - 45).
Therefore, whilst the Commissioner 'largely' adopted the submissions of counsel assisting, he did not adopt the submission that the CCTV recordings added little to the publicly reported evidence regarding the incident. Rather, he regarded the CCTV recordings as providing a necessary context to the evidence adduced by those summoned to attend the public examinations, and that the examinations could not be properly or accurately understood by the public without reference to the footage.

The primary judge's decision

The appellant commenced proceedings seeking writs of certiorari and prohibition to quash the Commissioner's decision to disclose the CCTV recordings and to prevent the Commission from releasing the CCTV recordings to the media. The appellant alleged that the Commissioner's decision to disclose was a 'wrongful exercise of the discretion'. The appellant also asserted that the Commissioner:
(1)failed to take into account relevant considerations, namely:
(a)the need to preserve the integrity and efficacy of the investigation and subsequent proceedings;
(b)the prejudice to the appellant's safety, reputation and right to a fair trial; and
(c)the effect of publication of the CCTV recordings on a website; and
(2)took into account irrelevant considerations; namely the need to disclose the CCTV recordings to police officers as part of the education function of the second respondent.
The primary judge was not persuaded that the Commissioner made any error in construing s 152(4)(c), or that he exercised powers under that section for a purpose other than that for which the power was conferred. He interpreted the appellant’s argument that the Commissioner exercised his discretion 'wrongly' as a submission that the Commission misconstrued s 152(4)(c) or exercised its power for a purpose other than those for which it was conferred. His Honour accepted that s 152(4)(c) required more than merely establishing that the disclosure was in the public interest; rather, it needed to be 'necessary' in the public interest. However, he held that the Commissioner had in fact found that disclosure was necessary in the public interest, and observed:
Necessary is capable of a wide range of meanings. The meaning will depend on the statutory context. One meaning is needing to be done, or essential. As the High Court has observed, there is, in Australia, 'a long history of judicial and legislative use of the term "necessary" not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted': Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39]. See, for example, the cases outlined by O'Keefe J in Elcham v Commissioner of Police [2001] NSWSC 614; (2001) 53 NSWLR 7 [48] - [56]. In some contexts, necessary may not mean essential but merely conducive: Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 [53].
In my view, no error of construction of s 152(4)(c) is revealed in the reasons of the Commissioner. The question for the CCC was whether disclosure was necessary in the public interest. That is the question which the Commissioner asked and answered. The Act does not spell out explicitly the considerations relevant to the public interest in s 152(4)(c), and as to the considerations bearing on whether disclosure is necessary in the public interest. That silence is an indication of the breadth of the discretionary decision entrusted to the decision-maker. Whether he took into account all mandatory relevant considerations, or an irrelevant consideration, is dealt with in grounds 2 and 3 [72] - [73].
The primary judge found that there was no failure by the Commissioner to take into account the considerations alleged by the appellant to be relevant when making the decision to release the CCTV recordings, and concluded that he did not therefore have to determine whether such considerations were mandatory [84] - [85].
In relation to the allegation that the Commissioner took account of irrelevant considerations, the primary judge found that the provisions of s 17(2)(ca) of the Act specifically authorised the Commission to take into account its education function in exercising its power under s 152(4)(c) of the Act.
For those reasons, the appellant's case was dismissed.

The grounds of appeal

Following an amendment made at the commencement of the appeal hearing, the grounds of appeal are as follows:
1.The primary Judge made an error of law in that, having found that the test of whether disclosure is necessary in the public interest pursuant to section 152(4)(c) of the Corruption and Crime Commission Act 2002 (WA) (Act) requires something more than the conclusion that disclosure was in the public interest [71], the primary Judge failed to adopt the correct test by failing to make any finding:
1.1as to the meaning of 'necessary' in section 152(4)(c), when he ought to have found that the ordinary and natural meaning of 'necessary' is 'essential';
1.2as to the considerations which the first respondent was bound to take into account in applying the test, when he ought to have found that the first respondent was bound to take into account the following relevant considerations:
1.2.1the need to preserve the integrity of and efficacy of the investigation and subsequent proceedings;
1.2.2the prejudice to the applicant's safety, reputation and right to a fair trial;
1.2.3the effect of publication of the CCTV footage being published [sic] on a website,
1.3that the first respondent was required to balance or weigh up the mandatory relevant considerations and any countervailing factors before determining whether disclosure was necessary in the public interest, when he ought to have so found.
2.The primary Judge made an error of law and fact in finding that the first respondent did not err in the construction of section 152(4)(c) of the Act [73], when the first respondent made no finding as to the proper construction of section 152(4)(c), in that the first respondent failed to:
2.1determine the meaning of 'necessary' in section 152(4)(c);
2.2identify the mandatory relevant considerations to be taken into account in deciding that disclosure is necessary in the public interest;
2.3take into account the following mandatory relevant considerations:
2.3.1the need to preserve the integrity of and efficacy of the investigation and subsequent proceedings;
2.3.2the prejudice to the applicant's safety, reputation and right to a fair trial;
2.3.3the effect of publication of the CCTV footage being published on a website;
2.4conduct the exercise of balancing or weighing up those considerations in 2.3 above;
2.5give any reasons for concluding why disclosure was 'necessary in the public interest',
and thereby the first respondent misconstrued section 152(4)(c) of the Act.
3.The learned primary Judge made an error of law and fact in finding that the first respondent did not exercise the power under section 152(4)(c) of the Act for a wrongful purpose or for a purpose other than the purpose for which the power is conferred [73] in that, the first respondent exercised the power in section 152(4)(c) of the Act:
3.1for the purposes of:
3.1.1supporting the first respondent’s decision to order a public examination;
3.1.2exercising oversight of the police service;
3.2without regard to why disclosure was necessary in the public interest,
and thereby exercised the power for a wrongful purpose or for a purpose other than the purpose for which the power is conferred.
4.The learned primary Judge made an error of law in failing to find that the following considerations, namely:
4.1the need to preserve the integrity of and efficacy of the investigation and subsequent proceedings;
4.2the prejudice to the applicant’s safety, reputation and right to a fair trial;
4.3the effect of publication of the CCTV footage being published on a website,
were relevant considerations which the first respondent was bound to take into account in applying the test in section 152(4)(c) of the Act [84 - 85], when he ought to have found on a proper construction of the scope, object and purpose of the Act that such considerations were mandatory.
5.The learned primary Judge made an error of law in finding that the first respondent had not taken irrelevant considerations into account because the express provisions of section 17(2)(ca) of the Act specifically authorised (if not required) the second respondent to take into account its educative function in exercising its power under section 152(4)(c) of the Act [96], when he ought to have found that the educative function was irrelevant to the determination of whether disclosure was necessary in the public interest.
Later in the hearing of the appeal, the appellant sought leave of the court to amend his grounds of appeal to include a ground alleging unreasonableness. The proposed ground is in the following terms:
6.The learned primary Judge erred in holding that the decision of the first respondent certifying that disclosure of the CCTV footage was necessary in the public interest was not affected by Wednesbury unreasonableness [64] when the first respondent's decision:
6.1.was so unreasonable that no reasonable authority could ever have come to it; or
6.2.alternatively was unreasonable in that it lacked an evident and intelligible justification by reason of the first respondent:
6.2.1.giving more weight than was reasonably necessary to the significance of the CCC's prevention and education function pursuant to section 17 of the Act;
6.2.2.giving more weight than was reasonably necessary to the fact of the decisions made on 10 June 2013 to conduct the hearings generally in public, and on 11 June 2013 to conduct the appellant's examination specifically in public pursuant to section 140 of the Act;
6.2.3.giving insufficient weight to the potential prejudice to the appellant's fundamental right to a fair trial consequent upon the decision to conduct his examination in public.

The court reserved its decision on whether the appellant should be granted leave to rely on this proposed ground and directed the exchange of written submissions on the question of whether leave to amend should be granted and dealing with the substance of the ground, on the basis that those issues would be determined without further oral argument.
The appellant's grounds of appeal may therefore be divided into five categories; namely:
1.those alleging an error of law arising from the Commissioner's interpretation of the word 'necessary' in s 152(4)(c) of the Act (grounds 1.1, 2.1, 2.5 and 3.2);
2.those alleging that there was a failure to take into account mandatory, relevant considerations (grounds 1.2, 1.3, 2.2, 2.3, 2.4 and 4);
3.those alleging that the Commissioner took into account irrelevant considerations (ground 5);
4.those alleging that the Commissioner's decision was unreasonable (ground 6); and
5.those alleging that the Commissioner exercised the power of certification for an unauthorised purpose (ground 3.1).
In essence, all grounds allege that the Commissioner exceeded the jurisdiction conferred upon him by the Act.

Jurisdictional error generally

Where a decision-maker makes a decision outside the limits of the functions and powers conferred upon him or her, or does something which he or she lacks power to do, there will be a jurisdictional error. In Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), the High Court provided the following inclusive definition of jurisdictional error:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it (179).
In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of jurisdictional errors outlined in Craig, and continued:
Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it [82].
See also - Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 [67].

Did the Commissioner make a jurisdictional error of law?

In grounds 1.1, 2.1, 2.5 and 3.2, the appellant asserts that the primary judge erred in his construction of s 152(4)(c) of the Act. The appellant submits that 152(4)(c) involves a two-stage test which must be satisfied prior to the Commissioner certifying that official information should be disclosed; first, that the disclosure is in the public interest, and second that the disclosure is 'necessary' in the public interest. He asserts that the primary judge erred in his construction of 'necessary' in s 152(4)(c), contending that it is not enough that the disclosure merely serves the public interest, but rather that it must be 'essential' in the public interest. He further alleges that both the Commissioner and the primary judge erred in failing to actually determine the meaning of 'necessary' in s 152(4)(c) at all.
Whilst the character of the error said to have been made by the Commissioner is not pellucidly clear, the substance of the allegation appears to be that the Commissioner failed to interpret s 152(4)(c) as requiring the disclosure of official information to be 'necessary' in the sense of 'essential' in the public interest, thereby misdirecting himself and posing for resolution the wrong question, and committing an error of the kind referred to in Craig v State of South Australia, 179. The appellant submits that the primary judge erred in failing to recognise this error.

The appellant's contention that 'necessary' in s 152(4)(c) means 'essential' must be rejected.

The appellant submits that 'necessary' in s 152(4)(c) means 'essential' using that word in accordance with its definition in the Macquarie Dictionary, namely, 'absolutely necessary' or 'indispensible'. The appellant submits that, on a proper construction of s 152(4)(c), the Commission cannot certify that the release of information is in the public interest unless it is satisfied that the release of the information is 'absolutely necessary' or 'indispensible' to the maintenance or advancement of the public interest.
In support of this construction of s 152(4)(c), the appellant relies upon the oft-cited principle that in interpreting a statutory provision, a court should generally strive to give effect to every word of the provision - see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ); Commonwealth v Baume (1905) 2 CLR 405, 414 ‑ 415 (Griffith CJ), 419 (O’Connor J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 12 ‑ 13 (Mason CJ).
The appellant also relies on a number of authorities to the effect that necessary means more than convenient, reasonable or sensible - Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 [31], referred to in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 [19] (ACCC v Air New Zealand).
Hogan involved the interpretation of s 50 of the Federal Court Act 1976 (Cth), which conferred a power on the Court to make non-publication orders where it 'appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth'.
The High Court unanimously held that '[a]s it appears in s 50', necessary is a strong word, and that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth suggests that Parliament was not dealing with trivialities [30] (referring to Australian Broadcasting Commission v Parish (1980) 43 FLR 129; (1980) 29 ALR 228, 234).
However, the meaning of any statutory provision must be determined 'by reference to the language of the instrument viewed as a whole' - Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320, cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority [69].
As is apparent from the reasoning of the High Court in Hogan, and as was noted by the primary judge, the word 'necessary' is capable of a range of meanings. In other contexts the word has been construed as meaning 'reasonably required' or 'legally ancillary' to the achievement of the purpose for which the act is said to be 'necessary' - see for instance Levi v Australian Securities Investments Commission (No 2) [2013] NSWSC 932 [29] ‑ [34]; State Drug Crime Commission of New South Wales v Chapman (1987) 12 NSWLR 447, 452; National Crime Authority v Gould (1989) 23 FCR 191, 195.
Of course, the meaning to be given to the word 'necessary' will depend upon the particular statutory context in which the word is used, and the purpose of the legislature evident in the language of the statute as a whole - see Elcham v Commissioner of Police [2001] NSWSC 614 [58], where O'Keefe J conveniently summarises a number of cases demonstrating the meaning given to the word 'necessary' in different statutory contexts [49] ‑ [55].
Helpful guidance as to the proper meaning to be given to the word 'necessary' viewed in the context of s 152(4)(c) of the Act is provided by the decision of Chief Baron Pollock in Attorney‑General v Walker (1849) 3 Exch 242; 154 ER 833, which was referred to by Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [51].
In Attorney‑General v Walker, the statute under consideration provided, in effect, that it was lawful for any person to make bricks for the sole purpose of draining wetlands without any duty being charged or chargeable in respect of such bricks. However, this was subject to the provision that it would not be lawful for any person to make use of any such bricks for 'any other purpose' than draining wetlands 'and in constructing the necessary drains, gouts, culverts, arches and walls of the brickwork, [must be] proper and necessarily required for effecting and maintaining the drainage of such lands' (emphasis added).
The defendant had undertaken the construction of various drains in order to drain an area of wetland, and had used bricks for that purpose on which he had paid no duty. As part of the overall works, the defendant also erected certain bridges, parapets and the like in order to protect the public from the drains which had been created. Bricks were used for these bridges, parapets and the like upon which the defendant had also not paid any duty. The question was whether the defendant had committed an offence by using bricks upon which it had paid no duty for these latter additional works. As the headnote indicates, Parke B, Alderson B and Rolfe B held that the words 'necessarily required' in the statute meant 'physically necessary' or 'reasonably used with reference to physical necessity', and that the exemption from duty was confined to such bricks as were used in the drains, gouts et cetera themselves. Pollock CB dissented and said, amongst other things, that the word 'necessary' in this context does not mean 'absolutely necessary'. His Lordship said:
The rule I am prepared to lay down is this, that 'drain‑bricks' may be used in constructing rains, and all gouts, culverts, arches, and walls, which are physically or legally necessary for the existence and maintenance of the drains, and that in this (as in every other case), the word 'necessary' does not mean absolutely necessary, but reasonably necessary with reference to the circumstances of the case. My learned brothers appear to think, - indeed, they have so given their judgments, - that the act permits the use of duty‑free bricks only in the case of physical necessity. In my judgment, the framers of this law did not intend to provide against the laws of nature, in utter oblivion and forgetfulness of the laws of the land … So, if a large open drain be made in a country where its existence as an open drain would be dangerous to the lives of her Majesty's subjects, who might be passing of right on a public or private way near to it, (or even might be trespassing where no way existed), here, I think, there is a legal necessity to protect the public from danger, and a parapet wall, to protect at once the public and the drain, is as essential a part of such drain as the act contemplates, as is the portion of it in which the water flows; and such a wall is proper and necessary, and may be constructed of duty‑free bricks, without incurring a penalty (838 ‑ 839).
Pollock CB concluded:
I think, if the walls and arches complained of were proper and necessarily required, whether by physical necessity or by law of the land - if they were immediately connected with and arising out of the making of the drain, so that physically or legally, the one could not be made or exist without the other, that the defendant is entitled to our judgment (842). (emphasis added)
It is apparent, particularly from the last mentioned passage, that his Lordship considered that what was necessary involved a consideration of whether the drainage works could reasonably be executed or could exist without the additional works. In other words, in determining whether the additional works were necessary, the question of whether there was, in the circumstances, any, or any reasonable, alternative to doing such works, was of significance.
His Lordship's observations, with reference to what was reasonably required, both physically and legally, were referred to by Allen J in State Drug Crime Commission of New South Wales v Chapman, 452. Allen J said that the word 'necessary' in the legislative context in that case was to be subjected to the 'touchstone of reasonableness', and that the concept is one as to what reasonably is necessary in a common sense way. It was those observations which were referred to with approval by the majority in Pelechowski v Registrar, Court of Appeal (New South Wales) [51]. In that case, the word 'necessary' did not appear in a statute which was under consideration. Rather, the meaning of the word 'necessary' arose in the context of a consideration of a discussion by Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, as to the implied powers of an inferior court where Dawson J had said that:
[E]very court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (16). (emphasis added)
In that context, the majority in Pelechowski observed:
The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness' [51].
Their Honours' observation that the word 'necessary' identifies that which is 'reasonably required' may aptly be applied to the construction of the word 'necessary' in the context of s 152(4)(c) of the Act. That which is reasonably required is to be contrasted with that which is absolutely necessary or indispensable. Acceptance of the proposition that the Commission must be satisfied that disclosure is 'required' before exercising the power conferred by s 152(4)(c) 'directs the decision‑maker to identify a high‑threshold public interest before the power can be exercised' in Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [14] (French CJ, Gummow and Bell JJ). To paraphrase the dicta in Osland, it is not enough that disclosure could be justified in the public interest. Rather, it must be 'required', in the sense that the public interest would not be maintained or advanced unless the information is disclosed.
Nevertheless, to borrow again from the language used by their Honours in Osland, the terminology used in s 152(4)(c) of the Act 'does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power' [14]. The application of that evaluative standard will be 'predicated on fact - value complexes, not on mere facts' (Osland [14]) and 'subjected to the touchstone of reasonableness' (see Pelechowski [51], citing State Drug Crime Commission of NSW v Chapman, 452).
Consistently with this construction of the word 'necessary', it may readily be accepted that it is 'a strong word' - see Hogan [30]. It can also be accepted that disclosure cannot be permitted pursuant to s 152(4)(c) merely because it is 'reasonable' or 'convenient' or 'sensible' - Hogan [31]. However, this construction of the word 'necessary' falls well short of the appellant's proposition that it means 'essential' in the sense of absolutely necessary or indispensable to the maintenance or advancement of the public interest. It is significant that the appellant has been unable to identify any prior decision in which the word 'necessary' has been construed as bearing the meaning 'essential' in any statutory context analogous to the present, or indeed at all.
There are a number of considerations which support this construction of the word 'necessary' in the context of s 152(4)(c). Foremost is the nature of the purpose to be achieved by disclosure - namely, the furtherance of the public interest. The determination of what will advance the public interest is generally a discretionary judgment often confined only by the subject matter, scope and purpose of the Act conferring the power to make the assessment - see O'Sullivan v Farrer (1989) 168 CLR 210, 216; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J); R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, 49; FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 368 (Mason J); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618 [24] (French CJ); [67] (Hayne, Kiefel and Bell JJ) (Li); Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [19] (Pullin JA).
Questions with respect to the ascertainment of the public interest will rarely have one dimension - McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [55] (Hayne J); Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [137] (Hayne J); Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [80] (Buss JA). Very often the ascertainment of the public interest will require the consideration of a number of competing factors or considerations, or differing features or facets of the public interest - see Osland v Secretary to the Department of Justice [137].
Further, the ascertainment of what is 'necessary in the public interest' for the purposes of the grant of a certificate in accordance with s 152(4)(c) of the Act will be undertaken in a context in which the range of 'official information' received by the Commission may be extremely broad (see Corruption and Crime Commission v Allen), and in a context in which the functions to be performed by the Commission in the furtherance of the public interest are many and varied. In such a context it is difficult to envisage many, if any, circumstances in which disclosure could be said to be 'essential' to the advancement of the public interest in the sense of absolutely essential or indispensable to its maintenance or advancement. The multi‑faceted nature of the public interest, and the likelihood of a discretionary judgment balancing competing considerations being required in the exercise of the power conferred by s 152(4)(c) in this statutory context are, in our view, incompatible with the proposition that a certificate can only be issued if the Commission concludes that disclosure is 'essential' to advance the public interest. Rather, these considerations reinforce the view that s 152(4)(c) imposes 'an evaluative standard requiring restraint in the exercise of the power', and require a value judgment to be made 'subjected to the touchstone of reasonableness'.
Given the protean concept of the public interest, and the context in which the Commission will be required to apply the evaluative standard imposed by s 152(4)(c), it may well be that reasonable minds differ on the question of whether disclosure is 'necessary' in the particular circumstances at hand. However, that evaluative judgment is entrusted to the Commission, not the court.
As we have noted, the nature of the error said to have been committed by the Commissioner in relation to the proper construction of s 152(4)(c) is not pellucidly clear from the grounds of appeal or the argument advanced in support of those grounds. At points the argument seemed to be advanced on the basis that the error lay in the Commissioner failing to determine what 'necessary' meant, at other points the argument appeared to contend that the Commissioner had not in fact found that disclosure 'was necessary', and at other points the argument appeared to contend that the Commissioner erred by failing to construe 'necessary' as meaning 'essential'. To the extent that the argument advances the latter contention, it must be rejected for the reasons we have already given.

If that is correct, the central decision in this case would be the decision to conduct the examination of the appellant in public. It was arguable that the appellant's examination should have been conducted in private having regard to (1) the abrogation and curtailment of the appellant's right to silence; (2) the principle of legality; (3) the inadmissibility of the evidence at any criminal trial; (4) the obligation to include a secrecy notation on a notice or summons when the Commission is satisfied that failure to do so could reasonably be expected to prejudice the fair trial of a person who may be charged with an offence; (5) the default position that examinations under the Act be conducted in private; and (6) the primary purpose of a misconduct investigation. However, that decision is not challenged and I say nothing more on the subject. I turn now to the grounds of appeal.

Necessary in the public interest

The term 'official information' in s 152 is very widely defined. The width of the definition is consistent with the broad terms of the oath of secrecy that Commission officers are required to take. Section 152(4) of the Act is the source of the authority of relevant persons to disclose official information. Subject to a reservation discussed below, it is also a discretionary power to disclose.
There are eight references to 'the public interest' in the Act in addition to s 152(4)(c). Three examples will suffice. First, a mandatory consideration in the Commission deciding whether further action is warranted in relation to an allegation is whether it is justified or 'is in the public interest' (s 18(3)(d)). Second, the Commission may include a s 99 notation if the failure to do so 'might otherwise be contrary to the public interest' (s 99(5)). Third, the Commission may open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, 'it considers that it is in the public interest to do so' (s 140(2)). See also s 36, s 46(1)(c) and s 142(2). The expression 'necessary in the public interest' is also used in s 152(5) and s 208(5)(b).
The language in s 152(4)(c) (and s 152(5) and s 208(5)(b)) is much stronger than in the other provisions, not only because of the word 'necessary'. The requirement that the Commission certify that disclosure is necessary in the public interest requires the Commission to expressly turn its attention to the question of disclosure and be satisfied on reasonable grounds that it is necessary in the public interest before certifying to that effect. The Commission's satisfaction on reasonable grounds is a condition of the existence of the power. Further, the certification is to be made at the highest level. It is clearly not just an 'on balance' assessment after weighing all relevant public interests as in s 140(2).
Subject to s 152(5), a disclosure under s 152(4)(c) is intended to cover matters outside the scope of pars (a) and (f) of s 152(4). That is, it would not be a disclosure under or for the purposes of the Act or otherwise in connection with the performance of the person's functions under the Act. The serious nature of the certification process is underscored by s 152(5), which provides that a relevant person is not authorised to disclose operational information to either House of Parliament, the Standing Committee or any prescribed authority or person unless the Commission has certified under subs (4)(c) that disclosure is necessary in the public interest.
The meaning of the word 'necessary' is to be gathered from the statutory context and purpose. Reference to the use of the word in other statutory and common law contexts is of limited assistance. Authority can be found to support a variety of different meanings. Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 is an excellent example. The issue in that case was whether a court had implied jurisdiction or power to make an asset preservation order. It was accepted that a grant of power to a court 'carries with it everything necessary for its exercise'. McHugh J said in that setting, 'necessary' does not have the meaning of 'essential' but means 'reasonably required'. That meaning is consistent with the broad approach to construing a grant of statutory jurisdiction or power to a court: Burrell v The Queen (2008) 238 CLR 218 [102].
On the other hand, that is clearly not the meaning of the word 'necessary' in the statement of the principle of legality, which requires that legislative intent be manifested by clear words or necessary implication: Lee [29]; Wentworth v New South Wales Bar Association (1992) 176 CLR 239, 252.
Hogan v ACC concerned the construction of a provision empowering the Federal Court to make a suppression order as appeared to the court 'to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth'. The court described 'necessary' as a strong word and identified what was insufficient to satisfy the requirement but did not go further and positively identify what it required. The court said:
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics [31].
More assistance is provided in Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 [14]. In Osland the relevant tribunal had power under freedom of information legislation to decide that access to an exempt document (one protected by legal professional privilege) should be granted where the Tribunal was of the opinion that 'the public interest require[d] that access to the document should be granted under [the] Act'. French CJ, Gummow and Bell JJ said:
[I]t must be accepted that the word 'requires' which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, 'predicated on fact-value complexes, not on mere facts', to be applied by the decision-maker [14].
Having regard to the nature and scope of the Commission's compulsory investigative powers, the proper statutory emphasis on maintaining the secrecy of the fruits of such investigations, and the other provisions of the Act relating to the advancement of the public interest, I see no justification for reading down the requirement that the disclosure be 'necessary' to what is 'reasonably necessary'. I am fortified in that conclusion by the fact that the condition enlivening the power in s 152(4)(c) is subjective, unlike the other conditions enlivening the power in s 152(4) to disclose. Thus 'necessary' has its natural and ordinary meaning of required in the public interest. It follows that the threshold for disclosure under s 152(4)(c) is significantly higher than that required to enliven the power to conduct an examination in public.
The next question is whether the Commissioner erred in his statement or application of the requirement in s 152(4)(c). As the primary judge correctly notes, there is nothing in the Commissioner's reasons to support the contention that he applied the wrong test. The question the Commissioner asked and answered was whether disclosure of the CCTV recordings was necessary in the public interest. There being no express construction error identifiable from the Commissioner's reasons, the question that the appellant belatedly seeks leave to raise is whether, having regard to the facts and circumstances, it was open to the Commissioner to be satisfied on reasonable grounds that disclosure was necessary in the public interest. I will return to that in due course.

Relevant considerations

I agree with the Chief Justice for the reasons he gives that the appellant has not established that the Commissioner failed to take into account any of the considerations identified in grounds of appeal 1.2, 2.3, 2.4 and 4. The grounds are based on a misapprehension that the identification and assessment of those considerations must be evident from the express terms of the Commissioner's reasons for decision.

Irrelevant consideration

The appellant contends that the Commission's educative function is an irrelevant consideration in the determination of whether disclosure was necessary in the public interest.
As already indicated, the condition enlivening the power in s 152(4)(c) is that the Commission be satisfied on reasonable grounds and certify that disclosure is necessary in the public interest.
This claim must fail. The educative function is shorthand for the prevention and education function in s 17. Section 17(2) lists the ways the Commission may perform the prevention and education function, including by:
(c)providing information relevant to its prevention and education function to the general community; and
(ca)ensuring that in performing all of its functions it has regard to its prevention and education function.
Although par (ca) is very wide, it is constrained by the express purpose of the function, which is to 'prevent misconduct' (s 17(1)). The appeal was conducted on the assumption that the examinations conducted by the Commission were a valid exercise of the Commission's functions and powers to investigate misconduct.
Further, s 140(2) of the Act expressly requires the Commission to weigh the benefits of public exposure and public awareness in determining whether to open an examination to the public. It can be inferred that those benefits are relevant to, inter alia, the furtherance of the prevention and education function. As discussed below, the decision to conduct a public examination in this case bears upon, and is relevant to, an assessment of whether disclosure is necessary in the public interest. It follows that the prevention and education function cannot be an irrelevant consideration in the exercise of the power under s 152(4)(c) of the Act.

Improper purpose

The appellant contends that the Commissioner exercised the power in s 152(4)(c) for the improper purpose of (1) supporting the Commissioner's decision to order a public examination and (2) exercising oversight of the police service.
It is difficult to follow the appellant's submissions on this topic. It is contended that the potential for prejudice and privacy infringements are mandatory relevant considerations in the exercise of the power under s 152(4)(c); that the decision to conduct the appellant's examination in public was the reason the Commissioner exercised the power under s 152(4)(c); the purpose of s 152(4)(c) is to safeguard a suspect's right to silence 'if the primary premise of closed hearings has been displaced', relying on X7.
The thrust of the argument, as I understand it, is that the decision under s 140(2) to examine the appellant in public cannot determine or inform the Commission's exercise of its power under s 152(4)(c) because the latter must satisfy a different and stronger test. That is, the determination of whether it is necessary to disclose in the public interest requires a fresh assessment of all relevant matters (including the public interest in avoiding the potential for prejudice and privacy infringements) without regard to the fact that the examinations were conducted in public.
An unexpressed assumption on which the appellant's submission depends is that s 152(4)(c) is the source of the media's authority to publish the CCTV footage to the world at large. That is a misunderstanding of the scheme of the Act for the reasons outlined above. The publication of the CCTV recordings to the world at large is authorised as a result of the unchallenged decision to hold the examinations in public. The decision under s 152(4)(c) to provide a copy of the CCTV recordings to the media has the practical effect of facilitating the broader publication permitted under s 151 of the Act.
That is, in relation to the exercise of the power under s 152(4)(c), the conduct of the examinations in public is a necessary, but not itself sufficient, condition for the publication of restricted matter to the world at large.
In determining what is necessary in the public interest under s 152(4)(c), regard can (and should) be had to the nature and extent of prior lawful disclosures under the Act. It is one of a number of relevant considerations in the evaluative judgment which requires a reconsideration of all relevant public interests. In this case the Commissioner went beyond the mere fact that the examinations were conducted in public in assessing what was necessary in the public interest. This aspect of the claim of improper purpose must fail.
In order to conclude that 'oversight of the police service' is an improper purpose it would be necessary to find that the examinations, or aspects thereof, went beyond the purpose and scope of the investigation power. There has been no such challenge to the examinations. The parties have conducted the proceedings in this court and below on the assumption that the examinations were within power.
Finally, the CCTV recordings do not fall within the appellant's common law right to silence. They are admissible in evidence in any related criminal proceeding against the appellant. The common law right to silence considerations arose at the examination stage. This ground of appeal must fail.

Unreasonableness

The appellant seeks leave to add a new ground of appeal (ground 6) to raise a matter that was not relied on below. The appellant wants to contend that the Commissioner's decision that disclosure of the CCTV recordings was necessary in the public interest:
(1)was so unreasonable that no reasonable authority could ever have come to it; or
(2)alternatively was unreasonable in that it lacked an evident and intelligible justification by reason of the [Commissioner]:
(a)giving more weight than was reasonably necessary to the significance of the [Commission's] prevention and education function pursuant to section 17 of the Act;
(b)giving more weight than was reasonably necessary to the fact of the decisions made on 10 June 2013 to conduct the hearings generally in public, and on 11 June 2013 to conduct the appellant's examination specifically in public pursuant to section 140 of the Act;
(c)giving insufficient weight to the potential prejudice to the appellant's fundamental right to a fair trial consequent upon the decision to conduct his examination in public.
The intervener submits that there is evidence that would be relevant to an assessment of the reasonableness of the decision that was not adduced below, being the content of the CCTV recordings. Evidence before the primary judge but not in the appeal books included an affidavit of Jane Elizabeth Laurence deposing to media reports which preceded the decision under challenge and the transcripts of examination of the appellant and others in relation to the CCTV recordings.
The Commissioner found that the witnesses gave evidence by reference to the CCTV recordings, that the appellant's evidence was materially inconsistent with the evidence of others present at various times during the incidents and that the CCTV recordings were necessary to the resolution of the inconsistencies. Those facts are not challenged. Moreover, the clear position taken by the Commission was that the conduct of the appellant captured on the CCTV recordings was objective evidence of his use of excessive force. That is why the main focus of the hearings from the outset was on the other police officers who failed to intervene. I am not persuaded that further evidence is required for the purpose of determining the proposed ground.
The leading authorities relating to raising a new point on appeal focus on what was pleaded and litigated in a trial (Water Board v Moustakas (1988) 180 CLR 491; McLennan v McCallum [2010] WASCA 45). This appeal is from prerogative writ proceedings in which the focus is on jurisdictional errors of law. Further, there is a common theme underlying all the relevant grounds of judicial review, being the pivotal role played by the scope, purpose and construction of the Act. Being public law proceedings which raise issues of substantial public interest, I would grant leave to add ground 6.
As noted above, the Commission's satisfaction, on reasonable grounds, that disclosure is necessary in the public interest is a condition that must exist in order to enliven the power to certify and disclose the relevant official information. That is, it is a jurisdictional fact on which the power to disclose depends. See Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [57]. It is unnecessary to determine whether satisfaction of that condition enlivens a discretion as to whether or not to disclose. See Channel Seven Perth Pty Ltd v S (A Company) (2007) 34 WAR 325 [19] ‑ [22]. Nothing turns on the answer to that question because the expression 'in the public interest' imports a discretionary value judgment. As Hayne J said in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423:
It may readily be accepted that most questions about what is in 'the public interest' will require consideration of a number of competing arguments about, or features or 'facets' of, the public interest. As was pointed out in O'Sullivan v Farrer:
'[T]he expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view"'[55].
A 'discretionary value judgment' simply means that, with a proper understanding of the nature and limits of the statutory power, reasonable minds may differ as to the outcome. That is, there is no single correct answer as to what is in the public interest or necessary in the public interest.
The High Court in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 signalled a departure from the Wednesbury Corporation test as the sole test of unreasonableness as a ground of jurisdictional error. That case concerned the exercise of a statutory discretionary power to adjourn an application for review under the Migration Act 1958 (Cth). The majority in Li said:
The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision ‑ which is to say one that is so unreasonable that no reasonable person could have arrived at it ‑ nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King [68].
The formation of an opinion or satisfaction on reasonable grounds that conditions the valid exercise of a statutory power differs from the exercise of a statutory discretion. However, even in the case of the exercise of a statutory discretion, a weighting error (attributing too much or too little weight to a relevant consideration) does not give rise to an appealable error except in very limited circumstances: Vagh v The State of Western Australia [2007] WASCA 17 [76]. In considering a challenge to a decision made in the exercise of a statutory discretion, error may be inferred from an unreasonable or plainly unjust exercise of a judicial discretion: House v The King (1936) 55 CLR 499. Ordinarily, a so‑called weighting error is an ex post facto inference that arises after finding an inferred error: Trompler v The State of Western Australia [2008] WASCA 265 [32].

As this case relates to the validity of a decision that a condition enlivening a power was satisfied, not the exercise of a statutory discretion, it is unnecessary to determine whether Li has changed the test of unreasonableness in a way that lowers the threshold for success. The relevant question in this case is whether, on a proper understanding of the Act, it was open to the Commission to be satisfied, on reasonable grounds, that disclosure was necessary in the public interest.
The requirement in s 152(4)(c) of the Act that disclosure be 'necessary' in the public interest does not alter the evaluative nature of the judgment as to the public interest: Osland v Secretary, Department of Justice (No 2) [14].
For the reasons discussed earlier, the widespread, lawful public disclosure of the examinations conducted by the Commissioner, including of the appellant, is a relevant factual matter in the assessment under s 152(4)(c). However, the high-threshold public interest requirement requires a fresh assessment of all relevant matters.
The intervener identified a number of considerations that could properly inform an evaluation of the public interest, some favouring disclosure, some counting against it. As to the former, the intervener submitted that it was open to the Commission to take the view that:
(1)where witnesses were examined about the CCTV recordings, and had given conflicting evidence about what had happened, public disclosure of the CCTV recordings would enable members of the public to better understand the Commission's public proceedings;
(2)its prevention and education function would be best served by the release of the video to the public generally, which would have the effect of more immediately bringing it to the attention of the many members of the police force stationed throughout the State;
(3)giving members of the public a better understanding of the conduct being addressed by the public examinations would encourage reporting of incidents by members of the public who may be concerned about the manner in which a detainee has been treated;
(4)there is a public interest in the exposure of public abuses, the dissemination of information of public importance and in freedom of discussion on those matters.
As to matters going to prejudice to the administration of justice, the intervener points out that (1) the appellant had not been charged with any offence(s) and it could not be said that any charges would necessarily be tried or triable by a jury; (2) the publication of the CCTV recordings prior to the appellant being charged would not constitute a contempt of court; (3) even if the offences were triable by jury, the law assumes the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations; (4) the CCTV footage would be admissible in any criminal trial of the appellant unless there were separate charges relating to D1 and D4 which were the subject of separate trials in which event only part of the footage would be admissible in each trial; (5) it is the release of the CCTV recordings rather than the decision to conduct public examinations which is sought to be impugned and the focus must be on any additional prejudice which might result from the disclosure of the recordings.
With one reservation, I accept the correctness of the intervener's identification of the public interests favouring disclosure. There is a construction issue lurking in the second proposition. The prevention and education function cannot be relied on to subvert or alter the scope of the Commission's misconduct function. When the Commission itself exercises the misconduct function by investigating cases of alleged misconduct, its end point or objective is to make recommendations to other authorities as to what, if any, further action they should take against the relevant public officer or more generally. It is not the Commission's role to direct public officers as a group on how to conduct themselves in the performance of their duties. The Commission's role is to make recommendations to the public authorities that have the necessary power and authority to direct and discipline those public officers.
I also accept the correctness of the first four propositions relating to the prejudice to the administration of justice, although the third proposition has its limitations: Russell v The State of Western Australia [2011] WASCA 246.
However, the intervener's submissions significantly underplay the prejudice to the administration of criminal justice. In particular, the concern is not confined to the additional prejudice that might result from a disclosure of the CCTV recordings beyond that which any media reports of the examinations might have created.
It can be inferred that there will be very significant media interest in, and public exposure of, the CCTV recordings because there is significantly greater audience interest in (or significantly greater interest can be media‑generated by) pictures/vision with words than in words alone.
One of the Commission's stated purposes in ordering disclosure of the CCTV recordings is to engage the public in an assessment of where the truth lies between the competing sworn evidence of the appellant and the other witnesses to the incidents. That purpose is likely to be achieved, with the result that attention will be drawn to the appellant's evidence compulsorily obtained but inadmissible against him in any criminal trial. There will be, in effect, a trial by media.
Where there is an acknowledged risk, based on objective evidence in the Commission's possession, that the appellant may be charged with a criminal offence or offences, it is contrary to the public interest in the due administration of criminal justice that there be trial by, or facilitated by, the media by reference to inadmissible evidence compulsorily obtained by the Commission. That is particularly so where the primary public focus will be on the evidence that goes directly to the heart of an element of any likely offence(s), namely whether the appellant used more force than was reasonably necessary in the circumstances. See s 231 of the Criminal Code (WA). The prejudice arises from the publication of the CCTV recordings in combination with the evidence given in the public examinations with an invitation to prejudge where the truth lies.
The fact that disclosure is positively contrary to the public interest in the due administration of criminal justice prevents satisfaction of the condition in s 152(4)(c) of the Act. Having regard to all relevant and competing public interests, it was not open to the Commission to be satisfied, on reasonable grounds, that disclosure of the CCTV recordings was necessary in the public interest.

Conclusion

I would grant leave to amend the grounds of appeal to add ground 6 and uphold that ground, allow the appeal and quash the Commission's decision to disclose the CCTV recordings to the media under s 152(4)(c) of the Act.