Applicants A1 and A2 v Brouwer

The applicants, A1 and A2, sought judicial review of the decision to terminate their protection and assistance under the Victorian witness protection program. The decision was made by the Director of Police Integrity, who was also the decision-maker for the original decision to provide protection and assistance. The applicants argued that the Director had erred in defining the nature of the appeal, which resulted in a jurisdictional error. The applicants also argued that the privative clause in the Witness Protection Act 1991 did not preclude their application for judicial review. The applicants sought leave to appeal the decision of the Supreme Court of Victoria dismissing their application for prerogative relief.

The legal issues in this case were whether the Director had erred in defining the nature of the appeal, whether the Chief Commissioner’s specialist expertise was relevant to determining the nature of the appeal, whether the presumption that an appeal from a decision of an administrative body to another administrative body is not de novo, and whether the privative clause in the Witness Protection Act 1991 precluded the applicants’ application for judicial review. The court had to determine whether the Director’s decision was infected by jurisdictional error and whether the privative clause in the Act precluded the applicants’ application for judicial review.

The court found that the Director had erred in defining the nature of the appeal, which resulted in a jurisdictional error. The court held that the Director was required to conduct the appeal as a hearing de novo and that the Chief Commissioner’s specialist expertise was not relevant to determining the nature of the appeal. The court also found that the presumption that an appeal from a decision of an administrative body to another administrative body is not de novo did not apply in this case. The court held that the privative clause in the Act did not preclude the applicants’ application for judicial review. The court granted the applicants leave to appeal the decision of the Supreme Court of Victoria.

The court ordered that the decision of the Supreme Court of Victoria dismissing the applicants’ application for prerogative relief be set aside, and that the matter be remitted to the Supreme Court for further consideration in light of the court's findings. The court also ordered that the applicants be granted leave to appeal the decision of the Supreme Court of Victoria.