Chief Commissioner of Police v ABC
[2010] VSC 582
•22 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6023 of 2010
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| v | |
| ABC | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2010 | |
DATE OF JUDGMENT: | 22 December 2010 | |
CASE MAY BE CITED AS: | Chief Commissioner of Police v ABC | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 582 | |
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COURTS – PRACTICE AND PROCEDURE – Application to Supreme Court for order for disclosure of information – Protected witness – Disclosure of information relevant to previous identity of the witness – Witness Protection Act 1991, s 10(1) – Statutes – Interpretation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E M Nekvapil | Victorian Government Solicitor |
| For the Defendant | Mr S McCredie | Lennon Mazzeo |
HIS HONOUR:
Introduction
This application involves consideration of the power of the Court under the Witness Protection Act 1991[1] to order the disclosure of information concerning the previous identity of a witness.
[1]Referred to in these reasons as “the Act”.
The defendant, ABC, was a participant in the Victorian Witness Protection Program.[2] His identity has been changed and a new entry made under the Births Deaths and Marriages Registration Act 1996.
[2]Referred to in these reasons as “the Program”.
Subsequent to the change of the defendant’s identity, he successfully applied for a firearms licence. However, it was suspended in October 2009 by the Chief Commissioner of Police and cancelled in March 2010.
The defendant now seeks review of the Chief Commissioner’s decision by the Firearms Appeals Committee[3]. The Chief Commissioner wishes to adduce evidence before the Committee concerning the antecedents of the defendant under his original identity. It may be that the defendant also wishes to adduce evidence relating to matters which arose under his former identity.
[3]Referred to in these reasons as “the Committee”.
Both the defendant and the Chief Commissioner, absent an order of the Court, would be in breach of s 10 of the Act if they disclosed information to the Committee relating to the original identity of the defendant.
There is no issue between the parties that the Court may make an order authorising the disclosure of information to the Committee (and the parties) relating to the defendant under his previous identity. The point I am required to determine concerns the manner in which the Court should authorise the dissemination of such information and the limits, if any, that should be placed upon it.
Background facts
The defendant entered into a Memorandum of Understanding with a delegate of the Chief Commissioner.[4] This sets out the basis for his inclusion in the Program. The defendant was provided with a new identity and appropriate entries were made in the Register of Births.[5]
[4]The memorandum of understanding is provided for by s 5 of the Act.
[5]Section 9 of the Act.
In 2008, the defendant requested that protection and assistance provided to him under the Act be terminated. The Chief Commissioner was obliged to give effect to that request.[6]
[6]Section 16(1) of the Act.
On 20 July 2009, the defendant applied for a Category A and B Long Arms Licence under the Firearms Act. The defendant asserted, in his answer to a question in Part 5 of the application, that he had not been found guilty and did not have charges pending for any offences in Australia or overseas.
On 14 October 2009, the defendant was served with a Notice of Suspension[7] by an officer of the Licensing Services Division (presumably as delegate of the Chief Commissioner) which contained, amongst other things, the following matters:
[7]Section 47 of the Firearms Act.
On about 14 October 2009, Senior Sergeant Dennis Tocock of the Licensing Services Division served on Mr ABC a notice of suspension under section 47 of the Firearms Act (the first suspension notice). The first suspension notice stated, among other things:
…I am satisfied that there are grounds for cancellation of your firearms licence(s)…for the following reasons:
The holder has knowingly supplied false or misleading information in a material particular in, or in connection with the application for the licence or renewal of the licence
Brief summary of circumstances: The licence holder failed to declare his criminal history
On 30 October 2009, a further notice of suspension was issued by an officer of the Licensing Services Division under the Firearms Act. In part it read as follows:
I am satisfied that there are grounds for cancellation of your firearms licence(s)…for the following reasons:
the holder has knowingly supplied false or misleading information in a material particular in, or in connection with the application for the licence or renewal of the licence.
Brief summary of circumstances:-
- You failed to declare your criminal history
- You have a history of mental and emotional disability and a criminal history known to the Chief Commissioner of Police.
On 26 March 2010, a Notice of Cancellation under s 49 of the Firearms Act was served on the defendant’s solicitors. The grounds replicated those contained in the second suspension notice.
On 29 June 2010, the defendant lodged an application, out of time, to the Committee to review the decision to issue a cancellation notice.[8]
[8]Sections 154, 167, Firearms Act.
Since August 2010 there has been a running battle between the defendant’s solicitors and the solicitor for the Chief Commissioner in relation to the review of the Commissioner’s decision. There has also been ongoing correspondence relating to the provision of documents which might, absent an order from this Court, infringe the provisions of s 10.
The Committee has delayed hearing the application for review until this application is determined.
The legislative framework
The Minister for Police and Emergency Services’ Second Reading Speech said of the Witness Protection Bill:
The Bill is designed to help the police to combat organised crime and to solve major crimes of violence. In these areas, the police rely heavily on inside information – the evidence of persons closely connected to the perpetrators of the crimes. By agreeing to give evidence, many of these people place themselves and their families at risk from the threat of death or injury designed to prevent them testifying at criminal trials.
...
The Bill will provide a major weapon in the armoury of the Victoria Police available to combat serious crime. It will encourage witnesses to come forward, safe in the knowledge that they will be fully protected at all times against retribution from the criminals they have helped to convict.[9] (emphasis added)
[9]Victorian Parliamentary Debates, Legislative Assembly, 15 November 1990, 2060.
The operative provision of the Act in relation to this application is s 10(1)(c). It is convenient to set out section 10 in its entirety:
10 Information not to be disclosed
(1) A person must not, either directly or indirectly, make a record of, disclose, or communicate to another person any information relating to the making of an entry in the register of births or the register of marriages under this Act, unless it is necessary to do so—
(a) for the purposes of this Act; or
(b) for the purposes of an investigation by the Director; or
(c) to comply with an order of the Supreme Court.
(2) Despite subsection (1), the Chief Commissioner of Police or an approved authority or an officer of an approved authority may disclose the former identity of a witness or a member of the family of a witness for the purpose of obtaining documents relating to the new identity of the witness or family member.
(3) Subject to subsection (4), a person who is or has been a witness or a member of the family of a witness must not, either directly or indirectly, disclose or communicate to another person, in Victoria or elsewhere—
(a) the fact that he or she or a member of his or her family has entered a memorandum of understanding under section 5; or
(b) details of the memorandum of understanding; or
(c) information relating to anything done by the Chief Commissioner of Police or another member of the police force or an approved authority or an officer of an approved authority under this Act; or
(d) information about any member of the police force or an approved authority or an officer of an approved authority gained by the person as a result of anything done under this Act.
(4) Subsection (3) does not apply to a disclosure or communication—
(a) that has been authorised by the Chief Commissioner of Police or an approved authority; or
(b) that is necessary for the purposes of an investigation by the Director; or
(c)that is necessary to comply with an order of the Supreme Court.
(5) A person must not, without lawful authority, disclose information in Victoria or elsewhere—
(a) about the identity or location of a person who is or has been a participant; or
(b) that compromises the security of such a person.
(6) A person must not, without lawful authority, disclose information in Victoria—
(a) about the identity or location of a person who is or has been a recognised participant; or
(b) that compromises the security of such a person.
The purpose of the Act is “to facilitate the security of persons who are or have been witnesses in criminal proceedings in Victoria or elsewhere in Australia”.[10]
[10]Section 1 of the Act.
The Chief Commissioner plays an integral role in the management of the Program. He is authorised by s 3A to “take such action as he or she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of a family of a witness”. Under s 3B it is his decision to include a witness in the program. Under s 5, he is empowered to enter into a memorandum of understanding with the witness, as happened here. Pursuant to s 16(2), the Chief Commissioner can, in certain circumstances, terminate protection and assistance under the program – as can a witness under s 16(1). By s 19, the Chief Commissioner “may take such action as is necessary to restore the person’s former identity where protection and assistance to the person under the program has been terminated.” The Chief Commissioner may also, under s 23, if notified by an approved authority (e.g. such as the Commissioner of the Australian Federal Police or a Commissioner of a Police force of another State)[11] that a person who is under investigation or has been arrested or is charged with an offence in another State or against a Federal law:-
(a) release to the approved authority the person’s new identity or location;
(b) provide the approved authority with the person’s criminal record and fingerprints;
(c) release to the approved authority such other information relating to the person that the Chief Commissioner considers appropriate in the circumstances;
(d) if the Chief Commissioner considers it appropriate in the circumstances, allow officers of the approved authority to interview members of the police force in relation to the person
[11]The definition of “approved authority” is contained in s 3 of the Act.
Finally, it is necessary to mention some relevant provisions of the Firearms Act. The licensing and regulatory provisions of the Act facilitate its purpose – “to give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace”.[12] The Committee is established under Part 9 and, sitting as a division, determines reviews of decisions of the Chief Commissioner under the Act. In reviewing a decision of the Chief Commissioner, the division would normally consist of three members.[13] In hearing such applications it is not bound by the rules of evidence and may conduct the proceeding in any manner it thinks fit.[14]
[12]Section 1.
[13]Section 163.
[14]Section 166.
The submissions of the parties
The dispute between the Chief Commissioner and the defendant as to the scope of the order to be made pursuant to s 10(1)(c) is reflected by the proposed orders filed by the parties.
The Chief Commissioner initially sought an order in the following terms:
1.An order pursuant to section 10(1)(c) and 10(4)(c) of the Witness Protection Act 1991 – in respect of the Defendant’s application:
(a) to the Firearms Appeals Committee;
(b) dated 29 June 2010;
(c) under section 50 of the Firearms Act1996
(d)for review of a decision made by a delegate of the Plaintiff on 26 March 2010 under section 49 of the Firearms Act1996 to cancel the defendant’s Category B firearms licence number 786 061 70B –
that each of the parties must disclose to each other, their respective lawyers and the Firearms Appeals Committee, all information relating to the Defendant or the Defendant’s application that the parties consider it appropriate, in the circumstances, to disclose.
The defendant sought the following orders:
1An order pursuant to section (10)(1)(c) and 10(4)(c) of the Witness Protection Act 1991 in respect of the defendant’s application for review dated 29 June 2010 lodged with the Firearms Appeals Committee, or any substituted application for review ordered by the Firearms Appeals Committee, of a decision to suspend or cancel a licence under the Firearms Act 1996 –
That each of the parties must disclose to each other and their respective lawyers all information relating to the defendant’s application as follows:-
(a)The plaintiff to enumerate in a schedule and provide to the defendant each item of information or document related to that he intends to disclose to the Firearms Committee on or before x/y/2010.
(b)The defendant to enumerate and provide to the plaintiff each item of information or document that he intends to disclose to the Firearms Committee on or before x + 14 days.
(c)The plaintiff to enumerate and provide to the defendant any further item of information or document arising from the information or document provided by the defendant that he intends to disclose to the Firearms Committee on or before x + 28 days.
It was common ground that the disclosure of information concerning the activities of the defendant under his original identity would infringe the provision of s 10(1) which prohibits disclosure of information “relating to the making of an entry in the Register of Births”. Although not free from doubt, I accept that this analysis is correct.
The order sought by the Chief Commissioner effectively leaves it to the parties to determine what material should be provided. On behalf of the Chief Commissioner it was submitted that an order authorising him to divulge the documents that he wished to rely upon (without being sighted by the Court) was appropriate given his integral role in the administration of the program. This was particularly so, it was argued, because the information would be disclosed to a select audience, namely the three members of the Firearms Committee and the defendant himself.
The defendant contended that the Court should take a more active role in its supervision of the information to be disclosed to the Committee and argued that there should be an exchange of documents supervised by the Court prior to any disclosure to the committee.
Decisions of this Court concerning the Witness Protection Act.
Section 10(1) does not provide any criteria to be applied by the Court in determining whether to make an order under sub-s (c). Accordingly, it is helpful, I think, to examine previous decisions of judges of this Court relating to the application of the Act.
In Re a former protected witness,[15] Byrne J was required to consider an application brought by the Chief Commissioner to cancel an entry in the Register of Births consequent upon the termination of protection and assistance to a witness. Like s 10, s 9(3) provides no statutory guidance in relation to the exercise of the Court’s discretion in making such an order.[16] His Honour made the following observations in relation to the making of such an order which, I consider, have a direct correlation to any order made by this Court which might involve the release of information concerning the previous identity of a witness:
A concern of the Court in an application under s 9 must be for the wellbeing and safety of the witness. When a person agrees to give evidence in court in circumstances where there is a concern for her safety or welfare, the legislature has put in place statutory procedures to protect the witness. And, if I may say so, it is right and proper that this be done. Such a witness might have any of a number of motives for giving evidence, but the result is that information is provided to the police and evidence given in a court for the prosecution of a wrongdoer. For this, the community of Victoria should be grateful and it should acknowledge that such a witness may be running a serious risk in so doing. Witnesses who are prepared to run that risk are brave indeed. When it is thought desirable for them to cast aside their own identity and to assume a new identity for fear for their safety and that of their family, they should not be lightly required to return to their old identity. It may be that those whom they fear will thereby be able to find them and to do them harm. It may be that, with the passage of years, their new identity has become comfortable for them. They have acquired new friends, associates, business interests and all manner of contact with government departments and instrumentalities under their new name..
The involvement of the Court under s 9 raises similar concerns. The effect of the making of the order sought is that the Register, once again, will show as current the former identity of the witness. This removes, in a formal way, the new identity, for it means that a person may no longer make a search or obtain a certificate under the new identity. It is a serious step to take and one which ought not be taken unless the implications and consequences have been explored and explained to the person whose interests are affected[17]. (emphasis added)
[15][2006] VSC 291.
[16]Ibid, [19].
[17]Ibid, [26]-[27].
In R v JP,[18] Whelan J dealt with an application made by media interests to publish the name of a prisoner who was to sentenced to a term of imprisonment for murder. Application was made to his Honour by two media organisations who were, by the terms of s 10(5), prohibited from publishing the prisoner’s name. After hearing argument concerning the effect and purpose of the provisions of the Act, his Honour concluded as follows:
The protection of the identity of persons to whom the Witness Protection Act applies is a matter of great significance. It may in some cases truly be a matter of life and death. Section 10(5) is expressed in very wide terms. There is considerable potential for uncertainty as to its application in a particular case. A person's status as a participant whose identity is protected under s 10(5) is itself a matter which cannot be disclosed. These are circumstances which do not necessarily arise in relation to other statutory prohibitions on publication. Given these matters, where the source of the information in question is a judgment or sentence of the Court itself in my view the court ought not to deliver judgment or sentence and leave the matter of compliance with s 10(5) unaddressed. This is particularly so where the court is of the view that disclosure of some parts of the judgment, or sentence could be disclosed without contravening s 10(5), and some parts could not. In my view in such circumstances it is necessary in order not to prejudice the administration of justice that the court should order that the material which the Court considers cannot be disclosed without contravening s 10(5) is prohibited from publication. It seems to me that otherwise the recipients of the information in the judgment or sentence are placed in an unnecessarily uncertain and potentially dangerous position, and the risk of a disclosure and breach of s 10(5) is unacceptably high.[19] (emphasis added)
[18][2008] VSC 86.
[19]Ibid [26].
This year Beach J heard two separate applications concerning the operation of s 10(5). In DPP & Anor v Dale & Ors,[20] a bevy of media organisations participated in the hearing as defendants or interveners. One of the issues that arose was the question of the publication of the name of a witness protected under the Act. It is not necessary for me to set out in detail his Honour’s reasoning relating to an offence against s 10(5) and its relationship with s 126 of the Magistrates’ Court Act. Rather, it is his Honour’s observations as to the necessity to protect the identity of the witness which are relevant here:
Further, s 10(5)(a) has work to do even if a disclosure would not compromise the security of any person. It is of importance that relevant witnesses who may be in need of protection if they come forward are assured that their identity will not be disclosed. Such a person who observes the disclosure of the identity of a participant may not come forward for fear that his or her identity might be similarly disclosed after becoming a participant. It follows that the fact that certain matters relating to the identity of a participant might be “common knowledge” or might be capable of being ascertained from prior reports in the media cannot be of any moment when considering the construction or operation of s 10(5)(a). [21](emphasis added)
[20][2010] VSC 88.
[21]Ibid, [43].
In the second of Beach J’s decisions, Chief Commissioner of Police and anor v The Herald and Weekly Times Ltd,[22] his Honour was again besieged by a group of media defendants. His Honour was required to consider whether a witness who was a participant in the program but had since died was nonetheless entitled to obtain the benefit of s 10 in relation to disclosure of his identity. I do not need to delve into his Honour’s reasoning underpinning his conclusion that the Act applied in such circumstances; rather, his Honour’s analysis of the purpose of the Act is of relevance here:
The purposes of the Witness Protection Act include the protection not only of participants, but also of their families. Further, the Witness Protection Act is designed to encourage witnesses to come forward, safe in the knowledge that they and their families will be protected at all times against retribution that might be taken by others upon learning of their participation in the programme. It is trite that a construction that promotes these purposes is to be preferred over one that does not achieve this object.[23] (emphasis added)
[22][2010] VSC 164.
[23]Ibid, [13].
Principles and application to this case
The common theme emerging from decisions of judges of this Court is the necessity for this Court where it exercises what may be seen as a supervisory role, to protect as far as is possible the identity of the relevant witness.
In making an order under s 10(1)(c), I suggest that the following matters are relevant to the form of the order that a court would ultimately fashion.
First, the section itself makes it a criminal offence for anyone (including the Commissioner and the defendant) to publish information concerning the previous identity of the witness. Any order of the Court which relieves a person of the risk of a criminal sanction intended to underpin the policy of the Act needs to be considered carefully and determined upon sound grounds.
Second, the entering into of a memorandum of understanding to give evidence places the witness and his or her family at risk (indeed, it may be at grave risk). It is in the public interest that witnesses or their family be protected as far as the law permits. As part of that protection, the acquisition of a new identity is integral and any disclosure of information that may lead to identification of a witness’ prior identity must be scrutinised carefully by the Court before such a disclosure is made.
Third, it is important and also in the public interest that those who are contemplating entry into the program understand that information concerning their previous identity will not be disclosed unless the Court is satisfied:
(a)that it is in the public interest to do so; and
(b)that the information to be disclosed is closely examined by the Court prior to disclosure.
Fourth, even though a witness is no longer within the program, this does not mean that the witness is not entitled to the benefit of the terms of s 10(1). The identity change is meant to protect the witness and his or her family both during the time he or she may be required to give evidence and thereafter as Byrne J explained in Re a former protected witness[24] and as the Second Reading Speech makes clear.
[24]See [28] above.
Finally, the extent to which an order permits the provision of information related to a previous identity is dependent upon balancing the public interest in relation to the dissemination of such information (such as in this case, to the acquisition of a firearm licence) as against the underlying purpose of the Act – the ongoing protection of the identity of a witness. In this case, it was properly accepted by the parties that there was a public interest in relation to information concerning the defendant under his previous identity and his application for a firearms’ licence. The Committee should be aware, as far as is practicable, of all relevant matters concerning that application.
If I am right about these principles then, it seems clear to me that the ambit of the order sought by the Chief Commissioner is too wide and leaves too much (indeed far too much) to his, or his delegate’s, discretion. I have concluded that, in conformity with the principles I have set out, the only proper basis upon which to permit the dissemination of material is for the Court to inspect and approve the information, which is sought to be provided to the Committee.
In reaching this conclusion, I should address several matters which were raised in the course of argument by counsel for the Chief Commissioner.
I regard it as surprising (to put it mildly) that the Chief Commissioner chose not to provide the Court with any of the information that he proposed to put before the Committee. The affidavit sworn in support of this application by Ms Graham[25] does not identify the documents or information that he intends to place before the Committee, if an order is made. At best it can be inferred that the documents must include information relating to the defendant’s criminal history and, perhaps, a history of mental and emotional disability “known to the Chief Commissioner of Police” as set out in the cancellation notice. Instead of providing the Court with the documents (or even a list of the documents) or information, it was argued that I should, in effect, give the Chief Commissioner carte blanche over what the information he should produce to the Committee. For the reasons I have set out, such an approach is inconsistent with the purpose of the Act, notwithstanding that the witness is no longer a participant in the program. There is an overarching obligation under the Act to protect the security of the witness which the Court must give effect to.
[25]A solicitor employed by the Chief Commissioner’s solicitor.
Next, I accept that the information provided under such authorised disclosure will be considered by three members of the Division, necessarily sitting in closed session. However, the fact that the audience is so limited and that there will be precautions taken in relation to the publication of such material does not, in my view, militate against the Court exercising close supervision over the information disclosed. It is important that those contemplating joining the program know that if such disclosure is ordered it will be the subject of careful judicial scrutiny prior to being released.
I do not accept the proposition that, given the Chief Commissioner’s role in the administration of the Act (which is integral to its function), I should therefore make an order of the width sought by him. In particular, counsel for the Commissioner relied upon the powers given to him under s 23. However, it is s 10 that needs to be considered. Parliament’s decision to give the Court the power to grant an exemption, in effect, from the operation of s 10 tells against a conclusion that the Chief Commissioner should at liberty to determine what is and is not to be released. The legislature could, if it wished, have given an overall discretion to the Chief Commissioner in relation to the dissemination of information relevant to the witness’ previous identity. To the contrary, by s 10(2) it limited his right to be exempted from the operation of s 10(1) to one specific matter: the procurement of a new identity for the witness.
I reject outright the contention put on behalf of the Commissioner that in some way a witness is given a “privilege” under the Act. As was made clear in the Second Reading Speech and by statements of judges of this Court, if a witness agrees to give evidence, he or she may be placed in a situation of extreme danger. Often this extends to his or her family. This is hardly a privilege. Whilst entering into a memorandum of understanding admittedly confers some benefits upon a witness, it also confers a significant public benefit to the investigating authorities and the prosecuting authority in this State.
Finally, I reject the argument that by not making an order of the breadth sought by the Commissioner, the hearing before the Committee will be in some way be frustrated or become disjointed. Given the passage of time I think it unlikely that “fresh” material will emerge in the course of the hearing. I propose to make orders which will provide for the approved information to be placed before the Committee. If I am wrong, and in the event that something occurs during the course of the hearing which requires further evidence to be adduced in addition to the disclosed information, then I will hear, on short notice, any application concerning dissemination of that material. Even if that causes some minor dislocation to the hearing, it is a small price to pay, in my view, for upholding the integrity of a fundamental aim of the Act.
Summary
I am satisfied that there is sufficient public interest in permitting the disclosure to the Committee of certain information relevant to the previous identity of the defendant.
As I have tried to explain, s 10(1) requires the Court to determine what material will be disclosed to the Committee. The proposed order I have set out below provides for a staged filing with the Court, (and exchange between the parties) of the relevant information. After inspection of that material I will determine what information is to be provided to the Committee.
Proposed orders
Subject to hearing from the parties I propose to make the following orders:
1. By 17 January 2011 the Chief Commissioner file with the Court and serve upon the Defendant:
(a)Each document relevant to the previous identity of the defendant which he intends to disclose to the Firearms Appeals Committee; and
(b)A document setting out in detail any other information which he intends to disclose to the Firearms Appeals Committee relevant to the previous identity of the Defendant.
2. By 24 January 2011 the Defendant file with the Court and serve upon the Chief Commissioner:
(a)Each document relevant to the previous identity of the defendant which he intends to disclose to the Firearms Appeals Committee; and
(b)A document setting out in detail any other information which he intends to disclose to the Firearms Appeals Committee relevant to the previous identity of the Defendant.
3. By 1 February 2011 (in the event that he wishes to file any further material) the Chief Commissioner file with the Court and serve upon the Defendant:
(a)Each additional document relevant to the previous identity of the defendant which he intends to disclose to the Firearms Appeals Committee; and
(b)A document setting out in detail any additional information which he intends to disclose to the Firearms Appeals Committee relevant to the previous identity of the Defendant.
4.That the application be adjourned to 7 February 2011 for further mention.
I also propose to direct that a copy of these reasons (which are for the moment restricted) be provided to the members of the Committee determining the review of the Chief Commissioner’s decision on the understanding that they are not disseminated otherwise.
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