Chief Commissioner of Victoria Police v Chairperson of the Royal Commission into the Management of Police Informants and Attorney-General for the State of Victoria
[2020] VSCA 214
•26 August 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0078
| CHIEF COMMISSIONER OF VICTORIA POLICE | Applicant |
| v | |
| CHAIRPERSON OF THE ROYAL COMMISSION INTO THE MANAGEMENT OF POLICE INFORMANTS | Respondent |
| and | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervener |
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| JUDGES: | BEACH, McLEISH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 August 2020 |
| DATE OF JUDGMENT: | 26 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 214 |
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ADMINISTRATIVE LAW – Application for certiorari and mandamus – Application to Royal Commissioner to prohibit publication of information relating to identity of person referred to in submissions of counsel assisting – Application refused by Royal Commissioner – Whether Royal Commissioner misinterpreted relevant statutory provision – Whether Royal Commissioner misconstrued applicant’s submissions – Whether Royal Commissioner failed to accord procedural fairness – Whether Royal Commissioner took into account irrelevant considerations – Whether decision legally irrational – Application refused – Proceeding dismissed – Inquiries Act 2014, s 26.
ROYAL COMMISSIONS – Application to prohibit publication of information relating to identity of specified person – Whether publication of information might cause harm to safety of person – Level of risk of harm – Cogency of evidence relied upon in support of application – Relevance of risk of harm to reputation – Countervailing factors – Balancing exercise – Exercise of discretion – Inquiries Act 2014, s 26(2)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr I R L Freckelton QC with Mr J Bayly | Corrs Chambers Westgarth |
| For the Respondent | No Appearance | Holding Redlich |
| For the Intervener | Mr C J Horan QC with Mr T B Goodwin | Gilbert + Tobin |
BEACH JA
McLEISH JA
WEINBERG JA:
The applicant (‘the Chief Commissioner’) is the Chief Commissioner of Victoria Police. The respondent (‘the Royal Commissioner’) is the Chairperson and Commissioner of the Royal Commission into the Management of Police Informants, appointed pursuant to s 5 of the Inquiries Act 2014, and letters patent dated 13 December 2018.[1] The circumstances in which the Royal Commission was established are set out in this Court’s decision in Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police.[2]
[1]Which letters patent were amended on 7 February 2019.
[2][2019] VSCA 154, [1]–[3].
More recently, this Court noted[3] that the Royal Commission was nearing the end of its inquiry and was preparing for the exchange and receipt of final submissions between counsel assisting and relevant parties, and the publication of its final report.
[3]Chairperson of the Royal Commission into the Management of Police Informants v Director of Public Prosecutions Victoria [2020] VSCA 184, [6] (‘Chairperson v DPP’).
On 23 June 2020, the submissions of counsel assisting the Royal Commission were provided to Victoria Police.[4] Subsequently, the submissions have been provided to various relevant parties, and later (with some parts redacted) to other additional individuals and organisations who counsel assisting consider may be adversely affected by potential findings of the Commission. Counsel assisting’s submissions set out a range of adverse findings that may be open to be made in relation to a member (‘the Member’) of Victoria Police.
[4]Subject to undertakings of confidentiality from the legal representatives of Victoria Police, and certain non-publication orders made by the Royal Commissioner.
On 15 July 2020, Victoria Police and the Member made an application to the Royal Commission (‘the non-publication application’) for the following orders in relation to the Member:
(a) a non-publication order over the name of the Member pursuant to s 26 of the Inquiries Act;
(b) a pseudonym to be applied over the Member’s name in:
(i) counsel assisting’s final submissions;
(ii) any responsive submissions filed by another party;
(iii) the Royal Commissioner’s final report; and
(c) redactions to be made to the footnotes of counsel assisting’s final submissions, any responsive submissions and the Commissioner’s final report to prevent the Member’s name (to be protected by a pseudonym) from being linked to any exhibit or transcript of evidence that identifies the Member by name.
By letter dated 17 July 2020, the solicitors assisting the Royal Commission informed the solicitors acting for Victoria Police[5] that the Royal Commissioner would not make the orders sought in the non-publication application. Specifically, the letter provided:
The Commissioner has considered the matters contained in the submissions and affidavit accompanying the application but is not presently satisfied that there is a significant risk to the Member’s safety to warrant the order sought.
Accordingly, the Commissioner is not prepared to make an order for a pseudonym and/or non-publication of the Member’s name based on the material presently before her.
[5]Including the Member.
Later that same day, the solicitors for Victoria Police requested reasons for the Royal Commissioner’s decision. Reasons were provided by the Royal Commissioner three days later on 20 July 2020.
On 28 July 2020, the Chief Commissioner commenced a proceeding in the Trial Division seeking orders quashing the Royal Commissioner’s decision and requiring her to remake the decision according to law. On 12 August 2020, the proceeding was reserved for the consideration of this Court.[6]
[6]See s 17B(2) of the Supreme Court Act 1986.
In support of the relief he seeks, the Chief Commissioner asserted that, in making her decision, the Royal Commissioner misinterpreted s 26(2)(a) of the Inquiries Act, misconstrued the submissions made in support of the non-publication application, failed to comply with the rules of procedural fairness and took into account ‘a prohibited consideration’. The Chief Commissioner also asserted that the rejection of a specific piece of evidence by the Royal Commissioner, and a particular finding made by her, was ‘legally irrational’.
The Royal Commissioner took no active part in this proceeding. In accordance with the practice identified by the High Court in Hardiman,[7] the Royal Commissioner advised the Court that she would abide the Court’s decision.[8] Subsequently, the Victorian Attorney-General was joined as an intervener to act as a contradictor to the Chief Commissioner’s application for judicial review.
[7]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
[8]Save that she reserved her position on the question of any costs that might be ordered.
The non-publication application
The non-publication application was supported by a confidential affidavit affirmed by Assistant Commissioner Neil Paterson. In that affidavit, Assistant Commissioner Paterson deposed to:
·significant threats made against the Member between 2006 and 2009;
·two Facebook posts some years later;
·an escalation in the risk to the Member as a result of his involvement in the Royal Commission (this included a risk based on the handing down of the decision of the High Court in AB v CD, an escalation of risk prior to the Member giving evidence in the Royal Commission, a further escalation as a result of what was described as a ‘walkover’ of the Member’s home in 2019, and escalations of risk based on Nicola Gobbo’s evidence to the Royal Commission and the content of counsel assisting’s final submissions and their circulation to those who may be affected by the potential findings of the Royal Commission); and
·an escalation of risk based on the likelihood of significant media publication identifying the Member.
In order to preserve the confidentiality of the sensitive material in Assistant Commissioner Paterson’s affidavit, we will not identify with any further precision the various threats and Facebook posts referred to in the affidavit, or the details of the ‘walkover’ — save to say that the walkover was believed to have been conducted by two people (one connected with a serious drug trafficker, and the other involved in high-level organised crime).
The submissions of counsel assisting the Royal Commission include possible findings about criminal conduct and professional misconduct relating to various police officers, including the Member. In his affidavit, Assistant Commissioner Paterson deposed:
Submissions or findings that the Member may have engaged in criminal conduct or professional misconduct, in my view escalates the risk to the Member which has already substantially increased through the course of the Commission and has necessitated this application.
In my view, there is an ‘unwritten rule’ by those involved in serious and organised crime that they will not take steps to seek retribution against police members who have investigated their criminal conduct, arrested them and given evidence against them in court as part of their professional responsibilities. However, once there is a suggestion that the police member has acted inappropriately (including allegations of criminal conduct or misconduct), in my view those involved in serious and organised crime may consider that the police member has unfairly targeted them and acted unethically, unprofessionally or criminally such that retribution may be sought against the member. Another more informal way of describing this is that ‘all gloves are off’ at the time a member may be seen to have acted outside their professional scope such that a criminal may consider violent retribution, including murder, to a police member. This is because, at this stage, a police member is no different to another criminal associate that may be harmed or killed for revenge.
Further, the Member has reviewed counsel assisting’s final submissions and has contacted me seeking an increase in his personal safety through the making of a non-publication order and a pseudonym. He has indicated that having investigated serious and organised crime at the state and national level, it is his view that certain individuals involved in serious and organised crime will interpret counsel assisting’s submissions in a way that will create a direct risk of retribution to him and his family. The Member is concerned that these persons will take personal action against himself and his family.
Assistant Commissioner Paterson concluded his affidavit by saying that, in his view, publication of the Member’s name and information that may tend to identify him through final submissions and the Royal Commission’s final report, ‘may lead to a significant and unmanageable risk to the safety of the Member and his family’.
In written submissions made by Victoria Police and the Member to the Royal Commissioner, the basis for the non-publication order sought was said to be found in s 26(2)(a) of the Inquiries Act, being the ‘prejudice or hardship’ that may be caused to the Member, ‘including harm to [his] safety’. Extensive reference was then made in the submissions to Assistant Commissioner Paterson’s affidavit. The submissions concluded:
It is respectfully submitted that the information and evidence before the Commission discloses significant safety risks to the Member and his family.
In these circumstances, the Member and Victoria Police submit that it is appropriate for the Commissioner to exercise her discretion to make the orders sought … in order to protect the Member and his family from harm.
Section 26 of the Inquiries Act 2014
The power of a Royal Commissioner to prohibit or restrict the publication of information relating to a Royal Commission is contained in s 26 of the Inquiries Act. Section 26 relevantly provides:
(1)Subject to subsection (2), a commissioner may make an order prohibiting or restricting the publication of—
(a)any information that may enable the identity of a person who has given, or is to give, information or evidence to the Royal Commission for the purposes of an inquiry to be ascertained; or
(b)any information or evidence given to the Royal Commission for the purposes of an inquiry.
(2)A commissioner may make an order prohibiting or restricting the publication of information or evidence if —
(a)prejudice or hardship might be caused to any person, including harm to their safety or reputation; or
(b)the nature and subject matter of the information is sensitive; or
(c)there is a possibility of any prejudice to legal proceedings; or
(d)the conduct of the proceeding would be more efficient and effective; or
(e)the commissioner otherwise considers the prohibition or restriction appropriate.
Royal Commissioner’s decision and reasons
As we have already noted, the Royal Commissioner refused the non-publication application, saying that she was not presently satisfied that there was a significant risk to the Member’s safety to warrant the order sought; and that she was not prepared to make the order sought based on the material that was then before her.
In her written reasons, the Royal Commissioner made the following observations about the evidence in Assistant Commissioner Paterson’s affidavit:
(1)The people who the Member had relevantly investigated in the past ‘would largely be aware of his identity and his involvement in the relevant investigations’.
(2)So far as the threats made between 2006 and 2009:
[These events] occurred over a decade ago.
Whilst all threats against members must be taken seriously, threats to police investigators are not unexpected, given the nature of law enforcement work and of those they investigate. There is no evidence that these threats place [the Member] at a present or real risk.
(3)The same could be said regarding the Facebook posts.
(4)The claims of an increase or escalation of risk ‘[did] not specify a resulting cogent or present threat to [the Member]’; alternatively, ‘[did] not specify a connected cogent threat to [the Member]’. Moreover, the fact that Victoria Police and the Member did not apply for a pseudonym order when the Member gave evidence before the Royal Commission did not support a claim of an escalation of risk connected to the giving of evidence before the Royal Commission.
(5)In relation to the incident that was ‘believed to be a walkover’:
[T]here is no reference [in the affidavit] to any formal finding to that effect. The nature of the ongoing investigation and the steps involved are not identified. The addresses of [the two people] and their associates are not identified, and it is not known whether they may have had a legitimate reason to have been in the vicinity.
No application was made to the Commission for a pseudonym following that event. This application was brought only when [the Member] became aware of the contentions relating to him in counsel assisting’s submissions.
(6)After dealing with Ms Gobbo’s evidence and a relevant lack of specificity in relation to addresses, the Royal Commissioner dealt with the ‘unwritten rule’ referred to by Assistant Commissioner Paterson as follows:
Mr Paterson expresses his view that, in light of the contentions in counsel assisting’s submissions of impropriety by [the Member], the ‘unwritten rule’ places him in danger from criminals. Mr Paterson provided neither examples nor evidence in support of this claim. Indeed, it is difficult to see why law-breakers would seek to harm police officers who are claimed to have themselves broken the rules.
(7)In respect of one particular criminal about whom Assistant Commissioner Paterson expressed a view, the Royal Commissioner said:
Again, there is no further evidence to support this claim.
Having dealt with the evidence, the Royal Commissioner concluded her reasons in the following terms:
Whilst I appreciate the reputational concerns of [the Member] and other current and former police officers discussed in unfavourable terms in counsel assisting’s submissions, given the nature of this enquiry that is no reason to grant this application. Were I to do so, every current or former police officer against whom counsel assisting urged me to make adverse findings would be encouraged to make similar applications.
Given the High Court’s criticism of the conduct of Victoria Police and Ms Gobbo which led to this inquiry, I have endeavoured to conduct it in public wherever possible in the public interest.
At this stage of the Commission’s work, it is imperative to provide procedural fairness to those potentially affected persons who, if they were unaware of the identity of [the Member] through the use of a pseudonym, may not properly understand and respond to counsel assisting’s submissions.
For these reasons I refused the application.
Chief Commissioner’s grounds for relief
The Chief Commissioner’s case in this Court is that the Royal Commissioner’s decision is affected by jurisdictional error. Six grounds are identified by the Chief Commissioner as follows:
(a)The Royal Commissioner misinterpreted s 26(2)(a) of the Inquiries Act by holding that she could not make an order under s 26(1) unless she was satisfied that there was, at the time of the decision, an extant, significant and proven risk to the Member’s safety. As a result, the Royal Commissioner unlawfully fettered the discretion conferred upon her by s 26(1) and constructively failed to exercise jurisdiction (ground 1).
(b)The Royal Commissioner fundamentally misconstrued the submissions made to her on behalf of the applicant, in that she mischaracterised the submissions as being based, at least in part, on ‘reputational concerns’. In fact, the applicant’s submissions did not assert directly or indirectly that she should make a decision based upon reputational concerns and referred only to the applicant’s concerns for the Member’s physical safety. By failing to properly construe and take into account the applicant’s submissions, the Royal Commissioner constructively failed to exercise the jurisdiction conferred upon her by s 26(1) (ground 2).
(c)The Royal Commissioner failed to comply with the rules of procedural fairness in that she failed to put the applicant on notice that she proposed to reject evidence given by an Assistant Commissioner of Victoria Police, who at the time managed the Intelligence and Support Command, to the effect that there is an ‘unwritten rule’ amongst persons involved in organised crime in Victoria that while law enforcement officers who have acted within the law will not be targeted for retribution, law enforcement officers who are perceived to have acted unlawfully or unethically may be targeted. The applicant could not have anticipated that the Royal Commissioner would reject this evidence in circumstances where, first, there was no contrary evidence before the Royal Commissioner; and, second, the Assistant Commissioner was uniquely qualified to have given evidence on the issue (ground 3).
(d)The Royal Commissioner’s rejection of the Assistant Commissioner’s evidence was legally irrational, in that there was no rationally probative information that supported the Royal Commissioner’s rejection of the evidence (ground 4).
(e)In making the decision, the Royal Commissioner took into account a prohibited consideration, namely that if she made the order sought by the applicant, this would encourage other members of Victoria Police to make similar applications (ground 5).
(f)The Royal Commissioner’s finding that if she granted the applicant’s application, other members of Victoria Police were likely to make similar applications, was legally irrational, in that there was no rationally probative information to support it (ground 6).
Ground 1: did the Royal Commissioner misinterpret s 26(2)(a) of the Inquiries Act?
Section 26(1) of the Inquiries Act permits a royal commissioner to make an order prohibiting or restricting the publication of information that may enable the identity of a person who has given evidence to the Royal Commission. Relevantly, so far as the present application is concerned, sub-s (2) permits an order to be made if:
(a)prejudice or hardship might be caused to any person, including harm to their safety or reputation;
The Chief Commissioner submitted that the word ‘might’ is an ordinary English word that conveys the possibility that something will happen in the future. It was submitted that a thing might happen if the chance of its happening could not be dismissed out of hand. If the Royal Commissioner was satisfied that the publication of evidence or information might cause harm to the Member or his family, a broad discretionary power then arose under s 26(1). The Royal Commissioner was then required to balance the risk identified against any factors that might rationally weigh in favour of publishing the information or evidence.
The Chief Commissioner submitted that the Royal Commissioner misconstrued s 26(2)(a) because, instead of taking the approach referred to above, she dealt with the application on the basis that it could only be granted if she was affirmatively satisfied that, at the time the decision was made, there was a significant, extant and proven risk to the Member’s safety, and that any failure by the applicant to meet this standard obviated the need to engage in the balancing exercise which the Chief Commissioner submitted was required to be undertaken.
In support of his submission that the Royal Commissioner misconstrued s 26(2)(a), the Chief Commissioner noted that the Royal Commissioner’s reasons commenced with the statement that she was ‘not presently satisfied that there [was] a significant risk to the Member’s safety to warrant the order sought’. The structure of the reasons was said to indicate that this statement summarised the Royal Commissioner’s reasoning processes, with further explanation to follow.
The treatment of the walkover in the reasons was submitted to indicate that the Royal Commissioner considered that it was incumbent on the applicant to satisfy her that a serious threat to the Member’s safety had in fact been made by the two people who engaged in the walkover. The Chief Commissioner submitted that the Royal Commissioner’s reference to no formal finding having been made in relation to the incident indicated that she considered that an extant threat would have to be established to her satisfaction before she would consider exercising her discretion. It was submitted that this was reinforced by the Royal Commissioner’s statement that it was not known whether the two individuals in question may have had a legitimate reason to have been within the relevant vicinity. Thus, the Chief Commissioner submitted that the Royal Commissioner, in effect, required the applicant to demonstrate affirmatively that there was an extant threat and to exclude the possibility ‘that apparently threatening/sinister conduct might have an innocent explanation’.
The Attorney-General submitted that on any fair reading of the Royal Commissioner’s reasons, she conducted the required balancing exercise in considering the exercise of her discretion pursuant to s 26 of the Inquiries Act, and that she did not misinterpret the scope of her discretion. The reasons disclose that the Royal Commissioner weighed the information and evidence before her regarding whether harm to the Member’s safety might be caused by the publication of identifying information. In making her decision, the Royal Commissioner took into account the public interest in conducting her inquiry in public whenever possible, and the interests of others, who as a matter of procedural fairness, might not be able to properly respond to counsel assisting’s submissions if the Member was given a pseudonym. Thus, the Royal Commissioner conducted the very balancing exercise the applicant argues she did not.
In relation to the Chief Commissioner’s contention that the Royal Commissioner required there to be an ‘extant, significant and proven risk’ to the Member, the Attorney-General submitted:
(1)The Royal Commissioner did not say that any risk had to be ‘extant’; her reference to a ‘present threat’ in her reasons was, in context, addressing the claimed escalation of risk to the Member following the High Court’s decision in AB v CD. In that respect, the Royal Commissioner was doing no more than observing that the relevant paragraphs in Assistant Commissioner Paterson’s affidavit did not specify any ‘cogent or present threat’ to the Member arising from the publication of the High Court’s decision. That was a matter for the Royal Commissioner to evaluate in the exercise of her discretion.
(2)The Royal Commissioner’s references to a ‘present’ threat should be read in the context that she was weighing the evidence of historical events that occurred from 2006 and following. In that context, it was entirely reasonable for the Royal Commissioner to consider whether there was any extant risk in circumstances where she had to consider whether harm to the Member might be caused as a result of the publication of information that would identify the Member based on current circumstances. Moreover, there is nothing, in any event, in the language of the concept of ‘present risk’ that excludes a current risk of future harm to safety.
(3)The Royal Commissioner’s use of the language of a ‘significant’ risk needs to be understood in the light of the submissions and case advanced to her by the applicant. That case was that there was a significant risk. The Royal Commissioner’s reasons were responsive to that case.
(4)The reference to the Royal Commissioner’s lack of satisfaction that there was a ‘significant risk’ needs to be read in the context of the entire sentence — namely, that there was not a ‘significant risk to the Member’s safety to warrant the order sought’. Thus, on a fair reading of the Royal Commissioner’s reasons, her evaluation of the risk to the Member was considered in relation to the nature and effect of the non-publication orders sought, and in the light of countervailing interests in favour of publication that were identified in the conclusion to her reasons.
In her letter dated 17 July 2020, the Royal Commissioner said that she had considered the matters contained in the submissions and affidavit of Assistant Commissioner Paterson, but was not ‘presently satisfied’ that there was a ‘significant risk’ to the Member’s safety to warrant the order sought. The Chief Commissioner contends that the Royal Commissioner’s reasons for decision should be quashed on the basis of jurisdictional error. He attacks both the use of the term ‘presently’, and the adoption of the adjective ‘significant’.
There is no substance to the challenge to the word ‘presently’. Self-evidently, it is the Royal Commissioner’s state of mind, as to the risk posed to the member, at the time she must make the decision in question, that is determinative. The Chief Commissioner’s use of the term ‘extant’, as a basis for criticism, is wholly misconceived.
As regards the term ‘significant’, there is no proper basis for asserting that the Royal Commissioner applied the wrong legal test when she made her initial decision, or that this error is reflected in her reasons. Plainly, as Senior Counsel for the Chief Commissioner rightly conceded, it is not every risk to safety that falls within the terms of the relevant provision. Any risk must be more than fanciful, and must, in substance, be a real, or realistic risk. Nothing less would be sufficient to justify the extreme step of anonymising the names of alleged wrongdoers who the Royal Commission is enjoined to investigate, and make recommendations about.
Accordingly, the use of the term ‘significant’, when understood in context, does not reflect jurisdictional error on the part of the Royal Commissioner. Indeed, one can readily understand why that adjective was used rather than ‘realistic’ or ‘real’, having regard to the same term having been used in Assistant Commissioner Paterson’s affidavit.
To the extent that the Chief Commissioner submitted that the Royal Commissioner had applied the wrong test by failing to ask whether there ‘might’ be harm caused to the safety of any person, we reject that submission. That submission was premised on the argument that application of s 26(2) involves a two-stage process, by which a discretion to make an order is enlivened only once the terms of one of the paragraphs (here, para (a)) was satisfied. That is not the case. As para (e) makes clear, the discretion is enlivened in any circumstances where the commissioner considers an order to be appropriate. It is plain that, far from deciding that the discretion was not enlivened, the Royal Commissioner considered that it was not appropriate, in the exercise of her discretion, to make the order sought.
Finally in relation to this ground, reference should be made to Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[9] where the High Court made it plain that the reasons for decision given by a tribunal, or administrative decision maker, are
meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[10]
[9](1996) 185 CLR 259.
[10]Ibid 272.
The Chief Commissioner submitted that this statement of principle had to be applied in context, and against the background of the fact that the Royal Commissioner is a retired judge of the Queensland Court of Appeal and, indeed, its former President. Accordingly, so it was submitted, the latitude accorded to ordinary administrative decision makers did not apply with such amplitude to the Royal Commissioner’s stated reasons.
If that submission has any force, and we do not necessarily reject it entirely, it still does not justify overzealous scrutiny, of the kind deprecated by the High Court. It simply means that one can fairly assume that the Royal Commissioner chose her language carefully, and that she set out in her reasons, succinctly, and adequately, why the Chief Commissioner’s submissions were rejected. The Royal Commissioner was not engaged in writing a judgment, of a kind that a court would produce. She was merely informing the applicant why his application had been rejected. She did so in language that was clear, and in conformity with the requirements of the relevant statutory provisions.
Ground 1 must be rejected.
Ground 2: did the Royal Commissioner misconstrue or mischaracterise the applicant’s submissions?
In relation to ground 2, the Chief Commissioner submitted that the Royal Commissioner characterised the application made to her as ‘one based on reputational concerns’. He submitted that she thus addressed a case that was fundamentally different from the case that was actually advanced. The application, he submitted, was based solely on the basis that using the Member’s name in submissions, or the Royal Commission’s final report, would pose a risk to the Member’s safety. The Chief Commissioner noted that nowhere in the application, or in the material in support of the application, did the applicant express any concern or make any submission about the Member’s reputation. The Chief Commissioner submitted that, as a result of her mischaracterisation of the application, the Royal Commissioner constructively failed to exercise the jurisdiction conferred upon her by the Inquiries Act, and thus fell into jurisdictional error.
The Attorney-General submitted that, contrary to the Chief Commissioner’s submissions, on a fair reading of the Royal Commissioner’s reasons she did not mischaracterise the application as one based on reputational concerns. The Attorney-General made the following additional submissions:
(1)It is clear from the reasons that the Royal Commissioner had regard to the information and evidence provided to her by the applicant in considering the nature of the risk to the Member’s safety, and made various observations about the probative value of that information and evidence in conducting a weighing exercise.
(2)The Royal Commissioner did not characterise the application or the submissions made on behalf of the applicant as being ‘based on reputational concerns’. Rather, after having dealt with the evidence relied upon by the applicant in relation to risks to the safety of the Member, the Royal Commissioner observed that reputational concerns of the Member (and other current and former police officers) were not a basis to grant the application for non-publication orders.
(3)The Royal Commissioner’s comments about the ‘reputational concerns’ of the Member and others needed to be considered in the context that s 26(2)(a) states that the commissioner may make non-publication orders if ‘prejudice or hardship might be caused to any person, including harm to their safety or reputation’. Thus, the Royal Commissioner’s comments directly related to the statutory context that governed the exercise of her discretion.
(4)Whether or not any submission was put to the Royal Commissioner about reputational matters, the Royal Commissioner was entitled by the statutory text to have regard to such matters. There could be no complaint in the Royal Commissioner then concluding that, in the circumstances, any reputational concerns were not a sufficient basis for granting the application.
The Chief Commissioner’s submission that the Royal Commissioner mischaracterised the application made to her or the submissions advanced in support of it must be rejected. It is plain from her reasons that the Royal Commissioner considered the evidence about risk to the Member’s safety and the submissions made about that risk in coming to her decision. Having considered the evidence relied upon by the applicant and the basis of the application, the Royal Commissioner turned to the question of reputation and concluded that reputational concerns were not a sufficient basis for granting the application. We see no error in this approach. Indeed, it was not in dispute between the parties that reputational issues were not a sufficient basis to grant the application.
The Royal Commissioner did not fall into jurisdictional error by referring to the issue of reputational concerns. The statutory provision relied upon by the applicant (s 26(2)(a)) directed the Royal Commissioner to the issue of ‘harm to … reputation’. The mere fact that the applicant did not refer explicitly to reputational harm did not make the consideration of it by the Royal Commissioner erroneous.
Ground 2 must be rejected.
Grounds 3 and 4: the failure to accept the ‘unwritten rule’ evidence
In grounds 3 and 4, the Chief Commissioner asserts that the Royal Commissioner failed to comply with the rules of procedural fairness when she failed to put the applicant on notice that she proposed to reject Assistant Commissioner Paterson’s evidence concerning the ‘unwritten rule’. The Chief Commissioner contended that the rejection of that evidence, which he described as ‘unchallenged’, was legally irrational.
The Chief Commissioner submitted that the evidence established that Assistant Commissioner Paterson was eminently qualified and experienced to express his opinion about the existence of the unwritten rule described by him. This evidence was uncontradicted and could not rationally be rejected without at least forewarning the applicant that this might occur.
In response to the Chief Commissioner’s submissions, the Attorney-General contended:
(1)The content of the obligation to provide procedural fairness is referable to the statutory context within which the obligation arises and depends on the facts and circumstances of the particular case. In relation to s 26, the consideration of whether to make an order does not involve an adversarial process, and there is no contradictor. Moreover, the exercise of discretion under the section is not subject to a statutory hearing rule.[11]
(2)It was for the applicant to support his application by such information and material as he thought appropriate.
(3)Procedural fairness did not require a decision maker to disclose what he or she might decide, or to invite comment on his or her mental processes, or to disclose his or her evaluation of a person’s case, so long as the person understood the critical issues or factors upon which the decision was likely to turn.
(4)In determining whether a finding is legally irrational, it is not sufficient to show that reasonable minds might differ in the process of reasoning. In order for the applicant to establish jurisdictional error, he must show that the conclusion reached was one which no rational or logical decision maker could arrive at on the evidence.[12]
(5)In light of the statutory context within which the Royal Commissioner considered whether to exercise her discretion, it was open to her to deal with Assistant Commissioner Paterson’s evidence as she did. There was no express rejection of that evidence. Rather, the Royal Commissioner evaluated or assessed the evidence in the light of the observation that Assistant Commissioner Paterson had not provided any examples or evidence in support of the claimed unwritten rule.
(6)In any event, the applicant has not identified what further material could or would have been provided, if the Royal Commissioner had notified him of her views in relation to Assistant Commissioner Paterson’s evidence about the claimed unwritten rule. Moreover, the Chief Commissioner is not now barred from presenting new or additional information to the Royal Commissioner so as to seek to persuade her to consider afresh whether or not to exercise her discretion to make an order under s 26. Accordingly, no practical injustice has been demonstrated by the applicant.
[11]Cf SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152, 161–4 [27]–[37].
[12]See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131].
In our view, the Attorney-General’s submissions must be accepted. To the extent that the Chief Commissioner submitted that, in the absence of any conflicting or contradictory evidence, the Royal Commissioner was required to accept Assistant Commissioner Paterson’s evidence about the existence of the unwritten rule and to give it weight in the exercise of her discretion, that submission must be rejected. Assistant Commissioner Paterson’s evidence of his ‘view’ about the unwritten rule fell to be evaluated by the Royal Commissioner.
Having regard to the detail given in relation to other aspects of the evidence in Assistant Commissioner Paterson’s affidavit, the Royal Commissioner was entitled to expect that, if examples could be provided, they would have been referred to by Assistant Commissioner Paterson or there would have been some explanation for not providing them in his affidavit.
In oral argument, and in support of his arguments referred to above, the Chief Commissioner placed particular emphasis on a passage in the judgment of Nettle J in AB v CD; EF v CD.[13] Specifically, his Honour said:
I agree with respect with the Court of Appeal that any assessment of the risk to HI and JK involves a degree of conjecture. In this case, however, it is a degree of conjecture that is informed by the unchallenged opinion evidence of very senior and appropriately experienced police officers that the current level of risk to the safety of HI and JK is ‘acute’ and will further increase with publication of EF's name and image upon expiration of current non-publication orders on 1 March 2019. It was contended on behalf of The Age Company Ltd that the police evidence was ‘undermined’ by evidence that, so far, there has been relatively limited interest shown in the matter abroad as measured by reference to the number of overseas computer searches of and in relation to the matter conducted since the revocation of special leave in November 2018. I note, however, that The Age Company Ltd eschewed an opportunity to cross-examine the police deponents and, in any event, as is explained in the police evidence, public interest in the matter is predicted to surge once the identity of EF is publicly disclosed.[14]
[13](2019) 364 ALR 202.
[14]Ibid 206 [17].
There are, however, significant differences between that case and the present case. First, it could scarcely be doubted on the evidence in that case that there was a significant risk to the safety of EF, HI and JK. Secondly, his Honour was dealing with a case where it was open to the relevant contradicting party to cross-examine the relevantly experienced police officers about their opinion evidence. This they did not do. In contrast, in the present case (as the Attorney-General observed), there was no contradictor or any party who might have taken the opportunity to cross-examine Assistant Commissioner Paterson.
In our view there was no want of procedural fairness by the Royal Commissioner. The applicant could not reasonably have expected that the Royal Commissioner would consider herself bound to accept completely the views of Assistant Commissioner Paterson. Those views fell to be evaluated by reference to the strength of the supportive evidence that he was able to give. They then fell to be weighed with the countervailing considerations identified by the Royal Commissioner in order to determine whether an order of the kind sought should be made.
Similarly, we are unpersuaded that the Royal Commissioner’s treatment of Assistant Commissioner Paterson’s evidence, or her failure to accept it completely, was in any sense irrational. To the contrary, we think it was well open for the Royal Commissioner to express doubt about Assistant Commissioner Paterson’s evidence of the unwritten rule, particularly so in the absence of concrete examples or evidence of specific circumstances demonstrating its existence.
In our view, the Royal Commissioner was perfectly entitled to give little or no weight to Assistant Commissioner Paterson’s affidavit insofar as it sought to invoke the ‘unwritten rule’. It was for the applicant to make good the point sought to be advanced. Assistant Commissioner Paterson’s affidavit failed to do so.
In not accepting the existence of an unwritten rule as a sufficient basis for making the order sought by the applicant, the Royal Commissioner was no doubt fully aware of the content of counsel assisting’s submissions regarding the Member and other police officers. While not wishing to disclose anything of a confidential nature in those submissions, we can say, having read them for ourselves, that such allegations as are made against the Member, and more, are made against a significant number of other members of police. Without attempting to add to the Royal Commissioner’s reasons, it might fairly be thought that to the extent that any unwritten rule of the kind described by Assistant Commissioner Paterson exists, its existence would not likely result in the Member, as distinct from others who had some relevant involvement with respect to Ms Gobbo, being individually targeted.
Grounds 3 and 4 must be rejected.
Grounds 5 and 6: the possibility and relevance of other members of Victoria Police making applications under s 26
In grounds 5 and 6, the Chief Commissioner made two principal submissions in relation to the Royal Commissioner’s reference to the likelihood of additional applications by other police officers:
(1)There was no information or evidence to support the Royal Commissioner’s finding that, if she made the order sought by the applicant, other current and former members of Victoria Police would likely make similar applications. The Chief Commissioner submitted that, to the contrary, the only material before the Royal Commissioner that was relevant to this issue (an email from a solicitor acting for Victoria Police which stated that the applicant’s legal representatives had not been instructed to make any further applications of the kind made to the Royal Commissioner) was to the opposite effect.
(2)Section 26 contemplates a discretionary judgment in which factors militating against the publication of a particular item of information or evidence are balanced against factors militating in favour of publishing that item of information or evidence. Whether prohibiting or restricting the publication of one item of information or evidence at the request of one person might cause a different person to seek a similar order with respect to a different item of information or evidence is not a matter relevant to the exercise of the statutory discretion. To consider that issue would be to introduce a wholly extraneous and irrelevant consideration into the statutory exercise. The Royal Commissioner committed jurisdictional error in so doing.
The Attorney-General submitted that there was no substance in the Chief Commissioner’s complaints. Notwithstanding the content of the email relied upon by the Chief Commissioner, the Royal Commissioner was entitled to consider that if she granted the application made to her then a significant number of current and former members of Victoria Police would likely want a similar order made in respect of them. So much would have been apparent to the Royal Commissioner from the content of counsel assisting’s submissions which make potential criticism of a significant number of current and former members of the Victoria Police.
Next, the Attorney-General submitted that the question of whether other applications might be made by other members of Victoria Police was not irrelevant. It was a matter that fell to be weighed in light of the Royal Commissioner’s objective of conducting her inquiry in public wherever possible and providing procedural fairness to those potentially affected people who, if they were unaware of the identity of relevant police officers through the use of pseudonyms, may not properly understand and then be able to respond to counsel assisting’s submissions. Thus, it was submitted that the greater the number of pseudonyms that might be authorised, the less likely relevant individuals might be able to provide responsive submissions to those of counsel assisting.
In our view, there is nothing illogical, or irrational, about the Royal Commissioner’s observation about applications being made by other members. If an order were to be made, especially on the basis of some unwritten rule, described in vague terms, it would not be surprising if there were a spate of additional officers who sought to take advantage of anonymisation pursuant to any such finding. It would be open to the Royal Commissioner to consider that this would be destructive of the work of the Royal Commission.
The anonymisation of the names of alleged wrongdoers would render the recommendations of the Royal Commission far less potent, and would have a severe impact on the rights of those who may have been the victims of Ms Gobbo’s conduct, and the complicity of any police in what might be established as having been a conspiracy to pervert the course of justice. Those people who might be shown to be victims of such conduct would be denied procedural fairness. Moreover, the community as a whole would be disadvantaged through a lack of transparency in relation to what might prove to be one of the greatest scandals of our time in relation to the workings of the criminal justice system.
Grounds 5 and 6 must be rejected.
Conclusion
The applicant’s proceeding will be dismissed.
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