Dowe and Gedeon v Commissioner of the New South Wales Crime Commission

In *Dowe and Gedeon v Commissioner of the New South Wales Crime Commission*, the Claimants sought judicial review of authorities issued by the Commissioner of the New South Wales Crime Commission under the *Law Enforcement (Controlled Operations) Act 1997* (NSW) ("LECO Act"). The dispute concerned the validity of these authorities, which permitted controlled operations involving the supply of cocaine. The Claimants argued that the authorities were invalid on several grounds, including that the conduct authorised was likely to seriously endanger health or safety, and that the definition of "controlled activity" under the LECO Act was not met due to the intersection with Commonwealth law. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the court were: first, the interpretation of the term "controlled activity" within the LECO Act, particularly in light of parallel Commonwealth provisions and the potential unlawfulness of the conduct under Commonwealth law; and second, whether the decision to issue the authorities was irrational or so unreasonable that no reasonable administrator could have reached that conclusion, as prohibited by section 7(1)(b) of the LECO Act. This latter issue involved determining whether the "conduct" referred to in section 7(1)(b) should be narrowly interpreted and whether the authorised conduct was objectively likely to seriously endanger health or safety.

The Court of Appeal, in dismissing the appeals, reasoned that the definition of "controlled activity" under the LECO Act referred to an activity that would be unlawful but for section 16 of that Act, which grants immunity for authorised operations. The court held that this definition did not require the conduct to be lawful under Commonwealth law, nor did it necessitate a Commonwealth certificate under section 15M of the *Crimes Act 1914* (Cth) for the LECO Act authorities to be valid. Regarding the unreasonableness ground, the court affirmed that a high threshold must be met for such a challenge. The court analysed section 7(1)(b) and determined that the assessment of whether conduct is "likely to seriously endanger health or safety" requires an objective evaluation of the causative character of the authorised conduct, considering whether the sale and supply of cocaine, in themselves, were likely to produce the stated harmful consequence, applying tests such as the natural consequence or reasonable foresight of consequence.

Leave to appeal was granted, but the appeals were ultimately dismissed. The Claimants were ordered to pay the Respondents' costs of each proceeding.