Kheir v Secretary to the Department of Justice and Regulation

The case of Kheir v Secretary to the Department of Justice and Regulation involved the applicant, Kheir, appealing against a decision made by a delegate of the Secretary to the Department of Justice and Regulation, which upheld a decision by the Commissioner for Corrections (Victoria). The central dispute was whether the riots at the Metropolitan Remand Centre on 30 June and 1 July 2015 constituted an 'emergency' within the meaning of the Corrections Act 1986 (Vic), and whether the Commissioner for Corrections acted within his powers in declaring such an emergency. Additionally, Kheir argued that the Commissioner failed to consider certain principles, acted beyond the statutory mandate, showed ostensible bias, and did not provide reasons for his decision.

The legal issues before the court involved the interpretation of the term 'emergency' under the Corrections Act 1986 (Vic), the scope of the Commissioner's powers in declaring an emergency, and the procedural fairness owed to the applicant. Specifically, the court had to determine whether the Commissioner's declaration of an emergency was lawful and if the Commissioner considered all relevant factors as required by law. Furthermore, the court examined whether the Commissioner's actions exhibited ostensible bias and if the failure to provide reasons was justifiable.

The court found that the Commissioner for Corrections did not act within his powers when he declared an emergency due to the riots. The court held that the Commissioner's actions demonstrated ostensible bias and that he failed to consider principles beyond what was permitted by statute. Additionally, the Commissioner did not provide adequate reasons for his decision, which was a breach of procedural fairness. Consequently, the appeal was allowed, and the matter was remitted to the delegate of the Secretary of the Department of Justice and Regulation for reconsideration.

In summary, the court's decision mandated a fresh consideration of the emergency declaration by the appropriate delegate, ensuring compliance with statutory requirements and procedural fairness principles. The court's ruling emphasised the importance of adhering to legal mandates and providing adequate reasons for administrative decisions.