Nikolic v Chief Commissioner of Police
[2016] VSC 143
•8 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00194
| DANIEL MARIO NIKOLIC | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1-2, 16 March 2016 |
DATE OF RULING: | 8 April 2016 |
CASE MAY BE CITED AS: | Nikolic v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2016] VSC 143 |
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JUDICIAL REVIEW – Racing – Jockey – Exclusion Order made by Chief Commissioner’s delegate – Protected information relied on – Method of hearing and determining review – Natural justice – Open justice – Public interest – Protecting confidential information – Right to a fair hearing – Hearing with confidential affidavits or a closed hearing with a right to make submissions – Racing Act 1958 ss 33, 35E, 35F – Administrative Law Act 1978 s 3 – Charter of Human Rights and Responsibilities Act 2006 s 24 – Police Integrity Act 2008 ss 106, 107
DISCOVERY – Application for particular discovery – Whether reason to believe that some documents existed – Supreme Court (General Civil Procedure) Rules 2015 O 29.08
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Merkel QC and Mr A Boe | Levitt Robinson |
| For the Defendant | Mr R M Niall QC Solicitor-General for the State of Victoria and Ms R J Sharp | Victorian Government Solicitor |
HIS HONOUR:
Mr Daniel Nikolic commenced working as a jockey when he was 15 years old. He is now aged 41.
On 12 November 2015, Mr Shane Patton, a Deputy Commissioner of the Victoria Police as delegate of the Chief Commissioner, signed a Racing Exclusion Order in respect of Mr Nikolic. In the Exclusion Order, Deputy Commissioner Patton stated that he had determined that it was necessary in the public interest to make an order under s 33(1)(b) of the Racing Act 1958 (‘the Racing Act’) prohibiting Mr Nikolic from entering, or remaining at specified racecourses for the duration of a race meeting.
Mr Nikolic seeks to review the making of the Exclusion Order. The issue in this interlocutory judgment is how that review will be conducted and whether Mr Nikolic’s legal representatives will have access to ‘protected information’ on which the Deputy Commissioner relied. Mr Nikolic also seeks discovery of documents relating to communications between Victoria Police and Racing Victoria.
I have decided that the review should be heard and determined, at least when ‘protected information’ is being discussed, in closed court with both parties having the right to make submissions. To that end, I have decided that senior counsel for Mr Nikolic should be given access to the protected information, or confidential information (I use these terms on occasions interchangeably), on the conditions that I describe in this judgment. I dismiss Mr Nikolic’s application for discovery.
I have made this decision in the exercise of a discretion given by the Racing Act. It is important to state that because my decision involves the exercise of a discretion it is limited to the particular circumstances of this case.
An Exclusion Order cannot be made in respect of a person who holds a bookmaking licence or an occupational racing licence.[1] Between September 2012 and September 2015, Mr Nikolic was prohibited from competing as a professional horseracing jockey as a result of disciplinary findings. On 4 May 2015, Mr Nikolic applied to Racing Victoria for a jockey licence. On 1 September 2015, Mr Nikolic was served with a Racing Exclusion Order made by the Chief Commissioner of Police dated 24 August 2015. He commenced proceedings in this Court for review of that first Exclusion Order. On 22 September 2015, Racing Victoria rejected his application for a jockey licence. He has sought a review of that decision by the Victorian Civil and Administrative Tribunal ('VCAT'). On 6 October 2015, the first Exclusion Order was revoked.
[1]Racing Act 1958 (Vic) ss 33(2) and 83P.
Before the second Exclusion Order of 12 November 2015 was made, by letter dated 19 October 2015, Deputy Commissioner Patton sent Mr Nikolic Notice of Intention to make a Racing Exclusion Order and stated that he was considering making such an order under s 33(1) of the Racing Act. He stated that he had ‘considered other credible, protected information, which, for reasons of public interest, I cannot disclose to you’. The letter stated that Mr Nikolic could make submissions in relation to the decision.
After correspondence from Mr Nikolic's solicitor, and requests for documents, the defendant’s solicitor, by letter to Mr Nikolic's solicitor of 30 October 2015, released to Mr Nikolic all of the contents of the documents 'which it would not be in the public interest to withhold'. The documents ran into many pages some of which were redacted or edited. Mr Nikolic was not given access to documents said to contain 'protected information' within the meaning of s 35E of the Racing Act.
Mr Nikolic then made written submissions about the proposed Exclusion Order.
As previously stated, on 12 November 2015, Deputy Commissioner Patton signed the second Racing Exclusion Order.
On 23 December 2015, following a request from Mr Nikolic's solicitors, Deputy Commissioner Patton through his solicitors, forwarded a statement of reasons which included the criminal and disciplinary history of Mr Nikolic. Deputy Commissioner Patton placed ‘significant weight’ on ‘other relevant, credible and significant information concerning’ Mr Nikolic that fell within the definition of ‘protected information’ in forming the view to exclude him. He stated that it was necessary to do so due to the risk he posed to the integrity of the Victorian racing industry, the safety of racing industry participants and the general public who attend Victorian racing meetings. Deputy Commissioner Patton stated in his reasons that he did not have any contact with Racing Victoria in the course of considering whether to make the Exclusion Order.
On 22 January 2016, the Court granted Mr Nikolic an order under the Administrative Law Act 1978, requiring the Chief Commissioner of Police to show cause why the Exclusion Order should not be reviewed by the Court on the grounds that:
(a)The Chief Commissioner of Police failed to observe the rules of natural justice in making the decision in that:
(i)he did not inform the Plaintiff of the substance of what was said against him in the material described as ‘other credible protected information’, which was considered by the Defendant in making the decision, when giving the Plaintiff notice of his intention to make the Racing Exclusion Order;
(ii)in so doing, the Defendant did not give the Plaintiff the opportunity to hear or become aware of the ‘protected information’; and
(iii)the Defendant did not give the Plaintiff the opportunity to respond to, rebut and/ or make submissions in relation to such information.
(b)The Defendant failed to observe the rules of natural justice in making the decision in that:
(i)he did not inform the Plaintiff that the Plaintiff's present appreciation of, or ability to control his behaviour toward others, was being considered by the Defendant in making the decision, when giving the Plaintiff notice of his intention to make a Racing Exclusion Order;
(ii)in so doing, the Defendant did not give the Plaintiff the opportunity to respond to, rebut and / or make submissions in relation to that matter.
(c)The Defendant failed to observe the rules of natural justice in making the decision in that:
(i) he did not inform the Plaintiff that the impact of the decision upon the Plaintiff was being considered by the Defendant in making the decision, when giving the Plaintiff notice of his intention to make a Racing Exclusion Order; and
(ii)in so doing, the Defendant did not give the Plaintiff the opportunity to address and /or make submissions in relation to that matter.
(d) The decision is ultra vires in that:
(i)the Chief Commissioner of Police was nominated by . the legislature to exercise the power to make the decision;
(ii)the Chief Commissioner may, under s 19(1) of the Victoria Police Act 2013, delegate any of his statutory functions, upon making a written instrument to that effect;
(iii)no written instrument of delegation of the power to make the decision to the Defendant was made;
(iv)the power conferred by s 33 of the Racing Act 1958 ('the Act') to make the decision ('the power') arises in circumstances where its exercise is necessary to protect the Victorian racing industry from serious, organised criminal activity;
(v)the power does not arise in circumstances where the conduct of the individual concerned, falling short of serious, organised criminal activity, can be, is being and / or has been, dealt with within the disciplinary and licensing frameworks established under the Act; and
(vi)the Defendant made the decision in circumstances where the Plaintiff is not and was not involved in serious, organised, criminal activity; and his conduct can be, is being and / or has been, dealt with within the disciplinary and licensing frameworks established under the Act.
(e)In the circumstances set out immediately above, the decision involved an error of law on the face of the record.
(f)The decision was made for an improper purpose in that:
(i)the purpose of the power is to protect the Victorian racing industry from serious, organised, criminal activity;
(ii)the Defendant did not make the decision for the purpose for which the power was conferred; and
(iii)the Defendant made the decision for the purpose of circumventing the disciplinary and licensing frameworks established under the Act.
(g)Alternatively, the decision involved an error of law on the face of the record in that in making the decision, the Defendant took an unduly narrow view of the 'public interest' as not including the impact upon the Plaintiff of the decision.
Mr Nikolic sought a declaration that the decision to make the Exclusion Order was invalid or should be quashed.
The Chief Commissioner’s Summons
I will deal first with the Chief Commissioner's summons with which most of the Court hearing was concerned.
On 29 February 2016, the Chief Commissioner sought by summons orders that:
Conduct of Hearing of Summons
1.At the hearing of this summons, the Defendant has leave to file in Court the confidential affidavit of Superintendent Brigham a member of Victoria police sworn 22 February 2016 (the confidential affidavit);
(a)the Defendant be permitted to rely on the confidential affidavit for the purpose of seeking orders under s 35E(2)(a) of the Racing Act1958; and
(b)the confidential affidavit is not to be disclosed to the plaintiff or any representative of the plaintiff.
2.Pursuant to s 35E(2)(a) of the Racing Act 1958, at the hearing of the Plaintiff's application for review:
(a) The Court hear and determine the application in accordance with s 35E(2)(a) of the Racing Act 1958;
(b)The Defendant be permitted to rely on a confidential affidavit or affidavits of Superintendent Brigham a member of Victoria police; (the 'confidential affidavit'); and
(c)The confidential affidavit is not to be disclosed to the Plaintiff or any representatives of the Plaintiff.
The legislation
Sections 33, 35E and 35F of the Racing Act provide:
33 Exclusion Orders by Chief Commissioner of Police
(1)The Chief Commissioner of Police may, if he or she considers it necessary in the public interest, by written order given to a person, prohibit the person from entering, or remaining at—
(a) a specified race-course; or
(b) two or more specified race-courses—
for the duration of a race-meeting at the race course.
(2)Nothing in this section empowers the Chief Commissioner of Police to make an exclusion order in respect of a person who holds a bookmaking licence or an occupational racing licence within the meaning of Part IIIC.
35E Procedure on application for review
(1)This section applies if an application is made to a court for review of a decision by the Chief Commissioner under section 33 to make an exclusion order.
(2)If the Chief Commissioner objects to the disclosure or production of protected information at the hearing of the application for review, the Chief Commissioner may apply before the hearing to the court to hear and determine the application for review—
(a)at a hearing at which evidence given by a police officer is given on the basis of a confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or
(b)at a hearing held in closed court in which the Chief Commissioner and each party to the proceeding has a right to make submissions; or
(c)at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or
(d)by any combination of the methods set out in paragraphs (a), (b) and (c).
(3)If the court is satisfied that it is not in the public interest to hear and determine the application for review by the method elected by the Chief Commissioner, the court may hear and determine the application by any other method set out in subsection (2).
(4)In deciding which method to hear and determine the application for review, the court must take into account—
(a)the public interest in protecting the confidentiality of police investigative techniques and protected information in the possession of the police; and
(b)the extent to which the method of hearing and determining the matter may disclose any intelligence information, or document or thing the disclosure of which—
(i)reveals the identity of the police officer who provided information on the basis of which the exclusion order was made or puts that police officer's safety at risk; or
(ii)reveals the identity of a person who has provided a police officer with information on the basis of which the exclusion order was made, or puts that person's safety at risk; or
(iii)reveals the identity of a person whose name appears in any evidence given or information provided to a police officer relating to an investigation, or puts that person's safety at risk; or
(iv)reveals the identity of a person who is or has been the subject of an investigation by a police officer, or puts that person's safety at risk; or
(v)places at risk an ongoing investigation by a police officer; or
(vi)risks the disclosure of any investigative method used by police officers; or
(vii) is otherwise not in the public interest.
(5)If the court decides to hear and determine the application for review by the method set out in subsection (2)(a), the court may require the police officer to provide the court with any further confidential affidavits the court requires to determine the application.
(6)In this section protected information means any intelligence information, document or thing the production or inspection of which—
(a)is likely to reveal any matter referred to in subsection (4)(b)(i) to (iv); or
(b)is likely to place at risk an ongoing investigation by a police officer; or
(c)is likely to risk the disclosure of any investigative method used by police officers; or
(d)is otherwise not in the public interest.
35F Appointment of Special Counsel
(1)If a court decides to hear and determine an application for review at a hearing referred to in section 35E(2)(c), the court may appoint a special counsel to represent the interests of a party to the proceeding at the hearing.
(2)A special counsel must be a barrister within the meaning of the Legal Profession Uniform Law (Victoria) who, in the opinion of the court, has the appropriate skills and ability to represent the interests of the party at the hearing.
(3)At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application, the special counsel may communicate with the party whose interests he or she is representing, or any representative of that party, for the purpose of obtaining information from the party or representative in relation to the proceeding.
(4)At any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application, the special counsel—
(a)must not take instructions from the party whose interests he or she is representing, or from any representative of that party; and
(b)may communicate to that party or a representative of that party any order made by the court at or in relation to the hearing; and
(c)must not communicate any other information in relation to the hearing to that party or a representative of that party without leave of the court.
The legislative history
An issue in this interlocutory hearing is the extent to which the relevant sections of the Racing Act are intended to abrogate the principles of natural justice concerning a fair hearing and the right of persons to know the contents of material that may be adverse to their interests. The Court can consider extrinsic materials to discover the purpose or object of a statute. Those extrinsic materials include the second reading speech and the explanatory memorandum to the Bill.[2]
[2]Interpretation of Legislation Act 1984 (Vic) s 35; D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) 99; in K-Generation Pty Limited v Liquor Licensing Court French CJ referred to the Second Reading Speech to identify the purpose of s 28A of the Liquor Licensing Act 1997 (SA), (2009) 237 CLR 501, 523-4.
The procedure for reviews created by sections 35E and 35F in the Racing Act was inserted by the Major Crime Legislation Amendment Act 2009, which also inserted similar provisions into the Casino Control Act 1991.
In the second reading speech to the Major Crime Legislation Amendment Bill 2008, the Attorney-General said:
[T]he bill fulfils the government’s community safety election commitment to implement safeguards against the potential disclosure of sensitive police intelligence arising from challenges to exclusion orders banning crime figures from racecourses and the Melbourne casino.
Amendments to the Casino Control Act 1991 and the Racing Act 1958 will provide a means by which such challenges can be heard and determined by the courts in a fair manner that also provides protection for sensitive police intelligence…
[T]he bill amends both the Casino Control Act 1991 and the Racing Act 1958 to establish a process that the court can apply where a person challenges an order made by the chief commissioner excluding that person from attending or remaining at the casino or a racecourse. The process is designed to protect the highly sensitive intelligence upon which the chief commissioner bases his or her decision to make an exclusion order and is similar to the process that is also included in the bill for the hearing of an application for the revocation of a coercive powers order. While the bill does not preclude an excluded person from seeking judicial review of the chief commissioner’s decision, it does afford a suitable level of protection for the intelligence upon which the exclusion order was made by enabling such proceedings to be conducted by way of confidential affidavit, in a closed court, or at a hearing in the absence of one or more of the parties. The court will also have the power to appoint a special counsel to represent the interests of an absent party.[3]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2008, 4566, 4568 ( Mr R Hulls).
The Explanatory Memorandum to the Major Crime Legislation Amendment Bill 2008 stated that:
The four forms of hearing [in s 35E(2)] are similar to the forms of hearing available under section 107 of the Police Integrity Act 2008 in relation to the hearing of an objection to the disclosure of protected information under a subpoena in criminal proceedings. The provisions are also very similar to the procedures set out in clause 4 of the Bill in respect of applications for the revocation of a coercive powers order…[4]
[4]Explanatory Memorandum, Major Crime Legislation Amendment Bill 2008, 17.
It is of assistance in understanding s 35E to consider the operation of s 107 of the Police Integrity Act 2008 on which s 35E was based. Section 107 dealt with the production and inspection of protected documents and things in criminal proceedings. That section applied if a subpoena was issued for a protected person to produce a document or other thing and the protected person objected to producing it on the basis that it was protected.
The four forms of hearing listed in s 107, which are the same as those listed in s 35E(2) of the Racing Act, therefore related to hearing the objection application, rather than the substantive criminal proceeding. Subject to ·any other relevant rules or legislation, the substantive criminal proceeding would still continue in open court.
Section 106 of the Police Integrity Act provided that protected persons could not be compelled to produce any document or other thing in a non-criminal proceeding, if the Director had given a certificate. Therefore, protected documents or things could be excluded from civil proceedings without a hearing.
Finally, ss 107(6) and (7) provided that, unless there were exceptional circumstances, the court must refuse to require the production or allow the inspection of the subpoenaed document or other thing if the court determined it was a 'protected document or other thing'. Neither the Racing Act nor the Casino Control Act 1991 contain similar provisions.
Sections 35E and 35F of the Racing Act, and the equivalent provisions in the Casino Control Act 1991, deal with the review of Exclusion Orders. This Court has both common law and statutory jurisdiction to hear and determine such reviews.
These proceedings are quite different from applications that follow objections to the production of documents in a criminal proceeding. The Police Integrity Act 2008 regime is more akin to the determination of public interest immunity claims, where confidential documents are excluded from the substantive proceeding entirely. Section 35E of the Racing Act creates a quite different procedure for the review of Exclusion Orders and provides the Court with a discretion to choose different methods of hearing and determining the review. The Racing Act regime may enable the Court to rely on the protected documents in the proceeding without the applicant receiving them or knowing what they say. One method available to the Court to hear and determine a review sought by a person who is the subject of an Exclusion Order is a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties.[5] The Court, however, has a discretion to appoint a Special Counsel in those circumstances. Other methods of hearing and determining the review are by confidential affidavits or in closed court with the right of the parties to make submissions. The documents that contain protected information may be at the heart of, and critical to, the determination of the proceeding or be the basis on which the Exclusion Order was made.
[5]Racing Act 1958 (Vic) s 35E(2)(c).
The Charter of Human Rights and Responsibilities
Another aid to the interpretation of the review sections of the Racing Act is the statement of compatibility made under the Charter of Human Rights and Responsibilities Act 2006 (the Charter) in respect of the Major Crimes Legislation Amendment Bill. The Charter states that a person who is a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.[6] Neither party chose to address the significance of that right to the Chief Commissioner's application. The statement of compatibility prepared under s 28 of the Charter in respect of the Bill,[7] after setting out the right to fair hearing contained in s 24 of the Charter, stated that:
[6]Charter of Human Rights and Responsibilities Act 2006 s 24(1).
[7]Major Crimes Legislation Amendment Bill 2008.
Right to a fair hearing
…
Persons named in, or affected by, coercive powers orders or exclusion orders, and seeking the revocation by the Supreme Court of such orders, are potentially parties to civil proceedings. Consequently, clauses 4, 14 and 15 engage the right to a fair hearing in section 24 of the charter.
…However, any limit imposed by clauses 4, 14 and 15[8] of the bill are reasonable and justifiable in a free and democratic society for the purposes of section 7(2) of the charter having regard to the following factors:
[8]Clause 4 provided for the procedure for the hearing by the Supreme Court of applications for the revocation of coercive powers orders. Clauses 14 and 15 provided for the procedure for the review by the Supreme Court of decisions by the Chief Commissioner to make exclusion orders under the Casino Control Act 1991 and the Racing Act 1958.
The nature of the right being limited
The right to present a case is an important element of the principle of equality of arms recognised in section 24 of the charter. However, as with all of the human rights protected in the charter, the rights in section 24 may be subject to reasonable limits.
The importance of the purpose of the limitation
In determining which procedure should be followed in relation to the hearing of an application for revocation, the court must take into account the public interest in protecting the confidentiality of the intelligence information provided to the court for the purposes of obtaining a coercive powers order or obtained or to be obtained under the coercive powers order (and if the court is satisfied that it is not in the public interest to determine the matter in the method elected by the chief commissioner, the court may determine the matter using one of the other methods provided). Thus, the court would only determine the application without notice to and without the presence of certain parties if it was in the public interest to do so. Thus, the limitation serves the important purpose of protecting the confidentiality of intelligence information where it is in the public interest to do so.
The nature and extent of the limitation
The limitation will potentially operate to prevent parties from presenting their case to the court, in order to protect the confidentiality of intelligence information. Courts have been prepared to allow limits on the disclosure of material where necessary to protect the public interest. The concept of a 'fair' hearing takes into account not only the accused's interest, but also those of the victim and society. Additionally, the interests of parties seeking the revocation of orders will be protected by the appointment of a special counsel to represent the interests of a party to the proceeding at the hearing, where the court decides to proceed by way of a hearing held without notice to and without the presence of a party, which provides an additional safeguard.
The relationship between the limitation and its purpose
The limitation is directly and rationally connected to its purpose of protecting the confidentially of intelligence information.
Any less restrictive means reasonably available to achieve its purpose
There are no less restrictive means to reasonably achieve the purpose of protecting confidential intelligence information.[9]
[9]Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2008, 4564-66 ( Mr R Hulls).
Neither party made submissions about the significance of the Charter in the present case. Perhaps that was because the statement of compatibility describes the balance struck between the public interest in protecting highly sensitive information on which the Exclusion Order may have been based and the rights of the person against whom the Exclusion Order was made. In the recent the High Court decision of “R” v Independent Broad-Based Anti-Corruption Commissioner[10], Gageler J considered a similar situation where a Charter right, in that case the right of a person charged with a criminal offence ‘not to be compelled to testify against himself or herself or to confess guilt’ was not explored in argument, but the statement of compatibility explained the balance struck by the legislation. His Honour stated:
…Questions of legislative compliance with a human right are, of course, concerned with the substantive operation of the applicable legislation as distinct from being focused merely on the form or manner of expression of that legislation. And a human right is not absolute; it is subject to such reasonable limits imposed by law as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Nor was any attention given in argument to how the detailed statement of compatibility, laid before the Houses of the Victorian Parliament in respect of the Bill for the IBAC Act as required by the Charter of Human Rights and Responsibilities Act, might bear on the construction of the IBAC Act in light of the common law principle ... The statement of compatibility explained the balance struck in the IBAC Act to be compatible with that human right in part by reference to the express abrogation of the privilege against ·self incrimination having the purpose "to assist the IBAC in its function as a truth seeking body that is able to undertake full and proper investigations", and in part by reference to the inclusion of the provision conferring direct use immunity operating to prevent self-incriminating answers obtained in an examination from becoming evidence in a prosecution for the offence under investigation.
[10](2016) 90 ALJR 433, 444 [71]-[72].
Mr Nikolic’s affidavit
Mr Nikolic detailed the events leading up to the making of the second Exclusion Order. He said that he had no knowledge that Deputy Commissioner Patton might issue an Exclusion Order against him on the basis that, in his view, he had limited appreciation of, or ability to control, his behaviour towards others. He said that at no time was he provided with any information about the 'protected information' which 'Mr Patton has chosen not to disclose to me'. He also stated that:
Until I read the Statement of Reasons, I was never even made aware of the notion that the protected information goes towards proving my lack of integrity, criminal associations or poor character. I have not had the opportunity to respond to any such allegations.
He stated that he has no readily apparent means of making income and has substantially relied upon his savings since he was most recently disqualified. The making of the Exclusion Order greatly affects his capacity 'to derive a source of livelihood'.
Mr Nikolic’s submissions
Mr Nikolic submitted that the hearing of his review should be conducted by the method permitted under s 35E(2)(b) and that the review should:
proceed in open court to the extent the hearing does not disclose information determined by the court to be protected information;
otherwise proceed in closed court in the absence of the plaintiff but in the presence of his legal representatives who are to be provided with a confidential affidavit filed by the defendant and the protected information.
Mr Nikolic’s legal representatives, being senior and junior counsel and an instructing solicitor, stated that they would undertake to the Court that, until further order, from the time they commence to attend the hearing in closed court or from when they obtain the confidential affidavit filed by the defendant and the protected information, whichever occurs first, they will not without the prior leave of the Court:
(a) communicate to the plaintiff the protected information or any other matter that has arisen in the closed hearing;
(b) take instructions from the plaintiff in relation to any of the protected information or any matter that has arisen in the closed hearing;
(c) communicate to any person who was not in attendance at the closed hearing any information in relation to the closed hearing or the evidence given at it; or
(d) represent or act for the plaintiff in any matter except the present application or in any appeal relating to that application.
The plaintiff submitted that the confidential affidavit method of hearing elected by the defendant, was not in the public interest. It would permit a review hearing in which the plaintiff's complaint of a denial of procedural fairness by Deputy Commissioner Patton would be determined by a court using a method which would also deny him procedural fairness.
Mr Nikolic submitted that the initial step that the Court should take was to determine whether the information that the defendant had not disclosed was 'protected information'. To decide that issue the Court needed to consider the confidential affidavits and the information claimed to be ‘protected’. Information that revealed the identity of a person of the categories described in s 35E(4)(i) to (v), could be redacted from 'the protected information' before it was provided to the plaintiff's lawyers.
Mr Nikolic also submitted that to the extent that the information was not 'protected' and was relevant, he must succeed in the review, because the defendant had not disclosed adverse information to him under the misconception that it was 'protected'.
If the information was 'protected', he still contended that the gist of it should have been disclosed to him and the failure to do so was a breach of natural justice.[11]
[11]The plaintiff relied on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88.
If the information in the confidential documents was 'protected', the Court should decide whether the method of hearing sought by the Chief Commissioner was, 'not in the public interest' and if so, whether Mr Nikolic's proposed alternative method of hearing and determining the application for review should be preferred.
Mr Nikolic submitted that it was not in the public interest that the review be determined without the court receiving the benefit of submissions from both parties' legal representatives, after they had had access to all the relevant documents.
The relevant grounds of Mr Nikolic’s review for the purposes of this interlocutory decision are firstly, that the Chief Commissioner did not inform him of the substance or gist of what was said against him in material described as ‘other credible protected information’ (Ground 2(a)), and secondly, that he was denied natural justice (Ground 2(b) and 2(c)). Thirdly, Mr Nikolic pointed to Ground 2(f), which alleges that the Chief Commissioner made the decision for the purposes of circumventing the disciplinary and licensing framework established under the Racing Act.
Mr Nikolic did not suggest that he should have been provided with all the documents that contained 'protected information', but that the defendant's delegate should have informed him of the substance or gist of their contents. Whether that could have occurred is to be determined at the final hearing.
But, Mr Nikolic contended that to be able to exercise his right to review the making of the Exclusion Order in this proceeding, his counsel should be given access to all the documents which the defendant says contain protected information.
Mr Nikolic submitted that this method of conducting the review accommodated the accepted public interest in the non-disclosure of confidential material, but also took account of the public interest in him having access to evidence that is material to his case.
He contended that the public interest immunity cases relied on by the defendant were not relevant as ss 35E and 35F are a code in respect of the use of 'protected information' and are intended to displace the law of public interest immunity.
Mr Nikolic relied on the principle that a person has a right to a fair hearing, including the right of access to material relied on by the other side and which is provided to the Court. In support of his right to a fair hearing, he referred to two recent English decisions: Al Rawi v Security Service (‘Al Rawi’)[12] and Bank Mellat v Her Majesty’s Treasury (No 2) (‘Bank Mellat’).[13] Those cases principally concerned closed hearings or private hearings. For instance, in the Bank Mellat case, Lord Neuberger stated:
Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to a fundamental principle and a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party (the excluded party) knowing, or being able to test the contents of all the evidence of those arguments, the closed material, or even being able to see all the reasons why the court reached its decision.[14]
[12][2012] 1 AC 531.
[13][2014] AC 700.
[14][2014] AC 700, 730 [3] (with whom Lady Hale, Lord Clarke, Lord Sumption and Lord Carnwath agreed).
In Al Rawi, Lord Dyson stated:
The common law right to be confronted by one's accusers (an essential element of a fair trial) could not be abrogated by the courts. Any such abrogation was a matter for Parliament.[15]
[15][2012] 1 AC 531, 546 [31].
However, Mr Nikolic's case is brought under the statutory scheme contained in the Racing Act, by which Parliament has given the Court a discretion as to the method of hearing and determining the review, including at a hearing where evidence is given on the basis of confidential affidavits that are not disclosed to the other party or in a closed court where both parties are invited to make submissions.
The Chief Commissioner’s affidavits
The Chief Commissioner relied on five affidavits, four of them by Superintendent Brigham. Two of his affidavits were served on the plaintiff, the other two were treated as confidential affidavits.
The fifth affidavit relied on by the Chief Commissioner was sworn by Deputy Commissioner Patton, who made the Exclusion Order, and it was served on the plaintiff. Deputy Commissioner Patton has been a member of Victoria Police for over 38 years. The protected information that he referred to in his reasons of 23 December 2015 was contained primarily within folder 2-2A, which was a confidential exhibit to an affidavit by Superintendent Brigham. Deputy Commissioner Patton stated that disclosure of the protected information would reveal the identity and names of police officers and other persons who provided information on which he based his decision to make the Exclusion Order.
Folder 1-1A was also a confidential exhibit to a confidential affidavit of Superintendent Brigham. Deputy Commissioner Patton stated that it included confidential material relating to ongoing criminal investigations of very serious crimes. Many of the documents contained in this folder were provided to Mr Nikolic in a redacted form.[16]
[16]The redacted information was contained in documents in Folder 1-1A.
Deputy Commissioner Patton stated that the release of the protected information relating to current investigations would place their success at risk, as it would reveal investigation methods and the state and manner of inquiries. The timing, manner and content of the disclosure of information obtained during an investigation is a crucial aspect of the investigation process. Disclosure or premature disclosure places those investigations at risk. He supported Superintendent Brigham’s opinions to which I next refer.
Superintendent Brigham is a police officer of 34 years standing and has made approximately 30 claims for public interest immunity on behalf of the Chief Commissioner and Victoria Police. He is the divisional manager of the State Intelligence Division, Intelligence and Covert Support Command, of Victoria Police. He is responsible for the State Intelligence Division work areas of the Security and Organised Crime Intelligence Unit, Information Collection and Liaison Unit and the Witness Protection Unit.
In his first open affidavit, Superintendent Brigham described the risks associated with the exposure and disclosure of intelligence and information which included the potential for the identification of the source of information, even if it did not specifically reveal their identities. The release of the protected information might adversely affect the health, safety, and wellbeing of sources of information, the ongoing supply of information from those sources, the ability of Victoria Police to develop and maintain ‘human source capability’, the confidence of the public in confidentially providing information to Victoria Police and its competence in managing the collection of intelligence. There was also the potential for disclosure of the existence, currency, techniques and methods of an investigation. Public confidence in the ability of Victoria Police to collect and manage intelligence might be eroded. The outcome of ongoing investigations might be jeopardised by putting suspects on notice of their status and the extent and nature of police holdings in relation to particular subject matter. The extent and nature of police activities might be revealed and this might lead to the destruction of evidence, increase the flight risk of offenders, lead to offenders altering their modus operandi and might also disclose investigation techniques and have adverse impacts.
Superintendent Brigham considered that the disclosure of intelligence held by Victoria Police was not in the public interest as it would undermine community confidence in Victoria Police's ability to undertake investigations and enforcement in crime prevention activities. It would undermine efforts to encourage the community to provide information to assist in law enforcement and crime prevention activity, undermine Victoria Police's ability to maintain the confidentiality of sources of information and interfere with the administration of justice.
The Chief Commissioner’s submissions
The Chief Commissioner submitted that the impact on the plaintiff of not having access to the confidential documents had been exaggerated. Mr Nikolic's liberty was not seriously affected as, at most, he had loss the right to enter particular racecourses.
Sections 35E and 35F of the Racing Act embody the public interest in protecting the confidentiality of police investigative techniques and protected information that is in the possession of the police. Significantly, the mandatory considerations that s35E(4) requires to be taken into account do not include the interest of the plaintiff in being able to review the Exclusion Order.
The plaintiff's legal advisers did not need access to the confidential documents to present submissions about the grounds of review. They could advance submissions without knowledge of the detail of the confidential documents. The Court could take into account, when deciding the weight that it gave to evidence, the forensic disadvantage that a party suffered from not been given access to the 'protected information'. In any event, criminal intelligence would ordinarily be protected from disclosure. Even under the plaintiff's proposed method for hearing and determining the review, his lawyers would be unable to seek instructions about the veracity or the cogency of the material.
The extent of the plaintiff’s rights to a fair hearing of his review depended on the statutory scheme which created the right of review. Litigants did not always have access to documents that the Court might receive. Examples of that were proceedings concerning trade secrets, or where public interest immunity was claimed in respect of documents.
The defendant relied on three High Court decisions as examples of the upholding of legislative schemes that denied a party access to documents relied on to make orders adverse to them and thereby submitted that the confidentiality provisions of the Racing Act were not unique. The three cases were: Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police ('Gypsy Jokers'),[17] K-Generation Pty Ltd v Liquor Licensing Court ('K-Generation')[18] and Assistant Commissioner Condon v Pompano Pty Ltd (‘Pompano’).[19]
[17](2008) 234 CLR 532.
[18](2009) 237 CLR 501.
[19](2013) 252 CLR 38.
The Chief Commissioner stated that some documents that have been withheld from Mr Nikolic are the subject of a claim for public interest immunity, but that he did not rely on them for the purposes of the determination of this interlocutory hearing. So, that claim has yet to be argued. In turn, Mr Nikolic proposes to argue that public interest immunity has been abolished for documents that are ‘protected information’. The parties foreshadowed, but did not ask me to decide, these issues about public interest immunity.
The option of disclosing the documents to the plaintiff’s legal representatives but not to the plaintiff
Both counsel made submissions about the possibility of the protected information being provided to Mr Nikolic's lawyers upon them giving non- disclosure undertakings and other undertakings, including that they would only act for him in this proceeding and not any other litigation. One method of hearing the review was in closed court with the parties being able to make submissions. That method could permit submissions to be made in a closed court on all of the evidence relied on by the Chief Commissioner, including the protected information. The parties accepted, or did not contest, that that method would require the protected information to be disclosed to the plaintiff's legal representative subject to any restrictions that the Court considered appropriate. I accept that that is the correct interpretation of s 35E(2)(b). In context, the right to make submissions in a closed hearing must usually include the right to make submissions on all the evidence that the Court has received and the right of an applicant to have his or her legal representative have access to the documents. That interpretation gives effect to the purpose of that method of hearing and determining the review.[20] After all, s35E(2) deals separately with the confidential affidavit method of hearing and therefore, the closed court method should not be read as denying the applicant’s legal representatives access to all the evidence that is before the Court.
[20]D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) 83-84 [2.42]-[2.43].
In K-Generation,[21] French CJ accepted that a Court might make confidential documents available to the parties' legal advisors for the purposes of a judicial review challenge. I set out that passage in his Honour's judgment later in these reasons.
[21]K-Generation (2009) 237 CLR 501, 526-7 [73]-[76].
The defendant relied on problems associated with the provision of documents to Mr Nikolic's legal representatives, including inadvertent disclosure and the fact that practitioners could not 'unknow' something once revealed to them. A number of authorities have considered that issue. One passage that is often quoted is in Jackson v Wells,[22] where Wilcox J, when considering whether to make documents, which were subject to a claim for public interest immunity, available to the parties' legal representatives, said:
I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister, although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the contents of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the court if their counsel had been given the opportunity to take the court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their client in respect of, protracted and complex proceedings, acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely commonsense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. Weighing the assistance likely to be obtained from counsel's submissions against the sensitivity of the material, it seemed better not to accede to [the suggestion].[23]
[22](1985) 5 FCR 296. See also Parkin v O’Sullivan (2009) 260 ALR 503; Seymour v Price [1998] FCA 1224.
[23](1985) 5 FCR 296, 307.
This passage was recently applied by the Victorian Court of Appeal in Ryan v State of Victoria, where public interest immunity in police operational documents was in issue.[24] Tate JA, with whom Santamaria and Ferguson JJA agreed, stated:
While the correct question addressed by the court in Seymour was whether counsel alone should be permitted to have access to the documents before the immunity claim was determined (which they rejected), it is clear that the problems such access raised, most particularly the inhibition on counsel from giving full and frank advice to the client, have general application.
Furthermore, orders for the taking of evidence in camera, and suppression or other orders restricting the publication of the conduct of proceedings in court are never made lightly. They interfere with the principle of open justice and will only be made where there is a proper basis for them.
High Court decision in K-Generation Pty Ltd v Liquor Licencing Court
[24][2015] VSCA 353 [171]-[172], see also R v Khazall [2006] NSWSC 1061.
It is appropriate at this point to refer in greater detail to one of the cases on which the defendant relied, the High Court decision in K-Generation,[25] which is the most relevant of the three High Court decisions that the Chief Commissioner referred to. That case concerned s 28A of the Liquor Licensing Act 1997 (SA) which required the Liquor and Gambling Commissioner, the Licensing Court and the Supreme Court to take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence. Criminal intelligence was defined as ‘information relating to actual or suspected criminal activity… the disclosure of which could reasonably be expected to prejudice criminal investigations, or to enable the discovery of the existence of a confidential source of information relevant to law enforcement’.
[25](2009) 237 CLR 501.
Section 28A(5) provided:
In any proceedings under this Act, the [Liquor] Commissioner, the Court or the Supreme Court –
(a)must on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive information and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and
(b)may take evidence consisting of or relating to information classified by the Commissioner of Police as criminal intelligence by way of affidavit of a police officer of or above the rank of superintendent.
K-Generation's application for an entertainment venue licence had been refused after the Commissioner of Police introduced information, which he classified as criminal intelligence, in the proceedings before the Commissioner of Liquor and Gaming and the Licensing Court. The Commissioner acting on that information refused the application on the ground that the grant of the licence would be contrary to the public interest. The Licensing Court affirmed that decision. The plaintiffs[26] sought a declaration that s 28A was invalid because it impermissibly interfered with the exercise of the judicial power of the Commonwealth by the Licensing Court and by the Supreme Court by directing them to deny procedural fairness to K Generation in a manner that substantially impaired the institutional integrity and impartiality of those courts. The High Court rejected the plaintiffs' case and held that s 28A was valid.
[26]The second plaintiff was the sole director of K-Generation Pty Ltd.
A number of passages in the judgment of French CJ are pertinent to the determination of the issues that I must decide, although, of course, allowance must be made for the differences in the legislation. French CJ stated that the court was authorised, but not required, to exclude legal representatives from that part of the proceedings in which it received evidence or heard argument about the classified information. His Honour discussed factors which might affect the Court's decision whether to grant the lawyer of the aggrieved party access to the confidential documents in the following terms:
As a practical matter it may be highly unlikely that relevant confidentiality could be assured if information were to be disclosed to an applicant adversely affected by it. The same level of risk may not apply to disclosure of information to a legal representative who is prepared to give a formal undertaking to the Court or submit to a prohibition by way of court order against disclosure of the information to the affected party or anyone else. Breach of such an undertaking to or order by the Supreme Court would be punishable as a contempt of that Court. Breach of an undertaking to or an order made by the Licensing Court would be punishable by the Supreme Court as a contempt committed in relation to an inferior court subject to its supervisory jurisdiction. Breach of such an undertaking or order could also expose the legal representative to disciplinary action by the relevant professional regulatory body.
The Court could nevertheless decide that disclosure to legal representatives, even when subject to undertakings or orders as to confidentiality, would carry too high a risk. Still, s 28A(5) contemplates that the Court may hear “argument” about the information in private in the absence of the parties and their legal representatives. It impliedly accepts that the Court may itself inquire into the classification of the information. It may also wish to decide what weight it should give to it. Evidence “about the information” might relate to the reliability of the sources from which the information has been obtained or the risk of prejudice were it to be disclosed.
Properly construed s 28A(5) gives the Licensing Court and the Supreme Court a degree of flexibility in the steps to be taken to maintain the confidentiality of criminal intelligence. It tends to support the conclusion that the Court can decide, no doubt after hearing argument from at least the Police Commissioner, if not the legal representatives of the applicant, whether the information has been correctly classified as criminal intelligence and, if so, what weight should be given to it. There is nothing in the Act to prevent the Court from taking into account the fact that the information has not been able to be tested by or on behalf of the applicant, in assessing its weight.[27]
[27]K-Generation (2009) 237 CLR 501, 526 [74]-[76].
In the following passage, the Chief Justice also considered the role that lawyers for applicants for review might play where neither they nor their client had been given access to confidential documents on which the decision had been made:
The reviewability of the Police Commissioner's classification means that upon the Commissioner making an application to the Court under s 28(5) the representatives for the affected party may make submissions to the Court about the validity of that classification. It may be that those representatives will be precluded by the Court from having access to the information for the purpose of making their submissions. Even then, they can assist the Court by drawing its intention to the relevant criteria. They could even cross-examine the Commissioner about the way in which he or she arrived at the classification albeit it must be accepted that the scope of the cross-examination would be confined by the lack of access to the information.
The legal representatives of an applicant affected by criminal intelligence may apply to the Court to be given the right to inspect the information under non-disclosure undertakings or orders. Such procedures are not unusual particularly in cases involving claims for the confidentiality of documents produced in commercial proceedings. In some commercial cases a party may issue subpoenas requiring production of documents by non-parties who are competitors with the party issuing the subpoena. Production of such documents may be ordered on the basis that they can only be inspected by the legal representatives of the party issuing the subpoena and then only subject to undertakings not to disclose the contents of the documents to their clients.
Of course the Court may decide that disclosure to legal representatives would carry too high a risk of prejudice to criminal investigations or confidential sources of information. But that decision is a matter in the discretion of the Court. The maintenance of "confidentiality" in s 28A(5) does not require confidentiality to be maintained in a particular way. Under that rubric the Court may, in an appropriate case, be able to provide a summary of the conclusions or inferences offered or arising from the criminal intelligence without disclosing its detailed content or sources.[28] (Emphasis added)
[28]K-Generation (2009) 237 CLR 501, 531-2 [95]-[97]; see also 576-580 [257] (Kirby J).
French CJ accepted that the Licensing Court might in the exercise of its discretion vary the steps that it took to preserve the confidentiality of the criminal intelligence during the course of the hearing.[29]
[29]K-Generation (2009) 237 CLR 501, 542 [146].
For my purposes, the significant statement in that lengthy passage is that the decision about access to confidential documents is in the discretion of the Court. Both parties accepted that s 35E gave the Court a discretion as to the method it adopted to hear and determine the review, but the passage I have set out from the judgment of French CJ considers many of the practical issues that should be considered in deciding whether to grant the plaintiff's legal representative access to the confidential documents.
The limits of the Court’s task
The parties submitted that I was not required to decide finally in this interlocutory ruling whether the confidential documents contained 'protected information'. Counsel for the plaintiff submitted that it would be sufficient in order to engage the provisions of s 35E that the documents contained some protected information.[30] Counsel for the defendant submitted that the Court at this stage did not have to determine whether all the information was protected or not protected.[31] Counsel said that he understood that neither side was inviting the Court to make a determination that all of the information was protected or that none of it was protected.[32]
[30]Transcript of Proceedings, Nikolic v Chief Commissioner of Police (Supreme Court of Victoria, S CI 2016 00194, Ginnane J, 1-2, 16 March 2016) (‘T’) 104, 122, 128.
[31]T 117, 120.
[32]T 120.
The question of whether information is ‘protected information’ for the purposes of the Racing Act is probably a jurisdictional fact, but no submissions were made about that.
The information claimed to be protected
I have read the documents described as confidential which are contained in folders 1-1A and 2-2A. I have already set out the general description given to those documents in Superintendent Brigham’s open affidavits and the affidavit of Deputy Commissioner Patton. I consider that those folders do contain at least some 'protected information' as that term is defined in s 35E(6). I do not find that all of the documents contain 'protected information'. I also consider that, based on my own reading of the documents but without having heard submissions about them, that some parts of the 'protected information' appear more confidential and sensitive than other parts.
The parties did not ask me to consider whether any of the confidential documents attracted legal privilege, and therefore, I say nothing in that regard.
Applying s 35E(3)
The Chief Commissioner has elected to have the review heard and determined by the ‘confidential affidavit’ method contained in s 35E(2)(a). Mr Nikolic seeks primarily the closed court method contained in s 35E(2)(b), or by a combination of methods. The resolution of this dispute requires first the application of s 35E(3) of the Racing Act.
Section 35E(3) states that:
If the court is satisfied that it is not in the public interest to hear and determine the application for review by the method elected by the Chief Commissioner, the court may hear and determine the application by any other method set out in subsection (2).
Section 35E(3) means that the Court must be satisfied that it is not in the public interest to adopt the method of review elected by the Chief Commissioner, before it can consider adopting any other method set out in sub-s (2). Putting the position another way, s 35E(3) enables the Court to decide to hear the review application by any of the methods listed in sub-s (2), if it is satisfied that it is not in the public interest to hear and determine the application by the method that the Chief Commissioner has elected.
If the Court is so satisfied, then in deciding which method to adopt to hear and determine the application for review, the Court must take into account the considerations set out in s 35E(4), all of which are aspects of the public interest. Indeed, the public interest is expressly mentioned in s 35E(4)(a) and sub-s (4)(b)(vii). There may be an overlap, or doubling up, of the consideration of public interest matters when, after first dealing with them in the application of s 35E(3), the Court proceeds to consider other methods of hearing and determining the review, in compliance with s 35E(4).
I consider that in some, perhaps many, instances the Court may not require the protected information and confidential documents to be disclosed, or only disclosed to a limited extent and subject to conditions that limit any such disclosure. However, the terms of s 35E(3) and sub-s (4) suggest that the existence of ‘protected information’ will not, in all cases, prevent the Court reaching the necessary satisfaction under s 35E(3) and proceeding to exercise the power contained in s 35E(4). The purpose of the Racing Act provisions is to preserve and protect 'protected information' which will often be sensitive and confidential. But, if in a particular case, it is practicable to enable the plaintiff's lawyers to read them and then make submissions about the contents of the confidential documents, without permitting their general disclosure, then that outcome may also be in the public interest. The public interest is not defined in the Act, but it is a wide term. It has no fixed and precise content and involves a value judgment often to be made by reference to undefined matters.[33] The term takes its colour from the context in which it is used.[34]
[33]S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 667 [99].
[34]Bare v IBAC (2015) 326 ALR 198, 347-351 [548]-[556] (Santamaria JA); cf Warren CJ [273] and Tate JA [313].
A method of hearing and determining the review which gives the Court the assistance of informed submissions from both sides will advance the administration of justice. The plaintiff is unlikely to be able to develop effectively his natural justice, gist or substance argument, without his lawyer reading the documents. If the Court tried to assess the practicality of the gist argument without informed submissions from the plaintiff's counsel it might overlook a point that the plaintiff may have made. Equally, the Court might overlook something in the confidential documents that the plaintiff might rely on in support of his improper purpose ground.
This case is unlike a public interest immunity case where neither the parties nor the court has access to the documents which attract the immunity. Gleeson CJ discussed a similar point in the Gypsy Jokers case[35] in the context of considering provisions of the Corruption and Crime Commission Act 2003 (WA). His Honour noted that without specific statutory provisions about confidential documents, which at common law attracted public interest immunity, the confidential documents would not be available as evidence to the court in deciding the outcome of the proceeding. That may have ‘[t]he practical consequences of making it impossible for the court to exercise the review function’.[36]
[35](2008) 234 CLR 532, 550-551 [5].
[36]Gypsy Jokers (2008) 234 CLR 532, 550-551 [5].
I doubt that it is possible to reach the satisfaction required by s 35E(3), without first considering whether there is another method of hearing and determining the review permitted by s 35E(2) that, in the circumstances, protects the public interest in the confidentiality of the documents and without considering the matters set out in s 35E(4). In determining for the purposes of sub-s (3), whether the necessary state of satisfaction has been reached, an obvious question is whether there is an alternative method of hearing and determining the review. In this case, for instance, Mr Nikolic presented an alternative method and much debate occurred about it.
I am satisfied that it is not in the public interest to hear and determine the application for review by the method elected by the Chief Commissioner. In reaching that satisfaction required by s 35E(3), I have considered that there is another method of hearing and determining the review permitted by s 35E(2)(b), which should ensure a high degree of protection of the confidential documents and their protected information.
The s 35E(4) mandatory considerations
In considering and deciding whether there is another method of hearing and determining the review consistent with the public interest, I have taken into account the considerations set out in s 35E(4). I had regard also to each of Superintendent Brigham’s affidavits and Deputy Commissioner Patton’s affidavit. I act on the basis that at least some of the protected and confidential documents appear to contain high level and sensitive information.
I take into account that the disclosure of at least some of the confidential documents would disclose police investigative techniques and protected information. Intelligence information is not defined, but, giving those words their ordinary meaning, the disclosure of at least some of the confidential documents would disclose intelligence information as their disclosure would reveal one or other of the matters contained in s 35E(4)(b)(i)-(vii).
The requirement that the Court take into account each of the mandatory considerations makes clear that Parliament wishes particular consideration to be given to the protection of protected information and intelligence information.[37] Those classes of information, particularly police sources and information relating to investigatory techniques, have usually been treated as confidential and often attract public interest immunity.
[37]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42.
Nevertheless, the right to a fair hearing is also an important public interest. Parliament has not, as it could have,[38] declined to give the Court a discretion, which when exercised in appropriate circumstances, would allow the plaintiff, or his lawyer, to see the protected information for the purpose of the review. Rather, it has given the Court a discretion to be exercised after taking into account the mandatory considerations contained in subs (4).
[38]As in Gypsy Jokers and Pompano.
At common law, a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with the matters adverse to his interests which the repository of power proposes to take into account in deciding upon its exercise. Mason J described this principle in the following terms:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made that will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[39]
[39]Kioa v West (1985) 159 CLR 550, 582. See also Applicant VEAL of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs (2005) 225 CLR 88 and Kanda v Government of Malaya [1962] AC 322, 337.
The exercise of statutory power to remove a person's right to enter a racecourse must, unless the statute indicates to the contrary, occur only after the person has first been given notice of the decision-maker’s proposed action and of the grounds for it, and secondly, has been given an opportunity to make representations which the decision-maker must consider before acting to make the order.[40] The Exclusion Order under review may affect the plaintiff's livelihood and will affect his reputation.[41]
[40]Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487.
[41]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
Each of the mandatory considerations contained in s 35E(4) is significant in determining this interlocutory application. The Chief Commissioner relied on the absence from the list of considerations of the plaintiff’s interest in accessing the documents to present his case. The tenor of the mandatory considerations is the maintenance of the confidentiality of protected information or intelligence information. However, s 35E(2) has the additional feature to which I have already referred, that Parliament in enacting s 35E(2)(b) has provided a method of hearing and determining the review that enables the plaintiff to make submissions in closed court. In many cases that method will lead to the plaintiff’s legal representatives requiring access to the confidential information.
My consideration of the s 35E(4) mandatory considerations is as follows. I take into account the public interest stated in s 35E(4)(a) in ‘protecting the confidentiality of police investigative techniques and protected information in the possession of the police’. Sub-section (4)(b) requires the Court to consider the extent to which the method of hearing and determining the application chosen may disclose any intelligence information, or document or thing, the disclosure of which may reveal identities of persons who provided specified information or whose name appears in any evidence given or information provided to a police officer relating to an investigation, or put the safety of persons, police officers or others at risk, or risk an ongoing investigation by a police officer or risks the disclosure of any investigative method used by police officers.
The plaintiff seeks, principally, a form of closed court hearing with the parties having the right to make submissions after his legal representatives have had access to the ‘protected information’. That method does protect the confidentiality of the techniques and information referred to, but will allow restricted access to the documents by the plaintiff's legal representative. To that limited extent it will disclose intelligence information,[42] the identity of police officers and other persons who provided relevant information,[43] or the identity of persons whose name appears in evidence given or information provided to a police officer relating to an investigation[44] and will reveal the identity of some persons who are or have been the subject of police investigations.[45] The disclosure of the protected information may also disclose investigative methods used by police officers.[46] But, each of those disclosures will be only to those legal representatives of the plaintiff that the Court permits to have access to the documents.
[42]Racing Act s 35E(4).
[43]Racing Act s 35E(4)(i) and (ii).
[44]Racing Act s 35E(4)(iii).
[45]Racing Act s 35E(4) (iv).
[46]Racing Act s 35E(4)(vi).
There is always the risk that there may be an inadvertent disclosure of confidential information, but that risk is always present once anyone is given access to it. The risk is limited if the number of persons having access to the documents is limited and if those persons are subject to restrictions and give appropriate undertakings. I would permit only the plaintiff’s senior counsel to have access to the documents. That limitation would not reflect on the plaintiff’s other legal representatives, but rather reflect a cautious approach conscious of the possibility of inadvertent disclosure. By that process, the risks to persons and ongoing investigations which might flow from the disclosure of investigative methods used by police officers should be limited.
On the evidence before me, I do not consider that the limited disclosure of confidential information that I propose should put any person's safety at risk,[47] or place at risk any ongoing investigation by a police officer.[48]
[47]Racing Act s 35E (4)(i)(ii)(iii)(iv).
[48]Racing Act s 35E(4)(v).
Legal representatives would be subject to very significant penalties if they breached undertakings given to the Court.
Paragraph (vii) requires the Court to take into account the extent to which the method of hearing and determining the matter may disclose any intelligence information, or document or thing the disclosure of which is otherwise not in the public interest. The parties did not make specific reference to paragraph (vii) by raising any aspect of the public interest additional to the matters to which I have referred.
Conclusion on public interest considerations
I am satisfied that it is appropriate to exercise the discretion as to the method of hearing and determining the review by adopting the method provided for in s 35E(2)(b) by providing the plaintiff with the right to make submissions about the protected information by providing access to it, to his senior counsel, on the terms that I will order.[49] I am so satisfied because the public interest in protecting the confidentiality of the ‘protected information’ can be accommodated by the steps that I have foreshadowed. The plaintiff will have a real opportunity to respond to significant information that may be adverse to him thus affording him the fundamental rights of natural justice. The Court will also benefit in that the plaintiff's submissions will be better informed and of greater assistance. The defendant's interest, and the community’s interest, in the maintenance of the confidentiality of the documents will also be protected.
[49]I raised with the parties the applicability of the provisions of the Open Courts Act 2013 with its presumption in favour of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order. However, s 8 of that Act provides that it does not limit or otherwise affect the operation of a provision made by or under any other Act that (a), authorises a court to prohibit or restrict the publication or other disclosure of information for or in connection with any proceeding; or (b), requires or authorises a court to close any proceeding to the public.
I consider that the differing features of the public interest relied on by both parties can be accommodated by enabling the plaintiff's senior counsel to read the protected and confidential documents before the review hearing and have access to them during the review subject to the giving of a non-disclosure and other undertakings and the further protections that I describe.
I will require senior counsel to give personal non-disclosure undertakings and undertakings not to seek instructions about the protected information or to disclose what occurs during the closed hearing, limitations on where the documents may be viewed, on the use of the notes that may be made on that viewing of the documents. I will also require the undertaking to be given, that I understand is offered, that the senior counsel will not represent the plaintiff in any other proceeding, save in any appeal arising from this proceeding. To add to the protection that the documents will receive, the defendant will be permitted to redact the documents to remove material that identifies a person who meets one or other of the descriptions in ss 35E(4)(i), (ii), (iii), (iv) or (v).[50]
[50]The plaintiff accepted that that was an appropriate course to take.
I will hear the parties further about whether all of the review hearing should be in a closed court and who should be able to be in court while the protected information is discussed. In addition to the relevant provisions of the Racing Act, the Court has other power to control the extent to which a closed hearing occurs.
As stated, the views I express are limited to the facts of this proceeding and are not intended to contain any prescription as to the appropriate method of hearing reviews that may arise in the future, which will involve different combinations of circumstances. A discretion can only be exercised in relation to particular circumstances.
The plaintiff’s summons
On 1 March 2016, the plaintiff by summons sought orders in the following terms:
TO: The Chief Commissioner of Victoria Police
You are summoned to attend before the Court on the hearing of an application by the Plaintiff for Orders that:
1.Pursuant to rule 29.08, on or before 2016 the Defendant make and serve on the Plaintiff an affidavit stating whether any and if so what documents of the following classes are or have been in the Defendant's possession and, if any document has been but is no longer in the Applicant's possession, when it parted with it and its belief as to what has become of it:
(a)Documents (including records, notes, diary entries, emails, memoranda, reports, and correspondence including file notes of conversations and other records) relating to or recording communication occurring between the dates 4 May 2015 and 12 November 2015, passing between Mr Graham Ashton, Mr Shane Patton, or any person at the Victoria Police who assisted Mr Graham Ashton or Mr Shane Patton with the consideration of the making of any racing exclusion order with respect to the Plaintiff, and Racing Victoria Limited, any member or staff or Racing Victoria Limited concerning:
a.The Plaintiff’s application to Racing Victoria Limited for a Jockey Licence; and/or
b. The making of any racing exclusion order against the Plaintiff.
2.Pursuant to rule 3.02, after any affidavit produced in accordance with order 1 has been provided by the Defendant to the Plaintiff, the time permitted to the Defendant to produce documents required for inspection pursuant to any subsequent notice to produce that is served on the Defendant under rule 29.09 be abridged, and that the Defendant make any documents required for inspection under that notice to produce available to the Plaintiff for inspection within 2 days of service of that notice to produce.
3.Such further or other Orders as the Court may think fit.
At this stage of the proceeding, the plaintiff sought only the orders scribed in paragraph 1 of the summons. He relied on Order 29.08 which states:
29.08 Order for particular discovery
(1) This Rule applies to any proceeding in the Court.
(2)Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating –
(a)whether that document or any, and if so, what document or documents of that class is or has been in that party's possession; and
(b)if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it.
(3)An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents.
Alternatively, the plaintiff relied on the right to seek general discovery of documents.
The plaintiff’s case for discovery
The plaintiff’s case for discovery was as follows. He relied on a memorandum of a telephone conversation of 5 November 2015, prepared by his solicitor Mr J Kangisser. The other persons taking part in the telephone conversation were Ms C Georgiou, a solicitor employed by the plaintiff's solicitors, Mr D Poulton of Minter Ellison, the solicitor for Racing Victoria and junior counsel for Racing Victoria, Mr J Hooper.
Mr Kangisser initiated the telephone conversation to discuss orders to be sought at a VCAT directions hearing to be held the following day in Mr Nikolic's review of Racing Victoria's refusal to grant him a jockey license. The memorandum records Mr Poulton as stating that the matter would require a 2-3 week trial and:
Mr Poulton then stated that as our client had been served with a 'Show Cause Notice' from the Commissioner of Police, with respect to a Racing Exclusion order, it would be appropriate for that issue to be ventilated before this matter is set down for hearing.
Later in the memorandum, the following exchange is recorded:
Ms Georgiou: Who told you that the police served our client with a Show Cause notice from the Police?
Mr Poulton: It is a matter of public record.
Ms Georgiou: No it isn't. No one has shown us any such public record.
Mr Poulton: The revocation was public, it is a matter of public record, and it stated that the commissioner would consider bringing forward another application.
Ms Georgiou: Yes. That may have been the case. But you stated earlier that you were aware that the Commissioner of Police had now served our client with a Show Cause notice. Who told you that?
Mr Poulton: Has your client received a Show Cause notice or not?
Ms Georgiou: Unless it is your client that is providing information to the Commissioner of Police to press for the making of the exclusion order, I do not know how you would receive information from the Police. Was it your client?
Mr Poulton: Well ...no- does he have a notice or not?
Ms Georgiou: We do not have instructions to answer that question.
Mr Poulton: Why should we not ask the Police ourselves?
Ms Georgiou: What standing do you have to ask the police for information that concerns our client?
Mr Poulton: As the controlling body under the Racing Act ...
Ms Georgiou: What standing do you have, to approach the police and request for confidential information pertaining to confidential matters involving our client?
Mr Poulton: Maybe you should seek instructions to provide us standing.
Ms Georgiou: Maybe - But what standing do you have?
Mr Poulton: Well we might need to issue subpoenas to the Police.
Ms Georgiou: Any such information will not and should impact the appeals process.
By letter of 9 November 2015, the plaintiff's solicitors wrote to the defendant's solicitor stating that the Chief Commissioner ought postpone further consideration of whether to issue Mr Nikolic with an Exclusion Order until such time as his review application had been determined. Under the heading, 'Disclosure of Information' the letter stated:
On Friday 6 November 2015, a directions hearing took place in the Review Application. At that directions hearing, counsel appearing for Racing Victoria Limited stated words to the following effect:
''I have been instructed that the Applicant has received a show cause notice from the Victorian Police, requesting that he show cause why he should not be issued with a Racing Exclusion Order."
We consider communication between our client and the Victorian Police concerning the Notice of Intention to be strictly confidential, and our client has not provided any waiver of such confidentiality. Such confidentiality ought to fall within the ambit of Part 13 of the Victoria Police Act 2013. It is of grave concern to our client that such confidential information may have been provided to third parties, whilst it is of even greater concern that such information has been relied upon by a third party, against the interests of our client.
Please inform us of whether it is your client who has disclosed such information to Racing Victoria Limited, or its representatives. If so we request that copies of all such correspondence or communication be provided to us as a matter of urgency. In such circumstances, we would further request that the Commissioner of Police and his Delegate provide a written undertaking not to disclose any further information that is in fact confidential to our client. (emphasis in original)
The plaintiff’s ground 2(f) is that the defendant made the decision for the purpose of circumventing the disciplinary and licensing frameworks established under the Act. The plaintiff contended that Victoria Police and Racing Victoria had conducted investigations that overlapped in time and had acted in conjunction to ensure that the Chief Commissioner's exclusion power could be exercised at a time when the plaintiff did not hold a licence. This had the purpose of circumventing the limitation contained in s 33(2) of the Act that the Chief Commissioner was not empowered to make an Exclusion Order in respect of a person who holds an occupational racing licence within the meaning of Part IIIC. The plaintiff's application to VCAT was outstanding and if he received his licence the Chief Commissioner would be unable to make an Exclusion Order. Racing Victoria could not explain how it came into possession of the information. The Chief Commissioner’s issuing of the ‘show cause notice’ was not a matter of public record. The inference was that Racing Victoria received the information from Victoria Police and that showed that there was complicity between Victoria Police and Racing Victoria.
The defendant’s submissions on discovery
The defendant submitted that the documents that Deputy Commissioner Patton had in his possession when he decided to make the Exclusion Order had been produced save for those that contained protected or other confidential information. Section 35 of the Racing Act required the Chief Commissioner to prepare and keep a list of names of persons who were the subject of Exclusion Orders. The first Exclusion Order had been made before the statements on which the plaintiff relied were made, but the Chief Commissioner had set it aside. The highest the evidence went was that Mr Poulton and Racing Victoria’s counsel were alleged to have made statements about an Exclusion Order, not that the Chief Commissioner or his delegate had made any such statement. The evidence on which the plaintiff relied was hearsay and provided no grounds for the belief required by Rule 29.08.
Consideration of submissions
The plaintiff's case for discovery is based on speculation. There is insufficient evidence to form any belief that any document of the class sought by the plaintiff, which I will call the relevant documents, may be or may have been in the possession of the Chief Commissioner or Victoria Police.
Rule 29.08 deals with discovery and therefore documents. While discovery can be allowed in judicial review proceedings, it is not allowed to facilitate speculative applications.[51] The memorandum of the telephone conversation and the statement in the VCAT directions hearing, assuming that they are accurately recorded, do not provide a sufficient basis for a belief that a relevant document exists. They may provide a basis for a belief that some communication about the Exclusion Order had occurred between Racing Victoria and another person. But, they do not provide sufficient basis for a belief that Victoria Police holds or held any relevant document. There is no evidence that the Chief Commissioner, Deputy Commissioner Patton or anyone who assisted them had any communication with Racing Victoria by which Victoria Police disclosed any relevant information to Racing Victoria or which concerned the plaintiff’s application for a jockey licence or the making of an Exclusion Order. Deputy Commissioner Patton has stated that he did not have any contact with Racing Victoria in the course of considering whether to make the Exclusion Order.
[51]Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78,82-3.
An order under Order 29.08 should not be made when the application is based on speculation about whether particular documents do or did exist.
The application for discovery contained in paragraph 1 of the plaintiff's summons of 1 March 2016 is dismissed.
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