Nikolic v Chief Commissioner of Police (No 2)
[2016] VSC 333
•16 June 2016 – Redacted judgment published 11 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
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: | 27 April 2016 |
DATE OF JUDGMENT: | 16 June 2016 – Redacted judgment published 11 August 2016 |
CASE MAY BE CITED AS: | Nikolic v Chief Commissioner of Police (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 333 |
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ADMINISTRATIVE LAW – Procedural fairness – Former jockey – Exclusion order from racecourses – Whether plaintiff provided with notice of adverse allegations – Confidential and protected information – Whether gist or substance could have been provided – Procedural fairness denied – Exclusion order quashed – Racing Act 1958 ss 33, 35E – Administrative Law Act 1978 s 7
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Merkel QC and Ms C Van Proctor | Lennon Mazzeo |
| For the Defendant | Mr R M Niall QC, Solicitor-General for the State of Victoria, and Ms F L Batten | Victorian Government Solicitor |
HIS HONOUR:
Mr Daniel Nikolic seeks to challenge an Exclusion Order made against him under the Racing Act 1958 (the Racing Act). Mr Nikolic commenced working as a jockey when he was 15 years old. He is now aged 41 and was last able to ride as a thoroughbred horseracing jockey on 4 September 2012.
On 12 November 2015, Deputy Commissioner Shane Patton, a delegate of the defendant (the Chief Commissioner) made an Exclusion Order which prohibited Mr Nikolic from entering or remaining at specified race-courses. The order was made under s 33(1) of the Racing Act.
Mr Nikolic commenced proceedings in this Court challenging the Exclusion Order. By order of this court dated 22 January 2016, made under the Administrative Law Act 1978, the Chief Commissioner was required to show cause why the Exclusion Order should not be reviewed.
Mr Nikolic relied on the following four grounds at the hearing of the proceeding:
(a)The Defendant 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 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 a 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.
(bb) The Defendant failed to observe the rules of natural justice in making the decision in that:
(i) he did not disclose to the Plaintiff information that was alleged to be protected information but was not protected information;
(ii) he did not consider, alternatively did not exercise his discretion to consider, whether he could disclose the protected information or the gist of that information to the Plaintiff, subject to such conditions (if any) that may be appropriate.
(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.
Section 33(1) of the Racing Act authorises the Chief Commissioner to prohibit a person from entering or remaining in a specified race-course or race-courses for the duration of a race meeting if he or she considers it necessary in the public interest. But, the Chief Commissioner cannot make an Exclusion Order in respect of a person who holds a bookmaking licence or an occupational racing licence.[1]
[1]Racing Act 1958 ss 33(2) and 83P.
Non-confidential summary
I have decided that the Exclusion Order was not made in accordance with law in that Mr Nikolic was not provided with details of adverse allegations against him that were relevant, credible and significant to the making of the Exclusion Order. He was not informed of relevant exculpatory material. Also, he was informed that he had received all the unprotected information when that was not the case. The Exclusion Order is therefore invalid and of no legal effect. Observance of the principles of natural justice or procedural fairness is a condition that governs the exercise of such statutory power.[2]
[2]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259 [13] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (‘Saeed’).
This case does not require or indeed permit the Court to consider whether an Exclusion Order should have been made against Mr Nikolic. The Court’s function is to determine whether the legal procedures that the Chief Commissioner was required to observe were observed and no more. The Court’s function is to declare and enforce the law which determines the limits and governs the exercise of the decision-maker’s power.[3]
[3]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 (Brennan J).
The following provisions of the Racing Act are relevant in this proceeding:
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.
34 Duration of exclusion orders
An exclusion order remains in force in respect of a person until it is revoked by the Chief Commissioner of Police.
35 List and photographs of excluded persons
(1)The Chief Commissioner of Police must prepare and keep a list of names of persons who are the subject of an exclusion order and indicate the specified race-course to which that order relates.
Note
Under section 37(c) of the Interpretation of Legislation Act 1984, words in the singular also include the plural.
(2) The Chief Commissioner of Police must—
(a)on the making of an exclusion order, add the name of the person the subject of the order to the list kept under subsection (1); and
(b)on the amendment of an exclusion order made with respect to the order's scope, add to or omit from the list kept under subsection (1) a specified race-course in accordance with that amendment; and
(c)on the revocation of an exclusion order, omit the name of the person who was the subject of the order from the list kept under subsection (1).
(3)The Chief Commissioner of Police must ensure that an up-to-date copy of a list kept under subsection (1) is provided to the chief steward of each of the controlling bodies as soon as practicable after the list is prepared under that subsection or amended under subsection (2), as the case requires.
(4)The Chief Commissioner of Police must, if he or she has one, give to the chief steward of each of the controlling bodies a photograph of each person whose name is on the list provided to the chief steward under subsection (3) as soon as practicable after the name of the person is added to the list.
35A Provision of list and photographs to stewards
The chief steward of a controlling body may give to a steward a copy of the up-to-date list and photographs provided to the chief steward under section 35.
35B Excluded person not to enter race-course
A person who is the subject of an exclusion order relating to a specified race-course must not enter, or remain at, the race-course at any time during the duration of a race-meeting.
Penalty: 20 penalty units.
35C Notifying police of presence of excluded person
A steward who reasonably believes that a person who is the subject of an exclusion order is at a specified race-course at any time during the duration of a race-meeting, must notify a police officer as soon as practicable.
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.
After the openings by counsel, the hearing of the review occurred in a closed court. The reasons for taking that course were given in the first judgment on 8 April 2016. Subject to further order, parts of this judgment will not be publicly released. This is because release would, or may, disclose confidential information that was discussed in the closed hearing.
Background to the proceeding
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 on 24 August 2015, which I will call the first Exclusion Order. He commenced proceedings in this Court for review of that first Exclusion Order on grounds that related to a denial of procedural fairness.
While those proceedings were on foot, on 22 September 2015, Racing Victoria rejected his application for a jockey licence. Mr Nikolic sought review of that decision by the Victorian Civil and Administrative Tribunal (VCAT).
While the review proceedings in VCAT were awaiting hearing, on 6 October 2015, the Chief Commissioner revoked the first Exclusion Order made against Mr Nikolic. Mr Nikolic’s Supreme Court proceedings in relation to that first Exclusion Order were dismissed and the Chief Commissioner was ordered to pay his costs.
By letter dated 19 October 2015, Deputy Commissioner Patton sent Mr Nikolic a Notice of Intention to Make a Racing Exclusion Order (‘Notice of Intention’) and stated that he was considering making such an order under s 33(1) of the Racing Act. The letter states:
Dear Mr Nikolic
NOTICE OF INTENTION TO MAKE A RACING EXCLUSION ORDER
I am a delegate of the Chief Commissioner of Police in relation [to] his power under s 33(1) of the Racing Act 1958 (the Racing Act).
By this letter, I am giving you notice that I am considering whether or not to make an order under s 33(1) of the Racing Act, prohibiting you from entering or remaining at all specified race-courses for the duration of a race meeting conducted at those race-courses. The purpose of this letter is to afford you the opportunity to offer submissions in response to this proposed order, should you wish to do so.
My preliminary view is that it is necessary in the public interest to make an exclusion order. I formed the preliminary view after having carefully considered information about you, as it relates to the public interest in protecting the integrity of the racing industry, and public safety and public order at Victorian race-courses and race meetings.
I base my preliminary view on the following matters:
1.The nature and extent of your proven criminal history in Victoria and New South Wales; particularly, in relation to your history of family violence and other violent criminal behaviour. My preliminary view is that this behaviour, which occurred both in and out of the context of racing, demonstrates a propensity for engaging in acts of violence and intimidation. Persons who have been affected by your behaviour include a jockey, other persons involved in the racing industry with whom you have contact, as well as members of the public not connected to the racing industry;
2.The nature and extent of your disciplinary history in your former profession as a jockey, including threats against a racing steward;
3.That on 11 June 2015, you entered a restricted area at Flemington Racecourse, namely the mounting yard and jockey’s room;
4.That on 4 October 2012, the then Chief Commissioner Ken Lay made a Casino Exclusion order in relation to you; and
5.I have also considered other credible, protected information which, for reasons of public interest, I cannot disclose to you.
It is my preliminary view that these matters establish to my satisfaction that you have engaged in conduct which has the propensity to adversely impact on the integrity of the racing industry in Victoria.
Should you wish to make any submissions that you consider to be relevant to my decision, you may address these matters to me in writing prior to 4.00 pm on 28 October 015. I will take any submissions you make into account before making a decision.
Yours sincerely
Shane Patton APM
Deputy CommissionerSpecialist Operations
19/10/2015
Before replying, Mr Nikolic’s solicitors requested all of the ‘primary material’ that Deputy Commissioner Patton took into account in reaching his view stated in the letter of 19 October 2015 and also sought particulars of factors on which he had based his preliminary view. Mr Nikolic’s solicitor submitted that he was entitled to know the substance of what was said against him and that the protected information should be disclosed in a fashion that did not offend the framework envisaged by s 35E of the Racing Act.
On 30 October 2015, the Chief Commissioner’s solicitor by letter stated that he would release to Mr Nikolic electronically, all of the contents of the documents ‘which it would not be in the public interest to withhold’. That letter also stated:
[w]ith regard to the ‘protected information’ being considered, we are instructed that it would not be in the public interest to disclose even the general nature of that material.
The documents released ran into many pages, some of which were redacted or edited.
Having received these documents, Mr Nikolic’s solicitor on 4 November 2015 in response to the Deputy Commissioner’s Notice of Intention, sent a seven page letter to the Deputy Commissioner together with a 13 page statutory declaration made by Mr Nikolic. I will next summarise the contents of the letter and the statutory declaration.
Mr Nikolic’s response
The letter by Mr Nikolic’s solicitor to the Deputy Commissioner asserted that he had misunderstood the scope of the power given by s 33 of the Racing Act and was acting at the direction of Racing Victoria. The solicitor stated that the critical issue in the exercise of the discretion conferred by s 33 was whether Mr Nikolic’s conduct and character were such that excluding him from race-courses was necessary to protect the integrity of the racing industry from criminal behaviour. This was not the same question as whether he was a fit and proper person to be a licensed jockey. The solicitor addressed the five matters that Deputy Commissioner Patton relied on. These were: (1) the nature and extent of Mr Nikolic’s proved criminal history, which included assaults and breaches of apprehended violence orders; (2) the nature and extent of Mr Nikolic’s professional disciplinary history; (3) his conduct in entering a restricted area at Flemington Racecourse; (4) a Casino Exclusion Order; and (5) the undisclosed protected information.
The letter by Mr Nikolic’s solicitor stated that the first, second and fourth matters relied on by the Deputy Commissioner were either factually too remote, or irrelevant, to the decision of whether to issue an Exclusion Order. It contended that for the Deputy Commissioner to take into account undisclosed information constituted procedural unfairness. Mr Nikolic’s solicitor contended that, at the very least, he was entitled to know and be given the opportunity to answer ‘the substance of what was said against him’.
Mr Nikolic’s statutory declaration forwarded to the Deputy Commissioner contained sections dealing with his personal circumstances, including his marriage to Victoria Samba and his relationship with Tania Hyett. It referred to Mr Les Samba’s suspected murder and also to the investigation into the Smoking Aces affair which concerned three separate races. Mr Les Samba was the father of Ms Samba and formerly Mr Nikolic’s father-in-law. The statutory declaration exhibited a letter dated 5 August 2013 to Mr Nikolic from Detective Sergeant Mark Butterworth of the Purana Task Force Crime Department which stated:
1. As per our phone conversation on 15 July 2013, Victoria Police has completed an investigation into allegations of conspiracy to cheat and defraud with respect to the following horse races:
• Race 5 at Bendigo on 16 March 2011;
• Race 6 at Cranbourne on 27 April 2011;
• Race 2 at Kyneton on 25 March 2012.
2. The Office of Public Prosecutions has reviewed the investigation into these races and has advised that NO CHARGES will be authorised re same.
3.The Victoria Police investigation is now complete and no further action will be taken.
4. Be advised however, that Victoria Police has received a formal request for access to the investigation file by the Racing Integrity Commissioner and Racing Victoria Limited. These requests are currently being considered by the Victorian Government Solicitors Office.
5. If you have any queries please do not hesitate to contact me on the above number. (emphasis in the original).
Mr Nikolic’s statutory declaration then referred to the nature and extent of his criminal history, which included assault charges and breaches of apprehended violence orders. It also referred to the nature and extent of his disciplinary history as a jockey. Mr Nikolic stated that he was never charged by Racing Victoria stewards for race fixing.
The statutory declaration also addressed the circumstances in which, on 10 June 2015 at Flemington racecourse, Mr Nikolic had entered a restricted area of the mounting yard and jockeys’ room. It referred to the Casino Exclusion Order made on or about 4 October 2012. It also dealt with Mr Nikolic’s relationship with Mr Terry Bailey, the Chief Steward, as well as other matters.
The Exclusion Order and Deputy Commissioner Patton’s reasons
As previously stated, on 12 November 2015, Deputy Commissioner Patton signed the second Racing Exclusion Order concerning Mr Nikolic.
On 23 December 2015, following a request from Mr Nikolic’s solicitors, Deputy Commissioner Patton forwarded a statement of his reasons for making the Exclusion Order, including the criminal and disciplinary history of Mr Nikolic.
Deputy Commissioner Patton stated that he had considered the details of the circumstances relating to Mr Nikolic’s criminal offending. He said that:
in light of your criminal history, I am of the view that there is a risk to the integrity of the Victorian racing industry, and the safety of racing industry participants. These matters are, in turn, relevant to the question of whether it is necessary in the public interests to make an exclusion order.
The Deputy Commissioner also stated that:
[i]n conjunction with your criminal and disciplinary history involving physical violence, verbal threats and intimidating behaviour, I have formed the view that you have limited appreciation of, or ability to control, your behaviour towards others, including racing officials and participants, family members, associates and the general public. Such conduct is in conflict with the high standards and the strict regulatory regime within which the Victorian racing industry operates in order to ensure that the integrity of the industry is protected and preserved. The protection and preservation of the industry is a matter of some importance in considering the public interest in whether or not an exclusion order should be made.
Under the heading ‘Protected Information’, Deputy Commissioner Patton stated that:
I have also considered other relevant, credible and significant information concerning you, that falls within the definition of ‘protected information’ in section 35E of the Racing Act. Having decided that there is a public interest in protecting this information, I have a duty not to disclose it. In considering this protected information I also placed significant weight on it forming my view to exclude you and that it was necessary to do so due to the risk you pose to the integrity of the Victorian racing industry and safety of racing industry participants and the general public who attend Victorian race meetings.
Under the heading ‘Conclusion’, Deputy Commissioner Patton stated:
[i]n my opinion, your conduct demonstrates a propensity by you for engaging in acts of physical violence, verbal threats and intimidation. In forming this view, I have considered not just the circumstances of any one instance, but the cumulative nature of the various instances of aggressive conduct by you towards others including in the course of your racing industry and personal interactions.
The protected information that I considered also demonstrated matters relevant to your lack of integrity, criminal associations and poor character. All of which when considered cumulatively cause me to form views in respect of the risk posed by you.
I consider that your conduct, combined with the issues identified from the protected information, means that allowing you to attend race-meetings at Victorian licensed racecourses poses a risk to the integrity of the Victorian racing industry and the safety and wellbeing of racing industry official and participants and the general public, who attend race-meetings. Accordingly, I have concluded that it was necessary in all of the circumstances to make the Exclusion Order in the public interest.
Mr Nikolic’s response to the reasons
In his affidavit made in this proceeding, Mr Nikolic stated that until 1 September 2015 he was not aware of any intention of the Chief Commissioner of Police, or his delegates, to exclude him from race-courses in Victoria. He also stated that until he received Mr Patton’s statement of reasons, he did not know:
that [Mr Patton]… might issue a racing exclusion order on the basis that in his view, I have a lack of appreciation of, or ability to control, my behaviour towards others, including racing officials. Had I been aware of this, I would have been provided the opportunity to make submissions addressing this concern.
He referred to Deputy Commissioner Patton’s statement that:
[t]he protected information that I considered also demonstrated matters relevant to your lack of integrity, criminal associations and poor character. All of which when considered cumulatively cause me to form views in respect of the risk posed by you.
and responded that:
[u]ntil 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 and poor character. I have not had the opportunity to respond to any such allegations.
Mr Nikolic stated that the making of the second racing Exclusion Order greatly affected his capacity to derive a livelihood.
The conduct of the review
After Mr Nikolic commenced these proceedings for review under the Administrative Law Act 1978, the Chief Commissioner applied to have the review heard and determined under the procedure contained in s 35E(2)(a) of the Racing Act. Following submissions made in open court, I decided that it was not in the public interest to hear and determine the application for review by the method proposed by the Chief Commissioner. I decided that a hearing held in closed court in which the Chief Commissioner and each party to the proceeding had a right to make submissions would be appropriate. I considered that that method of hearing and determining the review permitted by s 35E(2)(b) would ensure a sufficiently high degree of protection of the confidential documents relevant to the case and the protected information that they contained.[4] I ordered that the plaintiff should have the right to make submissions about the protected information by it being provided to his senior counsel on the following terms. That the plaintiff’s senior counsel was able to read the protected and confidential documents before the review hearing and have access to them during the hearing. He was required to give to the Court non-disclosure undertakings, including undertakings not to seek instructions about the protected information or to disclose what occurred during the closed Court hearing of the review. Limitations were also placed on where senior counsel could read the documents, and on the use that might be made of notes made by senior counsel concerning the documents. Senior counsel also undertook not to represent the plaintiff in any other proceeding, save in any appeal arising from this proceeding. Before the Chief Commissioner made the confidential documents available to the plaintiff’s senior counsel to read, he was authorised to redact them to remove words that identified any person who met a description contained in ss 35E(4)(b)(i), (ii), (iii) or (iv) of the Racing Act. Mr Nikolic was not permitted to be present during the hearing of the review, he was represented by senior counsel. No other representative of Mr Nikolic was permitted to attend the hearing.
[4]Nikolic v Chief Commissioner of Police [2016] VSC 143 [83].
After the openings made by counsel for the parties, the review hearing proceeded in closed court.
The ‘protected information’
As described in the first judgment, the information that the Deputy Commissioner considered to be ‘protected information’ is contained in two folders: folder 1-1A and folder 2-2A. The individual pages in folder 1-1A fall into three categories: (1) pages provided to Mr Nikolic without redactions; (2) pages provided to Mr Nikolic with information redacted; and (3) pages which were not provided to Mr Nikolic. On the other hand, folder 2-2A only contains documents which were not provided to Mr Nikolic.
The plaintiff’s senior counsel referred to several documents, or parts of documents, which were not provided to Mr Nikolic. I will next briefly describe the nature of those documents.
First, was the information contained in paragraphs 33 and 34 of Superintendent Brigham’s first confidential affidavit, in which he stated:
[Redacted]
Summary of unclassified material
These documents provide a brief summary of Mr Nikolic’s background and set out incidents in his criminal and disciplinary history. Mr Nikolic commented on many of these incidents in his statutory declaration that his solicitors sent to the Deputy Commissioner.
Summary of additional unclassified material
This document contained a summary of Mr Nikolic’s prior criminal convictions, and a number of breaches of apprehended violence orders.
[Redacted]
[Redacted]
[Redacted]
Undisclosed transcript pages
Pages 17, 18, 20, 23-26 and 28-30 of the interview transcript of a stewards investigation were withheld from Mr Nikolic. Stewards from Victoria Racing Limited interviewed Ms Tania Hyett, who is Mr Nikolic’s partner. The transcript shows that the regional manager of stewards, Mr Ryan, explained the purpose of the investigation to Ms Hyett at the commencement of her examination in the following terms:
[w]e’re here today in regard to a race that I spoke to you on the phone about briefly in regard to a race at Echuca that was run on the 8th of the 3rd, that we have concerns that were raised by the wagering department on Sunday, 8 May, in which a horse by the name of Baron Archer competed, in particular the Betfair activity on the race, okay. Ben Melham the jockey.
Betfair is an internet betting exchange. Ms Hyett was asked a number of questions about the operation of her Betfair account. The undisclosed transcript pages include, among other things, questions about a single transaction deposit of $100,000 into Ms Hyett’s Betfair account, $80,000 of which was paid in cash. Part of that sum was transferred into the Betfair account from a bank account in the name of Ms Hyett and Mr Nikolic. The remainder of the transcript was provided to Mr Nikolic without any redactions.
The allegations table
Another document containing a table summarising the allegations and evidence against Mr Nikolic (‘allegations). The table contained three columns headed ‘Allegation’, ‘Evidence’ and ‘Witness/Document Source’. The ‘Allegation’ column contained general descriptions of particular aspects of Mr Nikolic’s conduct and their effect. For example, the first allegation was that:
NIKOLIC has engaged in physical violence and threatening behaviour against racing industry participants which threatens:
a) The integrity of the racing industry by creating an impression that people may act under intimidation
b) The perception of safety at any racing venue attended by NIKOLIC.
The incident recorded in the ‘Evidence’ column in respect of this allegation was the assault of a taxi driver in respect of which Mr Nikolic pleaded guilty to recklessly causing injury. He was not convicted, but was ordered to seek counselling. The charge was later dismissed. The name of a Detective Senior Constable was recorded in the ‘Witness/Document Source’ Column.
[Redacted]
Deputy Commissioner Patton’s evidence
Deputy Commissioner Patton has been a member of Victoria Police for over 38 years. He made an affidavit on which he was cross-examined stating that following a request from Mr Nikolic’s solicitors he determined that Mr Nikolic should have access to all the information in the Brief of Materials that he received which was not protected information. He requested that other officers of Victoria Police redact the protected information from the Brief of Materials,[5] ‘with the remainder to be served on the Plaintiff to afford him the opportunity to respond to information contained in the materials’.
[5][Redacted].
Deputy Commissioner Patton was provided with the letter from Mr Nikolic’s solicitors of 4 November 2015 and the statutory declaration described above.
Deputy Commissioner Patton stated that the 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. He expressed the opinion 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 the opinions expressed by Superintendent Brigham in his affidavits on these matters.
In oral evidence, Deputy Commissioner Patton stated that he did not redact the documents provided to Mr Nikolic or decide which documents were ‘protected’. He relied on staff working for Superintendent Brigham ‘to conduct those redactions in accordance with the requirements of the Racing Act’. He did consider the extent of the material that he could provide to Mr Nikolic, and said he had provided all that he could. He stated that providing further information would have disclosed protected information.[6] He considered that it was not possible to provide the gist or substance of any protected information, because:
[t]o give the gist of that protected material to Mr Nikolic would have meant advising, in effect, him … [Redacted]
[6]Transcript of Proceedings, Nikolic v Chief Commissioner of Police (No 2) (Victorian Supreme Court, S CI 2016 00194, Ginnane J, 27 April 2016) 29, 32 (‘T’).
[Redacted]
[Redacted]
[Redacted …] As mentioned, he did not carry out the redactions to the transcript, but expected that they would have been carried out in accordance with the appropriate protocols and the legislative requirements.[7] He did not turn his mind to whether the transcript should be protected.
[7]T 46.
[Redacted]
[Redacted]
[Redacted]
[Redacted]
[Redacted]
[Redacted]
[Redacted]
Deputy Commissioner Patton gave evidence that he did not place any weight on the allegations table. He described it as an outline of existing evidence that was not protected material. It contained, for pure administrative ease, a summary of evidence in respect of the unprotected material. He did not see why it would be classified as protected information and could not explain why it was not disclosed to Mr Nikolic.[8]
[8]T 50, L 25–6.
[Redacted]
Superintendent Brigham’s evidence
Superintendent Brigham is a police officer of 34 years standing. 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 other adverse impacts.
He ‘oversighted’ the work of putting together the brief for the purposes of the Exclusion Order. That work was done by the Sporting Integrity Intelligence Unit, who assembled it for him to look at and pass onto Deputy Commissioner Patton.
[Redacted]
In his first confidential affidavit, Superintendent Brigham stated Mr Nikolic was not provided with confidential information because of its status. Nor was he provided with the ‘gist’ of it, because to do that would reveal the very information that is sought to be protected. He also described the contents of the protected information. [… Redacted].
Superintendent Brigham specifically described [… Redacted …] documents in folder 2-2A and explained why he was of the view that they were ‘protected information.’ [… Redacted].
Mr Nikolic’s submissions
Mr Nikolic relied on four grounds, which in turn contained sub grounds. It is convenient to consider the grounds in the following order.
Grounds (a) and (bb)(ii)
Mr Nikolic relied on the following matters in submitting that he had not been afforded procedural fairness.
He submitted that it was a condition of the valid exercise of the statutory power in s 33 of the Racing Act that the decision-maker observed the principles of procedural fairness. Section 33 did not exclude the principles of procedural fairness either expressly or impliedly. Where adverse material that otherwise should be disclosed to comply with the principles of procedural fairness includes confidential information, the decision-maker must consider disclosing the gist or substance of that material and thereby mould the requirements of procedural fairness to the circumstances of the case. The Deputy Commissioner disclosed nothing of what he considered to be ‘protected information’, [… Redacted]. As none of the protected information was disclosed to Mr Nikolic, no question arose of whether the gist or substance of the adverse material had been sufficiently disclosed.
Mr Nikolic submitted that the Deputy Commissioner did not consider the balance that needed to be struck between the public interest against disclosure of confidential information and the obligation to comply with procedural fairness. He submitted that the failure to consider that balance was a breach of the rules of procedural fairness.[9] The different methods contained in s 35E of the Racing Act for hearing a review of an Exclusion Order permit confidential information to be protected rather than disclosed in the usual open court hearing. But, s 35E did not authorise the decision-maker to withhold adverse material from a person who may be the subject of such an order. The Deputy Commissioner should have struck a balance, forfeiting some confidentiality in the information, in favour of providing the gist or substance of adverse allegations. The gist or substance should have been provided either to Mr Nikolic or to his legal representatives upon receipt of confidentiality undertakings.[10]
[9]NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567, [88]–[90], [107] (‘NAVK’).
[10]Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 and Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30, [35].
Mr Nikolic relied on the Deputy Commissioner’s use of allegations contained in the protected information which were unavailable to him. He contended that the defendant’s officers appeared to consider that he was not entitled to procedural fairness by being able to access the protected information save in respect of his known convictions and offences.
Mr Nikolic did not seek to have the protected or confidential information released in open court during the hearing of the review, but contended that the information or its gist or substance should have been disclosed at the earlier stage before the decision to make the Exclusion Order was made.
I note at this point that senior counsel for Mr Nikolic did not suggest any particular words of the gist or substance of the confidential information that should have been provided. He submitted that because no information at all had been provided to Mr Nikolic concerning the confidential information, that that, by itself, was sufficient to show that the defendant breached the requirements of procedural fairness by not considering the release of the gist or substance of confidential information.
Mr Nikolic had attempted to anticipate and respond to matters that might be relied on in deciding to make an Exclusion Order. Thus, he had commented on the Smoking Aces racing fixing allegations and the murder of Mr Samba. Both matters had been the subject of public discussion.
In his statutory declaration and solicitor’s letter, Mr Nikolic responded to the disclosed material and his supposition of the contents of the undisclosed material. He said that as far as he knew he was never a suspect in Mr Samba’s murder and that he had voluntarily attended police premises to be questioned after the murder. In the case of race fixing, he contended that the Smoking Aces investigation was not ongoing, and the release of the protected information could not threaten its viability.
[Redacted]
The summary of unclassified information was a helpful summary of the events that the Deputy Commissioner was going to rely on in respect of criminal matters and was unprotected information. The summary of additional unclassified material detailed matters, including the theft from the supermarket of $20 worth of meat and cheese, none of which was protected information.
The Deputy Commissioner conceded that the allegations table was unprotected material. But it provided a very helpful summary of past incidents and how they might be relied on to justify the Exclusion Order.
The transcript of the stewards’ inquiry into Ms Hyett’s conduct was not protected information. [… Redacted].
[Redacted]
[Redacted]
[Redacted]
Ground (bb)(i)
Mr Nikolic submitted that any failure by the Deputy Commissioner to disclose unprotected information to Mr Nikolic was a jurisdictional error and a denial of procedural fairness, because the defendant had assured the plaintiff that that all unprotected information had been disclosed. [11]
[11]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (‘Lam’).
Mr Nikolic submitted that he should have been provided with the allegations table which described his criminal and disciplinary history and how these past incidents were going to be used to justify an Exclusion Order. He had been provided with documents about the underlying incidents, but not the summary of the allegations, including the statements of their significance, which would have indicated how they might have used by the decision-maker. An example of the potential significance of the statements in the allegations table was that Mr Nikolic ‘was threatening the integrity of the industry and perception of safety at any venue attended by him’. The Deputy Commissioner could not rely now on his disavowal of reliance on the allegations table.
Mr Nikolic also submitted that he should have been provided with the Summary of Unclassified Material, which listed offences of which he had been convicted as it was not protected information. He made a similar submission in respect of the summary of additional unclassified material.
[Redacted]
[Redacted]
Ground (b)(i)
Mr Nikolic submitted that because he was not informed that the Deputy Commissioner was considering his present appreciation of, or ability to control, his behaviour towards others, he had not been given the opportunity to address a critical issue on which the decision was likely to turn. If he had been so informed, he could have addressed the issue by providing relevant information and submissions, for example psychological or psychiatric evidence.
The Chief Commissioner’s submissions
The Chief Commissioner submitted that Mr Nikolic had not satisfied the onus of proving that he had been denied procedural fairness.
The defendant’s case was that the totality of folder 2-2A and the [… Redacted] contained in folder 1-1A contained protected information.
Grounds (a) and (bb)(ii)
The Chief Commissioner submitted that neither the Racing Act as a whole, nor s 33 required the disclosure of protected information to Mr Nikolic. To the extent that the common law and the statutory framework would otherwise require the disclosure of adverse material, they did not require the disclosure of protected information, or its substance to Mr Nikolic. It was not in the public interest to disclose such information.
The Chief Commissioner accepted that in exercising the power contained in s 33, that procedural fairness required him to disclose to Mr Nikolic publicly available material, including for example, details of charges against and convictions of Mr Nikolic.
The need to preserve the confidentiality of an investigation or investigatory techniques did not exclude procedural fairness, but reduced its content in some circumstances to nothing. In other circumstances, procedural fairness will be satisfied by the provision of the gist or the substance of confidential information.
The Racing Act contained a number of features that suggested that protected information did not have to be disclosed to a person against whom an order under s 33 might be made.
The first was that the power conferred by s 33 was reposed in the Chief Commissioner who had access to a wide range of criminal, intelligence and other information respecting the investigation and prevention of criminal activity. The Chief Commissioner would inevitably wish to rely on confidential information and intelligence when exercising the power under s 33. Police officers are subject to requirements of confidentiality.[12]
[12]Victoria Police Act 2013 (Vic), ss 227 and 228.
Secondly, the power given to the Chief Commissioner was to be exercised upon one consideration only, namely, what was ‘necessary in the public interest’. That phrase was ‘entirely protective of the public’ was of wide import and required a discretionary value judgment determined by the subject matter and scope of the statute concerned.[13] It did not seek to protect private interests such as those of Mr Nikolic. An Exclusion Order did not have any effect on his rights and s 33(2) prevented the Chief Commissioner from making an order an order against a person who holds an occupational racing licence, such as a jockey’s licence. Section 33 was not concerned with private rights so the question of providing the gist of protected information did not arise unless that could occur without revealing the contents of the information.
[13]ICN Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140, 162 [20] (French CJ, Gummow and Crennan JJ).
Thirdly, the exercise of the power in s 33 did not depend on any finding of wrongdoing, either civil or criminal. Its purpose was to preserve the integrity of racing and to disrupt the involvement of criminal elements that may affect racing.
Fourthly, s 33 is located in Part 1, Division 5 ‘Exclusion orders by Chief Commissioner of Police’ in which s 35E is also contained. The provisions of that Division should be read so as to achieve harmony between them. The purpose of s 35E was to protect the confidentiality of police investigative material in a review hearing. Accordingly, the Act must intend that that information was also protected at the earlier point when the Chief Commissioner was considering whether to make an Exclusion Order. The Racing Act provides for specific procedures to review Exclusion Orders, which assume for their operation that the protected information has not been disclosed. The Chief Commissioner must be entitled to receive and act on protected information when deciding to make an Exclusion Order, and not have to disclose it or its substance to the person affected by the Order. The public interest factors contained in s 35E(4), that must be considered in determining the method of review adopted, should inform the concept of the public interest contained in s 33 or at least not override it.
Deputy Commissioner Patton considered that the material was protected information and objectively it was. The definition of protected information is wide. Deputy Commissioner Patton based his opinion that the material was protected information on the risk posed to ongoing investigations caused by disclosing investigatory techniques. Superintendent Brigham’s opinion was similarly based.
[Redacted]
Ground (bb)(i)
There is no obligation to provide access to all of the materials that a decision-maker has before them when making the decision. In any event, even if the material that Mr Nikolic was not provided was not protected information, there was no obligation to disclose it because:
(a) it was not adverse to Mr Nikolic;
(b)the gravamen of the conduct described in the confidential information had been disclosed to Mr Nikolic;
(c)Mr Nikolic had not established that the failure to provide the material to him was unfair; and
(d)the principles of natural justice do not require decision-makers to disclose their thinking.
Procedural fairness is always concerned with issues of practical justice.
Ground (b)
The issue of Mr Nikolic’s ability to control his behaviour was raised in the Notice of Intention and was addressed by Mr Nikolic in his solicitor’s letter and his statutory declaration. He was advised of his propensity to engage in violent conduct and of his inability to control his behaviour towards others, and had the opportunity of addressing those matters in his response to the Deputy Commissioner.
The requirements of procedural fairness
Before analysing the evidence and the parties’ submissions, I will state the applicable principles relating to the obligations of natural justice or procedural fairness, as I shall refer to it, in this case.
Under one of the obligations of the hearing rule, a decision-maker must inform a person affected by the decision or disclose to them adverse information that, as Brennan J described it, is ‘credible, relevant and significant’.[14] The High Court has explained that:
“[c]redible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.[15]
[14]Kioa v West (1985) 159 CLR 550, 629.
[15]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96 [17].] (‘VEAL’).
Where information that is already known to a person affected by the decision takes on a new significance at some stage of the decision-making process, the decision-maker may be required to disclose that significance.[16]
[16]See, Gubbins v Wyndham City Council (2004) 9 VR 620, 639; Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338 [47].
The duty of disclosure may go beyond the notification of adverse information in certain circumstances. As Kyrou J said in Shields v Overland:
[i]n appropriate cases, and especially where the decision-maker has exclusive knowledge of specific information, the hearing rule requires the decision-maker to provide to a person affected not only material that is adverse to that person, but all material that has substantive relevance to the matter in issue — including, in particular, any exculpatory material — whether or not the decision-maker proposes to rely upon it. [17]
[17](2009) 26 VR 303, 332 citing R v Wise (2000) 2 VR 287, 294 and R v Ulla (2004) 148 A Crim R 356, 362-3; see also Coutts v Close [2014] FCA 19 [116].
The duty of informing a person of adverse information may be limited by the ‘interests of others’, including obligations of confidentiality,[18] the requirements of national security,[19] or broader concepts of ‘public interest’.[20] In those cases, a balancing exercise of the interests of the individual and the interests of others must be undertaken in order to determine the requirements of procedural fairness in the particular case. As Kitto J said:
[t]his is particularly true where, as here, the statute giving rise to the duty of decision expressly recognizes and aims to protect the interests of others which may come into competition with those of the [person affected by the decision].[21]
[18]See eg, Hamblin v Duffy (No 2) (1981) 37 ALR 297; VEAL (2005) 225 CLR 88.
[19]See eg, Leghaei v Director-General of Security (2007) 241 ALR 141, 146.
[20]See eg, R v Gaming Board for Great Britain; Ex parte Benaim [1970] 2 QB 417.
[21]Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504.
The application of principles of procedural fairness may be moulded to the particular circumstances of each case.[22] The “moulding” of the principles of procedural fairness may require a decision-maker to inform the person affected by the decision of the substance or gist of the information, while otherwise preserving important aspects of confidentiality.[23]
[22]VEAL (2005) 225 CLR 88, 98-99.
[23]Ibid, 99-100.
While each case will depend on the nature of the information in issue, it is useful to consider one example where the gist or substance of confidential information was provided. In Chu v Minister for Immigration and Ethnic Affairs,[24] the Full Federal Court considered that procedural fairness had been provided by giving the gist of allegations against an applicant for a permanent visa. The gist provided included confidential information from confidential sources on the basis of intelligence indicating that he was an associate of known criminals, that he was strongly implicated as being indirectly involved in criminal activity and that, on the balance of probabilities, he was involved in organised criminal activity, including through a business that he part owned.
[24](1997) 78 FCR 314, 321 (Carr and Sundberg JJ).
Procedural fairness in cases concerning confidential information may require that the nature of the allegations be disclosed to the person affected by the decision or his legal representatives, so that advice may be given to him or her about whether to accept the decision-maker’s invitation to make written submissions, and if so, how those submissions should be framed. Again, the identity of the informant need not be disclosed if the decision-maker believes such disclosure might put the informant in peril.[25]
[25]Minister for Immigration, Local Government and Ethnic Affairsv Kurtovic (1990) 21 FCR 193, 223 (Gummow J).
The application of the principles that I have discussed were described by Lord Denning MR in R v Gaming Board for Great Britain; Ex parte Benaim in the following manner:
[s]eeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest. [26]
[26][1970] 2 QB 417, 431.
When a decision-maker represents that a particular procedure will be, or has been, followed as part of their decision-making process, the representation can affect the requirements of procedural fairness in the particular case.[27] Departure from the representation does not of itself amount to a denial of procedural fairness; rather, it must be shown that the procedure adopted was, in fact, unfair.[28]
[27]Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 (‘NAFF’); Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 5th ed, 2013) 442.
[28]Lam (2003) 214 CLR 1.
Where a decision-maker has failed to take a procedural step which they said they would take, ‘fairness is [to be] assessed by examination of the adequacy of the opportunity to be heard’.[29] Where that opportunity is limited by an inability on the part of a person affected by the decision to say what steps they would have taken if the alleged breach of procedural fairness had not occurred, the failure to comply with the representation is more likely to result in “practical injustice” and, therefore, unfairness.
[29]Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 5th ed, 2013) 442.
In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam Gleeson CJ put the matter as follows:
[a] common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations [...] A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[30]
[30]Lam (2003) 214 CLR 1, 13-14.
However, in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[31] the plurality affirmed that the entitlement of a person to complain of the failure of a decision-maker to follow promised procedures does not necessarily depend on the tender of evidence that he or she was misled or prejudiced by statements of the decision-maker. In that case:
[w]hile the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.[32]
[31](2004) 221 CLR 1.
[32]NAFF (2004) 221 CLR 1, 10.
Analysis
In my opinion, the Deputy Commissioner, as delegate of the Chief Commissioner, was obliged to comply with the requirements of natural justice or procedural fairness when deciding to make an Exclusion Order under s 33 against Mr Nikolic. As I understood their submissions, the parties did not disagree with that proposition, but differed as to what it entailed in the circumstances of this case.
Section 33 contains no express or implied indication that procedural fairness is either required or excluded. In such circumstances:
[a]lthough there are no positive words in a statute requiring that the party will be heard, yet the justice of the common law will supply the omission of the legislature.[33]
[33]Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 194 (Byles J); quoted in The Commissioner of Police v Tanos (1958) 98 CLR 383, 395 (Dixon CJ and Webb J).
Parliament is presumed to require a decision-maker whose decision will affect a person to comply with procedural fairness first, unless it expressly stated, or by implication indicated, that that obligation is not imposed and is thereby excluded.[34] Compliance with procedural fairness has become accepted as a condition of the exercise of statutory power. As five members of the High Court stated in Saeed v Minister for Immigration and Citizenship:
[o]bservance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by statute and for that reason is invalid.[35]
[34]Twist v Randwick Municipal Council (1976) 136 CLR 106,110 (Barwick CJ).
[35](2010) 241 CLR 252, 259 [15] ( French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (citations omitted).
Exclusion Orders are intended to protect the public interest. The meaning of the public interest in a particular context is to be discerned from the subject, scope and purpose of the Act.[36] However, the public interest under the Racing Act does not require that the effect of an Exclusion Order on an individual be ignored. As I have concluded, the Act does not disclose an intention to exclude procedural fairness. The public interest under the Act is sufficiently broad to permit the effect of an Exclusion Order on an individual to be included as a relevant consideration. The rights of the individual are a matter of high public interest.
[36]Hogan v Hinch (2011) 243 CLR 506, 544[50] (French CJ) and Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197.
Neither party suggested that the provisions of the Charter of Human Rights and Responsibilities Act 2006 or the interpretative provision in s 32 of that Act assisted in determining the rights that s 33 of the Racing Act conferred on Mr Nikolic.
The making of an Exclusion Order against a person will affect his or her reputation.[37] If made against a jockey, it will affect his or her livelihood and in the case of Mr Nikolic, may affect his capacity to reapply to obtain an occupational racing licence as a jockey. [38]
[37]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
[38]See eg, Heatley v Racing & Gaming Commission (1977) 137 CLR 487 and Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242.
The principles which I have previously discussed, required the Deputy Commissioner before making the Exclusion Order to consider disclosing to, or informing, Mr Nikolic of adverse material that was credible, relevant or significant or exculpatory material unknown to him. If the information was confidential, the Deputy Commissioner was required to consider moulding the means of disclosure to meet that circumstance.
The scheme established by s 35E of the Racing Act for the hearing of reviews of Exclusion Orders does not govern the procedural fairness obligations of a decision-maker when deciding whether to make an Exclusion Order under s 33. Rather, s 35E deals with the separate matter of empowering the Court to adopt a method of hearing the review other than in an open court. Section 35E was enacted by different legislation and at a different time to s 33.[39]
[39]Section 33 was enacted by the Racing and Gaming Acts (Police Powers) Act 2005 and s 35E was enacted by the Major Crime Legislation Amendment Act 2009, see Nikolic v Chief Commissioner of Police [2016] VSC 143 [17]-[26].
Section 35E is designed to safeguard ‘protected information’ as that term is defined in s 35E(6) during the conduct of reviews of Exclusion Orders. The Deputy Commissioner’s conclusion that certain material was ‘protected information’, which he was not permitted by law to disclose to Mr Nikolic, applied a criteria that was not determinative of the exercise of the power conferred by s 33 consistently with the requirements of procedural fairness. The defendant submitted that unless s 33 prevented disclosure of protected information at the point that the making of an Exclusion Order is being considered, there would be no point in protecting that information during any review of the making of that order under s 35E. But there is nothing in the text of s 33 to support such a reading. Rather, the power contained in s 33 must be exercised consistently with the principles of procedural fairness and, where confidential information is involved, by moulding those requirements as is appropriate.[40]
[40]The principles of public interest immunity may also be applicable.
However, although the Deputy Commissioner incorrectly relied on the class of ‘protected information’, he was right to conclude that much of the information was confidential information. The obligations imposed by procedural fairness will reflect the confidentiality of information.
Deputy Commissioner Patton considered that no further information could be provided to Mr Nikolic, although as stated he did so on the assumption that the remainder of the information was protected information and that he was obliged by law not to disclose it. His opinion, that no further gist or substance of the remaining information could be provided to Mr Nikolic, does not bind the Court, not least because of the inappropriate application of the class of ‘protected information’. Neither Deputy Commissioner Patton nor Superintendent Brigham carried out the redaction of confidential information from the documents, that was performed by staff in the Sporting Integrity Unit. However, I take into account the Deputy Commissioner and Superintendent Brigham’s opinions about the confidentiality of the material. There was limited challenge in cross-examination of their opinions in that regard.
Much of the argument presented by the parties focused on whether the relevant documents contained protected information and whether they, or their gist or substance, should have been provided to Mr Nikolic. This may have been due to the fact that when Mr Nikolic requested details of information that the Deputy Commissioner was taking into account he was provided with documents. However, the case must be decided on the grounds of the order to show cause which principally concerned whether Mr Nikolic was informed of the substance of ‘credible protected information’ that the Deputy Commissioner considered in deciding whether to make an Exclusion Order.
Turning to the specific issues in this case, I do consider that the Deputy Commissioner breached the requirements of procedural fairness or natural justice by not providing Mr Nikolic with details of adverse information that was credible, relevant and significant. This obligation included providing documents that contained such information or the gist or substance of such documents. In one instance, there was a breach of procedural fairness by failing to provide Mr Nikolic with information that was exculpatory.
[Redacted]
[Redacted]
[Redacted]
[Redacted]
I therefore consider that Mr Nikolic has established a denial of procedural fairness as alleged in ground (a). It is true that most of the submissions in this section of the case concerned the failure to disclose [… Redacted].
[Redacted]
[Redacted …] The failure to so advise him was a breach of procedural fairness that falls within Mr Nikolic’s ground (a).
One aspect of this particular argument by Mr Nikolic was that he should have been provided with the complete transcript of Ms Hyett’s interview by the Racing Victoria stewards. [… Redacted …] Mr Nikolic was provided with part of the transcript, which contained questions about Ms Hyett’s operation of her Betfair account and the right of other members of the Nikolic family to operate that account. [ … Redacted].
It is unclear why parts of the transcript were regarded as confidential. There was no evidence or submission that Ms Hyett was prevented from informing Mr Nikolic of all the questions that she was asked in the interview or of her answers. [ … Redacted].
[Redacted …] I do not consider that the Deputy Commissioner was required to disclose those documents as they would have revealed covert investigatory and crime prevention activities. It would have been sufficient to inform Mr Nikolic that [… Redacted …] This breach of the hearing rule also falls within ground (a).
[Redacted …] I consider that procedural fairness required that Mr Nikolic be informed of that allegation. This breach of the hearing rule falls within ground (a).
The fifth breach of the hearing rule was that the Deputy Commissioner did not provide Mr Nikolic with the allegations table. As stated above, that document described how Mr Nikolic’s criminal and disciplinary histories, both generally and in respect of particular incidents were viewed. It described the categories of allegations against Mr Nikolic as including, conduct that threatened the racing industry by creating an impression that racing industry participants may act under intimidation and that his conduct affected the perception of safety at any racing venue that he attended and created the perception that rules can be broken causing disharmony and disruption. The allegations table included the charges against Mr Nikolic of drink driving and theft charges of food from a super market.
Deputy Commissioner Patton did not contend that the allegations table was protected information, but said that he did not place any weight on it. But the principles of procedural fairness, to which I have referred, establish that merely because the decision-maker states that he did not rely on material which is adverse, credible, relevant and significant or ‘disavows reliance’ does not overcome the effects of the failure to provide the adverse material to the person affected by the decision.
The sixth breach of the hearing rule was that the Deputy Commissioner, by his solicitor, informed Mr Nikolic that he had been provided with all the unprotected material, when that had not occurred. He did not receive the allegations table, which the Deputy Commissioner did not consider contained protected information. Nor did he receive the full transcript of the Ms Hyett interview by the stewards. I also consider that the transcript was not protected information, because it is not suggested that Ms Hyett was prevented from conveying its contents to Mr Nikolic or anyone else. I consider that the failure to provide these documents to him breached the hearing rule, because the material not disclosed was not protected, but was credible, relevant and significant. This breach of procedural fairness falls within ground (bb).
In reaching the above conclusions, I have considered and taken into account the evidence of Deputy Commissioner Patton and Superintendent Brigham, which I have summarised above. That evidence describes the risks associated with the exposure and disclosure of intelligence and information and investigation techniques, their potential to identify and endanger the source of information and the possible ramifications should that occur. However, I consider that the requirements of procedural fairness that I have described provide an appropriate balance between the matters raised by Deputy Commissioner Patton and Superintendent Brigham and the important right of procedural fairness. For the reasons I have previously stated, I do not consider that the allegations table or the remaining pages of the Hyett transcript are protected information. I also consider that the disclosure of the gist or substance of the other adverse information would have been an appropriate result from the balancing of the competing considerations. [… Redacted].
By way of summary, the breaches of procedural fairness that I have identified, individually and collectively, meant that Mr Nikolic did not receive details of adverse information that was credible, relevant and significant. In one case, [… Redacted …], he did not receive possible exculpatory information that should have been provided to him. Therefore, the Exclusion Order was not made in accordance with law and is of no legal effect.
I next turn to the grounds of Mr Nikolic’s application and to significant submissions underlying those grounds, that I do not accept as establishing breaches of procedural fairness.
Grounds (b) and (c)
I do not consider that Mr Nikolic has established either grounds (b) or (c).
So far as ground (b) is concerned, I do not agree that Mr Nikolic was not notified that the Deputy Commissioner would consider his present appreciation of, or ability to control, his behaviour towards others in deciding whether to make an Exclusion Order. The Deputy Commissioner, when notifying Mr Nikolic that he was considering whether to make an Exclusion Order, stated that his preliminary view included:
the nature and extent of your proven criminal history in Victoria and New South Wales; particularly, in relation to your history of family violence and other violent criminal behaviour. My preliminary view is that this behaviour, which occurred both in and out of the context of racing, demonstrates a propensity for engaging in acts of violence and intimidation. Persons who have been affected by your behaviour include a jockey, other persons involved in the racing industry with whom you have contact, as well as members of the public not connected to the racing industry.
I consider that this was sufficient notification of the Deputy Commissioner’s intention to take into account Mr Nikolic’s present appreciation of, or ability to control, his behaviour towards others.
Mr Nikolic did not press ground (c), which complained that he was not informed that the Deputy Commissioner was considering the impact of the decision to make an Exclusion Order against Mr Nikolic. In his reasons, Deputy Commissioner Patton said that he:
was aware of, and have given consideration, to the potential that the Exclusion Order may have on your future ability to participate in the racing industry in Victoria or in other jurisdictions.
In any event, I consider that it was clear that if an Exclusion Order was made against Mr Nikolic, it would have had an immediate impact on him, including on his possible future career as a jockey. I do not consider that he had to notify Mr Nikolic that he was proposing to take into account that self-evident consequence.
Mr Nikolic’s remaining submissions
[Redacted]
Mr Nikolic submitted that a number of other documents should have been disclosed to him because they did not contain protected information, for example the summary of additional classified material. I do not accept that submission. As previously stated, I consider that the allegations table and the undisclosed pages of the Hyett interview transcript were not protected information and should have been provided to Mr Nikolic. I have also decided that Mr Nikolic should have been provided with the gist or substance of information contained in a number of documents. I consider that that would have been sufficient to provide to him procedural fairness and practical justice with respect to the ‘other credible protected information’ in issue in this proceeding. As I have previously stated, I have taken into account that there was very little challenge to Deputy Commissioner Patton’s and Superintendent Brigham’s evidence about the significance of the documents in issue.
Conclusion
Mr Nikolic has established grounds (a) and (bb) of the order to show cause. Therefore the Racing Exclusion Order made by Deputy Commissioner Patton, as delegate of the Chief Commissioner of Police, against Mr Daniel Nikolic dated 12 November 2015, is invalid and has no legal effect.
I will hear the parties as to the precise form of the order that should be made.
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