Re Michelle Roberts, Honourable Minister for Police and Emergency Services;
[2002] WASC 139
RE MICHELLE ROBERTS, HONOURABLE MINISTER FOR POLICE AND EMERGENCY SERVICES & ORS; EX PARTE REILLY & ANOR [2002] WASC 139
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 139 | |
| Case No: | CIV:1609/2002 | 27 MAY 2002 | |
| Coram: | McKECHNIE J | 31/05/02 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Applications for orders nisi discharged | ||
| A | |||
| PDF Version |
| Parties: | KEVIN WILLIAM REILLY MICHAEL REILLY MICHELLE ROBERTS, MINISTER FOR POLICE AND EMERGENCY SERVICES BARRY ELDON MATTHEWS, COMMISSIONER OF POLICE WILLIAM STUART COLEMAN ANTHONY RICHARD BEECH JENNIFER HILDA SMITH AS THE INDUSTRIAL RELATIONS COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Order nisi for certiorari Test for arguable case Commissioner of Police Loss of confidence in applicants Requirements for natural justice Administrative arrangements for appeal Industrial relations Extent of powers on an enquiry Failure to allow evidence on oath Whether procedurally unfair |
Legislation: | Industrial Relations Act 1979 (WA), s 34, s80ZE Police Act 1892 (WA), s 8 |
Case References: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Menner & Ors v Commissioner of Police (1997) 74 IR 472 Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998 Re Matthews; Ex parte Harrison [2001] WASC 61 Annetts v McCann (1990) 170 CLR 596 Brighton City Corporation v Selpam Pty Ltd [1987] VR 54 Craig v State of South Australia (1995) 184 CLR 163 Environmental Protection Authority & Anor; Ex parte Coastal Water Alliance of Western Australia Inc, unreported; FCt SCt of WA; Library No 960159; 26 March 1996 Foster v Jododex Aust Pty Ltd (1972) CLR 421 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Harrison v Pattison (1988) 14 ALD Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 In Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998 Kioa v West (1985) 159 CLR 550 Mahon v Air New Zealand [1984] AC 808 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 Minister for Police & Anor v WAPU (2000) WAIRC 00174 NCSC v News Corp Ltd (1984) 156 CLR 296 O'Rourke v Miller (1985) 156 CLR 342 Pearlow v Pearlow (1953) 90 CLR 70 Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA; Library No 990195; 16 April 1999 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 R v Commissioner of Police; Ex parte Ramsey [1993] 2 Qd R 171 R v The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR 134 Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
KEVIN WILLIAM REILLY
First Applicant
MICHAEL REILLY
Second Applicant
AND
(Page 2)
- MICHELLE ROBERTS, MINISTER FOR POLICE AND EMERGENCY SERVICES
First Respondent
BARRY ELDON MATTHEWS, COMMISSIONER OF POLICE
Second Respondent
WILLIAM STUART COLEMAN
ANTHONY RICHARD BEECH
JENNIFER HILDA SMITH AS THE INDUSTRIAL RELATIONS COMMISSION OF WESTERN AUSTRALIA
Third Respondents
Catchwords:
Order nisi for certiorari - Test for arguable case - Commissioner of Police - Loss of confidence in applicants - Requirements for natural justice - Administrative arrangements for appeal - Industrial relations - Extent of powers on an enquiry - Failure to allow evidence on oath - Whether procedurally unfair
Legislation:
Industrial Relations Act 1979 (WA), s 34, s80ZE
Police Act 1892 (WA), s 8
Result:
Applications for orders nisi discharged
Category: A
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Representation:
Counsel:
First Applicant : Mr P R Momber & Ms C E Adams
Second Applicant : Mr P R Momber & Ms C E Adams
First Respondent : Mr G T W Tannin & Mr A J Sefton
Second Respondent : Mr G T W Tannin & Mr A J Sefton
Third Respondents : No appearance
Solicitors:
First Applicant : Carol Adams
Second Applicant : Carol Adams
First Respondent : State Crown Solicitor
Second Respondent : State Crown Solicitor
Third Respondents : No appearance
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Menner & Ors v Commissioner of Police (1997) 74 IR 472
Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998
Re Matthews; Ex parte Harrison [2001] WASC 61
Case(s) also cited:
Annetts v McCann (1990) 170 CLR 596
Brighton City Corporation v Selpam Pty Ltd [1987] VR 54
Craig v State of South Australia (1995) 184 CLR 163
Environmental Protection Authority & Anor; Ex parte Coastal Water Alliance of Western Australia Inc, unreported; FCt SCt of WA; Library No 960159; 26 March 1996
Foster v Jododex Aust Pty Ltd (1972) CLR 421
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Harrison v Pattison (1988) 14 ALD
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
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In Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998
Kioa v West (1985) 159 CLR 550
Mahon v Air New Zealand [1984] AC 808
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
Minister for Police & Anor v WAPU (2000) WAIRC 00174
NCSC v News Corp Ltd (1984) 156 CLR 296
O'Rourke v Miller (1985) 156 CLR 342
Pearlow v Pearlow (1953) 90 CLR 70
Perpetual Trustees WA Limited v City of Joondalup, unreported; SCt of WA; Library No 990195; 16 April 1999
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v Commissioner of Police; Ex parte Ramsey [1993] 2 Qd R 171
R v The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR 134
Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
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- McKECHNIE J:
Introduction
1 These are applications for an order nisi directed firstly to the Minister of Police, secondly to the Commissioner of Police, and, thirdly to three Commissioners of the Industrial Relations Commission, to quash a decision made by the Commissioner of Police to dismiss each of the applicants from service, pursuant to the Police Act 1892 (WA) s 8.
The test to be applied for an order nisi
2 In Re Matthews; Ex parte Harrison [2001] WASC 61, I set out my reasons for holding that an applicant must show an arguable case which has some prospect of success.
3 For the reasons then expressed, I apply the same test to these applications.
Prerogative proceedings against the three respondents
4 For the reasons expressed in Re Matthews; Ex parte Harrison, I consider that it is fairly arguable a prerogative writ can issue to quash a decision of the Commissioner under s 8.
5 The position in relation to the Minister of Police is perhaps a little different as there is no evidence regarding her decision. With considerable hesitation I have concluded that if an arguable case is established that the Commissioner breached the rules of natural justice or caused procedural unfairness, then there is an arguable case that a writ of certiorari may also lie to quash the Minister's approval.
6 The position of the Commissioners of the Industrial Relations Commission named in the originating motion is a little different. I will hereafter refer to them jointly as the "IRC" to differentiate them from the Commissioner of Police, whom I refer to as "the Commissioner". I will refer to the Western Australian Industrial Relations Commission as "the WAIRC".
7 The IRC has filed a notice indicating that they do not intend to be heard by counsel and will abide by the decision of this honourable Court, save as to any decision concerning costs against them. Nevertheless, there
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- are legal issues raised by the Commissioner in respect of their position which require consideration.
The originating motion
8 The originating motion seeks the following substantive orders:
"1. The [Minister] show cause before the next available sitting of the Full Court as to why a Writ of Prohibition, or in the alternative a Writ of Certiorari, should not be issued to refrain her from signing the [Commissioner's] recommendation to remove the Applicants from the Western Australian Police Service pursuant to Section 8 of the Police Act 1892 (WA) as amended.
2. The [Commissioner] show cause before the next available sitting of the Full Court as to why a Writ of Certiorari should not be issued to quash his decision to remove the Applicants from the Western Australian Police Service, pursuant to Section 8 of the Police Act, 1892 as amended.
3. The [IRC] do show cause before the next available sitting of the Full Court as to why a Writ of Certiorari should not be issued to quash the recommendations made to the Acting Minister for Police and Emergency Services on 1st May 2002 relating to an inquiry conducted by them under Section 80ZE of the Industrial Relations Act."
9 The grounds of the application set out facts in narrative form. At par 28 of the grounds it is pleaded that the Commissioner and the IRC denied the applicants natural justice as a consequence of which the IRC made recommendations that the decision of the Commissioner to remove them be confirmed. The denial of natural justice was particularised as follows:
"A. The failure of the Commissioner to provide the applicants with discovery and inspection of relevant documents prior to the issue of the appeal to the IRC.
B. Denying the applicants the right to give evidence under oath about the circumstances leading to the Commissioner issuing his notice of intention to remove.
C. By restricting itself to considering only written material the IRC were unable to test the probative value of the
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- applicants' submissions supporting the appeals and the Commissioner's submissions of his reasons for losing confidence in the applicants.
- D. The Commissioner had failed to observe substantially the protocol in relation to discovery and inspection of documents as a consequence of which process the process of removal of the applicants under s 8 was a denial of natural justice and a failure of procedural fairness."
10 The grounds continue in narrative form until ground 37, and following, which are as follows.
37. The applicants say the circumstances which gave rise to the Commissioner losing confidence in them was a single but comprehensive allegation that each of them in concert with Detective Senior Sergeant Geoffrey O'Reilly, Detective Sergeant Silvio Cinquina and Senior Constable Paul O'Keefe [sic], were engaged in the confiscation of drugs for the purpose of selling or supplying them to a third party.
38. The applicants say that the Commissioner and the IAC have misdirected themselves in concluding that some officers involved in a joint activity can be returned to police active service and others not, when either all of them were acting improperly or all of them were not.
- This leads to a final submission that to apply different standards of professional conduct as between the applicants and other officers involved in the joint activity, is harsh and oppressive and lacks procedural fairness.
Evidence adduced at the hearing of this application
11 The applicants rely on an affidavit of the first applicant Kevin William Reilly, sworn 10 May 2002, and an affidavit of the second applicant Michael Reilly, sworn 9 May 2002. The applicants are brothers.
12 The applicants also rely on a supporting affidavit from their solicitor Carol Elizabeth Adams, sworn 15 May 2002, and a supplementary affidavit of Carol Elizabeth Adams, sworn 25 May 2002.
13 At the commencement of the hearing, counsel for the Commissioner objected to portions of the affidavits of the applicants. He argued that the application was interlocutory in nature and that no grounds of information
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- or belief, as required by O 37 r 6(2a) of the Supreme Court Rules, had been set out. There is substance in this objection. However, as the content of the affidavits was largely documents which were annexed, and unchallenged, I considered there was no injustice in allowing the application to proceed on the affidavits and granting the applicants leave to file supplementary affidavits in due course.
14 As to Michael Reilly's affidavit, objection was also taken to the inclusion of Annexure "MR1" which consists of s 8 Notices of Intention to Remove a number of officers, in addition to the applicants. I indicated that I would not rule on that objection until I had an opportunity to hear the argument and assess the relevance. Having now done so, I consider those notices are relevant to the grounds exposed in pars 37 - 39 of the Notice of Originating Motion and overrule the objection.
15 Without objection from the applicants, the respondents filed an affidavit of Raymond John Andretich, sworn 24 May 2002, and an affidavit of Edwin Graeme Lienert, sworn 24 May 2002. These affidavits were received and taken as read. Mr Andretich was counsel for the Commissioner at the hearing before the IRC. Mr Lienert is Assistant Commissioner (Professional Standards) Western Australia Police Service.
16 In considering this application, I have had regard to all the evidence which has been adduced.
The Protocol
17 In order to resolve the issue as to whether the applicants established an arguable case for the grant of an order nisi, it is necessary to consider in some detail the factual background and events which gave rise to this application. Before undertaking that exercise, however, it is now necessary to make reference to the Administrative (Appeal) Arrangements which have been in place for some years. The arrangements were described by counsel for the applicants as a "Protocol" and I shall use that description. Each party has been content to rely upon its terms, and so shall I, in determining the application. However, I have grave doubts as to the legal effect of aspects of the Protocol as will appear. There is also a question as to the extent to which the holder of a statutory power can fetter his or her discretion in the exercise of that power.
18 The Police Act provides for alternative means by which an officer may be dismissed.
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19 Section 23 provides for disciplinary measures and sets out a procedure to be followed when a charge is made of an offence against the discipline of the Police Force. Punishments for a proved offence can include discharge or dismissal from the Police Force.
20 Section 8 provides relevantly, as follows:
" ... the Commissioner of Police may, from time to time, as he shall think fit, suspend and, subject to the approval of the Minister, remove any non-commissioned officer or constable; ... "
21 Whether the exercise of power under s 8 is an exercise of the prerogative as Anderson J thought in Menner & Ors v Commissioner of Police (1997) 74 IR 472, or a statutory power as the Full Court considered in Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998; does not relevantly matter because in any event it is undoubted that the power is very wide. The decision is vested in the Commissioner alone. The power to approve or withhold approval is vested in the Minister alone.
22 No doubt in order to introduce some measure of review into the exercise of power, a Protocol was developed between the Commissioner and the Police Union and endorsed by the Government on 10 August 1998. Although the Protocol was intended to operate as an interim arrangement for 12 months only, the parties accept that it continues to apply today. Features of the Protocol are, by Part A, a notice of intention to recommend to the Minister the removal of an officer, the opportunity for the officer to respond, and a requirement that the Commissioner consider the response and advise the officer his decision.
23 The Protocol, by Part B, allows for an appeal to the WAIRC which, after hearing, may recommend the confirmation or recommend the reversal of any recommendation made pursuant to s 8. The Protocol is silent as to whether the Commissioner must accept the recommendation.
24 From that outline, I turn to specific provisions of the Protocol which have relevance in Part A.
"PART 1 – COMMISSIONER'S DECISION
1. Upon receipt of a complaint concerning a Member, the Commissioner shall appoint an Investigating Officer to conduct an inquiry into the complaint and the
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- Investigating Officer or Assistant Commissioner (Professional Standards) to provide a written report (a summary of investigation) to the Commissioner.
- 2. The Commissioner receives a written Summary of Investigation and any other documents and materials.
3. On the basis of the information referred to in Clause 2, the Commission determines that:
...
(c) the Member's conduct or behaviour in a particular occasion or over a period of time shows:
(i) a lack of integrity;
(ii) a lack of honesty;
(iii) a sustained failure to perform the function of the Member's Office; or
(iv) serious misconduct
such as to cause the Commissioner to lose confidence in the member.
PART 2 – MEMBER'S RESPONSE
5. The Member:
(a) has 21 days from the date of receipt of Notice of Intention or receipt of copies of any documents which the Member is entitled to receive, whichever is the later, (or such further period as may be approved by the Commissioner) to respond to the Notice of Intention;
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- (b) must be provided with the Commissioner's reasons for the decision to issue the Notice of Intention and the Summary of Investigation and any other documents and materials on which the Commissioner has relied in deciding to issue the Notice of Intention;
(c) shall have the right to inspect all materials collected for the purpose of the Investigation by the Investigating Officer in relation to the Member, save for documents to which legal professional privilege or public interest privilege apply; and
(d) in a case where inspection of privileged documents is sought, shall be provided with a list identifying the documents for which privilege is claimed and the grounds for such claims.
6. The Member will be given special access on a 'refresh the memory basis', to materials already seen or created by the Member in the course of duty, which are relevant to the reasons for the decision to issue the Notice of Intention.
PART 3 – COMMISSIONER'S ASSESSMENT OF MEMBER'S RESPONSE
7. (a) Upon receiving the Member's Response, the Commissioner must assess the Member's Response and;
...
(iii) decide that he has lost confidence in the Member, stand down or continue to stand down the Member ... and issue a recommendation that the Minister ... approve the removal of a Non-Commissioned Officer or Constable ('Commissioner's Recommendation').
...
8. The Commissioner must give the Member notice of any Commissioner's Recommendation ... within seven (7) days of making the Commissioner's Recommendation:
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- (a) attaching a copy of the Commissioner's Recommendation;
(b) stating the reasons for the decision to issue the Commissioner's Recommendation;
(c) providing all further material on which the assessment of the Member's Response is based (if any); and
(d) advising in writing that the Member has the right, within fourteen (14) days of the date of receipt of the Notice of Commissioner's Recommendation, by written request to the Minister, setting out the grounds to seek an appeal of the Commissioner's decision to issue a Commissioner's Recommendation ('Request for Appeal')."
The Application of Part A of the Protocol in the present case
25 The applicants challenge the performance of some aspects of Part A of the Protocol relating to the right to inspect documents collected during the investigation. Otherwise, however, the performance of the Protocol is unchallenged.
26 On 18 February 2000, the Commissioner issued to Michael Reilly a Notice of Intention to Remove from Police Force of Western Australia on the following basis:
"The information and matters contained in the attached Summary of Investigation, has caused me to lose confidence in either:
(a) your capacity to conduct yourself within the required standards of ethical conduct and integrity necessary to effectively discharge the functions of your office; or
(b) your competence to perform these duties at a level consistent with your rank and experience.
The allegations giving rise to that loss of confidence are as follows:
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- 1. A reasonable suspicion exists that you engaged in serious misconduct in that you were involved in or had knowledge of the seizure of morphine tablets from A3 other than in the course of a legitimate police operation.
2. Alternatively, the investigation you purportedly carried out in relation to A3 selling morphine tablets demonstrated a failure to comply with accepted investigative practices and procedures.
3. A reasonable suspicion exists that you engaged in serious misconduct in that you were involved in or had knowledge of an attempt to sell and supply morphine tablets or some other illegal activity.
4. Alternatively, the investigation you purportedly carried out into Lowe demonstrated a failure to comply with accepted investigative practices and procedures."
27 In respect of the applicant Kevin Reilly, the Notice of Intention to Remove recited the same loss of confidence. The allegations giving rise to the loss of confidence were as follows:
"1. A reasonable suspicion exists that you engaged in serious misconduct and that you were involved in or had knowledge of the seizure of morphine tablets from A3 other than in the course of a legitimate police operation.
2. A reasonable suspicion exists that you engaged in serious misconduct in that you were involved in or had knowledge of an attempt to sell and supply morphine tablets or some other illegal activity.
3. Alternatively, the investigation you purportedly carried out into Lowe demonstrated a failure to comply with accepted investigative practices and procedures.
4. You failed to comply with accepted procedures when having contact with an informant and developed an improper association with an informant.
5. You neglected your duty in failing to take appropriate action upon receipt of information about a crime."
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28 By letter bearing the date 23 February 2000, the Legal Manager of the Police Union wrote to the Commissioner:
"Would you please advise whether or not there are any other documents or materials on which you relied in deciding to issue the Notices of Intention for each of the six (6) officers?"
29 On 22 February (sic) the Commissioner responded:
"There was no additional documents and material on which I relied in deciding to issue the Notice of Intention. Also I have not seen any material in relation to any criminal charge/s sought to be preferred against any of the officers."
30 In response to a further query on 25 February 2000 from the Legal Manager, the Commissioner reiterated on 28 February 2000 that there were no other documents upon which he relied.
31 The applicant Michael Reilly provided to the Commissioner a lengthy response which, though undated, appears to have been delivered before 5 December 2000.
32 The applicant Kevin Reilly responded somewhat more briefly in a response dated 6 June 2001. That date may be an error and is probably 6 June 2000. Nothing turns on the date. The position of the applicant Kevin Reilly was a little more complex than that of his brother Michael. On 16 January 1999 the applicant Kevin Reilly resigned from the Police Service. Subsequently, the Police Union sought a declaration before the WAIRC that "in the circumstances surrounding the resignation, there is merit in the Commissioner of Police offering Kevin Reilly re-employment in the position occupied by him prior to his resignation". The Commissioner saw no merit in the proposal. The WAIRC, specifically Commissioner Gregor, noted in the course of his reasons:
"I have had the advantage of extensive viva voce evidence from a number of witnesses, which was the subject of rigorous and testing cross-examination. I have reached opinions and conclusions about various peoples' conduct which I will detail in these Reasons for Decision."
- Commissioner Gregor made the declaration. Subsequently, the Full Bench upheld an appeal by the Commissioner holding that the WAIRC had no power to make the declaration.
33 Pursuant to the Protocol, the Commissioner assessed the responses.
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34 On 5 February 2001 the Commissioner sought the Minister's approval to remove both applicants (and others) from the Police Service.
35 In the letter to the Minister, the Commissioner outlined the decision process in summary:
"The approach I have then taken is, for the purpose of analysis, to assume the possibility that the allegations may be false and that there never was a seizure, as alleged by A3, nor any drugs being proffered for sale, as alleged in the Summary. Given that possibility, the question that then needs to be decided is whether the actions of the police officers are such that they can be trusted to carry out future duties, given that the Service and the officers within are always potentially open to allegations being made by informants and criminals with whom they deal on a regular basis.
This Service has made great efforts to ensure that there are procedures and processes in place which when followed can manage the risk and demonstrate, in the face of an allegation, that the actions of police have been legitimate and honest. Unfortunately, there is a wealth of material in the Summary which indicates a cavalier attitude taken by all the officers and in some instances, the procedures designed to protect the officer and the Service have been totally ignored.
Documents have not been properly completed, the officers were outside their area of work, supervisors have not been informed on key points, activities undertaken are unrecorded, the informant management plan has been ignored and suspicions of independent police officers have been raised by conversations held and actions observed.
This attitude by the officers has made it difficult for them to demonstrate that their actions were as they claim, honest and honourable, and they remain unnecessarily exposed, as does the Service to these allegations of corruption and in so doing, lend credibility to what the officers claim did not occur. The point needs to be made, that these officers are not junior police officers, all have considerable experience and varying levels of rank and knowledge. This is all evident from the testimonials supporting their abilities as investigators over a period of some years."
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36 As part of the process for reaching his decision the Commissioner met with the officers, as he said:
" ... given the complexity of the case, the extent of litigation to date, some of the issues and particular circumstances I agreed to their request and met with them. This was helpful in clarifying some issues in coming to a determination as to whether or not to recommend any or all should be dismissed from the Police Service."
Part B of the Protocol: Appeal
37 On 21 February 2001, the Assistant Commissioner (Professional Standards) wrote to each of the applicants as follows:
"In accordance with the agreed Administrative (Appeal) Arrangements, the Commissioner has requested that I advise you of and provide you with access to the further material on which his assessment of your response was based."
- The material was summarised and copies provided.
38 On 16 February 2001 the applicant Michael Reilly notified the Minister as follows:
"In accordance with the Administrative (Appeal) Arrangement between the Respondent and the Minister for Police, the Applicant seeks to appeal the Respondent's decision as it is harsh, oppressive and unfair for the following reasons:
1. The Applicant refers to the letter of Kevin Reilly dated 19th February 2001, addressed to the Minister for Police, and adopts the grounds contained therein insofar as they apply to the Applicant's circumstances in their entirety.
2. The Applicant denies that he has in any way acted improperly or departed from Police procedure to such an extent that the Respondent can no longer retain confidence in him to conduct myself with the required standards of ethical conduct and integrity which are necessary for a Police Officer to effectively discharge the functions of his or her office."
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39 The amended application of the applicant Kevin Reilly (19 February 2001) is far more detailed. In summary, he alleged that the Commissioner should not have ignored the recommendations of Commissioner Gregor, that there was a concern that the Telecommunications Interception Act 1979 of the Commonwealth was breached, despite the fact that the Commissioner said he did not make use of intercepted telephone calls. He alleged that the investigation was conducted in a grossly negligent way.
The Nature of the Appeal process
40 Although the Protocol refers to the review of the Commissioner's decision as an appeal, and the Protocol has many of the indications of an appeal, in law it is no such thing. It is an enquiry and a report to the Minister for Labour Relations.
41 It is necessary to understand the legal nature of the process in order to determine whether a prerogative writ can arguably be granted to quash a decision of the IRC.
42 It seems to be accepted by the parties, for the purpose of this application, that the provisions of the Industrial Relations Act 1979 do not apply to removal of a police officer by the Commissioner under the Police Act s 8. For present purposes I will accept that view of the law. The reason why the Protocol was developed seems to be founded on the notion that the Industrial Relations Act 1979 does not apply.
43 The Protocol itself does not detail how an application, not in respect of an industrial matter, comes to be heard by the IRC. The procedure is set out in the Cabinet Summary Sheet which bears the annotation "Endorsed by Cabinet 10.8.98":
"The appeal is heard by the WAIRC convened under Section 80ZE of the Industrial Relations Act 1979. Section 80ZE allows the Minister for Labour Relations to refer to the WAIRC a matter for enquiry and report which in the opinion of the Minister may affect industrial relations. These enquiries can only deal with issues that are not industrial matters. In that respect the process can be distinguished from procedures and matters normally dealt with by the WAIRC.
The WAIRC reports to the Minister for Labour Relations who in turn will refer the report to the Minister for Police for his consideration. The report is not binding on either Minister."
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- I was informed from the bar table that this procedure was followed in the present case.
44 The Industrial Relations Act s 80ZE provides:
"80ZE. Enquiries
1. The Minister may refer to the Commission for enquiry and report under this section any matter that, in the opinion of the Minister, affects or may affect industrial relations and the Commission shall enquire into that matter and report to the Minister thereon.
2. Subsection (1) does not apply to an industrial matter or a matter that is otherwise within the jurisdiction of the Commission under this Act.
3. This section has effect subject to section 7C."
"CONDUCTING AN APPEAL
2 ...
(a) firstly, it must consider the Commissioner of Police's reasons for the decision to remove the applicant from the Western Australia Police Service;
(b) secondly, it must consider the case presented by the applicant as to why the removal was harsh, oppressive or unfair;
(c) thirdly, it must consider the case presented by the Commissioner of Police in answer to the applicant's case:
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- In passing, I observe that the last sentence is an odd, and possibly ineffective, provision for what is no more than an administrative arrangement, but no issue arises in respect of it.
46 Importantly, par 6 of the Protocol provides, so far as relevant for present purposes:
"6. The provisions of Part II Division 2 of the Industrial Relations Act 1979 (WA) apply to an application for a review subject to the following modifications:
...
(c) New evidence may not be adduced before the WAIRC unless the Commission gives leave.
(d) The Commission may grant leave in such circumstances as it thinks fit and having regard to the nature of proceedings and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances:
(i) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner of Police has acted upon wrong or mistaken information.
(ii) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner of Police was unreliable, having been placed before the Commissioner of Police maliciously, fraudulently or vexatiously; or
(iii) where the Commission is satisfied that the new evidence might materially have affected the Commissioner of Police's decision.
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- 8. The WAIRC may take evidence on oath or affirmation.
...
12. The WAIRC may recommend the confirmation of or recommend the reversal of any recommendation made pursuant to section 8 of the Police Act 1892 (WA)."
47 I have set out these provisions because they are relevant to one of the applicants' arguments, which is that they were denied the opportunity to give evidence on oath. Before dealing with that and the other substantive aspects of the application, it is necessary to conclude an analysis of the Protocol and the Industrial Relations Act in order to deal with an argument advanced by the Commissioner about the lack of jurisdiction in this Court to grant certiorari against the IRC.
48 The Industrial Relations Act Part II Division 2 is entitled "General jurisdiction and powers of the Commission". Section 34 falls within Part II Division 2 and provides:
"Decision to be in form of award, order, or declaration
...
(3) Proceedings before the President, the Full Bench, or the Commission shall not be impeached or held bad for want of form nor shall they be removable to any court by certiorari or otherwise.
(4) Except as provided by this Act, no award, order, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court on any account whatsoever."
49 In the section dealing with Appeals to Full Bench from decision of Commission under s 49(1) it is provided: " ... 'the Commission' means the Commission constituted by a Commissioner, but does not include the Commission exercising jurisdiction under section 80ZE."
50 In the present case, the matter was heard by three Commissioners. I assume this was done under an administrative arrangement with the WAIRC. The Commission would not appear to be sitting as the
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- Commission in Court Session but simply sitting or acting at the same time: s 14(3).
Can Certiorari be granted against the IRC?
51 Counsel for the Commissioner argues that certiorari cannot lie against the decision made by the IRC by reason of s 34. Although the IRC has indicated an intention not to be heard in these proceedings (a position which is entirely appropriate), nevertheless I consider that a submission in this regard, being a submission on a pure question of law, is available to the Minister and Commissioner to make. The applicants' counsel replied to it. I will deal with it.
52 Section 80ZE contemplates that a matter referred for an enquiry is not otherwise a matter within the jurisdiction of the WAIRC but one that, in the opinion of the Minister, affects or may affect industrial relations. The WAIRC has no adjudicative role on an enquiry. Its sole function is to report to the Minister. One thing seems plain to me: The Protocol cannot confer any jurisdiction on the WAIRC. The IRC's powers in the present case are limited to enquiry and report. The Protocol purports to determine a process by which appeals are to be heard. That purported process includes a modification of Part II Division 2 of the Industrial Relations Act 1979. However, it is difficult to see how any of the powers within Part II Division 2 can be exercised. The general jurisdiction of the WAIRC is in respect of any industrial matter which, by definition, an enquiry is not. No doubt there is power in the IRC to determine the way in which it will conduct an enquiry. It may, of course, do this by reference to the Protocol. The matters contained in Part B.2. of the Protocol (supra) may, if adopted by the IRC be within the grant of power to make enquiry. Items 3, 4, 5, 6, 7 and 8 of Part B.2. of the Protocol are difficult to justify as arising from the power to enquire. They seem to go well beyond the power to inquire and purport to give jurisdiction to the IRC to inquire in a particular way and to take evidence on oath. The jurisdiction of the WAIRC is limited to jurisdiction over industrial matters: s 23(1). In exercising that jurisdiction, the WAIRC is invested with powers under Part II Division 2 particularly by s 27. There are no corresponding powers given to the WAIRC when it is holding an enquiry under s 80ZE.
53 A critical difference between holding an enquiry under s 80ZE and holding an enquiry and dealing with an industrial matter is that in the latter case the WAIRC ultimately determines rights and makes enforceable orders. In contrast, under s 80ZE it shall only enquire and
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- report. It is for this reason that by s 49 the jurisdiction of the WAIRC under s 80ZE is excluded from the appellate process. There is nothing upon which to appeal. No rights are determined and no orders are made.
54 I am conscious of the limited scope of my judgment at this preliminary stage. I must only determine whether the applicants have established an arguable case that certiorari may lie against the IRC. In my opinion it is fairly arguable that the provisions of s 34 do not apply to an inquiry under s 80ZE. The provisions of s 34 apply only to proceedings where jurisdiction is given under Part II Division 2 of the Act. In consequence, it is arguable that a prerogative writ can lie to the IRC in present circumstances.
55 Counsel for the Commissioner did not advance any other basis for contending that certiorari did not lie to quash the decision of the IRC. It may be that the report has no legal effect and carries no legal consequences. In that case, certiorari would not lie: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. However, as no argument was addressed on the point, I will not consider it further.
56 For completeness, I should say that if the Protocol constitutes an agreement between the applicants and the Commissioner and the Minister for the resolution of their dispute, I do not consider that it would be open in such an agreement to oust the jurisdiction of this Court merely by providing that the provisions of Part II Division 2 of the Industrial Relations Act apply to the review with the consequence that s 34(3) becomes operative.
Flaws in the discovery process leading to procedural unfairness
57 The applicants' argument is that the Commissioner failed to provide discovery pursuant to the terms of the Protocol. It appears to be accepted that the Commissioner did provide the reasons for his decision, the summary of the investigation, and the other documents and materials on which he has relied.
58 But it is argued that the applicants, for various reasons, were denied the right to inspect all materials collected for the purposes of the investigation before making their response: Protocol Part A.5.(c). I am prepared to accept, for the purposes of this application, that such material was not made available in accordance with the Protocol. The failure to provide such material may in an appropriate case give rise to an arguable case that there has been procedural unfairness such as to justify the grant
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- of certiorari. However, it is necessary to look at the facts of each case. The possibility of procedural unfairness does not mean that there was actual unfairness. If there is no evidence of actual unfairness or, to put it another way, if a breach of the rules of natural justice did not give rise to any actual harm, then a writ should not issue. Mr Andretich deposes as to events in the proceedings before the IRC:
"5. In the course of the proceedings informal discovery of documents was provided to the Applicants on behalf of the Second Respondent.
6. In the course of informal discovery being prepared the Anti-Corruption Commission ('ACC') raised concerns about certain documents in the possession of the Second Respondent being disclosed by the Second Respondent. The ACC wished to ensure that confidentiality provisions of the Anti-Corruption Commission Act 1996 were not breached and that the identities of various complainants and witnesses were protected.
7. The ACC indicated that, subject to minor editing of certain documents, such as deleting the residential addresses and occupations of certain witness, it would not object to the proposed disclosure of the documents provided that the proceedings were held in camera and appropriate suppression orders were made.
8. At a directions conference before the Third Respondent on 30 May 2001 application was therefore made to the Third Respondent for appropriate suppression orders. The Third Respondent issued a suppression order on 11 June 2001. ...
9. Following application by the Applicants on 8 June 2001 in relation to the adequacy of discovery the Third Respondent ordered that the Second Respondent file an affidavit of discovery. ... "
"(1) THAT by close of business Tuesday 12th June, the Commissioner of Police provide an affidavit of discovery which sets out all documents and materials covered by the provisions of the 'Police Officers - Review of
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- Dismissal Recommendations' (Schedule A - Access to Information clause 1(i) and (ii)),
AND in relation to 'Chain of Command' documents and material, these are to be discovered only if they come within the scope of the terms of the 'Access to Information' provisions, ie 'all of the documents and other material on which the Commissioner of Police has relied in making his recommendation under Section 8 of the Police Act 1892',
AND 'all materials collected for the purpose of the investigation by the Investigating Officer in relation to the member, save for documents to which legal professional privilege or public interest privilege apply'."
- The Commissioner filed an affidavit of discovery on 14th June 2001.
60 On 18 June 2001 the IRC stated:
"(1) If the basis of the application received this morning is denial of Natural Justice by the Commissioner of Police i.e. the appellants have been denied the opportunity to view documents or material and make submissions to the Commissioner of Police which would exonerate them, THEN those documents or material should be identified in affidavits and the basis of how these documents or material would have exonerated the appellants should be set out so that the representatives of the Commissioner of Police can have the opportunity to take instructions and respond.
(2) Mr Momber has told us that in 2000 documents were requested from the Commissioner of Police and that the request was refused. Mr Momber says that these documents have now been discovered and that this is apparent from the affidavits delivered at 9:40am today.
The Commission requests Mr Momber to identify the particular documents he refers to support the officers' assertions that if they had been given the opportunity to address the contents of those documents then the Commissioner of Police may have reached a different conclusion under Section 8 of the Police Act."
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61 The IRC sat the next day and at the conclusion of the proceedings, the IRC stated:
"The Commission considers that as a general proposition an alleged breach of natural justice does not dispose of the Commission's duty to conduct a review under section 80ZE of the Industrial Relations Act. Here the inquiry is not concluded at this stage of proceedings for the purpose of recommending the confirmation or reversal of the recommendations made by the Commissioner of Police pursuant to section 8 of the Police Act. Indeed it has been conceded that a breach of natural justice can be remedied in the course of these proceedings. And of itself a breach of natural justice does not dispose of an issue involving a dismissal which is alleged to be harsh or unfair."
62 On 13 August 2001, the IRC in dealing with another matter, namely the submission for officers to give evidence on oath, said in the course of their reasons:
"Mr Momber stated that each of the officers prior to 16th June 2001 had not had access to all discoverable documents, but having said that, advised that each of the officers if they had had the documents at the various times of their interviews, would not seek to change one word of their answers, grounds for appeal or the testimony they have given. However, the officers would have referred the Commissioner of Police to the findings of the officers of the Internal Affairs Unit which it is claimed show that there is no criminal conduct. It is submitted that the summary of investigation does not reflect the findings of the Internal Affairs Unit. We say that even if this is the case that would be apparent from all of the documents before us."
63 The application against the Commissioner seeks to quash his decision to remove the applicants from the Western Australia Police Service. The process of removal has to be seen in context. It commenced with the Notice of Intention to Remove on 18 February 2000, proceeded through the consideration of the applicants' responses in December 2000, then the recommendation to the Minister to approve the removal on 5 February 2001 which triggered the appeal.
64 On 1 May 2002 the IRC reported and recommended confirmation of the decision to remove in relation to the applicants. On 8 May 2002 the
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- Commissioner, with the approval of the Minister, removed the applicants from the Police Service with effect from midnight.
65 The documents which the applicants claim they should have received did not influence the Commissioner's decision of 5 February 2001. They might have been considered by the applicants in formulating their response to the Commissioner had they been available. However, from what appears above, counsel indicated to the IRC that even if the applicants had the documents, they would not seek to change one word of their answers, grounds of appeal, or testimony.
66 It is undeniable that in the course of the review process before the IRC they received access to the documents and had the opportunity to make submissions on them. Mr Momber's submission, according to Mr Andretich in his affidavit par 16, was as follows:
"Mr Momber advised the Third Respondent that the Applicants had partly inspected the material made available on discovery and that while no one document was determinative, if you looked at them all in context, there was no evidence of wrong doing on the part of the Applicants. On the merits only one conclusion could be reached on the documents and that was in favour of the Applicants."
- At par 25:
"At the commencement of the proceedings on 13 August Mr Momber indicated, amongst other things, that the Applicants had now been able to read, collate and extract relevant portions of documents to which the Applicants had not been given access before the appeal but which had been discovered on appeal. Having done so, Mr Momber advised the Third Respondent that the Applicants would not change one word of anything they had done."
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- before the IRC and shown in any event to have no effect on the outcome. I conclude that the applicants have failed to establish any arguable case in respect of procedural unfairness in relation to documents.
Lack of procedural fairness in failure to allow an oath to be taken
68 In the course of argument, I raised with the applicants' counsel whether the consequence of holding that Part II Division 2 was inapplicable meant the IRC had no power to administer an oath. Counsel acknowledged this as a "crisis question". If there was no power to administer an oath, then necessarily the applicants' argument that there was a breach of procedural fairness by failing to allow the applicants to give evidence on oath would have to fail.
69 This was not an argument advanced on behalf of the Minister or the Commissioner who were arguing for the inclusion of the jurisdiction provided by Part II Division 2, particularly the provisions of s 34(3). Part II Division 2 includes s 27 which gives the power to administer an oath. In the circumstances, I should set this possibility to one side, notwithstanding that I think it raises considerable questions for resolution. This application is not the place for resolution of them. I will consider the applicants' arguments as to lack of procedural fairness on the assumption that the Protocol applied and that the IRC had power in an enquiry to administer an oath.
70 The first duty of the IRC under the Protocol is to consider the case on the papers. However, there is a discretion given under the Protocol for the IRC to allow new evidence. The circumstances are set out in the Protocol.
71 The submission by Mr Momber to the IRC was, as deposed to by Mr Andretich:
"27. Mr Momber then applied for the Applicants to give evidence on oath so that they could be tested on what they had said. He expressed concern that the impact of what the Applicants had to say in their responses would be lost. I understood that nothing more would be said by the Applicants than to verify on oath their responses and submissions.
...
30. ... The Applicants did not avail themselves of an opportunity afforded to them by the Third Respondent to
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- make a brief oral statement from the bar table, if they so wished."
72 The IRC made a statement as follows:
" ... We say that even if this is the case that would be apparent from all of the documents before us. We do not need oral evidence for that to be shown to us. In any event it is not new evidence. We consider that it is the role of counsel to explain the points to be made in this regard.
The officers concerned have attested to their honesty and integrity in documents before us and have done so before the Commissioner of Police at all times during the period of the investigation and of the appeal process. It would not be new evidence for them to reaffirm this before us under oath. We understand this has been the only basis upon which oral evidence has been sought to be led."
73 In the course of argument before me, it did not seem to be suggested that oral evidence would have taken the matter beyond that which the IRC apprehended. It was emphasised that the difference was the witnesses would be on oath before God and the court. Manifestly their evidence would not fall within the category of "new" evidence. I am unable to see how there was any procedural unfairness. A tribunal in the exercise of its jurisdiction has a discretion how to conduct a hearing. An error in the exercise of the procedure does not necessarily amount to procedural unfairness or a breach of the rules of natural justice. Here the rules of natural justice were not breached. The applicants had filed written responses to the Commissioner. They had met with him and clarified matters orally. They had availed themselves of an appeal process and counsel had put before the IRC all available material. It is clear that the IRC gave proper weight in its decision to the evidence of the integrity of the officers.
74 The applicant Kevin Reilly pointed to the fact that he had given evidence before Commissioner Gregor on oath and been believed. However, Commissioner Gregor had to resolve factual issues on which sworn evidence was taken. They were different issues from those to be resolved by the IRC.
75 When regard is had to the matters in issue before the Commissioner, and subsequently the IRC, the provision of evidence on oath would not have assisted the IRC to resolve the issues. I conclude that there is no
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- arguable case that the failure to allow the applicants to give evidence on oath in the particular circumstances of this case, led to any procedural unfairness or breach of the rules of natural justice.
Inconsistent findings
76 The argument is mounted in relation to grounds 37 to 39 of the application. The argument is best summarised in ground 38:
"The Applicants say that the Second and Third Respondents have misdirected themselves in concluding that some officers involved in a joint activity can be returned to active Police Service and others not when either all of them were acting improperly or all of them were not."
77 Although the word "misdirected" is used, the allegation is in reality one of mistake of fact. I consider that the grounds as stated do not give rise to an arguable case of an error made beyond jurisdiction. If there is any error, it is an error within jurisdiction of both the Commissioner and the IRC.
78 Further, I do not consider that the applicants have raised arguable grounds that there was an error.
(a) The Commissioner
79 In his letter to the Minister seeking approval the Commissioner stated as follows:
"In coming to these views, I have not turned my mind to the officer's guilt or innocence. Instead, I have simply evaluated the discharge of their duties against acceptable Police Service and community standards, values and expectations and determined that Detective Senior Sergeant Kevin Reilly 5077, Detective Senior Sergeant Michael Reilly 5790, Detective Sergeant Gavin Farrell 7013 and Sergeant Geoffrey O'Reilly's 6405 integrity and ethics are compromised, on each of the allegations in the dot points above.
Detective Sergeant Silvia [sic] Cinquina 6222 and Detective Senior Constable Paul O'Keeffe 6864.
In respect to the other two officers, Detective Sergeant Silvia Cinquina 6222 and Detective Senior Constable Paul O'Keeffe
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- 6864 I do not believe that there is a sufficient basis to say that I can no longer have confidence in their capacity to conduct themselves within the required standards. Consequently I have prepared a memorandum standing them up for duty but ensuring they are formally counselled so as to ensure there is no repetition of the activities that they undertook in the relevant periods of 1998 and 1999."
80 It is clear from this that the Commissioner treated each of the officers separately. He was bound to do so. Any "one in, all in" approach as implicit in the grounds of the application would have been a fundamental error by the Commissioner. He did not make it.
(b) The IRC
81 The IRC carefully examined and reviewed the evidence in respect of each of the officers. At p 26 of their decision they provide reasons for differentiating between the recommendation to remove Kevin Reilly from office which they said is not rendered harsh or unfair by the retention of Detective Sergeant Cinquina.
82 In respect of Sergeant O'Reilly, the IRC reached a different decision from that of the Commissioner. The IRC reached this decision by comparing the decision of the Commissioner to return Senior Constable O'Keeffe to duty without punishment and took the view that many of the allegations against both O'Reilly and O'Keeffe were the same. The Commission concluded:
" ... on balance their culpability in this regard (keeping records) appears, on the material presented to the Commission, to be indistinguishable."
83 The IRC analysed the position in relation to the applicant Michael Reilly before concluding that his own actions were such as to justify the loss of confidence by the Commissioner in him.
84 The ground which is raised by the applicants ignores the actual findings made by the Commissioner and the IRC. Essentially, the Commissioner put their guilt or innocence to possible involvement in drug dealing completely to one side and made his decision on their separate conduct and lack of record keeping. Approaching the matter in this way, it is easy to see why different decisions might have been made in respect of different officers.
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85 I conclude that these grounds raise no arguable case for the granting of an order nisi.
Conclusion on the applications
86 I have considered the applicants' case that an order nisi should be issued against each of the Commissioner, the Minister and the IRC on the basis that the applicants have shown an arguable case for the issue of a writ of certiorari or prohibition. Cases do not exist in a vacuum. A case must be supported by evidence.
87 It is not necessary for me to make a ruling on the administrative arrangements which were promulgated in 1998. I have very grave doubts as to the validity of most of the terms of the Protocol. My consideration of the Industrial Relations Act has only been made necessary to the extent that counsel for the Commissioner invoked s 34(3) as a bar to the grant of relief. Because no party appearing before me argued against the validity of the Protocol, notwithstanding my doubts, I have proceeded to determine this application on the assumption that the terms of the Protocol are valid. In any event, any finding of invalidity of the appeal process would not advantage the Applicants in the present proceedings. On that assumption, after examination of the factual matters put in evidence, I conclude that no arguable case exists to grant an order nisi for a prerogative writ and that each application must therefore be discharged.
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