Re Roger Macknay QC
[2013] WASC 243
•26 JUNE 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE ROGER MACKNAY QC; EX PARTE A [2013] WASC 243
CORAM: BEECH J
HEARD: 18 JUNE 2013
DELIVERED : 26 JUNE 2013
FILE NO/S: CIV 1940 of 2013
MATTER :An application for a Writ of Certiorari against ROGER MACKNAY QC, Commissioner of the Corruption and Crime Commission of Western Australia and a Writ of Prohibition against the Corruption and Crime Commission of Western Australia
EX PARTE
A
ApplicantAND
ROGER MACKNAY QC
First RespondentCORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Second Respondent
Catchwords:
Administrative law - Prerogative relief - Application for writ of certiorari to quash decision to permit disclosure of CCTV footage played during public examination in Corruption and Crime Commission - Whether decision-maker took into account irrelevant considerations or failed to take account of relevant considerations - Whether there was a wrongful exercise of the decisionmaker's discretion
Corruption and Crime Commission (CCC) - Public examination by CCC - CCTV footage played during the public hearings - Corruption and Crime Commission Act 2003 (WA), s 152 - CCC certified that disclosure of the CCTV footage was necessary in the public interest - Whether CCC made reviewable error in so deciding - Whether CCC failed to take into account relevant considerations or took into account irrelevant considerations
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 152
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms K A Vernon & Ms L Zinenko
First Respondent : Ms P E Cahill SC
Second Respondent : Ms P E Cahill SC
First Non-party : Mr A V McCarthy
Second Non-party : Mr A V McCarthy
Third Non-party : Mr A V McCarthy
Fourth Non-party : Mr A V McCarthy
Fifth Non-party : Mr A V McCarthy
Solicitors:
Applicant: Lyn Zinenko Lawyers
First Respondent : Paul O'Connor
Second Respondent : Paul O'Connor
First Non-party : A V McCarthy
Second Non-party : A V McCarthy
Third Non-party : A V McCarthy
Fourth Non-party : A V McCarthy
Fifth Non-party : A V McCarthy
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242
Elcham v Commissioner of Police [2001] NSWSC 614; (2001) 53 NSWLR 7
Ex parte West Australian Newspapers [2008] WASCA 209; (2008) 38 WAR 177
Gangemi v ASIC [2003] FCA 494; (2003) 129 FRC 284
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
O'Sullivan v Farrer (1989) 168 CLR 210
Plaintiff M 79/2012 v Minister for Immigration [2013] HCA 24
Plaintiff S 10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636
R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175
Sieffert v Prisoners Review Board [2011] WASCA 148
BEECH J:
Introduction
From 10 to 13 June 2013, the second respondent, the Corruption and Crime Commission (CCC) conducted a public examination. The subject of the examination included conduct of the applicant captured on closed circuit television (CCTV). The CCTV footage was played a number of times during the public examination.
On 13 June 2013, the CCC certified that the disclosure of the CCTV footage was necessary in the public interest.
The applicant claims that that decision of the CCC is invalid on three grounds:
(a)it was a 'wrongful' exercise of discretion;
(b)the CCC failed to take into account relevant considerations; and
(c)the CCC took into account irrelevant considerations.
For the reasons that follow, I would dismiss the application.
These reasons will deal with the following topics:
(1)the proceedings before the CCC;
(2)the application;
(3)the parties;
(4)the grounds of the application;
(5)the statutory framework;
(6)the power exercised by the CCC;
(7)Ground 1 - was there a wrongful exercise of discretion?;
(8)Ground 2 - was there a failure to take into account relevant considerations?; and
(9)Ground 3 - were irrelevant considerations taken into account?
Proceedings before the CCC
Opening
Senior counsel assisting the CCC opened the inquiry on 10 June 2013. In the course of doing so, counsel outlined why the hearings were to be held in public, in terms that were adopted by the Commissioner.
The following is a summary of what counsel said (ts 10/6/13, pages 3 ‑ 6):
(a)the terms of s 140 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) were outlined;
(b)the main focus of the hearings is not on the conduct of the officer who used force but rather on the actions or inactions of other officers who witnessed part of the events, including questions of physical or verbal intervention; the duty of care to a detainee; reports and recordkeeping; the adequacy of supervision; the use of padded cells; stripping of detainees; restraints; the use of force; and police policies in relation to these matters;
(c)these are matters of public interest, including the adequacy of supervision within the Police Service and any reluctance on the part of other police officers to intervene or report the conduct of a fellow officer;
(d)the benefits of public exposure of the investigation are clear. Public hearings are likely to be significantly educative of police officers. Holding public examinations will assist in maintaining public confidence that these type of incidents are being investigated thoroughly and transparently. It may also encourage people to make complaints when they have concerns about how a detainee has been treated;
(e)the CCC has 'carefully considered' prejudice and privacy infringement issues;
(f)in relation to the detainees and the civilian who reported the matter, their privacy is addressed by suppressing their identity and identifying details. Any CCTV footage that is released will have faces pixilated;
(g)any concern as to prejudice to the applicant, who may be exposed to the risk of criminal charges, can be addressed by an order suppressing his identity. Further, individual consideration would be given to whether his examination would be in public before that examination took place;
(h)negative consequences of publicity must also be considered, including the potential for events to stir up strong feelings in the Broome community, but those did not outweigh the positive benefits of a public hearing;
(i)one matter requiring further consideration is whether the CCTV footage should be made public. That should occur following submissions from all relevant interests, including the Police Service and the media;
(j)having weighed the balance of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commission considers that it is in the public interest for the hearings to be in public, subject to three qualifications:
(i)first, that each examination needs to be considered on its individual merits;
(ii)secondly, release of the CCTV footage needs to be considered after hearing further from interested parties; and
(iii)thirdly, some suppression orders should be made in relation to identities.
The Commissioner confirmed that for the reasons stated by senior counsel the examinations would be conducted in public (ts 10/6/13, page 7).
Senior counsel then opened generally on the subject matter of the inquiry, including the following matters.
The hearing would investigate various issues arising out of two incidents occurring in Broome police station earlier in 2013. In each incident, an arrested person was removed from the police van at the lockup by the same police officer, the applicant in this action. Both cases were witnessed by other officers and captured on CCTV. The investigation would explore whether the force used was excessive. However, the main focus of the hearings was to address the issues that arise if it was excessive force, and consider other issues such as supervision, reporting, note taking, medical treatment and the stripping of detainees (ts 10/6/13, pages 9 ‑ 10).
Counsel outlined what was said to have occurred during the first incident and the issues that arose. One issue was whether the applicant had the detainee in a neck‑hold as he removed the detainee from a van and took him to a cell. The CCTV footage was played (ts 10/6/13, pages 11 ‑ 12).
Counsel also outlined what was said to have occurred in relation to the second incident, including that the applicant punched the detainee several times, and dropped his knee onto the detainee's head twice. Again, the CCTV footage was played (ts 10/6/13, pages 13 ‑ 15).
The applicant's examination
Prior to the applicant's examination, counsel for the applicant applied to the Commissioner for an order that his examination be held in private. Among other things, counsel for the applicant referred to potential prejudice to the applicant, in the event that criminal charges were brought against the applicant, arising from the potential use a jury might make of answers given by the applicant to questions asked in the examination and subsequently reported in the media (ts 11/6/13, page 10).
Senior counsel assisting the CCC submitted that if the applicant was charged, it might be dealt with in the Magistrates Court, or in the District Court, following election, by judge alone. Assuming the matter came before a jury, any prejudice could be cured by directions, and would be limited by the orders suppressing identifying details (ts 11/6/13, pages 7 ‑ 8).
The Commissioner declined the application for a direction that the examination be conducted in private. He considered that the examination should be in public, subject to conditions including that the applicant's name and identifying details be suppressed. He expressly adopted the submissions of senior counsel assisting in relation to prejudice arising from publicity in respect of a possible jury trial. He concluded that, taking into account the ability of juries to act on directions from the trial judge, the benefits of a public examination outweighed the risk of prejudice to the applicant (ts 11/6/13, page 12).
The applicant gave evidence about the manner in which he had held the first detainee. That included evidence about the CCTV footage and still photographs taken from it.
The applicant also gave evidence about what he did in relation to the second detainee, including the number and the force of the punches which he gave to the second detainee.
The applicant's evidence about these matters, and about what was revealed by the CCTV footage, was inconsistent with evidence of other witnesses on that topic.
Submissions on disclosure of the CCTV footage
On 13 June 2013, the Commission heard submissions on whether it should release the CCTV footage.
Counsel for some media organisations made submissions as interested parties.
Counsel assisting the Commission made detailed submissions which were subsequently adopted by the Commission.
Counsel assisting submitted that the relevant section for this case was s 152(4). That was because s 151(5) provides that s 151 does not apply to the Commission in relation to a restricted matter that is official information under s 152 (ts 13/6/13, pages 25 ‑ 26). It appeared to be accepted that the CCTV footage was official information for the purposes of s 152. I will say more about that later in these reasons.
Counsel assisting responded to written submissions that had been provided by counsel for the applicant on why the CCTV footage should not be disclosed.
As to the suggestion that release may prejudice a person's safety or reputation, counsel pointed out that the identity of the applicant had been suppressed (ts 13/6/13, page 27).
In response to the assertion that publication was unfair to persons depicted in the CCTV footage, counsel assisting submitted that the footage adds little or nothing to the publicly reported evidence other than showing what had actually happened. As to the allegation that disclosure may prejudice the fairness of a trial, counsel assisting submitted that the footage would be admissible evidence and would be played at any trial (ts 13/6/13, page 27).
Counsel assisting submitted that it was necessary in the public interest that the CCTV footage be released. She adopted what she had said in opening as to the reason that the hearings were in public. She submitted that one of the core functions of the Commission was to educate, including police officers. It was to be hoped that, from the time the hearing began, messages would get through to the police about their duty of care, their need to report and to intervene in the case of inappropriate conduct (ts 13/6/13, page 27).
Counsel assisting pointed out that the applicant had said in his evidence that he did not use excessive force. In order to enhance the educative function, the best way was to allow people to assess the conduct for themselves (ts 13/6/13, page 27).
The following are among the points made to the CCC by counsel for the applicant:
(a)the principles of open justice apply to evidence presented in open court, not the proceedings in the Commission which are governed by specific statutory provisions vesting decisions with respect to public access with the Commission, not the court: Ex parte West Australian Newspapers [2008] WASCA 209; (2008) 38 WAR 177 [47] (ts 13/6/13, page 34);
(b)members of the public do not need to see the footage for themselves in order to make their own decision, because there is nothing in respect of which members of the public need to make a decision (ts 13/6/13, page 36);
(c)there is a significant risk that the applicant will face criminal proceedings so members of the public should not now be viewing the video and making decisions that could impinge on the fairness of the trial (ts 13/6/13, page 36);
(d)the need to preserve the integrity and efficacy of the relevant information is a central consideration in the decision to make a non‑publication order: Gangemi v ASIC [2003] FCA 494; (2003) 129 FRC 284 [37] (ts 13/6/13, page 36);
(e)no weight should be given to the argument of counsel assisting based on the educative function of the Commission. It is for the Commissioner of Police to instruct his officers. Members of the Police Service should not be left to judge for themselves by looking at a portion of a video (ts 13/6/13, page 39);
(f)anyone who wished to see the CCTV footage could have come and viewed it if they had wanted to (ts 13/6/13, page 40);
(g)regard needs to be had to the risk to the reputation of the applicant (ts 13/6/13, pages 40 ‑ 41).
The Commissioner's decision
The Commissioner determined to release the CCTV footage. He stated that 'largely for the reasons explained by Senior Counsel for the Commission', the CCTV footage should be released to the public including the media. The Commissioner stated that that flowed from the order that was made that there be a public examination. He said as follows:
In my view, largely for the reasons put forward by counsel, senior counsel for the commission, I'm of the view that the suppression order that was made in relation to that material ought be lifted. That is that the material ought be disclosed to relevant interested parties, in particular media outlets.
I think the order in the circumstances in which this matter has proceeded really flows from the order that was made that there be a public examination. What has occurred is that counsel, senior counsel, has opened on a particular basis in relation to that material. Some evidence has been given by some witnesses in relation to that material.
Ms Vernon's client, D5, has given evidence which has strongly challenged a number of factual aspects. That is, to take a term from another context, really a case of best evidence. The position now is that different parties have talked about the same observable piece of information and have given extremely different descriptions of that and in those circumstances, the hearing being a public hearing, in my view it would almost be a perversion to leave the matter as it is.
I'm quite satisfied that it is necessary in the public interest that this material, which is objective material, be allowed to be in the public domain, given the dichotomy in relation to the evidence that has been arrived at. I think that is relevant to the function of [the] commission of which senior counsel has spoken. That is not expressly in relation to D5, but rather in relation to the commissioner's obligation to exercise oversight of a particular branch of the public service, that being the police force, and to inform in the way that senior counsel has described.
I arrive at that conclusion pursuant to section 152 subsection (4)(c) and I certify that disclosure is necessary in the public interest for those reasons (ts 13/6/13, pages 44 ‑ 45).
The Commissioner concluded that he would certify that disclosure is necessary in the public interest under s 152(4)(c).
The application
Later on 13 June 2013, the solicitors for the applicant filed an application for writs of certiorari and prohibition to quash the Commissioner's decision and prevent the CCC from disclosing the CCTV footage to the media. The applicant also filed an urgent application for an interlocutory injunction to prevent publication pending the determination of the substantive application. That application was listed on 14 June 2013.
On 14 June 2013, the Commission undertook not to disclose the CCTV footage pending the determination of the application for an interlocutory injunction, and that application was set down for hearing on 18 June 2013. Programming orders were made for the exchange of affidavits and submissions in the meantime.
At the hearing on 18 June 2013, it emerged that both parties considered that they had put before the court all the material that was necessary for a final determination of the substantive application. By consent, I ordered that the application for an order nisi and the application for an order absolute be heard together at the hearing on 18 June 2013 (ts 8, 11 ‑ 13).
Consequently, the application for an interlocutory injunction falls away, and there is no need to determine whether the applicant's case is arguable, or has reasonable prospects of success. Rather, the merits of the application must be determined.
The parties
On 17 June 2013, I made orders by consent suppressing the identity and identifying details of the applicant. That was necessary in order to preserve the effect of the suppression orders made by the CCC suppressing the identity and identifying details of the applicant.
In this application, the CCC appeared by senior counsel and actively opposed the application. That is, or at least appears to be, contrary to the general and preferable practice; see R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13, 35. However, no question was raised in this regard and I say no more about it.
As I have said, a number of media organisations appeared by counsel before the CCC and made submissions in relation to whether the CCTV footage should be disclosed. By leave granted on 14 June 2013, those same media organisations appeared by counsel and made submissions in opposition to the application.
The grounds of the application
The applicant contends that the decision to disclose the CCTV footage pursuant to s 152(4)(c) of the CCC Act as necessary in the public interest:
(1)was a wrongful exercise of the discretion;
(2)failed to take into account relevant considerations, namely:
(a)the need to preserve the integrity of and efficacy of the investigation and subsequent proceedings;
(b)the prejudice to the applicant's safety, reputation and right to a fair trial; and
(c)the effect of publication of the CCTV footage on a website;
(3)took into account irrelevant considerations, namely the need to disclose the CCTV footage to police officers as part of the educative function of the second respondent.
It is convenient to outline the statutory framework, and a contention advanced by the interested parties before turning to the merits of these grounds.
The statutory framework: the CCC Act
The following outline draws in part on what was said by the Court of Appeal in Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242.
The main purposes of the Act are to combat and reduce the incidence of organised crime, and to improve the integrity of, and to reduce the incidence of misconduct in, the public sector: s 7A.
Section 7B provides that those purposes are to be achieved primarily by establishing the CCC which is:
(a)to be able to authorise the use of investigative powers not ordinarily available to the police service to effectively investigate particular cases of organised crime; and
(b)to help public authorities to deal effectively and appropriately with misconduct, by increasing the capacity to do so, while retaining to itself power to investigate cases of misconduct, particularly serious misconduct.
The Commission is constituted as a body corporate: s 8(2). The Commissioner performs the functions of the Commission in the name of the Commission: s 9(1).
The functions of the CCC are set out in s 17 to s 19. Those functions include helping to prevent misconduct, termed the prevention and education function (s 17), and ensuring that an allegation of, or information involving, misconduct is appropriately dealt with (s 18).
Section 17(2) sets out a non‑exclusive list of the manner in which the Commission performs its prevention and education function. That includes, by par (ca), ensuring that in performing all of its functions it has regard to its prevention and education function.
In performing the misconduct function, the CCC may, among other things, investigate the matter itself, refer the matter to another authority or take action in cooperation with another authority. The CCC may assemble evidence and furnish it to other agencies for the purpose of prosecution. It may also consult, cooperate and exchange information with other bodies including the Commissioner of the Australian Federal Police or the Police Force of another State, the CEO of the Australian Crime Commission, the Commissioner of Taxation, and other organisations.
Part 6 of the Act sets out powers of the CCC. That part includes s 98, to which counsel for the interested parties referred. Section 98 provides, relevantly, as follows:
Powers in relation to things produced
(1)The Commission or a person authorised in writing by the Commission may -
(a)inspect any document or other thing produced before the Commission or an officer of the Commission;
(b)retain the document or other thing for a reasonable period; and
(c)take photographs or copies of, or extracts or notes from, anything relevant to the investigation.
(2)The Commission may make an order about what is to be done with any document or other thing produced before the Commission or an officer of the Commission, and it may be dealt with in accordance with that order.
Part 7 deals with examinations. By s 137, the CCC may conduct an examination for the purposes (among others) of an investigation under the CCC Act. By s 139, generally an examination is not open to the public. The exception is provided by s 140. By s 140(2), the CCC may open an examination to the public if 'having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so'.
By s 140(4), if the CCC decides to open an examination to the public, it has power to close the examination for a particular purpose.
Provisions regarding confidentiality, disclosure, secrecy and protection of witnesses are contained in pt 9. As the Court of Appeal observed in CCC v Allen [22], the presence of stringent confidentiality provisions is unsurprising, given the nature of the Commission's functions and powers.
Section 151 and s 152 provide as follows:
151.Disclosure of certain information restricted
(1)In this section -
restricted matter means any of the following -
(a)any evidence given before the Commission;
(b)the contents of any statement of information or document, or a description of any thing, produced to the Commission;
(c)the contents of any document, or a description of any thing, seized under this Act;
(d)any information that might enable a person who has been, or is about to be, examined before the Commission to be identified or located;
(e)the fact that any person has been or may be about to be examined before the Commission.
(2)Subject to subsections (3) and (4), a restricted matter must not be disclosed.
(3)Unless the Commission orders otherwise, a restricted matter may be disclosed if that matter has already been disclosed at a part of an examination that was open to the public.
(4)A restricted matter may be disclosed -
(a)in accordance with a direction of the Commission;
(b)to a legal practitioner for the purpose of obtaining legal advice or representation relating to a notice, summons or matter;
(c)to a person for the purpose of obtaining legal aid relating to a notice, summons or matter;
(d)to an officer or agent of a body corporate by the body corporate or another officer or agent of the body corporate for the purpose of ensuring compliance with a notice or summons;
(e)by a legal practitioner for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client;
(f)by a legal practitioner referred to in paragraph (b) for the purpose of giving legal advice, making representations, or obtaining legal aid, relating to the notice, summons or matter;
(g)by a person referred to in paragraph (c) for the purpose of obtaining legal aid relating to the notice, summons or matter; or
(h)if that disclosure is otherwise authorised or required under this Act.
(5)This section does not apply to -
(a)the Commission or a relevant person as defined in section 152(1); or
(b)a relevant person as defined in section 208(1),
in relation to a restricted matter that is official information under section 152 or 208, as the case may be.
(6)This section does not apply to -
(a)an authority or person referred to in section 153 or 209; or
(b)any person or employee under the control of an authority or person referred to in section 153 or 209,
in relation to a restricted matter that is information to which section 153 or 209, as the case may be, applies.
(7)If a restricted matter is disclosed contrary to this section, any person who so discloses the matter, or causes the matter to be so disclosed, commits an offence.
Penalty: Imprisonment for 3 years and a fine of $60 000.
152.Disclosure by the Commission or its officers
(1)In this section -
Commission lawyer means -
(a)a legal practitioner appointed to assist the Commission; and
(b)a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner’s duties assisting the Commission;
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
official information, in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person’s functions under this Act;
produce includes permit access to;
relevant person means a person who is or was -
(a)an officer of the Commission; or
(b)a Commission lawyer.
(2)Subject to subsections (3), (4) and (6) a relevant person must not, either directly or indirectly -
(a)make a record of any official information; or
(b)disclose any official information.
Penalty: Imprisonment for 3 years and a fine of $60 000.
(3)Despite subsection (2), a relevant person may make a record of official information -
(a)under or for the purposes of this Act;
(b)otherwise in connection with the performance of the person’s functions under this Act.
(4)Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed -
(a)under or for the purposes of this Act;
(b)for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c)when the Commission has certified that disclosure is necessary in the public interest;
(d)to either House of Parliament or to the Standing Committee;
(e)to any prescribed authority or person; or
(f)otherwise in connection with the performance of the person’s functions under this Act.
(5)A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.
(6)Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.
(7)A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
(8)This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission’s functions under this Act.
In the CCC Act, 'disclose' means 'to publish in any way' or to 'divulge or communicate to any person in any way': s 3.
Section 154 provides, among other things, that s 152(2) applies despite any law or rule of law under which a person may be required to produce or disclose any matter of information.
The CCC exercised power under s 152
Before the CCC, all parties, including the interested parties, proceeded on the basis that the Commissioner was determining whether disclosure of the CCTV footage should be permitted under s 152 of the Act. Further, the CCC explained its decision as an exercise of power under s 152. However, in the application before me, counsel for the interested parties contended that, on a proper analysis, the CCC was exercising power under s 98, and not under s 152. I will explain why I do not accept that contention, before dealing with the grounds advanced by the applicant.
The interested parties point to s 98(2), which empowers the CCC to make an order about what is to be done with any document or thing produced before it, and which permits the document or thing to be dealt with in accordance with that order. They contend that that section empowered the CCC to order that the media be given access to the CCTV footage without regard to s 152.
Further, the interested parties submit that to the extent that the DVD of the CCTV footage comprised information, that information had already been disclosed because the video had already been played.
In my view, the CCC's powers in s 98(2) are subject to and do not override or qualify the constraints imposed by s 151 and s 152. Those latter sections impose stringent confidentiality obligations which are, to my mind, an important element of the statutory scheme by which the CCC is invested with coercive and intrusive powers. The construction of s 98 invited by the interested parties would narrow the ambit of s 151 and s 152 in a way which I do not think was intended.
I accept that, in some contexts and for some purposes at least, a DVD, like a document, contains information but is not itself information. However, for the purposes of s 152 a DVD is either information, or the disclosure of the DVD is a disclosure of the information contained on it. Making available a copy of the DVD would be disclosing (as defined) it, or the information on it. Thus, in my view, s 152 applied to the DVD, which had been obtained by the CCC by reason of or in the course of the performance of its functions under the Act (see s 152(8)) or to the contents of the DVD.
Consistently with that, in Ex parte West Australian Newspapers [18], Martin CJ observed that it was 'relatively clear' that the video tape of an interview was 'official information' within the meaning of s 152, with the consequence that portions of it can be provided by the CCC to a newspaper only if the CCC certified the disclosure was necessary in the public interest. See also [72].
Ground 1 - was there a 'wrongful' exercise of discretion?
The formulation of ground 1 - that the exercise of discretion was 'wrongful' - invites attention to what is meant by wrongful, and to the nature and scope of judicial review.
In Minister forAboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason CJ emphasised the need to distinguish judicial review of administrative decisions from an appeal on or review of the merits:
The limited role of the court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (40 ‑ 41).
See also, Australian Broadcasting Tribunal vBond [1990] HCA 33; (1990) 170 CLR 321, 341; Sieffert v Prisoner Review Board [2011] WASCA 148 [191].
Thus, subject to a claim of Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 229 ‑ 230), it is for the decision‑maker and not the court to determine the appropriate weight to be given to matters taken into account in exercising the statutory power: Peko‑Wallsend (41).
In this case, the applicant did not assert Wednesbury unreasonableness. In the circumstances of this case, there is no room for any such assertion.
Eight general categories of jurisdictional error are set out in Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, 2013) [1.140]. An earlier substantially identical statement of those categories by Professor Aronson was referred to with evident approval in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 [71].
Ground 1, as formulated, does not reveal the character of the error complained of. Ground 1 is elucidated in paragraphs 11 ‑ 25 of the applicant's submissions in reply dated 18 June 2013 (Reply Submissions). It was further developed in oral submissions. As best as I could understand it, ground 1 asserts that the CCC misconstrued s 152(4)(c) of the Act, or exercised its power for a purpose other than the purposes for which the power is conferred. In my respectful view, neither the erroneous construction nor the extraneous purpose were clearly identified in the applicant's submissions.
The applicant submits that the scope of the express statutory exceptions to the general prohibition in s 152 is relevant to the proper construction of the discretionary powers in s 152(3) and s 152(4) (Reply Submissions [14]). So far as it goes, I accept that proposition. However, the applicant further submits that:
(a)the non-discretionary exceptions are narrowly circumscribed in s 152(3) and s 152(4)(a), (b), (d), (e) and (f) and relate to the conduct of the CCC's purposes and functions as an investigative and reporting authority: Reply Submissions [15]; and
(b)the public interest referred to in s 152(4)(c) will ordinarily lie in favour of disclosure only if the proposed disclosure falls within the rationale for the non‑discretionary exceptions, namely for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the CCC: Reply Submissions [17].
I do not accept either of these propositions. I am not persuaded that all of the exceptions in s 152(4) (apart from par (c)) can be said to relate exclusively to the conduct of the CCC's purposes and functions as an investigative and reporting authority. More importantly, even if the first proposition were accepted, I would not accept the second proposition. To my mind, it is inconsistent with the breadth and generality of the language of s 152(4)(c).
The applicant's submissions on ground 1 are derived from the reasons of McLure JA in Ex parte West Australian Newspapers Ltd. Her Honour was in the minority in that case. More to the point, her Honour's reasons reflected her construction of the legislation in question in that case, namely the Criminal Investigation Act 2006 (WA). Obviously, this case concerns the construction of different legislation. To my mind, the CCC Act does not reveal a statutory scheme analogous to her Honour's view of the relevant parts of the Criminal InvestigationAct.
The expression 'in the public interest' when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'insofar as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': O'Sullivan v Farrer (1989) 168 CLR 210, 216; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [19], [80], [90]; Plaintiff M 79/2012 v Minister for Immigration [2013] HCA 24 [39]; Plaintiff S 10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636 [30].
In this case, the question was whether disclosure was 'necessary' in the public interest, not simply whether it was in the public interest. I accept, as the applicant submits, that that requires something more than the conclusion that disclosure was in the public interest.
Necessary is capable of a wide range of meanings. The meaning will depend on the statutory context. One meaning is needing to be done, or essential. As the High Court has observed, there is, in Australia, 'a long history of judicial and legislative use of the term "necessary" not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted': Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39]. See, for example, the cases outlined by O'Keefe J in Elcham v Commissioner of Police [2001] NSWSC 614; (2001) 53 NSWLR 7 [48] ‑ [56]. In some contexts, necessary may not mean essential but merely conducive: Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 [53].
In my view, no error of construction of s 152(4)(c) is revealed in the reasons of the Commissioner. The question for the CCC was whether disclosure was necessary in the public interest. That is the question which the Commissioner asked and answered. The Act does not spell out explicitly the considerations relevant to the public interest in s 152(4)(c), and as to the considerations bearing on whether disclosure is necessary in the public interest. That silence is an indication of the breadth of the discretionary decision entrusted to the decision‑maker. Whether he took into account all mandatory relevant considerations, or an irrelevant consideration, is dealt with in grounds 2 and 3.
As I have said at [50] and [57], the confidentiality provisions in s 151 and s 152 are an important element of the statutory scheme by which the CCC is invested with intrusive coercive powers. There is no indication in the Commissioner's reasons that he failed to appreciate that.
The applicant further submits that the fact that the CCTV footage was played in a public hearing does not outweigh the statutory object of protecting the privacy of suspects, particularly prior to conviction, and related aims of limiting disclosure to minimise the risk of prejudicing investigations and prosecutions, particularly when the broadcast will be published to the world at large on the internet: Reply Submissions [25]. In my view, that submission is, in substance, a complaint of a weighting error by the CCC. That is not an available ground for review.
I am not persuaded that the Commissioner erred in his construction of s 152(4)(c) or that he exercised power under that section for a purpose other than the purposes for which the power is conferred.
For these reasons, ground 1 fails.
Ground 2 - was there a failure to take into account relevant considerations?
By ground 2, the applicant complains that the Commissioner failed to take into account relevant considerations namely:
(1)the need to preserve the integrity of and efficacy of the investigation and subsequent proceedings;
(2)the prejudice to the applicant's safety, reputation and right to a fair trial; and
(3)the effect of publication of the CCTV footage on a website.
The ground of failure to take into account relevant considerations can only be made out if a decision‑maker fails to take into account a consideration which it is bound to take into account: Peko‑Wallsend (39); Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [22]; Sieffert [192].
What factors if any, a decision‑maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the factors which must be taken into account are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. A court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter scope and purpose of the Act: Peko‑Wallsend (39 ‑ 40); Sieffert [192].
The applicant contends that the matters expressly referred to in s 140 are mandatory relevant considerations for the purposes of s 152(4)(c). Section 140 explicitly requires the Commission to weigh the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements in determining the question of whether it is in the public interest to open an examination to the public.
The use of the phrase 'the public interest' generally indicates a discretion not confined by specific considerations: O'Sullivan v Farrer (216) and the other cases referred to in [70] of these reasons. Section 152(4)(c) does not expressly identify, define or limit the matters relevant to whether disclosure is necessary in the public interest.
As the respondents submit, s 140 explicitly calls for the weighing of identified factors, whereas s 152(4)(c) does not. That may be some indication that, unlike s 140, the discretion in s 152(4)(c) is intended to be unconstrained by specific considerations. Moreover, the subject matter of the two provisions are different, although in some cases there may be an overlap. Section 140 is concerned with whether an examination occurs in public or in private. Section 152(4)(c) is concerned with whether disclosure of specific identified official information should be permitted. It may involve disclosure to a particular individual, agency or officer or to the public generally. The matters required to be weighed in s 140 will not always be pertinent or apposite to questions that might arise in s 152(4)(c).
On the other hand, in my view, consideration of the statutory scheme reveals that the primary purposes of the confidentiality and secrecy provisions are to preserve the integrity of the investigations undertaken by the CCC, and to provide some protection to the rights and interests of those affected by the CCC. It is arguable that those matters are mandatory relevant considerations in an assessment of whether disclosure is necessary in the public interest.
For these reasons, there is room for doubt about whether the matters set out in ground 2 were mandatory relevant considerations. It is not necessary to decide that point, because I am not persuaded that the Commissioner failed to take into account the matters set out in this ground. That is so for the following four reasons.
First, the matters relied on in this ground were heavily emphasised in the submissions of counsel for the applicant before the Commissioner. Those submissions occupied 35 to 40 minutes. A few minutes later, the Commissioner gave his decision and stated his reasons. Those circumstances in themselves create a significant obstacle to a conclusion that the Commissioner failed to take into account the matters complained of.
Secondly, in stating his reasons, the Commissioner adopted senior counsel's submissions. Counsel assisting made submissions responding to the written submissions that had been provided on behalf of the applicant. Those submissions raised most if not all of the matters now complained of. The Commissioner's reasons incorporated what counsel had said in this regard.
Thirdly, in her submissions relating to the disclosure of the CCTV footage, senior counsel expressly adopted what she had said in opening on 10 June 2013 regarding the examinations being conducted in public. Those submissions dealt with questions of potential prejudice to the applicant in respect of possible criminal charges, or to his reputation.
Fourthly, the question of whether the Commission failed to take into account the matters complained of must be considered in the context of the hearings before the CCC as a whole. Those hearings also included the application by the applicant, on 11 June 2013, for an order that his examination be held in private. In rejecting that application, the Commissioner had given specific consideration to the question of potential prejudice in respect of a possible jury trial.
For these reasons, ground 2 fails.
Ground 3 - did the CCC take into account irrelevant considerations?
The applicant asserts that the Commissioner took into account irrelevant considerations, namely the need to disclose the CCTV footage to police officers as part of the educative function of the CCC.
The applicant submits (Reply Submissions [32]), that the educative function of the CCC was not the function being performed during the public examinations and as such was an irrelevant consideration in ordering disclosure at this time. The applicant submits that, at the relevant time, the CCC was not attempting to educate anyone; it was performing its investigative function (ts 32 ‑ 33).
I do not accept these submissions. They appear to rest on a false premise that the educative function and investigative function are mutually exclusive. By s 17(2)(ca) of the Act, one of the ways that the CCC can perform the prevention and education function is by ensuring that in performing all of its functions it has regard to its prevention and education function. In the conduct of an examination, and in making an ancillary decision under s 152, the CCC is performing one or some of its functions. In doing so it was, at the least, entitled to have regard to its prevention and education function.
Further, the applicant submits that any informing of police officers would occur by way of a report prepared by the CCC (ts 33). In my view, there is nothing in the CCC Act to sustain the unstated premise of that argument, that preparation of a report is the only means by which the CCC is permitted to attempt to inform or educate police officers.
The ground of taking any irrelevant consideration into account is only made out if it is established that the decision‑maker took into account a matter that he or she was, on a proper construction of the legislation, precluded from considering: Peko‑Wallsend (39); Sieffert [192]. Where the legislation does not specifically enunciate the considerations which a decision‑maker is precluded from considering, the ascertainment of those considerations is to be determined by implication from the subject matter, scope and purpose of the act: Peko‑Wallsend (39 ‑ 40); Sieffert [192].
In this case, neither the express provisions of the Act nor implication from the subject matter, scope and purpose of the Act precluded the CCC from taking into account the benefits of disclosing footage to police officers as part of its educative function. To the contrary, the express provisions of s 17(2)(ca) of the Act specifically authorised (if not required) the CCC to take into account its educative function in exercising its power under s 152(4)(c).
For these reasons, I would dismiss ground 3.
Conclusion
For the reasons I have stated, I reject the applicant's three grounds.
Consequently, the application must be dismissed. On the face of it, costs would follow the event. I will hear from the parties as to the orders to be made, and as to costs.
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