The Queen v Ober

The Supreme Court of Western Australia, constituted by Martin CJ, Riley and Southwood JJ, considered a question of law referred by a judge pursuant to s 21 of the Supreme Court Act. The referral arose from charges against Thomas Benjamin Ober for possessing child abuse material and indecent dealing with a child. The central dispute concerned the admissibility of a recorded interview with the alleged victim, who was a vulnerable witness. The Crown intended to lead this recorded statement as evidence-in-chief, but the accused challenged its admissibility on the grounds that the police officers who conducted the interview were not "authorised persons" under s 21A(1) of the Evidence Act, and that regulation 4 of the Evidence Regulations, which purported to define such persons, was invalid.

The legal issue before the Court was whether regulation 4 of the Evidence Regulations was a valid exercise of the regulation-making power conferred by ss 21(1) and 65 of the Evidence Act. Specifically, the Court had to determine if the regulation was invalid for impermissibly delegating a discretionary power granted to the Administrator by the Act, contrary to the principle of *delegatus non potest delegare*. The Court was asked to consider whether the regulation, by approving all police officers of or above the rank of constable and certain employees of the Department of Housing and Community Services as "authorised persons" upon approval by the Commissioner of Police or Chief Executive Officer respectively, constituted an unlawful delegation.

The Court reasoned that regulation 4 did not constitute an unlawful delegation of power. It held that the Administrator, in making the regulation, exercised the power to declare a class of persons to be "authorised persons" for the purposes of the Act. The regulation did not delegate the power to *make* the declaration of what constitutes an authorised person, but rather left the administrative task of identifying the specific individuals who would comprise that class to the Commissioner of Police and the Chief Executive Officer. The Court found that this approach was a sensible way to implement the statutory scheme, which aims to protect vulnerable witnesses by allowing their evidence-in-chief to be taken in less formal settings by appropriate individuals, and that it was impractical for the Administrator to identify all such individuals personally. Therefore, the Court concluded that regulation 4 was a valid exercise of the regulation-making power.