Accused A & Ors v Callanan & Ors [2009] QSC 12 [2009] 2 Qd R 112

SUPREME COURT OF QUEENSLAND CITATION: Accused A & Ors v Callanan & Ors [2009] QSC 12 PARTIES: ACCUSED A First Applicant WITNESS V Second Applicant WITNESS T Third Applicant WITNESS P Fourth Applicant WITNESS C Fifth Applicant WITNESS R Sixth Applicant V JOHN DAVID CALLANAN, ROBERT NEEDHAM, ROSS BARNETT, ELIZABETH FRASER, JOHANNA BAKERMANS, DIANNA JOHNSTON AS MEMBERS OF THE CRIME REFERENCE COMMITTEE First Respondent JOHN DAVID CALLANAN Second Respondent FILE NO/S: BS 13170 of 2008 DIVISION: Trial Division PROCEEDING: Application for statutory order to review ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 18 February 2009 DELIVERED AT: Brisbane HEARING DATE: 2 February 2009 JUDGE: Applegarth J -- 1 of 26 -- 2 ORDER: 1. The decisions referred to in the Application for a Statutory Order of Review filed 17 December 2008 be set aside. 2. The respondents pay the applicants’ cost of and incidental to these proceedings. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS OF REVIEW – ERROR OF LAW – where the applicants seek judicial review of a decision to refer a suspected murder to the Crime and Misconduct Commission – where the police investigation was said to have gathered a strong case and the first applicant had been prosecuted for murder – whether the committee could have been satisfied that the police investigation had ‘not been effective’ – whether the Committee could have been satisfied that it was in the public interest to refer the matter – the meaning of ‘the public interest’ in s 28(2) of the Crime and Misconduct Act 2001 (Qld) – whether the Crime Reference Committee adopted an erroneous interpretation of ‘the public interest’ ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS OF REVIEW – whether the Crime Reference Committee adopted an erroneous interpretation of ‘the public interest’ – whether the decision not authorised ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where there was no satisfactory evidence that the Crime Reference Committee took account of considerations that did not favour a decision to refer ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS OF REVIEW – UNREASONABLENESS – where various considerations did not favour a decision to refer – whether the decision of the Committee was so unreasonable that no reasonable Committee could exercise the power to refer Acts Interpretation Act 1954 (Qld), s 14A Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Crime and Misconduct Act 2001 (Qld), s 4(1)(a), s 7, s 26(b)(i), s 27, s 28, s28(2), s 29, s 30, s 31, s 82, s 176, s177(1), s 178(3), s 183, s 190, s 197, s 202, s 220, s 269, s 274, s 275, s 278, s 331, Schedule 2 Judicial Review Act 1991 (Qld), s 13, s 20, s 20(2)(d), s 20(2)(e), s 20(2)(f), s 23(b), s 23(g) -- 2 of 26 -- 3 Legislative Standards Act 1992 (Qld), s 4(3)(f) International Covenant on Civil and Political Rights: Art 14.3 Al-Kateb v Godwin (2004) 219 CLR 562, cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied Australian Broadcasting Commission Staff Association v Bonner [1984] 2 FCR 561, cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited Attorney-General (NSW) v Quin (1990) 170 CLR 1, applied Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, cited Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353, applied Buck v Bavone (1976) 135 CLR 110, applied Callanan v B [2005] 1 Qd R 348, cited Coco v R (1994) 179 CLR 427, cited Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343, cited Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135, cited Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, cited Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, cited Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, cited Hammond v The Commonwealth of Australia (1982) 152 CLR 188, cited Hamilton v Oades (1989) 166 CLR 486, cited Kioa v West (1985) 159 CLR 550, cited -- 3 of 26 -- 4 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied O’Halloran v Wood [2004] FCA 544, cited Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited Sorby v The Commonwealth of Australia (1983) 152 CLR 281, cited Witness C v The Crime and Misconduct Commission [2008] QSC 196, cited COUNSEL: The Hon T F Carmody SC and Ms K A Mellifont for the applicants G P Long SC for the respondents SOLICITORS: Russo Lawyers for the applicants D T Murphy, Official Solicitor, Crime and Misconduct Commission for the respondents Introduction [1] The applicants seek judicial review of nine decisions that relate to the investigation by the Crime and Misconduct Commission (“the Commission”) of the suspected murder of B.1 The first applicant has been charged with the murder of B. On 30 September 2008 the Crime Reference Committee2 (“the Committee”) decided to refer the suspected murder of B to the Commission for investigation (“the decision to refer”).3 The main issue in this application is whether the Committee was authorised to do so in circumstances in which the first applicant already had been prosecuted and the information before the Committee indicated that the Queensland Police Service had a “strong case”. [2] The authority of the Committee to make the decision to refer under s 27 of the Crime and Misconduct Act 2001 (Qld) (“the Act”) depended on compliance 1 The names of the deceased and the applicants and other matters that may identify them have not been used in the interests of protecting the fair trial of the first applicant and the other interests protected by s 202 of the Crime and Misconduct Act 2001 (Qld). 2 Established by s 274 of the Act. 3 The decision to refer is the first decision that is the subject of the application for a statutory order of review under the Judicial Review Act (Qld) 1991 (“the Judicial Review Act”). -- 4 of 26 -- 5 with the requirements of s 28(2) of the Act.4 Section 28(2) provides that the Committee may refer “major crime” to the Commission for investigation “only if it is satisfied: (a) the police service has carried out an investigation into the major crime that has not been effective; and (b) further investigation into the major crime is unlikely to be effective using powers ordinarily available to police officers; and (c) it is in the public interest to refer the major crime to the commission.” (emphasis added) [3] The applicants contend that the Committee could not have been satisfied that the police investigation had “not been effective” where the material before the Committee alleged that the police had assembled a strong circumstantial case against the first applicant and charged him with murder. They further contend that the Committee could not have been satisfied that it was in the public interest to refer the crime to the Commission. [4] The second respondent is the Commission’s Assistant Commissioner, Crime. On 10 November 2008, as delegate of the Commission, 5 he authorised the holding of a hearing in relation to the suspected murder of B.6 On that day he also decided that he would conduct that hearing.7 On 11 November 2008 he made a number of decisions to issue attendance notices to various witnesses, who are the second, third, fourth, fifth and sixth applicants in these proceedings.8 On 28 November 2008 the second respondent declined an application to not proceed with the investigative hearing and to withdraw the attendance notices.9 [5] The applicants challenge the decision to refer and the second respondent’s decisions on the grounds that each decision: (a) was not authorised by the enactment under which it was purported to be made; 10 (b) involved an error of law; 11 4 Section 28(2) applies because the Committee was asked by the Commissioner of Police to refer the matter to the Commission for investigation. 5 On 5 September 2008 he was delegated the Commission’s power under s 176 of the Act to authorise the holding of a hearing in relation to any matter relevant to the performance of the Commission’s functions. 6 This is the second decision that is the subject of the application under the Judicial Review Act. 7 This is the third decision that is the subject of the application and was made under s 178(3) of the Act. The second respondent was delegated the Chairperson’s powers under s 178(3) on 5 September 2008. 8 These are the fourth to eighth decisions that are the subject of the present application. The power to issue an attendance notice arises under s 82(1) of the Act, and the second respondent was delegated the power under s 82(1) on 5 September 2008. 9 This is the ninth decision that is the subject of the application. 10 Judicial Review Act s 20(2)(d). 11 Judicial Review Act s 20(2)(f). -- 5 of 26 -- 6 (c) was an improper exercise of the power conferred by the enactment under which it was purported to be made.12 [6] The court is required to determine the meaning of the expression “has not been effective” in the context of s 28(2)(a) of the Act, and to decide whether it was open to the Committee to be satisfied that the police investigation into the suspected murder of B had not been effective. The third matter of which the Committee was required to be satisfied was that it was in the public interest to refer the suspected murder of B to the Commission. In this regard the issues for the court are: • the meaning of “the public interest” in the context of s 28(2)(c); • whether the Committee was satisfied of this public interest element; and • whether the Committee could not have been satisfied of it because no reasonable committee in its position could have been satisfied that it was in the public interest to refer the matter to the Commission. The scope of judicial review [7] The application for judicial review of the Committee’s decision to refer and the second respondent’s eight decisions does not provide an occasion for the court to substitute its views for those of the relevant decision-maker. The Judicial Review Act does not make the Supreme Court a merit review tribunal.13 [8] The Committee’s power to refer does not depend on the existence of the three matters referred to in s 28(2). It depends upon the Committee being satisfied of those matters. A decision which determines that a certain matter exists differs in nature and quality from one recording the satisfaction of the decision-maker that this is the case.14 A decision as to “satisfaction” is reviewable. As Dixon J stated in Avon Downs Pty Ltd v Federal Commission of Taxation:15 “If he does not address himself to the question which the sub- section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.” 12 Judicial Review Act s 20(2)(e). 13 Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 at 346-7. 14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 264, 272-277. 15 (1949) 78 CLR 353 at 360. -- 6 of 26 -- 7 This statement of principle has been applied in numerous cases.16 However, as Gibbs J observed in Buck v Bavone,17 whether a decision can be effectively reviewed by the courts “will often largely depend on the nature of the matters of which the authority is required to be satisfied”. His Honour continued: “Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”18 [9] Provided the Committee was satisfied of the three matters specified in s 28(2), it had the power to refer the matter to the Commission to investigate. It is not to the point, for the purpose of this application for judicial review, that the court might consider that the Committee’s decision was unreasonable. The applicants are forced to contend that the Committee did not address each matter the Act required it to address, failed to take into account a relevant consideration that the law required it to consider, was not in fact satisfied of the matters specified in s 28(2) or could not have been satisfied because no reasonable committee in its position addressing the statutory requirements could have been satisfied of their existence. [10] The expressions “has not been effective” and “the public interest” in s 28(2) are not defined in the Act. Whether or not a police investigation into a major crime “has not been effective” can be said to involve a matter of evaluation. Whether or not it is in the public interest to refer a particular case involving a major crime to the Commission may be a matter about which opinions reasonably differ. These features of evaluation or opinion limit the scope for judicial review of a decision to refer a major crime to the Commission for investigation. Despite these limitations, the applicants contend that no reasonable committee “properly understanding and discharging it (sic) oversight role and function (could) conclude that referring [B’s] murder investigation to the CMC gave practical effect to the clear legislative intent of restricting the investigative hearings power of the commission to those cases where its use was likely to make the difference between the success and failure of a criminal prosecution and where the balance of public interest 16 See the authorities collected in Wu Shan Liang (supra) at 275. 17 (1976) 135 CLR 110 at 118. 18 ibid at 118-119. This passage was cited with approval by the High Court in Wu Shan Liang (supra) at 275-276. -- 7 of 26 -- 8 considerations impelled its use to bring a serious offender to justice who would otherwise walk free.” The legislative scheme [11] One of the Commission’s functions is to investigate “major crime” referred to it by the Committee. “Major crime” is defined to include “criminal activity that involves an indictable offence punishable on conviction by a term of imprisonment not less than 14 years.”19 The Committee may, on its own initiative, refer major crime to the Commission for investigation only if it is satisfied: “(a) an investigation into the major crime is unlikely to be effective using powers ordinarily available to the police service; and (b) it is in the public interest to refer the major crime to the Commission.” 20 The Committee may refer major crime to the Commission for investigation if asked by the Commissioner of Police, or the Commission’s Assistant Commissioner, Crime. 21 The Committee may, if asked by the Commissioner of Police, refer major crime to the Commission for investigation only if the Committee is satisfied of each of the three matters contained in s 28(2), which are quoted in paragraph 2 above. [12] The third matter is that it is in the public interest to refer the major crime to the Commission. Section 28(3) lists a number of matters to which the Committee may have regard in deciding whether it is in the public interest to refer major crime to the Commission. However, s 28(3) states that these matters do not limit the matters to which the Committee may have regard in deciding whether it is in the public interest to refer. The matters listed in s 28(3) are: “(a) the number of persons that may be involved; (b) the degree of planning and organisation likely to be involved; (c) the seriousness of, or the consequences of, the major crime; (d) the person or persons likely to be responsible for planning and organising the major crime; (e) the likely involvement of the person or persons in similar activities; 19 Schedule 2 to the Act. 20 The Act, s 28(1). 21 The Act, s 27. -- 8 of 26 -- 9 (f) the financial or other benefits likely to be derived by any person; (g) whether investigation by the commission is a justifiable use of resources.” [13] The members of the Committee include law enforcement officials and two persons appointed by the Governor in Council as community representatives, of whom one at least must have a demonstrated interest in civil liberties.22 The Committee has two functions.23 The first is to refer, as provided under the Act, major crime to the Commission for investigation. The second is to coordinate, to the extent the Committee considers appropriate, investigations into major crime conducted by the Commission in cooperation with a police task force or another entity.24 Referrals are governed by ss 27-31 of the Act. The Committee may give the Commission directions imposing limitations on a crime investigation, including limitations on the exercise of the Commission’s powers for the investigation.25 [14] The Commission, or its delegate,26 may authorise the holding of a hearing in relation to any matter relevant to the performance of its functions.27 Generally, a hearing is not open to the public.28 A person may be required to attend a Commission hearing to give evidence,29 and must not fail to take an oath when required by the presiding officer. 30 [15] The powers of the Commission are extraordinary. They intrude upon liberties and privileges that characterise our system of justice. A witness has no right to remain silent. A witness at a crime investigation hearing must answer a question put to the person at the hearing by the presiding officer and is not entitled to remain silent or to refuse to answer the question on a ground of privilege, other than legal professional privilege.31 The privilege against self-incrimination is abrogated,32 subject to some restrictions on admissibility.33 The privilege against self-incrimination has been described as a “bulwark of 22 The Act, s 278. 23 The Act, s 275. 24 The Act, s 275. 25 The Act s 29(1). 26 Section 269 of the Act provides, subject to the limitations contained in s 269(2), that the Commissioners may, by resolution, delegate the Commission’s powers under the Act to an appropriately qualified Commission officer. 27 The Act, s 176. 28 The Act, s 177(1). 29 The Act, s 82. 30 The Act, s 183. 31 The Act, s 190. 32 cf Legislative Standards Act 1992 (Qld), s 4(3)(f). 33 Section 197 contains restrictions on the admissibility of answers, documents, things or statements disclosed or produced under compulsion if the individual claims the privilege against self-incrimination in relation to the answer or production. -- 9 of 26 -- 10 liberty”.34 It is a substantive individual right and is recognised in international human rights law. 35 Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd36 stated: “The privilege in its modern form is in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them.” [16] The privilege against self-incrimination can be abrogated by legislation.37 However the abrogation of the privilege by s 190 of the Act affects a fundamental principle of our system of justice. Gibbs CJ stated in Sorby v The Commonwealth of Australia:38 “It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.” [17] In the present matter, no attendance notice has been issued to the first applicant and the purpose of the reference is to obtain relevant information from witnesses who are not suspects. However, the interpretation of provisions governing the power to refer should recognise the potential for the investigative powers of the Commission to be exercised in other cases in which an accused person is not entitled to remain silent at a crime investigation hearing or to refuse to answer a question in reliance on the privilege against self-incrimination. [18] In a matter such as the present, the liberties of witnesses who are required to attend a crime investigation hearing are affected by the compulsion to attend and answer questions. In addition, the privilege against self-incrimination is not available to a witness. The compulsory examination of witnesses at such a hearing has the potential to confer a number of forensic advantages upon the prosecution at a trial of the accused. [19] Section 331 of the Act has the effect that the Commission may commence or continue a crime investigation hearing despite a criminal proceeding in respect of the same matter being before a court. Section 331 facilitates the exercise of 34 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340 per Mason ACJ, Wilson and Dawson JJ. 35 International Covenant on Civil and Political Rights: Art 14.3. 36 (1993) 178 CLR 477 at 508. 37 The intention to abrogate must be clearly apparent in the legislation: Sorby v The Commonwealth of Australia (1983) 152 CLR 281 at 289-290; see also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at at 553, [11] in the case of abrogation of legal professional privilege; and Callanan v B [2005] 1 Qd R 348 at 355-356, [15] that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect. See generally Queensland Law Reform Commission “The Abrogation of the Privilege Against Self-Incrimination” QLRC R59. 38 (supra) at 294. -- 10 of 26 -- 11 the Commission’s investigative and hearing powers despite a related court proceeding, and was intended to override the effect of the High Court’s decision in Hammond v The Commonwealth of Australia.39 When has a police investigation “not been effective”? [20] The applicants submit that there is a clear legislative intent to restrict the investigative hearings power of the Commission to those cases “where its use was likely to make the difference between the success and failure of a criminal prosecution”. The applicants also contend that the purpose of a police investigation is to investigate crime, identify suspected offenders and to arrest and charge them, whereupon they are brought before the courts. The applicants submit that if a suspect has been charged then it is impossible to say that the police investigation has not been “effective” as that word is used in s 28(2)(a) and s 28(2)(b). [21] The respondents submit as a general proposition that: “the usual objective of a police investigation of any offence is to gather all available relevant information as to the commission of that offence and therefore any such investigation which does not succeed in that aim may be regarded as being ineffective.” They also submit that neither the fact that there is sufficient evidence already available to charge someone with the commission of the particular major crime, nor the fact that someone has been charged, prevents a conclusion that the criteria set out in s 28 are satisfied. Even in a case, such as the present, where the material before the Committee contains references to a strong case against the accused, satisfaction of the criteria s 28(2)(a) and s 28(2)(b) was submitted to be possible. [22] The minutes of the Committee’s meeting on 30 September 2008 record the second respondent’s statement that the referral “highlights areas in which the QPS already have a strong case and also identified ways in which CMC powers and the use of hearings powers can make this investigation more effective.” (emphasis added) The power to refer does not exist to make an effective police investigation “more effective”. It arises only if the Committee is satisfied that the police investigation has “not been effective”. [23] The word “effective” in a context such as s 28(2) connotes the production of an event, condition or intended or expected result.40 The issue is by reference to 39 (1982) 152 CLR 188 in which the continuance of an accused person’s examination before a Royal Commission was held to pose a real risk of interference with the due administration of justice. cf Hamilton v Oades (1989) 166 CLR 486 at 494, 508-510, 515-516; Explanatory Memoranda Crime and Misconduct Bill 2001; see also Witness C v The Crime and Misconduct Commission [2008] QSC 196 at [16]. 40 Definitions of “effective” include: “That is concerned in the production of (an event or condition)” and “That is attended with result or has an effect”: Oxford English Dictionary -- 11 of 26 -- 12 what desired result is a police investigation to be judged as having been effective. [24] The meaning of the words “not been effective” in s 28(2)(a) must be determined in their statutory context, and not simply in the context of the facts of the present case. The words “not been effective” in s 28(2)(a) may arise for consideration by the Committee in a wide variety of contexts, including a case in which no prosecution is pending. For example, the request for a reference may arise as a result of a police investigation into organised crime or terrorism41 where the police investigation of the matter may not be focussed on a particular crime, let alone its prosecution. [25] I do not accept the applicants’ broad submission that there is a clear legislative intent to restrict the investigative hearings of the Commission to “those cases where its use was likely to make the difference between the success and failure of a criminal prosecution”. The Act does not refer to the strength of a prosecution case, and the purpose of the Act does not suggest that the Commission’s crime investigation hearings are intended to be limited to cases of the kind submitted by the applicants. The power of the Committee to refer “major crime” to the Commission may arise in cases in which a criminal prosecution is not in contemplation and even in cases in which a criminal prosecution is unlikely to eventuate. This is because, on occasions, it may be in the public interest, and advance the purpose of the Act to “combat and reduce the incidence of major crime” for the Commission to investigate a “major crime” such as organised crime in order to devise strategies to combat it. When it is investigating a major crime referred to it, the Commission gathers evidence for the prosecution of offences.42 However, the gathering of evidence for prosecution is not the sole purpose for which the Commission is given investigative powers, and the Committee’s power to refer major crime to the Commission is not restricted to the limited category of cases submitted by the applicants. [26] The exercise of the Commission’s investigative powers, including its power to conduct a crime investigation hearing, is not necessarily a precursor to a criminal prosecution. The power to hold an investigative hearing does not cease once a criminal prosecution has been initiated. The exercise of that power is not conditional on the strength of a prosecution case, and whether use of the Commission’s processes and powers may bolster a prosecution’s prospects. [27] If the Committee is asked by the Commissioner of Police to refer a matter, then its authority to do so depends on its satisfaction of three matters. The first is 2 nd ed Clarendon Press, Oxford, 1989; and “serving to effect the purpose; producing the intended or expected result”: The Macquarie Dictionary 3 rd ed, The Macquarie Library, St Leonards, 1997. 41 Organised crime or terrorism being two of the various meanings of “major crime” in Schedule 2 of the Act. 42 The Act, s 26(b)(i). -- 12 of 26 -- 13 concerned with the state of the relevant police investigation and its effectiveness, not the status or strength of a prosecution. In a particular case, the strength or otherwise of a prosecution may be a relevant consideration in the Committee determining the third matter about which it must be satisfied, namely whether it is the public interest to refer the major crime to the Committee. [28] The fact that in many cases a police investigation will lead to the initiation of a criminal prosecution does not lead to the conclusion that the initiation of a prosecution means that an investigation has been effective. The fact that a prosecution has been initiated should not necessarily prevent the Committee being satisfied of the matters in s 28(2). For instance, it is possible to imagine a case in which an inexperienced junior officer charges a member of an organised crime group with a major crime. However, the proper investigation of that major crime may require the exceptional powers of the Commission, since further investigation into it is unlikely to be effective using powers ordinarily available to police officers and, without an investigative hearing, the prosecution case is likely to collapse at trial. Section 28(2) may authorise a referral to the Commission in such a situation. Accordingly, the initiation of a criminal prosecution does not necessarily establish that a police investigation has been effective. [29] A police investigation may be effective in ascertaining information that results in a prosecution not being initiated, or in an existing prosecution being weakened or withdrawn. [30] Section 28(2)(a) is concerned with a police investigation, rather than the status or strength of a prosecution, actual or hypothetical. A police investigation, like any other kind of investigation, involves a systematic process of search, inquiry or examination to obtain the true facts.43 The issue of whether or not a police investigation has been effective is to be evaluated by reference to the objective of obtaining and examining available information so as to ascertain the true facts. In some cases the information available to the police may enable them to ascertain the facts, and any additional information may be of no significant utility. In other cases a police investigation may be unlikely to gather all relevant information because certain information is peculiarly within the knowledge of a suspect or witnesses who are not willing to provide that information to the police, and who cannot be compelled to do so by powers available to the police. 43 Definitions of “investigate” include “to search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into”: Oxford English Dictionary 2 nd ed Clarendon Press, Oxford, 1989; “to search or inquire into; search or examine into the particulars of; examine in detail… to examine in order to obtain the true facts… to make inquiry, examination, or investigation”: The Macquarie Dictionary 3 rd ed, The Macquarie Library, St Leonards, 1997. Definitions of “investigation” include “the act or process of investigating… a searching inquiry in order to ascertain facts; a detailed or careful examination” (The Macquarie Dictionary 3rd ed, 1997); and “[t]he action of investigating; the making or a search or inquiry; systematic examination; careful and minute research.” (Oxford English Dictionary 2nd ed, 1989). -- 13 of 26 -- 14 [31] The adoption of the interpretation of the word “effective” contended for by the respondents, or a similar interpretation which results in a police investigation being judged to have “not been effective” where it has not been able to gather all relevant information, gives s 28(2)(a) and s 28(2)(b) a wide operation. Subject to the satisfaction of the Committee of the public interest criterion in s 28(2)(c), the extraordinary powers of the Commission potentially could be activated in a large number of cases in which police are able to gather a substantial body of information, but not all relevant information because individuals are unwilling to disclose it. [32] The applicants submit that the interpretation of the Act contended for by the respondents should not be countenanced because it would have profound implications on the way the justice system has traditionally operated. In the present case, it involves use of the Commission’s coercive powers against witnesses in circumstances in which the police have been able to mount a strong circumstantial case. 44 The interpretation of “effective” contended for by the respondents, with its consequences for the exercise of the Commission’s coercive powers against an accused and other witnesses, should not be adopted unless it achieves the purpose for which the Act, and s 28 in particular, were enacted.45 [33] The Act merged the Criminal Justice Commission and the Queensland Crime Commission, 46 and little change was intended to the function of investigating major crime, and no increase in powers was intended.47 The legislation evinces an intention to confer coercive powers upon the Commission to combat and reduce the incidence of major crime48 and to provide the Commission with investigative powers “not ordinarily available to the police service that will enable the Commission to effectively investigate particular cases of major crime”.49 This includes the use of those powers to gather evidence for the prosecution of offences.50 The Parliament intended the Commission’s powers to be exercised notwithstanding the forensic advantages that they may confer upon a prosecution. The Commission’s investigative powers are not confined to cases of gathering evidence for a prosecution, let alone to cases in which use of the Commission’s powers will make a significant difference to a prosecution’s prospects. The Commission’s investigative powers may be lawfully invoked in a case in which there is no realistic prospect of a prosecution, or one in which a prosecution’s prospects cannot be assessed with any precision. [34] The Parliament has legislated to change the system that existed before the Commission and its predecessors (the Criminal Justice Commission and the 44 The strength of the prosecution case according to the materials placed before the Committee is summarised in Exhibit 2. 45 Acts Interpretation Act 1954 (Qld), s 14A. 46 The Act, s 220. 47 Second reading speech, Crime and Misconduct Bill, 16 October 2001, pp 2818-2819. 48 The Act, s 4(1)(a). 49 The Act, s 5(2). 50 The Act, s 26(b). -- 14 of 26 -- 15 Crime Commission) were established. The Act enables the Commission’s processes and powers, including the compulsory questioning of witnesses at closed investigative hearings, to be utilised in the case of a “major crime” that is referred to it by the Committee. The Parliament has provided for this, notwithstanding the intrusion upon traditional liberties and privileges, by language which evinces an intention to change the criminal justice system and the fundamental liberties and privileges that have traditionally characterised it. [35] I accept the respondents’ submission that, as a general proposition, the usual objective of a police investigation of any offence is to gather all available relevant information as to the commission of an offence and that an investigation which does not succeed in that aim may be regarded as resulting in an investigation that “has not been effective”. That general proposition is subject to qualifications, for instance in circumstances in which the relevant information that has not been gathered has little or no forensic or other utility. Expressed differently, the available relevant information that the police investigation has been unable to gather must have a significant utility. [36] Section 28(2)(a) is not confined to a case in which the police investigation has not gathered information that is likely to make the difference between the success and failure of a criminal prosecution. The strength of a prosecution case, and the impact which additional information may have upon it, are matters which may arise for consideration in a particular case in connection with satisfaction of the public interest requirement in s 28(2)(c). [37] The Parliament constrained what would otherwise involve the potential exercise of the extraordinary powers of the Commission, and a corresponding incursion upon traditional liberties and privileges, in a large number of cases of major crime by the inclusion of a public interest requirement in s 28. That constraint is limited since it depends on the Committee’s satisfaction that it is in the public interest to refer the major crime to the Commission, not proof that the public interest in fact is served by the reference. Considerations that are relevant to the public interest are many and varied, and are not limited to matters that favour the preservation of traditional liberties and privileges. The public interest provision is not as protective of individual liberties and privileges as might be the case under a different legislative model. However, the existence of the public interest criterion in s 28(2)(c) and the constraint it imposes on the operation of the power to refer under s 27 of the Act supports the adoption of the ordinary meaning of “effective” in s 28(2)(a) in the context of a police investigation. [38] The fact that in some cases of “major crime” a police investigation is unable to gather relevant information that is of significant utility to the investigation and thereby ascertain the facts, does not result in the activation of the extraordinary powers the Act gives to the Commission. That the police investigation has “not been effective” is the first of three matters about which the Committee must be satisfied before it can exercise its power to refer. -- 15 of 26 -- 16 [39] I have previously concluded, contrary to the applicants’ submissions, that the power to refer may be available in a case in which a prosecution has been initiated. In some cases in which a prosecution has been initiated, it may be difficult for a Committee to assess the strength of the prosecution case, and as the applicants would have it, to exercise the power to refer only where use of the Commission’s powers is “likely to make the difference between the success and failure of a criminal prosecution”. In other cases, the Committee may be able to make a reasonable assessment of a prosecution’s strength. In a case such as the present, where the Committee is informed that the prosecution has a strong case, this may provide a powerful, even overwhelming, reason why the Committee would not be satisfied that it is in the public interest to refer the major crime to the Commission. It does not necessarily mean that the police investigation has been “effective”. [40] If the objective of a police investigation was to initiate a prosecution, or to assemble a strong prosecution case, then the situation would be different. However, the objective of a police investigation is not so limited. It extends to gathering information which either helps or harms a prosecution. A police investigation will not have been effective in achieving the result of gathering information to ascertain the facts if it has been unable to gather relevant information that is of significant utility. This interpretation of “effective” does not mean that a police investigation will never be effective with the result that the Committee always will be satisfied of the condition in s 28(2)(a). A police investigation will be effective when, within the resource, time and other constraints that apply to it, it has gathered and examined the available information required to ascertain the facts. [41] Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language.51 This presumption against interference with basic rights does not require the word “effective” to be given a special meaning, so that a police investigation will be effective once a prosecution has been initiated, or once the police investigation has gathered sufficient evidence to give the prosecution case a certain strength. The presumption is displaced by the fact that the Parliament clearly intended the powers of the Commission to be exercised in particular cases of major crimes, and the liberties and privileges of persons affected by those powers to be reduced. The Parliament did not intend, however, an intrusion upon individual rights and privileges and the abrogation of fundamental rights simply because a police investigation had not been effective and further police investigation would not be effective. [42] The purpose of the Act is not achieved by giving the word “effective” an artificial meaning which cannot be sensibly applied to the wide variety of circumstances in which police may investigate “major crime” in all of its manifestations. The purpose of the Act is achieved by giving the word 51 Coco v R (1994) 179 CLR 427 at 437; Al-Kateb v Godwin (2004) 219 CLR 562 at 577, [19] per Gleeson CJ; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 328-320, [19]-[20]. -- 16 of 26 -- 17 “effective” a meaning appropriate to its context, and ensuring that the “public interest” condition in s 28 operates, as intended by the Parliament, as an additional condition that limits what otherwise would be an unintended extension of the powers of the Commission. [43] In summary, the words “not been effective” should be given a meaning capable of application in a wide variety of circumstances, including matters in which a prosecution is not in contemplation or is unlikely to eventuate. The context in which the phrase is used in s 28(2)(a) is a police investigation that has the objective of gathering and examining information so as to ascertain the true facts. That objective exists whether or not a prosecution is in contemplation, and in some cases the gathering and examination of all available evidence will result, for good reason, in a prosecution not being initiated. An ongoing and effective police investigation may result in a prosecution being weakened or withdrawn. In general, a police investigation will have “not been effective” within the meaning of s 28(2)(a) where it has not been able to gather available relevant information that is of significant utility to the investigation. Contrary to the applicants’ submission, this may be the situation in a case in which a prosecution already has been initiated. Could the Committee have been satisfied that the police investigation had “not been effective”? [44] The material before the Committee included a 12 page written request for a referral. The copy of that request that is in evidence has been redacted by agreement of the parties to accommodate a claim for public interest immunity, and, as a result, full details of the written information placed before the Committee on aspects of the investigation are not in evidence. However, the document states that: “there is further evidence available from persons who refuse to cooperate with police. Without these witnesses, outlined in the preceding paragraphs, important evidence relevant to the prosecution remains outstanding.”52 [45] The Committee was briefed orally on 30 September 2008. The matters recorded in the minutes of the Committee’s meeting include advice from the Assistant Commissioner of Police concerning the responses of certain potential witnesses and the subject matters about which the witnesses might be compelled to provide information. [46] The written and oral information given to the Committee permitted it to be satisfied that the police investigation had “not been effective” within the meaning of s 28(2)(a) because conventional police methods had been exhausted without being able to have the witnesses provide significant, relevant information in relation to certain topics. The material also provided a basis 52 Agreed Bundle of Documents, page 15, para 6.1. -- 17 of 26 -- 18 upon which the Committee might be satisfied that further investigation into the suspected murder was unlikely to be effective in gathering that information using powers ordinarily available to police officers.53 The meaning of “the public interest” in the context of s 28(2)(c) [47] The term “the public interest” in s 28(2)(c) is not defined in the Act. There is no reason to adopt a narrow meaning of “the public interest” in the context of s 28. As previously noted, the inclusion in s 28(3) of certain matters to which the Committee may have regard is stated in s 28(3) to not limit the matters to which the Committee may have regard in deciding whether it is in the public interest to refer major crime to the Commission. The existence of one or more of the matters listed in s 28(3) may not, in the circumstance of a particular case, be sufficient to satisfy the Committee that it is in the public interest to refer the major crime to the Commission. For instance, the fact that the “major crime” is a serious crime may not be sufficient, in the circumstances of a particular case, to counterbalance other public interest considerations so as to satisfy the Committee that it is in the public interest to refer it to the Commission. There are other public interest considerations stated in s 28(3), such as whether investigation by the Commission is a justifiable use of resources, and considerations which are not stated in s 28(3), which may result in the Committee not being satisfied that it is in the public interest to refer the major crime to the commission. [48] Neither in its ordinary meaning, nor in the context in which it appears, is the term “the public interest” in s 28(2)(c) limited to the interests in combating, solving, prosecuting and reducing major crime. If the Parliament had intended the term “the public interest” in s 28(2)(c) to have a narrow or special meaning so as to focus upon these important interests, then s 28 would have been drafted accordingly. [49] The applicants submit, and I accept, that it is not necessarily in the public interest that all means available of attempting to obtain evidence to support a prosecution are exhausted. Determination of the public interest is submitted by the applicants to involve “a balance of competing and sometimes conflicting rights, interests and expectations.” There was no challenge to this proposition in the respondents’ submissions, which acknowledged that the public interest “may include having regard to the personal interests of any witness to be examined and/or any person already accused of the major crime”. I accept these propositions. [50] The consequences of a reference of a matter to the Commission for the liberty and privileges of witnesses and other individuals affected by the use of the Commission’s coercive powers should be taken into account by the Committee in determining the public interest. The respondents submitted that these 53 The Act, s 28(2)(b). -- 18 of 26 -- 19 considerations, which compete with public interest considerations favouring a referral, would have been obvious to the Committee.54 [51] The Parliament did not purport to exhaustively define the considerations to be taken into account in determining “the public interest”, and the concept of the public interest is such that it is not possible to exhaustively list all matters which might be taken into account in determining it. I am not required to venture a definition of “the public interest” in the context of s 28(2)(c). It is sufficient to conclude that the term “the public interest” in its context does not have a narrow or special meaning. I also conclude that public interest considerations include the consequences of a referral on the liberties and privileges of witnesses, being liberties and privileges that traditionally have characterised our system of justice. The Committee’s consideration of the issue of “the public interest” [52] The written request from the police for a referral which was before the Committee provided the following contention as to why it was considered to be in the public interest to refer the major crime to the Commission: “The major crime under investigation is that of murder. It is in the public interest that all means of attempting to obtain evidence to support a prosecution in this matter are exhausted. In light of the future limited outcomes of conventional strategies, and the unwillingness of relevant persons to assist police, I believe that the proposed assistance by the CMC is a justifiable use of resources.”55 No other written material addressed the public interest condition contained in s 28(2)(c). [53] The minutes of the Committee’s meeting on 30 September 2008 record the second respondent as having stated that under the Act the Committee “have to consider the public interest issue”. However, the minutes do not record any discussion in relation to the public interest issue. After recording discussion concerning possible evidence and the witnesses, the minutes simply record: “The Committee agreed it was an appropriate major crime investigation for referral to the CMC and that it meets the criteria set out in the Act.” [54] There is no satisfactory evidence before the court that the Committee addressed the issue of “the public interest” required of it by statute. The minutes do not constitute a transcript of what was discussed at the meeting. However, they do not record, even in a summary form, the matters that the Committee considered in addressing the public interest issue. The Committee was not required to 54 Transcript 1-44 ll 25-28; 1-45 ll 21-23. 55 Agreed Bundle of Documents, page 16, para 8.1. -- 19 of 26 -- 20 provide a Statement of Reasons, upon request, pursuant to s 31 of the Judicial Review Act.56 However, the fact that the Committee was not required to provide upon request such a Statement of Reasons57 did not prevent it or the second respondent from filing evidence in these proceedings about the matters taken into account by the Committee in relation to the public interest issue. The evidence suggests that the only aspect of public interest considered by the Committee in relation to the public interest issue was that advanced in the police’s written request. The conception of the public interest advanced was that it is in the public interest that “all means of attempting to obtain evidence to support a prosecution in this matter are exhausted”. There is no reference in that document or in the Committee’s minutes to countervailing considerations, including the interests of individuals who might be adversely affected by the use of coercive powers. [55] The evidence before the court in the form of the Committee’s minutes, and the absence of evidence filed on behalf of the respondents concerning their consideration of the public interest requirement, led to the submission by Senior Counsel on behalf of the respondents that the Committee would have considered relevant competing considerations because these considerations were said to be obvious. However, in the absence of evidence, even in a summary form from the respondents, I am not prepared to conclude that the Committee took into account these considerations. Given the state of the evidence, I conclude that the Committee adopted an unjustifiably narrow view of “the public interest”, and not one that accords with the proper meaning of “the public interest” in s 28(2)(c). To adopt the language of Dixon J in Avon Downs Pty Ltd v Federal Commission of Taxation58 the Committee did not address itself to the question which s 28(2)(c) formulates. It addressed a narrow and erroneous conception of what is meant by “the public interest” in s 28(2)(c) and its decision is amenable to review. [56] The grounds for review in s 20 of the Judicial Review Act generally reflect grounds contained in s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth)59 which, in turn, generally are “a reflection in summary form of the grounds on which administrative decisions are susceptible to challenge at common law.” 60 One exception is that s 20(2)(f) of the Judicial Review Act does not require an error of law to appear on the record of the decision. It would be surprising then if a decision as to the Committee’s satisfaction which was amenable to review in accordance with the principles discussed by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation was not amenable to review under one or more of the grounds contained in the Judicial Review Act. The grounds relied upon by the applicants are that the decision to refer was not authorised by the enactment under which it was purported to be made, 56 See the exemption contained in Schedule 2 to the Judicial Review Act in relation to decisions relating to the administration of criminal justice. 57 Which would include a reference to the evidence or other material on which its findings were based in relation to, amongst other things, the police investigation and its effectiveness. 58 (supra) at 360; quoted in paragraph [7] herein. 59 (“The ADJR Act”). 60 Kioa v West (1985) 159 CLR 550 at 576. -- 20 of 26 -- 21 that the decision involved an error of law and that the decision was an improper exercise of power. [57] The fact that the Committee did not address itself to the question which s 28(2)(c) formulates attracts the underlying principle of judicial review that decision-makers may exercise only such power as they possess under the law. By adopting an erroneous conception of “the public interest”, and thereby not addressing the public interest question posed by s 28(2)(c), the Committee was not in fact satisfied of a matter upon which its power to refer depended. [58] The ground of review that “the decision was not authorised by the enactment under which it was purported to be made” 61 has been said to signify a decision which is expressly or impliedly forbidden.62 An error as to the meaning of a statutory condition upon which a decision-maker’s power depends and which deprives the decision of “legal foundation”63 can be said to make the decision one which is “not authorised” in the sense that expression is used in s 20(d) of the Judicial Review Act. Judicial review is not available in respect of an erroneous determination of fact which it was within the limits of the decision- maker’s power to make, unless the decision was one to which “no person…properly instructed as to the relevant law could have come”. 64 The aspect of the applicants’ challenge to the decision to refer presently under consideration is not to the factual determination of the public interest issue. It is that the Committee applied an erroneous conception of “the public interest” which did not reflect the purpose for which the public interest element was included in the Act. The adoption of such an erroneous view, which resulted in the Committee not in fact being satisfied of a matter upon which its power to refer depended, deprived its decision of “legal foundation”. The Committee exceeded an express limitation on its power to refer under s 27 because it did not comply with the requirement in s 28(2)(c) and, as a consequence, its decision was “not authorised”. I uphold the applicants’ first ground of review to the decision to refer. [59] As to the second ground, no satisfactory test of universal application has yet been formulated to distinguish between questions of fact and questions of law. 65 However, a misunderstanding of a statutory term is an error of law.66 The interpretation to be given to the statutory term “the public interest” in s 28(2)(c) 61 Judicial Review Act, s 20(2)(d); cf the ADJR Act, s 5(1)(d). 62 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 378 per Toohey and Gaudron JJ. 63 O’Halloran v Wood [2004] FCA 544 at [24]. 64 Australian Broadcasting Commission Staff Association v Bonner [1984] 2 FCR 561 at 563 per Keely J; see also Morling J at 567; O’Halloran v Wood (supra); Australian Broadcasting Tribunal v Bond (supra) at 378. 65 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 394. 66 Notions of meaning and construction are interdependent: Collector of Customs v Agfa-Gevaert Limited (supra) at 397; cf Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; see Aronson, Dyer & Groves Judicial Review of Administrative Action, 4 th ed page 212 and the authorities cited therein that a word’s meaning often depends on context, and that “construction” means taking context (including legislative purposes and objects, where relevant) into account. -- 21 of 26 -- 22 is derived from the legislative purpose for which this public interest element was included. I have concluded that the Committee adopted an unjustifiably narrow view of “the public interest”, and not one which accords with the proper interpretation of “the public interest” in s 28(2)(c). As a result, it made a decision which involved an error of law. [60] The failure of the Committee to address the issue of “the public interest” required by statute also attracts the third ground of judicial review relied on in the application, namely failure to take account of a relevant consideration.67 This ground for judicial review was not particularised in the application for a statutory order of review filed on 17 December 2008, but was raised in oral argument.68 The public interest condition in s 28(2)(c) required the Committee to consider public interest considerations that did not favour the referral, not only considerations which did. This was effectively acknowledged in the respondents’ submissions. [61] The requirement to consider matters that do not favour a referral arises by implication from the existence and purpose of the public interest condition.69 The apparent purpose of the public interest condition is to limit the exercise of the power to refer by requiring the Committee to consider matters which extend beyond the interests in combating and reducing the incidence of major crime70 and the matters listed in s 28(3). The public interest condition’s apparent purpose is to require the Committee to consider rights and interests that compete with the interests that may favour a matter being referred to the Commission. [62] There is no reference in the written request, or in the Committee’s minutes, to considerations which did not favour the referral, including the interests of individuals who might be adversely affected by the use of the Commission’s coercive powers. There is no satisfactory evidence that the Committee took account of any considerations which did not favour the referral. I find that the Committee failed to take a relevant consideration into account, namely considerations that did not favour the referral, including the interests of individuals who might be adversely affected by the use of the Commission’s coercive powers. [63] The applicants have established each of the grounds of judicial review relied upon by them. The decision to refer should be set aside. 67 Judicial Review Act, s 20(2)(e), s 23(b). 68 Transcript 1-16 l 9 – 18 l 10; 1-38 l 45 – 1-39 l 18. 69 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. 70 The Act, s 4(1)(a). -- 22 of 26 -- 23 Was the decision one that no reasonable Committee could properly have made? [64] My conclusion that the applicants have established grounds to set aside the decision to refer makes it strictly unnecessary to determine the additional argument advanced on behalf of the applicants. This is that the Committee could not have reasonably concluded that a reference was in the public interest having regard to: “(i) the extraordinary nature of the power; (ii) the unsourced and unsubstantiated beliefs and opinions underpinning the application; (iii) the strength of the police case; (iv) the relationship between the examinees and the accused; (v) [A]’s traditional criminal justice rights and interests; (vi) the forensic advantages likely to accrue to the prosecution and corresponding disadvantages to the defence as a result of the hearing process.” [65] The limits on judicial review where the matter of which the authority is required to be satisfied is a matter of opinion have been addressed earlier.71 Whether or not it is in the public interest to refer a case involving a major crime to the Commission is a matter about which opinions may reasonably differ in many cases. The Judicial Review Act includes a ground of judicial review where the exercise of a power is so unreasonable that no reasonable person could so exercise the power.72 This ground reflects the principle that if an exercise of power is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action, then the court holds the purported exercise of the power to be invalid.73 Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation74 stated that “to prove a case of that kind would require something overwhelming”. [66] Wednesbury unreasonableness is largely confined to review of discretionary decisions. 75 In cases where the exercise of power depends upon the decision- maker being satisfied in respect of a matter of opinion it will be difficult to show that the exercise of power was so unreasonable that no reasonable person 71 See paras [7]-[10]. 72 Section 20(2)(e), s 23(g). 73 Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37. 74 [1948] 1 KB 223 at 230. See also Attorney-General (NSW) v Quin (supra). 75 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 582 [562]. -- 23 of 26 -- 24 could have arrived at the opinion or exercised the power. 76 As Gummow J stated in Minister for Immigration and Multicultural Affairs v Eshetu:77 “…where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.” [67] More generally, the limits on judicial review must be observed. As Brennan J observed: “The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”78 [68] Substantial arguments can be advanced as to why it was not in the public interest to refer the present matter to the Commission. However, I do not accept certain of the matters relied upon by the applicants in their submissions. The redaction of parts of the written request and the fact of oral briefings of the Committee concerning the state of the police investigation do not justify the contention that the beliefs and opinions underpinning the request were “unsourced and unsubstantiated”.79 The exercise of the Commission’s powers meant that forensic advantages were likely to accrue to the prosecution and corresponding disadvantages to the defence as a result of the hearing process.80 The conferral of forensic advantages can be said to be one of the purposes for which the power to refer has been enacted. These advantages do not necessarily make the exercise of the power to refer unreasonable. [69] The extraordinary nature of the power, the impact of its exercise on the proposed witnesses, the strength of the prosecution case as acknowledged by the second respondent, his implicit acknowledgement that the investigation had been effective when he stated that the use of the hearing powers could make it “more effective” and other considerations, if addressed, might provide very substantial reasons to not refer. The crime being investigated was serious. No more serious crime exists. Still, the prosecution was described as a strong case, and the fact that additional evidence might be obtained from examinees with a relationship with the accused did not put the case in a special category. In many cases, including cases of serious crime, a person with family or other personal ties to the accused may be reluctant to provide to the police evidence 76 Buck v Bavone (supra) at 118-119. 77 (1999) 197 CLR 611 at 654 [137]. 78 Attorney-General (NSW) v Quin (supra) at 36. This passage has been endorsed in later High Court authority including Wu Shan Liang (supra) at 272 and Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-153, [43]. 79 cf Applicants’ submissions (ii). 80 cf Applicants’ submissions (vi). -- 24 of 26 -- 25 that incriminates the accused. The criminal justice system has dealt with this reality for centuries and generally does not oblige witnesses to answer questions from the police. The opinion might be adopted that the public interest is not served by forcing such individuals to incriminate the accused in a case in which the prosecution has assembled a strong case without resort to such evidence. Others could reasonably adopt a different opinion. [70] Despite the numerous considerations that did not support a referral of the case, I consider that the factual determination that it was in the public interest to refer the matter to the Commission was one which was open to the Committee to make. The material placed before the Committee included the contention that the witnesses had “important evidence relevant to the prosecution” of a serious crime. A reasonable committee, properly considering matters that did not favour a referral, might decide to not refer the matter to the Commission. However, the considerations relevant to public interest were not all one way, and the opinion that it was in the public interest to refer was open to the Committee. I reject the applicants’ contention that the exercise of the power to refer was so unreasonable that no reasonable committee could so exercise the power. The second and third decisions [71] The application for a statutory order of review was principally directed to the decision to refer, and I have upheld the applicants’ challenge to the legality of that decision. The second and third decisions, namely the decision of the second respondent to authorise the holding of a hearing in relation to the matter and his decision to conduct that hearing, are challenged on the ground that the second respondent was not impartial and independent as he held reasonable suspicions about the first applicant and actively argued for the referral so as to access the Commission’s hearing power. Section 57 of the Act requires the Commission to “act independently, impartially and fairly having regard to the purposes of this Act and the importance of protecting the public interest”. [72] The second respondent exercised the Commission’s power to authorise the holding of a hearing because he had been delegated the Commission’s power under s 176. The applicants submit that it was practically impossible for him to “independently, fairly and impartially consider the rival s 176 issues on the Commission’s behalf.” 81 I do not accept this submission. In exercising the Commission’s power under s 176 the second respondent was not adjudicating on a matter in dispute between parties. The fact that he held suspicions about the first applicant and actively argued for the referral did not preclude him from exercising the power delegated to him impartially and independently. [73] By 10 November 2008 the matter had been referred to the Commission in circumstances in which the Committee had formed the view that it was in the 81 Applicant’s written submissions para 6; see also Transcript 1-31-34. -- 25 of 26 -- 26 public interest to refer the matter to the Commission for the purpose of the Commission conducting an investigative hearing. The second respondent, as the Commission’s delegate, was required to consider the exercise of the discretion under s 176 to authorise the holding of a hearing. The decision of the Committee was a highly relevant consideration in that exercise. I do not consider that the second respondent’s prior involvement in the matter meant that he acted contrary to s 57 in making the second decision. His prior involvement in the matter, and the fact that the held views about the case, did not render his exercise of the discretionary power under s 176 unfair. The obligation on the Commission under s 57 to act independently, impartially and fairly having regard to the purposes of the Act and the importance of protecting the public interest arises in a wide variety of circumstances. In the circumstances of the present matter it was possible for the second respondent to act independently, impartially and fairly having regard to the purposes of the Act, notwithstanding his prior involvement. I reject the applicant’s challenge to the second decision. [74] Similar considerations apply to the third decision under review. The fourth, fifth, sixth, seventh, eighth and ninth decisions [75] The parties are agreed that the outcome of the challenges to the first two decisions determine the application in relation to the remaining decisions.82 Conclusion [76] I have upheld the applicants’ challenge to the decision to refer. It should be set aside. The consequence is that the other decisions that are the subject of the application, and which depend for their validity on the Committee’s reference, also should be set aside. [77] The applicants have been successful in their application for judicial review and an order for costs should be made in their favour. [78] I order: 1. The decisions referred to in the Application for a Statutory Order of Review filed 17 December 2008 be set aside. 2. The respondents pay the applicants’ cost of and incidental to these proceedings. 82 Transcript 1-34 l 55 to 1-35 l 10; Transcript 1-54 ll 10 – 33. -- 26 of 26 --