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Judgment handed down in The Chief Commissioner of Police v Nikolic

14 October 2016

The Court of Appeal [President Maxwell, Justice Osborn and Justice Kaye] today allowed an appeal by the Chief Commissioner of Police against a Supreme Court decision made in June 2016 which quashed an ‘exclusion order’ made by the Commissioner against Mr Nikolic.

The exclusion order, made in November 2015, prohibited Mr Nikolic from entering or remaining at specified race-courses during race meetings. The effect of the Court of Appeal’s decision is that the order remains in force.

Mr Nikolic applied to the Supreme Court for judicial review of the Commissioner’s decision to make the exclusion order, on the ground that he had been denied procedural fairness in the making of the decision. That is, he claimed that he had not been adequately informed of the matters which the Commissioner would take into account in deciding whether or not to make an exclusion order.

On 16 June 2016, Justice Ginnane granted Mr Nikolic’s application for judicial review. His Honour concluded that Mr Nikolic had been denied procedural fairness in that he was ‘not provided with details of adverse allegations against him that were credible, relevant and significant’. As a result, the decision to make the exclusion order was ‘invalid and of no effect’.

There was no dispute between the parties that the Commissioner was obliged to accord Mr Nikolic procedural fairness in the making of the decision. Rather, the question for determination was what content was to be given to that obligation in this statutory context and in the circumstances of this case.

The key issue was the extent to which adverse information could be disclosed to Mr Nikolic without unreasonably prejudicing confidential police sources and/or ongoing police investigations and/or police investigative methods. The judge concluded that certain information and specific documents should have been disclosed to Mr Nikolic, and that this could have been done without prejudicing those other legitimate interests.

Having reviewed the information in question, and considered the evidence as to its sensitivity, the Court of Appeal concluded that, in this particular statutory context, the non-disclosure of the information did not constitute a breach of procedural fairness.

The Court said:

The power to make an exclusion order is exercisable where the Commissioner ‘considers it necessary in the public interest’ to do so. The particular public interest to which the power is directed is the maintenance of the integrity of the racing industry in Victoria and — to that end — the prevention, detection, investigation and prosecution of criminal activity which would undermine the integrity of the industry.

[T]he Court is obliged, in deciding what procedural fairness required in [the decision-making] process, to consider the full statutory context. We have concluded that the disclosure to Mr Nikolic of the information in question would frustrate the very purpose for which the statutory power was conferred, and hence that the Commissioner was not obliged to disclose the information to him.

As was the position at first instance, the reasons for decision are in two sections. The first — and much larger — section is unrestricted. In that section, the Court has endeavoured to explain as fully as possible — by reference to the legal and factual framework — why disclosure of the information was not required. The second part, which is of necessity restricted, addresses the sensitivity of the particular information which was withheld from Mr Nikolic and the public.

Read the full judgment on Austlii External link)

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