Minogue v Thompson (in his capacity as Governor of Barwon Prison); Minogue v. Falkingham In her capacity as Secretary to the Department of Justice and Community Safety & Anor [2022] HCATrans 175 (14 October 2022)

Last Updated: 27 October 2022

[2022] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M4 of 2022

B e t w e e n -

CRAIG MINOGUE

Applicant

and

COLIN THOMPSON (IN HIS CAPACITY AS GOVERNOR OF BARWON PRISON)

Respondent

Office of the Registry
Melbourne No M8 of 2022

B e t w e e n -

CRAIG MINOGUE

Applicant

and

REBECCA FALKINGHAM IN HER CAPACITY AS SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

First Respondent

TRACY TOSH IN HER CAPACITY AS GOVERNOR OF BARWON PRISON

Second Respondent

Applications for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 14 OCTOBER 2022, AT 3.02 PM

Copyright in the High Court of Australia

____________________

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR C.J. HORAN, KC appears with MR S.P. THOMAS for the applicant in each of these two matters. (instructed by Fitzroy Legal Service)

MR R.C. KNOWLES, KC appears with MR L.T. BROWN for the respondent or respondents in each matter. (instructed by Victorian Government Solicitor)

GAGELER J: Mr Horan.

MR HORAN: May it please the Court. The applications raise important issues concerning the meaning and operation of section 38(1) of the Charter of Human Rights and Responsibilities Act (Vic) which governs the conduct of public authorities and the justification requirement in section 7(2) of that Act. These issues have not been the subject of direct consideration by this Court.

The first ground concerns the procedural limb of section 38(1), namely, the obligation of public authorities to give proper consideration to relevant human rights when making decisions. We submit that the Court of Appeal’s decision in the present case has unsettled previous authority on the content of that proper consideration obligation. That can be illustrated both at the level of principle and on the approach taken to the particular facts of this case which involved a challenge to a decision to adopt a general policy in a hierarchy of policies applied within the prison system governing random urine tests and associated strip searches.

Turning first to the question of principle, we say that question concerns whether a public authority, when giving proper consideration to relevant human rights for the purposes of section 38(1), should have regard to the kinds of factors that are relevant to the justification requirement in section 7(2) of the Charter. In broad terms, although it is an inclusive list, those factors are directed to questions of proportionality. They include the relationship between the limitation on a human right and the purpose of that limitation, and the existence of any less restrictive means reasonably available to achieve that purpose.

Previous authority on the content of that procedural limb had accepted that a public authority is required to engage in a balancing exercise, that is, balancing the impact on human rights against countervailing interests or balancing private and public interests, and that that balancing exercise had been identified using the words “as part of the process of justification”. That language was first used by Justice Emerton in the case of Castles and was adopted by Justice Tate in the leading judgment in Bare v IBAC and ultimately by the Court of Appeal in HJ. Each of those authorities is addressed by the decision below at application book 123 to 125. We submit that language, as part of the process of justification, is clearly a pointer to the requirement in section 7(2) that:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society –

That link was made explicit in Justice Tate’s judgment in Bare v IBAC at paragraph 285, where her Honour described the balancing exercise that was required as:

the exercise which s 7(2) invites.

However ‑ ‑ ‑

GAGELER J: Mr Horan, I appreciate the language that is being used is “balancing”, but it really is a proportionality analysis, is it not?

MR HORAN: That is what we submit, your Honour. As is the exercise under section 7(2), and it has ‑ ‑ ‑

GAGELER J: No, I am sorry, Mr Horan. I was just meaning the exercise for which section 7(2) provides is a proportionality exercise, is it not?

MR HORAN: That is correct, your Honour. It has echoes of some of the considerations that this Court has identified in relation to both proportionality and reasonable necessity in other contexts.

GAGELER J: Turning to your interpretation of the procedural limb of section 38, how do you get section 7(2) into it?

MR HORAN: We say that proper consideration, which has been recognised as encompassing this need both to identity the human rights and the impacts on human rights – to identify countervailing considerations and then to engage in some balancing between the two – that that is directed to an assessment of compatibility of the decision with human rights. That then leads into what has been properly identified in earlier authorities as the process of justification, which – now, we do not say, and did not say below that that means that in terms the decision-maker has to recount section 7(2) and go through some formulaic exercise of addressing each factor, but it means that, in substance, the proportionality exercise and the relevant factors of a kind that are identified in section 7(2) should be clear in the consideration because that is how the normative effect of that procedural obligation will achieve the obligation – the purposes of the Charter.

Now, what we say the Court of Appeal below did wrong was it replaced that final step in the proper consideration obligation with a newly formulated test. That is, that the public authority has conducted what was described as a:

broad and general assessment of whether the impact . . . upon a relevant human right is appropriate in all the circumstances.

That can be found in several places in the judgment, but principally at paragraph 89 at application book 126. Now, we say that the matters that drove the Court of Appeal to adopt that test, we say, do not warrant departing from the stringency of the justification requirement under previous authorities. It was said that that was necessary because section 38(1) applies to a wide range of different kinds of government decision‑making.

But we say, well, that may be the case but that does not warrant altering the test or watering it down to the lowest common denominator. This case illustrates that at higher levels of decision‑making where there is time and opportunity to do so, proper consideration can require a more rigorous, more thorough Charter assessment of human rights impacts. In particular – and I will come to this next – that includes higher level policies that will be automatically implemented by lower level decision‑makers on the explicit basis that proper consideration has already been given to human rights in the formulation of those policies.

So, the court below essentially used the new test to arrive at a conclusion that proper consideration does not require mandatory considerations of the kinds of factors set out in section 7(2) or that are relevant to a proportionality analysis, and our essential question of principle is to say that that was incorrect and essentially divorced the procedural limb from the substantive limb in a manner that undermines the purposes of the Charter and its normative effect on decision‑making by public authorities.

GAGELER J: Mr Horan, I am sorry if this is a really basic question. For the purpose of the procedural limb, how do you identify a relevant human right? Do you define a human right that is limited within the meaning of section 7(2), or would be limited by the proposed action, or is it just that it is generally in play?

MR HORAN: I think it is closer to the latter. The authorities on the substantive limb have distinguished between the engagement of rights and the limitation, and I think it has been observed that sometimes they can be run together. But engagement of a right as a relevant human right is a broader prima facie inquiry that does not necessarily require an anterior determination that there is a limit. It is simply that one knows that the rights are relevant and then determines whether they are limited and, if so, whether the limit is compatible with the Charter.

Now, ultimately, the court engages in that analysis in the substantive limb. The point of the procedural limb is to require decision‑makers procedurally to engage in an analogous exercise. It is not obviously done in a curial fashion, but an analogous exercise for the purposes of administrative decision‑making.

So, in that way, contrary to what the court below said, section 7(2), or at least the factors in subsection 7(2), are not merely what they regarded as an optional “useful framework or reference point” for proper consideration. We say that the kinds of factors in that subsection are central to the proper consideration limb because they concern justification and compatibility with human rights, which is the very point of the procedural obligation.

EDELMAN J: Mr Horan, textually, does your submission rely on the word “proper” for its window?

MR HORAN: Yes, and it has to be a consideration when one looks at the subject matter, scope and purpose of section 38(1), it is directed to achieving an object which is connected with the substantive obligation imposed by section 38(1).

EDELMAN J: Assuming that to be so, and to be correct, why is it necessarily then inconsistent with a justification‑type analysis for a court to consider whether the consideration was “appropriate in all the circumstances”? Because “appropriate in all the circumstances” then raises the very question of, how does one assess appropriateness? Implicitly, it may be said there is some form of justification exercise going on in any event.

MR HORAN: Yes, your Honour, but it has been diluted into what has been previously described as an obligation of some stringency – which is now being treated a broad and general assessment – which is not required to have any regard to proportionality or the other factors that have been recognised in earlier cases. But I think your Honour is right to say that the court does not preclude – say that that is precluded, and that may be appropriate in the circumstances – but we say the test is creating a confusion as to exactly what is required of a public authority.

EDELMAN J: Although, I mean, on one view, they are the same tests but one is at a higher level of generality.

MR HORAN: We say the result in this case shows it is not the same test because their Honours set aside the correct application of past authority by the primary judge, which looked at whether or not Mr Thompson had in fact engaged in this balancing exercise when he adopted the urinalysis procedure.

If I could turn to the facts – because I think that illuminates the question of principle that we say is raised – the decision here, we say, was one – and it was treated as common ground below – to adopt the urinalysis procedure – and that was a local operating procedure that operationalised a high‑level policy contained in an instruction from the Deputy Commissioner – Instruction 3.10 – as part of this hierarchy of policies.

We say that that was the course of the relevant policy to conduct random urine tests on five per cent of the total prisoner population each month, and to require a prisoner to submit to mandatory strip searching when tested. The source of that policy was Instruction 3.10 and it was given effect by the urinalysis procedure. So, the instruction was always the basis relied upon by Corrections for performing the tests and the strip searches on the applicant, and that appears from Court of Appeal reasons at 24, application book 106.

In that context, we say that the Court of Appeal fundamentally misunderstood the evidence of Mr Thompson as to his consideration of human rights when adopting the urinalysis procedure. He gave evidence – and this is at application book 142 to 143 – that he was required or bound to implement Instruction 3.10 at Barwon Prison and that in doing so he explicitly relied on the fact that the Department had already done that Charter assessment of the policy of random urine tests when it adopted Instruction 3.10.

For that reason, he sought to ensure that his procedure was consistent with that policy but it was unnecessary for him to give proper consideration to human rights impacted by that policy and he did not purport to do so. He did not revisit the Charter assessment that had been done in 2012 on Instruction 3.10. Although he said he was aware that prisoners’ rights were . . . . . he was not doing so for the purposes of deciding whether to adopt the policy; he simply brought to attention that human rights might need to be addressed in performing the tests and the searches that were required to be carried out.

So, in that context, we say the primary judge correctly recognised that the relevant issue was whether the Deputy Commissioner had complied with the proper consideration requirement in section 38(1) when adopting Instruction 3.10. If proper consideration was not given to relevant human rights when adopting that policy, then Mr Thompson had done nothing to cure that deficiency.

In that regard, the primary judge found that consideration of the Charter of Human Rights in relation to Instruction 3.10 was cursory and inadequate and did not satisfy the procedural limb of section 38(1). It essentially was a single‑page table listing several rights that were engaged but not engaging in any real balancing exercise or considering possibly available, less restrictive alternatives. We say that the Court of Appeal ‑ ‑ ‑

EDELMAN J: Mr Horan, one way of expressing that might, however, be to say that it was not appropriate in all the circumstances.

MR HORAN: Well, yes. But what the Court of Appeal went wrong in doing was that it did not apply the test at all to that policy. What it did was it simply said Mr Thompson’s consideration was adequate, having misunderstood what his evidence was really saying. And the Court of Appeal found that, although at a high level of generality and not extensive, Mr Thompson’s consideration was sufficient, but it failed to determine whether proper consideration was given to human rights for the purposes of Section 38(1) when adopting the random urine test policy in Instruction 3.10. So, in that way, we say the Court has erred both at the level of principle and at the level of fact, and it raises important questions as to how these types of questions should be dealt with under section 38(1) in the future.

Now, there are, your Honours, some other questions raised by the grounds of appeal. In the interest of time, I will simply identify them. One is the application of the justification requirement in section 7(2), and that is directed to the Court of Appeal’s finding that the policy of random urine tests was compatible with human rights, on the basis that – although it limited the dignity right in section 22 (1) – that limit was shown to be “demonstrably justified” by Mr Thompson’s evidence.

We say there are important questions about how the justification requirement in section 7(2) was approached by the Court of Appeal, and what is required to establish whether or not there are reasonably available alternatives that are less restrictive of the relevant right.

A second further point concerns the scope of the privacy right in section 13(a), and whether or not the distinction between the internal limitations on the right to privacy that an inference must be arbitrary, and the requirement under section 7(2) that any limit on the right must be “demonstrably justified”, and then, finally, a subsidiary question about whether the strip searches were authorised under regulation 87 (1)(d) of the Corrections Regulations.

GAGELER J: When you say –

GLEESON J: Mr Horan, can I just say –

GAGELER J: Sorry, Justice Gleeson, we were about to ask the same questions, so you do it.

GLEESON J: Perhaps. It is not clear how that last question arises – in relation to which strip search?

MR HORAN: I think it arises in relation to either strip search and whether or not, the general manager formed the requisite belief on reasonable grounds, and whether that was established. In one sense, it is – I say it is subsidiary because the Court concluded that the strip searches were incompatible with human rights in any event.

GLEESON J: Is it subsidiary, or does it not arise?

MR HORAN: I think we have raised it for the avoidance of doubt. It overlaps with the questions of arbitrariness and justification. But I do not think it is essential to our application – that it does not raise a special leave question, I think, is best way to put it.

So, in inclusion, we say that the questions raised by the application are important. They warrant consideration by this Court in order to clarify and resolve uncertainty in the application of the relevant principles and will provide guidance to public authorities in Victoria and, potentially, in other jurisdictions with analogous statutory Charters of Human Rights such as Queensland or the Australian Capital Territory. If the Court pleases.

GAGELER J: Thank you. Mr Knowles.

MR KNOWLES: Thank you, your Honours. Just turning to – we are going to go straight to the grounds, if I might. If we can go to proposed ground 1 – obviously, that rests on a construction of section 38(1) that requires, as a matter of law, that section 7(2) be imported into the operation of the procedural limb in section 38(1). As your Honours will have heard, the applicant says that to give proper consideration to human rights, a public authority must have regard in every instance to the demonstrable justification factors in section 7(2).

In that regard, we say that the Court of Appeal was, with respect, correct to decide that nothing in the text of section 38(1) points to such a construction – nor does the statutory context support that construction. Indeed, unlike the substantive limb in section 38(1), the procedural limb does not refer to incompatibility with human rights so as to engage section 7(2). The applicant’s proposed construction involves words to that effect having to be read‑in to the procedural limb of section 38(1). But we would say, there is no clear necessity for that to be done. Further, we would say ‑ ‑ ‑

EDELMAN J: Mr Knowles, is there reach much of a difference? If one is asking the question of what is appropriate in all of the circumstances, it would be very unusual that the circumstances did not include the nature of the right, the purpose of the limitation, the nature of extent of the limitation, and so on. I do not think it is suggested here that any of those particular factors were ignored or should have been considered.

MR KNOWLES: All we are saying is that textually there is no requirement for that to occur, even if – as your Honour points out – as a matter of substance, that may well be something that forms part of what proper consideration requires. All we are saying is that there is no particular requirement that what is in 7(2) be imported into 38(1). It may be in substance that that occurs, in particular circumstances, but simply that it is not, as a matter of statutory construction, required by law in every single instance.

We would also point out that obviously those matters in section 7(2), insofar as they go to compatibility, we would say, are very much engaged by the substantive limb of section 38(1). That substantive limb stands separate from the procedural limb – they are cumulative and distinct legal requirements of section 38 in respect of acts and decisions that are made by public authorities.

We would also say, your Honours, that, contrary to what might otherwise be suggested in the applicant’s submissions, there is no controversy or inconsistency in the case law. The construction that was adopted by the Court of Appeal in this case was not in any way novel, as is suggested by the applicant, and the Court of Appeal was correct to find that at first instance, the judge at first instance misconstrued the procedural limb in requiring that those factors must be taken into account as a matter of law on the proper construction of section 38(1).

The only other matter I should raise is just in terms of the factual point that was raised by my learned friend in respect of the first ground. We would just observe that the power in question was that of the Governor or general manager – so much is clear when one looks at section 29A of the Corrections Act – which is set out in the Court of Appeal reasons at paragraph 35, joint application book page 109. Unless there is anything further, I did not propose to say anything more in respect of the first proposed ground, your Honours.

Perhaps, then, I will move to the second proposed ground. That relates to the privacy right and concerns the proper construction of section 13(a) of the Charter and again whether factors in section 7(2) have to be considered in determining whether, for the purposes of section 13(a), an interference with privacy is arbitrary. As the Court of Appeal correctly found – and I do not understand there to be any dispute on this point – the enunciated legal test for ascertaining whether an interference with privacy is, for the purposes of section 13(a), arbitrary – that test requires that consideration be given to whether the interference is:

capricious, or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought –

The last formulation of that test, the:

unreasonable in the sense of not being proportionate to the legitimate aim sought –

that was the focus of the reasoning on the part of the Court of Appeal given the submissions that were made by, in particular, the applicant below. What the Court of Appeal stated, and we would say with respect, correctly, was that in assessing whether an “interference with privacy” is, in the words of that enunciated test:

unreasonable in the sense of not being proportionate to the legitimate aim sought –

it is not necessary as matter of law to give direct and express consideration to the factors set out in section 7(2) of the Charter. That is, those factors – or more broadly, section 7(2) and the proportionality analysis – is not, as a matter of law, imported into every assessment of arbitrariness in respect of interferences with privacy when one considers section 13(a).

Insofar as the enunciated test uses those words, those words are not a substitute for the statutory text of section 13(a), and insofar as the enunciated test refers to proportionality, we would say it is not intended in doing so to somehow import the demonstrable justification exercise in section 7(2) into an assessment of the existence of the privacy right. Again, of course, in substance – as your Honour Justice Edelman raised before – some of the factors in section 7(2) may well, as a matter of fact, inform an assessment of arbitrariness, and the Court of Appeal expressly recognised as much in its reasons at paragraph 58, joint application book, page 127.

Indeed, in its consideration of the existence of the privacy right in respect of strip searches, the Court of Appeal considered, expressly, at least one of those factors, and again here I refer to the Court of Appeal’s reasons at paragraphs 317 and 318 at joint application book, page 207. But despite that it does not follow, again as a matter of law and statutory construction, that it is necessary to consider each of the factors in section 7(2) on every occasion when such an assessment of arbitrariness is called for. Again, we would say nothing in the text of section 13 calls for that approach, nor is that approach supported by statutory context or purpose.

Indeed, in that regard, as has been noted in the respondents’ submissions in writing, the approach that is proposed by the applicant would result in the conflation of two separate processes contemplated by the Charter – namely, the process of assessing the existence of a human right, on the one hand, would be conflated with, on the other hand, the assessment of whether any limitation on that right is demonstrably justifiable. But the former exercise must be undertaken before the latter exercise can proceed.

GAGELER J: You may well be right, Mr Knowles. It is just a very strange use of language, is it not, if you find that there has been an arbitrary interference with a right to privacy and then go on to say, but that is demonstrably justified. It is just an odd expression.

MR KNOWLES: I do not at all, with respect, quibble with that, your Honour. I think that is something that the Court of Appeal grappled with and acknowledged – in that the Court of Appeal acknowledged expressly that, once one passed through that way of making a finding as to the arbitrariness of the interference with privacy, it would very often be the case that it would be found that that interference was not demonstrably justified in all circumstances. In that regard, that is set out – as I might have mentioned a moment ago – at paragraph 58 of the Court of Appeal’s reasons, page 117 of the joint application book. There, the Court:

acknowledge that the relationship between the privacy right and the justification requirement in s 7(2) of the Charter can result in some overlap.

That is true, as a matter of substance – but as a matter of construction, we would say it does not mean that those things, as a consequence, must be factored into any assessment of arbitrariness.

Otherwise, we would say that the Court of Appeal was correct to find that, at first instance, her Honour had erred in conflating those two matters, even if – and, here, one sees the reasons, relevantly, in the Court of Appeal’s judgment at paragraph 205. I do not propose to take your Honour to them, but the point being that her Honour described the two separate processes as giving rise to the same questions for determination and, with respect, we would say that, as a matter of law, that is not so.

EDELMAN J: Section 13(a), on any view, must be an individual right – or a personal right – and section 7 is concerned with utilitarian or social justifications for constraining that personal right.

MR KNOWLES: Yes, yes. I respectfully agree with your Honour in that regard. Obviously, what has occurred here is that, as a result of the approach taken by her Honour at first instance, as the Court of Appeal observed, a consequence was material in that it meant that the questions of onus were displaced such that, whereas typically there would be a requirement that the plaintiff bears the onus of establishing that there is a right that has been affected in some way – pursuant to having regard to section 13(a) – that did not occur here.

That was all I proposed to say in respect of ground 2, unless there was anything further particularly that your Honours wish to raise with me in that regard. As to ground 3, which relates to the justification for limitation on the dignity right, essentially, as your Honours will have seen, the Court of Appeal found that the random urine tests were justified for the purposes of section 7(2) of the Charter, but the strip searches were not. The relevant references are paragraphs 276 to 277, in respect of the random urine tests, at page 192 of the joint application book, and paragraph 357 at page 221 of the joint application book, in respect of the strip searches.

I should say there are other passages that relate to the reasons, but they are just the conclusions that were reached. This ground seems to rest – so far as we can see – on the fact of these different conclusions, in respect of what was found by the Court of Appeal in respect of the justification for the random urine tests as compared with the Court of Appeal found in respect of the strip searches.

We would say it was entirely correct for the Court of Appeal to take a different approach in each instance, having regard to the different evidence that arose in respect of each particular limitation on each respective right. That is, in particularly so, that in relation to the evidence about less restrictive rights for each measure. That evidence was different in respect of strip searches, as distinct from random urine tests.

That is the simple reason why the Court of Appeal correctly, we say, with respect, reached to different conclusion in each instance. And, unless there was anything further, I did not propose to go into the actual reasons or evidence that underpins the different evidence that underpins each of those findings, but perhaps, just turn directly to ground 4. Ground 4 relates to the reasonable grounds for the belief under regulation 87(1)(d) in connection with strip searches.

GAGELER J: I think, Mr Knowles, that Mr Horan made it clear that this would not be an independent ground for special leave.

MR KNOWLES: I see.

GAGELER J: But rather something that might get swept up if he has got the wind in his sails on the other grounds.

MR KNOWLES: Yes.

GAGELER J: We have your written submissions on that.

MR KNOWLES: I am grateful, your Honour. I do not propose, in that event, to say anything further about ground 4. So, for the reasons that are set out in those written submissions, as well as what has been said today, in conclusion, the respondents submit that in each of these matters the
proposed grounds are not sufficiently meritorious or of such significance as to warrant the grant of special leave.

GAGELER J: Yes, thank you. Mr Horan?

MR HORAN: Just three short points in reply, if the Court pleases. The first is to address the respondents’ obsession with the statutory text. Their point is that the procedural limb, unlike the substantive limb, of section 38(1) does not refer to compatibility with human rights, but when one looks at the statutory text, nor does section 7(2) itself, and there is simply no textual reason, let alone contextual reason, for not treating section 7(2) as capable of informing both limbs of section 38(1).

The second point is in relation to whether there is any difference in the tests as formulated by the Court of Appeal and by other judgments. We say there was a material difference in the tests, which is illustrated by the outcome, but to the extent that there is any overlap or similarity in the tests, if the test, as formulated by the Court of Appeal, encompasses the need to consider the types of factors that are set out in section 7(2) then we submit there was no error in the primary judgment and the conclusions that her Honour reached at paragraphs 51 and following at application book 31 to 32 where that is precisely what her Honour did, was look at those factors.

We say that because the Court overturned the primary judge’s approach and conclusion, that must mean that the Court of Appeal at least understood the tests as having a different operation ‑ ‑ ‑

EDELMAN J: Or it may be just – broadly the same operation but just in a less mechanistic or formal way, in that section 38(1) does not pick up the precise wording of section 7(2), but picks up the type of considerations – I should, rather than say “picks up”, but requires consideration in terms of propriety or proper consideration of those types of considerations.

MR HORAN: That is correct, your Honour, but one needs the procedural limb to pick up something, because the text of the section just simply refers to “proper consideration” of relevant human rights. We say that that contemplates an assessment of compatibility with human rights, which involves all of the substantive rights set out in the Charter, but also the circumstances in which those right may be limited.

The final point is a return to the factual one – that ultimately on no view of any test can Mr Thompson’s evidence be seen as involving any consideration – or any appropriate consideration of the human rights regarding the policy in Instruction 3.10 – which is the relevant policy in this case – to impose that wide‑ranging requirement for random urine test of
five per cent of the total prisoner population each month and to require each and every one of them to submit to a strip search before any such test.

He says himself, squarely, on several occasions, that he was relieved of the necessity of doing so – of assessing and considering human rights of that policy – by the earlier Charter assessment that had been done by the Department, and it was that assessment that was held to be – found to be inadequate by the primary judge, and the Court of Appeal ultimately did not overturn or disagree with that finding. And so, for those reasons we say there must have been a miscarriage in the formulation or application of the test that arises under the procedural limb of section 38(1).

If the Court pleases, those are my submissions.

GAGELER J: Thank you. We will retire to consider the course we will take.

AT 3.44 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.52 PM:

GAGELER J: We are not persuaded that the understanding of the operation of the provisions of the Victorian Charter adopted and applied by the Court of Appeal warrants reconsideration by this Court in the circumstances of the present case. There will be an extension of time in application M8/2022 but both applications will be refused. Is there a question about costs, Mr Knowles?

MR KNOWLES: I understand my clients seek the usual order as to costs – that they simply follow the event.

GAGELER J: Very well. The applications will be refused with costs. Thank you. The Court will now adjourn until Monday, 17 October 2022.

AT 3.53 PM THE MATTERS WERE CONCLUDED