A v C - [2015] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
A & ANOR v C & ANOR
[2015] SASCFC 105
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
3 August 2015
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - MATTERS NOT GIVING RISE TO BINDING CONTRACT - AGREEMENTS NOT INTENDED TO CREATE LEGAL RELATIONS - AGREEMENTS WITH GOVERNMENTS AND PUBLIC AUTHORITIES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - OTHER CASES
CRIMINAL LAW - FEDERAL AND STATE INVESTIGATIVE AUTHORITIES - OTHER STATES AND TERRITORIES
PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - OFFENCES - GENERALLY
Appeal against a preliminary finding of a single Judge of this Court. Some years ago A was appointed as a member of a government Board. A was appointed by letter from the then Premier attaching a document entitled “Terms of Appointment for Members of the South Australian Economic Development Board” and the Board’s Charter. A was appointed for a period of two years and was subsequently reappointed for a number of further two year terms. A’s duties included attending meetings of the Board and participating in its deliberations.
In 2014 the Independent Commissioner Against Corruption commenced an investigation into the conduct of A. A and B sought declaratory and injunctive relief and orders in the nature of certiorari in relation to that investigation. As a preliminary issue it was determined that A was a “public officer” within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act). It is this preliminary finding against which the appellants appeal.
Whether the Judge erred in finding that the arrangements between A and the Premier were intended to be legally binding. Whether the Judge erred in finding that the contract entered into was between A and the Crown, not A and the Premier. Whether the Judge erred in finding that A’s participation in the proceedings of the Board was work performed as a contractor.
Held per Kourakis CJ (Kelly and Peek JJ agreeing) (dismissing the appeal):
1. A number of indications together strongly support the Judge’s conclusion that the Terms of Appointment were intended to be legally binding. The parties to the Terms of Appointment intended to be legally bound by it.
2. The Premiers at the relevant times had both actual and ostensible authority to enter into the contractual arrangement with A on behalf of the State Crown. The office of Premier does not have any existence, function or purpose which is independent from the Executive Government of South Australia. A contract with the holder of the Premiership, acting in that capacity, and which falls within the Premier’s authority is necessarily a contract with the Executive Government or with the Crown. The counterparty to the arrangement with A was the Executive Government of South Australia.
3. The structure of the definition of contract work in the ICAC Act is a function of the Act’s objective to include within the definition of public officer the employees and agents of persons who contract with the executive government. It is not intended to, by implication from its terms, give the word contractor a meaning which is much narrower than the literal meaning of someone who contracts with the Crown.
4. The phrase “as a contractor” in the definition of contract work in s 4 of the ICAC Act was intended to serve the same purpose as the words “personally performs” in s 237 of the Criminal Law Consolidation Act 1935 (SA).
5. A is a contractor because he performed work for the Crown pursuant to a contractual obligation to do so.
Independent Commissioner Against Corruption Act 2012 (SA) s 4, s 5, s 7, s 31 and sch 1; Constitution Act 1934 (SA) s 65, s 66 and s 67A; Criminal Law Consolidation Act 1935 (SA) s 237; Parliamentary Representatives Allowances and Ministers Salaries (Amendment) Act 1920 (NSW), referred to.
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Ashton v Pratt (2015) 318 ALR 260, applied.
New South Wales v Bardolph (1934) 52 CLR 455; Minister for Youth and Community Services v Health and Research Employees’ Association of Australia (NSW Branch) (1987) 10 NSWLR 543, discussed.
Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488, considered.

A & ANOR v C & ANOR
[2015] SASCFC 105
Full Court: Kourakis CJ, Kelly and Peek JJ

KOURAKIS CJ: Early in 2014, the Independent Commissioner Against Corruption (the Commissioner) commenced an investigation into the conduct of A. In May 2014 the Commissioner issued warrants authorising investigators to enter and search certain places occupied by A. A commenced proceedings for judicial review challenging the lawfulness of the Commissioner’s decision to issue the warrants and the validity of the warrants. The parties agreed at trial that it was convenient to determine, as a preliminary issue, whether A was a “public officer” within the meaning of that term in the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act). The judge found that A was a public officer. A appeals against that finding.
Some years ago the then Premier of South Australia, the Honourable Mike Rann (Premier Rann), wrote to A confirming that he had been appointed a member of the South Australian Economic Development Board (the Board). Attached to the Premier’s letter was a document entitled “Terms of Appointment for Members of the South Australian Economic Development Board” (the Terms of Appointment). The Premier also attached a document entitled Economic Development Board Charter (the Charter). The initial term of A’s appointment was two years. Premier Rann subsequently reappointed A to the Board on a number of occasions. A was then later reappointed by the Premier, the Honourable Jay Weatherill MP (Premier Weatherill), for a further term of two years.
A Public Officer is defined by the combined operation of s 4 and Schedule 1 of the ICAC Act to include a person who performs work as a contractor for the Crown, or as an employee or other agent of a contractor for the Crown.
A contends that he was not a public officer because it was not intended that the arrangements with Premier Rann, and then Premier Weatherill, be legally binding and in any event if he had entered into a binding contract, it was with the Premier personally and not the Crown. In the alternative A contends that his participation in the proceedings of the Board was not work which he performed “as a contractor”.
I would hold that in subscribing to the successive Terms of Appointment A entered into binding contracts with the Crown. The Crown entered into the contracts through the agency of the Premier. In entering into the contracts A bound himself to apply his business skills and experience to the work of the Board. In participating in the work of the Board A performed work as a contractor even though he was not in the business of providing consultancy and advice services, of the kind which he contributed to the Board, to other governmental parties.
My reasons follow.
The Terms of Engagement
Plainly enough parties can enter into an arrangement without intending to create binding legal relations. Whether or not they intend to create legal relations must be determined objectively.[1] It can be accepted that the Terms of Appointment do not embody a common commercial transaction. However, the subject matter of the arrangement was the provision of high-level business advice. The circumstance that the services were provided to government and not to a private industrial or commercial entity matters little.
[1] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105 [25] per Gaudron, McHugh, Hayne and Callinan JJ.
McLure JA said in Tipperary Developments Pty Ltd v Western Australia (Tipperary):[2]
[N]ot all assurances are intended to be contractual, even when made by a person with authority to enter into a contract. That is particularly so in the case of domestic or government assurances. … The focus is on whether the parties intended the promises not to be enforceable in the courts (or any alternative mechanism) if not honoured.
[2] (2009) 38 WAR 488 at 517, [122].
It is to the indications of the parties’ intention to which I now turn.
After referring to A’s agreement to join the Board, the letter sent by Premier Rann on 18 September 2006 (Premier Rann’s letter) continued:
As a member of the Board, you will receive an annual remuneration of $45,000. As outlined in the Terms of Appointment, members of the Board are appointed on a contractual basis to me as Premier. A copy of the Board’s Charter and Performance Agreement are attached for your information.
(underlining added)
The reference to an appointment on a “contractual basis” would generally be taken to mean what it says and although not determinative is a relatively strong indication of an intention to create a legally binding contract. The subsequent letters to A from Premier Rann, and then Premier Weatherill, referred to A’s reappointment to the Board.
The contents of the Terms of Appointment enclosed with each letter were always the same. The term of each appointment was for two financial years unless the appointment was terminated earlier by the Premier.
The first paragraph of the Terms of Appointment provided:
Advisory Board members (board members) will perform the service of sitting on, and participating in the deliberations of, the Economic Development Board (the Board) the functions and duties of which are set out in the attached Charter and Performance Agreement (the Services).
Even though A’s stipulated duties were not onerous they were reasonably well defined by that paragraph. A was to attend meetings of the Board and participate in its deliberations. The subject matter of the Board’s deliberations was ascertainable from the attached Charter and included:
·the development and oversight of the implementation of a framework for economic development in South Australia;
·providing high level strategic and policy advice to Government on economic development and industry issues; and
·advising on the development of major projects monitoring and measuring the performance of the State on key economic social and environmental indicators.
A relies heavily on the high level of abstraction at which the Board’s agenda was expressed. In this case that circumstance does not strongly contraindicate an intention to create legal relations. It was necessary to express the Board’s agenda in those broad terms because of the very nature of its function which was to provide high-level advice to Government. Of present importance is the fact that the Terms of Appointment clearly stated A’s obligation to participate in the Board’s deliberations, whatever the Board might determine the particular subject matter of those deliberations to be. The Terms of Appointment also stipulated that A must, when participating, exercise “due care and diligence to a high professional level” and must “abide the code of conduct that applies to persons appointed to government boards and committees”. The relative certainty of the services to be provided by A, economic and development advice through the Board acting in accordance with the Charter, is in stark contrast to the radically uncertain obligations of being “a mistress” considered by the Court of Appeal of New South Wales in Ashton v Pratt,^[3] an authority relied on by A.
[3] (2015) 318 ALR 260.
There is an imperfect analogy between the Board members and Company directors who are generally not bound in contract but are subject to tortious and fiduciary duties. However that analogy does not preclude the existence of a contractual relationship, particularly when the application of tortious and fiduciary duties to members of the Board is so problematic.
The Terms of Appointment provided that A would be “entitled to receive an annual fee” for an annual remuneration of $45,000 (plus GST if applicable) “along with reimbursement of any required interstate travel and accommodation expenses”. Relative to the wealth of A, and other South Australian business leaders, and to the commercial value of his consultancy services, the sum of $45,000 might be regarded as relatively low remuneration. It might also be regarded as relatively low remuneration by comparison to the potential value to the State of A’s services. However for attending as few as four meetings annually the remuneration is far from trifling and is certainly sufficient to constitute contractual consideration. For many South Australian taxpayers it is as much as their annual wage. The remuneration is substantial enough to be consistent with, if not indicative of, an intention to create legal relations. Moreover, the use of the words “entitled” and “fee” in themselves are indicative of such an intention.
If the Terms of Appointment were not legally binding A would have no contractual claim for the payment of the not insignificant sum of $45,000. Nor would A be able to enforce the State’s promise to reimburse his out of pocket travel and accommodation expenses. On the other hand, if A were to be paid in advance, but only attended meetings of the Board spasmodically and barely participated in the Board’s deliberations when he did, the Crown would have no grounds on which to recover the advance payment. A’s counsel submitted that if A failed to attend any of the Board’s meetings and failed to participate at all in any of the work of the Board, a restitutionary claim may have been available. Even in those circumstances it is difficult to see why it would be unjust for A to retain his remuneration if it had been provided, as A contends, as no more than a matter of “grace and favour”. The reasonable bystander would be surprised to learn that despite the nature and conditions of A’s appointment, the parties failure to fulfil their promises would have no consequence. The reasonable bystander would infer that the parties entered into the arrangements in the form, and on the conditions, adopted by them because they intended to be legally bound to them.
The Terms of Appointment included the following provision:
The Board Member and the Government of South Australia acknowledge and agree that nothing in this agreement shall be construed or be deemed to create a partnership, joint venture or any relationship of employer/employee or of principle/agent between the Government and the Board Member or between the Government and other Board Members who sit on the Board.
Provisions of that kind are commonly found in commercial contracts to express the parties’ intention not to create the specified relationships. Expressions of intent of that kind are of course not determinative of the substance of the legal relationship forged by the contract. However what is of present importance is that the provision is an indication that the parties contemplated that they were legally bound by the Terms of Appointment and wished to express their intention that, although legally bound, they were not entering into any of the specified relationships.
The Terms of Appointment included a promise by the State to keep A indemnified against all civil claims, actions, suits, damages, costs and expenses whatsoever incurred in the course of, or in connection with, the performance of his duties provided that he acted in good faith and in accordance with the terms of his appointment. It can be accepted that quite apart from the Terms of Appointment A was probably covered by a statutory immunity and/or indemnity, but the express inclusion of that term is nonetheless an indication of an intention to create legal relations. An indemnity is unlikely to have been drawn and recorded in those formal terms if it were not intended to be contractually binding.
A accepted each of his appointments by subscribing to the following statement at the foot of the Terms of Appointment:
I, [A], hereby accept appointment to the South Australian Economic Development Board and agree to be bound by the above-mentioned terms …
It is unlikely that the parties would have provided for the appointment to be formally accepted in that way if they did not contemplate creating legal relations. Such formality is unlikely to accompany an arrangement based on no more than the personal honour of the parties.
The above-mentioned indications together strongly support the Judge’s conclusion that the Terms of Appointment were intended to be legally binding. I too would conclude that the parties to be Terms of Appointment intended to be legally bound by it.
Was the contract with the Premier personally?
By s 65 and s 66 of the Constitution Act 1934 (SA) (the Constitution) Ministers of the Executive are described as Ministers of the Crown. Section 65(1) provides that there will be a number of Ministers not exceeding 15. Section 65(2) of the Constitution provides that the Ministers will bear such title and fill such ministerial offices as the Governor from time to time appoints. Section 66 recognises the office of Minister of the Crown and every such Minister is ex officio a member of Executive Council. Ministers are both delegates and agents of the Crown.
On the introduction of responsible government to the Australian colonies the office of Chief Secretary was the equivalent of the modern office of Premier. Over time the office of Premier was created, with that title, in the exercise of the gubernatorial power to create public offices. The use of the title Premier may have been borrowed from the practice in the Canadian provinces, and in particular Quebec, with the creation of the office of Prime Minister after federation. It was the office of Premier which approximated the British office of Prime Minister.[4] A ministerial office of Chief Secretary continued well into the 20^th century and references to that office remained in the Constitution Act 1934 (SA) until 1953.
[4] Lawmakers and Wayward Wiggs Government and Law in South Australia 1836-1986 Castles & Harris.
Section 67A of the Constitution Act 1934 (SA)[5] implicitly recognises the office of Premier in the power given to the Governor to appoint Parliamentary Secretaries.
[5] First enacted in 1997.
I observe also that the letters patent dated 14 February 1986 by clause (viii) require the Governor to convene a meeting of Executive Council if requested by the Premier or Deputy Premier.
It appears from the discussion of the constitutional position of Ministers in New South Wales in the early 20^th century in New South Wales v Bardolph (Bardolph)[6] that both the office of Chief Secretary and Premier co-existed at that time. The Chief Secretary at that time had responsibility for the tourist bureau. However, Dixon J referred to the office of the Premier as follows:
The Premier itself is an office in the Constitution Act (cf. secs. 27 and 29 and Second Schedule). In his capacity of Premier he administers a department. It appears that in the division of work amongst various departments, the making of advertising contracts fell to an officer of his department, who, therefore must act under his control and direction.[7]
[6] (1934) 52 CLR 455.
[7] (1934) 52 CLR 455 at 507.
The references to the Premier mentioned by Dixon J were inserted by the Parliamentary Representatives Allowances and Ministers Salaries (Amendment) Act 1920 (NSW).
In New South Wales v Bardolph,[8] the High Court found that a contract entered into between the proprietor of a newspaper and an agent of the Premier was a contract made by the Crown and thus binding on the Crown. Rich J stated the scope of the authority of the Premier of New South Wales to bind the Crown in this way:[9]
...the Premier's position is such that a transaction otherwise within the competence of the Crown which he carries through and which is not disowned by his administration, particularly when it pertains to his own department, must be treated as the transaction of the Crown. The conduct of Government business would otherwise be impossible.
[8] (1934) 52 CLR 455.
[9] (1934) 52 CLR 455 at 495.

Starke J stated the general proposition that contracts between the Crown’s subjects and officers of its government department in these terms:[10]
The departments of Government enter necessarily into many and various relations with the King’s subjects, and the officers of these departments, through whom these relations are established, represent the Executive - that is, the Crown. But otherwise contracts made on behalf of the Crown by its officers or servants in the established course of their authority and duty are Crown contracts, and as such bind the Crown. The nature and extent of the authority may be defined by constitutional practice or express instructions, or inferred from the nature of the office or the duties entrusted to the particular officer or servant.
Citations omitted
[10] (1934) 52 CLR 455 at 501-502.
Dixon J also recognised the whole of government authority of the Premier:[11]
In his capacity of Premier he administers a department. It appears that, in the division of work among various departments, the making of advertising contracts fell to an officer of his department, who, therefore, must act under his control and direction. But independently of this consideration, as head of the administration, he must be assumed to speak with the authority of the Government.
[11] (1934) 52 CLR 455 at 507.
In Minister for Youth and Community Services v Health and Research Employees’ Association of Australia (NSW Branch) (1987) 10 NSWLR 543, McHugh AJ explained:[12]
If the contract is made for and with the authority of the Crown, the Crown and not the servant is liable on the contract. The principle that a minister or public servant is not personally liable in respect of a contract made by him on behalf of and with the express or implied authority of the Crown rests “partly upon the general rules of the law of agency, and partly on public policy”: Holdsworth, History of English Law, vol X at 652. The immunity from suit of an agent of the Crown was established in Macbeath v Haldimand (1786) 1 TR 172; 99 ER 1036, where the Governor of Quebec was sued for goods supplied for the use of a fort. On a motion for a rule to order a new trial, Lord Mansfield CJ found for the defendant in accordance with ordinary principles of agency. Ashurst J, however, found for the defendant partly on the ground of agency but also on the ground of public policy which in his view modified the rules applicable to private agreements. The agency-public policy ground was the basis of the decision in Dunn v Macdonald [1897] 1 QB 555 and, as the passage from Holdsworth indicates, is now the accepted ground. Lord Justice Lopes said (at 557):
The liabilities of public agents, on contracts made by them in their public capacity, are on a different footing from the liabilities of ordinary agents on their contracts. In the former case, unless there is something special which would be evidence of an intention to be personally liable, an agent acting on behalf of a government is not liable for breach of a contract made in his public capacity, even though he would by the terms of the contract be bound if it were an agency of a private nature.
The result of these principles was that, until the passing of the various statutes entitling a person to bring an action against the Crown for breach of contract, relief in respect of a contractual claim against the Crown could only be obtained by Petition of Right. At common law neither the Crown nor its agent was liable to be sued on a contract. The agent incurred no liability, and the Crown, though liable, could not be sued in the sovereign's own courts.
[12] (1987) 10 NSWLR 543 at 557 [A]-[E].
The appellant sought to distinguish these authorities on the ground that no office of Premier is expressly constituted by the South Australian Constitution as it was in New South Wales at the time Bardolph was decided. I reject that submission. In Bardolph itself Dixon J recognised that the authority of the holder of the office of Premier is not dependent on the express recognition of that office in New South Wales. Dixon J said:
But independently of this consideration, as head of the administration, he must be assumed to speak with the authority of the Government.[13]
[13] New South Wales v Bardolph (1934) 52 CLR 455 at 507.
The Premier of the State of South Australia occupies the office of a Minister under the Constitution Act 1934 (SA). By constitutional convention, the holder of the ministerial office of Premier has a pre-eminent authority to bind the executive government across all of the areas of its responsibility. That convention was given legal effect by the proclamation made by Executive Council of this State on 27 February 1994 conferring on the Premier power to enter into any contract or deed on behalf of the Crown generally.[14] The proclamation reads:
Notice of authorisation by the Governor to enter contracts and deeds on behalf of the Crown
Take notice that I, the Governor, with the advice and consent of the Executive Council, have made the following authorisations to enter contracts and deeds on behalf of the Crown:
1The Premier has authority to enter into any contract or deed on behalf of the Crown.
2Any other Minister has, in his or her personal capacity authority to enter into any contract or deed on behalf of the Crown in respect of any matter within the Minister’s portfolio.
[14] South Australian Government Gazette 24 February 1994 at 525.
The proclamation expressly empowers the Premier to exercise the contractual power of the Executive Government of the State of South Australia, and its publication in the Gazette gave public notice of that authorisation. For the purposes of contractually binding the Executive Government of this State through the acts of the Premier, the proclamation both creates an agency and discloses the principal.
In Tipperary McClure JA, citing Bardolph, held that within the field of ordinary functions identified by the majority in Bardolph the Prime Minister and a State Premier have authority across the whole field of such activity.[15] McClure JA also held that if a contract is made for and with the authority of the State, the State and not its agent is liable on the contract.[16]
[15] Tipperary at [93].
[16] Tipperary at [89].
It follows that Premiers Rann and Weatherill had both actual and ostensible authority to enter into the contractual arrangement with A on behalf of the State Crown.
Even though Premier Rann’s letter spoke of A’s appointment to the Board on a contractual basis to Premier Rann as Premier, the Terms of Appointment are replete with references to “the Government”:
·an acknowledgement given by the Board member to the “Government of South Australia”:
·an indemnity given to the Board member by the Government of South Australia; and
·a warranty given by the Board member to the Government of South Australia.
In context, the reference to contracting with the Premier is a reference to the Premier as the agent of the Crown.
One can immediately put to one side a view that A’s counterparty was the Premier Mike Rann and later the Premier Jay Weatherill in their personal, non-ministerial, capacities. The objective observer would immediately understand that those persons were not entering into an arrangement to procure personal advice to guide their political work and I did not understand A to so contend.
Rather, A contended that the Premier contracted with him, as such, but without binding the Crown. I reject that submission. The office of Premier of South Australia does not have any existence, function or purpose which is independent from the Executive Government of South Australia. A contract with the holder of the Premiership, acting in that capacity, and which falls within the Premier’s authority is necessarily a contract with the Executive Government or with the Crown.
The counterparty to the arrangement with A is therefore the Executive Government of South Australia.
Definition of public officer and meaning of contractor
Schedule 1 of the ICAC Act lists categories of persons who are public officers for the purposes of that Act. The relevant category for present purposes is described as “a person performing contract work for a public authority or the Crown”.
Section 4 of the ICAC Act defines contract work to mean work performed by a person as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractor.
A contends that he is not a contractor within the meaning of s 4 of the ICAC Act because:
·a person who does work pursuant to a contract does not ipso facto become a contractor;
·a contractor connotes more than a party to a single contract;
·contractor in its ordinary usage bears the connotation of a person engaged in a business activity of contracting in the sense of some regular and repetitive activity with a view to profit.
The questions of construction raised by A must be considered by reference to all of the provisions of the ICAC Act which confer powers with respect to public officers.
The ICAC Act
Section 7 of the ICAC Act constitutes the office of the Independent Commissioner Against Corruption with the responsibility to identify and investigate corruption in public administration. The Commissioner’s other functions include assisting inquiry agencies and public authorities to identify and deal with misconduct and maladministration in public administration.[17]
[17] ICAC Act s 7(1)(b).
Corruption, misconduct and maladministration are defined by s 5 of the ICAC Act by reference, in part, to public officers:
(1)     Corruption in public administration means conduct that constitutes—
(a)an offence against Part 7 Division 4 (Offences relating to public officers) of the Criminal Law Consolidation Act 1935, which includes the following offences:
(i)    bribery or corruption of public officers;
(ii)    threats or reprisals against public officers;
(iii)     abuse of public office;
(iv)     demanding or requiring benefit on basis of public office;
(v)     offences relating to appointment to public office; or
(b)an offence against the Public Sector (Honesty and Accountability) Act 1995 or the Public Corporations Act 1993, or an attempt to commit such an offence; or
(c)any other offence (including an offence against Part 5 (Offences of dishonesty) of the Criminal Law Consolidation Act 1935) committed by a public officer while acting in his or her capacity as a public officer or by a former public officer and related to his or her former capacity as a public officer, or by a person before becoming a public officer and related to his or her capacity as a public officer, or an attempt to commit such an offence; or
…
(3)     Misconduct in public administration means—
(a)     contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or
(b)     other misconduct of a public officer while acting in his or her capacity as a public officer.
(4)     Maladministration in public administration—
(a)     means—
(i)conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or
(ii)conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and
(b)     includes conduct resulting from impropriety, incompetence or negligence; and
(c)     is to be assessed having regard to relevant statutory provisions and administrative instructions and directions.
Section 31 of the ICAC Act confers powers on the Commissioner and the judges of the Supreme Court to issue enter and search warrants. Broadly, the power to issue warrants with respect to premises and vehicles occupied or used by public officers is conferred on the Commissioner and the power to issue warrants over private premises and vehicles is entrusted to the Supreme Court. Section 31(1)-(3) of the ICAC Act provides:
31—Enter and search powers under warrant
(1)     The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator to enter and search—
(a)     a place occupied or used by an inquiry agency, public authority or public officer; or
(b)     a vehicle owned or used by an inquiry agency, public authority or public officer.
(2)     A judge of the Supreme Court may, on application by an investigator, issue a warrant authorising an investigator to enter and search—
(a)     a private place or private vehicle that is reasonably suspected of being, or having been, used for or in connection with a prescribed offence; or
(b)     a private place or private vehicle in which it is reasonably suspected there may be records relating to a prescribed offence or anything that has been used in, or may constitute evidence of, a prescribed offence.
(3)     A warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration.
...
Section 31(14) of the ICAC Act at the relevant time provided:
private place means a place other than a place occupied or used by an inquiry agency, public authority or public officer;
private vehicle means a vehicle other than a vehicle owned or used by an inquiry agency, public authority or public officer.
Section 31(14) of the ICAC Act now defines private place and vehicle as follows:[18]
private place means a place other than a place occupied or used wholly or primarily for official purposes by an inquiry agency, public authority or public officer;
private vehicle means a vehicle other than a vehicle owned or used wholly or primarily for official purposes by an inquiry agency, public authority or public officer.
[18]The definitions of private place and private vehicle in s 31(14) of the ICAC Act as it stood in December 2012 meant that the powers in subsections (1) and (2) were exclusive. If a person was a public officer a judge of the Supreme Court had no power to issue a warrant to enter and search a place occupied or a vehicle used by that public officer. The effect of the amendment to s 31(14) ICAC Act is that the Commissioner may still issue a warrant for the search of a place primarily occupied or even occasionally occupied by a public officer, and to search a vehicle used wholly or only in a secondary capacity by a public officer, but a judge of the Supreme Court is given a concurrent authority to issue a warrant for the searches of places or vehicles which are used only to a secondary degree by the public officer. It is not necessary for the purposes of this appeal to decide the limits of the secondary degree of occupational use which would enliven the powers in subsections (1) and (2).
I observe here that even though the powers of both the Commissioner and a judge of the Supreme Court are conditional on satisfaction that the warrant is reasonably required for the purposes of an investigation, the Supreme Court, but not the Commissioner, must also be satisfied that the place or vehicle was used in connection with, or may afford evidence of, a prescribed offence.
Accordingly, the definition of public officer determines both whether the warrant must be obtained from an authority independent of the Commissioner and the preconditions for the issue of the warrant.
However, as we have seen the definition of public officer also critically affects the breadth of functions given to the Independent Commissioner Against Corruption. By force of s 5 of the ICAC Act the Commissioner’s function with respect to corruption and maladministration conferred by s 7 of the ICAC Act extends to:
·offences committed by a public officer[19] while acting in his or her capacity as a public officer or by a former public officer and related to his or her former capacity as a public officer;
·assisting enquiry agencies and public authorities to identify and deal with the misconduct and maladministration of public officers including contraventions of codes of conduct by public officers;
·conduct of a public officer that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; and
·mismanagement in or in relation to the performance of official functions by a public officer.
[19] See ICAC Act s 5(1)(c).
I accept that the principle of legality remains a relevant consideration in the construction of intrusive search powers, like those given by s 31 of the ICAC Act, even though it is plain that the legislature intended some abrogation of the common law rights of property and the consequential enjoyment of privacy. Despite that partial abrogation, the principle of legality continues to call for a narrow construction of the investigative powers conferred by s 31 of the ICAC Act. However, the part played by the definition of public officer in delineating the scope of the Commissioner’s broader investigative functions is a countervailing consideration. The purpose of the ICAC Act to address corruption and maladministration is not well served, and is in fact undermined, by a strict and narrow construction of a public officer.
In the light of those competing considerations, the question of construction should be approached from a relatively neutral stance. The public purpose of addressing corruption and maladministration should not be obstructed by an unduly narrow approach to the definition of public officer, but on the other hand nor should the term be given an operation so as to subject an unnecessarily wide category of persons to the powers of the Commissioner to issue warrants. The words of the definition of public officer should be given their natural and ordinary meaning.
Who is a contractor?
A advocates for a narrower connotation of the word “contractor” than that word literally bears.
A contends that a person is not a contractor solely by reason only of the circumstance that he or she has entered into a contract to provide services to the Crown. A submits that what is involved is a process of characterisation by reference to the inherent character of the person who has entered into the contract, that is their character as person in business, “exogenous” to any particular engagement or appointment by the government.
For the purpose of this submission, A fastens on the phrase “as a contractor” in the definition in s 4 of “contract work”. A contends that if the word “contractor” was intended to refer to any person who was a “party to a contract” or who had performed work pursuant to a contract, it would have been more natural, logical and consistent to define “contract work” as “work performed pursuant to a contract”. In a related submission, A contends, relying on the reference to “an employee of a contractor”, that a contractor in the context of the definition is a person who might provide a relevant service to the government by engaging an employee or employees. A’s submission continues that a person personally appointed to an advisory board for their own personal expertise is not a contractor of that kind.
I reject that submission. The structure of the definition of contract work in the ICAC Act on which A relies is a function of the Act’s objective to include within the definition of public officer the employees and agents of persons who contract with the executive government. It is not intended to, by implication from its terms, give the word contractor a meaning which is much narrower than the literal meaning of someone who contracts with the Crown. A comparison with the definition of “contractor” and “public officer” in the Criminal Law Consolidation Act 1935 (SA) (the CLCA) illustrates the purpose of the definition in the ICAC Act. Section 237 of the CLCA defines public officer to include “a person who personally performs work for the Crown, a State instrumentality or a local government body as a contractor or as an employee of a contractor of otherwise directly or indirectly on behalf of a contractor”. There is an obvious similarity between the “contractor” extension of the definition of public officer in s 237 of the CLCA and the definition of contract work in s 4 of the ICAC Act. Given the interrelationship between the definitions of corruption in the ICAC Act and Part 7 of the CLCA, it is likely that Parliament intended that the meanings of “contractor” and “contract work” in the CLCA and the ICAC Act would have a similar application. The phrase “as a contractor” in the definition of contract work in s 4 of the ICAC Act was intended to serve the same purpose as the words “personally performs” in s 237 of the CLCA. In effect, both Acts include within the definition of public officer both the person who contracts with the government and that person’s employees and agents.

In this context, I pause to mention that, unlike the Judge, I accept that it is not necessary to read the definition of contract work widely in the CLCA and the ICAC Act in order to ensure that the former Act applies to Board members. Board members would fall within the category of persons “appointed to an office by the Governor” in s 237 CLCA.
A also relies on some overlap between the definitions of public officer in Schedule 1 of the ICAC Act if the word contractor is not limited in the way for which he contends. In particular, A makes the point that senior executives of the public service might fall within a literal meaning of the definition of contractor. It is not surprising that there is some degree of overlap in the categories of a public officer in Schedule 1 of the ICAC Act, but there is no difficulty caused by that overlap. Schedule 1 of the ICAC Act can still operate coherently if there were ever to be an overlap, which imposes more than one responsible authority or Minister over a public officer, by excluding from the broader category those persons who also fall into a more closely defined and narrower category.
A also contends that the wider construction of contract work may mean that some members of the same advisory board may be contracted whilst others may be mere volunteers and therefore not public officers. That theoretical possibility is unlikely to be commonly encountered. In the ordinary course, the members of the same advisory board will be appointed on the same basis. In any event, accepting that theoretical possibility for the purposes of these submissions, I reject A’s contention that a distinction between a contracted member and a volunteer is an arbitrary or capricious one. Persons who are contractually appointed have, by definition, legal rights, obligations and privileges with respect to their public functions. It is not surprising that Parliament has given the Commissioner particular investigative functions and powers with respect to persons who enjoy legal rights or privileges or are bound by legal obligations.
In any event, the “exogenous” distinction drawn by A is so elusive that it is, for all practical purposes, non-existent. It is not obvious to me why a person who has a substantial government contract, such that he or she has no capacity to provide services to any other person, and who settles into a long term relationship with the government, as his or her only customer, is any less a “contractor” than a person or persons who also contracts with multiple government or private entities.
A contends that the contractor’s character as a person in business must be found “exogenous to any particular engagement or appointment by the government”, but provides no clear test for determining that character. It is not clear from A’s submissions whether the person must have entered into other contracts or whether an intention to do so is sufficient. It is not clear whether a person must have advertised his or her calling as a contractor or otherwise assumed the trappings of a business.
Nor is there any reason to exclude from the definition of contractor a person who is engaged on a one off, short term basis to provided services to the government. The following hypothetical contractual engagement illustrates the point. Let it be assumed that a university researcher in information technology develops an information technology security system which the government decides to install. The university researcher may provide consultancy services for that purpose but make it clear that he or she has no intention of embarking on any broader business enterprise. Indeed he or she might well agree not to provide consultancy services to anyone other than the government. The university researcher may also make it clear that he or she intends to return to full time academic life, as soon as possible when the short term, part time contractual engagement by the Crown comes to an end. For the purposes of the ICAC Act, no sensible distinction can be drawn between the university researcher and a private information technology security firm which has a number of government and business customers. Both are under a contractual obligation to provide services to the government and to act diligently and honestly in the provision of those services. For those services both are remunerated from public funds. Both are given the privilege of access to highly sensitive government information as a result of their contractual relationships. Both are in a position to engage in corrupt conduct.
A similar example appears in the judgment of the Judge of this Court.[20] The Judge also exposed how the narrow construction contended for by A is counter-productive to the anti-corruption purposes of the ICAC Act:
These additional considerations are not decisive in themselves. However, there is a third consideration that is important in construing the Act, namely the evident purpose of including within the definition of public officer persons performing contract work for a public authority or the Crown or, in other words, persons performing work as a contractor. The Act is concerned with public administration and with corruption, misconduct or maladministration in public administration. Under the Act, such conduct is principally committed by public officers within the meaning of the Act. If the Act is concerned with such conduct by arm’s-length contractors providing arm’s-length services to the government, it may be expected that it is equally, if not more, concerned with such conduct committed by persons holding positions within the government pursuant to contracts with the government. The plaintiffs are unable to identify any policy or other reason why the Act would include the former but not the latter in the definition of public officer.[21]
[20] A & Anor v C & Anor [2015] SASC 35 at [76]
[21] A & Anor v C & Anor [2015] SASC 35 at [77].
A submits that any difficulty determining, on the facts of each particular case, whether a person is or is not a contractor is of little moment. A submits that it merely illustrates the common problem that questions of characterisation turn on matters of fact and degree.
I reject that submission. The definition of public officer must be capable of a reasonably straightforward determination by the Commissioner when deciding whether to exercise investigative powers granted by the ICAC Act. When the Commissioner is deciding whether or not to commence an investigation, or whether or not s 31 of the ICAC Act empowers the Commissioner or the Supreme Court to issue a warrant, he or she must do so without the benefit of disclosure by the contractor of the nature of its business. The Commissioner is not in a position to conduct a complex factual enquiry into whether the contractor is properly characterised as a contractor “exogenous” of the contract with the Crown. The ICAC Act contemplates that decisions will be made about the exercise of the powers conferred by it without any opportunity for an investigation of complex facts concerning the “exogenous” business activities of the contractor. Having regard to the circumstances and context in which the question is likely to arise, a construction which enables the Commissioner, or for that matter a Judge of the Supreme Court, to identify with relative certainty the limits of their respective powers is to be preferred. A definition of contractor which simply means a person who has entered into a contract for the performance of work for the Crown provides a reasonably simple enquiry which can be answered with relative certainty. On the other hand, the complexity of A’s overly nuanced construction of the definition of contract work would unduly burden the functions of the Commissioner and put in doubt the legality and validity of many of its investigations of government contractors. It would impair the capacity of the Commissioner to discharge his or her functions to a significant degree.
I conclude that A is a contractor because he performed work for the Crown pursuant to a contractual obligation to do so.
Conclusion
I would dismiss the appeal.
KELLY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
PEEK J. I would dismiss the appeal. I agree with the reasons of the Chief Justice.