A v C
[2015] SASC 35
•4 March 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
A & ANOR v C & ANOR
[2015] SASC 35
Judgment of The Honourable Justice Blue
4 March 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - OTHER CASES
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - BRIBERY AND CORRUPTION
The parties are identified by letters because section 56(a) of the Independent Commissioner Against Corruption Act 2012 (SA) prohibits unauthorised publication of information tending to suggest that a particular person is or may be the subject of investigation under the Act.
Preliminary issue in an action for judicial review.
In the action, A and B seek declaratory and injunctive relief and orders in the nature of certiorari in relation to an investigation by the Independent Commissioner Against Corruption pursuant to the Independent Commissioner Against Corruption Act 2012 (SA).
The preliminary issue is whether A was a “public officer”, and more specifically was a person performing work as a “contractor” for a public authority or the Crown, within the meaning of the Act.
A was appointed as a member of a government Board. A Minister of the Crown wrote to A confirming his appointment and attaching, inter alia, Terms of Appointment, which A countersigned and returned.
A contends that no contract came into existence, alternatively that any contract was with the Minister and not with the Crown and alternatively that, in any event, he was not a contractor within the meaning of the Act.
Held:
1. A contract came into existence between A and the Crown manifested by the Minister’s letter and the Terms of Appointment countersigned by A (at [43]).
2. The contract was with the Crown and not with the Minister (at [42]).
3. On the proper construction of the Act, a “contractor” extends to a person who performs work as a member of a government board pursuant to a contract with the Crown. A was a contractor and thereby a public officer within the meaning of the Act (at [80]).
Administrative Arrangements Act 1994 (SA) s 8; Corporations Act 2001 (Cth); Criminal Law Consolidation Act 1935 (SA) s 237, s 249, s 250, s 251, s 252, s 253 Pt 7 Div 4; Economic Development Act 1993 (SA); Independent Commissioner Against Corruption Act 2012 (SA) s 4, s 5, s 7, s 31, Sch 1; Public Corporations Act 1993 (SA) s 3; Public Sector (Honesty and Accountability) Act 1995 (SA) s 2; Statutes Amendment (Honesty and Accountability in Government) Act 2003 (SA) s 4; Statutes Amendment and Repeal (Public Offences) Act 1992 (SA), referred to.
Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 169 CLR 594; Harris v S (1986) 2 ACLR 51; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210; R v Whitaker [1914] 3 KB 1283, discussed.
Australian Crime Commission v Stoddart (2011) 244 CLR 554; Cassidy v Ministry of Health [1951] 2 KB 343; Daniels v AWA Ltd (1995) 37 NSWLR 438; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; George v Rockett (1990) 170 CLR 104; Herscu v The Queen (1991) 173 CLR 276; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Permanent Building Society (In Liq) v Wheeler (1994) 11 WAR 187; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393; Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63; R v Hill (2012) 6 ACTLR 167; Sali v SPC Ltd (1991) 9 ACLC 1511; State of South Australia v Clark (1996) 66 SASR 199; State of South Australia v Barrett (1995) 64 SASR 73; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; The Bell Group Limited (in liq) v Westpac Banking Corp (No 9) (2008) 70 ACSR 1; Young v Naval & Military & Civil Service Cooperative Society of South Africa [1905] 1 KB 687, considered.
A & ANOR v C & ANOR
[2015] SASC 35Application for Judicial Review
BLUE J.
This is the determination of a preliminary issue in an action for judicial review.
In the action, the plaintiffs A and B seek declaratory and injunctive relief and orders in the nature of certiorari in relation to an investigation by the Independent Commissioner Against Corruption (the Commissioner) pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) (the Act). In particular, the plaintiffs seek a declaration that A was not a public officer within the meaning of the Act.
On 5 December 2014, I ordered that the issue whether A was a “public officer” within the meaning of the Act be heard and determined as a preliminary issue. This in turn depends on whether A was a “person performing contract work for a public authority or the Crown” as a “contractor” within the meaning of the Act.
The preliminary issue does not arise, at least directly, insofar as the action is against D, who took no part in the trial of the preliminary issue. In these reasons, I treat C as if C were the sole defendant.
There are three principal questions that arise on the determination of the preliminary issue:
1.Was there a contract between A and the Minister or the Crown?
2.If so, was work to be performed by A under the contract for the Crown within the meaning of Schedule 1 of the Act?
3.If so, was A a “contractor” within the meaning of section 4 of the Act?
In addition, the defendant raises a subsidiary issue whether, if the plaintiffs succeed on the principal questions, relief ought nevertheless to be refused in the discretion of the Court because it would be of no utility.
Background
Some years ago a Minister of the Crown created a government board (the Board) and appointed members to the Board. The Board was created in the exercise of State executive or prerogative power and not pursuant to any legislation.
Subsequently, the Minister wrote a letter to A confirming that he had been appointed a member of the Board (the Appointment Letter). The Minister attached a document entitled “Terms of Appointment for Members of the [Board]” (the Terms of Appointment) which he asked A to sign and return to a Government Department. A did so. The Minister also attached a Board Charter (the Charter) and a Performance Agreement (the Performance Agreement). A was entitled to a fixed annual remuneration as a member of the Board.
A was subsequently re-appointed as a member of the Board. On each re-appointment, the Minister sent to A an updated version of the Terms of Appointment, which A signed and returned.
The Commissioner subsequently commenced an investigation into A’s conduct as a member of the Board. As part of that investigation, the Commissioner issued warrants pursuant to section 31(1)(a) of the Act authorising an investigator to enter and search places occupied or used by A.
Section 31(1) of the Act provides:
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.
The jurisdiction of the Commissioner and the authority of the investigator were therefore dependent on A being a “public officer” within the meaning of the Act.
Section 4 of the Act defines the term “public officer” by referring to Schedule 1. Schedule 1 contains a table comprising columns headed Public Officers, Public Authority and Minister (the Table). The Schedule states at the outset that:
For the purposes of this Act, the table below lists public officers, the public authorities responsible for the officers and the Ministers responsible for the public authorities.
The penultimate category included in the table is as follows:
Public officers
Public authority
Minister
a person performing contract work for a public authority or the Crown
if the work is performed for a public authority, the public authority or, in any other case, the Premier
the Minister responsible for the public authority
Section 4 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
Trial
At trial, the plaintiffs tendered an affidavit sworn by A on 18 November 2014. I received paragraphs 6 to 9 of that affidavit and exhibits 2, 3, 4, 6 and 10 to that affidavit. I received the balance of the affidavit and exhibits de benne esse.
The plaintiffs tendered an affidavit by a solicitor for the plaintiffs sworn on 19 November 2014. I received that affidavit and its exhibits. They also tendered a letter from the Commissioner to the plaintiffs’ solicitors dated 19 September 2014 which I received as an exhibit.
It is an agreed fact that the investigator allocated by the Commissioner to investigate the conduct of A is investigating a potential issue of corruption in public administration, namely a potential offence of abuse of public office in contravention of section 251 of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act).
I now rule on the admissibility of the paragraphs of and exhibits to A’s affidavit that were received de benne esse. The sole ground of objection was relevance. I receive paragraphs 1 and 37 of the affidavit as formally constituting A’s affidavit.
I receive paragraphs 2 to 5 of the affidavit and exhibit 1 to the affidavit as relevant to background facts and circumstances known to both parties to be taken into account in determining whether, objectively assessed, the parties intended to enter into a contract at the time of A’s appointment.
I receive paragraphs 10 to 36 of the affidavit and exhibits, 5, 8, 9 and 11 to 18 confined to the subsidiary issue of utility raised by the defendant. I make it plain that I reject that contention independently of those paragraphs and much of the material I receive on that issue of utility is of very limited weight.
The legislation
The Act is concerned with public administration, which essentially has its ordinary meaning.[1] In broad terms, the subject matter of the Act is corruption, misconduct and maladministration in public administration, which are the central concepts in the Act.[2] The functions of the Commissioner are defined by reference to those central concepts.[3] The Commissioner’s functions involve investigation,[4] prevention[5] and education[6] of and about corruption, misconduct and maladministration in public administration.
[1] Section 4 ostensibly contains a “definition” of public administration, but it only provides that it includes an “administrative act” within the meaning of the Ombudsman Act 1972 (SA), which in turn means (subject to exclusions) an act relating to a matter of administration on the part of an agency to which that Act applies or a person engaged in the work of such an agency or an act done in the performance of functions conferred under a contract for services with the Crown or an agency to which that Act applies.
[2] Independent Commissioner Against Corruption Act 2012 (SA) s 5.
[3] Independent Commissioner Against Corruption Act 2012 (SA) s 7.
[4] Independent Commissioner Against Corruption Act 2012 (SA) ss 7(1)(a) and (b).
[5] Independent Commissioner Against Corruption Act 2012 (SA) s 7(1)(c).
[6] Independent Commissioner Against Corruption Act 2012 (SA) ss 7(1)(d) and (e).
Corruption in public administration involves criminal misconduct and is defined in terms of five categories of offences, namely:
1.offences under Part 7 Division 4 of the Consolidation Act, each of which is committed by or in relation to a public officer as defined by section 237 of the Consolidation Act;[7]
2.offences under the Public Sector (Honesty and Accountability) Act 1995 (SA), which are committed variously by corporate agency members and executives, advisory board members, senior officials, public sector employees or contractors as defined by section 2 of that Act;[8]
3.offences under the Public Corporations Act 1993 (SA), which are committed by public corporation directors as defined by section 3 of that Act;[9]
4.offences committed by a person who is, was or later became a public officer as defined by Schedule 1 of the Act in or in relation to such capacity as a public officer;[10] and
5.offences (such as aiding and abetting) ancillary to the above principal offences[11] and offences in the Commissioner’s suspicion incidental to the above principal offences.[12]
[7] Independent Commissioner Against Corruption Act 2012 (SA) s 5(1)(a).
[8] Independent Commissioner Against Corruption Act 2012 (SA) s 5(1)(b).
[9] Independent Commissioner Against Corruption Act 2012 (SA) s 5(1)(b).
[10] Independent Commissioner Against Corruption Act 2012 (SA) s 5(1)(c).
[11] Independent Commissioner Against Corruption Act 2012 (SA) s 5(1)(d).
[12] Independent Commissioner Against Corruption Act 2012 (SA) s 5(2).
Misconduct in public administration involves misconduct by a public officer while acting in that capacity.[13] Maladministration in public administration involves conduct of a public officer resulting in irregular and unauthorised use of public money or substantial mismanagement of public resources or in or in relation to the performance of official functions (it also encompasses certain practices of public authorities).[14]
[13] Independent Commissioner Against Corruption Act 2012 (SA) s 5(3).
[14] Independent Commissioner Against Corruption Act 2012 (SA) s 5(4).
It can be seen that the term public officer as defined in Schedule 1 is a central part of the third category of corruption outlined at [23] above, the entire category of misconduct outlined at [24] above and most of the category of maladministration outlined at [24] above. The term public officer as defined in section 237 of the Consolidation Act is a central part of the first category of corruption outlined at [23] above.
The Commissioner is given a direct function of investigating corruption in public administration or alternatively referring it to a law enforcement agency for investigation.[15] The Commissioner is given an indirect function of giving assistance, directions or guidance to inquiry agencies and public authorities in relation to identifying, investigating and dealing with misconduct and maladministration in public administration and may exercise their powers himself if the Commissioner considers appropriate.[16]
[15] Independent Commissioner Against Corruption Act 2012 (SA) s 7(1)(a).
[16] Independent Commissioner Against Corruption Act 2012 (SA) ss 7(1)(b) and (c).
The Commissioner is given various powers for the purposes of investigations into corruption in public administration.[17] One of those powers is conferred by section 31(1) to issue a warrant authorising an investigator to enter and search a place occupied or used or a vehicle owned or used by an inquiry agency, public authority or public officer. For this purpose, public officer is defined by Schedule 1.
[17] Independent Commissioner Against Corruption Act 2012 (SA) Part 4 Division 2 Subdivision 2 ss 26‑36.
Section 31(2) confers power on a Judge of this Court, on application by an investigator, to issue a warrant authorising an investigator to enter and search a private place or vehicle when there is a reasonable suspicion of use for or in connection with a prescribed offence or in the case of a vehicle of its containing evidence of a prescribed offence.
Existence of contract and identity of parties
The plaintiffs contend that A’s appointment as a member of the Board was effected by executive action and the relationship between A and the Minister or the Crown was governed by matters other than contract law. The plaintiffs contend that no contract came into existence because the necessary intention to create binding legal relations was absent.[18]
[18] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, (2002) 209 CLR 95 at [24] per Gaudron, McHugh, Hayne and Callinan JJ.
The defendant contends that the Appointment Letter and the executed Terms of Appointment manifested an intention by the parties to create legal relations.
It is common ground that the test for intention to create legal relations is objective.[19] The intention is to be ascertained by reference to the subject matter of the agreement, the status of the parties to it, their relationship to one another and other surrounding circumstances.[20]
[19] Ibid.
[20] Ibid.
A’s position as a member of the Board is analogous to that of a non‑executive director of a company incorporated under the Corporations Act 2001 (Cth). Ordinarily, a non-executive director and a company are not regarded as having the requisite intention to enter into a contract.[21] Ordinarily, a non‑executive director is not an employee of the company, even though the director may receive remuneration in the nature of directors’ fees.[22] The duties of a non‑executive director arise under the general law independently of contract, namely through fiduciary[23] and tortious[24] duties. Rights of a non-executive director also arise under the general law.[25]
[21] RP Austin, HAJ Ford and IM Ramsay, Company Directors: Principles of Law and Corporate Governance (LexisNexis Butterworths, 2005) 244.
[22] Sali v SPC Ltd (1991) 9 ACLC 1511 at 1519-1520 per Ormiston J.
[23] The Bell Group Limited (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239, (2008) 70 ACSR 1 at [4496] per Owen J.
[24] Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 at 237-238 per Ipp J; Daniels v AWA Ltd (1995) 37 NSWLR 438 at 505 per Clarke and Sheller JJA (Powell JA dissenting).
[25] State of South Australia v Barrett (1995) 64 SASR 73 at 76-77 per Olsson J and 82 per Mullighan J (with whom Cox J agreed); Young v Naval & Military & Civil Service Cooperative Society of South Africa [1905] 1 KB 687 at 693 per Farwell J.
Ordinarily, members of a board of a statutory or Crown authority are not employees but rather office holders.[26] The duties of public office holders arise independently of contract and include fiduciary obligations.[27] Ordinarily, a member of such a board and the statutory authority or Crown would not be regarded as having the requisite intention to enter into a contract.
[26] B Selway, The Constitution of South Australia (Federation Press, 1997) [12.2], [13.2.4].
[27] Herscu v The Queen (1991) 173 CLR 276 at 281-284 per Mason CJ, Dawson, Toohey and Gaudron JJ; State of South Australia v Clark (1996) 66 SASR 199 at 216-217 per Perry J.
If A had merely been appointed as a member of the Board on the basis of being entitled to an annual remuneration, no contract would have come into existence. However, it is necessary to have regard to the Appointment Letter and the attached documents to discern whether an intention to enter into legal relations was manifested.
The Terms of Appointment describe themselves as an “agreement”. They provide that “nothing in this agreement” shall be construed to create a partnership, joint venture, employment or agency relationship and that the board member’s agreement not to use confidential information for other purposes will survive the expiry “of this Agreement”.
The Terms of Appointment were required to be signed by A, under which A “agree[d] to be bound by the above-mentioned terms”. The Appointment Letter said that, as “outlined in the Terms of Appointment, members of the Board are appointed on a contractual basis to me”. Taken collectively, the references to “agreement” and “contractual basis” are reasonably strong indicia of an intention to create legal relations.
The substantive provisions of the Terms of Appointment tend to be expressed in contractual language and to contain contractual-type terms. The board member agrees to “exercise due care and diligence to a high professional level”; the board member and the Government “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 principal/agent between the Government and the board member”; the Government indemnifies the board member “against civil claims” etc; the board member “warrants to the Government” that “to the best of his/her knowledge no conflict of interest exists”; and the board member “agrees not to use the Confidential Information for purposes other than the performance of the Services” which obligation “will survive the expiry of this Agreement”.
The formality required of the execution by A of the Terms of Appointment, accepting appointment and agreeing to be bound by its terms is suggestive of an intention to create legal relations.
No one of these matters is conclusive in itself. Collectively, they result in the Appointment Letter and Terms of Appointment evincing a clear intention by the parties to enter into a contract.
The plaintiffs point to the relatively vague, aspirational and non-legal language used in the Charter and Performance Agreement and some similar language used in the Appointment Letter and Terms of Appointment. While these are matters to be taken into account in an overall assessment of the objective intent of the parties, they are insufficient to outweigh the features pointing in favour of an intention to contract. The Charter and Performance Agreement are essentially non-contractual but the Appointment Letter and Terms of Appointment set out the essential terms of what is objectively intended by the parties to be a contract.
There is some ambiguity within the Appointment Letter and as between the Appointment Letter and the Terms of Appointment as to whether the counterparty, if there is a contract, is the Minister or the State. In terms of power to contract, if on the proper construction of the Appointment Letter and the Terms of Appointment, the Minister was purporting to contract on behalf of and to bind the State, the Minister had authority to do so.[28] Conversely, if the Minister was purporting to contract as Minister, the party to the contract would be the person for the time being appointed to or acting in the office of the Minister.[29]
[28] South Australian Government Gazette, 24 February 1994, 525 (Roma Mitchell, Governor).
[29] Administrative Arrangements Act 1994 (SA) s 8(3)(a).
To the extent that there is ambiguity in the Appointment Letter and Terms of Appointment as to whether the counterparty, if there is a contract, is the Minister or the State, it might be some indication that the parties did not intend to enter into a contract. However, on balance, it is clear that the counterparty is the State and that the Minister is only acting as an instrument of the State in making the appointment and in entering into the agreement. Thus, the Terms of Appointment refer in four separate paragraphs to the “Government of South Australia” as agreeing to certain terms, as indemnifying the board member, as being the beneficiary of the board member’s warranty and as being the owner of confidential information to which the board member has access. While the Minister is given the role of conveying advice of early termination to the board member and the relevant Department is given the role of specifying the code of conduct from time to time, it is apparent that it is contemplated that, in so doing, they would be acting as instruments of the State. While the Appointment Letter refers to members of the Board being “appointed on a contractual basis to me”, it also refers on four occasions to “the Government” and again it is apparent that the Minister was referring to himself as an instrumentality of the State.
A contract came into existence between A and the State upon A’s execution of the Terms of Appointment and return thereof to the Government.
Public officer
Schedule 1 is highly prescriptive in listing 33 categories of persons who comprise “public officers” within the meaning of the Act. The Act does not contain a generic definition of public officer and to be a public officer a person must fall into one of the 33 categories.
The question whether A is a public officer within the meaning of the Act turns on whether A falls into the penultimate category (the contractor category) in the table partially extracted at [14] above, namely, a person performing contract work for a public authority or the Crown. There is no suggestion by the Commissioner that A falls into any of the other 32 categories.
For the Crown
As I have concluded that the Crown in right of the State was a party to the contract, it follows that whatever work was to be performed under the contract by A was to be performed “for the Crown” within the meaning of Schedule 1.
As a contractor
Section 4 of the 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
Inserting the definition into the contractor category in Schedule 1 results in the category comprising:
a person performing 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 for a public authority or the Crown
The competing contentions
The plaintiffs contend that the word “contractor” in the definition of “contract work” in the Act connotes a person engaged in a business of contracting to perform work for clients of the business. The business itself is exogenous to a particular engagement by a client. The word “contractor” is used in its ordinary everyday meaning.
The plaintiffs contend that a “contractor” deals at arm’s length with a client, performing work for the client (here a public authority or the Crown) as part of his or her own business in trade or commerce with the client. A contractor is to be contrasted with an officer of the client who performs work internally within the client’s own organisation and as part of the client’s own business or affairs.
This distinction identified by the plaintiffs was articulated by the High Court in Concrete Constructions (N.S.W.) Pty Ltd v Nelson[30] in the context of distinguishing between misleading conduct in trade or commerce and internal misleading conduct. In that case, Mason CJ, Deane, Dawson and Gaudron JJ said:
… the reference to conduct “in trade or commerce” in s. 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. …
... What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. ...
The alleged misleading or deceptive conduct of the Company’s foreman in the present case consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building. It follows from what has been said above that that conduct was not, for relevant purposes, conduct “in trade or commerce” and would not, if established, constitute a contravention of s. 52 of the Act. ...[31]
[30] (1990) 169 CLR 594.
[31] Ibid at 603, 604.
This distinction was explained in the different context of distinguishing between an employee and an independent contractor by Dixon J in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd:[32]
The work, although done at [the principal’s] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.[33]
and by Windeyer J in Marshall v Whittaker’s Building Supply Co:[34]
…the distinction between [an employee] and an independent contractor … is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own.[35]
[32] (1931) 46 CLR 41.
[33] Ibid at 48.
[34] (1963) 109 CLR 210 at 217.
[35] Ibid at 217.
The plaintiffs contend that the contractor category requires a characterisation of the person and his or her character inherently otherwise than by the engagement or appointment by the government. The plaintiffs accept that a contractor might have only one client, such as a cleaning contractor providing cleaning services only to the government, but it is still necessary to characterise that person’s business exogenous to the engagement or appointment by the government.
The defendant contends that the word “contractor” in the definition of “contract work” in the Act connotes that the person performs the work as a contractor in contradistinction to performing the work as an employee. Such a contractor may be external to the public authority or the Crown (such as a cleaning contractor) but equally may be part of the internal organisation of the public authority or the Crown.
The plaintiffs contend that section 31 of the Act has the potential to interfere with fundamental common law rights including rights of private property and immunity from search and seizure,[36] and the definition of public officer should therefore be construed narrowly in accordance with the presumption that Parliament does not intend to depart from such fundamental rights.[37] Conversely, the defendant contends that the Act gives effect to the public interest in the maintenance of the integrity of public administration and public confidence therein and the definition of public officer should be construed broadly to ensure that the Commissioner has appropriate powers to achieve the objects of the Act. Ultimately, I have construed the Act by reference to text, context and evident purpose without taking a narrow or broad approach as advocated by the parties respectively.
[36] George v Rockett (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; R v Hill (2012) 6 ACTLR 167 at [66] per Refshauge J.
[37] Australian Crime Commission v Stoddart (2011) 244 CLR 554 at [182] per Crennan, Kiefel and Bell JJ.
The parties also make submissions concerning the objects and evident purpose of the Act and in particular the definition of public officer and the reference to contractors. I return to these aspects later.
The different constructions advanced by the parties are exemplified by the first and second definitions of “contractor” contained in the Oxford English Dictionary:[38]
1.One who enters into a contract or agreement; a contracting party.
2.One who contracts or undertakes to supply certain articles, or to perform any work or service (esp. for government or other public body) at a certain price or rate; in the building and related trades, one who is prepared to undertake work by contract.
The plaintiffs essentially advance the second definition. The defendant essentially advances the first definition.
[38] JA Simpson and ESC Weiner, The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989).
The plaintiffs contend that the construction of “contractor” advanced by them is supported by textual and contextual considerations. First, on the defendant’s construction, the words “as a contractor” are otiose: there must have been good reason for the legislature to include them and place emphasis on the word “contractor” as a noun. If all that had been intended was to refer to a person who was a party to a contract, it would have been more natural to define “contract work” as “work performed pursuant to a contract” or simply omit the definition altogether. Secondly, the incorporation in the definition of “contract work” of reference to work performed by an employee of the contractor connotes that the work is capable of being performed vicariously, which is not apt to describe the role of a member of a board. Thirdly, the definition would operate capriciously if it captured board members who happened to be engaged pursuant to contracts but not those engaged without a contract.
The defendant contends that the construction of “contractor” advanced by him is supported by textual and contextual considerations. First, at common law the term contractor typically identifies a person engaged pursuant to a contract for services in contradistinction to an employee who is engaged pursuant to a contract of service. The defendant points to this use of the term in cases involving vicarious liability for acts of an employee but not of an independent contractor.[39] Secondly, Schedule 1 contains various categories intended to cover the field of employees of public authorities and the Crown and the contractor category is intended to cover the field of contractors to public authorities and the Crown who are not employees.
Substantive offences by public officers
[39] Cassidy v Ministry of Health [1951] 2 KB 343 at 363-365 per Denning LJ, [1951] 1 All ER 574; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24 per Mason J and 36 per Wilson and Dawson JJ; Hollis v Vabu Pty Ltd [2001] HCA 44, (2001) 207 CLR 21 at 36-47 per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ (Callinan J dissenting).
At common law, there was a generic offence of abuse of or misconduct in public office.[40] There were specific forms of this offence, or perhaps specific offences, that included bribery of a public officer, corruption of a public officer, buying or selling a public office, oppression by a public officer, breach of trust or fraud by a public officer, neglect of duty by a public officer and refusal to serve in public office.[41]
[40] Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 64-65 per Doyle CJ, 77-79 per Olsson J and 84-87 per Duggan J.
[41] Ibid.
The common law offences had in common that they were committed by or in relation to a public officer. As to the meaning of “office”, in Harris v S[42] Wells J addressed the ordinary natural meaning of “officer” and “office” in terms that are applicable to the common law offences. Wells J said:
The word “officer” is obviously derived from the word “office”. The latter denotes a specific position of authority, power and responsibility (on which a formal name or title has usually been conferred) to which certain functions are annexed, in and for the exercise and discharge of which the officer is accountable, to a greater or less degree, to a constituted and designated authority (or sometimes to more than one such authority). The degree of accountability (amounting in some cases to subservience) may vary enormously; ...[43]
[42] (1986) 2 ACLR 51.
[43] Ibid at 60.
As to the meaning of “public” officer, in R v Whitaker[44] the English Court of Criminal Appeal addressed the meaning of “public officer” for the purposes of the common law offences of bribery and conspiracy to bribe a public officer. Lawrence, Lush and Atkin JJ said:
A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of the fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer.[45]
[44] [1914] 3 KB 1283.
[45] Ibid at 1296.
The Statutes Amendment and Repeal (Public Offences) Act 1992 (SA) abolished the common law offences.[46] In their place, Part VII Division IV was inserted into the Consolidation Act.[47] The new Division created several statutory offences by or in relation to a “public officer”. The offences by public officers comprised bribery,[48] abuse of public office,[49] demanding a benefit on the basis of public office[50] and giving or accepting a benefit for appointment to public office.[51] The offences in relation to public officers comprised bribery,[52] making a threat or reprisal against a public officer,[53] demanding a benefit on the basis of public office[54] and giving or accepting a benefit for appointment to public office.[55]
[46] Statutes Amendment and Repeal (Public Offences) Act 1992 (SA) Schedule; Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 66-72 per Doyle CJ and 87-88 per Duggan J (Olsson J dissenting on whether the generic offence, or any offences other than those listed in the Schedule, were abolished).
[47] Came into effect on 6 July 1992.
[48] Criminal Law Consolidation Act 1935 (SA) s 249(2).
[49] Criminal Law Consolidation Act 1935 (SA) s 251.
[50] Criminal Law Consolidation Act 1935 (SA) s 252.
[51] Criminal Law Consolidation Act 1935 (SA) s 253.
[52] Criminal Law Consolidation Act 1935 (SA) s 249(1).
[53] Criminal Law Consolidation Act 1935 (SA) s 250.
[54] Criminal Law Consolidation Act 1935 (SA) s 252.
[55] Criminal Law Consolidation Act 1935 (SA) s 253.
New section 237 of the Consolidation Act contained a definition of public officer as follows:
“public officer” includes-
(a)a person appointed to public office by the Governor;
(b) a judicial officer;
(c) a member of Parliament;
(d) a person employed in the Public Service of the State;
(e) a member of the police force;
(f) any other officer or employee of the Crown;
(g) a member of a State instrumentality or of the governing body of a State instrumentality or an officer or employee of a State instrumentality; or
(h) a member of a local government body or an officer or employee of a local government body,
and “public office” has a corresponding meaning
The Statutes Amendment (Honesty and Accountability in Government) Act 2003 (SA)[56] inserted into the definition of “public officer” in section 237 a final category (i) as follows:
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 or otherwise directly or indirectly on behalf of a contractor,
[56] Section 4.
It can be seen that the contractor category in the Consolidation Act is very similar to the contractor category in the Act:
a person performing 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 for a public authority or the Crown
Leaving aside syntactical differences, the only substantive difference[57] between the contractor categories in the two Acts is that the Consolidation Act refers to a person who personally performs work.
[57] The Act refers to a "public authority" whereas the Consolidation Act refers to a "State instrumentality or a local government body" but a State instrumentality or local government body withing the meaning of the Consolidation Act would be a public authority within the meaning of the Act and in any event this is an immaterial difference for present purposes.
The Act was enacted after the enactment of Part 7 Division 4 and section 237 of the Consolidation Act. As noted above, the Act defines the functions of the Commissioner to include identifying and investigating corruption in public administration which in turn is defined to include an offence against Part 7 Division 4 of the Consolidation Act committed by or in relation to public officers as defined by section 237 of the Consolidation Act. It is apparent that the definition in the Act of “public officer” was modelled on the definition in the Consolidation Act.
The similarity in the respective definitions and the interrelationship between the Act and Part 7 Division 4 of the Consolidation Act suggest that the contractor category of public officer in the Act should be construed consistently with the contractor category of public officer in the Consolidation Act.
On the other hand, there are differences between the definitions of public officer contained in the two Acts. The definition in the Consolidation Act is expressed to be inclusive, including nine species but leaving the genus undefined; whereas the definition in the Act is expressed to be exhaustive of 33 species. There is a strong broad correlation between the species in the two definitions but there are some differences. The principal differences appear to be, first, the definition in the Consolidation Act includes an “officer of the Crown” while the definition in the Act includes some but not all persons who would be officers of the Crown and, secondly, the definition in the Act includes some species (such as the Governor) not included in the definition in the Consolidation Act. A simplified comparative listing of the species in the two definitions is shown in the following table:
Consolidation Act
The Act
person appointed to public office by the Governor
person appointed to an office by the Governor
judicial officer
judicial officer[58]
member of Parliament
member of Parliament
member of the police force
police officer
protective security officer appointed under the Protective Security Act 2007
person employed in the Public Service of the State
any other officer or employee of the Crown
officer of Parliament or person under the separate control of the President/Speaker of Parliament
member of the joint parliamentary service
member of the staff of the State Courts Administration Council
Public Service employee
officer or employee appointed by the employing authority under the Education Act 1972
person appointed by the Premier or the Minister under the Public Sector Act 2009
other public sector employee
member, governing body, officer or employee of a State instrumentality
person who constitutes a statutory authority, or as a statutory office holder
member of governing body, officer or employee of statutory authority or statutory office holder
member, officer or employee of a local government body
Member, officer or employee of a local government body
[contractor category]
[contractor category]
Governor
Local Government Association of South Australia, a member of its governing body, an officer or employee
person to whom a function or power of a public authority or public officer is delegated in accordance with an Act
person who is, in accordance with an Act, assisting a public officer in the enforcement of the Act
person declared by regulation to be a public officer
[58] There are some nuanced but relatively minor differences in the respective definitions of judicial officer.
The function of the definitions in the two Acts differs. The function of the definition in the Consolidation Act is to demarcate those persons who can commit the offences created by Part 7 Division 4 or in relation to whom those offences can be committed. The function of the definition in the Act is to identify those persons who can commit one of the categories of offences comprising corruption in public administration, identify those persons who can commit misconduct or maladministration in public administration and for various other purposes including to demarcate the power of entry and search conferred by a warrant issued by the Commissioner under section 31(1) of the Act.
Given the differences in the definitions and their functions, caution must be exercised before using the definition of the contractor category in the Consolidation Act in construing the definition of the contractor category in the Act. Nevertheless, given the commonality between the definitions of the contractor category and more generally between the definitions of public officer in the two Acts and the interrelationship between them, the proper construction of the contractor category in the Consolidation Act may assist in determining the proper construction of the contractor category in the Act.
Proper construction of “contractor”
As identified by the parties, the issue raised in this case is the proper construction of the word “contractor” in the definition of contract work in the Act or, more accurately, the proper construction of the composite category created by Schedule 1, namely:
a person performing 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 for a public authority or the Crown
Consideration of the text and context alone indicates that the reference to contractor is ambiguous in that each party identifies legitimate considerations pointing towards its own construction as summarised at [58] and [59] above.
There are, however, two further considerations that tend to point away from the construction advanced by the plaintiffs. First, on their construction, there is not and cannot be an identity between the contractors referred to in the Act and that meaning of the word “contractor” in ordinary usage when it is not used simply to mean a contracting party. The alternate ordinary meaning of contractor is exemplified by the definition extracted at [57] above from the Shorter Oxford English Dictionary, namely:
One who contracts or undertakes to supply certain articles, or to perform any work or service (esp. for government or other public body) at a certain price or rate; in the building and related trades, one who is prepared to undertake work by contract.
In this common usage, a contractor does not include a consultant who provides professional services such as engineering, legal or medical advice. On the other hand, in this common usage a contractor includes a person who supplies goods but the definition in the Act is confined to a person performing work and does not extend to a person supplying goods other than incidental to the performance of work.
Secondly, on the plaintiffs’ construction, it is necessary to draw a line between a person who provides advice or other expert services to the Crown or a public authority in the course of the person’s business as a consultant – who is a contractor - and a person who provides the same advice or other expert services without conducting any exogenous business - who is not a contractor. There will be a series of gradations between these poles and the plaintiffs’ construction requires a court to draw a line between shades of grey. For example, on the one hand, the plaintiffs would accept that an engineer might have the government as his or her sole client and yet would be a contractor if he or she provides engineering services as part of an engineering business that has a single client. On the other hand, the plaintiffs would contend that an engineer appointed to an office entitled “Works Engineer” who is not an employee and provides the same engineering services to the government is not a contractor. Difficult questions would arise in relation to an engineer who has, say, 99 private clients and one government client and provides his or her engineering services under the title of the office of “Works Engineer” in the government.
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.
Traditionally, as noted above, the common law regarded a public officer as a person holding a specific position of authority, power and responsibility (on which a formal name or title has usually been conferred) to which certain functions are annexed, in and for the exercise and discharge of which the officer is accountable, to a greater or lesser degree, to a constituted and designated authority. A member of the Board would have been regarded by the common law as a public officer. When the Consolidation Act was amended to abolish the common law offences and substitute the statutory offences, the evident purpose was to preserve the criminal liability of persons regarded at common law as public officers for conduct proscribed by Parliament. The definition of public officer in section 237 should be construed in light of this purpose and in turn the definition of public officer in the Act should be construed in light of this purpose.
There is weight in the arguments advanced by the plaintiffs that, on the defendant’s construction, the words “as a contractor” are otiose and that, on any view, the definition of public officer in the Act does not extend to a member of a non-statutory government board appointed other than under or subject to a contract. However, these arguments are outweighed by consideration of the evident purpose of the Act and the other considerations identified above that point towards the construction advanced by the defendant.
On the proper construction of the Act, a contractor extends to a person who performs work as a member of a government board pursuant to a contract with the Crown. A is a contractor and thereby also a public officer within the meaning of the Act.
Discretionary relief: utility
If I had concluded that A was not a public officer within the meaning of the Act, I would have granted declaratory relief in favour of the plaintiffs. I reject the defendant’s contention that declaratory relief should be refused in the exercise of the Court’s discretion due to a lack of utility.
First, in addition to a declaration that A was not a public officer within the meaning of the Act and section 31(1) did not empower the Commissioner to issue a warrant to enter and search a place occupied or used by A, the plaintiffs seek orders for the delivery up of things seized under the warrant and an injunction restraining the defendant from further inspecting or using the documents seized. The defendant contends that this further specific relief might be refused in the exercise of this Court’s discretion.[59] The defendant’s contention reverses the logical order. If the plaintiffs had succeeded on the determination of the preliminary issue, I would have granted a declaration of right and then heard and determined the question whether the further specific relief sought by the plaintiffs should be granted.
[59] Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 405 per Hill J.
Secondly, even if no specific relief were to be granted, if things had been wrongfully seized pursuant to the warrant, the plaintiffs would have been entitled to a declaration of right.
Thirdly, the defendant contends that a declaration of the terms sought by the plaintiffs can have no effect on the investigation generally because the investigation is not necessarily dependent upon A being a public officer within the meaning of the Act. I reject that contention. If A is not a public officer within the meaning of the Act, while it would not necessarily prevent continuation of an investigation into A’s conduct, it would necessarily affect the scope and manner of the investigation.
Fourthly, the defendant agreed to the hearing of the preliminary issue on the basis that the defendant accepted that its determination would have utility.
The grant of a declaration of right, reflecting the determination of that issue, would have had utility had the plaintiffs succeeded.
Public officer
I determine the preliminary issue as follows:
1.A entered into a contract with the Crown governing A’s appointment as a member of the Board. The contract was renewed or extended thereafter.
2.The counterparty to the contract was the Crown and not the Minister.
3.A was a contractor and thereby a public officer within the meaning of those terms in the Act.
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