Balog v Independent Commission Against Corruption; Stait v Independent Commission Against Corruption

[1990] HCATrans 58

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S28 of 1990

B e t w e e n -

TIBOR BALOG

Appellant

and

INDEPENDENT COMMISSION AGAINST

CORRUPTION

Respondent

Office of the Registry

Sydney No S29 of 1990

B e t w e e n -

DONALD GEORGE STAIT

Appellant

and

INDEPENDENT COMMISSION AGAINST

CORRUPTION

Balog(2)

Respondent

MASON CJ
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 APRIL 1990, AT 10.16 AM

Copyright in the High Court of Australia

GlTl/1/PLC 1 5/4/90

MR T.E.F. HUGHES, QC:  May it please the Court, in the

first appeal I appear for the appellant, Tibor Balov,,

who was the plaintiff below, with my learned friend,

MR D CAMPBELL. (instructed by Verekers)

MR P.D. McCLELLAN, ~C: If the Court pleases, I appear with

my learne friend, MR G.P.F. RUNDLE, in the

second appeal for the appellant, :Cona'id ~orge Stait .

(instructed by Gadens Ridgeway)

MR J.M.N. ROLFEi QC: If the Court pleases, I appear in each

appea with my learned friend, MR A.R. ASHBURNER,

for the respondent. (instructed by D.I.Catt,

Solicitor to the Independent Connnission Against

Corruption)

MASON CJ: Yes, Mr Rolfe. Mr Hughes.

MR HUGHES:  May it please Your Honours, the parties have filed

submissions that are more than an outline.

MASON CJ: Yes, we have had the benefit of reading it.

MR HUGHES:  What I thought therefore might be the most useful

course to pursue would be to refer, as briefly as

possible, to what we submit to be the critical

provisions of the Act. Then endeavour to put in

a nutshell, so far as it can be done, the conceptual

differences between the respective approaches of

the appellant for whom I appear and the respondent

on the questions of construction and thirdly to

make a rather more extensive examination, in

particular of the reasons for judgment of

Mr Justice Mahoney. in the Court of Appeal, with a

view to offering some respectful criticisms of

His Honour's approach.

First of all as to the Act. The key provisions,

once one has looked at the sections which deal with

corrupt conduct~ they are sections 8 and 9, are

sections 13, 14, 20, 73, 74 and to a lesser extent

perhaps section 76.

(Continued on page 3)

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MR HUGHES (continuing): Corrupt conduct is the subject of

an extensive definition in section 8 - and I

shall not weary the Court by reading it. It,

relevantly to the present appeal, is the sort

of conduct that is embraced in

subsection (l)(a) and then subsection (2), with

the particular itemization of instances of corrupt

conduct, such as bribery.

Section 9 is important because it says that:

Despite section 8, conduct does not

amount to corrupt conduct unless it could

constitute or involve -

relevantly -

(a) a criminal offence -

Relevantly, to the present appeal, corrupt

conduct has a criminal flavour or content.

Section 13 prescribes what are the principal

functions of the respondent Commission:

(a) to investigate any circumstances implying,

or any allegations, that corrupt conduct

may have occurred, may be occurring or may

be about to occur -

and I would pause in passing to ask Your Honours

to notice the use of the word "may" in relation

to the occurrence, "may have occurred" -

(b) to investigate any conduct which, in

the opinion of the Commission is or was

connected with or conducive to corrupt conduct;

(c) to communicate to appropriate authorities

the results of its investigations -

and (d) is a function of examining -

the laws governing, and the practices and

procedures of public authorities and public

officials, in order to facilitate the discovery

of corrupt conduct -

{Continued on page 4)

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MR HUGHES (continuing):  I shall not read all the other

paragraphs of subsection (1). They are paragraphs

which confer upon the Conrrnission what might be

described as advisory and educational functions in
the main, designed to educate the public and
public authorities about the evils of corrupt
conduct and methods of maintaining the integrity of

public administration.

Subsection (2) is, in our respectful submission,

of critical importance in this appeal. It is

probably the most important provision in that regard:

The principal functions -

it says -

of the Conrrnission also include the following:

(a) to investigate any matter referred to the

Conrrnission by both Houses of Parliament, with a view to determining -

(i) whether any corrupt conduct may have

occurred, may be occurring or may be about

to occur.

And I would ask Your Honours, if I may, to notice

in passing that the same phraseology is used. It ties

in the phrasing of section 13(l)(a) in the use of

the word "may" three times.

I need not read (2). Then section 14 prescribes

"other functions of the Conrrnission" as being :

to assemble evidence that may be admissible in

the prosecution of a person for a criminal offence
against a law of the State in connection with

corrupt conduct and to furnish any such evidence

to the Director of Public Prosecutions;

(b) to furnish to the Attorney General other

evidence obtained in the course of its investigations

(being evidence that may be admissible in the

prosecution of a person for a criminal offence

against a law of another State. -

and so on -

and to reconrrnend

I should read on -

what action the Connnission considers should be

taken in relation to that evidence.

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MR HUGHES (continuing): Then subsection (2) says:

If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public

authority, the Commission may, if it considers

it desirable to do so -

(a) furnish that information or a report on

that information to the Minister for the

authority -

and so on. Turning next to section 20, one sees

it prescribes in subsection (1), Your Honours:

The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made

to it.

And then subsection (2) I need not read. Subsection (3)

says:

The Commission may, in considering whether or not to conduct, continue or discontinue an investigation (other than in relation to a matter referred by both Houses of Parliament), have regard to such matters as it thinks fit, including -

certain itemized matters. The Commission, I should

mention in passing, has very extensive compulsive

powers, both in relation to the securing of the

attendance of witnesses and the production of documents

and it has the usual powers which ones finds in

legislation of this kind, as for instance section 541
of the COMPANIES CODES of the various States, powers
to compel witnesses summoned before it to answer
questions despite the possibly incriminating content of

the answer. - The privilege against incrimination

is abolished for the purposes of the functions of the

Commission. That particular provision is in section 26.

Now, section 73 deals, Your Honours, with references to the Commission by Parliament.

(1) Both Houses of Parliament may, by resolution

of each House, refer to the Commission any matter

of the kind mentioned in section 13(2).

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MR HUGHES (continuing): Subsection (2) says:

It is the duty of the Cotillllission to fully

investigate a matter referred to in

section 13(2)(a).

And in one of the paragraphs of our written

submissions, as Your Honours will have observed,

we draw attention to the fact that on a reference

by the Parliament, the duty is fully to investigate

specifically imposed whereas there is no such

prescription in relation to other types of

investigation activated by other means.

Section 74(1):

The Cotillllission may prepare reports in relation to any matter that has been or is the subject of an investigation

Subsection 2 -

The Cotillllission shall prepare reports in

relation to a matter referred to the

Cotillllission by both Houses of Parliament, as

directed by those Houses.

(3) The Cotillllission shall prepare reports in

relation to matters as to which the Cotillllission

has conducted a public hearing, unless the

Houses of Parliament have given different

directions under subsection (2) -

And then the subsection (4) says:

The Cotillllission shall furnish reports prepared under this section to the Presiding Officer

of each House .....

Cotillllission's findings as to whether there is	(5) A report may include a statement of the
or was any evidence or sufficient evidence
warranting consideration of-
(a) the prosectuion of a specified person for
a specified offence.

Then there are other paragraphs (b) and (c) which have

no application to the particular case before

Your Honours.

MASON CJ: Section 74(1) relates to reports generally, does it?

MR HUGHES:  Yes, Your Honour.

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MASON CJ:  So that, despite the heading of Part 8, in fact,

the operative provisions contained in the Part go

beyond this.

MR HUGHES:  Beyond the heading, that is so. And, may I

invite Your Honours to bear in mind one particular

aspect of section 74? If the Corrnnission holds a
public hearing or investigates a matter on

parliamentary reference, it must make a report

otherwise it has a discretion whether or not to make

a report but the effect of section 74, amongst

other effects, is that if the Corrnnission holds a

private hearing, as it may, it may make a report

and in such a case the report goes to Parliament and the Corrnnission has the option given to it by subsection (5).

The other matter that might be, in our

respectful submission, worth bearing in mind in

relation to the content of reports in considering

what the scope of the content of reports may be

is that the Act in section 109 as amended by

Act 29 of 1989 throws an umbrella of absolute privilege on any matter published by the Cormnission.

I think Your Honours have been provided with a

copy of Act 29 of 1989. It added - if I may

invite Your Honours attention to it - section 17K

to the DEFAMATION ACT of 1974 of the State of

New South Wales and section 17K(l), if Your Honours

have it, says:

(Continued on page 8)

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MR HUGHES (continuing):

There is a defence of absolute privilege

for a publication to or by the Independent

Corm:nission Against Corruption or the

Corm:nissioner for the Commission as Commissioner,

or to any officer of the Commission (within

the meaning of the Independent Commission

Against Corruption Act 1988) as such an

officer.

I need not read on. So anything stated in a report

is absolutely privileged for the purposes of the

laws of defamation. Of course, it needs to be

added that if a report is,pursuant to section 74, forwarded to the presiding officers of each House of

Parliament, that report has to be tabled, as

required by section 78(1) in each house~ ~By that

means it becomes a public document and the process

of tabling it,of course,is covered by the absolute

privilege conferred by section 17 of the

DEFAMATION ACT of New South Wales.

DEANE J:	If the report is not in the matter referred by the Parliament, what says to whom the report is to be
made?

MR HUGHES: That seems to be covered, Your Honour, by

section 74(4). Any report, whether as a result of

an investigation activated by Parliamentary reference

or not, must be made to Parliament, and then

pursuant to section 78, tabled.

DEANE J:	Thank you.
MASON CJ:	But of course,in addition under 13(l)(c) the

Commission would be authorized to communicate the

results of its investigation to whatever the

appropriate authorities were.

(Continued on page 9)

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MR HUGHES:  Yes, indeed, Your Honour. The approporiate

authority may be that the police, it may be the

National Crime Authority - - -

MASON CJ:	The council, anyone.
MR HUGHES:	Yes. It is part of our submission, and I will

not expatiate upon it, that appropriate authorities

in section 13(1)(c) - - -

MASON CJ:	Does not include - - -
MR HUGHES:	Does not mean Parliament because there is a

special provision relating to reporting to Parliament

TOOHEY J: There is presumably a difference, Mr Hughes,

between communicating the results of its investigations

and furnishing a report?

MR HUGHES:  Indeed, yes.

TOOHEY J: Is that difference made clear by the statute?

MR HUGHES:  No, Your Honour.

TOOHEY J: Well, the existence of the distinction is but

is the content of the distinction made clear?

MR HUGHES:  No, Your Honour, it is not.

MASON CJ: Just to break in, what is your submission in

relation to the distinction between a report

and its contents and results of the investigation

under section 13?

MR HUGHES:  The distinction is this - and perhaps there

is a degree of overlap or similarity between

the contents of each kind of operation reporting

results and making a report to Parliament - in

neither case, we would say, that is neither pursuant

to the power conferred by section 13(1)(c) nor

pursuant to the power conferred by section 74,

may the Commission, in the case of an investigation

of non-parliamentary origin, make a finding or
determination of a person's guilt or possible
guilt of a criminal offence in the nature of

corrupt conduct.

Thatsubmission depends basically upon the

proposition that the only express power conferred

upon the Commission to make a determination on

the topic of corrupt conduct is twofold: to

be found in - - -

MASON CJ: Section 13(2).

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MR HUGHES: Section 13(2) - - -

MASON CJ: (a).

MR HUGHES: (a).

MASON CJ: (i) .

MR HUGHES: (i), relevantly, and in section 74(5).

(Continued on page 11)

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MR HUGHES (continuing):  Now we say, to pursue my attempt to

answer the question put to me by Your Honour the

Chief Justice, that the concept of reporting the results of an investigation involves reporting to the appropriate authority the evidentiary material,

whether it be documentary or oral, that has been

brought to light by the investigation, by the process
of adducing oral evidence from witnesses, or by the

process or producing documents. It may well include -

and we would not dispute this - reporting the

availability of evidence resulting from the

investigation, to be considered by the appropriate

authority, if the appropriate authority is a

prosecuting authority, as warranting a possible

prosecution, the sort of function that is marked out

in relation to reports of Parliament in section 74(5).

If I can come to what seemed· to be. on the

written submissions the fundamental differences

between the approach taken on this side and by my

learned friends on the question of construction,

it is this: we say that the absence from section 13(1)

of an express power to determine guilt, or even possible

guilt of corrupt conduct, is of the utmost significance.

We rely on the circumstance that the Act confers upon

the Commission no express power to make or report

a finding that a person has been guilty of a criminal

offence in the nature of corrupt conduct. Even in

the case of a reference by Parliament, such a power is not conferred upon the Commission because in the case

of a reference by Parliament the power is carefully

confined by reference to two limitations: one, that

the Commission may determine only that corrupt

conduct may have occurred, and then there are the other

tenses, may be about to occur, et cetera, and that

power, that express power, is limited to a parliamentary

reference. That is the second limiting condition.

Now, we say that such a power, that is a power to

determine guilt or even possible guilt, that is the

"may have" type of determination, is not to be implied

because it is not necessary to imply that, in the case	of a non-parliamentary reference or any reference
for the effective working of the Act, and we say
it would be a rather curious thing for the legislature to leave to implication the existence of a power in
the case of any reference, whether parliamentary or
arising from another method of activation, a power to
determine guilt. As we say, it is hardly to be
supposed that the legislature would have left the
existence of such a power to mere implication.

DAWSON J:  How does that work out in practice, Mr Hughes? If you

determine that corrupt conduct may have occurred by

reason of the fact that you form the view that it has

occurred, how do you report it?

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MR HUGHES:  You report in terms of the section, Your Honour.

It is as simple as that.	You report that it may have
occurred.

DAWSON J:Well, to put it more precisely, if you form the

opinion that corrupt conduct may have occurred because

X did such and such and Y did such and such, which is

tantamount to saying that they were guilty of corrupt

conduct, you would have to report it in that way,

would you not?

MR HUGHES:  In the case of a parliamentary reference, but not

in any other case.

DAWSON J: Well, 13(l)(a) gives a power to investigate whether

corrupt conduct may have occurred, and section 74(1)

gives a poweJ:' to report in relation to any matter

that has been the subject of an investigation.

MR HUGHES:  Yes.

DAWSON J: Would that not allow them to report on whether

corrupt conduct may have occurred if that was the

subject of an investigation under 13 (1) (a)?

(Continued on page 13)

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MR HUGHES:	No, Your Honour, because to form that view ignores the limitations imposed by section 13(2).
MASON CJ:	But they can report under section 74(5), that is:

there is or was any evidence or sufficient

evidence warranting consideration of -

(a) the prosecution of a specified person for

a specified offence.

MR HUGHES:  Indeed, Your Honour.

MASON CJ: Well, is there much difference between that and

reporting that corrupt conduct may have occurred?

MR HUGHES:  There may be a great deal of difference, Your Honour.

We rely, if I may say this, on the particular

wording of section 74(5) as indicating very

plainly that it is no part of the function of the

Commission to say in a report, certainly

in a report which has not parliamentary

origin or activation, "We think there is a

prima facie case of corrupt conduct", because the

wording of the subsection, relevantly, stipulates

that all that the Commission may be is to say

whether there is evidence or sufficient evidence
warranting consideration by someone else of - - -

DAWSON J:  I do not see how it worked out practically if,

in a simply case, you come to the conclusion that

X br_ibed Y, a public official, by handing him money

in order to induce him to arrive at a particular

decision. How would you report without saying that,

which is tantamount to saying that corrupt conduct

occurred?

MR HUGHES:	You would report, Your Honour, by saying, if one were the Commission - and I am assuming that this
is a case in which the investigation that leads
to the report was not activated by parliamentary
reference - there is evidence that A gave money
to B.  The Commission finds that the circumstances
on the evidence surrounding the handing over of that money are such as to warrant, if I can take the very terms of the section, is such as to warrant consideration of a prosecution of A for the specified offence of bribery.
That is a very different thing from saying, if I can pursue the topic that is in Your Honour's mind,
there is a prima facie case against A.
DAWSON J:	Now take the case of a parliamentary reference;

how would you put it?

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MR HUGHES:	The position in the case of a parliamentary reference is this - if you take those simple facts -
the CoilIDlission would be entitled to say,
"The CoilIDlission finds that A handed money over to B. The CoilIDlission further finds that on the evidence the circumstances in which that money was handed over
may have constituted, or are such that corrupt conduct may have occurred in relation to that
handing over of money.  The CoilIDlission further finds
that there is evidence warranting consideration" -
let it be known by somebody else - "of a prosecution
of A for bribery".

DAWSON J: I see, thank you.

MR HUGHES: That is the distinction we seek to draw.

MASON CJ:  Mr Hughes, is this the position that the only clue

that you get to the findings that the CoilIDlission

can make in relation to a non-parliamentary investigation

is in section 74 (5), because that refers to

findings that may be included in the report?

MR HUGHES:	That is so, Your Honour.
MASON CJ:	I suppose the other clue is results of the

investigation?

MR HUGHES:	Yes.
MASON CJ:	Now, to what does that refer?

(Continued on page 15)

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MR HUGHES: That refers to the evidentiary material that is

produced as a result of the investigation -

transcript,documents, perhaps tapes.

MASON CJ: What the investigation has yielded?

MR HUGHES: Yielded, yes, the raw material.

TOOHEY J: But section 74(5) is by way of addition, as

it were, to section 13,-is it not?. I say that because

of the use of the word "include" in the report - - -

MR HUGHES: "May include''., yes.

TOOHEY J: And 'my".

MR HUGHES:  Yes.

TOOHEY J: One could imagine circumstances in which the

Commission's inquiries may have produced evidence -

I will avoid the word evidence - material

suggesting corruption, but section 74 (5) is

inappropriate because, perhaps, one of the persons

concerned is dead, so there can be no question

of a prosecution against that person.·

MR HUGHES:	Yes.
TOOHEY J:	Or perhaps there is a limitation period that has
expired in relation to some particular charge
against, that might otherwise lie against a
public official.  So that subsection (5) really
is inappropriate, perhaps, in that sort of situation.
MR HUGHES:	Could I make one distinction - - - ?

TOOHEY J: Could I just add somethin& Mr Hughes, because I

might lose the train of thought?

MR HUGHES:  I am so sorry.

TOOHEY J: And that is in that situation what does

section 13(l)(b) and (c) permit the Connnission

to do? Do they not permit the Connnission to

express a view as to the likelihood that corrupt

conduct has occurred, even if that - yes~ I will

stop there, that corrupt conduct has occurred?

MR HUGHES:  No, Your Honour, our answer is no. First of all-

I hope I am not being tedious~ there may be

a relevant distinction between the two types of

situation that Your Honour propounded in the

first part of Your Honour's question. If there

were a statute of limitations which precluded,

in the view of the Commission, any utility in

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considering a prosecution, the Commission would
simply be able to report, pursuant to section 74(5),

in view of the fact that these events took place

so long ago and a prosecution would be statute-barred,

we find that the evidence does not warrant a

prosecution. In the case of a person -and this is the

second type of example that Your Honour propounded -

in the case of a person, (a) the giver of the money

having died, clearly it would be otiose for the

Commission to say the evidence does not disclose

circumstances warranting consideration of a

prosecution cadit quaestio but Your Honour's

question really brings me to the great divide between

the competing contentions in this case. We say, on

the one hand, that a power of investigation and a

power to communicate the results of the investigation
as marked out by section 13(1), does not include, by

necessary implication, a power to determine that a

person has been guilty of corrupt conduct, or of

criminal conduct in the nature of corrupt conduct.

We say that because the investigative power, as

in the case, for example, of the investigative powers

undertaken by the police, is capable of a perfectly
useful operation without having as a .pendent or
incidental to it, a determinative power,· a power
to determine guilt. The police have no function

to determine guilt but they carry out useful

investigations.

Now, we say, that there is no necessary

implication of a determinative power in relation
to guilt flowing from the mere existence of the

investigative power.

(Continued on page 17)

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MR HUGHES (continuing):  The respondent's arguments seem

to proceed, if we may say so, with respect, and I

hope not misunderstanding them, on the basis of
recognizing that section 13(1) contains no

express determinative power or function; confers

no such power or function on the Commission.

Their argument, as one would understand it from the

written submissions, is that a determinative power,

a power to determine guilt, is to be implied from

the existence of the investigative power.

DAWSON J:  Well, at least it goes so far as authorizing the

Commission to find a prima facie case, does it not?

MR HUGHES:  Not in the case, Your Honour, of a non-parliamentary

reference.

DAWSON J:  I think you will see that section 74(5) rray determine where there is

sufficient evidence to warrant consideration·:.

Well, that would be a prima facie case, would it not?

MR HUGHES:  It could be but it is not for the Commission to

find that there is a prima facie case. That is my

point, or one of my points.

GAUDRON J:  But, there is very little difference, is there,

between saying, "Well, he may have corrL.'llitted an

offence and there is sufficient evidence to warrant

the prosecution of him for such and such an offence".

MR HUGHES:  But, the Commission cannot make the latter finding,

Your Honour.

GAUDRON J:	Under section 74(5)?
MR HUGHES:	No, with respect.  All the Commission can do,

pursuant to section 74(5), is to include in its

report:

a statement of the Commission's findings as

to whether there is or was any evidence or

sufficient evidence warranting consideration

of -

a prosecution.

GAUDRON J:  In the general context of the criminal law, surely

that means he may have committed an offence.

(Continued on page 18)

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MR HUGHES:  But Your Honour, with very great respect, we

are not dealing here with the general context of

the criminal law. This Act goes right outside
the general context of the criminal law and that
is why,we venture to submit, there is no room for

the implication of determinative functions or powers,

except upon a basis of certainty or necessity for

the implication.

GAUDRON J: Well I could understand that if you then sought to

limit the operation of 75(4) to reports resulting

from the exercise of functions under section 13(2).

MR HUGHES:  But our point, if I may say it, is to carry that

thought that Your Honour has expressed a step

further. One finds in this Act an express power

conferred upon the Commission, with a double

condition or limitation. It is a power, not to

determine guilt, but, to use a compendious expression,

possible guilt, as expressed by the words "may have"

occurred. Second, it is a power limited to cases
in which there is a reference of a matter by

Parliament, and the difficulty that we would suggest as standing in the path of any attempt to read a

power or function of determining guilt into section 13(1),

because that is where it has got to· be

found or implied, is that - - -

GAUDRON J:	Or possible guilt.
MR HUGHES:	Is that Parliament has given an express and

conditional power of making such a determination,

but only on the basis of a tentative determination

in the case of parliamentary reference.

TOOHEY J: Well if that is right, Mr Hughes, then the power

to communicate to appropriate authorities the

result of an investigation contained in

section 13(l)(c) would not carry any power to

express an opinion as to whether corrupt conduct had

occurred.

MR HUGHES:  Yes,Your Honour.

(Continued on page 19)

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TOOHEY J: That is inevitable, I suppose - - -

MR HUGHES:	That is so.
TOOHEY J:	- - - given your earlier submission.
MR HUGHES:	That is so.
TOOHEY J:	What is it that one communicates by way of result?
MR HUGHES:	The raw material thrown up by the investigation.

But may I say this: there is a very great difference

in terms of real life between reporting to Parliament

so that it becomes a public document, a tinding

outside the ordinary criminal process of a person's
guilt of a crime - that is one thing and the

legislature has said in section 13(2) that not

even that may be done in a report to Parliament;

it is another thing to envisage that the Commission

may, in a more private kind of communication,
say, for ex~mple to the Director of Public Prosecutions

or the National Crime Authority express as a

result of its investigation a suggestion that

there is evidence which if accepted could lead

to a prosecution and a successful prosecution

on a criminal charge.

DEANE J:	Are you not really trying to make it a little
bit too black and white?  I mean, there may be
circumstances where there is no difference between
the performance of an investigative and prosecution
function and the judicial determination for practical
purposes. I mean, if, for example, the report
was A, B, C, and D, your independent witnesses
where they saw him do it and he has confessed
and admitted that he did it, there is practically
no difference between that and a report saying,
"We determine that he did it", but the function
is difference.

MR HUGHES:  Your Honour, I accept that. To accept that,

however, is not to cede the main point which

is that -

DEANE J: It is not to cede anything in terms of your argument

as to construction. All I am suggesting is that

you ·are painting an artificial black and white

result of the - - -

MR HUGHES:  I shall have to try to be a better artist,

Your Honour, and use a little shade.

ClT14/l/ND	19	5/4/90
Balog(2)

MR HUGHES (continuing): Perhaps I have yielded to the

temptation of black and white depiction for the

purpose of making clear our essential argument on

construction. The evidentiary circumstances will

alter cases. By contrast with the sort of case that

Your Honour Justice Deane just put to me, one can	imagine a case in which there is evidence that A
handed over money to B; there is evidence from several
witnesses that they each saw him do it; there is
however evidence from A, himself, and from other
witnesses that he did not do it, that on the occasion when the other witnesses were present they did not see
him hand the money over. In such a circumstance the
difference between our construction of the Act - our
proffered construction_ of the Act and the construction proffered for the respondent could loom very large in
importance.

DAWSON J:  Why could you not, in that situation, under

section 74(5) then go on and say, as the Commission,

"But nevertheless we think the evidence overwhelmingly

points to the fact that this man was guilty of corrupt

conduc.:t", and thereby comply with subsection (5).

MR HUGHES:  It would be going beyond subsection (5).

DAWSON J: What you are really saying is, "All the Commission

can say is to confine itself to a formal statement that
there is evidence or sufficient evidence warranting
consideration of the prosecution of X". That is

what you are saying, is it not?

MR HUGHES:  That is what the Commission is confined :.:o, Your Hono·:.i,:-,

by way of expressing a conclusion.

DAWSON J: That is not what the subsection says. It does not say

"A report may include a statement that there was

evidence or sufficient evidence, et cetera", it says:

may include a statement of the Commission's

findings as to whether.

MR HUGHES: Yes.

DAWSON J: Well, that is much broader, is it not?

MR HUGHES:  With respect, no, because the finding is a finding

whether or no there is evidence warranting consideration

of a prosecution.

DAWSON J:  But, if the finding is that the evidence is

overwhelming and that therefore there is sufficient

evidence, why can you not say it?

ClT15/l/FK 20 5/4/90

Balog(2)
MR HUGHES: Because the - well I go back to the dichotomy

between section 13(1) and section 13(2) and to

the proposition that where you have a statute, as

this one,which makes very substantial inroads on

people's common law rights outside the ordinary

processes of the criminal law, one does not enlarge

powers by implication. To put the matter another

way, and this echoes something that was said by

Sir Ninian Stephen in SMORGON's case, where

there are two available constructions and the

situation in terms of interpretation is in

equipoiaea court will incline to adopt that construction

which does less harm to people's ordinary rights.

DAWSON J: That means, as a matter of practicality, all that

can be done is that the evidence can be set out

and then there can be a formal statement in the

terms of the section.

MR HUGHES:  Yes and, with respect, there is nothing very

horrifying about that.

DAWSON J: No, but that is what it comes to.

MR HUGHES:  Yes, that is what it comes to. The evidence can

be set out in summary form and the Commission can

then proceed. in accordance with the subsection (5)

in terms. We do not shrink from that.

DEANE J:	But may there not be circumstances where what Justice Dawson put to you must be right? I mean,
say for example the person subject to investigation
has an absolutely unblemished record and his
character is such as to make it obvious that he would not be convicted in the absense of. very strong evidence. Surely the Commission is entitled there to say, well X has this character; his background
is this; his reputation is unblemished; the nature
of the offence is such that it would need
overwhelming evidence before a jury would convict him. We consider that such overwhelming evidence
does exist and therefore there is sufficient
evidence warranting consideration of the prosecution.

MR HUGHES: Well, Your Honour, there must be shades of

distinction as Your Honour pointed out to me,

depending on the particular facts of the particular

case.

(Continued on page 22)

CIT16/l/CM	21	5/4/90
Balog(2)

DEANE J:  I mean, I can see that it is very much, no doubt,

in your client's interest to confine the

Connnission within a strait-jacket but even if one

accepts your argument as to the separation of
functions, there must be a degree of leeway in

the way the Connnission performs the function

provided it is aiming at discharging the function

entrusted to it.

MR HUGHES: 

Well, as long as it does not go beyond discharging

the function entrusted to it and that function is
not a function of determining guilt and it is a
function not of saying, even there is a prima facie

case of guilt.  I speak of the case of a

non-parliamentary investigation. It is a function,
in terms of subsection (5), of a much more limited
kind. But, I do not want to go back into that ground
again.

MASON CJ: 

Mr Hughes, could I take you up on the interpretation

you place on section 13(1)(c), where you say

connnunication of the results of its investigations

enables the Connnission only, as it were, to

connnunicate the evidence that it has actually

gathered.

MR HUGHES:	Yes.
MASON CJ:	Is that not a somewhat odd consequence that the

Connnission is unable to connnunicate to the

appropriate authority, for example, the council
in relation to the conduct of one of its employees,

what its findings are in terms of section 74(5)?

MR HUGHES:  I meant to concede for the purposes of argument

that the function of connnunicating the result of

investigations could include - I think I did this

in answer to Your Honour Justice Deane - connnunicating

a view in terms of or terms similar to

subsection (5).

MASON CJ:  Subsection (5), (a), (b) and (c).

(Continued on page 23)

ClT17/l/JH	22	5/4/90
Balog(2)

MR HUGHES : Subsection (5) , yes. My arguIIEnt can accormodate to that concession

because our concern is to limit what may be said

in a report by reference to the limited determinative

powers of the Commission. And we have to face the

fact that we may be liable to have it said of us,

of the appellant in a report, "The Commission heard

the following evidence. It is of the view that

there is sufficient evidence to warrant consideration

of a prosecution". But that is a much less damaging

finding even than the finding of a committing

magistrate who, having heard the evidence, says,

"I find there is evidence upon which a jury

properly instructed could lawfully convict". Even

that is not a determination of guilt but it is a

more damaging determination by way of comparison

than the sort of finding that can be made under

section 74 (5).

DEANE J: Really, your argument is no more than this, is it, that

the Act does not authorize the Commission to

pre-empt the functions of those whose duty it is

to determine the matters referred to in (5)(a),

(b) and (c).

MR HUGHES:  Yes, Your Honour, that is its fundamental core.

And really having said that, and having said quite
a lot in writing, I doubt whether there is any

more that I can usefully say on the general approach

to interpretation.

So the real difference between the approach of

the competing parties here is we say there is no

case for implication, given, in particular, the

sort of rights _that are being trenched upon by legislation

of this kind. The other side says, "One can imply

a determinative power from the existence of the

investigative power". Mr Justice Mahoney really

founded on an examination of his reasons, particularly

from page 53 through to about page 57, on the

proposition that there is an implied power to determine guilt.

(Continued on page 24)

ClT18/l/LW	23	5/4/90
Balog(2)

MR HUGHES (continuing): With respect to him - and the

same may be said of the other members of the

Court of Appeal - Their Honours did overlook

an important feature of section 74(5), the feature

to which I have alluded, namely that that subsection

does not confer upon the Commission a function

comparable to that conferred upon a committing

magistrate.

DAWSON J: It goes further than that, does it not, really?

It is not an implied power to find guilt, but an implied power to express a view about it?

MR HUGHES:	Yes.
DAWSON J:	And, of course, subsection (5) says what you

can express a view about?

MR HUGHES:	Yes, on that topic.
DAWSON J:	Yes.

MR HUGHES:  Yes, exactly. The topic of guilt or possible

guilt is exhaustively covered by 13(2) and

section 74(5). That is the proposition.

MASON CJ:  But the significance of the appearance of the

words "with a view to determining" in section 13(2)

do not seem to figure largely in the judgment?

MR HUGHES:  No. What His Honour Mr Justice Mahoney did do

and with, respect in a powerful and compelling

wa~ was to point out the serious inroads on the

common law position of individuals as enacted

by this legislation. His Honoan ,asks the question

whether the Commission's powers, , which he finds

to be an implied power - the relevant power he

finds to be an implied power - should be confined

by implication deriving from a proper concern

to limit as far as legitimately possible the

erosion of common law rights.

His Honour answers that question "No".

With very great respect we would say that His Honour's

approach is wrong and that the correct approach

is rather different. The correct approach, we

submit, would have been to ask as the first question
whether on the true construction of the legislation

the Commission is expressly endowed with power

to determine a person's guilt of criminal conduct

which is corrupt conduct.

(Continued on page 25)

C lTl 9/1 /ND	24	5/4/90
Balog(2)

MR HUGHES (continuing): As I have endeavoured to say, the

direction of His Honour's reasoning tends

generally, if not explicitly, to a negative

answer to the question whether there is such

an express power· and the second question, if

there is no express power, is this: absent

an express power to make a determination of guile

should the legislation be construed as conferring

such a power by implication?And it is at that

point, in our respectful submission, that the effect

of the legislation on common law rights ought to

be considered. Unless the legislation is unworkable,

without the implied power to determine guilt, there

is no room for the implication.

With respect, we say that a possible flaw in

Mr Justice Mahoney's reasoning is that he finds

the existence of the power to determine guilt by

implication and then asks, "Are the consequences of

endowing the Commission with such a power sufficiently

serious to negative the implication?". The correct

approach would be that the consequences to common lawof

rights making the application. should be taken into

account in the first place. in determining whether

the implication arises. I have been longer than I, perhaps, should have been. Unless there is anything

else - - -

MASCON CJ: You also apply for leave to amend the grounds

of appeal.

MR HUGHES:  I am obliged to,Your Honour. We have propounded - - -

MASON CJ: Yes, at the end of your outline of your written

submission;

MR HUGHES:  Yes,and may I hand up six copies of an amended

notice of appeal which embody those three grounds.

It is not called amended notice of appeal but it is intended to be so and I ask leave to file it. (Continued on page 26)

ClT20/l/JL	25	5/4/90
Balog(2)

MASON CJ: And these grounds are more specific than the

grounds as expressed in the original notice

of appeal 7

MR HUGHES: Indeed, Your Honour. Your Honour the Chief Justice

will recall that on the special leave application this

topic was raised and we have dealt with it accordingly.

For those reasons we would submit that the appeal ought to be allowed and the declaration sought below

in the Court of Appeal to be made.

MASON CJ:  Thank you, Mr Hughes. Mr McClellan.

MR McCLELLAN:  If the Court please, we would adopt on behalf

of the appellant, Mr Stait, the submissions which

Mr Hughes has made. May I just add a little to what

he has said with respect to the philosophy, as we

would see it, lying behind and leading to the

construction for which we contend.

Accepting, as it would appear the respondent

does, that the power to make a determination or the
function of determining constitute, say, significant
invasion of the common law rights of a person who is

being investigated, it is easy to reconcile, we would

submit, that the Commission would have the power to

do that after there has been a reference and therefore

consideration by both Houses of the Parliament and

as a consequence, we would submit, it is accordingly

appropriate, or it may be appropriate, for the power

to determine, as provided by section 13(2) to arise

in circumstances where the Parliament itself has requested

the Commission to undertake the investigations.

We would submit therefore that, in contradistinction

to that, when the Parliament is not the body which has

initiated the investigation one would not readily imply

the same power to make the determination. We draw

attention in paragraph 4 of our written submissions

to some decisions of the Court in the context of

contempt as that matter has been considered in

relation to commissions of inquiry or royal commissions. (Continued on page 27)

ClT21/l/FK	26	5/4/90
Balog(2)

MR McCLELLAN:  And it is our submission that the same

approach should be taken to the construction

problem which arises under this Act, although we

freely concede that there is no case that deals

with the circumstances_ nor,indeed, the precise
words that this Act brings forward. Can I add

to to references of the various judgments which deal

the reference the BUILDERS LABOURERS'

with the matter. In the judgment of His Honour

the Chief Justice. it is at page 54 to 55;

Justice Stephen at 71 point 7 to 73 point 3; Justice Nason

at page 94; Justice Wilson at page 130 to 131

and Justice Brennan at page 161. Over the page

we draw attention to the discussion of similar

principles in the decision of HINCH V

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA, and

there is useful discussion of the principle in
the judgement of Justice Deane at page 52 and

Justice Gaudron at page 86. We have also drawn

attention in paragraph 6 to the decision of this

Court in NATIONAL COMPANIES AND SECURITIES

COMMISSION V NEWS CORPORATION LIMITED, which

involves a discussion of the powers of the

Commission and its particular legislation and

it is, as the submission concedes, the position

that there are differences between the powers and
functions of the Commission and the powers and

functions given to the INDEPENDENT COMMISSION

AGAINST CORRUPTION.

However, there is again a discussion, and

we would submit it is appropriate to look at the

approach there taken for the purpose of determining

the correct approach to the difficult question of

construction as it would seem to be at least

conceded to be - that is difficult - which arises in

the present case and it leads, we submi~ inevitably to the conclusion that one would not readily infer;

cne would look for express words before allowing

a construction which would constitute such a

significant invasion of the common law position

with respect to an individual who is being

investigated.

(Continued on page 28)

CIT22/l/CM	27
Balog(2)

MR McCLELLAN (continuing): With those few words we would

respectfully submit that the appeal on behalf

of Mr Stait should also be allowed.

MASON CJ:  Thank you, Mr McClellan. Mr Rolfe.

MR ROLFE:  If the Court pleases. Your Honours, might we

just add to the sections to which my learned
friend, Mr Hughes, made reference, a reference

to section 19(1) which provides:

The Commission has power to do all

things necessary to be done for or in connection

with, or reasonably incidental to, the exercise

of its functions, and any specific powers

conferred on the Commission by this Act

shall not be taken to limit by implication

the generality of this section.

And the other subsections to which we wish to

draw attention are section 74(8) and (9), which

subsection (8) gives:

The Commission -

power to -

defer making a report under this section

if it satisfied that it is desirable to

do so -

unless it is a parliamentary initiated report

and one of the matters for the determination

for such deferring is that -

(9) ..... the Commission shall have regard

as to whether or not the matter is before

a Court.·

Your Honours, in our written submissions, we

have sought to make the submission that if the

report is limited in the way in which my learned

friends contend to a consideration of whether

there was any evidence or sufficient evidence

warranting consideration of the prosecution,
subsection (9) would seem to be somewhat otiose
because the prosecution is already on foot.

Your Honours, we have sought to set out in some detail - and I do not wish to repeat

our written submissions - but could we add to those these submissions: the power conferred on the Commission pursuant to section 13(1) is

to investigate corrupt conduct in the terms specified

and there is no legislativeassumption that such corrupt
conduct has, is or may be going to occur because the task of

determining that is left to the Coomission to investigate.

C 1T23/l /ND	28
Balog(2)
MR ROLFE (continuing):	Now, Your Honours, we would submit

that the - and this is common ground - if the Commission in carrying out that investigation

holds a public inquiry then it is incumbent·

upon it, pursuant to 74(6), to make a report and,

Your Honours, the reportwhich it is required to

make is not one confined by the words of the

statute to a report as to whether there is any

evidence warranting consideration of the

prosecution, the report must include such a

statement, but with respect to my learned

friends, the words would have to - the word "only"

would have to be added to subsection (5) if their

submissions are to be made good, namely, that a

report may only include a statement. Now, the

words of subsection (5), in our respectful

submission, are not exclusory in that particular

sense.

Your Honours, once there becomes an obligation

to report, then, in our submission, there is an

obligation to determine. The investigative role

passes and merges into the determinative role,

with a view to answering that which is required by

the consequences of subsection (5) and (6) in the case of a public inquiry, and what we have sought to do, in our written submissions, is to draw a

distinction between a parliamentary-initiated inquiry

and one initiated pursuant to section 20 in, paragraph 4
of our written submissions on page. 6, and the reason for

that is this, Your Honours, that in the case ot non-parliamentary-initiated investigations, the

Commission has a number of discretions. And I

should also have added to the sections which we would

submit may assist your Honours, section 18.

(Continued on page 30)

ClT24/l/JL	29	5/4/90
Balog(2)

MR ROLFE (continuing):  Under section 18(1), the Cormnission

has power to:

do any or all of the following:

(a) cormnence, continue, discontinue or

complete any investigation.

Now that is a discretion vested in the Cormnission

whereas in the case of a parliamentary initiated
investigation, the only power to discontinue, or the
only right to discontinue, is pursuant to a cormnand
of the Parliament. Similarly, in section 74(1), the

Cormnission, in a section 20 initiated investigation, may or may not prepare a report. There is no

obligation upon it to do so unless, of course, under

subsection (3), there have been public hearings.

Similarly, under section 74(8), there is the

right to defer the publication of a report or the

making of a report. Now, that is not a power which

arises in relation to a parliamentary initiated report

and it is in those circumstances, Your Honours, that

we submit that where the Cormnission is required to

obey the cormnand of Parliament, it is quite appropriate

for the section to require that the investigation be

with a view to determining. It removes the discretion

otherwise invested in the Cormnission in the

circumstances to which we have just referred and,

Your Honours, that assists in giving content to the words of section 73(2) that:

It is the duty of the Cormnission to fully

investigate a matter referred to it.

In other words, it is not permissible, short of
Parliament saying, "Stop investigation", for the

Cormnission to do other than to fully report.

Your Honours, we would submit that the roles of

investigating, determining and reporting really merge

into the one activity when the obligation under

section 74(3) is the requirement to prepare reports

in relation to matters and, if we may emphasize

those words:

as to which the Cormnission has conducted a

public hearing.

And then, one goes to the requirement that the report

shall include the relevant statement but by no means

that that is the only statement that may be included.

ClT25/l/JH	30	5/4/90
Balog ( 2)

MR ROLFE (continuing)! ~nd indeed Your Honours, we vJOuld submit that

it may be very helpful that the C0Im11ission,

having had the advantage of hearing the evidence

and seeing the witnesses, should have the power

to analyse and evaluate that evidence and the
witnesses who gave it, for the purpose of assisting
the prosecution authorities in determining whether
or not a prosecution is warranted in all the
circumstances. It would be strange,indeed,if all
the prosecution authorities were to receive was
a document saying, "We consider there is sufficient
evidence warranting consideration of the
prosecution. Here are 500 pages of transcript

and 100 exhibits and you . aort it out for

yourselves". That, with respect, does not give

any real function to the C0Im11ission, nor does it,

in the sense of enabling the C0Im11ission to be of the type of assistance which,in our submission, the Act contemplates it will be to the prosecution

authorities.

Your Honours, in order for my learned friends

to seek to make their submissions good, weight is
placed upon the effect of section 14, but that

section deals not with the principle functions

but with the other functions and that is the type
of function which the C0Im11ission may well carry
out if what it is doing is carrying out a quasi-

c0Im11ittee magisterial role. But my learned friends

other functions power~ to the power which is
expressly conferred by the princip al functions. seem to be, with respect to them, raising the determine can even be found within certain of the

specific words in section 74(5), because one matter

to which the C0Im11ission has to turn its attention

is whether there is evidence,or whether there is

sufficient evidence, which would seem to be a

lower gradation of evidence.

(Continued on page 32)

CIT26/l/CM	31	5/4/90
B:alog(2)

MR ROLFE (continuing):  Your Honours, subject to one matter,

those would be the submissions we would wish to put and the one matter is that Your Honours may derive some assistance from the way in which the

question of a report was considered in the

NATIONAL COMPANIES AND SECURITIES COMMISSION V

NEWS CORPORATION LIMITED, (1984) 156 CLR 296.

Of course, the Connnission's power there was

simply to investigate with a view to determining

whether the Connnission itself would take proceedings.

There was no right to report. But, Your Honours,

in the course of dealing with that, Your Honour

the Chief Justice, Justice Wilson and Justice Dawson

observed at page 325 that, at about point 3,

a report would probably be inappropriate, was the

context in which the Court was speaking at that

stage. There is a sentence just beside the word

"News Corporation":

So much may be readily conceded. But where the

purpose of undertaking an investigation by way

of a hearing is to determine whether the

Connnission should make certain applications to

the Supreme Court, and that hearing is conducted
in private, the subsequent publication by the

Commission of the evidence given in that hearing

and of the Corrrrnission's views upon it may not be

appropriate.

Now, Your Honours, that passage was in the context

of the fact that the Commission had no power to make

a report but we offer it to the Court as some

indication of the matters which Your Honours had

in mind would be relevant to a reporting function.

The Chief Justice Mr Justice Gibbs also dealt

with this particular matter at page 296.- I beg

Your Honours' pardon.

(Continued on page 33)

ClT27/l/LW	32	5/4/90
Balog(2)

MR ROLFE (continuing):  I am sorry, I will not - what I wish

to say to Your	Honours is not against me but I
have just lost	the place and I will not trouble
Your Honours.	I think it is probably at page 308
or 312, but as	I say, I will not take up the
Court's time.	The submission is not - - -

DAWSON J: Page 312.

MR ROLFE:  312, I am indebted to Your Honour.

DAWSON J: At the bottom.

MR ROLFE:  Yes, yes,thank you:

For these purposes no report is necessary and none is contemplated by

Pt VI.

As I submitted to the Court that does not go quite

so far as the other judgment to which I referred.

Now, Your Honours, in those circumstances, we would

submit that once the power or the obligation to

report becomes a mandatory obligation to report, it

is appropriate that the report should not merely

mouth the formula of the words set forth in section 5

but should include the considered view of the

commissioner as to the reasons warranting consideration

of the prosection and as Your Honour, Justice Dawson

put to my learned friend Mr Hughes, it may very well

be that there is a case where the evi<lence is

overwhelming, or there is confessional evidence, in

which case we would submit it would be utterly

appropriate for the Commission to make a finding as
strong as one of guilt or innocence.

Those, Your Honours, in addition to the matters to which we have referred in our written submissions,

would be the submissions we would wish to put on

behalf of the respondent.

GAUDRON J:  Mr Rolfe, I am a little puzzled by the letter

appended to your written submission~- Is this

Court invited to do anything about that, on your submission?

(Continued on page 34)

ClT28/l/JL	33	5/4/90
Balog(2)

MR ROLFE: Well, the situation is this, Your Honour, upon

reading the transcript of what transpired on the

special leave application, it seemed appropriate

to advise our learned friends that the concession was made in the limited ambit to which the letter

refers.

MASON CJ: Well, it was a meaningless concession if that was

so. What would be the point of making that
concession, just for the purposes of the special

leave application, but not for the appeal, if one

ensued?

MR ROLFE:  As I would understand it, Your Honour, it was that

the Commission appreciated that it was, of course,
bound by the majority decision in the Court of Appeal

in the event of leave not being granted.

MASON CJ: Yes, I follow that, but of course the inquiry,

in the context of the special leave application,

wasto ascertain whether or not that issue was dead

and exhausted as between the parties, for the purpose

of the Court considering the special leave applications.

MR ROLFE:  Your Honours, may I say this, and I say this on

instructions, that the Commission finds it difficult

to envisage a situation in which it may wish to

exercise the power of saying, guilt or innocence,

but, Your Honours, we would not wish a situation to

arise whereby that concession meant, and I do not

understand my learned friend's submissions to go to criminal conduct which could lead others to the

this extent in any event, that it was not open to the

conclusion as to the Commission's view?	I do not
know if that answers~ - -

GAUDRON J: Yes.

MR ROLFE:  - - - Your Honour Justice Gaudron's question, or

indeed the Chief Justice's subsequent question.

MASON CJ:  I did not ask a question. I made a statement.

MR ROLFE:  Yes, I beg Your Honour's pardon. Yes, if the

Court pleases.

MASON CJ: Thank you, Mr Rolfe. Yes, Mr Hughes.

ClT29/l/FK	34	5/4/90
Balog(2)

MR HUGHES:	I do not want to say anything about the withdrawal of the concession beyond this, if I may, and that
is that my apparent ingratitude when the concession
was made was perhaps well founded.

MASON CJ:  Yes. I withdraw entirely the accusation I levelled

at you at that time.

MR HUGHES: It was only a light-hearted one anyway,

Your Honour. Your Honours, my learned friend

in his written submissions made a reference to

MAHON VAIR NEW ZEALAND and said, as I understand

the way the argument runs, it would be very inconvenient

and unfortunate for a person in the position

of Mr Balog if the Commission were not to make

a determination of his guilt in a proper case

because unless it did it would not be able to

afford to him the opportunity that MAHON VAIR

NEW ZEALAND says should be afforded to anyone

before an adverse finding affecting his rights

is made against him.

That argument, in our respectful submission,

does not seem to run any distance at all because,

surely, if the principle in MAHON VAIR NEW ZEALAND

is applicable to this sort of investigation -

maybe it is not because in the strict sense rights

are not affected - all the Commission needs to

do to discharge the supposed duty is to say to

Mr Balog, "Look, we have it in mind to make a

finding, we haven't reached a conclusion that

there's sufficient evidence to warrant consideration

by the prosecuting authorities of a prosecution
against you for an offence."

"The evidentiary material upon which we propose to consider whether we should make such a finding

is this and that," itemizing it,"what do you wish

to say? There is no need to make a determination

or to be leading towards making a determination

of guilt to enable the Commission to discharge

that supposed duty."

(Continued on page 36)

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MR HUGHES (continuing):  Section 18 is a section which is

not, in our respectful submission, particularly

definitive of the determinative power, not
definitive at all of the determinative power, if any,

of the Commission. It merely says that the Commission

may do the things that the Act elsewhere says it may

do notwithstanding that proceedings are pending before

some court or some other tribunal. That does not

seem to take the argument any distance at all in

either direction.

Section 19, my learned friend relies on it

and in terms of section 19, the question to be

considered, in our respectful submission, is whether

a power or function of determining guilt is necessary

to be done for the purpose of making workable the

investigative power and I have put submissions on

that topic and I will not repeat them. Section 19
merely puts into written form the question that

always arises as to the permissibility of

implying a power when it is not expressed.

One thing that has come out of the oral

argument, if I may venture to say so, is that my

learned friend has not departed one inch from the

fundamental proposition which he propounded in the

written submission and that is that the power to

determine guilt, if it exists at all, is and can only

be an implied power in this case.

Two points that, in my respectful submission,

the argument for the respondent has not dealt with

are these:	one - and if I can put it in the form
of a question I will.	One, if there is a general

power, irrespective of the origin of the

investigation, to determine guilt or that there may

have been guilt of corrupt conduct, why, one asks,

was it necessary to enact either section 74(5) or

section 13(2)(a). Those questions remain unexplained,

I venture to suggest, by the argument that has been

we would wish to raise in reply, Your Honour. put for the respondent. Those are the only matters (Continued on page 37)

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MASON CJ:	Thank you, Mr Hughes.	Mr McClellan.

MR McCLELLAN: If I may, Your Honours, if the Court please,

just two matters: firstly, Mr Rolfe referred

to section 74(9) and sought, as we understood

it, to submit that on the construction for which

we contend it would have no work to do. We would

take issu~ with respect, with that submission.

It would be our submission that it is quite

conceivable that at the time the Commission may

be contemplating a report there may be committal

proceedings before an appropriate body and as
a consequence the Parliament has been concerned

to ensure that those proceedings may not be affected

by any report which the Commission may make and

we would suggest that there would be a number

of other potential circumstances where subsection (9)

would have work to do on the construction for
which we contend.

Secondly, my friend took the Court to the

NEWS CORPORATION decision. May I just add to

the references that he took the Court to, these

two reference: firstly, in the judgment of the

Chief Justice, 156 CLR at page 313, about

point 2, His Honour says:

In that case, speaking generally, the

publication of a report by the Commission

that in its opinion a contravention had
occurred would not only be no part of its
function, but might well be a contempt of

the Supreme Court.

(Continued on page 38)

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Balog(2)

MR McCLELLAN (continuing):  Now it is accepted that in that

situation the Corrnnission itself, it would be

contemplated, would be approaching the Court,

however, we would submit it is but a short step to

the circumstance here where the Independent

Corrnnission Against Corruption is reporting pursuant

to section 74(5) and, at the same time, contemplating

publishing a report which includes a determination
in relation to the very matter that its report deals

with.

In the same context, on page 325 in the judgment

of Your Honour the Chief Justice and Justice Wilson

and Justice Dawson, there is this statement at about

point 5:

Certainly, if the hearing is to be followed

by an application to the Court then any

prior publication would seem to be distinctly

unwise if not positively unlawful.

And we, with respect, would submit that one might

apply the first proposition, distinct lack of

wisdom, to the contention for which the Independent

Corrnnission cnntends in these proceedings if it be

not unlawful as being beyond the Corrnnission's power

in the way that we would contend on the construction

which we suggest is appropriate. If the Court pleases.

MASON CJ:  Thank you Mr McClellan. The Court will consider

its decision in this matter and will adjourn until

9.30 am tomorrow in Sydney and Canberra.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

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