Bell v The Queen; Independent Commissioner Against Corruption v Bell - [2020] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BELL v THE QUEEN; R v BELL; INDEPENDENT COMMISSIONER AGAINST CORRUPTION v BELL
[2020] SASCFC 116
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
3 December 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - FROM INTERLOCUTORY OR ANTECEDENT JUDGMENT OR ORDER
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - DECLARATIONS - CRIMINAL PROCEEDINGS - GENERALLY
The appellant Troy Bell is being prosecuted by the Director of Public Prosecutions in the District Court on 20 counts of theft and six counts of dishonestly dealing with documents. The prosecution followed a referral for prosecution by the Independent Commissioner Against Corruption to the Director (following an investigation by the Commissioner).
Mr Bell sought a permanent stay of the prosecution on the grounds that he cannot receive a fair trial and the administration of justice would otherwise be brought into disrepute by reason of:
(a) the referral by the Commissioner of the matter for prosecution to the Director, which Mr Bell contends was beyond power;
(b) the provision by the Commissioner to the Director of evidentiary material obtained using compulsive powers, which Mr Bell contends was beyond power;
(c) the exercise by the Commissioner after the referral and after the institution of the prosecution of compulsive powers and taking of other steps, which Mr Bell contends was beyond power; and
(d) the taking of steps, or failures to take steps, by the Commissioner that Mr Bell contends wrongly resulted in the maintenance of confidentiality in respect of dealings with and the evidence of witnesses.
A Judge of the District Court largely upheld Mr Bell’s contentions concerning conduct by the Commissioner but dismissed his application for a permanent stay because that conduct did not entail that Mr Bell cannot receive a fair trial or that the administration of justice would otherwise be brought into disrepute.
Mr Bell appeals against the dismissal of his application for a permanent stay of the prosecution. The District Court Judge reserved for the consideration of the Full Court a series of questions of law concerning the powers and conduct of the Commissioner. The Commissioner seeks declarations that the impugned conduct was within power and not unlawful.
Held by the Court:
1. The Commissioner is authorised by section 7(1)(a)(i) of the Independent Commissioner Against Corruption Act 2012 (SA) to refer a matter for prosecution to the Director. The referral by the Commissioner to the Director in May 2017 was not unlawful. The Judge erred in concluding to the contrary (at [196]).
2. The Commissioner is entitled on a referral for prosecution to provide to the Director evidentiary material compiled during the course of an investigation, including evidentiary material obtained using compulsive powers. The provision of such material by the Commissioner to the Director in May 2017 was not unlawful. Variations made by the Commissioner were not unlawful (at [206]-[207], [224], [233], [247], [253], [254]).
3. The Commissioner has power after the institution of criminal proceedings to take the following steps, the Commissioner’s taking of those steps after the commencement of the prosecution against Mr Bell was not unlawful, and the Judge erred in concluding to the contrary:
(a) interviewing witnesses and preparing witness statements (at [282]);
(b) attending proofing of witnesses in company with staff of the Office of the Director (at [286]);
(c) obtaining business and financial records by the exercise of compulsive powers under sections 29 and 29A of the Independent Commissioner Against Corruption Act 2012 (SA) (at [296]); and
(d) issuing and serving an authorisation to Mr Bell authorising disclosure and publication, pursuant to sections 54 and 56 of the Independent Commissioner Against Corruption Act 2012 (SA) (at [304]).
4. The Judge was correct in holding that the Commissioner does not have power to file and serve Court documents in a prosecution, which is the function of the Director (at [314]).
5. The Judge did not err in finding that the Commissioner should, when the prosecution was commenced in August 2017, have revoked the non-communication directions given to three witnesses who had been examined and a non-disclosure notation given to one of those witnesses when summoned for examination and Assistant Commissioner should not have included a non-disclosure notation in a notice issued for the production of documents (at [323], [336]).
6. Observations concerning references to confidentiality in email communications between the Commissioner as investigators and witnesses (at [341]-[347]).
7. The conduct of the Commissioner has not resulted in Mr Bell being unable to have a fair trial. Nor has it such that the continued prosecution of Mr Bell would bring the administration of justice into disrepute. The Judge was correct to dismiss the application for a permanent stay (at [367], [368], [373]).
8. Questions reserved are answered accordingly (at [374]).
9. Appeal dismissed (at [375]).
10. The Court has jurisdiction to grant and the Commissioner has power and standing to seek the declarations sought by the Commissioner. However, given the close parallels between the declarations sought in the civil proceeding and the issues in the criminal proceeding, it is appropriate to defer the making of any declarations until after the final determination of the criminal proceeding (at [388], [394], [398], [419]).
Crown Proceedings Act 1992 (SA) ss 4, 5(1)(a); Independent Commissioner Against Corruption Act 2012 (SA) ss 3, 5, 7, 17, 23, 24, 29, 29A, 36, 36A, 43, 54, 56, 56A, Sch 2 cl 2, 3, 6; Director of Public Prosecutions Act 1991 (SA) ss 7, 10A, 11, referred to.
Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited [2007] NSWSC 1215; Chief Examiner v Brown (2013) 44 VR 741; Commonwealth v Helicopter Resources Pty Ltd (2020) 94 ALJR 466; JN Taylor Holdings Ltd (in liquidation) v Bond (1993) 59 SASR 432; NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; Palmer v Magistrates Court of Queensland [2020] QCA 47; PRS v Crime and Corruption Commission [2019] QSC 83; Sankey v Whitlam (1978) 142 CLR 1; Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; X7 v Australian Crime Commission (2013) 248 CLR 92, discussed.
Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Edelsten v Health Insurance Commission (1990) 27 FCR 56; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; Mercantile Mutual Life Insurance Company Limited v Australian Securities Commission (1993) 40 FCR 409; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, considered.

BELL v THE QUEEN; R v BELL; INDEPENDENT COMMISSIONER AGAINST CORRUPTION v BELL
[2020] SASCFC 116
Court of Criminal Appeal and Full Court: Kourakis CJ, Peek and Blue JJ

THE COURT:     These reasons address three matters heard concurrently which arise out of an investigation by the Independent Commissioner Against Corruption (the Commissioner) and prosecution by the Director of Public Prosecutions (the Director) of Troy Bell on charges of theft[1] and dishonestly dealing with documents[2] (the charges).
[1]    Criminal Law Consolidation Act 1935 (SA) section 134(1).
[2]    Criminal Law Consolidation Act 1935 (SA) section 140(4)(1).
In November 2014 the Commissioner determined to investigate a potential issue of corruption in public administration involving Mr Bell.[3]
[3] Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) sections 23(1)(a) and 24(1)(a).
During the investigation, the Commissioner or the Deputy Commissioner undertook compulsory examinations of three witnesses[4] and investigators executed search warrants issued by the Commissioner[5] or a Judge of the Supreme Court.[6] In addition, various witnesses were voluntarily interviewed and signed witness statements in the form of affidavits and documents were obtained voluntarily from various sources.
[4]    Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 29(1) and Schedule 2 clause 2 and 4.
[5]    Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 31(1).
[6]    Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 31(2).
In May 2017 the Commissioner forwarded the matter to the Director to determine whether a prosecution should be instituted.
In August 2017 the Director filed an Information (the Magistrates Court Information) in the Magistrates Court against Mr Bell, alleging 20 counts of theft and six counts of dishonestly dealing with documents. In due course, Mr Bell was committed for trial in the District Court.
After filing of the Information, an examiner issued a notice requiring production of documents[7] and investigators authorised by the Commissioner inspected and copied financial records of financial institutions.[8]
[7] Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 29(2) and Schedule 2 clause 5.
[8] Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 29A.
In October 2018 the Director filed an Information (the Information) in the District Court against Mr Bell, alleging 20 counts of theft and six counts of dishonestly dealing with documents.
In June 2020 Mr Bell filed an application in the District Court seeking a permanent stay of the criminal proceeding. The application (as amended and ultimately argued) was on the grounds[9] that the Commissioner:
(a)had no power to refer the matter to the Director (ground 4);
(b)had no power to provide to the Director for the purpose of a prosecution for offences against the Criminal Law Consolidation Act 1935 (SA) (the Criminal Law Act) evidentiary material obtained using compulsive powers (ground 3);
(c)had no power to exercise compulsive powers to obtain documents relevant to the criminal proceeding after commencement of the criminal proceeding (grounds 1 and 2 and as argued);
(d)had no power to perform any functions in relation, or incidental, to the prosecution (grounds 1 and 2 and as argued);
(e)unlawfully directed witnesses interviewed or summoned for examination and persons given notices requiring production of documents not to speak with persons (including Mr Bell and his solicitors) about the summons/examination/notice/investigation the subject matter of the examination/investigation, the evidence they might potentially give or disclose the fact or content of the summons/examination/notice (grounds 1 and 2 and as argued);
(f)unlawfully failed to revoke, or communicate the revocation of, such directions after the institution of the criminal proceeding (grounds 1 and 2 and as argued); and
(g) thereby undermined the fairness of Mr Bell’s trial and the accusatorial system of criminal justice such that he cannot now receive a fair trial and the administration of justice would be brought into disrepute unless a permanent stay is granted (grounds 1 and 2).
[9] There were additional grounds but they were rejected by the Judge and there is no appeal against those aspects of the Judge’s decision.
A Judge of the District Court largely upheld Mr Bell’s contentions the subject of paragraphs (a) to (f) but found that he can receive a fair trial, the administration of justice would not otherwise be brought into disrepute and refused the application for a permanent stay.[10]
[10] R v Bell [2020] SADC 107.
Mr Bell appeals to this Court against the Judge’s refusal of his permanent stay application.[11] The Director contends, pursuant to a notice of alternative contention, that the Judge’s dismissal should be upheld on alternative grounds, namely that the Judge erred in upholding any of Mr Bell’s contentions.
[11] Pursuant to the Criminal Procedure Act 1921 (SA) section 157(1)(d)(i) and permission granted by the Judge.
The Judge reserved questions of law for the consideration of this Court whether the Commissioner acted unlawfully in the various respects contended by Mr Bell.
By originating application, the Commissioner seeks declarations that the Commissioner had the powers that Mr Bell contends the Commissioner lacks and acted lawfully. This proceeding was directed to be heard and determined by this Court.
Background
Prosecution case
The prosecution case, drawn from a summary prepared by the Director for the Judge, can be summarised as follows. Obviously, these are just allegations at this stage, which are not proved, and various of the allegations will or may be in contest at the trial of the criminal proceeding (if the matter proceeds to trial).
Mr Bell was employed by the Department of Education and Children’s Services[12] (the Department) from 1996 to 2001 and 2003 to 2013. This included positions at the Department’s Limestone Coast Regional Office from 2003 to 2013 and concurrently at Millicent High School from 2011 to 2013.
[12] Known later during Mr Bell’s employment as the Department of Education and Child Development.
John Shelton has been the principal of Millicent High School since 2005.
Mr Bell was instrumental in the establishment by the Department, and more specifically Millicent High School, of an off-school campus in Mount Gambier known as the Independent Learning Centre as a learning centre for students who had become disengaged from formal education.
The Independent Learning Centre operated from January 2007 out of premises at 5 Percy Street Mount Gambier. A youth worker, Christine Hart, was initially engaged for six months.
The Independent Learning Centre was managed by a Department employee designated as Manager, being Robert Barton from January 2007, Peter Fox from January 2008 and Mr Bell from January 2011 to March 2013.
The Independent Learning Centre was funded initially by the Department and by the Federal government-funded FOCiS on Youth program and thereafter by Department funds administered by Millicent High School derived from State and Federal government grants.
The operation of the Independent Learning Centre was at least initially conducted by the Department. The Independent Learning Centre was never a legal entity as such.
By 2008 Mr Bell had become an executive member of the South East Education and Training Association Inc (SEETA), a not-for-profit association incorporated under the Associations Incorporation Act 1985 (SA). Helen Strickland was the Chairperson of SEETA until October 2008, when Mr Bell became Chairperson and Public Officer. Jan Shanahan performed the bookkeeping for SEETA.
In February 2008 it was resolved at a general meeting of members of SEETA that, at the request of the Independent Learning Centre, SEETA would provide payroll services for, and enter into a lease agreement for the premises at 5 Percy Street Mount Gambier occupied by, the Centre. Mr Bell and Ms Strickland executed on behalf of SEETA a lease agreement with the landlord of the Percy Street premises.
In May 2008 SEETA became the employer of Ms Hart instead of merely providing payroll services. In August 2008 SEETA employed a second youth worker, Palma Edmonds. Thereafter SEETA employed all staff working at the Independent Learning Centre other than Department employees (such as the Manager).
SEETA rendered invoices to Millicent High School for rent and salaries, and subsequently cleaning, for the operation of the Independent Learning Centre. The invoices were raised by Mr Bell or by Ms Shanahan under his direction.
SEETA subsequently opened a bank account with the National Australia Bank (NAB) entitled “SEETA ILC operating account” (the SEETA account) to quarantine transactions associated with the Independent Learning Centre from its other activities. Mr Bell and Ms Shanahan became the sole signatories to the SEETA account. Ms Shanahan acted in accordance with Mr Bell’s directions.
In February 2009 Mr Bell registered in his own name the business name “South Australian Independent Learning Centre” (SAILC) and in May 2009, on his application, an Australian Business Number (ABN) was issued to him as an individual/sole trader under the trading name “The Independent Learning Centre”.
In May 2009 Mr Bell opened a bank account with NAB in the name of the “South Australian Independent Learning Centre” (the SAILC account).
Mr Bell and his wife, Michaela Bell, operated various joint bank accounts. They included a joint bank account with NAB (the Bell joint account) and a joint FlexPlus Mortgage loan account (the Bell joint FlexPlus account).
In June 2009 Mr Bell trading as the Independent Learning Centre issued an invoice to SEETA for $6,000. In July 2009, he deposited a cheque drawn by Ms Shanahan on SEETA’s account into the SAILC account and in turn transferred $4,000 from the SAILC account into the Bell joint account. The transfer of $4,000 is the subject of count 1 in the Information alleging the theft of $4,000 from SEETA.
In July 2009 Mr Bell trading as the Independent Learning Centre issued an invoice to SEETA for $87,499.99. In August 2009 he deposited a cheque drawn on SEETA’s account into the SAILC account. In September 2009 he transferred $87,317.87 from the SAILC account into the Bell joint account. The transfer of $87,317.87 is the subject of count 2 in the Information alleging the theft of $87,317.87 from SEETA.
In the meantime, in May 2009 the Limestone Coast Education and Training Association Inc (LCETA) was incorporated under the Associations Incorporation Act 1985 (SA). Its members were Mr Bell, Mr Shelton and Mr Fox. Mr Bell was Chairman. In September 2009 an ABN was issued to LCETA.
In January 2010 Mr Bell, acting on behalf of LCETA, employed Faye Hill as bookkeeper to manage LCETA’s accounts. Ms Hill acted in accordance with Mr Bell’s directions.
In and after January 2010 Mr Bell opened accounts with Savings and Loans Credit Union (later renamed People’s Choice Credit Union) (PCCU) and with NAB in the name of LCETA (the LCETA accounts). Mr Bell and Ms Hill were the signatories (either to sign or authorise).
In February and March 2010 Mr Bell caused $158,990.18, being the total funds in the SEETA account, to be transferred into a LCETA account.
In March 2010 Ms Hill, in accordance with Mr Bell’s directions, commenced issuing LCETA invoices to Millicent High School for (purported) costs of operating the Independent Learning Centre.
In May 2010 Mr Bell trading as the Independent Learning Centre issued an invoice to LCETA for $15,000. On the same day he deposited a cheque drawn on a LCETA account into the SAILC account. In turn, he transferred $7,000 from the SAILC account into the Bell joint account and $10,052.52 into the joint FlexPlus account. These transfers are the subject of counts 3 and 4 in the Information alleging the theft of $7,000 and $10,052.52 respectively from LCETA.
In July 2010 Mr Bell deposited a cheque drawn by him on a LCETA account for $22,000 into the SAILC account. He transferred from the SAILC account $17,000 into the Bell joint account and $5,000 into his father’s account. The transfers are the subject of counts 5 and 6 in the Information alleging the theft of $17,000 and $5,000 respectively from LCETA.
Between October 2010 and May 2012 Mr Bell made 11 transfers of funds from a LCETA account into the SAILC account and in turn transferred the same or almost the same amount from the SAILC account into the Bell joint account and two transfers directly from a LCETA account into the Bell joint account. The transfers into the Bell joint account are the subject of counts 7 to 9, 12 to 21 in the Information alleging the theft of that amount from LCETA. The details are set out in the following table:

Month Transfer into SAILC account Transfer into Bell joint account Count

October 2010 $11,000 $11,000 7

November 2010 $130,000 8

December 2010 $127,000 $127,000 9

February 2011 $100,000 $100,000 12

May 2011 $90,000 13

July 2011 $115,000 $115,000 14

August 2011 $75,000 $75,085 15

October 2011 $105,000 $104,990 16

December 2011 $140,000 $140,000 17

February 2012 $37,000 $37,000 18

February 2012 $130,000 $130,000 19

April 2012 $156,000 $156,000 20

May 2012 $180,246 $180,240 21

In December 2010 Mr Bell issued an invoice in the name of LCETA to Millicent High School for $50,000. Millicent High School paid $50,000 to LCETA and it was transferred in turn into the SAILC account. In turn, Mr Bell transferred $55,000 from the SAILC account into the Bell joint account. The issue of the invoice is the subject of count 10 in the Information alleging the use of a false document intending to deceive Millicent High School and thereby obtain a benefit of $50,000. The transfer of $55,000 into the Bell joint account is the subject of count 11 alleging the theft of $55,000 from LCETA.
In 2011 Millicent High School established a second off-campus facility known as the Millicent Community Learning Centre in Millicent to function as a learning centre for students who had become disengaged from formal education. The Community Learning Centre was funded by Millicent High School in the same way as it funded the Independent Learning Centre. LCETA raised invoices to Millicent High School in relation to the Community Learning Centre in the same way as in relation to the Independent Learning Centre
In November 2012 Mr Bell transferred $239,626.23 from the Bell joint account into the SAILC account. In turn, he transferred $239,626.85 from the SAILC account into a LCETA account. This transfer was made on the prosecution case in preparation for the audit of LCETA’s financial statements for the year ended 30 June 2012 by Peter Gordon who was appointed at about this time by Mr Bell to undertake the audit.
The prosecution case includes several uncharged acts including transfers of funds from LCETA accounts to SAILC accounts and from SAILC accounts to the Bell joint account or other Bell accounts. The prosecution case acknowledges that there were other payments of funds back from Bell accounts to SAILC accounts and from SAILC accounts to LCETA accounts. On the prosecution case, a total of $1,300,446.85 was transferred as a result of charged and uncharged acts from LCETA accounts to SAILC accounts (other than in payment of specific expenses) and a total of $924,236.85 was transferred from SAILC accounts to LCETA accounts. The difference is $376,210.
Mr and Mrs Bell were the directors and shareholders of Bellistic Pty Ltd (Bellistic). Bellistic operated a bank account with NAB (the Bellistic account).
In December 2012 Mr Bell caused Bellistic to register the business name Education and Youth Services (EYS). EYS was intended to take over the functions performed by LCETA.
In December 2012 Mr Bell caused EYS to issue to Millicent High School invoices for $129,781.30 and $22,385. The invoices were for staff wages, cleaning and rent in relation to the operation of the Independent Learning Centre for Term 1 of 2013. The total of the invoices was paid by Millicent High School into the Bellistic account. The prosecution case is that the relevant expenses were in fact incurred by LCETA and not EYS. The issue of the invoices is the subject of counts 22 and 23 in the Information alleging the use of a false document intending to deceive Millicent High School and thereby obtain a benefit of $129,781.30 and $22,385 respectively.
In March 2013 Mr Bell created minutes of a purported meeting of the LCETA committee at which Mr Bell resigned as chairman and Mr Fox resigned from LCETA.
In March 2013 Mr Bell caused EYS to issue to Millicent High School invoices for $43,266.96, $39,542.92 and $149,635.42. The prosecution case is that the relevant expenses were in fact incurred by LCETA and not EYS. The issue of the invoices is the subject of counts 24, 25 and 26 in the Information alleging the use of a false document intending to deceive Millicent High School and thereby obtain a benefit of $43,266.96, $39,542.92 and $149,635.42 respectively.
Investigation
On 12 November 2014, following receipt of an internal audit from the Department, the Deputy Commissioner (exercising powers of the Commissioner) assessed the matter as raising a potential issue of corruption in public administration that could be the subject of a prosecution[13] and determined that the matter be investigated by the Commissioner.[14]
[13] Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 23(1)(a) and (2).
[14] Pursuant to the Independent Commissioner Against Corruption Act 2012 (SA) section 24(1)(a).
The investigation was principally undertaken by investigators seconded or appointed by the Commissioner pursuant to section 14 of the Act (investigators). The head investigator was initially Mark Orford, a police officer employed by SAPOL who was seconded by the Commissioner. He was succeeded in November 2017 by Geoffrey Corbett, an investigator employed by the Commissioner.
During the investigation, investigators obtained numerous documents and interviewed and prepared statements by numerous witnesses (including most of the persons referred to in the summary of the prosecution case above) without the exercise of coercive powers. This included an interview of Mr Fox in May 2016.
On 28 April 2016 a Judge of this Court issued, pursuant to subsection 31(2) of the Act, search warrants authorising investigators to search the homes of Mr Bell, Mr Shelton, Mr Fox and Ms Hill.
On 4 May 2016 the Commissioner issued pursuant to subsection 31(1) of the Act search warrants authorising investigators to search the premises of Millicent High School, the Independent Learning Centre and the Community Learning Centre.
On 10 May 2016 investigators executed the search warrant at Mr Bell’s home and seized various documents. In May 2016 the other search warrants were also executed.
On 19 June 2015 the Commissioner, pursuant to section 29A of the Act, authorised Mr Orford to inspect and take copies of financial records of NAB relating to accounts for which Mr Bell was or is a signatory. Mr Orford presumably obtained copies of financial records of the Bank pursuant to the authorisation.
On 9 August 2016 Mr Shelton was examined before the Deputy Commissioner, pursuant to section 29 and Schedule 2 clauses 2 and 3, pursuant to a summons issued under Schedule 2 clause 4 of the Act. A direction was given by the Deputy Commissioner pursuant to Schedule 2 clause 3(9) of the Act in the following terms:
I direct that any evidence given by you or any information that might enable you to be identified as a person who has given evidence before me must not be communicated to any person, except an examiner, investigator or employee of the Independent Commissioner Against Corruption, or to your legal practitioner, or in the course of an examination under the Independent Commissioner Against Corruption Act.
On 19 January 2017 an examiner issued to Mrs Bell a summons to appear for examination under Schedule 2 clause 4 of the Act, which was served on 2 February 2017. The summons contained the following notation under Schedule 2 clause 6(1) of the Act:
Disclosure of information about this summons, or any official matter connected to it, is PROHIBITED, except as prescribed in Schedule 2, Clause 7 of the Act and in the following circumstance:
(a)Information about the summons may be disclosed to your medical practitioner on a confidential basis for the purpose of you obtaining psychological support, if required.
On 16 February 2017 Mrs Bell was examined before the Commissioner. A direction was given by the Commissioner in similar terms to that given to Mr Shelton.
On 14 March 2017 Mr Fox was examined before the Commissioner pursuant to a summons issued under Schedule 2 clause 4 of the Act. A direction was given by the Commissioner in the same terms as that given to Mr Shelton.
On 24 April 2017 the Commissioner varied the directions given to Mr Shelton, Mr Fox and Mrs Bell at their examinations pursuant to Schedule 2 clause 3(11) in a manner that permitted communication of their identity and evidence amongst others to the Director, Emily Telfer SC of the Office of the Director and other staff members at the Office of the Director from time to time nominated by the Director (the April 2017 variations).
On 2 May 2017 the Commissioner forwarded the matter to the Director to determine whether a prosecution should be instituted.
Prosecution
On 9 August 2017 the Director filed the Magistrates Court Information against Mr Bell.
On 11 August 2017 the Commissioner issued to Mr Bell an authorisation (the August 2017 authorisation) authorising him:
(a)to disclose to the South Australian Liberal Party President and Members of Parliament the fact and his involvement in the investigation and the fact and contents of the Magistrates Court Information (under subsection 54(3)); and
(b)to publish to anyone that he had been the subject of a complaint, investigation and a referral under the Act and the fact and contents of the Magistrates Court Information (under section 56).
In a covering letter, the Commissioner invited Mr Bell to request further authorisation if he wished to make broader disclosure.
On 11 August 2017 the Information and the August 2017 authorisation were served on Mr Bell by an investigator.
On 11 September 2017 an investigator filed at the Magistrates Court and served on Mr Bell’s solicitors two discs containing evidentiary material.
On 12 January 2018 a witness statement in the form of an affidavit by Mr Shelton based on his examination was prepared by investigators and affirmed by Mr Shelton.
On 30 April 2018 a witness statement in the form of an affidavit by Mr Fox based on his interview and examination was prepared by investigators and affirmed by Mr Fox.
Between June 2015 and July 2020 witness statements in the form of affidavits by various witnesses were prepared by the investigators and sworn or affirmed by the witnesses.
On 18 June 2018 Mr Bell was committed for trial on all counts in the District Court.
On 16 July 2018 Mr Norman SC of the Office of the Director sent an email to Mr Griffin QC, then senior counsel for Mr Bell. Mr Norman said that Ms Hill had been requested by Mr Bell to meet with Mr Bell and his accountant. Mr Norman said that there was no property in witnesses and no non-contact condition in respect of the witnesses. He said however that it was entirely inappropriate for Mr Bell to be speaking to witnesses directly and any approaches to witnesses should be through the instructing solicitor, it being a matter for Ms Hill whether she met with Mr Bell’s legal representatives. Mr Griffin QC replied, saying that his instructing solicitors would immediately intervene and he would counsel Mr Bell about direct contact.
On 23 July 2018 the Commissioner, pursuant to section 29A of the Act, authorised Mr Corbett to inspect and take copies of financial records of PCCU relating to accounts of SEETA. Mr Corbett presumably obtained copies of financial records of the Bank pursuant to the authorisation. Subsequently, from time to time, further authorisations were issued authorising investigators to inspect and take copies of financial records of NAB, PCCU and Bank SA.
On 9 October 2018 an Information was filed in the District Court. Mr Bell was arraigned and pleaded not guilty.
On 6 November 2018 the Acting Commissioner issued a notice pursuant to subsection 29(2) and Schedule 2 clause 5 of the Act to David Wheaton of Regional Development Australia Limestone Coast (RDALC) requiring him to produce business records relating to SEETA and records relating to invoicing to SEETA for services provided by Ms Shanahan to SEETA. The notice included a notation pursuant to Schedule 2 clause 6 of the Act which stated:
Disclosure of information about this notice, or any official matter connected to it, is PROHIBITED, except as prescribed in Schedule 2, Clause 7 of the Act and in the following circumstances…
The notation went on to allow disclosure to RDALC’s Manager Corporate Services.
On 12 November 2018 Mr Corbett met with Mr Wheaton and received the documents sought in the notice.
In due course, the matter was listed for trial in October 2019. However, that trial date was vacated due to ill-health of Mr Griffin QC and in July 2019, after Mr Bell’s solicitors engaged Mrs Shaw QC, the matter was listed for trial on 6 July 2020.
On 16 December 2019 the Commissioner wrote to Mr Wheaton informing him that the notation on the notice issued in November 2018 had been cancelled by operation of Schedule 2 clause 6(4) of the Act.
On 1 June 2020 Mr Bell filed the application seeking a permanent stay of the criminal proceeding, which was amended on 26 June 2020 (and again on 8 July 2020).
Following the filing of the application, the trial date was vacated and the stay application was listed for argument on 8 July 2020.
On 30 June 2020 the Commissioner revoked the non-communication directions issued to Mr Shelton, Mr Fox and Mrs Bell.
The stay application was heard on 8 to 14 July and 31 July 2020.
On 7 August 2020 the Judge delivered reasons for judgment dismissing the stay application. The matter has not yet been relisted for trial.
Subsequent events
On 11 August 2020 Mr Bell filed an application in the District Court seeking orders excluding all evidence obtained by the Commissioner and investigators or alternatively all such evidence obtained after referral of the matter to the Director on 2 May 2017.
On 28 August 2020 Mr Bell filed a notice of appeal (case 277 of 2020) against the dismissal of the stay application pursuant to permission granted by the Judge.
On 10 September 2020 the Commissioner instituted an action (case 3307 of 2020) against Mr Bell and the Director (the declaration action) seeking declarations that the Commissioner has the powers that Mr Bell contends the Commissioner lacks and that the Commissioner did not act unlawfully.
On 11 September 2020 the Director filed a notice of alternative contention in the appeal contending that the Judge’s dismissal of the stay application should have been based on additional grounds that the Commissioner did not act unlawfully in the various respects found by the Judge.
On 16 October 2020, following an order by this Court requiring the Judge to do so, the Judge reserved questions of law for the consideration of this Court (case 267 of 2020) whether the Commissioner acted unlawfully in the various respects contended by Mr Bell (the reservation proceeding).
The legislative regime
The Act addresses corruption in public administration (corruption) on the one hand[15] and misconduct in public administration and maladministration in public administration (collectively misconduct/maladministration) on the other hand.[16] The Act largely deals with corruption differently to misconduct/maladministration.
[15] Independent Commissioner Against Corruption Act 2012 (SA) section 5(1) and (2).
[16] Independent Commissioner Against Corruption Act 2012 (SA) section 5(3) and (4).
The Act has been substantially amended since it came into force in December 2012. The Act as in force between May and August 2017 is summarised below. For ease of reference the Act in that form is described in the present tense notwithstanding that some provisions have since been amended.
Objects
The primary objects of the Act are addressed by section 3, which provides:
3—Primary objects
(1)The primary objects of this Act are—
(a)     to establish the Independent Commissioner Against Corruption with functions designed to further—
(i)the identification and investigation of corruption in public administration; and
(ii)the prevention or minimisation of corruption, misconduct and maladministration in public administration, including through referral of potential issues, education and evaluation of practices, policies and procedures; and
(b)     to establish the Office for Public Integrity to manage complaints about public administration with a view to—
(i)the identification of corruption, misconduct and maladministration in public administration; and
(ii)ensuring that complaints about public administration are dealt with by the most appropriate person or body; and
(c)     to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministration in public administration and the public interest in avoiding undue prejudice to a person's reputation (recognising that the balance may be weighted differently in relation to corruption in public administration as compared to misconduct or maladministration in public administration).
(2)Whilst any potential issue of corruption, misconduct or maladministration in public administration may be the subject of a complaint or report under this Act and may be assessed and referred to a relevant body in accordance with this Act, it is intended—
(a)     that the primary object of the Commissioner be to investigate corruption in public administration; and
(b)     that matters raising potential issues of misconduct or maladministration in public administration will be referred to an inquiry agency or to a public authority (unless the circumstances set out in section 7(1)(cb) or (cc) apply).
Corruption offences
The Act does not create any corruption offences. Rather it defines “corruption in public administration” essentially to comprise existing offences (corruption offences) being:
·specific existing offences (and ancillary offences) whose subject matter involves public office;[17]
·any other existing offences (and ancillary offences) committed by a past, present or future public officer acting in or related to their capacity as a public officer;[18] or
·any existing offence suspected of being connected with, or part of a course of activity involving, such an offence.[19]
[17] Independent Commissioner Against Corruption Act 2012 (SA) section 5(1)(a), (b) and (ba).
[18] Independent Commissioner Against Corruption Act 2012 (SA) section 5(1)(c).
[19] Independent Commissioner Against Corruption Act 2012 (SA) section 5(2).
Thus subsections 5(1) and (2) provide:
(1)Corruption in public administration means conduct that constitutes—
(a) an offence against Part 7 Division 4 (Offences relating to public officers) of the Criminal Law Consolidation Act 1935, which includes the following offences:
(i)bribery or corruption of public officers;
(ii)threats or reprisals against public officers;
(iii)abuse of public office;
(iv)demanding or requiring benefit on basis of public office;
(v)offences relating to appointment to public office; or
(b)     an offence against the Public Sector (Honesty and Accountability) Act 1995 or the Public Corporations Act 1903, or an attempt to commit such an offence; or
(ba)   an offence against the Lobbyists Act 2015, or an attempt to commit such an offence; or
(c) any other offence (including an offence against Part 5 (Offences of dishonesty) of the Criminal Law Consolidation Act 1935) committed by a public officer while acting in his or her capacity as a public officer or by a former public officer and related to his or her former capacity as a public officer, or by a person before becoming a public officer and related to his or her capacity as a public officer, or an attempt to commit such an offence; or
(d)     any of the following in relation to an offence referred to in a preceding paragraph:
(i)aiding, abetting, counselling or procuring the commission of the offence;
(ii)inducing, whether by threats or promises or otherwise, the commission of the offence;
(iii)being in any way, directly or indirectly, knowingly concerned in, or party to, the commission of the offence;
(iv)conspiring with others to effect the commission of the offence.
(2)If the Commissioner suspects that an offence that is not corruption in public administration (an incidental offence) may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of corruption in public administration (whether or not the Commissioner has identified the nature of that corruption), then the incidental offence is, for so long only as the Commissioner so suspects, taken for the purposes of this Act to be corruption in public administration.

A “public officer” is defined by subsection 4(1) to be a person listed in the first column of the table in Schedule 1. This includes members of the legislature, executive and judiciary, police officers, Public Service employees and various other persons.
Primary objects and functions of Commissioner
The Act creates the office of the Commissioner (and Acting Commissioner)[20] and allocates the primary responsibility for the investigation or assignment of the investigation of potential corruption offences, and insofar as addressed by the Act referral for prosecution, to the Commissioner.[21] Before the enactment of the Act, the primary responsibility for the investigation of offences defined by the Act to be corruption offences was that of the South Australian Police (SAPOL).
[20] Independent Commissioner Against Corruption Act 2012 (SA) sections 8 and 11.
[21] Independent Commissioner Against Corruption Act 2012 (SA) sections 7, 23, 24, 26 to 32, 43, 56A, Schedule 2 and Schedule 3.
Subsection 3(2) provides that the primary object of the Commissioner is to investigate corruption and ordinarily potential issues of misconduct/maladministration will be referred to an inquiry agency or public authority.
The functions of the Commissioner insofar as they relate to corruption offences are set out in section 7(1)(a) of the Act in the following terms:
7—Functions
(1)There is to be an Independent Commissioner Against Corruption with the following functions:
(a) to identify corruption in public administration and to—
(i)investigate and refer it for prosecution; or
(ii)refer it to a law enforcement agency for investigation and prosecution;
The Act gives to the Commissioner an extensive apparatus to perform the Commissioner’s functions, including those functions that involve potential corruption offences. That apparatus includes:
(a)a Deputy Commissioner responsible for assisting the Commissioner as directed by the Commissioner;[22]
(b)employees engaged by the Commissioner[23] and Public Service staff members used under an arrangement with the Minister responsible for the administrative unit in which those staff members are engaged;[24]
(c)police officers used under an arrangement with the Commissioner of Police;[25]
(d)staff of the Office of the Director under an arrangement with the Director;[26]
(e)persons appointed and police officers seconded by the Commissioner as investigators;[27]
(f)persons appointed by the Commissioner as examiners;[28]
(g)legal practitioners appointed to assist as counsel in relation to an investigation;[29]
(h)requesting the Auditor-General to conduct an examination of accounts under the Public Finance and Audit Act 1987 (SA);[30] and
(i)requiring a South Australian law enforcement agency or inquiry agency to conduct a joint investigation with the Commissioner in respect of a particular matter.[31]
[22] Independent Commissioner Against Corruption Act 2012 (SA) section 9.
[23] Independent Commissioner Against Corruption Act 2012 (SA) section 12.
[24] Independent Commissioner Against Corruption Act 2012 (SA) section 13(1).
[25] Independent Commissioner Against Corruption Act 2012 (SA) section 13(2).
[26] Independent Commissioner Against Corruption Act 2012 (SA) section 13(3).
[27] Independent Commissioner Against Corruption Act 2012 (SA) section 14(1) and (4).
[28] Independent Commissioner Against Corruption Act 2012 (SA) section 14(1).
[29] Independent Commissioner Against Corruption Act 2012 (SA) section 27(2)(b).
[30] Independent Commissioner Against Corruption Act 2012 (SA) section 39.
[31] Independent Commissioner Against Corruption Act 2012 (SA) section 34(1).
A South Australian “law enforcement agency” means SAPOL, the Police Ombudsman or a South Australian Royal Commission.[32] An inquiry agency means the Ombudsman.[33] A “law enforcement agency” is defined more generally to include corruption/integrity commissions of other States; police forces of other States, the Territories and the Commonwealth; Royal Commissions of other States, the Territories and the Commonwealth; and the Australian Crime Commission and Australian Commission for Law Enforcement Integrity.
[32] Independent Commissioner Against Corruption Act 2012 (SA) section 4(1). It would also include a South Australian person or body declared by regulation to be a law enforcement agency, but no South Australian person or body has been declared by the Independent Commissioner Against Corruption Regulations 2013 (SA).
[33] Independent Commissioner Against Corruption Act 2012 (SA) section 4(1). It would also include a South Australian person or body declared by regulation to be an inquiry agency, but no South Australian person or body has been declared by the Independent Commissioner Against Corruption Regulations 2013 (SA).
The Act gives to the Commissioner, investigators and examiners compulsive powers to perform the Commissioner’s functions, including those functions that involve potential corruption offences. Those compulsive powers include:
(a)the power of an investigator to require, for the purposes of an investigation into corruption, an inquiry agency, public authority or public officer to produce a written statement of information about a specified matter or to answer specified questions, verified if required by statutory declaration;[34]
(b)the power of an examiner to issue a summons to a person to appear at an examination to give evidence and produce documents for the purposes of an investigation into corruption;[35]
(d)the power of an examiner to conduct an examination of a person for the purposes of an investigation into corruption, including regulating the conduct of proceedings at the examination, requiring the person to take an oath or make an affirmation, requiring the person to answer a question and requiring the person to produce a document or thing;[36]
(e)the power of an examiner to require a person to attend before an examiner or member of the Commissioner’s staff to produce a specified document or thing relevant to an investigation into corruption;[37]
(e)the power of the Commissioner to authorise an investigator to inspect and take copies of financial records and the power of the investigator to so act;[38]
(f)the power of the Commissioner to issue a warrant authorising an investigator or police officer to enter and search a place or vehicle of an inquiry agency, public authority or public officer reasonably required for the purposes of an investigation into a potential issue of corruption and the power of the investigator or police officer to execute the warrant;[39]
(g)the power of an investigator to apply to a Judge of the Supreme Court to issue a warrant authorising an investigator or police officer to enter and search a place or vehicle reasonably required for the purposes of an investigation into a potential issue of corruption and the power of the investigator or police officer to execute the warrant;[40]
(h)the power of the Commissioner by written notice to require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action in respect of a particular matter being investigated by the Commissioner;[41] and
(i)the power of an investigator to apply to the Supreme Court for an injunction restraining a person from engaging in conduct the subject of, or affecting the subject matter of, an investigation by the Commissioner.[42]
[34] Independent Commissioner Against Corruption Act 2012 (SA) section 28.
[35] Independent Commissioner Against Corruption Act 2012 (SA) section 29 and Schedule 2 clauses 4, 5, 8 and 12.
[36] Independent Commissioner Against Corruption Act 2012 (SA) section 29 and Schedule 2 clauses 2, 3, 4, 5, 8 and 12.
[37] Independent Commissioner Against Corruption Act 2012 (SA) section 29(2) and Schedule 2 clause 5, 8 and 12.
[38] Independent Commissioner Against Corruption Act 2012 (SA) section 29A.
[39] Independent Commissioner Against Corruption Act 2012 (SA) section 31(1), (4), (7), (9) and (10).
[40] Independent Commissioner Against Corruption Act 2012 (SA) section 31(2), (3), (4), (7), (9) and (10).
[41] Independent Commissioner Against Corruption Act 2012 (SA) section 34.
[42] Independent Commissioner Against Corruption Act 2012 (SA) section 35.
Misconduct and maladministration
Subsections 5(3) and (4) of the Act define misconduct and maladministration in the following terms:
(3)Misconduct in public administration means—
(a)     contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or
(b)     other misconduct of a public officer while acting in his or her capacity as a public officer.
(4)Maladministration in public administration—
(a)     means—
(i)conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or
(ii)conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and
(b)     includes conduct resulting from impropriety, incompetence or negligence; and
(c)     is to be assessed having regard to relevant statutory provisions and administrative instructions and directions.
Misconduct and maladministration may or may not amount to an offence. If they do amount to an offence, it will usually not be a corruption offence.
The Act proceeds on the basis that ordinarily the investigation of misconduct/maladministration will be undertaken by an inquiry agency (the Ombudsman) or the relevant public authority.[43]
[43] Independent Commissioner Against Corruption Act 2012 (SA) sections 7, 24, 37 and 38.
In November 2014, the Act was amended to insert section 24(2)(ab) to enable the Commissioner to exercise the powers of an inquiry agency in respect of a matter assessed as raising a potential issue of misconduct/maladministration.[44]
[44] Independent Commissioner Against Corruption Act 2012 (SA) section 24(2)(ab).
In November 2016, the Act was amended:
·to add to subsection 7(1) functions of identifying serious or systemic misconduct or maladministration or misconduct and (if satisfied it is in the public interest or that it may be dealt with in connection with any investigation into corruption or maladministration respectively) exercising the powers of an inquiry agency in dealing with serious or systemic maladministration or misconduct;[45]
·to add to subsection 24(2) alternatives of the Commissioner exercising the powers of an inquiry agency in respect of a potential issue of serious or systemic misconduct or maladministration (if satisfied of the same matters as are referred to in subsection 7(1)).[46]
[45] Independent Commissioner Against Corruption Act 2012 (SA) section 7(1)(ca), (cb) and (cc).
[46] Independent Commissioner Against Corruption Act 2012 (SA) section 24(2)(b) and (c).
The functions of the Commissioner in relation to misconduct/maladministration are set out in section 7(1)(b) to (cc) of the Act, which are reproduced at [143] below.
The Commissioner also has preventative/minimisation functions in relation to both corruption and misconduct/maladministration as set out in section 7(1)(d) and (e) of the Act, which are also reproduced below.
Triaging
Section 17 of the Act creates the Office for Public Integrity (the Office). It confers upon the Office functions, including receiving and assessing complaints and reports about public administration and referring them to other bodies in circumstances approved by the Commissioner or making recommendations to the Commissioner in relation to them. Subsection 18(1) makes the Office responsible to the Commissioner.
Subsection 23(1) requires the Office to assess a complaint or report as raising a potential issue of corruption that could be the subject of a prosecution; raising a potential issue of misconduct/maladministration; raising some other issue that should be referred to an inquiry agency, public authority or public officer; or that no action should be taken in respect of it. Subsections 23(1) and (2) empower the Commissioner to undertake the assessment and effectively render the Office subservient to the Commissioner in relation to assessments. Subsection 24(7) empowers the Commissioner to modify an assessment in the course of dealing with a matter.
Section 24 requires a matter to be dealt with depending on the result of the assessment. Subsections 24(1) to (3) provide:
24—Action that may be taken
(1)If a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the matter must be—
(a)     investigated by the Commissioner; or
(b)     referred to South Australia Police, the Police Ombudsman (if the issue concerns a police officer or special constable) or other law enforcement agency.
(2)If a matter is assessed as raising a potential issue of misconduct or maladministration in public administration, the matter must be dealt with in 1 or more of the following ways:
(a)     the matter may be referred to an inquiry agency;
(b)     in the case of a matter raising potential issues of serious or systemic maladministration in public administration—the Commissioner may exercise the powers of an inquiry agency in dealing with the matter if satisfied that it is in the public interest to do so;
(c)     in the case of a matter raising potential issues of serious or systemic misconduct in public administration—the Commissioner may exercise the powers of an inquiry agency in dealing with the matter if the Commissioner is satisfied that the matter must be dealt with in connection with a matter the subject of an investigation of a kind referred to in subsection (1)(a) or a matter being dealt with in accordance with paragraph (b);
(d)     the matter may be referred to a public authority and directions or guidance may be given to the authority in respect of the matter.
(3)If a matter is assessed as raising other issues that should be dealt with by an inquiry agency, public authority or public officer, the matter must be referred, or the complainant or reporting agency advised to refer the matter, to the agency, authority or officer.
Section 27 requires the Commissioner to oversee any investigation of corruption and provides that the Commissioner may head the investigation or appoint the Deputy Commissioner or an examiner to head it and report to the Commissioner.
Section 36 applies when the Commissioner is conducting or has completed an investigation of either corruption or misconduct/maladministration. Subsections 36(1) and (2) provide:
36—Prosecutions and disciplinary action
(1)On completing an investigation or at any time during an investigation (whether relating to a potential issue of corruption in public administration or of misconduct or maladministration in public administration), the Commissioner may do either or both of the following:
(a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;
(b) refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.
(2)The Commissioner may disclose to the relevant law enforcement agency or public authority any evidence or information that the Commissioner has in respect of the matter.
The balance of section 36 addresses referral to a public authority under section 36(1)(b).
Section 43 provides that the Commissioner, the Deputy Commissioner, an examiner or investigator may perform functions or exercise powers in respect of a matter despite referral for prosecution or investigation and prosecution or institution of proceedings. It provides:
43—Referral of matter etc does not limit performance of functions
The Commissioner, the Deputy Commissioner, an examiner or an investigator may perform functions or exercise powers in respect of a particular matter despite the referral of the matter for prosecution or investigation and prosecution, the institution of any proceedings before a judicial body or the charging of a person with an offence (but in such a case the Commissioner, Deputy Commissioner, examiner or investigator must endeavour to avoid, as far as practicable, prejudice to any person affected by the referral or proceedings or who is charged with the offence).
Section 56A provides for the use of evidence and information obtained by the lawful exercise of powers in relation to suspected corruption or misconduct/maladministration. It provides:
56A—Use of evidence or information
(1)Subject to this Act (but despite any other Act or law) evidence or information obtained (whether before or after the commencement of this section) by the lawful exercise of powers in relation to suspected corruption, misconduct or maladministration in public administration—
(a)     may be used for the purposes of any other investigation in relation to suspected corruption, misconduct or maladministration in public administration; and
(b)     may be provided to, and may be received and used by—
(i)law enforcement agencies and prosecution authorities for the purposes of any criminal investigation or proceedings or proceedings for the imposition of a penalty; and
(ii)public authorities for the purposes of any disciplinary investigation or action in relation to suspected corruption, misconduct or maladministration in public administration,
whether the investigation, proceedings or action relate to, or arise from, the same matter or a different matter; and
(c)     is not inadmissible in proceedings before a court merely because the evidence or information was not obtained for the purposes of those proceedings.
(1a)For the purposes of subsection (1), evidence or information will be taken to be obtained by a lawful exercise of powers in relation to suspected corruption, misconduct or maladministration in public administration notwithstanding a jurisdictional error in the exercise of those powers.
(2)No civil or criminal liability lies against a person in respect of any use of evidence or information permitted by this section.
Confidentiality
Non-communication and non-disclosure directions
Schedule 2 clause 3(9) empowers an examiner to give a direction (a non-communication direction) that certain information in relation to an examination under clause 3 not be communicated to any person subject to specified exceptions. Subclause (10) provides that a non-communication direction must be given if:
·the safety or reputation of a person; or
·the fair trial of a person charged with an offence,
might otherwise be prejudiced.
Subclauses (9) and (10) provide:
(9)An examiner may direct that—
(a)     any evidence given before the examiner; or
(b)     the contents of any document, or a description of any thing, produced to the examiner; or
(c)     any information that might enable a person who has given evidence before the examiner to be identified; or
(d)     the fact that any person has given or may be about to give evidence at an examination,
must not be communicated or provided to any person, or must not be communicated or provided except in such manner, and to such persons, as the examiner specifies.
(10)The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
Schedule 2 clause 3(11) and (12) empower the Commissioner to revoke or vary a non-communication direction, subject to the same constraint as to prejudice.

Schedule 2 clause 3(13) and (14) provide that, when a non-communication direction has been given in respect of evidence given before an examiner, a court in which a person has been charged with an offence may require the examiner or the Commissioner to make the evidence available to the court and, if the interests of justice so require, empower the court to make the evidence available to the defendant or their lawyer.
Schedule 2 clause 6(1) and (2) empower an examiner issuing a summons under clause 4 or notice under clause 5 to give a direction (a non-disclosure notation) that disclosure of information about the summons or notice or any official matter connected with it is prohibited except in specified circumstances[47] if:
·the safety or reputation of a person; or
·the fair trial of a person charged with an offence; or
·the effectiveness of an investigation,
might otherwise be prejudiced.
[47] Any circumstance specified by the examiner in addition to the circumstances set out in subclause 7(2), which include disclosure to a lawyer for the purpose of obtaining legal advice or representation.
Subclause 6(2)(a) provides that a non-disclosure notation must be given if:
·the safety or reputation of a person; or
·the fair trial of a person charged with an offence; or
·the effectiveness of an investigation,
would reasonably be expected otherwise to be prejudiced.
Subclause 6(4) provides that a non-disclosure notation is automatically cancelled after the investigation concerned has been concluded if, amongst other things, evidence of an offence or offences committed by only one person has been assembled and criminal proceedings have begun against that person. Subclause 6(5) requires the Commissioner, upon such cancellation of a notation, to serve written notice of that fact on each person served with or given the summons or notice containing the notation.
It is an offence under clause 7 to make a disclosure in contravention of a non-disclosure notation but subclause 7(5) provides that clause 7 does not apply to a summons or notice after a non-disclosure notation is cancelled by subclause 6(4) or five years have elapsed after its issue.
Publication
Section 56(b) to (e) are for the protection of informants and persons giving information or evidence under the Act. They prohibit publication of the fact that a person has made or given, or may be about to make or give, a complaint or report or information or evidence under the Act or of information that might enable such a person to be identified or located.
Section 56(a) is for the protection of persons the subject of complaints or investigations under the Act. It prohibits publication of information tending to suggest that a particular person has been or may have been or may be the subject of a complaint, report, assessment, investigation or referral under the Act.
Section 56(f) empowers the Commissioner to prohibit publication of any other information or evidence.
Each of these provisions is subject to authorisation of publication by the Commissioner (or by a court hearing a proceeding for an offence against the Act).
Privacy
Schedule 2 subclauses 3(3) to (5) provide that an examination by an examiner is to be held in private and no person may be present other than the examiner, a member of the Commissioner’s staff approved by the examiner, the person giving evidence, that person’s lawyer or any other person permitted to be present and their lawyer.
Subsection 55(1) requires an application to the Court for a warrant or injunction, a proceeding for contempt or another proceeding under the Act (other than a proceeding for an offence) to be heard in private. This is subject, however, to an order of the court or judicial officer concerned to the contrary.
Confidentiality
Subsections 54(1) and (2) impose confidentiality obligations on persons engaged in the administration of the Act. They provide:
54—Confidentiality
(1)Except as required or authorised by this Act or by the Commissioner, a person who is or has been engaged in the administration of this Act must not, directly or indirectly, disclose information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment, investigation, referral or evaluation under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2)Despite subsection (1), a person engaged in the administration of this Act may disclose information—
(a)     for the purposes of the administration or enforcement of this Act; or
(b)     for the purposes of referring a matter in accordance with this Act to a law enforcement agency, inquiry agency, public authority or public officer; or
(c)     for the purposes of a criminal proceeding or a proceeding for the imposition of a penalty; or
(d)     for the performance of the functions of the Office or the Commissioner under another Act; or
(e)     as otherwise required or authorised by this or another Act.
Subsection 54(3) imposes derivative confidentiality obligations on persons receiving information knowing it to be connected with a matter forming or subject of a complaint, report, assessment, investigation, referral or evaluation under the Act. It provides:
(3)A person who receives information knowing that the information is connected with a matter that forms or is the subject of a complaint, report, assessment, investigation, referral or evaluation under this Act must not disclose that information unless—
(a)     the person is authorised in writing by the Commissioner or by a person approved by the Commissioner under this section to give an authorisation; or
(b)     the disclosure of that information is for the purpose of—
(i)dealing with a matter referred under this Act by the Commissioner or the Office; or
(ii)a criminal proceeding, a proceeding for the imposition of a penalty or disciplinary action; or
(iii)a person obtaining legal advice or legal representation or for the purposes of determining whether a person is entitled to an indemnity for legal costs; or
(iv)a person obtaining medical or psychological assistance from a medical practitioner or psychologist; or
(c)     the information relates to the person and is disclosed by the person to a close family member of the person.
Maximum penalty: $2 500 or imprisonment for 6 months.
Offences created by the Act
The Act creates offences of:
(a)failing to comply with a direction of an investigator or examiner or notice or summons issued by an examiner;[48]
(b)making a false or misleading complaint, report, statement of information or giving false evidence at an examination;[49] hindering or obstructing a complaint, report, investigation or examination;[50] and victimisation of a person making a complaint or report;[51] and
(c)disclosing information in breach of the section 54 confidentiality obligation or a Schedule 2 clause 6 non-disclosure obligation;[52] publishing information in breach of the section 56 publication obligation;[53] attending an examination in contravention of Schedule 2 clause 3(5);[54] and prematurely accessing a sealed document subject of a privilege claim on execution of a search warrant.[55]
[48] Section 33(1)(a), (c), Schedule 2 clause 3(15)(b), clause 5(5), clause 8(1), (2), (3).
[49] Section 22, 33(1)(b), Schedule 2 clause 10.
[50] Section 21, 33(1)(d), (e), Schedule 2 clause 19.
[51] Section 57(6).
[52] Section 54(1) and (3), Schedule 2 clause 7(1), (3).
[53] Section 56.
[54] Schedule 2 clause 3(15)(a).
[55] Schedule 3 clause 4(6) and (7).
The hearing of the stay application
Mr Bell tendered eight affidavits by his solicitor Joseph Henderson which exhibited documents principally generated by the Commissioner’s office obtained by Mr Bell via disclosure by the Director or on subpoena. Mr Bell also tendered the transcripts of the examinations of Mr Shelton, Mr Fox and Mrs Bell and the Commissioner’s August 2017 authorisation to Mr Bell.
The Director tendered an affidavit by Keryn Park, the solicitor in the Director’s Office having the conduct of the prosecution of Mr Bell. Ms Park principally deposed to and exhibited documents relating to disclosure made by the prosecution.
The Judge’s reasons
The Judge upheld Mr Bell’s ground 4 contention that, on the proper construction of the Act, the Commissioner had no power to refer a matter for prosecution to the Director and acted unlawfully in doing so in May 2017. This was principally because the Judge held that the only source of power to refer for prosecution was contained in section 36(1)(a) and that section 7(1)(a)(i) does not confer such a power because section 7 only addresses functions and not powers. This conclusion largely informed the Judge’s construction of the Act in relation to the remaining issues.
The Judge did not decide Mr Bell’s ground 3 contention that, on the proper construction of the Act, the Commissioner had no power to provide information and evidence obtained during a corruption investigation to the Director for the purposes of a potential prosecution for a corruption offence and acted unlawfully in doing so in May 2017. The Judge held that section 56A enables the Commissioner to provide information and evidence obtained during a corruption investigation directly to the Director for the purpose of a criminal proceeding involving corruption offences but it was “questionable” whether information and evidence provided in May 2017 was provided for the purpose of a “criminal proceeding” within the meaning of section 56A because charges were not laid until August 2017.
In relation specifically to the transcripts of the examinations of Mr Shelton, Mr Fox and Mrs Bell, as noted above the Judge did not decide whether section 56A enables the Commissioner to provide evidence obtained during a corruption investigation to the Director. In relation to other provisions, the Judge held that:
(a)a variation of a non-communication direction under Schedule 2 clause 3(11) to permit disclosure was lawful if there was power under section 56A to provide the evidence to the Director for the purpose of a criminal proceeding (which the Judge did not decide); and
(b)subsection 54(2) does not permit the Commissioner to provide examination transcripts to the Director because that subsection only applies to information and not evidence and because it is subservient to a non-communication direction under Schedule 2 clause 3(9).
The Judge mostly upheld Mr Bell’s ground 2 contentions (as argued rather than as formulated) that various conduct by the Commissioner after the Magistrates Court Information was filed in August 2017 (post-charge conduct) was beyond power and the Commissioner acted unlawfully in engaging in that conduct. These conclusions were largely informed by the Judge’s construction of the Act that the Commissioner had no power to refer a matter for prosecution to the Director. The Judge:
(a)held that the August 2017 authorisation by the Commissioner to Mr Bell to disclose information was contrary to section 43 because it could not be characterised as an endeavour to avoid, as far as practicable, prejudice to Mr Bell as required by section 43 of the Act;[56]
(b)did not decide whether investigators had power to serve the Magistrates Court Information on Mr Bell;[57]
(c)held that the Commissioner should in August 2017, upon the laying of the Magistrates Court Information, have exercised the power under Schedule 2 clause 3(11) to revoke the non-communication directions given to Mr Shelton, Mr Fox and Mrs Bell but failed to do so until June 2020;
(d)held that the Commissioner should in August 2017 upon the laying of the Magistrates Court Information have served a written notice on Mrs Bell under Schedule 2 clause 6(5) informing her that the non-disclosure notation included in the summons to her had been cancelled by operation of clause 6(4) but failed to do so;
(e)held that the Director had not established that the Acting Commissioner had the requisite basis under Schedule 2 clause 6(2) to include a notation on the summons issued to Mr Wheaton;[58]
(f)held that filing by investigators of evidentiary material in the Magistrates Court and District Court was outside the functions of the Commissioner;[59]
(g)held that the authorisation by the Commissioner to inspect and copy, and the inspection and copying of financial records by the investigators, under section 29A of the Act was unlawful because the powers were exercised to assist the prosecution of Mr Bell rather than for the purpose of investigation;
(h)held that investigators did not have power after the laying of the Magistrates Court Information to contact witnesses, prepare witness statements, arrange proofing sessions, attend proofing sessions or follow up reluctant witnesses; and
(i)considered that investigators’ communications may have led the witnesses to be left with the impression that they were bound by confidentiality under the Act.
[56] This was not one of the grounds in the application for a permanent stay but was advanced during argument on the application.
[57] This was not one of the grounds in the application for a permanent stay but was advanced during argument on the application.
[58] This was not one of the grounds in the application for a permanent stay but was advanced during argument on the application.
[59] This was not one of the grounds in the application for a permanent stay but was advanced during argument on the application.
The Judge rejected Mr Bell’s ground 1 contention that the unlawful conduct of the Commissioner and the investigators found by the Judge justified or required the grant of a permanent stay of the criminal proceeding. The Judge:
(a)found that there was no evidence of actual prejudice to Mr Bell in terms of communications between the applicant or his lawyers on the one hand and prosecution witnesses on the other or in terms of documents obtained by the Commissioner and provided to the Director;
(b)found that other means were available to redress any forensic disadvantage to Mr Bell or forensic advantage to the prosecution as a result of the unlawful conduct found by the Judge, including allowing sufficient time for the defence to have an opportunity to seek to speak to prosecution witnesses;
(c)concluded that Mr Bell had not suffered a forensic disadvantage, nor had the prosecution obtained a forensic advantage, which warranted a permanent stay of the criminal proceeding on the basis that any trial would be irretrievably unfair; and
(d)concluded that the unlawful conduct found by the Judge was not such that allowing the prosecution of Mr Bell to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.
The hearing in this Court
The Court received three affidavits tendered by the Commissioner. These were affidavits by Mr Orford and Mr Corbett and by Andrew Baker, who is employed by the Commissioner as Director of Investigations.
Referral of matter for prosecution by Commissioner to Director
Ground 4 of the stay application was that the Commissioner had no power to refer the matter directly to the Director in May 2017. The Judge upheld this contention.
The Director submitted to the Judge that the capacity of the Commissioner to refer a matter for prosecution to the Director is conferred by section 7(1)(a)(i). The Director further submitted that it is not necessary for the Act to confer a specific power on the Commissioner to refer a matter to the Director because any person or entity has the capacity to do so.
The Judge rejected these contentions. The Judge considered that subsection 36(1) exclusively confers on the Commissioner a power of referral for prosecution and confines that power to referral of a matter to the relevant law enforcement agency for eventual prosecution. The Judge considered that the Act draws a distinction between the mere conferral of functions, addressed by section 7, and the conferral of powers such as are addressed by section 36. The conferral of a function by section 7(1)(a)(i) to refer a matter for prosecution is insufficient to confer a power to do so: the power to do so is exclusively conferred by section 36.
As the Judge recognised, resolution of this issue turns primarily on the construction of sections 7(1)(a) and 36(1)(a). Those provisions are to be construed by reference to their text; by reference to their context within sections 7 and 36 respectively, their context vis a vis each other, their context within the Act as a whole, and their context more generally; and their evident purpose.
Section 7 provides:
7—Functions
(1)There is to be an Independent Commissioner Against Corruption with the following functions:
(a)     to identify corruption in public administration and to—
(i)investigate and refer it for prosecution; or
(ii)refer it to a law enforcement agency for investigation and prosecution;
(b)     to assist inquiry agencies and public authorities to identify and deal with misconduct and maladministration in public administration;
(c)     to refer complaints and reports to inquiry agencies, public authorities and public officers and to give directions or guidance to public authorities in dealing with misconduct and maladministration in public administration, as the Commissioner considers appropriate;
(ca)   to identify serious or systemic misconduct or maladministration in public administration;
(cb)   to exercise the powers of an inquiry agency in dealing with serious or systemic maladministration in public administration if satisfied that it is in the public interest to do so;
(cc)   to exercise the powers of an inquiry agency in dealing with serious or systemic misconduct in public administration if the Commissioner is satisfied that the matter must be dealt with in connection with a matter the subject of an investigation of a kind referred to in paragraph (a)(i) or a matter being dealt with in accordance with paragraph (cb);
(d)     to evaluate the practices, policies and procedures of inquiry agencies and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration;
(e)     to conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption, misconduct and maladministration in public administration;
(f)     to perform other functions conferred on the Commissioner by this or any other Act.
(2)The Commissioner is not subject to the direction of any person in relation to any matter, including—
(a)     the manner in which functions are carried out or powers exercised under this or any other Act; and
(b)     the priority that the Commissioner gives to a particular matter in carrying out functions under this or any other Act.
(3)The Attorney‑General may request the Commissioner to review a legislative scheme related to public administration and to make recommendations to the Attorney‑General for the amendment or repeal of the scheme.
(4)The Commissioner is to perform his or her functions in a manner that—
(a)     is as open and accountable as is practicable, while recognising, in particular, that—
(i)examinations relating to corruption in public administration must be conducted in private; and
(ii)other Acts will govern processes connected with how misconduct and maladministration in public administration is dealt with; and
(b)     deals as expeditiously as is practicable with allegations of corruption in public administration; and
(c)     as far as is practicable, deals with any allegation against a Member of Parliament or member of a council established under the Local Government Act 1999 before the expiry of his or her current term of office.
(5)For the purposes of exercising his or her functions under subsection (1)(d) or (e), or for reviewing a legislative scheme under subsection (3), the Commissioner—
(a)     may conduct a public inquiry; and
(b)     may regulate the conduct of the inquiry as the Commissioner thinks fit,
(and, for the avoidance of doubt, the inquiry will not be a proceeding for the purposes of section 55).

Mr Bell’s contention must be rejected.
First, the Commissioner necessarily has such incidental powers as are necessary for the Commissioner to perform the functions conferred by the Act. Such incidental powers include the capacity to enter into contracts and the capacity to institute or defend legal proceedings. For example, although it is an offence to impersonate a Commissioner (under section 53), the Commissioner would have the capacity to seek an injunction to restrain a person impersonating the Commissioner if that were necessary for the performance of the Commissioner’s functions. Similarly, the Commissioner would have the capacity to seek an injunction to restrain a member of staff from breaching confidentiality provisions. Similarly, the Commissioner would have the capacity to institute a proceeding against a staff member in respect of an employment dispute.
Section 35 of the Act provides that the Supreme Court may, on application by the Commissioner, grant an injunction restraining a person from engaging in conduct the subject of an investigation by the Commissioner. Schedule 2 clauses 9, 13 and 18 provide that the Supreme Court may, on application by an examiner, issue a warrant for the arrest of a witness, deal with a witness who is in contempt of the Commissioner and order delivery up of a witness’ passport respectively. Each of these provisions assumes that the Commissioner and an examiner have the capacity to institute a legal proceeding but the Act does not expressly confer that capacity. There is no basis to construe these provisions as providing exclusively for the circumstances in which the Commissioner may institute legal proceedings.
It is clear that the Commissioner can be sued. Judicial review proceedings, for example, have been instituted against the Commissioner and heard and determined by this Court.[103] If sued, the Commissioner would have the capacity to bring a counterclaim against the applicant.
[103] See A v C [2015] SASCFC 105 and Cv Independent Commission Against Corruption [2020] SASCFC 57.
Secondly, section 5(1)(a) of the Crown Proceedings Act 1992 (SA) provides:
5—Proceedings by and against the Crown generally
(1)Subject to this Act and any other Act of the State, the Judiciary Act 1903 of the Commonwealth, and any relevant rules of court—
(a) proceedings may be brought and conducted by or against the Crown in the same way as proceedings between subjects;
Subsection 4(1) defines the “Crown” in the following non-exhaustive terms:
Crown includes—
(a)a Minister, instrumentality or agency of the Crown;
(b)a body or person declared by the regulations to be an instrumentality or agency of the Crown for the purposes of this Act;
An “instrumentality of the Crown” is a body or person that is:
empowered to, and does, carry out a government purpose or activity. It does not have to be a servant or agent of the Crown to do that.[104]
[104] Corporation of the City of Unley v South Australia (1997) 68 SASR 511 at 525 per Matheson J (with whom Doyle CJ and Olsson J agreed). See also Re Anti-Cancer Council (Victoria), Ex parte The State Public Services Federation (1992) 175 CLR 442 at 448 per Mason CJ, Brennan and Gaudron JJ.
The Commissioner’s functions are to carry out a government purpose. The investigation of corruption offences and serious or systemic misconduct/maladministration; referral of corruption offences for prosecution; referral of complaints and reports to inquiry agencies, public authorities and public officers; evaluation of practices and policies of inquiry agencies and public authorities; and assistance to inquiry agencies and public authorities in identifying and dealing with misconduct/maladministration involve carrying out a government purpose. The Commissioner in fact carries out a government purpose. The Commissioner is an instrumentality of the Crown, entitled by section 5(1)(a) to institute proceedings.
The Commissioner had the capacity to institute the declaration action.
Jurisdiction
Mr Bell contends that this Court has no jurisdiction to hear and determine the declaration action because there is no justiciable controversy between the Commissioner and Mr Bell.
Mr Bell cites High Court authorities in support of the proposition that the exercise of federal jurisdiction and federal judicial power under Chapter III of the Constitution require the existence of a matter, which in turn requires the existence of a justiciable controversy between the parties.[105]
[105] Abebe v The Commonwealth [1999] HCA 14, (1999) 197 CLR 510 at [31] per Gleeson CJ and McHugh J; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited [2000] HCA 11, (2000) 200 CLR 591 at [46] per Gaudron J; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16, (2002) 209 CLR 372 at [63] per Gaudron and Gummow JJ and [285] per Hayne J.
Mr Bell contends that the same requirement applies to the exercise of State jurisdiction and State judicial power. Mr Bell identifies no principled reason why the case law relating to the concepts of federal jurisdiction and federal judicial power derived from the text of the Constitution has any application to the jurisdiction of this Court as a State court. Nor does Mr Bell cite any authority in which those federal concepts have been applied to a State court (or to the English courts in respect of which like the jurisdiction is invested in this Court by section 17 of the Supreme Court Act 1935 (SA)).
In JN Taylor Holdings Ltd (in liquidation) v Bond,[106] this Court held that there is no jurisdictional limit to the power of the Court to grant declaratory relief and judicial statements concerning limitations on declaratory relief go to the exercise of the discretion rather than jurisdiction. King CJ (with whom Prior and Perry JJ agreed) said:
Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction. It is not necessary that the plaintiff have a cause of action against the defendant…
I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court’s power to grant such relief is “only limited by its own discretion” and the boundaries of judicial power.[107]
[106] (1993) 59 SASR 432.
[107] At 435, 436. (Citations omitted).
Mr Bell contended that the Commissioner acted beyond power and unlawfully in providing evidentiary material to the Director upon a purported referral for prosecution in May 2017 and in taking steps after the prosecution commenced in August 2017 that Mr Bell contends relate to the prosecution. If Mr Bell’s contentions are correct, the Commissioner is exposed to a potential civil action by Mr Bell in tort. Potential torts that Mr Bell might seek to invoke include malicious prosecution;[108] abuse of process of the court[109] and misfeasance in public office.[110] In addition to establishing that the Commissioner acted unlawfully, Mr Bell would need to establish other elements of each of these torts, which would be problematic. However, Mr Bell’s allegations against the Commissioner entail that there is a real and important controversy between Mr Bell and the Commissioner.
[108] A v New South Wales [2007] HCA 10, (2007) 230 CLR 500 at [1] per Gleeson CJ, Gummow, Kirby, Hayne Heydon and Crennan JJ.
[109] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, (2006) 226 CLR 256 at [3] per Gleeson CJ, Gummow, Hayne and Crennan JJ.
[110] Northern Territory v Mengel (1995) 185 CLR 307 at 345-348 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ.
This Court has jurisdiction to hear and determine the declaration action.
Standing
In Onus v Alcoa of Australia Ltd,[111] Gibbs CJ (Stephen J and Mason J relevantly agreeing) said:
The principle which has been settled by the courts …was recently stated in Australian Conservation Foundation Inc v. The Commonwealth. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.[112]
[111] (1981) 149 CLR 27.
[112] At 35-36. (Footnotes omitted). See also Brennan J at 70 and Wilson J at 60-61.
In Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd,[113] Gaudron, Gummow and Kirby JJ said:
In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have “a special interest in the subject matter of the action”. Their Honours stated that the rule is flexible and continued that “the nature and subject matter of the litigation will dictate what amounts to a special interest”. This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation.[114]
[113] [1998] HCA 49, (1998) 194 CLR 247.
[114] At [46].
Mr Bell contends that the Commissioner has no special interest in the subject matter of the declaratory action. The subject matter of the action is the power and the lawfulness of the actions of the Commissioner in relation to the investigation and prosecution of Mr Bell. The Commissioner has a manifest special interest in those questions. This is only reinforced by the potential that Mr Bell might subsequently contend that the Commissioner’s actions comprise a tort actionable against the Commissioner.
The Commissioner manifestly has standing to institute this action.
Merits
The first set of declarations sought by the Commissioner relate to the lawfulness of the provision by the Commissioner to the Director on 2 May 2017 of information and evidentiary material (including the transcripts of the examinations of Mr Shelton, Mr Fox and Mrs Bell) as part of a referral for prosecution.
For the reasons given above, this conduct was within power and lawful. Subject to the question whether the Court should exercise discretion to make declarations in the declaration action (addressed below), the Commissioner has established the basis for making declarations in appropriate terms concerning the Commissioner’s conduct on 2 May 2017.
The next set of declarations sought by the Commissioner relate to the lawfulness of steps taken by the Commissioner, examiners or investigators in preparing witness statements of Mr Shelton and Mr Fox based on their examinations; exercising powers under sections 29 and 29A of the Act to inspect and obtain copies of business records from Mr Wheaton and from PCCU, NAB and Bank SA respectively; and attending proofing sessions of witnesses with staff of the Office of the Director.
For the reasons given above, this conduct was within power and lawful. Subject to the question whether the Court should exercise discretion to make declarations in the declaration action (addressed below), the Commissioner has established the basis for making declarations in appropriate terms concerning the Commissioner’s conduct after 9 August 2017 in this respect.
The final set of declarations sought by the Commissioner relate to the lawfulness of steps taken by the Commissioner, examiners or investigators in serving the Magistrates Court Information on Mr Bell; filing at court witness statements and evidentiary material; and serving subpoenas on witnesses for attendance at trial. For the reasons given above, the Commissioner has not established that this conduct was lawful.
Discretion
The grant of a declaration is discretionary.
In JN Taylor Holdings Ltd (in liquidation) v Bond,[115] King CJ (with whom Prior and Perry JJ agreed) said in reference to the exercise of the discretion:
A declaration will not be made except matters “which have a real legal context, and to the determination of which the Courts procedure is apt”. There must be some person who has a true interest in opposing the declaration. The question raised must not be purely theoretical. There must not only be a party with a true interest in opposing the declaration, but the plaintiff must have a real interest in having the question determined. That interest may exist although the apprehended impact on the plaintiff may be no more than a future possibility. If, however, the determination of the question could not affect the plaintiff’s legal rights or commercial or personal interests now or in the future, that is to say, would “produce no foreseeable consequences for the parties”, the declaration would almost certainly be refused.[116]
[115] (1993) 59 SASR 432.
[116] At 436-437. (Citations omitted).
The questions raised by the declarations sought by the Commissioner have a real legal context. The Court’s procedure is apt for their determination. Mr Bell has a true interest in opposing the declarations. For the reasons given above, the questions raised by the declarations sought are not purely theoretical; they are directly relevant to any potential liability the Commissioner may have to Mr Bell as a result of the Commissioner’s conduct alleged by Mr Bell to be unlawful. The Commissioner has a real interest in having the questions determined. The fact that the interest is only a future possibility is not a reason against exercising the discretion to make declarations.
Nevertheless, civil courts exercise great caution before hearing and determining civil proceedings that raise common issues that are to be determined in criminal proceedings. One manifestation of this is the grant of a stay of a civil proceeding pending the final determination of a criminal proceeding when there is or will be a common issue in both sets of proceedings and the hearing or determination of the civil proceeding might cause detriment to the defendant in the criminal proceeding. Another manifestation is the reluctance of civil courts to grant declaratory (or prerogative) relief in relation to issues that are to be determined in criminal proceedings.
In Sankey v Whitlam,[117] Mr Sankey brought a private prosecution against Mr Whitlam and three members of his Ministry charging that they conspired to effect an unlawful purpose under the laws of the Commonwealth, contrary to section 86 of the Crimes Act 1914 (Cth), and that they conspired to deceive the Governor-General contrary to the common law. On the production to the Court of documents by the Commonwealth pursuant to subpoenas, the Magistrate during the committal proceeding determined that many of the documents were protected by public interest immunity.
[117] (1978) 142 CLR 1.
Mr Sankey then instituted a proceeding in the Supreme Court of New South Wales seeking a declaration that the documents in respect of which the immunity claim had been upheld by the Magistrate were not protected by public interest immunity. Mr Whitlam sought a cross declaration that the documents ordered by the Magistrate to be produced were protected by public interest immunity and a declaration that the charge the subject of count 1 did not disclose an offence. This proceeding was removed into the High Court.
The High Court held that it and the Supreme Court had jurisdiction to grant the declarations if the underlying contentions on which they were based were established and it was appropriate to make the declarations in the exercise of the discretion. Given the relationship between the civil and criminal proceedings, the discretion to grant a declaration should be exercised sparingly. The case was exceptional given the delays that had already occurred in the prosecution and the desirability of the High Court finally determining the issue without further delay. Some of the documents in respect of which public interest immunity was claimed and upheld by the Magistrate were not in fact protected by public interest immunity. The charge the subject of count 1 did not disclose an offence.
Gibbs ACJ said:
I would respectfully endorse the observations of Jacobs P (as he then was) in Shapowloff v Dunn that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere “administrative cautions” I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.[118]
Stephen J (with whom Aickin J relevantly agreed) said:
It being a matter of discretion, this Court should, in the particular circumstances of this case, grant such declaratory relief as the parties are entitled to. In many like cases an exercise of discretion in the contrary sense may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings. The past history of this case, to which sufficient reference has already been made, is such that these considerations, often proper to be taken into account and which may even prove decisive, are here of little if any weight.[119]
Mason J said:
However, whether the Court should exercise its discretion to grant declaratory relief in this case gives rise to a more acute problem. In Forster v Jododex Aust Pty Ltd, Gibbs J., with whose judgment on this point McTiernan and Stephen JJ and I agreed, referred to Lord Radcliffe’s observation in Ibeneweka v Egbuna that “the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”. Except in New South Wales where the grant of declaratory relief is more fashionable than elsewhere, there is a dearth of authority supporting the grant of declaratory relief in relation to committal proceedings. The absence of authority is doubtless to be explained by a variety of circumstances - the recognition that the function of a magistrate in hearing committal proceedings is to decide whether there is a prima facie case against a defendant which warrants his being put upon trial; that a committal for trial is a preliminary examination which involves no final determination of the defendant's guilt of the offence charged; the absence of any appeal from the magistrate's decision; and the existence of the Attorney-General’s discretion to commit for trial. All these factors tend to indicate that a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course…
In this case … the committal proceedings have been fragmented and inordinately delayed. Almost three years have elapsed since the informations were laid, yet the committal proceedings are a long way from completion. Indeed, it seems that the magistrate has not yet received oral evidence.
Confronted with this unsatisfactory and exceptional situation the Court should, I think, grant the declaratory relief if it appears that by so doing it will facilitate the committal proceedings and finally put beyond doubt important and difficult issues of law.[120]
[118] At 26. (Citations omitted).
[119] At 80.
[120] At 81-83.

In Chief Executive Officer of Customs v Jiang,[121] O’Loughlin, North and Weinberg JJ said:
Those responsible for law enforcement in this country have for many years argued that steps should be taken to prevent individuals with the means to do so from fragmenting the criminal justice process…
There developed over time a body of case law in which the courts stressed the dangers of fragmentation of the criminal justice process, and the need for restraint on the part of civil courts in reviewing decisions taken in the course of that process. The High Court has repeatedly stressed the need for civil courts to avoid becoming involved in aspects of the criminal justice system including, in particular, the committal process.
…
It is clear that civil courts appreciate that it is of vital importance that regulatory bodies and law enforcement agencies not be hindered unduly in their task of investigating fully allegations of criminality. The civil courts also appreciate the need to ensure that the work of the criminal courts is not frustrated by such applications, particularly those which are quite unmeritorious and designed to achieve little more than delay. Most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts. Civil courts generally deny judicial review of such decisions on discretionary grounds.[122]
[121] [2001] FCA 145, (2001) 111 FCR 395.
[122] At [6], [7], [12].
In Gedeon v Commissioner of the New South Wales Crime Commission,[123] Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ said:
With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings.[124]
[123] [2008] HCA 43, (2008) 236 CLR 120.
[124] At [23]. (Footnote omitted).
In PRS v Crime and Corruption Commission[125] the Commission had completed a corruption investigation into conduct by AB and AB had been charged with offences. PRS had been compulsorily examined by the Commission and a police officer had decided to charge PRS with the offence of official corruption. PRS instituted a proceeding in the Queensland Supreme Court seeking prerogative relief in relation to the Commission’s investigation and effectively restraining the prosecution of PRS. Davis J dismissed the proceeding. Davis J said:
The Court, generally, has jurisdiction to review decisions made in the course of a criminal investigation. See, for instance, the cases where the decision to issue search warrants, which is an exercise of executive power, has been reviewed. However, all such relief is discretionary.
Here, discretionary considerations point inevitably towards the refusal of relief. The further exercise of coercive investigative powers against the applicant is not contemplated. The investigation is complete. Any court exercising criminal jurisdiction, once the applicant is charged, has power to exclude evidence improperly obtained and to regulate any prosecution, even to the point of ordering a permanent stay if that is necessary in the interests of justice.[126]
[125] [2019] QSC 83.
[126] At [32]-[33]. (Citations omitted).
In Palmer v Magistrates Court of Queensland[127] Palmer was the subject of an investigation by the Australian Investments and Securities Commission, which resulted in the filing by an officer of the Commission or the Commonwealth Director of Public Prosecutions of complaints against him and a company of which he was a director in the Queensland Magistrates Court, alleging a breach of subsection 631(1) of the Corporations Act 2001 (Cth). Mr Palmer and the company instituted proceedings in the Queensland Supreme Court seeking declarations, amongst other things, as to the proper construction of relevant provisions of the Corporations Act 2001 (Cth). The proceedings were summarily dismissed by a Judge and the dismissals were upheld by the Queensland Court of Appeal. Fraser JA (with whom Morrison JA and Boddice J agreed) said:
As the primary judge considered, the courts’ reluctance to interfere in criminal proceedings is not limited to cases where it will fragment the proceedings in the sense that only one or some of the issues in the criminal proceedings will be decided in the civil court.
…
The traditional restraint against fragmenting criminal proceedings certainly applies to those parts of the appellants’ claims which ask the Supreme Court to adjudicate upon and make declarations about the elements of the offences. But the question raised by the respondents’ application was not whether the Court should accede to those claims. The question was whether those claims were so clearly bound to fail that they should be summarily terminated as an abuse of process. In relation to the claims for a permanent stay of the committal proceedings, the primary judge correctly proceeded upon the footing that such relief should be granted only in an exceptional case, but again the question raised by the respondents’ application was not whether a permanent stay should be granted but whether the applicants’ claims for a permanent stay should be summarily dismissed as an abuse of process.
As will appear, I would affirm the primary judge’s conclusions that there is nothing exceptional in the appellants’ cases warranting the Supreme Court’s intervention by way of declarations about the elements of the offences or its intervention to make declarations or orders putting an end to the criminal proceedings.[128]
[127] [2020] QCA 47.
[128] At [12], [29]-30]. (Footnotes omitted).
In the present case, the Commissioner does not seek to interfere in the criminal proceeding and granting the declarations sought (to the extent otherwise appropriate) would not directly interfere in the criminal proceeding. However, the declarations sought would address issues that are very closely aligned (if not identical) to those arising for decision in the criminal proceeding. Although the declarations would not be directly binding on the parties to the criminal proceeding (in the sense that an issue estoppel would arise), insofar as they decided issues of law, they would represent an authoritative decision of this Court binding on the District Court under the doctrine of binding precedent.
The precise formulation of the declarations might have presently unforeseen consequences in the criminal proceeding. In general, an important factor weighing against the exercise of the discretion is that it is preferable that issues arising in the criminal proceeding be determined in the context of the criminal proceeding without the superadded complication of this Court making declarations in the civil proceeding. The same restraint would be called for if it were Mr Bell who were seeking declarations to the opposite effect to those sought by the Commissioner.
The position may or may not have been different if there had been no appeal or reservation of questions in the criminal proceeding. However, given the existence of those appellate proceedings in respect of the criminal proceeding, and this Court’s determination of them, the prejudice to the Commissioner if declarations are not granted at this stage in the civil proceeding is substantially lessened due to the doctrine of binding precedent referred to above.
In all of the circumstances, it is in the interests of justice for this Court to exercise caution to avoid the risk of unforeseen consequences of the making of declarations and defer making any declarations until after the final determination of the criminal proceeding against Mr Bell.
Orders
In the appeal proceeding (case 277 of 2020), the appeal is dismissed.
In the reservation proceeding (case 267 of 2020), the questions reserved are answered in the terms set out at [374] above.
In the declaration proceeding (case 3307 of 2020), the interlocutory application seeking summary dismissal is dismissed and the originating application for declarations is adjourned to a date to be fixed.
The Court will hear the parties on the precise form of the orders and any incidental issues.

Month	Transfer into SAILC account	Transfer into Bell joint account	Count
October 2010	$11,000	$11,000	7
November 2010	$130,000	8
December 2010	$127,000	$127,000	9
February 2011	$100,000	$100,000	12
May 2011	$90,000	13
July 2011	$115,000	$115,000	14
August 2011	$75,000	$75,085	15
October 2011	$105,000	$104,990	16
December 2011	$140,000	$140,000	17
February 2012	$37,000	$37,000	18
February 2012	$130,000	$130,000	19
April 2012	$156,000	$156,000	20
May 2012	$180,246	$180,240	21