Berejiklian v Independent Commission Against Corruption

[2024] NSWCA 177

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177

Hearing dates:

26-27 February 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Before:

Bell CJ and Meagher JA at [1];
Ward P at [311]

Decision:

Amended Summons dismissed with costs.

Catchwords:

ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — where Commission’s report adopted findings of credibility made by person who presided at public inquiries — where the appointment of the person who presided at public inquiries as an Assistant Commissioner expired after conclusion of those public inquiries and that person appointed as a consultant and accordingly officer of Commission prior to report being finalised — whether assistance of presiding officer as consultant in preparation of report outside limits of her authority — whether Commission could adopt credibility assessments made by presiding officer after her appointment as Assistant Commissioner had expired

ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — whether “no evidence” to support finding applicant influenced by her private interest in maintaining close personal relationship — whether non-pecuniary personal relationship capable of being “private interest” giving rise to conflict of interest and public duty — whether applicant as parliamentarian and Minister of the Crown had legally enforceable positive duty to act only according to what she believed to be in public interest — whether Commission made findings about merits of funding proposals — whether s 7 of NSW Ministerial Code and cll 10-12 of Schedule to code applies to Premier — whether applicant’s conduct in relation to funding decisions constrained by duty to act impartially — whether finding of partial conduct requires finding that but for unacceptable reason conduct would not have occurred — whether finding of partial conduct requires comparative exercise — whether Commission reached illogical or irrational result by making “serious corrupt conduct” finding but also refusing to recommend advice be sought as to whether to prosecute applicant — whether “dishonest” in s 8(1)(b) of Independent Commission Against Corruption Act 1988 (NSW) requires person to realise his or her conduct dishonest according to standards of ordinary people

Legislation Cited:

Constitution Act 1902 (NSW), s 35E(1)

Evidence Act 1995 (NSW), s 55(1)

Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 3(1), 4(1), 5(1), 6, 6A, 7(1), 8, 9, 11, 13, 17, 18(2), 20, 30, 31, 31B, 55, 57B, 74, 74A-74D, 75, 77, 77A, 104B, 107, 111, 112(1), Sch 1, cl 5(4)

Interpretation Act 1987 (NSW), s 35

Restart NSW Fund Act 2011 (NSW), s 3

Supreme Court Act 1970 (NSW), ss 48, 51(2), 69

Independent Commission Against Corruption Regulation 2017 (NSW), cl 5

NSW Ministerial Code of Conduct, Preamble, cll 1, 3, 4, 11, ss 1, 4, 6-12, Sch, cll 2(3)(c), 3(5)(c), 10-13, 27

Cases Cited:

Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461

Amaba Pty Ltd v Booth [2010] NSWCA 344

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Ballina Shire Council v Knapp [2019] NSWCA 146

Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36

D’Amore v Independent Commission Against Corruption [2013] NSWCA 187

Edge v Pensions Ombudsman [2000] Ch 602

Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125

Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (2023) 112 NSWLR 463; [2023] NSWCA 244

Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19

Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64

IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Local Government Board v Arlidge [1915] AC 120

Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250

Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24

Maitland v R (2019) 99 NSWLR 376; [2019] NSWCCA 32

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

New South Wales v Bardolph (1934) 52 CLR 455; [1934] HCA 74

Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7

Boardman v Phipps [1967] 2 AC 46

Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64

R v Boston (1923) 33 CLR 386; [1923] HCA 59

R v Ghosh [1982] QB 1053

R v Love (1989) 17 NSWLR 608

R v Maudsley (2021) 9 QR 587; [2021] QCA 268

R v Obeid (No 2) [2015] NSWSC 1380

Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39

Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208; [1976] HCA 36

Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48

Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92

Woodham v Independent Commission Against Corruption (1993) 30 ALD 390

Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54

Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48

Texts Cited:

Anne Twomey, The Constitution of New South Wales (2004, Federation Press)

Explanatory Note to Independent Commission Against Corruption Bill 1988 (No 2) (NSW)

Independent Commission Against Corruption Bill 1988 (No 2) (NSW)

Independent Commission Against Corruption, Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel) (June 2023)

Sir Frederick Jordan, Chapters on Equity in New South Wales (6th ed, 1947, Thomas Henry Tennant)

Category:

Principal judgment

Parties:

Gladys Berejiklian (Applicant)
Independent Commission Against Corruption (Respondent)

Representation:

Counsel:
B Walker SC and H Cooper (Applicant)
S Free SC and J Kennedy (Respondent)

Solicitors:
Johnson Winter Slattery (Applicant)
Corrs Chambers Westgarth (Respondent)

File Number(s):

2023/302494

Publication restriction:

Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Ms Berejiklian, was first elected as a member of the New South Wales Legislative Assembly on 22 March 2003. Subsequently, she became a Minister of the Crown. She was the Treasurer between 2 April 2015 and 23 January 2017, and Premier between 23 January 2017 and 5 October 2021.

The member representing the electorate of Wagga Wagga between 27 March 1999 and 3 August 2018 was Mr Daryl Maguire. Ms Berejiklian and Mr Maguire were in a “close personal relationship” which commenced before 2016 and ended in September 2020.

Conduct

At all relevant times, Mr Maguire was and regarded himself as the principal proponent within the State government of funding proposals for two entities in the Wagga Wagga electorate — the Australian Clay Target Association (ACTA) and the Riverina Conservatorium of Music (RCM).

In the case of ACTA, by January 2016 funding was sought to build a new clubhouse/national administration office complex on ACTA’s national clay target shooting ground in Wagga Wagga. In early December 2016, the applicant as Treasurer approved this funding request being included on the agenda for an Expenditure Review Committee (ERC) meeting on 14 December 2016. At that meeting, a grant of $5.5 million to ACTA was approved.

In relation to RCM, by August 2015 funding was sought for the construction of a new conservatorium of music, initially on an area of council land in Wagga Wagga, and later on a government-owned site in that city. In February 2017, RCM submitted a further proposal for its relocation to the government-owned site and refurbishment of existing buildings on that site, and for the later demolition of two buildings on that site and the construction of a new wing containing a recital hall and commercial facilities. On 12 April 2018, the ERC, attended by the applicant as Premier, approved the transfer of the government-owned site to “Arts NSW” for the purpose of relocating RCM there. On 24 April 2018, the ERC endorsed grant funding of $10 million to RCM for the purpose of refurbishing that site. In late August 2018, in the context of a by-election for the seat of Wagga Wagga, the applicant and the then Treasurer agreed to a funding reservation of up to $20 million for the construction of a new recital hall for RCM.

Findings

In late June 2023, the applicant was the subject of adverse findings made in a two-volume report of the Independent Commission Against Corruption (the Commission) titled “Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel)” (the Report). The Commission made five findings of “serious corrupt conduct” by the applicant for the purposes of the Independent Commission Against Corruption Act 1988 (NSW) (the Act). The first four findings related to the funding proposals described above.

The first and third findings included that the applicant had engaged in a “breach of public trust” by exercising her official functions in relation to decisions made concerning funding promised and or awarded to ACTA and RCM without disclosing her close personal relationship with Mr Maguire when she was in a position of conflict between her public duty and private interest.

The second and fourth findings included that the applicant had engaged in the “partial” (as distinct from impartial) exercise of her official functions in relation to the ACTA funding and in relation to the RCM funding decision in August 2018. That partial conduct was exercising her official functions influenced by her close personal relationship with Mr Maguire, and her desire to advance or maintain that relationship.

The fifth finding was that the applicant had engaged in conduct which constituted or involved a dishonest or partial exercise of official functions. The specific conduct was the applicant’s failure and refusal to discharge her statutory obligation to report her actual suspicions that Mr Maguire’s activities in relation to three subject matters concerned or might have concerned corrupt conduct. Those subject matters were Mr Maguire’s relationships with particular property owners or developers, from whom it was said that Mr Maguire, with others, had the prospect of receiving commissions.

Preparation of the Report

The Hon Ruth McColl AO SC as an Assistant Commissioner presided over the two public hearings giving rise to the Report. Her appointment as Assistant Commissioner was extended on four occasions, and expired on 31 October 2022. From that date, Ms McColl was engaged as a consultant to the Commission (and thereby continued to be an officer of the Commission) for the purpose of providing it with “services, information or advice”. During the period of her appointment as a consultant, Ms McColl continued her participation in the drafting process which preceded the finalisation of the Report. The draft reports contained assessments as to the credibility of witnesses, including the applicant. The drafts were the subject of a substantive review by a panel presided over by the Chief Commissioner, who had ultimate responsibility for the making of the Report.

The Report was finalised in late June 2023, and on 29 June 2023 presented to the Presiding Officers of the Legislative Council and Legislative Assembly. The Report was accompanied by a letter signed by the Chief Commissioner which described the Report as “the Commission’s report on its investigation” into the conduct of Mr Maguire, the applicant and others.

The application for judicial review

The applicant’s Amended Summons contains 13 grounds of review.

With the exception of ground 1, which is directed to the role of Ms McColl in the preparation or making of the Report, each ground raises a basis upon which it is said the Commission made a material error of law in or in relation to its findings supporting one or more of the five “ultimate” findings that Ms Berejiklian had engaged in “serious corrupt conduct”.

The principal issues raised by the 13 grounds are as follows:

1. whether the assistance provided to the Commission by Ms McColl as a consultant in the preparation of the Report, and specifically in relation to findings involving the assessment of the credibility of witnesses, was outside the limits of her authority;

2. whether there was any evidentiary material to support the Commission’s findings as to whether the applicant had a private interest in, and was influenced by a desire of, maintaining or advancing her close personal relationship with Mr Maguire;

3. whether under the general law and under the NSW Ministerial Code (the Code) a non-pecuniary personal relationship was capable of amounting to a “private interest” that could give rise to a conflict of interest and public duty;

4. whether the applicant as a Minister owed a legally enforceable positive duty to act only according to what she believed to be in the public interest, as opposed to a negative obligation not to use her position to promote her own pecuniary interest in circumstances of conflict;

5. whether the applicant’s non-disclosure of her personal relationship with Mr Maguire constituted a breach of public trust for the purposes of s 8(1)(c) of the Act;

6. whether the Commission exceeded its authority and institutional competence by purporting to make findings about the merits of the ACTA and RCM funding proposals;

7. whether s 7 of the Code and cll 10-12 of the Schedule to the Code (the Schedule) applied to and imposed obligations on the applicant whilst she was Premier;

8. whether the applicant’s exercises of ministerial power in connection with the promising and awarding of funding were constrained by a legal duty to act impartially;

9. whether the Commission erred in finding that the applicant had engaged in partial exercises of her official functions within s 8(1)(b) of the Act in the absence of a finding that but for an unacceptable reason the applicant would not have engaged in that conduct;

10. whether the Commission erred in finding that the applicant had engaged in partial exercises of her official functions without having first engaged in a comparative exercise addressing how she would have treated “relevantly identical” funding requests;

11. whether the duty to disclose in s 11(2) of the Act needs to be confined to a “matter” involving some specified subject matter;

12. whether the Commission reached an illogical or irrational result in finding that the applicant failed to discharge her obligations under s 11(2) of the Act, despite also deciding not to make a statement that consideration be given to obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the applicant for misconduct in public office; and

13. whether a finding that the exercise of official functions was “dishonest” for the purposes of s 8(1)(b) requires that the person the subject of investigation appreciated or realised that his or her conduct was dishonest according to the standards of ordinary people.

The Court (Bell CJ and Meagher JA, Ward P dissenting as to issue (i) and as to the consequential orders to be made) dismissed the application, holding:

As to (i):

(Bell CJ and Meagher JA)

1. The assistance provided by Ms McColl was not outside the limits of her authority, and in making the Report the Commission did not act beyond its authority or power in obtaining Ms McColl’s assistance as a consultant. That assistance was to the Chief Commissioner in exercising his function of “making” the final report. That function had not been delegated to Ms McColl as an Assistant Commissioner. The Chief Commissioner’s task was to determine the findings, opinions, recommendations and reasons to be made or given in the final report to Parliament. His powers were not expressly qualified as to the sources from which he might acquire information or advice to be taken into account in doing so: Bell CJ and Meagher JA at [79]-[80].

2. Ms McColl was assisting the Chief Commissioner in that task by engaging in the drafting process. She initially did so as an Assistant Commissioner who had presided over the public inquiries, but to whom the function of making a report had not been delegated. Although the Act contemplates such circumstances, it does not expressly provide for how, in those circumstances, the presiding officer’s credibility assessments might be communicated to the Commissioner making the report. The applicant accepts that, as an Assistant Commissioner, Ms McColl could have done so by participating in the process of preparing a report, including through a drafting process by making findings of fact and proposing assessments as to the credibility of witnesses, and notwithstanding that Ms McColl had not been delegated the function of making the report: Bell CJ and Meagher JA at [79].

3. The question raised by the applicant’s argument is whether that outcome could also be achieved by Ms McColl, who had presided at the public hearings, being appointed as a consultant to participate in the process of preparing a report after her appointment as an Assistant Commissioner had expired in circumstances where it could not be renewed. A principal function and power of the Commission is to make findings and form opinions “on the basis of the results of its investigations”. There is no warrant to read down the Commission’s powers to have ongoing access to assistance and information concerning its investigations. Section 104B of the Act in terms provides that a suitably qualified person may be engaged as a consultant (and, accordingly, an officer) to provide the Commission with “services, information or advice”. Having presided over the two public inquiries, Ms McColl continued to be the person best placed to make assessments as to the credibility of witnesses and communicate them to the Chief Commissioner. The Commission did not act beyond its authority or power in obtaining such services from Ms McColl, and in taking the product of those services, and any information or advice, into account in making the findings, recommendations, reasons and opinions in the Report: Bell CJ and Meagher JA at [82]-[86].

(Ward P in dissent)

4. The Commission’s “adoption” of witness credibility assessments made by Ms McColl in a draft report amounted to her assessments being the relevant findings of fact at least on aspects of evidence given in the public hearings. The language of “adopt” used in the Report at [2.37] demonstrates that Ms McColl’s assistance went beyond the provision of “services, information or advice”, and constituted the making of findings that Ms McColl as a consultant did not have power to make. The communication of those findings, in circumstances where they were explicitly adopted by the Commission, amounted in effect to an impermissible delegation of the Chief Commissioner’s task of determining all necessary findings in the making of the Report. The Commission acted beyond its authority or power by in effect delegating to Ms McColl the responsibility for assessing witness credibility and making findings as to that subject: Ward P at [336]-[341].

As to (ii):

5. There was evidentiary material capable of supporting each of the challenged findings, as well as the underlying findings and inferences on which they were based: Bell CJ and Meagher JA at [113]-[143]; Ward P at [343].

As to (iii):

6. It was open to the Commission to find that the close personal relationship between the applicant and Mr Maguire was, from her perspective, a “private interest” that gave rise to a conflict of interest and duty. Under the general law, members of Parliament have a duty to “act according to good conscience, uninfluenced by other considerations, especially personal financial considerations”. Such considerations could be pecuniary or non-pecuniary. The position under the Ministerial Code is not relevantly different: Bell CJ and Meagher JA at [151]-[161]; Ward P at [343].

Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14; Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92, considered.

As to (iv):

7. A Minister’s obligation not to breach public trust is expressed more broadly than an obligation prohibiting the promotion of private pecuniary interests in circumstances where there is a conflict of interest and public duty. That public duty is sufficiently identified as being “to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community”, and “to act according to good conscience, uninfluenced by other considerations, especially personal financial considerations”: Bell CJ and Meagher JA at [165]-[174]; Ward P at [343].

Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64; Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36; R v Boston (1923) 33 CLR 386; [1923] HCA 59; Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14; Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19; Boardman v Phipps [1967] 2 AC 46; Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461; R v Obeid (No 2) [2015] NSWSC 1380, considered.

As to (v):

8. The Commission did not find that the applicant had breached her duty of public trust under s 8(1)(c) simply by not disclosing her relationship. The breaches of that provision as found by the Commission were that she had exercised her official functions whilst in a position of conflict of duty and personal interest: Bell CJ and Meagher JA at [183]-[185]; Ward P at [343].

As to (vi):

9. The Commission did not decide for itself the merits of any of the funding proposals. Rather, it had regard to evidence as to the merits or otherwise of those proposals as perceived at the time by those whose task it was to consider critically the proposals as a circumstance relevant to whether the applicant acted with partiality and was influenced in doing so by her relationship with Mr Maguire: Bell CJ and Meagher JA at [189]-[199]; Ward P at [343].

As to (vii):

1. . In its terms the Code applies to all current and future Ministers, and should be construed, if at all possible, so that it has that consequence. The language of cl 27(5) of the Schedule provides the mechanism by which that is to be achieved, providing for “rulings” by the Cabinet when the Minister in question is the Premier. That mechanism permits s 7 of the Code and cll 10-12 of the Schedule to apply consistently to all Ministers, including the Premier: Bell CJ and Meagher JA at [208]-[217]; Ward P at [343].

As to (viii):

11. The Commission did not err in proceeding on the basis that in participating in the funding decisions the applicant was required to act in the public interest and to exercise any relevant power for the purpose for which it was conferred and consistently with any eligibility or assessment criteria. At the same time, the applicant was required not to take into account any extraneous or irrelevant purpose or consideration: Bell CJ and Meagher JA at [228]-[235]; Ward P at [343].

Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14; R v Boston (1923) 33 CLR 386; [1923] HCA 59; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Edge v Pensions Ombudsman [2000] Ch 602, considered.

As to (ix):

12. Having a conflicting private interest which is capable of influencing, and does influence, the exercise of a function or power is sufficient to constitute a “partial” exercise of the power under s 8(1)(b), and irrespective of whether the outcome of that exercise would not have been different in the absence of the private interest. This is consistent with the authorities that hold that a member of Parliament and Minister is to act in exercising public functions and powers “uninfluenced” by other considerations, and with “fidelity and with a single-mindedness for the welfare of the community”: Bell CJ and Meagher JA at [246]-[257]; Ward P at [343].

Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14; R v Boston (1923) 33 CLR 386; [1923] HCA 59; Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250; Maitland v R (2019) 99 NSWLR 376; [2019] NSWCCA 32, considered.

As to (x):

13. Undertaking a comparison in determining whether a public official has engaged in partial conduct may assist in identifying preferences or advantages, depending on the nature of the power. It does not follow that such an approach should be mandatory. In the broad scope of circumstances to which the section might apply, there is no reason in the language of s 8(1)(b) or otherwise for construing the reference to “partial conduct” as confined only to treatment which is different from the treatment of other persons or things in “relevantly identical” circumstances: Bell CJ and Meagher JA at [262]-[264], [273]; Ward P at [343].

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Woodham v Independent Commission Against Corruption (1993) 30 ALD 390, considered.

As to (xi):

14. The present facts do not require the determination of the scope of the word “matter” in s 11 as each of the matters which are the subject of the relevant findings involved specific subject matter: Bell CJ and Meagher JA at [279], [290]; Ward P at [343].

As to (xii):

15. There was no illogical or irrational result as the two conclusions can be readily explained. Different rules of evidence apply before the Commission and before a criminal court; the relevant standard of proof is different; and the criminal offence requires proof of elements not essential to the “serious corrupt conduct” findings. Furthermore, the applicant’s argument presupposes that any illogicality or irrationality which might explain the asserted inconsistency is only in relation to the finding of “serious corrupt conduct”, and not in relation to the Commission’s declining to make a statement that advice be sought from the Director of Public Prosecutions: Bell CJ and Meagher JA at [298]-[300]; Ward P at [343].

As to (xiii):

16. There is no reason for construing “dishonest” in the Act other than in its ordinary sense. It follows that conduct is “dishonest” for the purposes of s 8(1)(b) when it would be regarded as such according to the standards of ordinary, decent people. It is not necessary that the accused have also appreciated or realised that his or her conduct would be regarded by such people as “dishonest”: Bell CJ and Meagher JA at [307]-[308]; Ward P at [343].

Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7; Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22; Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, considered.

JUDGMENT

1. BELL CJ AND MEAGHER JA: The applicant, Ms Berejiklian, was first elected as a member of the New South Wales Legislative Assembly for the electorate of Willoughby on 22 March 2003. Between 2 April 2015 and 23 January 2017, Ms Berejiklian was also Treasurer and Minister for Industrial Relations. On the latter date, she relinquished those earlier positions and assumed the position of Premier. Ms Berejiklian resigned as Premier on 5 October 2021 and from Parliament on 30 December 2021.

2. In late June 2023, the applicant was the subject of adverse findings made in a two-volume report of the respondent (ICAC or the Commission) titled “Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel)” (the Report). The member representing the electorate of Wagga Wagga between 27 March 1999 and 3 August 2018 was Mr Daryl Maguire. The adverse findings against Ms Berejiklian included that she had engaged in “serious corrupt conduct” in the exercise of her official functions in connection with funding promised and or awarded in 2016 and 2017 to the Australian Clay Target Association (ACTA) and in 2018 to the Riverina Conservatorium of Music (RCM) in two stages.

3. The applicant seeks judicial review of the Commission’s adverse findings against her. She does so by raising 13 grounds of review. For the reasons which follow, each of these 13 grounds must be rejected, and the proceedings dismissed with costs.

The present proceedings

4. The proceedings before this Court invoke the Supreme Court’s supervisory jurisdiction under Supreme Court Act 1970 (NSW), s 69. Under s 48(2) of that Act, proceedings invoking that jurisdiction in respect of any matter before a “specified tribunal” (as to which see s 48(1)(a)) are assigned to the Court of Appeal. ICAC is not such a tribunal. Nevertheless, the present proceedings were commenced in the Court of Appeal exercising that original jurisdiction, and as such were to be taken as “well commenced”, and, subject to any order of the Court of Appeal remitting the proceedings for hearing by a judge in a Division of the Supreme Court, were able to be continued and disposed of in this Court (s 51(2)). Because of the public importance of the proceedings, when they were first before this Court for directions, no order was made for their remission to a Division, the result being that they should continue in, and be disposed of by, the Court of Appeal exercising the Supreme Court’s supervisory jurisdiction.

5. That jurisdiction is confined to ensuring that the Commission carried out its investigative and reporting functions, including with respect to the making of findings of “serious corrupt conduct”, in accordance with the statutory provisions which govern the performance of those functions and exercise of the relevant powers. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21, “[t]he duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”.

6. The consequence is that the present proceedings are not an opportunity for this Court to undertake a “merits” review of the Commission’s findings, as it might do in its appellate jurisdiction in an appeal by way of rehearing. As Brennan J also said in Quin (at 36):

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. (Emphasis added.)

7. In this context, it is important to note that the making of findings of fact where there is “no evidence” in support of the finding is an error of law going to the legality of the exercise of the Commission’s fact-finding function (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]). Moreover, as Brennan J observed in Quin at 36, the extent or exercise of statutory powers conferred on a repository may be subject to “implied limitations”. Such implications could support the application in judicial review proceedings of a “standard of legal reasonableness” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66] (Hayne, Kiefel and Bell JJ)) to the ultimate decision of the tribunal or fact-finder. The position is less clear in relation to the application of such a standard to a step in the reasoning to such a decision (see Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64 at [70] (Bathurst CJ, Bell P, Leeming JA)). In any event, none of this involves substituting a court’s view as to the factual merits of a decision for that of the decision-maker (Li at [66] (Hayne, Kiefel and Bell JJ), citing Quin at 36-37).

Brief overview of factual background

Mr Maguire and the ACTA and RCM funding proposals

8. At the relevant times, Mr Maguire was and regarded himself as the “principal proponent” within the State government of the ACTA and RCM funding proposals (Report at [11.3]). In the case of ACTA, by January 2016 funding was sought to build a new clubhouse/national administration office complex on ACTA’s national clay target shooting ground in Wagga Wagga ([11.23]). In early December 2016, the applicant as Treasurer approved this funding request being included on the agenda for the Expenditure Review Committee (ERC) meeting on 14 December 2016. At that meeting, a grant of $5.5 million to ACTA was approved unanimously. The Commission made factual findings that, subsequently, Ms Berejiklian “caus[ed] steps to be taken by staff from her office to follow up on the progress” of that proposal ([11.460.4]).

9. In relation to RCM, by August 2015 funding was sought for the construction of a new conservatorium of music, initially on an area of council land in Wagga Wagga, and later on a government-owned site in that city ([12.6]-[12.13]). In February 2017, RCM submitted a further proposal for its relocation to the government-owned site and refurbishment of existing buildings on that site (together referred to as RCM Stage 1); and for the later demolition of two buildings on that site and the construction of a new wing containing a recital hall and commercial facilities (together referred to as RCM Stage 2) ([12.21]).

10. On 12 April 2018, the ERC, attended by the applicant as Premier, approved the transfer of the government-owned site to “Arts NSW” for the purpose of relocating RCM there ([12.84]). On 24 April 2018, the ERC endorsed grant funding of $10 million to RCM for the purpose of refurbishing and repurposing that site ([12.90]). In late August 2018, in the context of the election campaign preceding the by-election in Wagga Wagga in September 2018 (resulting from Mr Maguire’s resignation from Parliament), the applicant as Premier and the then Treasurer, Mr Perrottet, agreed to a funding reservation of up to $20 million for the construction of the recital hall component of RCM Stage 2 ([12.136]-[12.137]).

The “close personal relationship”

11. The Commission found that Ms Berejiklian and Mr Maguire were in a “close personal relationship” which ended in September 2020. The Commission found that this relationship, being “one of mutual love and a mutual close emotional connection”, had the “capacity… to influence” Ms Berejiklian’s conduct “both personally and in the performance of her public duties” ([10.38]).

12. In assessing the nature of the relationship, the Commission relied in part on lawfully obtained recordings of telephone conversations and electronic copies of text messages between the applicant and Mr Maguire, as well as its assessment of the applicant’s evidence. One such exchange via telephone occurred on 14 February 2018 ([10.20], partially extracted below at [115]). Referring to that exchange and the applicant’s evidence explaining it, the Commission reasoned (at [10.29]):

… this evidence is relevant to the consideration of her exercise of her official functions in relation to the [ACTA] and the [RCM] proposals dealt with later in the report. While it may not have been, as Ms Berejiklian submitted, her real view of the dynamic between them, her concern to address what she perceived as Mr Maguire’s insecurities can, as a matter of human experience, be expected to have manifested itself in a continuing desire to assuage his feelings and support him to the best of her ability. That would include supporting him bringing to fruition two Wagga Wagga projects for which he was a fervent advocate.

The Commission’s findings of “serious corrupt conduct”

13. Ms Berejiklian’s Amended Summons (Judicial Review) identifies the decisions sought to be reviewed by this Court as the Commission’s findings that she engaged in “serious corrupt conduct”. Those findings are set out at [1.5] of the Report:

1.5.    The Commission finds that Ms Berejiklian engaged in serious corrupt conduct by:

1.5.1.    in 2016 and 2017, breaching public trust by exercising her official functions in relation to funding promised and/or awarded to the Australian Clay Target Association (ACTA) without disclosing her close personal relationship with Mr Maguire when she was in a position of a conflict of interest between her public duty and her private interest which could objectively have the potential to influence the performance of her public duty. Her conduct comprised:

1.5.1.1.    causing the ACTA proposal to be included on the agenda for the Expenditure Review Committee (ERC) meeting of 14 December 2016

1.5.1.2.   supporting the ACTA proposal in the ERC meeting of 14 December 2016

1.5.1.3.   communicating her support for and interest in the ACTA proposal to NSW Treasury staff, at least one ministerial colleague (John Barilaro) and staff within her office

1.5.1.4.   causing steps to be taken by staff from her office to follow up on the progress of the ACTA proposal following the ERC ACTA decision, including by communicating a request that the initial benefit cost ratio calculation of 0.88 by the Department of Premier and Cabinet Investment Appraisal Unit be revisited

1.5.2.    in 2016 and 2017, partially exercising her official functions in connection with funding promised and awarded to ACTA by exercising her official functions influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to maintain or advance that relationship (chapter 11)

1.5.3.   in 2018, breaching public trust by exercising her official functions in relation to decisions concerning the Riverina Conservatorium of Music (“the RCM”) proposal which she knew was advanced by Mr Maguire in:

1.5.3.1.    participating in the 12 April 2018 ERC decision concerning RCM Stage 1 in relation to the transfer of land at 1 Simmons Street, Wagga Wagga, to provide a site for the RCM

1.5.3.2.    participating in the 24 April 2018 ERC decision concerning RCM Stage 1 in relation to the funding granted to RCM Stage 1

1.5.3.3.    determining to make a funding reservation of $20 million in relation to RCM Stage 2

1.5.3.4.    approving the letter arranging for that funding reservation to be made

without disclosing her close personal relationship with Mr Maguire, when she was in a position of a conflict of interest between her public duty and her private interest in maintaining or advancing her close personal relationship with Mr Maguire, which could objectively have the potential to influence the performance of her public duty

1.5.4.    in 2018, in connection with funding promised and awarded to RCM Stage 2 engaging in conduct constituting or involving the partial exercise of her official functions influenced by the existence of her close personal relationship with Mr Maguire, or by a desire on her part to maintain or advance that relationship (chapter 12)

1.5.5. refusing to discharge her duty under s 11 of the ICAC Act to notify the Commission of her suspicion that Mr Maguire had engaged in activities which concerned, or might have concerned, corrupt conduct (chapter 13).

14. The applicant asks this Court to quash these “serious corrupt conduct” findings or, in the alternative, to make a declaration that the Commission’s determination that she had engaged in “serious corrupt conduct” was made “without or in excess of jurisdiction, and is a nullity”. Further, or again in the alternative, the applicant seeks a declaration that on the facts as found the Commission’s determination that she had engaged in any “serious corrupt conduct” was wrong in law.

The Commission and the ICAC Act

15. ICAC was constituted by the Independent Commission Against Corruption Act 1988 (NSW) (the Act). The principal objects of that Act include “to promote the integrity and accountability of public administration” by the creation of an “independent and accountable body to investigate, expose and prevent corruption involving or affecting public authorities and public officials” (s 2A). The principal functions of the Commission include investigating complaints as to corrupt conduct and any matter referred to the Commission by both Houses of Parliament, and communicating to appropriate authorities the results of its investigations (s 13(1)). They also include specific powers to make findings and form opinions as to whether particular persons have engaged in “corrupt conduct” (s 13(3)(a)). The powers conferred on the Commission to enable it to perform these functions include to conduct investigations, and, where necessary, to conduct compulsory examinations and public inquiries (ss 20, 30, 31).

16. The central provisions of the Act and other legislation relevant to the Commission’s findings of “serious corrupt conduct” are set out below.

ICAC Act

17. For the purposes of the Act “corrupt conduct is any conduct which falls within the description of corrupt conduct in section 8, but which is not excluded by section 9” (s 7(1)).

18. Section 8 relevantly provides:

8   General nature of corrupt conduct

(1)   Corrupt conduct is—

…

(b)   any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or

(c)   any conduct of a public official or former public official that constitutes or involves a breach of public trust, or

…

19. A “public official” as defined means any individual “having public official functions or acting in a public official capacity”, and relevantly includes a Minister of the Crown (s 3(1)).

20. Section 9 limits the nature of corrupt conduct, providing:

(1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve—

(a)   a criminal offence, or

(b)   a disciplinary offence, or

(c)   reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or

(d)   in the case of conduct of a Minister of the Crown or Parliamentary Secretary or a member of a House of Parliament—a substantial breach of an applicable code of conduct.

…

(3)   For the purposes of this section—

applicable code of conduct means, in relation to—

(a)   a Minister of the Crown or Parliamentary Secretary—a ministerial code of conduct prescribed or adopted for the purposes of this section by the regulations…

21. Clause 5 of the Independent Commission Against Corruption Regulation 2017 (NSW) prescribes the NSW Ministerial Code of Conduct (which is set out in the Appendix to that regulation) (the Ministerial Code or Code) as an “applicable code of conduct for the purposes of section 9 of the Act”. The effect of its doing so is considered below at [32]ff.

22. Section 11(2) of the Act imposes a duty on persons, including any Minister of the Crown, “to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct”.

23. Section 13 describes the “principal functions” of the Commission, which include:

(3)   …

(a)   the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and

(b)   the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.

(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9(1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.

24. Sections 13(4) and 74BA contain a further limitation on the Commission’s power to make a finding of “serious corrupt conduct”. Section 13(4) states:

The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B or 74BA prevents the Commission from including in a report, but section 9(5) and this section are the only restrictions imposed by this Act on the Commission’s powers under subsection (3).

25. Section 74 concerns the making of reports by the Commission to Parliament:

74   Reports on referred matters etc

(1)   The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.

(2)   The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses.

(3)   The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry, unless the Houses of Parliament have given different directions under subsection (2).

(4)   The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament.

(5), (6)   (Repealed)

(7)   A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter.

(8)   The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament.

(9)   (Repealed)

26. A report under s 74 is not to include findings or opinions that a person has committed a criminal or disciplinary offence (see s 74B). Section 74BA(1) provides:

The Commission is not authorised to include in a report under section 74 a finding or opinion that any conduct of a specified person is corrupt conduct unless the conduct is serious corrupt conduct.

The NSW Ministerial Code

27. Following a preamble, which does not form part of the Code but to which regard may be had in the interpretation of its provisions (Code, s 12(1)), s 1(2) provides that the Code applies “to all current and future Ministers and Governments”.

28. Section 4 of the Code requires compliance with the Schedule to the Code (the Schedule), and provides that a “substantial breach” of the Schedule, if done knowingly, is a “substantial breach” of the Code. Part 3 of the Schedule, headed “Conflicts of interest”, addresses among other topics the duty to disclose conflicts of interest (cl 10), the form of disclosure (cl 11), and the obligation of a Minister to abstain from decision-making in the face of a conflict of interest (cl 12).

29. Sections 6 and 7 of the Code provide:

6   Duty to act honestly and in the public interest

A Minister, in the exercise or performance of their official functions, must not act dishonestly, must act only in what they consider to be the public interest, and must not act improperly for their private benefit or for the private benefit of any other person.

7   Conflicts of interest

(1)   A Minister must not knowingly conceal a conflict of interest from the Premier.

(2)   A Minister must not, without the written approval of the Premier, make or participate in the making of any decision or take any other action in relation to a matter in which the Minister is aware they have a conflict of interest.

(3)   A conflict of interest arises in relation to a Minister if there is a conflict between the public duty and the private interest of the Minister, in which the Minister’s private interest could objectively have the potential to influence the performance of their public duty. Without limiting the above, a Minister is taken to have a conflict of interest in respect of a particular matter on which a decision may be made or other action taken if:

(a)   any of the possible decisions or actions (including a decision to take no action) could reasonably be expected to confer a private benefit on the Minister or a family member of the Minister, and

(b)   the nature and extent of the interest is such that it could objectively have the potential to influence a Minister in relation to the decision or action.

30. Section 11 of the Code contains definitions which also apply to the Schedule, in each case “unless the context otherwise requires”. The definition of “Minister” includes “any Member of the Executive Council of New South Wales”. Section 11 defines “conflict of interest” as having “the meaning given by section 7(3) of this Code”.

31. A “private benefit” is defined in s 11 to mean:

… any financial or other advantage to a person (other than the State of New South Wales or a department or other government agency representing the State), other than a benefit that—

(a)   arises merely because the person is a member of the public or a member of a broad demographic group of the public and is held in common with, and is no different in nature and degree to, the interests of other such members, or

(b)   comprises merely the hope or expectation that the manner in which a particular matter is dealt with will enhance a person’s or party’s popular standing.

The effect of prescribing the Ministerial Code under s 9(3) of the Act

32. As set out at [20] above, s 9(1)(d) of the Act provides that conduct of a Minister falling within the scope of s 8 does not amount to “corrupt conduct” unless, in the case of a Minister of the Crown, it could constitute or involve inter alia a “substantial breach of an applicable code of conduct”, relevantly the Ministerial Code.

33. The effect of prescribing the Code under s 9(3) of the Act as “an applicable code of conduct” is, according to the note which follows s 1 of the Code:

… that a suspected breach of the Code may be investigated by the Independent Commission Against Corruption and, if substantiated, give rise to a finding of corrupt conduct. …

34. That conduct amounting to a substantial breach of the Code could give rise to a finding of “corrupt conduct” would appear to follow only if, consistently with the scheme of ss 8 and 9 of the Act, the relevant breach of the Code was also “corrupt conduct” within the more general language of s 8(1), (2) or (2A). That observation is not controverted by the note because regard can only be had to the note in the interpretation of provisions of the Code (s 12(1)), and not those of the Act, and because the note does not form part of the Act for the purposes of Interpretation Act 1987 (NSW), s 35.

The five findings of “serious corrupt conduct”

35. The Commission’s five findings of “serious corrupt conduct” by the applicant are contained in [1.5.1]-[1.5.5] of the Report, extracted above at [13].

36. The first and third of those findings (at [1.5.1] and [1.5.3]) are that the applicant engaged in what amounted to conduct by a public official that constituted or involved a “breach of public trust” (s 8(1)(c) of the Act) ([11.460], [12.223]), which was a substantial breach by a Minister of s 7(2) of the Code, and cll 10(1), 11 and 12 of the Schedule (see s 9(1)(d) and (3), and s 13(3A) of the Act) ([11.489]-[11.491], [12.256]-[12.258]), and constituted “serious corrupt conduct” within s 74BA(1) of the Act ([11.513], [12.263]-[12.264]). That conduct was exercising her official functions in relation to decisions made concerning funding promised and or awarded to ACTA and RCM Stages 1 and 2 without disclosing her close personal relationship with Mr Maguire, when she was in a position of conflict of interest between her public duty and private interest which could objectively have the potential to influence the performance of her public duty.

37. The second and fourth of those findings (at [1.5.2] and [1.5.4]) are that the applicant engaged in what amounted to conduct by a public official that constituted or involved the partial (as distinct from impartial) exercise of that person’s official functions (s 8(1)(b) of the Act) ([11.594], [12.314]), which was a substantial breach by a Minister of s 6 of the Code (see s 9(1)(d) and (3), and s 13(3A) of the Act) ([11.624]-[11.626], [12.328]-[12.331]), and constituted “serious corrupt conduct” within s 74BA(1) of the Act ([11.636], [12.341]). That conduct was exercising her official functions in relation to ACTA and RCM Stage 2 funding influenced by her close personal relationship with Mr Maguire and her desire to advance or maintain that relationship.

38. The fifth of those findings (at [1.5.5]) is that the applicant engaged in what amounted to conduct by a public official that constituted or involved the dishonest or partial exercise of her official functions (s 8(1)(b) of the Act) ([13.389]), which was a substantial breach of s 6 of the Code (see s 9(1)(d) and (3), and s 13(3A) of the Act) ([13.402]-[13.404]), and constituted “serious corrupt conduct” within s 74BA(1) of the Act ([13.405]). That conduct was the applicant’s failure and refusal to discharge her obligations under s 11(2) of the Act to report her actual suspicions that Mr Maguire’s activities in relation to the “Badgerys Creek land deal”, “Country Garden and Mr Hawatt” and “Mr Demian” subject matters (as to which see [282]-[289] below) concerned, or might have concerned, corrupt conduct.

The grounds of review: overview

39. There are 13 grounds of review. With the exception of ground 1, which is directed to the role of the Hon Ruth McColl AO SC in the preparation or making of the Report, each ground raises a basis upon which it is said the Commission made a material error of law in or in relation to its findings supporting one or more of the Commission’s “ultimate” findings that Ms Berejiklian engaged in “serious corrupt conduct”. Ground 2, the “no evidence” ground, is said to relate to each of the Commission’s above findings of “serious corrupt conduct”. Grounds 3, 4, 5, 6 and 7 are directed (not necessarily exclusively) to the findings of a breach of “public trust”. Grounds 6, 8, 9 and 10 relate to the findings as to a partial exercise of official functions; and grounds 9, 11, 12 and 13 to the finding as to a breach of the duty under s 11 of the Act.

40. These grounds of review are dealt with below in the order in which they arise.

Ground of review 1

41. In terms, this ground is:

The Report dated June 2023 was prepared by the Hon Ruth McColl AO SC beyond her authority under the ICAC Act, in circumstances where she was not authorised to exercise the function of preparing or making a report from 1 November 2022 onwards, as that function was exclusively exercisable by a Commissioner or (through a delegation under s 107(6) of the ICAC Act) an Assistant Commissioner. The Commission’s purported “adopt[ion]” of Ms McColl AO SC's findings and opinions in the Report, including as to witness credibility assessments (R [2.37]), was not a valid means of curing Ms McColl AO SC's lack of authority, and those opinions and findings cannot amount to opinions and findings of the Commission.

42. The following provisions of the Act have particular relevance for this ground.

Relevant statutory provisions

43. The Commission is a corporation and consists of a Chief Commissioner and two other Commissioners (ss 4(1), 5(1)). With few exceptions, the functions of the Commission are exercisable by a Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission (s 6(1)). The exceptions include a decision to conduct a public inquiry under s 31, which must be authorised by the Chief Commissioner and at least one other Commissioner (s 6(2)). However, where a Commissioner considers there may be a conflict of interest in such a matter, the Commissioner may request an Assistant Commissioner to give that authorisation (s 6(4)).

44. With the concurrence of the Chief Commissioner, the Governor may appoint one or more Assistant Commissioners who may exercise the “functions conferred or imposed on an Assistant Commissioner by or under this or any other Act” (ss 6A(1), (2)). An Assistant Commissioner is “to assist the Commission, as the Chief Commissioner requires” (s 6A(3)). In addition, s 104B provides that the Commission “may engage any suitably qualified person to provide the Commission with services, information or advice”.

45. As stated at [15] above, the principal functions of the Commission include to investigate allegations or complaints as to corrupt conduct, to investigate any matter referred to the Commission by both Houses of Parliament, and to communicate to appropriate authorities the results of those investigations (s 13(1)). Those functions also include the making of findings “on the basis of the results of its investigations” (s 13(3)(a)). They may include findings that particular persons “have engaged, [or] are engaged… in corrupt conduct”, as well as findings of fact more generally (s 13(3), (5)).

46. As also stated at [15] above, the Commission may for the purposes of an investigation conduct a compulsory examination (s 30) or a public inquiry (s 31). Such an inquiry is to be conducted by a Commissioner or by an Assistant Commissioner, as determined by the Chief Commissioner (s 31(4)).

47. By the terms of s 6(1), the Commission’s function of making a report (s 74) is exercisable by a Commissioner, including the Chief Commissioner.

48. In relation to a matter referred to the Commission by both Houses of Parliament, the Commission is required to “prepare” a report “as directed by those Houses” (s 74(2)). The Commission is also required to “prepare” a report in relation to a matter which has been the subject of a public inquiry unless the Houses of Parliament give different directions (s 74(3)). More generally, the Commission “may prepare” reports in relation to any matter that has been or is the subject of an investigation (s 74(1)).

49. The Commission must “furnish” all reports prepared under s 74 to the Presiding Officer of each House of Parliament (s 74(4)). Such reports “shall be furnished” as soon as possible after the Commission has concluded its involvement in the matter (s 74(7)). Other than in respect of a matter referred to the Commission by both Houses of Parliament, the Commission “may defer making a report” if it is satisfied that it is desirable to do so in the public interest (s 74(8)).

50. Sections 74A to 74D contain matters which the Commission either “is authorised to include in a report under section 74” (see ss 74A, 74C, 74D) or “is not authorised to include” in such a report (ss 74B, 74BA). The matters in s 74A(1) include statements as to the Commission’s “findings, opinions and recommendations” and statements as to the “Commission’s reasons for any of its findings, opinions and recommendations”. The matters which the Commission may not include in a report extend to any findings or opinions “that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence” (s 74B(1)(a)), as well as any findings or opinions “that any conduct of a specified person is corrupt conduct unless the conduct is serious corrupt conduct” (s 74BA(1)).

51. As to delegation, s 107(1) permits the Chief Commissioner to “delegate any function of the Commission to an Assistant Commissioner or an officer of the Commission”, “officer” referring to any of a Commissioner, an Assistant Commissioner, a member of staff of the Commission or a person engaged under s 104B (s 3(1)). Section 107(2) empowers a Commissioner to delegate “any of his or her functions to an Assistant Commissioner or an officer of the Commission”, other than the authorisation of a decision of the Commission under s 6(2). Each of these powers is subject to s 107(4), which relevantly precludes the delegation of “a power of delegation conferred by this section” and “a function of making a report” under the Act.

52. The prohibition on delegation in s 107(4) does not apply to a delegation to an “Assistant Commissioner (and to an Assistant Commissioner only) if the Chief Commissioner is of the opinion that there would or might be a conflict of interest or that there would or might be a conflict of interest, or that it would be in the interests of justice to do so” (s 107(6)). It follows that in the absence of such a conflict, the function of making a report must be exercised by a Commissioner, notwithstanding that a public inquiry relating to an investigation may be (or have been) conducted by an Assistant Commissioner (s 31(4)).

43. Section 104B confers a power on the Commission to engage “any suitably qualified person to provide the Commission with services, information or advice”. A person appointed under s 104B may be delegated any function of the Chief Commissioner or a Commissioner except, relevantly, the functions of “making a report under [the] Act” (in any circumstances — cf s 107(6)) or the powers of the Commission or a Commissioner to conduct a compulsory examination or public inquiry under Div 3 of Pt 4 of the Act. A person engaged by the Commission under s 104B to provide the Commission with services, information or advice is an “officer of the Commission” (s 3(1)).

The Operation Keppel investigation and preparation of the Report

54. The investigation which became known as Operation Keppel was conducted on the Commission’s own initiative arising from evidence obtained in another investigation (Operation Dasha). Initially, Operation Keppel concerned the conduct of Mr Maguire. On 1 September 2020, the Commission announced that it would hold a public inquiry as part of its investigation into allegations concerning Mr Maguire. Following the first public inquiry (which concluded on 16 October 2020), the Commission became aware of further allegations concerning grants of public moneys made to ACTA in 2016, and on two occasions to RCM in 2018. In each case, Mr Maguire had been an advocate for those grants, and the applicant had presided over or been a member of the ERC which had approved them. In addition, during its investigation of Mr Maguire, the Commission had become aware of the relationship between Mr Maguire and the applicant. On 30 September 2021, the Commission determined to conduct a further public inquiry for the purpose of investigating allegations involving the applicant. That second public inquiry commenced on 18 October 2021 and concluded on 1 November 2021.

55. Earlier, on 15 July 2020, Ms McColl had been appointed an Assistant Commissioner of ICAC on a part-time basis commencing on that day and until 28 February 2021. By an instrument dated 16 July 2020, the then Chief Commissioner, the Hon Peter Hall QC, delegated to Ms McColl certain powers and functions. Those powers and functions included the powers of the Commission and of a Commissioner under Div 2 of Pt 4 of the Act (Investigations); Div 3 of Pt 4 (Compulsory examinations and public inquiries) except the power to issue a warrant for the arrest of a person; the functions of the Commission under Div 5 of Pt 4 (Miscellaneous), which are not presently relevant; and the powers of a Commissioner under Pt 10 in dealing with contempt of the Commission (except for the power to issue a warrant for the arrest of a person). Finally, and again not presently relevant, the power of the Commission to direct non-publication (s 112(1) of the Act) was also conferred. Most significantly, the Chief Commissioner’s delegation did not include the function of “making a report under this Act”.

56. Ms McColl’s appointment as an Assistant Commissioner was extended on four occasions: on 17 February 2021, to 30 June 2021; on 26 May 2021, to 31 December 2021; on 15 December 2021, to 30 June 2022; and on 8 June 2022, to 31 October 2022. That last date was after Ms McColl had presided over the two Operation Keppel public inquiries, the first concerning conduct of Mr Maguire, and the second concerning that conduct, as well as conduct of the applicant. Following that second inquiry, written submissions were received from Counsel Assisting and affected parties, including the applicant. The last of those submissions was received on 18 October 2022.

57. On 31 October 2022, Ms McColl was engaged under s 104B of the Act as a “suitably qualified person” to provide the Commission with “services, information or advice”. It was common ground that the reason why Ms McColl was not reappointed as an Assistant Commissioner from 1 November 2022 was that cl 5(4) of Sch 1 to the Act provided that a person may not hold the office of Assistant Commissioner “for terms totalling more than 5 years”, Ms McColl having held previous appointments as an Assistant Commissioner in the late 1990s.

58. The fact of Ms McColl’s engagement as a consultant in relation to Operation Keppel was announced by a media release issued by the Commission on about 28 October 2022. That release described those services as “required for the purposes of her finalising the Operation Keppel report, including participating in the review and editing processes of that report”. By a further press release dated 11 January 2023, the Commission provided an “Operation Keppel update” in which it was said that Ms McColl was “working to complete a draft of the report as soon as possible but, given these matters, it [was] not possible to specify a date by which it will be completed”. It also stated that “once the report has been drafted it will need to be subjected to the Commission’s review, editing and production processes”.

59. The “review panel”, consisting of, among others, the Chief Commissioner (the Hon John Hatzistergos AM) and Commissioners the Hon Helen Murrell SC and the Hon Paul Lakatos SC, received a draft report from Ms McColl on 8 February 2023. The members of that panel then met in late February and in early March 2023 to discuss that draft report. Meetings were then held between the Chief Commissioner and Ms McColl to discuss the panel’s primary concerns, suggestions and recommendations and how Ms McColl proposed to address them. The review panel then provided comments to Ms McColl in relation to the draft report, and Ms McColl provided responses to those comments, a process resulting in the production of further drafts. Ms McColl had no further involvement after 6 April 2023. The Report then went through further review, editing and checking, and was finalised on 26 June 2023.

60. The two-volume Report was furnished to the Presiding Officer of each of the Legislative Council and Legislative Assembly on 29 June 2023. Page 3 of Volume 1 of the Report is a signed letter from the Chief Commissioner, the Hon John Hatzistergos AM, to the President of the Legislative Council and the Speaker of the Legislative Assembly, which stated:

In accordance with s 74 of [the Act] I am pleased to present the Commission’s report on its investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel).

Assistant Commissioner, the Hon Ruth McColl AO SC, presided at the two public inquires held in aid of this investigation.

Disposition of ground 1

The evolving arguments regarding ground 1

61. The formulation of ground 1 and the argument in support of it focus on Ms McColl’s participation in the drafting and preparation of what became the Report at a time after she had ceased to be an Assistant Commissioner on 31 October 2022. As that argument evolved, it concentrated on Ms McColl’s participation in the process of making of credit assessments of witnesses, and specifically Ms Berejiklian. Ultimately, it is contended that Ms McColl, who had conducted the public inquiries as an Assistant Commissioner, was the only person in a position to make such credit assessments of witnesses based on demeanour. As Ms McColl’s participation in the preparation of draft reports extended beyond her appointment as Assistant Commissioner, questions arise as to whether she could assist in the making and communications of such observations and assessments for the benefit of the Chief Commissioner, and do so while a consultant rather than an Assistant Commissioner, and whether the Commission could in the Report adopt or take into account observations and assessments made or communicated by Ms McColl whilst a consultant to the Commission.

62. As Assistant Commissioner, Ms McColl had not been delegated the function of “making a report” under the Act. In that capacity, as an officer of the Commission, she was required to “assist the Commission, as the Chief Commissioner requires” (s 6A(3)). Where the Chief Commissioner had not conducted the public inquiries but had the function of “making a report” in relation to the Operation Keppel investigations, Ms McColl’s role whilst an Assistant Commissioner included providing the Chief Commissioner with the benefit of her observations and assessments as to the credibility of witnesses.

63. Ms McColl made such assessments, and communicated them to the Commission’s review panel in the form of a draft report or reports. In the Report at [2.37]-[2.38], the Commission described how it had adopted or taken into account assessments made by Ms McColl, making clear that what was contained in the Report were findings of fact, including witness assessments, of the Commission:

Witness credibility

2.37.   During this investigation, the Commission heard evidence from a large number of witnesses, some of whom gave evidence on more than one occasion. Aside from independent or objective evidence against which the credibility of witnesses may be assessed, including contemporaneous notes or other records – such as lawfully intercepted telephone calls, emails and text messages, evidence given by disinterested witnesses, the incontrovertible facts and the probabilities involved – the Commission adopts assessments made by the presiding Assistant Commissioner, the Hon Ruth McColl AO SC, who has had regard to other factors in determining the credibility of a witness and the evidence they gave. These factors include the responsiveness or otherwise of answers, a reluctance or otherwise to make appropriate concessions, whether the evidence given was direct or obfuscatory, and whether the witness was cooperative or argumentative.

2.38.   Assessments as to witness credibility and reliability are important factors for the Commission to consider in properly weighing the evidence and making findings of fact that are available on that evidence. Witness assessments are included in the relevant chapters of this report. (Emphasis added.)

64. The Commission declined to make a global finding about the credibility of the applicant, instead making the following more general observations:

10.41.   Ms Berejiklian gave evidence over a number of days in private and public hearings. In the Commission’s view, it would not be a useful approach to her evidence to make a global finding of the nature for which Counsel Assisting contends. It is true that Ms Berejiklian was an unsatisfactory witness in many respects. Some of that may be explicable on the basis of the period of time over which the evidence ranged, and a tendency to view the witness box as more like a husting than a place from which to respond directly to the question.

10.42.   Nevertheless, in such circumstances the Commission has had regard to the objective facts proved independently of Ms Berejiklian’s testimony, in particular by reference to the numerous documents, the numerous records of communications between herself and Mr Maguire, to the extensive evidence of other participants in the events and also to Ms Berejiklian’s motives and to the overall probabilities. (Footnote omitted; emphasis added.)

65. The applicant contends that it cannot be said with any confidence whether the witness assessments adopted or otherwise taken into account by the Commission in “making” the Report were made by Ms McColl in her capacity as an Assistant Commissioner as opposed to being made in her subsequent capacity as a consultant. On the applicant’s argument, it was accepted that there would not have been any “problem” with the validity of findings and opinions such as those expressed above, which rely on such assessments, if the evidence had been capable of establishing that Ms McColl had made those assessments at a time when she was an Assistant Commissioner, and, presumably, if she had also continued to be available to provide assistance to the Commission in that capacity up to the time when the Report was furnished to Parliament.

66. To that end, senior counsel for the applicant submitted:

It is the Commission who makes a report, and an Assistant Commissioner who may be required to conduct public hearings and may be required to assist the Commission in general, but obviously therefore including [in the] very important function of making reports.

By statute [there is] … a person that Parliament contemplates may form the impressions that the person conducting the hearing may form, but [those impressions] are not available to be formed by those who didn’t conduct the hearing. But by statute, that assistance can be given. It’s an assistance as Assistant Commissioner.

…

It is the person who is doing the statutory task who needs to hold the office to which that task appertains. The task is assisting, in this case with respect to witness assessments. You can’t do that unless you’re an Assistant Commissioner.

67. The following exchange occurred shortly before that submission:

BELL CJ:   … The difference then is she’d ceased to be an Assistant Commissioner at a point in time we know and what we don’t know is whether she had formed the assessments before or after that time and the question is whether it matters. Really, that’s the question.

WALKER:   And I accept that that is the analysis.

68. This argument is different from that made in the applicant’s written submissions, both in chief and reply, which instead described the real question as being whether, following the expiration of her commission on 31 October 2022, Ms McColl herself undertook the function of “making a report” by proposing findings and assessments that were adopted by the Chief Commissioner. This argument directed attention to the scope of the function of “making a report”, which was said to include the functions of preparing and furnishing a report. It also required consideration as to whether Ms McColl undertook the function of “making a report” so understood.

The arguments as formulated in the written submissions

69. The applicant’s written submissions contended that the function of “making a report” in s 107(4)(b) and the expression “making a report” in s 74(8) are each to be understood as a “compendious term encompassing the twin functions of ‘prepar[ing]’ and ‘furnish[ing]’ reports”. In this context, “preparing” was said to include Ms McColl’s producing and amending a draft report, and her participating in the review or editing process which resulted in the publication of the Report. On this construction of that expression, Ms McColl, as an Assistant Commissioner to whom the function of “making” the Report had not been delegated, would not have been authorised to participate in a drafting process that included her providing witness credibility assessments.

70. The expression “making a report” is used in ss 18(2)(c), 74(8) and 107(4)(b) of the Act, and is to be contrasted with the language “prepare reports” and “furnish reports” used in s 74(1)-(4). Statements that the Commission may or shall “prepare” reports describe a process and outcome likely to involve various officers and staff, as well as resources, of the Commission, and over a significant period of time. The function of “making a report” is much more specific. The report is directed to a particular body, in this case Parliament, and the function of making it is to be exercised by a Commissioner, that being the default position as stated in s 6(1), unless that function has been delegated to an Assistant Commissioner in the circumstances described in s 107(6). The exercise of that function includes, from the perspective of a Commissioner as ultimate decision-maker, undertaking responsibility for the final form of a report, including its findings, opinions, recommendations and reasons. As the Commission submits, the “making” of a report describes the exercise of “presenting findings to Parliament [concerning the outcome of an investigation] to which some significance is then attached”, and is not merely a reference to the logistical exercise of preparing or drafting a report.

71. That the expression “making a report” describes the exercise embodied in deciding upon the final form of a report containing the Commission’s findings, opinions and recommendations, and communicating it to the Parliament, finds some support in the decision in Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 633-634; [1990] HCA 28. Section 18(2) of the Act permits the Commission to “defer making a report”. The Court identified the purpose for which that discretion was conferred as being to protect criminal proceedings before a court from interference arising from the making public of a report containing the findings and observations of the Commission about the same or a related subject matter. The “dangers” which the Court identified the legislature sought to avoid would ordinarily only manifest upon the communication of the final form of a report, not in the preparation of any draft.

72. The applicant’s argument as ultimately made does not contend that Ms McColl, acting either as an Assistant Commissioner or as a consultant, purported to exercise the function of “making” the Report, notwithstanding that in each capacity she had participated in the drafting process by suggesting findings, opinions and recommendations. It was accepted that in allowing Ms McColl to undertake that role in the drafting process as an Assistant Commissioner the Commission did not thereby delegate to her the task of “making” the Commission’s findings in respect of witness credibility assessments, notwithstanding that the Chief Commissioner may ultimately have “adopted” those assessments as findings or assessments of the Commission. Nor is it controversial that this drafting process involved the Chief Commissioner bringing his judgment to bear in relation to any suggested findings, opinions and recommendations contained in a draft report, with a view to his determining the final content of the Commission’s Report.

73. The applicant’s written submissions also suggested that, in circumstances where the Commission was required to address substantial issues of credit in making findings, the principles of natural justice precluded the Chief Commissioner as decision-maker from merely adopting a consultant’s assessment of the credibility of the relevant witnesses. In oral argument, it was made clear that the notion of procedural fairness was invoked in this context solely in support of the proposition that the only person who could provide such assistance to the Chief Commissioner was the person who presided at the inquiry, and only whilst he or she remained an Assistant Commissioner. It was said not to be sufficient that he or she was a consultant at the time such assistance was provided. Such a limitation is not apparent in s 6A(3), which simply says that “[a]n Assistant Commissioner is to assist the Commission, as the Chief Commissioner requires”.

74. It is also important to note here that it was not contended by the applicant that she was denied procedural fairness by the adoption of a process in which the person making the Commission’s findings and assessments was not the person who conducted the public inquiry and could directly make demeanour-based assessments. Whilst natural justice does not permit the implication of authority to delegate the hearing function with respect to the exercise of judicial power, the position is not necessarily the same in relation to an administrative body undertaking an investigative inquiry. See Local Government Board v Arlidge [1915] AC 120 at 132-134 (Viscount Haldane LC); Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208 at 221-222 (Mason J); [1976] HCA 36. See also South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39 where Brennan J said at 409-410:

It is not a general rule of administrative procedure as it is of judicial procedure that the person who hears should decide. A need for a further hearing by a repository of a power after a hearing by an expert board may arise if, in the particular circumstances, the interests of a party are affected by some new fact or matter which the decision-maker proposes to take into account and which the party has had no opportunity to deal with. …

310. The background to the matter has been comprehensively set out in the majority judgment as have the relevant statutory provisions.

311. As to Ground 1, I did not understand Senior Counsel for the applicant to be abandoning the written submissions provided before the hearing. Rather, I understood the oral submissions to be emphasising a particular aspect of the applicant’s argument that the report entitled “Investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel)” (Report) was delivered in excess of jurisdiction. However, nothing ultimately turns on whether the applicant’s oral submissions were so confined given the conclusion I have reached as to the aspect that was emphasised in the applicant’s oral submissions on the lack of authority of the Hon Ruth McColl AO SC (once her appointment as Assistant Commissioner had expired and she was simply a consultant appointed pursuant to s 104B of the Independent Commission Against Corruption Act 1988 (NSW) (the Act) to provide services, information or advice to the Commission) to make witness credibility assessments which could then be ‘adopted’ by the Commission as the basis for the adverse findings it made against the applicant.

312. The constitution of the Commission has been explained in the majority judgment. Relevantly, as their Honours have noted, the Act refers variously to the “making” of a report (s 74(8)), the preparation of a report (see s 74(2)-(4)), and the furnishing of a report (see s 74(7)). The function of making a report under the Act is one that cannot be delegated (s 107(4)), other than to an Assistant Commissioner if the Chief Commissioner is of the opinion that there would or might be a conflict of interest or it would be in the interests of justice to do so (s 107(6)).

313. The applicant has submitted that the notion of “making a report” under s 74 encompasses the functions of both preparing and furnishing a report, referring to the extrinsic materials for the original Independent Commission Against Corruption Bill 1988 (No 2) (NSW); in particular, the reference in the Explanatory Note to cl 76 (which in terms framed the preparation of a report and furnishing of that report as a requirement to “make” reports). The applicant does not submit that “making” a report encompasses all administrative aspects of the preparation of the report along the way.

314. The applicant argues that the restriction on delegation of the function of making a report (as noted above) reflects a choice by Parliament to limit the pivotal functions of preparing and furnishing reports under the Act to Commissioners or, in some circumstances, Assistant Commissioners. The applicant submits that, by specifically providing that a function of making a report may be delegated “to an Assistant Commissioner only”, Parliament manifested its intention that this was the only means of making a valid report (referring in this context to Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93]).

315. Ms McColl was appointed as an Assistant Commissioner under s 6A(1) of the Act on 15 July 2020 on which date the Chief Commissioner executed an instrument under s 107(1)-(2) of the Act delegating specified functions to Ms McColl. Those functions did not include the function of “making a report” (as the Commission accepted in submissions in this Court – see AT 51.41).

316. After a number of extensions, Ms McColl’s appointment as Assistant Commissioner expired. Ms McColl’s engagement as a consultant (after the expiry of her term as Assistant Commissioner) in late October 2022, as announced by the Commission on about 28 October 2022, was “for the purposes of her finalising the [Report], including participating in the review and editing processes of that [Report]”.

317. The Commission received the last of the written submissions in relation to the enquiry on 18 October 2022. There is no suggestion that prior to the expiry of her term as Assistant Commissioner Ms McColl had provided a draft Report to the Commission. Indeed, it is clear that, as at 11 January 2023, Ms McColl had not yet completed her draft of the Report. On that date, the Commission issued a media release stating that Ms McColl was working to complete a draft of the Report as soon as possible and that once the Report had been received it would need to be subjected to the Commission’s “review, editing and production processes”. The draft Report was not received until 8 February 2023; and was not finalised (through the process referred to at [59] of the majority judgment) until 26 June 2023 before being furnished to Parliament on 29 June 2023.

318. The significance of the above timeline of events is that whatever draft “findings” were recommended or included in the draft Report when it was submitted by Ms McColl on 8 February 2023, they must have been made by her at that time in her capacity as a consultant and not as Assistant Commissioner. This is of relevance because the applicant submits that, from 1 November 2022 onwards, the function of preparing a report required under s 74(3) could not be carried out by Ms McColl; that function could be delegated only to an Assistant Commissioner (assuming a perceived or potential conflict of interest subsisted or the interests of justice required).

319. The applicant submits that the media releases by the Commission referred to above provide a sound basis to conclude that Ms McColl was carrying out the function of preparing the Report after the expiration of her Commission on 31 October 2022. I agree. The applicant further submits that the Commission’s role was limited to reviewing and deciding whether or not to adopt Ms McColl’s draft Report. In this regard, the applicant points to the refusal of the Commission to provide disclosure of matters going to Ms McColl’s functions after 31 October 2022, of which the Commission has peculiar knowledge, as providing a ready basis for the drawing of a negative inference against the Commission on this issue (referring to Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 at [153]-[154], and the cases there cited).

320. The applicant contends that, by continuing to prepare the (draft) Report after the expiration of her appointment as an Assistant Commissioner, Ms McColl exceeded the authority conferred upon her under the Act; and that this amounts to jurisdictional error (citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163], quoted with approval in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [66]), which affects the Report furnished to Parliament, having regard to the Commission’s adoption of the Report prepared by Ms McColl outside the limits of her authority.

321. In oral submissions, Senior Counsel for the applicant made clear that there is no issue taken with the proposition that the Commission may enlist the assistance of persons in connection with the preparation and making of a report (see at AT 4.5-12) but the applicant’s position, as I understand it, is that, insofar as the Commission ‘adopted’ the findings or opinions by Ms McColl as to witness credibility assessments, this amounted to jurisdictional error, as the making of such assessments by Ms McColl at the time that she was merely a consultant was beyond power.

322. In that regard, it is important to note that the Commission expressly noted that it had adopted assessments made by Ms McColl (see [2.37] of the Report, reproduced in the majority judgment at [63]) and that the Commission emphasised that assessments as to witness credibility and reliability were important factors for the Commission to consider in properly weighing the evidence and making findings of fact available on that evidence (see at [2.38] of the Report, also reproduced in the majority judgment).

323. The Commission, in its written submissions, contends that the applicant has not established that the Commission ‘adopted’ a report prepared (in the statutory sense) by Ms McColl or adopted any findings and opinions made by by Ms McColl. However, at least in relation to the assessment of witness credibility, that is squarely contradicted by the Report itself (and, in particular, the statement at [2.37] that has been reproduced in the majority judgment). While the Report does not record particular findings by Ms McColl contained in her draft Report, it cannot be gainsaid that the Commission did adopt Ms McColl’s assessments. That is exactly what the Report says it did.

324. The Commission argues that [2.37] should be understood, in context, as meaning that it took the benefit of Ms McColl’s assessment of factors of the kind set out at [2.37] (such as the responsiveness of otherwise of answers and the like) to assist it in making (its own) findings, including as to credibility. Further, the Commission points to the fact that [2.37] of the Report referred also to “independent or objective evidence against which the credibility of witnesses may be assessed” (referring by way of example of this to [13.181] of the Report).

325. The Commission also notes that, in relation to the assessment of the applicant’s credibility, reference was made in the Report to objective facts proved independently of her testimony and to the “overall probabilities” in assessing the credibility of her evidence (referring by way of example to [11.442], [13.189], [13.196]-[13.197], [13.204], [13.347] and [13.350]-[13.363] of the Report).

326. The Commission argues that the statements on its website (to which the applicant has pointed) indicate only (and unremarkably) that Ms McColl had involvement with drafting the Report and the processes of reviewing and editing the same (after her engagement as consultant) and do not demonstrate that the Report was made by Ms McColl and not the Commission. Nor, it says, can factual inferences be drawn against the Commission because it formed the view under s 111(4)(c) of the Act that it was not necessary in the public interest to disclose information (as to the exercise of Ms McColl’s functions as consultant) that cannot otherwise be disclosed. It is submitted that drawing an adverse inference against the Commission would undermine the purpose of s 111 of the Act.

327. The Commission maintains that it is inherently improbable and impractical to suggest that it is contrary to the Act for the Commission to enlist the assistance of others in the drafting of the Commission’s reports; and that it would be unworkable if the function of “making a report” were to be taken to include every step involved in the formulation of a report, including matters such as drafting parts of a report. The Commission emphasises that what cannot be delegated (except to an Assistant Commissioner in certain circumstances) is the “function” of making a report; and says that s 107(4)(b), construed in context, provides that it is the making of findings, opinions, recommendations and reasons that can be communicated to Parliament which must be exercised by a Commissioner.

328. The Commission argues that the words “making a report under this Act” in s 107(4)(b) are not synonymous with drafting a report (pointing to the use of “make” in various of the statutory provisions in contradistinction to other acts such as “providing” (s 57B(5)) and “submitting” (s 55)); and says that “making a report” is to be understood as the ultimate act, embodied in the final report, of discharging the function of making findings, opinions and recommendations (referring to ss 75, 77 and 77A). The Commission further says that the function of making a report under the Act is not a reference to the logistical exercise of drafting a report but, rather, to the concept embodied by such making of a report; the communication of the Commission’s findings, opinions, recommendations and reasons for Parliament’s consideration.

329. The Commission also argues that nothing turns on the question whether the “preparation” and “furnishing” of a report (as referred to in s 74) are, for the purposes of the Act, acts which are distinct from the “making” of the report itself, again pointing to the ability of the Commission to enlist the assistance of officers as part of the preparation of its reports.

330. The Commission submits that the substantive requirement for making a report under the Act is that a Commissioner brings his or her own mind to the findings, opinions, recommendations and reasons in a report, and that the report comprises the Commissioner’s own findings. The Commission says that it is not inconsistent with that responsibility for a Commissioner to have other officers (including a consultant) to assist with the drafting of a report.

331. As to this last proposition, as adverted to above, the applicant does not cavil with the submission that assistance may be provided in the preparation of a report. However, the above submission by the Commission does highlight the complaint here made. If (as the Report itself states) the Commission ‘adopted’ witness credibility assessments of Ms McColl, then on the face of the Report those assessments are not assessments of the Commission – they are assessments of someone to whom the function of making such assessments had not been delegated at the time the findings based on those assessments are made.

332. I accept that the task of the Chief Commissioner in making the final Report included the determination of the necessary findings, opinions and recommendations; and that (as the majority points out) in terms of the function, authority and power up to this time the Chief Commissioner was in a position to oversee the preparation of a draft of the Report. However, the evidence does not permit a conclusion as to what was done in that regard prior to submission of the draft Report; and the Commission’s own statements in the media releases referred to above and the Report itself suggest that the function of preparing the draft Report was entrusted to Ms McColl and that it was only once that draft Report was received that the process of review by the review panel was to commence. In that regard, I accept that the Chief Commissioner (and the review panel of Commissioners) could draw on the evidence and submissions made to the Commission in the course of the enquiry; and could obtain assistance from services or advice provided by someone in the position of Ms McColl as officer of the Commission.

333. However, the difficulty as I see it is that the stated (and on the face of it unqualified) “adoption” by the Commission of witness credibility assessments made by Ms McColl (as presumably were included in her draft Report) amounts to her assessments being the relevant findings at least on aspects of the evidence given in the public hearings. It may be that those assessments could be (and perhaps were) tested by reference to objective evidence or the like but the Report does not indicate that (or how) this was done; nor how it is that the “adopted” credit assessments were relied upon in the ultimate conclusion (as opposed to assessments drawn from other objective evidence).

334. The conclusion as to a witness’ responsiveness in answering questions, for example, is in practice something most likely to be drawn from observation of the evidence being given rather than by reference, say, to a transcript of that evidence. Similarly, conclusions as to whether a witness was “dissembling” (see [13.181]) must surely have been informed by observation of the witness giving evidence (something that only Ms McColl, not the Commissioners, was able to do).

335. There is nothing to indicate that the opinions expressed in the draft Report by Ms McColl, whatever they were, as to witnesses’ credibility were simply treated by the Commission as submissions that the Commission tested against objective evidence; and observations in the Report suggesting that the applicant treated giving evidence as akin to being on the hustings reinforces, rather than dispels, the conclusion that they were not. The language of “adopt” in relation to the witness credibility assessments demonstrates that Ms McColl’s assistance went beyond providing “services, information or advice” (as permitted by s 104B) and into the making of findings (which the Commission then chose to adopt) something that as a consultant Ms McColl did not have the power to do.

336. As the majority has noted at [83], s 104B does not limit the subject matter of the “service, information or advice” that a consultant appointed therein may provide. However, I do not accept that the assistance provided by Ms McColl (in conveying her assessments of witness credibility, which were “adopt[ed]” by the Commission) can accurately be described as no more than the provision of “services, information or advice”. The communication of Ms McColl’s findings as to witness credibility, in circumstances where those findings were explicitly adopted by the Commission, amounts in effect to a delegation of the Chief Commissioner’s task of determining all necessary findings in the making of the Report. I do not agree that such a finding imposes any unwarranted limit on the Commission’s ability to carry out its principal function and purpose; particularly where those responsibilities that may only be discharged by a Commissioner (or properly appointed Assistant Commissioner) are clearly defined in the Act.

337. I do not enter into the debate as to whether the non-disclosure by the Commission (when such information was sought by the applicant’s legal representatives) as to the functions exercised by Ms McColl gives rise to any adverse inference. It is not necessary to do so in circumstances where the Commission has itself made clear (at [2.37]) that it adopted her witness credibility assessments. The Commission has thus as a practical matter delegated (impermissibly in my opinion) to a consultant the task of making credibility assessments of the witnesses (at least to the extent that this was based on the witnesses’ evidence in the hearings before the consultant when she was Assistant Commissioner); an issue that the Commission correctly recognised was an important factor in the determination of its ultimate conclusions.

338. In those circumstances I respectfully cannot agree with the conclusion by the majority that the Commission in making its Report did not act beyond its authority or power. I consider that the Commission’s own Report establishes that it did more than merely obtain services, information or advice from Ms McColl. It adopted Ms McColl’s assessments. Indeed, the explanation in the Report as to the process by which “suggestions” were made to Ms McColl during the review of the draft Report tends to support the conclusion that the Commission in effect delegated to Ms McColl responsibility for assessing witness credibility in that it inverts the process of the Commission making the Report. Ms McColl’s provision of “services” to the Commission would well involve the making of suggestions to it; not the converse. In any event, having regard to the admitted adoption by the Commission of Ms McColl’s assessments on what was recognised to be such an important issue, I would uphold Ground 1.

339. Senior Counsel for the Commission accepted that if Ground 1 were to be upheld then it would follow that the report was beyond power (AT 2.45-46). Therefore, I would find for the applicant and quash the findings of serious corrupt conduct.

340. As to the remaining grounds of review, I agree with the conclusions reached by the majority.

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Amendments

26 July 2024 - Typographical error in date at [61] amended

Decision last updated: 26 July 2024