C v The Independent Commissioner Against Corruption - [2020] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
C v THE INDEPENDENT COMMISSIONER AGAINST CORRUPTION
[2020] SASCFC 57
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Bleby)
26 June 2020

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT - TIME FOR APPLICATION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - EXISTENCE OF OBLIGATION - PARTICULAR CASES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
An application brought by the defendant, the Independent Commissioner Against Corruption (the Commissioner), seeking the summary dismissal of an application for judicial review brought by the plaintiff, or, in the alternative, an order that the plaintiff’s statement of grounds be struck out in whole or in part.
On 22 March 2017, the plaintiff attended the Commissioner’s offices in response to a summons, and underwent an examination. He made a claim of privilege against self-incrimination with respect to the whole of his evidence. The Commissioner subsequently made a non-communication direction to the effect that any evidence given by the plaintiff that would enable him to be identified must not be communicated to any person (with certain exceptions) in the course of the examination. On 22 June 2017, the Commissioner varied that direction without reference to the plaintiff, which meant that the fact the plaintiff had given evidence was communicated to the relevant staff of the Office of the Director of Public Prosecutions.
On 9 August 2018, the plaintiff was told by the Commissioner that the corruption investigation had concluded. However, on 6 November 2019, the Commissioner said that on 6 July 2018, he had modified the assessment of the investigation so that it was assessed as a matter raising issues of serious and systemic misconduct and maladministration in public administration.
On 19 December 2019, the Commissioner further varied the non-communication direction to enable any evidence given by the plaintiff, or information that might enable him to be identified as a person who gave evidence before the Commissioner, to be communicated to certain people, who included his superiors.
The plaintiff applied for judicial review of seven decisions, acts or omissions which he claimed occurred in the course of action taken, or purported to be taken by the Commissioner under s 24 of the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act). Broadly, the three grounds of appeal were:
1. The defendant, in making the decisions to vary the directions, denied the plaintiff procedural fairness and/or failed to consider a relevant consideration, which was a jurisdictional error;
2. The defendant, in making the decision to modify his assessment of the corruption matter and/or the decision to exercise the powers of an inquiry agency to investigate a potential matter of serious or systemic maladministration or misconduct in public administration, exceeded his power, which was a jurisdictional error; and
3. The defendant then used information in the investigation of misconduct or maladministration in public administration, from the investigation into public corruption where there had been an abrogation of the plaintiff's privilege against self-incrimination. The decision to use that information, and then its use, in the misconduct or maladministration investigation was beyond the defendant's power, which was a jurisdictional error.
The plaintiff sought relief in the nature of certiorari and/or declarations as to the decisions made by the Commissioner, in addition to an injunction restraining the use of the plaintiff’s evidence compulsorily obtained in the corruption investigation from being used as part of the maladministration or misconduct investigation.
Held, per Bleby J (Stanley J agreeing), summarily dismissing the plaintiff’s application for judicial review:
1. Ground 1 does not disclose a reasonable basis for the claim.
2. Prior to making the variation of 19 December 2019, the Commissioner did not have an obligation to accord procedural fairness to the plaintiff in respect of the putative risk to the plaintiff’s reputation. The ordinary meaning of ‘reputation’ can easily enough be seen to extend to a person’s general reputation in the community or with respect to those who know of the person. Within a particular statutory context, a specific reference to reputation and, indeed, the obligation to accord natural justice in respect of the potential for adverse effects on a person’s ‘reputation’, may well require the concept of reputation to be understood as also encompassing a narrower field.
3. The concept of ‘prejudic[ing] the … reputation’ of a person within the meaning of subclauses 3(10) and (12) does not extend to prejudicing the person’s reputation in the eyes of those to whom disclosures are required, as a matter of law, to be made for the purposes of discharging natural justice obligations in the course of the investigation itself.
4. The concept of ‘prejudic[ing] the safety’ of a person in subclauses 3(10) and (12) does not extend, in this context, to causing psychological harm or mental stress in the sense claimed by the plaintiff, but is concerned with physical safety.
Held, per Bleby J (Kourakis CJ and Stanley J agreeing), summarily dismissing the plaintiff’s application for judicial review:
As to Ground 2:
1. Ground 2 does not disclose a reasonable basis for the claim.
2. It was open to the Commissioner to make more than one assessment and to do so consecutively. That is at his absolute discretion and such a course may, but need not, take the form of modifying an assessment in the course of dealing with the matter. Even if the action taken by the Commissioner could not properly be characterised as a modification of the assessment, the Commissioner had a discretion to make a fresh assessment after concluding, as a matter of fact, the investigation pursuant to s 24(1) of the ICAC Act.
3. Section 24(7) of the ICAC Act provides that the making of an assessment, etcetera, in respect of a matter is at the absolute discretion of the Commissioner. The second part of s 24(7) simply confirms that if the Commissioner does modify the assessment in the course of dealing with the matter, he can deal with the matter in accordance with that modification.
As to Ground 3:
4. Ground 3 does not disclose a reasonable basis for the claim.
5. There is no textual reason to read s 56A(1) of the ICAC Act other than fully distributively. That is, evidence or information obtained by the lawful exercise of powers in relation to any of the subject matters of an investigation may be used for the purposes of any investigation in relation to any other subject matter of investigation.
6. It is entirely appropriate and understandable that Parliament would seek to define and constrain the powers of the Commissioner consequent on an assessment made lawfully and, in particular, in good faith. However, if the investigation is then carried out lawfully according to Parliament’s prescription, and information is thereby revealed that paints a more comprehensive picture of the nature of the matter, indicating some different character of wrongdoing, there is an obvious public interest in that information being available for that further purpose. That is the mischief to which s 56A is directed.
As to the extensions of time:
7. It is not necessary to resolve the dispute regarding the date by which the plaintiff had sufficient knowledge of the variation of the non-communication direction.
8. It is not for a defendant to an application for judicial review, as a model litigant or otherwise, to identify prejudice before permission under rule 200(2) of the Supreme Court Civil Rules 2006 (SA) would not be given.
9. Rule 200C(1) of the Supreme Court Civil Rules 2006 (SA) does not operate as a time limit on the ability to bring an application for summary judgment under r 232. This being an application for summary dismissal under rule 232, there was no need for an extension of time.
Held, per Kourakis CJ, dissenting with respect to Ground 1:
1. Ground 1 is reasonably arguable.
2. There is no statutory indication of an intention to deny witnesses an opportunity to disclose risks to their safety or reputation of which they may be uniquely aware. Indeed, the purpose of the discretion to protect, in so far as it is reasonably practicable to do so, the reputation and safety of a witness is greatly undermined if there is not a concomitant obligation to hear from the witness on that question.
3. That there be a declaration that the Commissioner was bound to provide the plaintiff procedural fairness before making the variations to the non-disclosure direction identified in paragraphs 2.3 and 2.4 of the amended statement of grounds.
Acts Interpretation Act 1915 (SA) s 37; Australian Securities and Investments Commission Act 2001 (Cth); Corporations Act 2001 (Cth); Criminal Justice Act 1989 (Qld); Independent Commissioner Against Corruption Act 2012 (SA) ss 3, 5, 7, 23, 24, 25, 29, 36, 36A, 37, 42, 43, 54, 55, 56, 56A, pt 4, div 2, sub-divs 2, 3; Medical Practice Act 1994 (Vic) s 41; Ombudsman Act 1972 (SA) s 19; Royal Commissions Act 1917 (SA) ss 10, 16; Supreme Court Civil Rules 2006 (SA) rr 104, 131, 200, 200C, 232, referred to.
Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301, distinguished.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Annetts v McCann (1990) 170 CLR 596; AYHT v Medical Board SA (2000) 77 SASR 148; Hall v City of Burnside (2006) 102 SASR 298; Johns v Australian Securities Commission (1993) 178 CLR 408; Kelson v Forward (1995) 60 FCR 39; Kioa v West (1985) 159 CLR 550; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Saraceni v Australian Securities and Investment Commission (2013) 211 FCR 298; Weissensteiner v R (1993) 178 CLR 217, discussed.
Cornall v A.B. [1995] 1 VR 372; Dias v O’Sullivan [1949] SASR 195; Hart v Parole Board [2017] SASC 184; Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193, considered.

C v THE INDEPENDENT COMMISSIONER AGAINST CORRUPTION
[2020] SASCFC 57

Full Court: Kourakis CJ, Stanley and Bleby JJ

KOURAKIS CJ: I gratefully adopt the summary of the issues and relevant factual material in the judgment of Bleby J. I would summarily dismiss the application for judicial review on grounds 2 and 3 for the reasons given by his Honour.
However, I would hold that ground 1 is reasonably arguable. Indeed, I would make a declaration that the Independent Commissioner Against Corruption (the Commissioner) was bound to provide the plaintiff procedural fairness before varying the non-disclosure direction pursuant to clause 3(11) of Schedule 2 of the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act). My reasons follow.
Section 3(1)(c) of the ICAC Act includes, as a primary object of the ICAC Act, the striking of a balance between the public interest in exposing corruption, misconduct and mal-administration on the one hand, and avoiding undue prejudice to a person’s reputation on the other. In striking that balance, a legislative choice was made to require the Commissioner to conduct examinations in private. That choice is reflected in s 7(4)(a) and Schedule 2 of the ICAC Act. Section 7(4)(a) of the ICAC Act relevantly provides:
(4) The Commissioner is to perform his or her functions in a manner that—
(a) is as open and accountable as is practicable, while recognising, in particular, that –
(i)examinations relating to corruption in public administration must be conducted in private; …
Section 29 of the ICAC Act provides that if an examination is to be conducted, it is to be governed by the provisions of Schedule 2. Clause 3(3) of Schedule 2 provides that examinations must be held in private but confers on the examiner a discretion to allow selected persons to be present. Plainly enough, that discretion cannot be exercised to admit the public generally.
As Bleby J observes, clause 3(7) of Schedule 2 requires the examiner to give a witness an opportunity to comment on who should be permitted to be present in the course of the examination. That provision is calculated to maintain the privacy of the examination and is a statutory recognition of the witness’s interest in who should be permitted to observe it. I acknowledge that it is at the very least arguable that clause 3(7) of Schedule 2, by expressly conferring a right to be heard on who should be present in the course of the examination itself, excludes any obligation to afford procedural fairness in the making, or variation, of a non-disclosure direction. However, I prefer the view that clause 3(7) does no more than prescribe the particular procedure the examiner must adopt as to the presence of others in the examination, and does not, by necessary implication, exclude an opportunity to be heard on any non-disclosure direction which an examiner, or the Commissioner, may see fit to make or vary pursuant to clause 3(9) and clause 3(11) respectively. Indeed, it would be surprising if Parliament intended that a witness should be given an opportunity to be heard, at the commencement of the examination, on who should be present whilst it is conducted, but intended to deny that same witness an opportunity to be heard on who should be exempted from a non-disclosure direction given at the conclusion of the examination.
Clause 3(9) confers a discretion on the examiner to give a direction (a non‑disclosure direction) that the identity of a witness and/or the evidence he or she has given not be disclosed at all or only to specified persons. Clause 3(10) requires that the examiner give a non-disclosure direction if a failure to do so might prejudice the safety or reputation of a person, or prejudice the fair trial of a person, or prejudice the fair trial of a person who has been, or may be, charged with an offence. Plainly enough, clause 3(10) does not limit the general discretion conferred by clause 3(9). It must also be understood that even though clause 3(10) requires the examiner to make a non-disclosure direction, that very non-disclosure direction may include such exemptions as may be specified in accordance with clause 3(9).
Clause 3(11) confers a discretion on the Commissioner to vary or revoke a non-disclosure direction. Clause 3(12) prohibits the Commissioner varying or revoking a non-disclosure direction if to do so might prejudice the witness’s safety or reputation.
Importantly, the very identity of a person who has given evidence falls within the scope of the non-disclosure direction which an examiner or the Commissioner may give. Often, the mere fact that a person has been examined by the Commissioner, or an appointed examiner, may affect his or her reputation and/or endanger him or her. However, the general requirement that examinations be held in private prescribed by clause 3(3) of Schedule 2 is, in itself, a reason to give a non-disclosure direction with respect to information that might enable a witness to be identified, irrespective of whether or not his or her reputation might be affected.
The question of construction which arises on ground 1 is whether an examiner is bound to afford procedural fairness to a witness when considering whether or not to make an order pursuant to clause 3(9) of Schedule 2 and whether the Commissioner is bound to do so when varying, pursuant to clause 3(11), an order which has been made.
In considering the particular code for the conduct of examinations prescribed by Schedule 2, I do not gain much assistance from those authorities in which it has been held, under the particular statutory schemes therein considered, that procedural fairness is excluded in the preliminary phases of an inquiry and before the making of ultimate findings. Schedule 2, including the powers it confers to maintain privacy, is concerned with the very examination phase. They require a consideration of the effect of the disclosure of the fact of an examination, and the witness’s testimony, on his or her safety and reputation when considering to whom that information or evidence should be disclosed.
A witness examined pursuant to Schedule 2 may have peculiar knowledge of how the communication of his or her identity, or testimony, beyond those present at the hearing, might affect his or her safety or reputation. I can see no statutory indication of an intention to deny witnesses an opportunity to disclose risks to their safety or reputation of which they may be uniquely aware. Indeed, the purpose of the discretion, which is to protect, in so far as it is reasonably practicable to do so, the safety and reputation of a witness, is greatly undermined if there is not a concomitant obligation to hear from the witness on that question.
I wish to emphasise that we are here concerned with the procedural fairness that must be afforded to a person who has given evidence. More difficult questions might arise as to whether there is any obligation to afford procedural fairness to persons adversely named in the evidence of a witness, and, if there is, as to the content of that obligation.
Moreover, the procedural fairness that must be afforded to a witness might also vary depending on whether there are constraints arising out of the nature of the investigation itself. Those constraints might limit, and in some cases very substantially limit, the information that can be provided and the timeframes given for a response. I emphasise, however, that an obligation to afford procedural fairness does not limit the discretion of the examiner, or the Commissioner, as to the terms of, and in particular the exemptions to, any non-disclosure direction that is given. The examiner or the Commissioner may, on balancing the competing interests and merits, determine to disclose information despite the consequences such a disclosure may have on the safety or reputation of the witness.
As Bleby J observes, it will very often be necessary to disclose the identity and testimony of a witness, in order to afford procedural fairness to those persons who might be the subject of adverse findings by the Commissioner. However, acceptance of the proposition that there may be good reasons to disclose information, notwithstanding the consequence of that disclosure on a witness’s safety or reputation, does not entail the denial of procedural fairness to that witness. On the contrary, it emphasises the importance of providing the witness an opportunity to be heard.
In this case, there is a real question as to whether the plaintiff gave evidence at all because he refused to answer any questions. Whether or not he gave any evidence for the purposes of clause 3, plainly enough, the plaintiff’s refusal to answer questions rendered it unlikely that there was anything in his evidence that needed to be provided to others for comment, lest his testimony found an adverse inference against them. On the other hand, the mere information that the plaintiff was called, and that he refused to answer questions, were matters that might affect his reputation. No question of a review of the merits of the Commissioner’s decisions arises on this application. What is an issue is the plaintiff’s procedural right to provide material, possibly uniquely known to him, to better inform the Commissioner’s exercise of discretion.

This is an application to summarily dismiss the application for judicial review or, alternatively, strike out the statement of grounds. However, the parties accepted that this Court should make final declarations in accordance with the proper construction of the relevant statutory provisions. Accordingly, I would declare that the Commissioner was bound to afford the plaintiff procedural fairness before making the variations to the non-disclosure direction identified in paragraphs 2.3 and 2.4 of the Amended Statement of Grounds.
I would order that the hearing and determination of the application for judicial review of the non-disclosure direction proceed in accordance with the declaration.
STANLEY J: I would order that the action be summarily dismissed. I agree with the reasons of Bleby J.
The difference of opinion between the Chief Justice and Bleby J on the issue of whether an examiner is bound to afford procedural fairness to a witness when considering whether or not to make an order pursuant to clause 3(9) of Schedule 2 of the Independent Commissioner Against Corruption Act 2012 (SA) (the Act) and whether the Commissioner is bound to do so when varying an order which has been made pursuant to clause 3(11) highlights the difficulty in construing clause 3.
The law presumes that where the exercise of statutory power may adversely affect the interests of an individual or may affect those interests in a substantially different manner from the way in which it may affect the interests of the public, the repository of the power will ordinarily be obliged to observe the principles of natural justice as a precondition to the exercise of the power. As was observed by Brennan J in Kioa v West,[1] this presumption applies to any statutory power the exercise of which might affect the interests of an individual or affect his or her interests in a manner which is substantially different from the manner in which its exercise may affect the interests of the public. But, importantly, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.
[1] [1985] HCA 81, (1985) 159 CLR 550 at 619.
While one of the primary objects of the Act is to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministration in public administration and the public interest in avoiding undue prejudice to a person’s reputation,[2] in my view the text of the Act and the nature of the power conferred by the Act on the Commissioner evinces a legislative intention to displace the presumption that the principles of natural justice condition the exercise of the power conferred on the Commissioner by clause 3(9) and clause 3(11) of Schedule 2 of the Act.
[2] Section 3(1)(c) of the Act.
A textual analysis of clause 3 of Schedule 2 supports this construction. I consider that the express requirement to observe the principles of natural justice in clause 3(7) contraindicates the imposition of the requirement to observe those principles in the exercise of the power conferred by clause 3(9) and clause 3(11). The absence of the same express requirement in those provisions is significant.
In addition the risk that the efficacy of the examination may be compromised or frustrated by observance of the principles of natural justice in the exercise of the powers conferred by clause 3(9) and clause 3(11), identified by the Commissioner, supports this construction.
The balance to be struck, identified in the primary objects of the Act, is delicate. However, it is the case that the Parliament in enacting the Act plainly intended to erode fundamental rights and freedoms to the extent considered necessary to achieve the public interest in exposing corruption, misconduct and maladministration in public administration. The public interest in avoiding undue prejudice to a person’s reputation is effected by the provisions of clause 3(10) and clause 3(12). The mandatory requirements imposed upon the examiner and the Commissioner which condition the exercise of the powers conferred by clause 3(9) and clause 3(11) again evince a legislative intention that no more is required of an examiner or the Commissioner in the exercise of those powers than to consider whether the exercise of the powers might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. Those clauses not only impose that obligation upon an examiner and the Commissioner respectively, but circumscribe the limits of their obligations. They exclude any obligation to observe the principles of natural justice as a precondition to the exercise of power. I consider that is the evident legislative intention.
BLEBY J: This is an application by the Independent Commissioner Against Corruption (the Commissioner) pursuant to rule 232 and, ostensibly, rule 200C of the Supreme Court Civil Rules 2006 for the summary dismissal of an application for judicial review brought by the plaintiff. In the alternative, the Commissioner applies for the plaintiff’s statement of grounds to be struck out in whole or in part pursuant to rule 104.
The Summons for Judicial Review was filed by the plaintiff on 13 February 2020. An Amended Statement of Grounds was filed on 31 March 2020. On 29 April 2020, Stanley J ordered that the Interlocutory Application be heard and determined by the Full Court.
The Amended Statement of Grounds sets out, in section 2, seven instances of a decision, act or omission, each of which is the subject of the application. Each instance is claimed to have occurred in the course of action taken, or purported to be taken, by the Commissioner pursuant s 24 of the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act) in respect of a matter concerning the plaintiff.
I set out these instances, as described in the Amended Statement of Grounds, in part:
The decisions to vary the direction
2.1The decision pursuant to cl 3(11) of Schedule 2 to the ICAC Act made on 22 June 2017 to vary the direction previously made on 22 March 2017 pursuant to clause 3(9) of the ICAC Act in respect of the examination of [the plaintiff] for the purposes of an investigation into corruption in public administration pursuant to Schedule 2 of the ICAC Act in respect of a matter … (corruption matter). The effect of that variation was to allow information that might enable Plaintiff [sic] to be identified as a person who had given evidence before the Defendant, to be communicated to the Director of Public Prosecutions (SA) or legal practitioners employed in his office, in addition to the persons named in the original direction.
2.2The decision pursuant to cl 3(11) of Schedule 2 to the ICAC Act made on 29 June 2017 to further vary the direction made on 22 March 2017 pursuant to clause 3(9) of the ICAC Act in respect of the examination of [the plaintiff] for the purposes of an investigation into corruption in public administration pursuant to Schedule 2 of the ICAC Act in respect of the corruption matter. The effect of that variation was to allow the evidence the Plaintiff gave before the Defendant to be communicated to the DPP and legal practitioners employed in his office, but not to a “relevant prosecution officer”, which was defined to mean: "(a) any legal practitioner who is instructed to appear for the DPP in any proceedings brought by the DPP to prosecute the Plaintiff for a criminal offence; and (b) any person employed by the DPP who is assisting a person referred to in paragraph (a) above (including any person acting as the instructing solicitor for that person or providing that person with administrative support).”
2.3.The decision pursuant to cl 3(11) of Schedule 2 to the ICAC Act made on 7 May 2019 to further vary the direction made on 22 March 2017 pursuant to clause 3(9) of the ICAC Act in respect of the examination of [the plaintiff] for the purposes of an investigation into corruption in public administration pursuant to Schedule 2 of the ICAC Act in respect of the corruption matter. The effect of that variation was to allow information that might enable Plaintiff [sic] to be identified as a person who had given evidence before the Defendant and the evidence given by the Plaintiff to be communicated to a legal practitioner instructed by the Defendant.
2.4.The decision pursuant to cl 3(11) of Schedule 2 to the ICAC Act made on 19 December 2019 to further vary the direction made on 22 March 2017 pursuant to clause 3(9) of the ICAC Act in respect of the examination of [the plaintiff] for the purposes of an investigation into corruption in public administration pursuant to Schedule 2 of the ICAC Act in respect of the corruption matter. The effect of that variation was to allow information that might enable Plaintiff to be identified as a person who had given evidence before the Defendant and the evidence given by the Plaintiff to be communicated to … and any legal practitioner instructed by them, for the limited purpose of those persons considering and replying to the written submissions made to the Defendant by Counsel Assisting the Defendant in the investigation with ICAC Reference 2017/000076-SO1 (namely, the maladministration matter)
The modification of the assessment
2.5.The decision, made on 6 July 2018, to modify the assessment of the corruption matter as raising issues of serious and systemic misconduct and maladministration in public administration and to exercise the powers of an inquiry agency to deal with the maladministration matter pursuant to ss24(2)(b) and 24(2)(c) and s36A of the ICAC Act.
2.6.The decision, made prior to 6 July 2018, to embark upon an inquiry into a matter assessed as raising a potential issue of maladministration or misconduct in public administration, and involving the plaintiff.
2.7.The defendant's conduct, constituted by acts and omissions, related to or involving the use of the oral evidence of the plaintiff obtained compulsorily in an examination as part of the corruption investigation in continuing to investigate the misconduct or maladministration matter pursuant to ss24(2)(b) and 24(2)(c) of the ICAC Act.
There are three grounds of review, relating to different instances or combinations of the instances set out in section 2. I address these in context. I note, however, that the decisions described in paragraphs 2.1 and 2.2 of the Amended Statement of Grounds do not appear to be the subject of any paragraph in the grounds of review or of the orders sought. Relevantly, the plaintiff seeks the following relief:
4.2An order in the nature of certiorari quashing the decisions at paragraph 2.3 and 2.4, and in the alternative a declaration that the decisions were unlawful.
4.3An order in the nature of certiorari quashing the decision [sic] at paragraphs 2.5 and 2.6.
4.4A declaration that the plaintiff's evidence compulsorily obtained in the corruption investigation under s 22(1), not be permitted to be used by the defendant as part of maladministration or misconduct investigation (or any report upon it) under s 22(2) of the ICAC Act.
4.5To the extent necessary, an injunction retraining the use of the plaintiff’s evidence compulsorily obtained in the corruption investigation under s 22(1) from being used by the defendant as part of maladministration or misconduct investigation (or any report upon it) under s 22(2) of the ICAC Act.
Factual background
The plaintiff is a public officer within the meaning of the ICAC Act. At some time in early 2017, the Commissioner commenced an investigation pursuant to s 24(1) of the ICAC Act into alleged conduct of the plaintiff, as well as alleged conduct of another public officer. Both matters were assessed, pursuant to s 23(1) of the ICAC Act, as raising potential issues of corruption in public administration.
On 20 March 2017, the Commissioner issued a summons to the plaintiff to attend at an examination to give evidence, pursuant to schedule 2, clause 4 of the ICAC Act. The summons described the nature of the examination.[3]
[3] Affidavit of the plaintiff 11 February 2020, Annexure 2 (CB Vol 1, 51).
The plaintiff was on notice from the outset that both the investigation and the examination related and would relate to public officers other than just him.
The plaintiff answered the summons and attended at the Commissioner’s offices on 22 March 2017. He was legally represented. In the course of the examination, the plaintiff made a claim of privilege against self-incrimination with respect to the whole of his evidence.[4] The Commissioner then made a direction pursuant to schedule 2, clause 3(9) of the ICAC Act (the non‑communication direction):[5]
… that any evidence given by you or any information that might enable you to be identified as a person who has given evidence before me must not be communicated to any person except the examiner, an investigator employed by me, or Ms Dunn, or the persons in this room, or to your legal practitioner, or in the course of examination under the Act.
[4] Affidavit of the plaintiff 11 February 2020, [14] (CB Vol 1, 18-19).
[5] Affidavit of the plaintiff 11 February 2020, Annexure 3, 37-38 (CB Vol 1, 57-58).
On 22 June 2017, the Commissioner varied the non-communication direction without reference to the plaintiff, to permit the fact that the plaintiff had given the March 2017 examination evidence to be communicated to the relevant staff of the Office of the Director of Public Prosecutions (DPP). That variation was not exhibited to the plaintiff’s affidavit. However, it appears uncontroversial that the variation allowed information that might enable the plaintiff to be identified as a person who had given evidence before the Commissioner to be communicated to relevant DPP staff, but not the content of that evidence.[6] This variation is the decision described in paragraph 2.1 of the Amended Statement of Grounds.
[6] Affidavit of the plaintiff 11 February 2020, [52].
On 29 June 2017, the Commissioner further varied the non-communication direction to the effect of restricting the scope of the variation that had been made on 22 June, so that the permission previously given did not extend to ‘a relevant prosecution officer’. This was defined to mean:[7]
(a) any legal practitioner who is instructed to appear for the DPP in any proceedings brought by the DPP to prosecute the Plaintiff for a criminal office; and (b) any person employed by the DPP who is assisting a person referred to in paragraph (a) above (including any person acting as the instructing solicitor for that person or providing that person with administrative support).
[7] Plaintiff’s Chronology; Affidavit of the plaintiff 11 February 2020, Annexure 22 (CB Vol 4, 566); Amended Statement of Grounds at 3, [2.2].
The DPP declined to lay charges against the plaintiff. On 17 October 2017, an employee of the Commissioner emailed the plaintiff, in terms which included the following:[8]
I can confirm that a file was sent to the DPP for an opinion in regards to your matter. The DPP found that all of the elements of the offence of Failing To Act Honestly, Section 26 of the Public Sector (Honesty & Accountability) Act, 1995, were able to be made out. However, the DPP was not satisfied that a prosecution was in the public interest. …
Given this opinion, the matter will proceed as a disciplinary matter only. There is a slight delay in this being actioned as we are awaiting a further opinion from the DPP that is related, but not involving you as the suspect.
[8] Affidavit of the plaintiff 11 February 2020, [25], Annexure 5 (CB Vol 1, 204).
The plaintiff did not receive any further update from the Commissioner for some time. In March 2018, the plaintiff emailed the employee requesting an update. Short correspondence ensued by which it was made clear to the plaintiff that the matter was still likely to be dealt with as a matter under the Code of Conduct.[9]
[9] Affidavit of the plaintiff 11 February 2020, [25], [28]-[31],Annexure 6 to 9 (CB Vol 1, 206-212).
Then, on 9 August 2018, the Commissioner wrote to the plaintiff’s legal representative advising him that the corruption investigation had concluded. In that letter, the Commissioner noted that the summons had included a notation pursuant to schedule 2, clause 6 of the ICAC Act, to the effect that disclosure of information about the summons, or any official matter connected with it, was prohibited. The letter advised that because of the operation of clause 6(4), the Commissioner was required to notify the plaintiff that the notation had now been cancelled. The letter went on to remind the plaintiff of the confidentiality provisions in ss 54(3) and 56 of the Act.[10]
[10] Affidavit of the plaintiff 11 February 2020, [33], Annexure 10 (CB Vol 1, 214-216).
For reasons that appear below, the matter did not end there. It is necessary here to jump forward to 4 July 2019, on which date the Commissioner heard an application by the plaintiff for the Commissioner to recuse himself from hearing the matter.[11]
[11] Affidavit of the plaintiff 11 February 2020, [39], Annexure 13 (CB Vol 2, 226-279).
On 6 November 2019, the Commissioner ruled on that application and declined to recuse himself. In his written reasons, he made the following observation:[12]
On 6 July 2018 I modified the assessment of the previous investigation so that it was assessed as a matter raising issues of serious and systemic misconduct and maladministration in public administration.
[12] Affidavit of the plaintiff 11 February 2020, [42], Annexure 15 (CB Vol 2, 289).
As can be seen from the earlier chronology, the plaintiff had been advised in August 2018 that the corruption investigation had been concluded. That advice had not referred to the modification of the assessment in the terms they are recorded in the Commissioner’s reasons. This apparent modification is the subject of paragraphs 2.5 and 2.6 of the Amended Statement of Grounds.
The Commissioner remained engaged with respect to the matter throughout the balance of 2018 and 2019. He communicated the March 2017 examination evidence of the plaintiff to Counsel Assisting the Commissioner in the course of what was said by the Commissioner to be the (post 6 July 2018) maladministration and misconduct investigation. To this end, he further varied the non-communication direction on 7 May 2019. This was to the effect of allowing information that might enable the plaintiff to be identified as a person who had given evidence before the Commissioner, and the evidence given by the plaintiff, to be communicated to a legal practitioner instructed by the Commissioner. That variation was made without reference to the plaintiff. That variation is the decision the subject of paragraph 2.3 of the Amended Statement of Grounds.
On 24 May 2019, the Commissioner, acting pursuant to ss 10(b) and 10(e) of the Royal Commissions Act 1917 (SA) (the RCA), issued a summons to appear addressed to the plaintiff, requiring him to attend before the Commissioner to answer questions for the purposes of the investigation into the serious or systemic maladministration and misconduct matter.[13]
[13] Affidavit of the plaintiff 11 February 2020, [36], Annexure 11 (CB Vol 2, 217-219).
The plaintiff appeared in answer to the summons on 4 July 2019. It was on this occasion that he made the application for the Commissioner to recuse himself, which application was ultimately refused. Further, senior counsel for the plaintiff gave an assurance to the Commissioner that the plaintiff would object to any question in relation to his conduct and the conduct of others over the relevant period.[14] In that event, the Commissioner indicated that he did not intend to continue any further with the examination and released the plaintiff from his attendance under the summons.
[14] Affidavit of the plaintiff 11 February 2020, [39], Annexure 13 (CB Vol 2, 278).

The final exchange in the examination hearing on 4 July 2019 was to the effect that Counsel Assisting the Commissioner indicated that while it should not be suggested that any adverse inference would be drawn against the decision to invoke the privilege against self-incrimination, that did not prevent the approach laid down by the High Court in Weissensteiner v R,[15] and that he proposed in due course to be making submissions about that. Senior counsel for the plaintiff indicated that he wished to be heard on any such submission.[16] The Commissioner responded that he intended to proceed on the basis:[17]
… that I will publish to persons whose rights, interests or legitimate expectations might be adversely affected, the submissions of counsel, …. If your client is one of those persons, then of course you can make those submissions.
[15] (1993) 178 CLR 217.
[16] Affidavit of the plaintiff 11 February 2020, Annexure 22 (CB Vol 4, 278).
[17] Affidavit of the plaintiff 11 February 2020, Annexure 13 (CB Vol 2, 279).
Notwithstanding the very particular context in which this exchange arose, the Commissioner was expressing a general intention to discharge his ordinary obligations of procedural fairness to ensure that anyone whose interests might be adversely affected by the submissions of Counsel Assisting the Commissioner would have an opportunity to respond to them. That interpretation is consistent with the subsequent statement of the Commissioner that to do so ‘would be a part of the procedural fairness exercise’.[18]
[18] Affidavit of the plaintiff 11 February 2020, Annexure 13 (CB Vol 2, 279).
Against that background, on 19 December 2019, the Commissioner further varied the non-communication direction in the following terms:[19]
I now further vary that direction so that it permits the communication of any evidence given by [the plaintiff] or any information that might enable him to be identified as a person who gave evidence before me to the persons listed in the Schedule below and any legal representative instructed by them for the limited purpose of those persons considering and replying to the written submissions made to me by Counsel Assisting the Commissioner in the investigation with the ICAC Reference 2017/000076-S01.
This further variation is made pursuant to cl 3(11) of Schedule 2 of the ICAC Act. I must not vary a direction if doing so might prejudice the safety or reputation of any person or prejudice the fair trial of any person who has been or may be charged with an offence. I am satisfied that varying the direction so that it is in the terms set out in this certificate will not have any of those effects or consequences.
Schedule
· …
[19] Affidavit of the plaintiff 11 February 2020, Annexure 22 (CB Vol 4, 568).
This variation is the decision the subject of paragraph 2.4 of the Amended Statement of Grounds. It was made expressly for the persons listed to consider and reply to the written submissions of Counsel Assisting, consistently with the indication given by the Commissioner towards the end of the examination hearing, as quoted above. This limited permission was manifestly based on the Commissioner’s assessment that those listed persons were persons whose rights, interests or legitimate expectations might be adversely affected by the submissions of Counsel Assisting. The list included the plaintiff.
The ICAC Act
A number of provisions of the ICAC Act are relevant to this application. Section 3 sets out the primary objects of the ICAC Act. Section 3(1)(c) defines one of the primary objects to be:
to achieve an appropriate balance between the public interest in exposing corruption, misconduct and maladministration in public administration and the public interest in avoiding undue prejudice to a person’s reputation (recognising that the balance may be weighted differently in relation to corruption in public administration as compared to misconduct or maladministration in public administration).
The balance to be struck in this object is not with a person’s private interests in having their reputation unduly prejudiced, but in the public interest in avoiding undue prejudice to a person’s reputation. Further, the object is not to avoid any such prejudice, but rather to avoid undue prejudice.
Corruption, misconduct and maladministration in public administration are each defined in s 5. Corruption is concerned with certain categories of offence. Misconduct focuses on the contravention of a code of conduct or other misconduct while acting in the capacity as a public officer. Maladministration focuses on the irregular and unauthorised use of public money or substantial mismanagement of public resources, or conduct that involves substantial mismanagement in or in relation to the performance of official functions. Corruption in public administration is of a fundamentally more serious category.
The functions of the Commissioner are set out in s 7. Section 7(1) provides, in part:
7—Functions
(1) There is to be an Independent Commissioner Against Corruption with the following functions:
(a)to identify corruption in public administration and to—
(i)investigate and refer it for prosecution; or
(ii)refer it to a law enforcement agency for investigation and prosecution;
…
(ca)to identify serious or systemic misconduct or maladministration in public administration;
(cb)to exercise the powers of an inquiry agency in dealing with serious or systemic maladministration in public administration if satisfied that it is in the public interest to do so;
(cc)to exercise the powers of an inquiry agency in dealing with serious or systemic misconduct in public administration if the Commissioner is satisfied that the matter must be dealt with in connection with a matter the subject of an investigation of a kind referred to in paragraph (a)(i) or a matter being dealt with in accordance with paragraph (cb);
…
Section 23 deals with the assessment of a complaint or report:
23—Assessment
(1) On receipt by the Office of a complaint or report, the matter must be assessed as to whether—
(a)it raises a potential issue of corruption in public administration that could be the subject of a prosecution; or
(b)it raises a potential issue of misconduct or maladministration in public administration; or
(c)it raises some other issue that should be referred to an inquiry agency, public authority or public officer; or
(d)it is trivial, vexatious or frivolous, it has previously been dealt with by an inquiry agency or public authority and there is no reason to reexamine it or there is other good reason why no action should be taken in respect of it,
and a determination made as to whether or not action should be taken to refer the matter or to make recommendations to the Commissioner.
Section 24 then addresses the action that may be taken depending on the assessment that has been carried out under s 23. It provides in part:
24—Action that may be taken
(1)     If a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the matter must be—
(a)investigated by the Commissioner; or
(b)referred to South Australia Police or other law enforcement agency.
(2)     If a matter is assessed as raising a potential issue of misconduct or maladministration in public administration, the matter must be dealt with in 1 or more of the following ways:
(a)the matter may be referred to an inquiry agency;
(b)in the case of a matter raising potential issues of serious or systemic maladministration in public administration—the Commissioner may exercise the powers of an inquiry agency in dealing with the matter if satisfied that it is in the public interest to do so;
(c)in the case of a matter raising potential issues of serious or systemic misconduct in public administration—the Commissioner may exercise the powers of an inquiry agency in dealing with the matter if the Commissioner is satisfied that the matter must be dealt with in connection with a matter the subject of an investigation of a kind referred to in subsection (1)(a) or a matter being dealt with in accordance with paragraph (b);
(d)the matter may be referred to a public authority and directions or guidance may be given to the authority in respect of the matter.
…
(5)     The same matter, or different aspects of the same matter, may be dealt with contemporaneously under more than 1 subsection.
Example—
A matter that is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution and a potential issue of misconduct or maladministration in public administration may be dealt with under both subsection (1) and subsection (2).
(6)     A matter may be dealt with under this section even if it is a matter referred to an inquiry agency or public authority under another Act.
(7)     The making of an assessment, and whether action is taken, and what action is taken, in respect of a matter is at the absolute discretion of the Commissioner and, if an assessment is modified in the course of dealing with the matter, the Commissioner may deal with the matter according to the modified assessment.
…
The structure of this section is of particular importance to Grounds 2 and 3 in the Amended Statement of Grounds.
Section 36(1) then provides for the referring of matters:
36—Prosecutions and disciplinary action
(1) On completing an investigation or at any time during an investigation (whether relating to a potential issue of corruption in public administration or of misconduct or maladministration in public administration), the Commissioner may do either or both of the following:
(a)refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;
(b)refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.
This must be read in conjunction with s 43:
43—Referral of matter etc does not limit performance of functions
The Commissioner, the Deputy Commissioner, an examiner or an investigator may perform functions or exercise powers in respect of a particular matter despite the referral of the matter for prosecution or investigation and prosecution, the institution of any proceedings before a judicial body or the charging of a person with an offence (but in such a case the Commissioner, Deputy Commissioner, examiner or investigator must endeavour to avoid, as far as practicable, prejudice to any person affected by the referral or proceedings or who is charged with the offence).
It is clear from these two sections that while the matter is being referred for potential prosecution, that referral need not interrupt the investigation otherwise.
Section 36A then provides as follows:
36A—Exercise of powers of inquiry agency
(1) The Commissioner must, before deciding (in accordance with section 24(2)(b) or (c)) to exercise the powers of an inquiry agency in respect of a matter raising potential issues of misconduct or maladministration in public administration, take reasonable steps to obtain the views of the agency.
(2) If the Commissioner decides (in accordance with section 24(2)(b) or (c)) to exercise the powers of an inquiry agency in respect of such a matter—
(a)the Commissioner may, by notice in writing to the agency, require that the agency refrain from taking action in respect of the matter or require that the agency only take action of a specified kind in relation to the matter; and
(b)the Commissioner—
(i)has all the powers of the agency; and
(ii)is bound by any statutory provisions governing the exercise of those powers (subject to such modifications as may be prescribed, or as may be necessary for the purpose),
as if the Commissioner constituted the agency; and
(c)the Commissioner must inform the agency of the outcome of the matter.
(3) The Commissioner may at any time withdraw from exercising the powers of an inquiry agency, or decide to exercise such powers, as the Commissioner sees fit.
The powers of an inquiry agency are to be contrasted with the various powers of the Commissioner when investigating a matter of suspected corruption under Subdivision 2 of Division 2, Part 4 of the ICAC Act. As senior counsel for the plaintiff emphasised at the hearing, the powers available to the Commissioner, depending on whether the matter is proceeding as an investigation of suspected corruption on the one hand or suspected maladministration or misconduct on the other, are quite different.[20] Section 29 allows for an examination to be conducted for the purposes of an investigation into corruption in public administration as set out in schedule 2.
[20] T 60.
Section 42 provides for reports. Section 42(1)(b) provides that the Commissioner may prepare a report setting out ‘findings or recommendations resulting from completed investigations by the Commissioner in respect of matters raising potential issues of corruption, misconduct or maladministration in public administration’. As senior counsel for the Commissioner readily submitted, it is likely in this case that the Commissioner would wish to make a report in respect of his findings on the maladministration and misconduct investigation, including adverse findings in respect to the plaintiff, but not exclusively in respect of him.[21]
[21] T 7-8.
Finally, s 56A provides as follows:
56A—Use of evidence or information
(1)     Subject to this Act (but despite any other Act or law) evidence or information obtained (whether before or after the commencement of this section) by the lawful exercise of powers in relation to suspected corruption, misconduct or maladministration in public administration—
(a)may be used for the purposes of any other investigation in relation to suspected corruption, misconduct or maladministration in public administration; and
(b)may be provided to, and may be received and used by—
(i)law enforcement agencies and prosecution authorities for the purposes of any criminal investigation or proceedings or proceedings for the imposition of a penalty; and
(ii)public authorities for the purposes of any disciplinary investigation or action in relation to suspected corruption, misconduct or maladministration in public administration,
whether the investigation, proceedings or action relate to, or arise from, the same matter or a different matter; and
(c)is not inadmissible in proceedings before a court merely because the evidence or information was not obtained for the purposes of those proceedings.
(1a)   For the purposes of subsection (1), evidence or information will be taken to be obtained by a lawful exercise of powers in relation to suspected corruption, misconduct or maladministration in public administration notwithstanding a jurisdictional error in the exercise of those powers.
(2)     No civil or criminal liability lies against a person in respect of any use of evidence or information permitted by this section.
Ground 1
The first ground of review is expressed in the following terms:
3.1 The variation of the directions – procedural fairness and failing to take into account a relevant consideration
The defendant in making the decisions to vary the directions as set out above at [2.4] denied the plaintiff procedural fairness and/or failed to consider a relevant consideration, which was a jurisdictional error.
Particulars
(i) When making the decision to vary the directions pursuant to clause 3(11) of Schedule 2 to the ICAC Act, the defendant did not inform the plaintiff of the proposed decision nor invite a comment from him in relation to the exercise of that power as to whether doing so might “prejudice the safety or reputation” of the plaintiff and/or
(ii) The defendant did not consider, as part of making the decision to vary the direction, whether doing so might “prejudice the safety and/or reputation of the plaintiff.
This ground relates solely to the decision identified at paragraph 2.4 of the Amended Statement of Grounds, being the variation of 19 December 2019.[22]
[22] Affidavit of the plaintiff 11 February 2020, Annexure 22, (CB Vol 4, 568).
These complaints are to be understood in the context of the prescription for the conduct of an examination. This is set out in schedule 2, clause 3 of the ICAC Act. Subclauses 3(9) – (12) inclusive provide as follows:
3—Conduct of examination
…
(9)An examiner may direct that—
(a)any evidence given before the examiner; or
(b)the contents of any document, or a description of any thing, produced to the examiner; or
(c)any information that might enable a person who has given evidence before the examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination,
must not be communicated or provided to any person, or must not be communicated or provided except in such manner, and to such persons, as the examiner specifies.
(10)   The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(11)   Subject to subclause (12), the Commissioner may, in writing, vary or revoke a direction under subclause (9).
(12)   The Commissioner must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
…
It is also important to note subclause 3(7), which provides:
(7)If a person (other than a member of the staff of the Commissioner) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must—
(a)inform the witness that the person is present; and
(b)give the witness an opportunity to comment on the presence of the person.
…
The variation of 19 December 2019 was made pursuant to schedule 2, subclause 3(11). The direction records the invocation of that subclause and expressly notes the requirements of subclause 3(12). In doing so, the Commissioner expresses his satisfaction that the variation will not have any of the effects or consequences of prejudicing the safety or reputation of any person. On its face, then, the variation offers an answer to particular (ii) of Ground 1, in that it is apparent that the Commissioner did give consideration as to whether varying the direction might prejudice the safety and/or reputation of the plaintiff.
This particular was not the focus of submissions by the plaintiff on the hearing of the application. Rather, the plaintiff focussed on the content of particular (i), expressing the case to be that the powers in subclauses 3(9) and 3(11) of schedule 2 are subject to the requirement to accord procedural fairness to a witness, and specifically to the plaintiff.[23] For reasons which I develop below, the same considerations ultimately govern whether either particular is reasonably arguable.
[23] Plaintiff’s Written Submissions at 7, [22].
The starting point of the plaintiff’s argument is orthodox. Subclause 3(9) provides for the making of a direction that evidence must not be ‘communicated or provided’. The ICAC Act itself contemplates the risks of such communication or provision in clause 3(10) and (12), namely, the risk of prejudice to the safety or reputation of a person, or prejudice to the fair trial of a person who has been or may be charged with an offence. As the plaintiff submits, again by reference to accepted orthodoxy, those rights and interests, expressed at such levels of generality, are recognised in administrative law as giving rise to an implication that procedural fairness must be accorded where it is contemplated that an administrative decision will be made that in some way abrogates them.[24]
[24] Annetts v McCann (1990) 170 CLR 596 at 608-609 (personal reputation); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 114 (physical safety).

Nevertheless, these general observations are only the starting point. The question in the particular case requires close analysis of the statute in question. Thus, in Kioa v West, Brennan J said:[25]
If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests: Water Conservation and Irrigation Commission (N.S.W.) v. Browning. When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.
(Footnote omitted)
[25] (1985) 159 CLR 550 at 619.
For example, the observation in Annetts v McCann with respect to personal reputation was made in the context of official findings at the end of statutory inquiries:[26]
Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.
(Footnote omitted)
[26] (1990) 170 CLR 596 at 608.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, Kirby J emphasised the importance of a decision to grant or refuse a protection visa as ‘potentially affecting the life and physical safety of an applicant and perhaps his or her family and associates’.[27]
[27] (2001) 206 CLR 57 at 114, [186].
As I will come to, the plaintiff’s complaints about prejudice to his reputation relate to his reputation in the eyes of the persons named in the schedule, most of whom are his superiors. With respect to the risk to his safety, the plaintiff’s case is that the concept extends to ‘the overwhelming of one’s mental faculties, or the development of an illness or disorder of the mind’.[28] The plaintiff has provided evidence as to the adverse effect of the investigation on his mental health. For the purposes of this application, it is appropriate to assume that the variation of 19 December 2019 is capable of having adverse effects on the plaintiff’s reputation and safety within the meaning of those terms as advanced by the plaintiff. Whether those meanings are incorporated within the scheme of the ICAC Act is a matter of dispute.
[28] Plaintiff’s Written Submissions [44].
The Commissioner’s objection to the sustainability of Ground 1 relies heavily on a contextual examination of the ICAC Act and schedule 2 in particular. The Commissioner submits that a primary purpose of the examiner having a discretion to make a non-communication direction pursuant to subclause 3(9) ‘is to promote the object of investigating corruption by seeking to ensure that an examinee (and others) keep the evidence given in an examination in confidence and do not disclose that evidence, or even the fact of the examination, to others including to those who might be subsequently examined’.[29]
[29] Defendant’s Written Submissions at 9, [35].
The essential point made by the Commissioner here is one of purpose. If the discretion conferred by clause 3(9), and then necessarily clause 3(11), is subject to an obligation to give procedural fairness to an examinee, or indeed any person whose safety or reputation might be affected adversely, this would unreasonably encroach upon and hinder an effective and expeditious investigation. The Commissioner went so far as to submit that it would make the examination power almost unworkable. He submitted that the effectiveness of examinations often depends on examinees and others not having prior notice of evidentiary material in the possession of the examiner, the identity of any other examinee, or the possible deployment of evidentiary material. He pointed to risks of cross-contamination between witnesses and the loss of the ability to introduce an appropriate degree of surprise in the course of the examination as a means of exposing the truth.
That is not to say that all obligations of natural justice are necessarily abrogated for the period of an investigation. As the Commissioner observed, it will be necessary that the evidence of one witness be put to other witnesses in order to reach the truth. Not only that, procedural fairness will require that course where one witness’s evidence consists of information adverse to the interests of another. Similarly, if conclusions are proposed to be drawn from that evidence, procedural fairness requires that those proposed conclusions be put to persons likely to be adversely affected, for comment. That is the express purpose of the 19 December 2019 variation, as foreshadowed by the Commissioner at the hearing. As Counsel for the Commissioner expressed it on the hearing of the application:[30]
Now, that’s what a witness in the position of the plaintiff must expect, but reciprocally they then should know and expect that their evidence may well have to be disclosed to others in the interests of the same concerns of procedural fairness.
[30] T 21.29-33.
This submission identifies a common issue arising in multi-stage decision‑making processes, especially those that are investigative in nature. Such processes often require preliminary decisions that may, to some extent, affect the interests of individuals and do so adversely. That does not mean that every discernible effect is necessarily such as to require procedural fairness.
A common instance is that of a preliminary investigation being carried out by a disciplinary body prior to the laying of a more formal complaint before a tribunal. For example, in AYHT v Medical Board SA,[31] this Court held that while the Medical Board of South Australia was exercising its statutory duty to inquire into complaints, when deciding to lay a complaint before the Medical Practitioners Professional Conduct Tribunal, it was not required to hear from the medical practitioner in question. This was characterised as being nothing more than a decision to prosecute and did not determine any question which affected the rights or interests of the practitioner. It would be the Tribunal’s ultimate decision that affected the practitioner’s rights.[32]
[31] (2000) 77 SASR 148 at 152, [15].
[32] See also, for example, Cornall v A.B. [1995] 1 VR 372 at 402.
Preliminary decisions in the course of a multi-stage decision-making process can, of course, have greater potential adverse effect on a person’s interests where the decision involves some degree of publication. In Ainsworth v Criminal Justice Commission,[33] the Queensland Criminal Justice Commission prepared a report which was tabled in Parliament under the Criminal Justice Act 1989 (Qld). The report contained findings that affected the applicant’s reputation adversely. One relevant question was whether the subsequent public hearings by the Parliamentary Committee were capable of undoing the damage to the applicant’s reputation. As the plurality explained:[34]
It was argued on behalf of the Commission that the appellants had not been deprived of any entitlement to procedural fairness because the entitlement arose in an entire process which included the public hearings of the Parliamentary Committee. It was put that that entitlement had been or might yet be satisfied in the course of those hearings.
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”. The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines. Moreover, the functions and responsibilities of the Commission and of the Parliamentary Committee are separate and distinct and serve quite different purposes.
(Footnote omitted)
[33] (1992) 175 CLR 564.
[34] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Similarly, in Johns v Australian Securities Commission, [35] (Johns) a delegate of the Australian Securities Commission (the ASC) had required a former managing director of a group of companies to attend for examination. Transcripts were made of the examination. Then, pursuant to a statutory power, the delegate authorised the disclosure of certain transcripts to a State Royal Commission inquiring into the affairs of the company, for the internal use of the Royal Commission. The delegate subsequently gave further transcripts to the Royal Commission, authorising it to use them in public hearings. Copies were made available to journalists and information in the transcripts was published in the media. A majority of the High Court held that the delegate should have given the director an opportunity to oppose that course of disclosure. Brennan J, in the majority, said:[36]
An exercise of the authority conferred by s. 127(4)(b) is apt to affect adversely the interests of an examinee who is prima facie entitled have the confidentiality of the transcript of the examination observed. Accordingly there is an obligation on a person proposing to exercise that authority to observe the rules of natural justice. Of course, there would be some situations in which natural justice would not require notice to be given to an examinee of an intention to make transcripts of the examination available to a State agency: for example, where an investigation by a State law enforcement agency might be frustrated by informing the examinee that information disclosed in a s. 19 examination was in the hands of the agency. But where no such consideration countervails against a person’s right to be heard before a decision prejudicial to his or her interests is taken, the A.S.C. should give that person an opportunity to oppose.
(Footnote omitted)
[35] (1993) 178 CLR 408.
[36] Johns v Australian Securities Commission (1993) 178 CLR 408 at 430-431.
The various authorities were reviewed by the Federal Court of Australia in Saraceni v Australian Securities and Investment Commission.[37] That case involved a two-stage procedure for mandatory examination of a person about a company’s examinable affairs under the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth). Justice Jacobson, with whom Gilmour J agreed, said:[38]
Three propositions may be drawn from a review of these authorities. First, not every power of investigation attracts a duty of procedural fairness. Second, whilst it may be true that no bright lines can be drawn, a statutory power that is purely investigative, such as the power of the Commissioner of Taxation to require production of documents or to attend to give evidence about the person’s income, are less likely to be attended by an obligation to accord procedural fairness. This is particularly so where the investigative function does not include a power to make findings or recommendations.
The third, and most fundamental proposition, is that the overriding question will always be whether the exercise of the investigative power carries with it the capacity to destroy or prejudice the rights or interests of the person affected by the exercise of the power. That was why the exercise of the power by the Commission in Ainsworth and by the delegate in Johns were each attended by an obligation of procedural fairness. In those cases there was inevitable public attention drawn to matters that were otherwise protected by statutory obligations of confidence.
[37] (2013) 211 FCR 298.
[38] Saraceni v Australian Securities and Investment Commission (2013) 211 FCR 298 at 313 [101]-[102].
Staying with the question of reputation, for the purposes of this application, the variation of 19 December 2019 occurred at a preliminary stage of the investigation (that is, prior to any final report). It has the potential to affect adversely the reputation of the plaintiff in the eyes of those persons named in the schedule, who were mainly the plaintiff’s superiors. The question that then arises, in respect of the potential adverse effects to the plaintiff’s reputation, is whether this particular and confined threat to his reputation (that is, to a small group of people who are nonetheless in positions of authority with respect to the plaintiff) is such as to impose an obligation of procedural fairness prior to the variation.
The plaintiff gave the following evidence in his affidavit:[39]
I repeat that in respect of each variation, I was never informed, and had no knowledge, that the direction had been varied. I was never given an opportunity to make submissions. Had I been given the opportunity to make submissions, I would have instructed my lawyers to submit that, as a result of my mental condition, my personal safety would be prejudiced by the direction being varied. I would also have instructed my lawyers to make submissions to the effect that my reputation would be prejudiced by the variation of the directions because the evidence I gave in the March 2017 examination, as well as the transcript of the limited examination that took place on 4 July 2019 would be (and apparently has been) published to my employers and senior work colleagues.
[39] Affidavit of the plaintiff 11 February 2020, at [53] (CB Vol 1, 27).
The Commissioner submits that “reputation” refers to the character which a person bears in public or general estimation and cannot be affected by disclosure to a few people on a confidential basis.[40]
[40] Defendant’s Written Submissions at 12, [46], citing Dias v O’Sullivan [1949] SASR 195 at 203 (Mayo J).
As a matter of context within the ICAC Act, the Commissioner submits that a narrower construction of the word ‘reputation’ to permit it to be limited to the regard of a few individuals such as those identified in the variation, would inhibit the derivative uses that could otherwise be made of information in an examination and end up frustrating the purposes of such examinations in their utility for investigations. The disclosure of evidence given in an examination to others for natural justice purposes will inevitably have the prospect of affecting the regard in which the person who gave the evidence is held by those who have access to it.
The Commissioner also identifies various provisions in the ICAC Act that refer to ‘reputation’ in contexts that appear to be addressed to the general, public disclosure of information, rather than specific disclosures for the purpose of an investigation.[41]
[41] Independent Commissioner Against Corruption Act 2012 (SA) ss 3(1)(c), 25, 55.
The ordinary meaning of ‘reputation’ can easily enough be seen to extend to a person’s general reputation in the community or with respect to those who know of the person. Within a particular statutory context, a specific reference to reputation and, indeed, the obligation to accord natural justice in respect of the potential for adverse effects on a person’s ‘reputation’, may well require the concept of reputation to be understood as also encompassing a narrower field. In Kelson v Forward, [42] (Kelson) the Minister responsible for the Public Service had requested an investigation into workplace harassment at the Australian War Memorial. The investigating body, the Merit Protection Review Agency, undertook that any adverse material would be brought to the attention of the individuals affected by that material and they would be given an opportunity to comment. Justice Finn held that if the report were to find that workplace harassment existed and that identifiable individuals were found to be its perpetrators, then that would be sufficient for the report to constitute a reviewable decision, regardless of whether any consequential steps were to be taken.
[42] (1995) 60 FCR 39.
One consideration that Finn J brought to bear in reaching this conclusion was that, notwithstanding that the report had to date been kept confidential, it posed a risk to reputation at the moment it was to be submitted to the Minister:[43]
This is because the reputation at risk is in part at least that of the public sector manager, while the recipient of the Report is a person who can properly be taken to have a direct interest in ascertaining the accuracy or otherwise of that reputation. He is the Minister Assisting the Prime Minister for Public Service Matters.
[43] Kelson v Forward (1995) 60 FCR 39 at 62.
In other words, the relevant reputation that contributed to the obligation to accord procedural fairness was the reputation of the particular individual in the eyes of the person who had authority over them in the workplace context.
Nevertheless, Kelson concerned a final report. It did so in the particular context of the nature of the investigation being undertaken.
The real question raised on the application is the obligation of the Commissioner to accord natural justice to the plaintiff on account of the apprehended risk to his reputation in the eyes of those listed in the variation. I have canvassed, above, the Commissioner’s submissions as to the unworkability of any such putative obligation in the course of the investigation. To this, it should be added that the limited number of people to whom the disclosure was made means that any interim damage to the plaintiff’s reputation within that small circle is more likely capable of being remedied at the conclusion of the investigation by a finding of no maladministration or misconduct, should that be the result.
The small number of recipients, their particular identities, which make them effectively informed readers of that which is disclosed to them, and the consequent ease of communicating any non-acceptance of the submissions of Counsel Assisting the Commissioner (that being the subject of the disclosure in the variation) weighs against any obligation of natural justice existing on the Commissioner in respect of the plaintiff at that point of the investigation.
The Commissioner also points to the protection given by clause 3(10) of schedule 2 of the ICAC Act as not being limited to safety or reputation of the ‘examinee’, but extending to ‘any’ person so affected. The Commissioner submits that it is implicit from that wording that the examiner is entitled to make an assessment of the effect on safety or reputation of any other person without being obliged to consult each individual concerned, assuming they could even be identified.
I accept the force of this submission. Subclause 3(10) clearly identifies a relevant consideration to be taken into account prior to the Commissioner giving such a direction. Similarly, subclause 3(12) identifies the same relevant consideration when it comes to varying a direction. Those relevant considerations require the Commissioner to turn his mind to the effect on safety or reputation of any person. A commensurate obligation of natural justice so large and potentially diffuse carries obvious impracticalities.

By contrast, subclause 3(7) identifies a specific obligation of natural justice that the Commissioner holds towards a witness being examined. Contextually, this adds weight to the argument that obligations of natural justice do not attend upon the relevant considerations in subclauses 3(10) and (12).
Most importantly, on the facts of this case, where the Commissioner has identified the persons named in the variation as persons whose interests may be affected by the written submissions of Counsel Assisting, it would be untenable to suggest that prior to preparing a final report or otherwise concluding the investigation, the Commissioner need not give those persons an opportunity to reply to the written submissions of Counsel Assisting. Necessity dictates that the submissions of Counsel Assisting be disclosed to those persons for the limited purpose as identified in the variation, notwithstanding that there may be some adverse effect on the reputation of the plaintiff in the eyes of those persons by reason of those disclosures.
For all of these reasons, I would hold that prior to making the variation, the Commissioner did not have an obligation to accord procedural fairness to the plaintiff in respect of the identified putative risk to the plaintiff’s reputation. The concept of ‘prejudic[ing] the … reputation’ of a person within the meaning of subclauses 3(10) and (12) does not extend to prejudicing the person’s reputation in the eyes of those to whom disclosures are required, as a matter of law, to be made for the purposes of discharging natural justice obligations in the course of the investigation itself.
It should be apparent from these reasons that I regard the relevant words in subclauses 3(10) and (12) to be construed to be ‘prejudice the … reputation’. I do not think it is necessary to expound further on the possible reach of the word ‘reputation’ within the meaning of the ICAC Act. There may be situations where a disclosure to a small group of persons, not in the discharge of such natural justice obligations, would prejudice a person’s reputation within the meaning of the ICAC Act, with the consequences that follow under subclauses 3(10) and (12).
Safety
With respect to the relevant consideration of ‘prejudic[ing] the safety’ of a person in subclauses 3(10) and (12), I repeat my observations, above, about the necessity of the 19 December 2019 variation for natural justice purposes. Having regard to that necessity, I do not accept that the concept of ‘prejudic[ing] the safety’ as appears in the ICAC Act extends in this context to causing psychological harm or mental stress in the sense claimed by the plaintiff. To so read it would impose a particularly abstract burden on the Commissioner in the course of an investigation when it was proposed to make such a variation to a direction. Moreover, any such step could be reasonably regarded to be distressing, at the very least, to the person.
Further, and more generally, I would be inclined to read the words ‘prejudic[ing] the safety’ consistently with clause 11 of schedule 2, which provides:
11—Protection of witnesses from harm or intimidation
If it appears to an examiner that, by reason of the fact that a person—
(a) is to appear, is appearing or has appeared at an examination before the examiner to give evidence or to produce a document or thing; or
(b) proposes to furnish or has furnished information, or proposes to produce or has produced a document or thing, to the Commissioner or the Office otherwise than at an examination before the examiner,
the safety of the person may be prejudiced or the person may be subjected to intimidation or harassment, the examiner may make such arrangements (including arrangements with South Australia Police) as are necessary to avoid prejudice to the safety of the person, or to protect the person from intimidation or harassment.
This clause manifestly contemplates the making of arrangements to protect the physical safety of a person, as well as to protect them from intimidation and harassment. In my view, the statutory term is concerned with physical safety. It follows that the Commissioner was under no obligation of procedural fairness to the plaintiff to give him an opportunity to make representations as to the effect of the variations on his mental health and the potential consequences of such effects, prior to making them.
In my view, Ground 1 does not disclose a reasonable basis for the claim.
Ground 2
Ground 2 of the Amended Statement of Grounds as particularised provides as follows:
3.2 The modification of the assessment under s 22(2) - ultra vires
The defendant in making the decision described at paragraph [2.5] to modify his assessment of the corruption matter and/or the decision described at paragraph [2.6] to exercise the powers of an inquiry agency to investivate [sic] a potential matter of serious or systemic maladministration or misconduct in public administration, exceeded his power, which was a jurisdictional error.
Particulars
(i)Following the matter being assessed as raising a potential issue of corruption in public administration under s 22(1) the investigation commenced on or before 17 March 2017.
(ii)That assessment had concluded on or before 17 October 2017, when the matter was said to proceed as a disciplinary matter only (referring to s 22(2)(d)) albeit no assessment was made in that respect. No further action was taken with respect to the corruption investigation.
(iii)On 6 July 2018 the decision was made to purportedly modify the assessment and assess that the matter be dealt with under s 24(2)(b) and (c) of the ICAC Act.
(iv)Subsequently the defendant purported to investigate a maladministration matter (referred to at [2.7] above), using the powers of an inquiry agency provided for in s 36A of the ICAC Act
(v)The power in s 24(2) to modify an assessment may only in accordance with s 24(7) be exercised in "the course of dealing with the matter" and does not extend to modifying an assessment once a matter assessed under s 24(1) had been concluded in fact.
(vi)That error was material by reason that the defendant has undertaken and proposes to take steps to publish conclusions with respect to the investigation undertaken in accordance with the modified assessment.
I have set out above the chronology in relation to the claimed ‘modification’ of the assessment. It is uncontroversial that prior to the putative modification of the assessment, the investigation into the matter as one raising a potential issue of corruption in public administration ‘had ceased, at least for the time being’.[44]
[44] Response to Amended Statement of Grounds, [3.2.7.2] (CB Vol 4, 588).
The plaintiff’s essential case is that the power contemplated in s 24(7) of the ICAC Act to modify an assessment can only be exercised ‘in the course of dealing with the matter’ and that once an assessment has concluded as a matter of fact, there is no further power to modify the assessment. The question arising under Ground 2, from the plaintiff’s perspective, is what is the meaning and effect of the expression ‘in the course of dealing with the matter’ on the power to make a further assessment? The plaintiff argues that these words fix a limit on the power to modify assessments. This offers protection against reagitating the same matter without new evidence or material.[45]
[45] Plaintiff’s Written Submissions at 15, [53].
The concept of a ‘matter’ is not defined in the Act. That is hardly surprising. It takes its meaning from the context in which it appears. Thus, for example, a matter may be investigated (s 7(1)(a)(i) and 7(1)(cc)); a matter may be ‘dealt with’ (s 7(1)(cb) and 7(1)(cc)); a matter may be assessed (s 23); and a matter may be investigated, referred or dealt with (s 24).
It is clear enough from s 7 that the concept of ‘matter’ is integrated with the concepts of corruption, misconduct and maladministration. That is to say, on a complete reading of s 7, it is the function of the ICAC to identify and investigate ‘matters’ of corruption in public administration and to deal with ‘matters’ of serious or systemic maladministration in public administration. A ‘matter’ in that sense does not have a beginning and an end date. As the Commissioner submits, a matter ‘refers to the matrix or complex of circumstances forming the subject matter of the complaint or report or the circumstances underlying that complaint or report’.[46]
[46] Defendant’s Written Reply (Corrected) at 7, [13.1].
The plaintiff submits that on a plain reading, the phrase ‘in the course of dealing with the matter’ requires the Commissioner to still be dealing with the matter in the sense of taking some steps or some action in relation to it. He submits that s 24 then identifies how the matter must be ‘dealt with’, particularly in ss 24(2), (5) and (6). The plaintiff then submits that the provision in s 24(5) to the effect that the same matter, or different aspects of the same matter, may be dealt with contemporaneously under more than one subsection, indicates Parliament’s intention that investigations into several aspects of a single matter must be investigated at the same time and not sequentially.
The Commissioner’s essential answer to this is that the plaintiff’s argument involves a conflation between two fundamentally different concepts, that of a matter and that of an investigation into a matter. To paraphrase the argument of the Commissioner, the completion of an investigation of a matter that has been assessed as raising a potential issue of corruption in public administration does not mean that somehow the matter itself is concluded. The conclusion of one investigation of a matter does not preclude some further assessment and consequent action.
The plaintiff’s argument depends not only on the words ‘in the course of dealing with the matter’ in s 24(7), but also, as I understand it, on the premise that s 24 contains a power, that would not otherwise exist, to modify an assessment. I note, in passing, that paragraph 3.2(v) of the Amended Statement of Grounds suggests that s 24(2) contains a power to modify an assessment. It is not immediately clear to me why that would be so. The only reference to modification occurs in s 24(7).
In support of this argument, the plaintiff submits that s 24(5) and s 24(7) should be read against the background of the principle of legality and the fact that the ICAC Act impinges heavily on individual rights and freedoms. To that end, there should be some limitation on that impingement. These sections do so by making final the ability of the Commissioner to deal with the same matter in different ways and to modify the matter only when ‘dealing with’ it.[47]
[47] T 51.32-58.6.
An essential difficulty with the plaintiff’s argument is that the ICAC Act establishes an investigative process rather than judicial proceedings. There is nothing in the Act, let alone in s 24(7), from which it could be inferred that Parliament indicated an intention that the power to make an assessment in respect of a matter can only be done once. The doctrine of functus officio is a common law doctrine, long considered inconvenient,[48] but in any event reversed by s 37 of the Acts Interpretation Act 1915 (SA):
[48] Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 (Gummow J).
37—Powers may be exercised from time to time
A power given by any Act to do any act or thing (including the making of an appointment), or to submit to any act or thing, is capable of being exercised from time to time, as occasion requires, unless the context, or the nature of the act or thing, indicates a contrary intention.
In my view, the word ‘modified’ in s 24(7) says nothing directly about whether the Commissioner can conclude an investigation of a matter as assessed, as a matter of fact, and then make a new assessment of the matter under s 24(2) and then proceed under that section. Critically, however, s 24(7) does say that the making of an assessment is at the absolute discretion of the Commissioner. That being the case, I cannot see that there is anything preventing the Commissioner from making a subsequent assessment of a matter following the conclusion of an investigation consequent on a different assessment.
To that end, s 24(5), if anything, works against the argument of the plaintiff. It confirms that there can be more than one ‘dealing with’ the matter contemporaneously under more than one subsection. It confirms that a matter can be assessed as raising more than one potential issue as described in that section and dealt with under those assessments at the same time. There is no reason in principle why such a permissive provision would be construed as a provision of limitation. To the contrary, it confirms that the power is not exhausted by a single assessment.
I read the reference to the Commissioner modifying an assessment in s 24(7) as merely confirmatory of the proposition that the making of an assessment under s 23(1) does not prevent the Commissioner from exercising that power subsequently in respect of the same matter.
Notwithstanding that on 6 November 2019, the Commissioner said that he had modified the assessment on 6 July 2018, it is not clear that this engages any relevant statutory concept. I do not read s 24(7) as conferring a specific power of modification. Section 24(7) provides that the making of an assessment, etcetera, in respect of a matter is at the absolute discretion of the Commissioner. The second part of s 24(7) simply confirms that if the Commissioner does modify the assessment in the course of dealing with the matter, he can deal with the matter in accordance with that modification.
Whether or not the action taken by the Commissioner in July 2018 is properly characterised as a modification of the assessment, the Commissioner had power to make a fresh assessment following the conclusion, as a matter of fact, of the investigation under s 24(1).
The plaintiff relies on the decision of the Victorian Court of Appeal in Kabourakis v The Medical Practitioners Board of Victoria.[49] Specifically, he relies on the statement of Nettle JA (Warren CJ and Chernov JA agreeing):[50]
Self evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. As was pointed out in Bhardwaj, Parliament may give an administrative decision whatever force it wishes. Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. But, as was also said in Bhardwaj, as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction. More often that not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion.
(Footnotes omitted)
[49] [2006] VSCA 301.
[50] Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 at [48].
That case concerned a notification to the Medical Practitioners’ Board of Victoria (the Board) concerning the treatment by a doctor of a patient who had died. The Board gave notice to the doctor of an informal hearing pursuant to s 41 of the Medical Practice Act 1994 (Vic). The panel found that the doctor had not engaged in unprofessional conduct. A subsequent complaint to the Ombudsman resulted in a recommendation that the Board reopen its investigation as the panel had not been provided with a particular medical report. The Board then gave notice to the doctor of a further hearing under s 41. The doctor claimed that the Board was functus officio and brought proceedings for a declaration.
Understood in this context, the passage from the judgment set out above is unremarkable in that it concerns a finding by a statutory tribunal in its role as a professional regulator. The statutory tribunal made a decision under a quasi‑judicial regime. By contrast, the Commissioner is not a statutory tribunal. He is an investigator. It is open to the Commissioner to make more than one assessment and to do so consecutively. That is at his absolute discretion and such a course may, but need not, take the form of modifying an assessment in the course of dealing with the matter. Even if the Commissioner’s actions could not properly be characterised as modifying the assessment in the course of dealing with the matter within the meaning of s 24(7), in my view, the Commissioner had a discretion to make a fresh assessment after concluding, as a matter of fact, the investigation pursuant to s 24(1).
Ground 2 does not disclose a reasonable basis for the claim.
Ground 3
Ground 3 is as follows:
3.3The use of plaintiff's oral evidence from the corruption investigation involving an abrogation of the privilege aganst [sic] self-incrimination in the misconduct or maladministration investigation - ultra vires
The defendant in making the decisions at paragraphs [2.3]-[2.7] determined to, or having so determined, then used information in the investigation of misconduct or maladministration in public administration, from the investigation into public corruption where there had been an abrogation of the plaintiff's privilege against self-incrimination. The decision to use that information, and then its use, in the misconduct or maladministration investigation was beyond the defendant's power, which was a jurisdictional error.
Particulars
(i)On 22 March 2017 the plaintiff was required to give evidence on oath and be examined as part of the corruption investigation.
(ii)At the examination the defendant proceeded on the basis that the plaintiff had validly complied with the requirements of Schedule 2, clause 8(4) and that the plaintiff had claimed that any answers given to any questions might tend to incriminate the plaintiff or make the plaintiff liable to the penalty.
(iii)The decisions at paragraph 2.5 and 2.6 to modify the assessment and then undertake an investigation into misconduct and maladministration were informed by the information obtained by the plaintiff during his examination described above at 3.3 (i) and (ii)
(iv)Following the modification of the assessment, the decisions at paragraphs 2.3 and 2.4 were made by the defendant which enabled and/or actually involved the disclosure of the plaintiff's oral evidence from the compulsory examination for the purpose of the misconduct or maladministration investigation to both: legal practitioners instructed by the Defendant; and, to the [the plaintiff’s superiors], and any legal practitioner instructed by them.
(v)Further, as an aspect of the conduct described at paragraph [2.7] that oral evidence was provided by the defendant to his Counsel Assisting and was used by Counsel Assisting the defendant in his written submissions as part of the basis, among other matters, to reach conclusions adverse to the plaintiff, and inviting the defendant to reach similar conclusions that are adverse to the plaintiff.
(vi)The defendant's use of the plaintiff's oral evidence from the examination for the purposes other than for the corruption investigation (and for the purposes of the misconduct or maladministration investigation) is not permitted by the ICAC Act, and is a jurisdictional error by reason that the power to conduct a compulsory examination (where the examinee does not have the benefit of declining to answer on the basis of the privilege against self-incrimination) is limited to being used solely for the purposes of a corruption investigation under s 22(1) (and can not be used for the purposes of a misconduct or maladministration investigation under s 22(2)).

The essential complaint is that within the scheme of the ICAC Act, information that is obtained in the course of an investigation into a matter assessed as raising a potential issue of corruption in public administration, that could be the subject of a prosecution within the meaning of s 24(1) of the Act, cannot be used in an investigation into a potential issue of misconduct or maladministration in public administration within the meaning of s 24(2) of the Act.
It is well understood, and both parties accept, that:[51]
A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence.
[51] Johns v Australian Securities Commission (1993) 178 CLR 408 at 424 (Brennan J).
As I have already noted, in Johns a delegate of the ASC authorised the disclosure of certain transcripts to a State Royal Commission, those transcripts having been of an examination that took place in private. That authorisation was within power. However, the delegate also authorised the Royal Commission to use those transcripts in public hearings. The High Court held that in that circumstance, the delegate should have given the applicant an opportunity to oppose that course. The observation of Brennan J, above, simply articulates that when information is obtained pursuant to a statutory power, the use that can then be made of that information is governed by the statute.
The plaintiff’s essential argument is that the ICAC Act creates a structural and purposive division between two streams of investigation. That division is established by the separate actions that may be taken under ss 24(1) and 24(2) respectively. If a matter is assessed under s 24(1) as raising a potential issue of corruption in public administration that could be the subject of a prosecution or other action, it enters one stream of action. That stream is then governed by the procedures, functions, powers and obligations set out in ss 26 through to 36.
By contrast, if a matter is assessed as raising a potential issue of misconduct or maladministration in public administration, s 24(2) sets out a number of possibilities for dealing with the matter. Critically, on the plaintiff’s argument, the powers that govern the dealing with a matter in this stream are, at their most intrusive, the powers of an inquiry agency. This may arise from the matter being referred to an inquiry agency (s 24(2)(a)) or the Commissioner exercising the power of an inquiry agency (s 24(2)(b) or (c)).
Any one of those courses then engages different parts of subdivision 3, ‘Action in relation to misconduct or maladministration’. If the matter is assessed under s 24(2)(a), the referral is governed by s 37. If the matter is assessed under s 24(2)(b) or (c), s 36A governs the way that those powers are to be exercised. If the matter is assessed under s 24(2)(d), the referral to a public authority is governed by s 38.
The plaintiff then emphasises three matters.
First, he submits that the structure of the ICAC Act creates a ‘significant delineation’ between investigation and referrals of different types and the ‘apparent intention’ to reserve investigations and referrals each to their own stream.
Second, if a matter is assessed under s 24(2)(b) or (c), the powers of investigation that pertain are those of an inquiry agency, namely, those under the RCA.[52] As the plaintiff observes, those powers are quite different from those given to the Commissioner, under schedule 2, when conducting an examination for the purposes of a corruption investigation.
[52] See Ombudsman Act 1972 (SA), s 19.
Third, the different types of an investigation give rise to significant differences in the entitlements to the privilege against self-incrimination and the use of evidence obtained. With respect to an investigation into possible corruption, schedule 2 clause 8 abrogates the privilege against self-incrimination and confers a use immunity. By contrast, with respect to an investigation into systemic or serious maladministration or misconduct in public administration, the RCA does not abrogate the privilege. Section 16 of the RCA confers a use immunity that is limited to civil or criminal proceedings in any court.
The variation of 19 December 2019, the subject of paragraph 2.4 of the Amended Statement of Grounds,[53] was made for the purpose of the subsequent misconduct and maladministration enquiry. To recap, that variation concerned the communication of any evidence given by the plaintiff which included, of course, evidence given by him in the course of the corruption investigation. That evidence was given in the course of an examination under s 29 as governed by schedule 2, clause 3. The plaintiff’s argument is that the variation under cl 3(11) was beyond power as it was purported to be done for the purposes of a misconduct and maladministration inquiry.
[53] Affidavit of the plaintiff 11 February 2020, Annexure 22 (CB Vol 4, 568).
In response, the Commissioner relies upon s 56A of the ICAC Act. Critically, the Commissioner submits that s 56A says plainly that evidence or information obtained by the lawful exercise of powers in relation to suspected corruption (that is pursuant to a schedule 2 examination) may be used for the purposes of any other investigation, including in relation to misconduct or maladministration in public administration.
The plaintiff counters by emphasising the opening phrase of s 56A(1), ‘Subject to this Act’. The plaintiff’s essential submission is that the section is thereby subordinated to the implications arising from the clear division of streams of investigation. To read it otherwise would collapse the evident purpose of ensuring that different powers of investigation, as well as different approaches to the privilege against self-incrimination, apply in each stream. To read s 56A as contended for by the Commissioner, the plaintiff submits, would have the effect of throwing out that carefully crafted division.
The Commissioner submits that the words ‘Subject to this Act’ have different work to do. He gives the example of the Commissioner wishing to use information obtained in one class of investigation for the purposes of a different class of investigation, but where that evidence and information might be effected by a non‑communication direction under cl 3(9). It would be necessary to vary the non‑communication direction in accordance with the ICAC Act before the evidence and information could be used for that purpose.
There are a number of reasons to prefer the construction contended for by the Commissioner. First, there is no textual reason to read s 56A(1) other than fully distributively. That is, evidence or information obtained by the lawful exercise of powers in relation to any of the subject matters of an investigation may be used for the purposes of any investigation in relation to any other subject matter of investigation. The text of this section does not maintain the division contended for by the plaintiff.
Further, however, s 56A(1)(b) provides that information obtained in the course of any of those investigations may be provided to, and received and used by, law enforcement agencies and prosecution authorities for the purposes of any criminal investigation or proceedings for the imposition of a penalty, as well as to public authorities for the purposes of any disciplinary investigation or action in relation to suspected corruption, misconduct or maladministration in public administration. That is to say, information obtained by the lawful exercise of powers in relation to suspected corruption (that is, obtained by an examination under schedule 2) can then be provided to public authorities for the purposes of any disciplinary investigation. It is eminently conceivable that disciplinary action might be undertaken in relation to a combination of corruption, misconduct and maladministration in public administration issues. To establish a strict division of permissible use for the purposes of s 56A(1)(b)(ii) would be utterly impractical.
Further, it is a necessary consequence of the plaintiff’s argument that evidence or information obtained by the lawful exercise of powers in relation to misconduct or maladministration in public administration (that is, powers under the RCA) could not then be used for any subsequent investigation in relation to suspected corruption, even if such an investigation had uncovered manifest corruption, notwithstanding that the privilege against self-incrimination had remained intact. That would seem to be an absurd consequence.
I further note s 54 of ICAC Act which provides, in part:
54—Confidentiality
(1) Except as required or authorised by this Act or by the Commissioner, a person who is or has been engaged in the administration of this Act must not, directly or indirectly, disclose information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment, investigation, referral or evaluation under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2) Despite subsection (1), a person engaged in the administration of this Act may disclose information—
(a)for the purposes of the administration or enforcement of this Act; or
(b)for the purposes of referring a matter in accordance with this Act to a law enforcement agency, inquiry agency, public authority or public officer; or
(c)for the purposes of a criminal proceeding or a proceeding for the imposition of a penalty; or
(d)for the performance of the functions of the Office or the Commissioner under another Act; or
(e)as otherwise required or authorised by this or another Act.
This section provides broad exceptions to the obligation of confidentiality for other recognised purposes. Reading s 56A as contended for by the Commissioner is consistent with the intent of this section.
As to the plaintiff’s contention to the effect that this reading would render the different protections given within the different streams of investigation effectively inutile, I respectfully disagree. Investigations are, by definition, open ended. Assessments are made on the best information available at the time, which cannot be complete. It is entirely appropriate and understandable that Parliament would seek to define and constrain the powers of the Commissioner consequent on an assessment made lawfully and, in particular, in good faith. However, if the investigation is then carried out lawfully according to Parliament’s prescription, and information is thereby revealed that paints a more comprehensive picture of the nature of the matter, indicating some different character of wrongdoing, there is an obvious public interest in that information being available for that further purpose. That is the mischief to which s 56A is manifestly directed.
In my view, Ground 3 does not disclose a reasonable basis for the claim.
Extensions of time
There is some dispute as to the date by which the plaintiff had sufficient knowledge of the variation of the non-communication direction. There is also a dispute as to whether the Application for Judicial Review is out of time and if so, by how much. Ultimately, I do not consider it necessary to resolve this, given my conclusion that none of the grounds discloses a reasonable basis for the claim. However, I note a submission by the plaintiff, in response to the Commissioner’s submission that Grounds 2 and 3 are out of time, that the Commissioner, being a model litigant, has not explained why a time point should bar the plaintiff from resort to relief if decisions or actions that form part of the investigation are unlawful.
That submission misconceives the nature of the jurisdiction and the role of the model litigant. On an application for judicial review, the jurisdiction of this Court is supervisory. Rule 200(1) of the Supreme Court Civil Rules 2006 (SA) provides that an action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date. Subrule (2) provides that if the action is commenced more than six months after the grounds for the review arose, the action cannot proceed further in the Court without the Court’s permission. It is not for a defendant to an application for judicial review, as a model litigant or otherwise, to identify prejudice before permission under rule 200(2) would not be given. This Court articulated the reason for the six-month time limit on applications for judicial review in Hall v City of Burnside:[54]
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six-month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that, quite apart from the six-month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.
[54] (2006) 102 SASR 298 at 304-305, [47]-[50] (Doyle CJ, Duggan J agreeing).
Had I concluded that any of the grounds raised a reasonable basis for the claim, it would have been necessary to resolve the dispute as to when the plaintiff had sufficient knowledge to bring the action. The investigation has manifestly required the deployment of significant public resources. There is a strong public interest in challenges to the lawfulness of steps in complex investigations and inquisitorial processes, which can take years, being brought in a timely fashion.
The Commissioner also seeks an extension of time, in so far as it might be required, to bring the application for summary dismissal in accordance with rule 200C. The Commissioner filed the Interlocutory Application seeking summary dismissal on 13 March 2020. He had been served with the Summons for Judicial Review and Statement of Grounds on 14 February 2020.[55] Subrule 200C(1) provides for the filing of an application for summary dismissal within 14 calendar days of service. The Interlocutory Application was filed outside of that time.
[55] Affidavit of Louise Michelle Kleinig 13 March 2020 [2] CB Vol. 4 577.
However, the Interlocutory Application is an application for summary dismissal under rule 232 and, in the alternative, to strike out the Amended Statement of Grounds. The consequence of filing the application within 14 days lies in subrule 200C(2), which provides that if a defendant files an application under subrule (1) (that is, an application under rule 232 within 14 days of service) the Court must dismiss or strike out the action or statement of grounds, as the case may be, in so far as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.
Rule 200C(1) does not, in my view, operate as a time limit on the ability to bring an application for summary judgment under r 232. It simply means that if the application is brought within 14 days of service, the rule places an onus on the plaintiff to satisfy the Court that there is a reasonable basis for an order for judicial review.[56]
[56] Hart v Parole Board [2017] SASC 184 at [8] (Stanley J).
In this case, the plaintiff filed the Amended Statement of Grounds on 31 March 2020, that is, after the Interlocutory Application for summary dismissal had been filed.
This being an application for summary dismissal under rule 232, there was no need for an extension of time.[57] As to whether non-compliance with the 14‑day rule triggered the operation of subrule 200C(2), argument proceeded on the basis of the Amended Statement of Grounds, filed 31 March 2020. To file an Amended Statement of Grounds on that later date was the plaintiff’s choice; there is no reason why the Commissioner should not have the benefit of subrule 200C(2) in respect of an Interlocutory Application for summary dismissal filed before that date.
[57] Compare Supreme Court Civil Rules 2006 (SA) r 131(6).
The consequence of the chronology is that the Commissioner is entitled to the benefit of onus that subrule 200C(2) confers. Had the application for summary dismissal proceeded in respect of a Statement of Grounds filed with the original Summons on 13 February 2020, he would not have been so entitled, having failed to file the Interlocutory Application within 14 days of service. However, given that my substantive conclusions in the matter depend wholly on questions of construction, the question of onus is academic.
Conclusion
In my view, the Amended Statement of Grounds discloses no reasonable basis for the claim for an order for judicial review. I would order that the action be summarily dismissed. I would hear the parties as to costs.