Cover v ACT Integrity Commission (No 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cover v ACT Integrity Commission (No 3)
Citation:	[2025] ACTSC 424
Hearing Date:	29 April 2025
Decision Date:	18 September 2025
Before:	Mossop J
Decision:	(1) The report entitled Special Report – Operation Luna (Part One) at Tab 12 of Exhibit 1 is admitted into evidence. (2) The proceedings are dismissed. (3) Unless the parties provide proposed consent orders in relation to costs to the chambers of Mossop J by 4pm on 24 September 2025, the proceedings are listed for the determination of costs at 9:15am on 29 September 2025 and the parties have leave to provide written submissions on costs limited to not more than three pages by email to the Associate to Mossop J by 4pm on 26 September 2025.
Catchwords:	CONSTITUTIONAL LAW – PARLIAMENTARY PRIVILEGE – Whether special report by ACT Integrity Commission (Report) is protected by parliamentary privilege – where Commissioner is an independent officer of the ACT Legislative Assembly – where Report prepared “for” the Legislative Assembly – where Report not produced at Legislative Assembly’s direction – where Report published under Commission’s statutory obligation to do so – where the Commission’s legislation otherwise deals with parliamentary privilege – Commissioner is an outsider to the Legislative Assembly – Report not protected by parliamentary privilege CONSTITUTIONAL LAW – PARLIAMENTARY PRIVILEGE – Purpose of parliamentary privilege – where statutory functions performed by statutory entity independent of the Legislative Assembly – where no legislative command extending parliamentary privilege – artificial to extend parliamentary privilege to the performance of such statutory functions – admitting Report in judicial review proceedings does not detract from the Legislative Assembly’s freedoms of speech and action STATUTES – INTERPRETATION – Integrity Commission Act 2018 (ACT), ss 9 and 10 – where “serious corrupt conduct” is “corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration” – whether “serious” imports a requirement of seriousness beyond “likely to threaten public confidence in the integrity of government or public administration” – it does not STATUTES – INTERPRETATION – Integrity Commission Act 2018 (ACT), s 10 – whether “likely” imports the Briginshaw standard of “more likely than not” – where “likely” is combined with the imprecise concept of “threaten” – usage of “likely” as meaning “a real and not remote chance or possibility” well established – improbable that the legislature combined a precise standard of “more likely than not” with the imprecise concept of “threaten” ADMINISTRATIVE LAW – STATUTORY DUTIES AND POWERS – Functions – whether functions of CEOs, board chairs and board members of public entities are duties which must be performed – where, in generally-applicable statutes, drafters are careful to use the interpretive rulebook that is the Legislation Act 2001 (ACT) – where “function” includes “authority, duty and power” – no contrary intention to displace the operation of the Legislation Act
Legislation Cited:	Annual Reports (Government Agencies) Act 2004 (ACT), s 7A Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 8, 24 Bill of Rights 1688 1 Wm & M sess 2 c 2, Art 9 Canberra Institute of Technology Act 1987 (ACT), ss 7, 10(2)(c) Civil Law (Wrongs) Act 2002 (ACT), s 137(2)(a) Commonwealth Constitution, s 49 Financial Management Act 1996 (ACT), ss 77, 82, 84, 85, 101 Financial Management Legislation Amendment Act 2005 (ACT) Inquiries Act 1991 (ACT), s 14A Inspector of Correctional Services Act 2017 (ACT) Integrity Commission Act 2018 (ACT), ss 7, 9, 10, 19, 20, 21, 22, 23, 25, 100, 101, 130A, 140, 177, 178, 182, 183, 184, 185, 186, 187, 188, 188A, 189, 190, 191, 192, 205, 206, 207, 208, 209, 210, 211, 212, 212A, 213, 214, 215, 216, Chs 3, 4, Pts 3.9, 4.2 Legislation Act 2001 (ACT), ss 6, 144, 146, 200, Dictionary Legislative Assembly (Broadcasting) Act 2001 (ACT) Legislative Assembly Precincts Act 2001 (ACT) Migration Act 1958 (Cth) Parliamentary Privileges Act 1987 (Cth), s 16 Supreme Court Act 1933 (ACT), s 20
Cases Cited:	ACT v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 390 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Boughey v The Queen (1986) 161 CLR 10 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 Commonwealth v Baume (1905) 2 CLR 405 Cover v ACT Integrity Commission [2025] ACTSC 71 Crime and Corruption Commission v Carne [2023] HCA 28; 97 ALJR 737 Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151 James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; 274 ALR 85 Klein v Domus Pty Ltd (1963) 109 CLR 467 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Prebble v Television New Zealand Ltd [1995] 1 AC 321 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Murphy (1986) 5 NSWLR 18 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 Szwarcbord v Gallop [2002] ACTSC 28; 167 FLR 262 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396
Texts Cited:	ACT Integrity Commission, Special Report – Operation Luna (Part One) (27 June 2024) ACT Legislative Assembly, Companion to the Standing Orders of the Legislative Assembly for the Australian Capital Territory (2022, 2nd ed) ACT, Parliamentary Debates, Legislative Assembly, 27 August 2024 ACT, Parliamentary Debates, Legislative Assembly, 27 June 2024 Halsbury’s Laws of England (Butterworth & Co, 1959, 3rd ed) S Walmsley, The Trials of Justice Murphy (LexisNexis Butterworths, 2017)
Parties:	Leanne Cover ( Plaintiff) ACT Integrity Commission ( Defendant) Speaker of the Legislative Assembly for the Australian Capital Territory ( Amicus Curiae)
Representation:	Counsel C Webster SC with IJ King (Plaintiff) T Game SC with B Kaplan (Defendant) P Bindon (Amicus Curiae)
Solicitors Mills Oakley (Plaintiff) ACT Integrity Commission (Defendant) ACT Government Solicitor (Amicus Curiae)
File Number:	SC 199 of 2024

MOSSOP J:

Introduction

This is an application for prerogative relief in relation to the report by the ACT Integrity Commission entitled Special Report – Operation Luna (Part One), dated 27 June 2024 (Report). By her amended originating application filed on 30 August 2024, the plaintiff seeks declarations that:
(a)the Report is materially affected by errors of law;
(b)the Report is attended by jurisdictional error through a failure to consider a relevant consideration; and
(c)the Commission’s determination that the plaintiff had engaged in “serious corrupt conduct” was made without or in excess of jurisdiction, and is thus a nullity.
The plaintiff also seeks costs.
The amended originating application outlines, with commendable clarity, the grounds upon which relief is sought. In summary, the grounds are:
(a)Ground 1: The Commission misconstrued the expression “serious corrupt conduct” in the Integrity Commission Act 2018 (ACT) (IC Act).
(b)Ground 2: The Commission erred in interpreting the word “likely” in s 10 of the IC Act as meaning “a real and not remote likelihood” rather than “more probable than not”.
(c)Ground 3: The Commission erred in its construction of ss 84 and 101 of the Financial Management Act 1996 (ACT) (FM Act).
(d)Ground 4: The Commission erred by failing to distinguish between the duties of the Chief Executive Officer (CEO) and the duties of the Chair of the Board (Board Chair).
(e)Ground 5: The Commission erred in law in its determination about the status of an informal statement given by the relevant Minister and his Chief of Staff, in the absence of a formal direction under the Canberra Institute of Technology Act 1987 (ACT) (CIT Act).
(f)Ground 6: The Report is affected by jurisdictional error because the Commission unreasonably failed to exercise its discretionary power in s 140 of the IC Act to examine a potentially critical witness.

Background

The plaintiff is the former CEO of the Canberra Institute of Technology (CIT). On 23 June 2022, the Commission announced its decision to investigate, pursuant to s 100 of the IC Act, the awarding of contracts worth over $8.5 million by the CIT to entities associated with Mr Patrick Hollingworth (including Redrouge Nominees Pty Ltd t/a “ThinkGarden”).
The investigation, known as Operation Luna, involved numerous witness examinations, as well as review of documents. Prior to the conclusion of its investigation, the Commission decided to prepare a “special report” on the investigation (the Report). The preparation of a special report is provided for by s 206 of the IC Act. Having followed the process of disclosure under ss 212 and 212A of the IC Act, on 27 June 2024, the Commission provided the Report to the Speaker of the ACT Legislative Assembly (Speaker) and published the Report on its website.
The Report concerned the conduct of the plaintiff and the Board Chair, Mr Craig Sloan, in relation to the performance of their duties of disclosure to the CIT Board (Board) and to the relevant Minister, the Minister for Skills, of matters in relation to the contracts. The key issue considered in the Report was whether the plaintiff and/or Mr Sloan had informed the Board of several important matters surrounding the procurement of the services of Mr Hollingworth, including a letter from the Minister dated 19 February 2021 (19 February letter), which concerned the contracts which had been entered into and the subsequent proposals to enter into a fifth and sixth contract with entities associated with Mr Hollingworth.
The plaintiff contends that the Report is materially affected by errors of law and seeks relief within the general jurisdiction of the Supreme Court, which is reflected in s 20 of the Supreme Court Act 1933 (ACT).

Parliamentary privilege and the Report

Introduction

A preliminary evidentiary issue arose in relation to the admissibility of the Report. That issue arose because the Commission — and the Speaker, who was given leave to appear as amicus on the point: see Cover v ACT Integrity Commission [2025] ACTSC 71 — contended that the Report was a “proceeding in Parliament” for the purposes of s 16 of the Parliamentary Privileges Act 1987 (Cth) (Privileges Act). Section 16 defines the scope of the privileges of the ACT Legislative Assembly pursuant to s 24(3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act).
Both the Speaker and the Commission contended that the Report was a “proceeding in Parliament” and thus it was not permissible for the Report to be admitted into evidence because the purpose of doing so was to seek to challenge it in a manner that parliamentary privilege prevented.
The hearing on 29 April 2025 proceeded on the basis that the proceedings would be fully argued and that a ruling on the admissibility of the Report would be made as part of the court’s final determination of the matter.

Relevant legislative framework

Section 7 of the Self-Government Act establishes the Territory as a body politic under the Crown. Section 8 establishes the Legislative Assembly for the Australian Capital Territory. Section 24 establishes the powers, privileges and immunities of the Legislative Assembly. It empowers the Legislative Assembly to make laws declaring its own powers and those of its members and committees, “but so that the powers so declared do not exceed the powers for the time being of the House of Representatives or of its members or committees” (s 24(2)(a)). Section 24(3) provides:
(3) Until the Assembly makes a law with respect to its powers, the Assembly and its members and committees have the same powers as the powers for the time being of the House of Representatives and its members and committees.
In this subsection, the reference to “powers” includes “privileges and immunities”: see s 24(1).
The Legislative Assembly has not, to date, made a general law “with respect to its powers”, even though it has made laws dealing with specific issues related to its operation: see, for example, Legislative Assembly Precincts Act 2001 (ACT); Legislative Assembly (Broadcasting) Act 2001 (ACT). Because of the absence of any general “law with respect to its powers”, s 24(3) has the effect that the Legislative Assembly and its members and committees have the same powers, privileges and immunities as the House of Representatives and that House’s members and committees. Therefore, it is necessary to examine the powers, privileges and immunities of the House of Representatives in order to determine those of the Legislative Assembly.
Section 49 of the Commonwealth Constitution provides:
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
The Privileges Act declares the powers, privileges and immunities of the Houses of the Commonwealth Parliament, their members and committees.
Sections 16(1)-(3) of the Privileges Act provide:
16Parliamentary privilege in court proceedings
(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2)For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a)the giving of evidence before a House or a committee, and evidence so given;
(b)the presentation or submission of a document to a House or a committee;
(c)the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a)questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b)otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
Article 9 of the Bill of Rights 1688 1 Wm & M sess 2 c 2, which is referred to in s 16 of the Privileges Act, provides:
Freedom of Speech.
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
The enactment of s 16 of the Privileges Act was a response to the narrow approaches that had been taken to the scope of parliamentary privilege in two decisions in the NSW Supreme Court in the trials of Justice Murphy: see the discussion in Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 227-229, R v Murphy (1986) 5 NSWLR 18 and S Walmsley, The Trials of Justice Murphy (LexisNexis Butterworths, 2017) at 95-98.
The Commission is established by the IC Act. Section 7 of the IC Act provides:
7Application of Act—Parliamentary privilege
(1)This Act does not affect the law relating to the privileges of—
(a)the Legislative Assembly; or
(b)any Australian Parliament; or
(c)any house of any Australian Parliament.
(2)This section is subject to section 178 (Parliamentary privilege—taken to be waived for MLAs’ declarations of interests etc).
Section 19 of the IC Act establishes the Commission. Section 20 identifies that the Commission consists of the Commissioner. Sections 21-22 of the IC Act provide:
21Commissioner—officer of the Legislative Assembly
(1)The commissioner is an independent officer of the Legislative Assembly.
(2)The functions, powers, rights, immunities and obligations of the commissioner are as stated in this Act and any other law in force in the Territory.
NoteA law in force in the Territory includes a territory law and a Commonwealth law.
(3)There are no implied functions, powers, rights, immunities or obligations arising from the commissioner being an independent officer of the Legislative Assembly.
(4)The powers of the Legislative Assembly to act in relation to the commissioner are as stated in this Act and any other law in force in the Territory.
(5)In subsection (4):
Legislative Assembly includes—
(a)the members of the Legislative Assembly; and
(b)the committees of the Legislative Assembly.
(6)There are no implied powers of the Legislative Assembly arising from the commissioner being an independent officer of the Legislative Assembly.
22Independence of commission
Subject to this Act and to other territory laws, the commission has complete discretion in the exercise of the commission’s functions.
Section 25 provides that the Commissioner is appointed by the Speaker after consultation with the Chief Minister, the leader of the opposition and other party leaders, as well as the relevant committee of the Legislative Assembly. The functions of the Commission are set out in s 23 and include, most relevantly, the investigation of conduct that is alleged to be “corrupt conduct” (as defined by s 9 of the IC Act).
Chapter 3 of the IC Act relates to investigating corrupt conduct. The chapter deals specifically with claims of parliamentary privilege that arise during the exercise of the Commission’s functions. Where a claim of parliamentary privilege is made, s 177 provides that the claim “must be dealt with by the Legislative Assembly”. However, s 178 (which is referred to in s 7(2) set out above) provides a specific waiver of parliamentary privilege in relation to a member of the Legislative Assembly’s declaration of pecuniary interests or other matters made in accordance with the Legislative Assembly’s Standing Orders.
There are two relevant types of reports by the Commission provided for in the IC Act, investigation reports and special reports. Part 3.9 of the IC Act, which comes towards the end of Ch 3, provides for the preparation of “investigation reports” after an investigation is concluded. In particular:
(a)Section 182 mandates the preparation of such a report after an investigation is completed and allows the report to include the Commission’s findings, opinions and recommendations, and the reasons therefor.
(b)There are detailed provisions which describe limitations on the content of such reports: ss 183-187.
(c)There are procedural provisions requiring the giving of notice of the terms of proposed investigation reports: ss 188-188A.
(d)Investigation reports are required to be given to the Speaker and then must be, or are taken to have been, presented to the Legislative Assembly: s 189.
(e)Investigation reports must be published on the Commission’s website after having been given to the Speaker: s 190.
(f)The relevant Minister must provide a response to an investigation report and give that to the Speaker: s 191.
(g)There is a capacity to make a confidential investigation report and give that report to the relevant committee of the Legislative Assembly: s 192.

Chapter 4 relates to reporting by the Commission. It addresses the requirement to give monthly reports to the Inspector of the Commission, permits the making of “special reports”, and requires the preparation of annual reports.
Part 4.2 of the IC Act relates to the preparation of “special reports”. Section 206 provides:
206Special reports
The commission may, at any time, prepare a report (a special report) for the Legislative Assembly on any matter relating to the exercise of the commission’s functions, including administrative and general policy matters.
In the balance of Pt 4, there are provisions regulating the content of such special reports and the processes that must be followed in relation to them. These largely mirror those relating to investigation reports. In particular:
(a)There are detailed provisions which describe limitations on the content of special reports: ss 207-211.
(b)There are procedural provisions requiring the giving of notice of the terms of proposed special reports: ss 212-212A.
(c)Special reports are required to be given to the Speaker and then must be, or are taken to have been, presented to the Legislative Assembly: s 213.
(d)Special reports must be published on the Commission’s website after having been given to the Speaker: s 214.
(e)The relevant Minister must provide a response to a special report and give that to the Speaker: s 215.
(f)There is a capacity to make a confidential special report and give that report to the relevant committee of the Legislative Assembly: s 216.
Sections 213-214 of the Act provide:
213Special report—presentation to Legislative Assembly
(1)If the Legislative Assembly is sitting when the commission completes a special report—
(a)the commission must give the special report to the Speaker; and
(b)the Speaker must present the special report to the Legislative Assembly on the next sitting day.
(2)If the Legislative Assembly is not sitting when the commission completes a special report—
(a)the commission must give the report, and a copy for each member of the Legislative Assembly, to the Speaker; and
(b)the report is taken for all purposes to have been presented to the Legislative Assembly on the day the commission gives it to the Speaker (the report day); and
(c)the Speaker must arrange for a copy of the report to be given to each member of the Legislative Assembly on the report day; and
(d)the Speaker must present the report to the Legislative Assembly—
(i)on the next sitting day; or
(ii)if the next sitting day is the first meeting of the Legislative Assembly after a general election of members of the Assembly—on the second sitting day after the election; and
(e)publication of the report is taken to have been ordered by the Legislative Assembly on the report day; and
(f)the Speaker may give directions for the printing and circulation, and in relation to the publication, of the report.
NoteIf the Speaker is unavailable, see s 300.
(3)This section does not apply to a confidential special report.
214Special report—publication on website
(1)The commission must publish the special report on the commission’s website as soon as practicable after giving the report to the Speaker under section 213.
NoteIf the Speaker is unavailable, see s 300.
(2)This section does not apply to a confidential special report.
In addition to s 213(2)(e), standing order 212A of the Legislative Assembly’s Standing Orders provides that papers presented by the Speaker (standing order 212A(a)) and papers presented pursuant to statute (standing order 212A(d)) are authorised for publication when presented to the legislative Assembly. That authorisation has consequences, inter alia, for the law of defamation: see Civil Law (Wrongs) Act 2002 (ACT), s 137(2)(a).

Presentation of the special report

The Report was provided to the Speaker on 27 June 2024. That was a sitting day. The Speaker announced to the Assembly that she had been provided with the Report. The Speaker identified that the Report would be presented to the Legislative Assembly on the next sitting day, which was in August. However, she also referred to the effect of s 214 of the IC Act and told members of the Legislative Assembly about the publication of the Report on the Commission’s website, which was to occur after her statement to the Assembly: ACT, Parliamentary Debates, Legislative Assembly, 27 June 2024, at 1888 (Joy Burch, Speaker).
A member of the plaintiff’s law firm downloaded a copy of the Report from the Commission’s website on 27 June 2024. That copy of the Report is the same as the copy sought to be tendered.
On the next sitting day, which was 27 August 2024, the Speaker presented the Report to the Legislative Assembly. On the same day, the relevant Minister tabled the government’s response to the Report: ACT, Parliamentary Debates, Legislative Assembly, 27 August 2024, at 2006‑2007.

Submissions of the Speaker and Commission

The Speaker made detailed submissions as to the application of parliamentary privilege. Those were adopted by the Commission with some minor elaboration. The submissions put on behalf of the Speaker comprised four steps:
(a)First, the Report is itself a “proceeding in Parliament” for the purposes of s 16 of the Privileges Act because it is within the scope of both ss 16(2)(c) and (d) of the Privileges Act. This was put as follows:
The matters set out above establish that the Special Report falls squarely within the category of ‘proceedings in Parliament’ in s 16(2)(d) of the Privileges Act, being “the formulation, making or publication of a document, including a report, by or pursuant to an order of a House … and the document so … published”. Put in terms of the “core concept”, the presentation by the Speaker and the publication by the Assembly are plainly “acts done in the course of … the transacting of the business of a House” and the provision of the Report to the Speaker is plainly an act done “for the purposes of or incidental to” that end: s 16(2)(c) of the Privileges Act.
(b)Second, because parliamentary privilege attaches to the Report, it is not lawful in the present proceedings for the Report to be tendered or received into evidence, or for questions to be asked, or statements, submissions or comments made concerning it, to the extent that is done for the purposes set out in ss 16(3)(a)‑(c) of the Privileges Act.
(c)Third, Grounds 1-5 of the amended originating application will necessarily involve “questioning the correctness” of passages in the Report and “draw[ing] ... conclusions” from those passages as to whether or not the Report is infected by legal error, and that is prohibited by ss 16(3)(a) and (c).
(d)Fourth, the court must, therefore, refuse to admit the Report into evidence.
The Speaker submitted that the decisions in Szwarcbord v Gallop [2002] ACTSC 28; 167 FLR 262 and Crime and Corruption Commission v Carne [2023] HCA 28; 97 ALJR 737 were distinguishable from the present circumstances on factual grounds because the evidentiary basis necessary to establish the connection between the relevant report and the proceedings of the relevant legislature had not been established in those cases.
If the Report was established to be a “proceeding in Parliament”, then the prohibition would apply if it was to be tendered for one of the purposes set out in s 16(3). The Speaker submitted that the grounds for challenging the Report articulated in Grounds 1‑5 clearly indicated that the purpose of the admission of the Report was to challenge numerous statements or conclusions in it.

Submissions of the plaintiff

The plaintiff identified the factual point that the Report being tendered was that which was published on the Commission’s website (as distinct from that presented to the Legislative Assembly by the Speaker) and submitted that the republication by the Commission removed the Report from the ambit of s 16(3). She pointed to the decision in British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 in which the court found that a report published as a result of an independent decision of the executive government fell outside the scope of “proceedings in Parliament” for the purposes of s 16(2) of the Privileges Act. That decision was cited by McWilliam AsJ in ACT v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 390 at [51], where her Honour said: “If a document falling within the protection of s 16(2) of the [Privileges Act] is subsequently made public, whether by the Executive or by anybody else, the public copy of the document is not protected”. The plaintiff submitted that these decisions meant that the copy of the Report relied upon in the present case, which had been published on the Commission’s website, was outside the scope of parliamentary privilege.
Further, the plaintiff made five other submissions:
(a)First, the purpose of the Commission in preparing the Report was to fulfil its statutory functions under s 23 of the IC Act rather than any purpose of the Legislative Assembly.
(b)Second, there is no evidence that the Legislative Assembly requested or otherwise directed the preparation of the Report.
(c)Third, the sending of the Report to the Legislative Assembly was for the purposes of the Commission and in order that the Report be made public.
(d)Fourth, the status of the Commissioner as an officer of the Legislative Assembly does not alter the position, as the statutory relationship was not such as to make him an agent of the Legislative Assembly.
(e)Fifth, even if the Report attracted parliamentary privilege, its tender in the proceedings was not for a prohibited purpose because what is challenged is the conduct and process of the Commission, not any challenge to the tabling of the report in the Legislative Assembly.
In reply to the submissions made on behalf of the Speaker and the Commission, the plaintiff pointed to s 21(3) of the IC Act, which expressly provides that the status of the Commissioner as an independent officer of the Legislative Assembly gives the Commissioner “no implied functions, powers, rights, immunities or obligations”.
The plaintiff pointed to the fundamental purpose of parliamentary privilege and the absence of any adverse effect on freedom of debate in the Legislative Assembly if the Report is tendered and the lawfulness of the making of the Report is determined in these proceedings.

Decision

The Report is admissible. Its admission in the proceedings does not contravene s 16 of the Privileges Act. It may be relied upon in proceedings challenging the compliance by the Commission with the terms of the IC Act.
The reasons that follow:
(a)analyse the Speaker’s submissions by reference to the text of s 16(2) of the Privileges Act;
(b)explain why the Report is not within s 16(2)(c);
(c)explain why the Report is not within s 16(2)(d)
(d)explain how this is consistent with the authorities relied upon by the Speaker; and
(e)explain why the outcome is consistent with the purpose of parliamentary privilege.
Because of the conclusion that the Report sought to be tendered is not captured by s 16(2), it is not necessary to address the question raised by the third step in the Speaker’s argument, namely whether, if the Report were covered by parliamentary privilege, the purposes for which it would be used in the present judicial review proceedings would infringe s 16(3).

Analysis of the Speaker’s submissions

So far as the definition of “proceedings in Parliament” is concerned, the relevant words of s 16(2) are:
(2)… proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
…
(b)the presentation or submission of a document to a House or a committee;
(c)the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
The Speaker’s submissions sought to locate the Report in s 16(2) by contending that it was:
(a)within s 16(2)(c) because the presentation by the Speaker and the publication by the Assembly were “acts done in the course of … the transacting of the business of [the Legislative Assembly]” and hence the provision of the Report to the Speaker was an act done “for the purposes of or incidental to” that end; or
(b)within s 16(2)(d) because it was “the formulation, making or publication of a document, including a report, by or pursuant to an order of [the Legislative Assembly] … and the document so … published”.
Because of the wrapped‑up language used in the statutory provisions and picked up in the submissions of the Speaker, it is necessary to identify the actual contentions that are available.
So far as s 16(2)(c) is concerned, the Speaker’s contention is that, because the presentation of the Report and its publication by the Legislative Assembly — both uncontroversially being “proceedings in Parliament” — then the “preparation of” the Report was “for purposes of or incidental to” those proceedings and hence fell within s 16(2)(c).
So far as s 16(2)(d) is concerned, the reference to “an order of a House or a committee” qualifies the words “the formulation, making or publication of a document”. That means that, in the present case, it is only the publication of the document which could be within para (d), because the “formulation” and “making” of the document was not done pursuant to an order of the Legislative Assembly or a committee thereof. This means that the Speaker’s submission simply identifies that proceedings in Parliament include “the publication of [the Report] … pursuant to an order of [the Legislative Assembly] … and the document so published”. There can be no doubt that the notional publication that is authorised or ordered by the Legislative Assembly by reason of either standing order 212A or s 213(2)(e) of the IC Act is part of the proceedings of Legislative Assembly, but that act (or deemed act) of the Assembly is not being questioned. Rather, the issue is whether the words “and the document so published” means that the Report itself is part of the proceedings of the Legislative Assembly so that its tender for the purposes of judicial review proceedings is precluded.

Why the Report is not within s 16(2)(c)

The issue here is whether there is such a close connection between the Commission and the Legislative Assembly that the preparation of the Report by the Commission should be characterised as being “for purposes of or incidental to the transacting of” any business of the Legislative Assembly.
The relationship between the Commission and the Legislative Assembly is defined by the IC Act. When the IC Act is examined, it is not open to characterise the whole statutory process for the preparation of a special report under the Act as being “for purposes of or incidental to the transacting of” the business of the Legislative Assembly.
When one examines the provisions of the IC Act, it is quite clear that the Commission is a separate statutory entity performing functions which are not themselves “proceedings in Parliament”, and the IC Act does not indicate any intention that those statutory processes should be treated as though they were part of “proceedings in Parliament”.
The nature of the Commission: The Commissioner is described as “an independent officer of the Legislative Assembly”: s 21(1). While that could be seen as making the Commissioner part of the Legislative Assembly and hence more likely to be a beneficiary of parliamentary privilege, that is undermined by the terms of ss 21(2)-(3) and (6) (set out above at [20]). The existence of those provisions indicates that s 21(1) is intended to make clear that the Commissioner is an adjunct to the operation of the Legislative Assembly — as distinct from being part of the executive government — but is not intended to go as far as to constitute the Commissioner as an integral part of the processes of the Legislative Assembly itself, as would be the case with an Assembly committee. The statement that the Commissioner is an independent officer of the Assembly is intended to articulate lines of accountability rather than impliedly alter the nature of the powers given under the IC Act.
That conclusion is reinforced when one looks at the overall structure of the IC Act, which is to establish the Commission as a statutory authority undertaking investigation and reporting independent of the executive government and largely independent of the Legislative Assembly. While the Commissioner is appointed by the Speaker in accordance with s 25 and reports are made to the Speaker, the structure of the Act is otherwise consistent with the Commission being an independent statutory body whose conduct is determined by a quite prescriptive statutory regime. In addition to monthly reports to the Inspector of the Commission (s 205) and annual reports to the relevant responsible Minister under s 7A of the Annual Reports (Government Agencies) Act 2004 (ACT), there is the obligation to provide investigation reports and a power to provide special reports to the Speaker: IC Act, ss 189, 213.
The report was not prepared at the Legislative Assembly’s direction: The process for the making of special reports under Pt 4.2 provides the Commission with a capacity to report to the Legislative Assembly prior to the completion of an investigation and the preparation of an investigation report under Pt 3.9. The preparation of a special report does not arise from any order of the Legislative Assembly or any Assembly committee. Rather, special reports “may, at any time,” be prepared by the Commission “on any matter relating to the exercise of the commission’s functions”: s 206. Conducting investigations is one of the functions of the Commission outlined in s 23(1)(a), and the decision to investigate arose from the independent decision of the Commission under s 100 or s 101 of the IC Act.
The IC Act addresses parliamentary privilege: The manner in which the IC Act addresses the issue of parliamentary privilege is not consistent with special reports being protected from challenge. Section 7 makes it clear that the IC Act does not affect the privileges of the Legislative Assembly. That is subject to s 178, which waives privilege in relation to Assembly members’ declaration of interests. Parliamentary privilege may be claimed in response to the exercise of statutory powers by the Commission: see, for example, s 130A. Questions of parliamentary privilege are required to be determined by the Legislative Assembly itself: s 177. Consistent with the explanation I have given above of the consequences of being an “independent officer of the Legislative Assembly”, the Commission is an “outsider” in relation to the Legislative Assembly, exercising statutory powers which may be qualified by the existence of parliamentary privilege. While the IC Act clearly addresses the issue of parliamentary privilege in a number of respects, it does not attempt to clothe the actions of the Commission with any privilege. Rather, the Commission is treated as an independent statutory authority exercising the powers given by the statute.
Special reports versus investigation reports: Although the scope of special reports under s 206 of the IC Act is broad, extending beyond individual investigations to administrative and general policy matters, they are not sufficiently different to investigation reports to draw a distinction between the two types of reports for the purposes of the application of parliamentary privilege. Section 206 makes specific reference to a special report being prepared “for the Legislative Assembly”. That is different to the language used in relation to investigation reports in s 182, which makes no specific reference to for whom such reports are prepared, even though the IC Act makes it clear that investigation reports are to be provided to the Speaker and presented to the Legislative Assembly: s 189. However, it is not sufficient to attract the protection of parliamentary privilege under s 16(2)(c) of the Privileges Act that a document is prepared “for” the relevant legislature. It must be prepared “for purposes of or incidental to the transacting of any such business [of that legislature]”. While the words “for the Legislative Assembly” in s 206 are informative in the overall characterisation of the nature of the Report, having regard to the very similar processes provided by Pts 3.9 and 4.2 in relation to the two kinds of reports, including their provision to the Speaker and their presentation to the Legislative Assembly, the additional words “for the Legislative Assembly” in s 206 are not of sufficient significance to warrant a different characterisation of the exercise undertaken by the Commission under s 206.

Publication by others: As will be explained in relation to s 16(2)(d), the Report sought to be tendered here is not the Report presented to the Speaker or a copy of the Report “published” by the Legislative Assembly. Rather, it is a copy of the Report which is publicly available because it was published by the Commission itself on its website pursuant to the Commission’s independent statutory obligation to do so. In British American Tobacco, a government response to a Senate committee report, which had been tabled in the Senate and incorporated into Senate Hansard, had been published on a government website. The respondent made a submission that s 16(2)(c) extended the reach of s 16(3) to catch any subsequent publication of a document that had been tabled in the Senate by the executive government or anyone else. The court (Keane CJ, Downes and Besanko JJ) said (at [51]):
In our opinion, subsequent publication by the executive government cannot be regarded as “incidental” to the transacting of the business of the House or of a committee. No other view is open where there is nothing to show that the subsequent publication was not the decision of officers of the executive government taken independently of the views of the legislature. The respondent’s argument fails to acknowledge that s 16(2) of the [Privileges Act] … is concerned with what is incidental to the activities of the legislative arm of government and that the publication by the executive government was, on the face of things, unrelated to the business of either house of the legislative branch.
The principle arising from British American Tobacco was correctly articulated by McWilliam AsJ in SMEC (at [51]):
If a document falling within the protection of s 16(2) of the [Parliamentary Privileges] Act is subsequently made public, whether by the Executive or by anybody else, the public copy of the document is not protected …
There is obviously a distinction between publication by the executive government pursuant to a discretionary decision to publish and publication by a statutory authority pursuant to a statutory obligation to publish. However, given the explanation of the statutory provisions in the IC Act which define the relationship between the Commission and the Legislative Assembly, the principle is the same. The publication by the Commission pursuant to its statutory obligation to do so is not “incidental to the transacting of” the business of the Legislative Assembly. It is a separate and distinct obligation arising after the delivery of the Report to the Speaker (see s 214 of the IC Act).
Conclusion: There is clearly a line to be drawn between the preparation of documents which are “for purposes of or incidental to” the transacting of the business of the Legislative Assembly and those which are not. That may be difficult in some cases. However, having regard to the terms of the IC Act, a special report is definitely on that side of the line which cannot be characterised as being “for purposes of or incidental to the transacting of” any business of the Legislative Assembly. Rather, it is more appropriately characterised as the fulfilment of the Commission’s statutory functions which include, at the discretion of the Commission, the provision of a special report to the Legislative Assembly.

Why the Report is not within s 16(2)(d)

Is the Report sought to be tendered the subject of parliamentary privilege under s 16(2)(d) because it was ordered to be published by the Legislative Assembly?
The answer is “No”, for a number of reasons.
First, the Report sought to be tendered had not been “ordered to be” or “authorised” to be published by the Legislative Assembly when it was obtained by the plaintiff on 27 June 2024. The Report was presented to the Legislative Assembly and “authorised” for publication pursuant to standing order 212A when it was presented to the Legislative Assembly on the next sitting day (27 August 2024). Had it been provided to the Speaker when the Legislative Assembly was not sitting, then publication would have been taken, by s 213(2)(e) of the IC Act, to have been “ordered” by the Legislative Assembly on the day it was provided to the Speaker. Quite apart from the authorisation of the Report’s publication pursuant to the Standing Orders, immediately following presentation to the Speaker, it was published pursuant to s 214 of the IC Act by the Commission on its own website. That publication occurred on 27 June 2024. The authorisation for publication pursuant to the Standing Orders occurred on 27 August 2024. There was, therefore, a two‑month period during which the Report had been published by the Commission pursuant to statute but not authorised for publication by the Legislative Assembly pursuant to the Standing Orders. The Report obtained by the plaintiff was obtained by her solicitors from the Commission’s website on 27 June 2024 and it is the same Report proposed to be tendered.
Second, the authorisation of the publication upon the Report being presented to the Legislative Assembly did not involve any actual publication. There was no evidence specifically directed to the consequences of authorisation for publication under standing order 212A. In British American Tobacco at [54], the court observed that the equivalent rule in the Commonwealth Senate did not require any person to actually publish a document. Rather, the authorisation may be no more than “to signal a retreat from the privilege previously asserted by the Parliament at Westminster to restrain the publication of its proceedings”. That is consistent with the authority cited by their Honours, namely Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 336-337, where Lord Browne‑Wilkinson (for the court) observed:
In the past, Parliament used to assert a right, separate from the privilege of freedom of speech enshrined in article 9, to restrain publication of its proceedings. … Since 1980 this right has no longer been generally asserted by the United Kingdom Parliament and their Lordships understood from the Attorney-General that in practice the House of Representatives in New Zealand no longer asserts the right.
See also Halsbury’s Laws of England (Butterworth & Co, 1959, 3rd ed) vol 28 at 458-459.
There is nothing in the Standing Orders or the Companion to the Standing Orders of the Legislative Assembly for the Australian Capital Territory (2022, 2nd ed) to indicate there is any publication (in the sense of printing of documents), even though the documents may be made available to members of the Legislative Assembly. Therefore, at least so far as the evidence goes, no copy of the Report actually published by the Legislative Assembly is sought to be tendered.
Third, the copy of the Report which was tendered was published by the Commission on its website pursuant to the statutory obligation to do so in s 214 of the IC Act. This publication to the world of a document is not dependent upon any order or authorisation by the Legislative Assembly but is simply pursuant to a statutory obligation arising by reason of the fact of provision of the Report to the Speaker. Consistently with the decision in British American Tobacco referred to above, there is a clear distinction between publication by or pursuant to an order of the Legislative Assembly and publication not by or pursuant to such an order. Publication by a statutory entity pursuant to a mandatory provision of its empowering Act is not publication “by or pursuant to an order” of the Legislative Assembly.
In summary, the Report sought to be tendered is not within s 16(2)(d) because the relevant publication is that by the Commission, and that publication was not “by or pursuant to an order of” the Legislative Assembly.

These conclusions are consistent with the authorities

The two decisions to which the Speaker made specific reference were Szwarcbord and Carne. Szwarcbord raised many of the same issues as arise in this case, although there was, in that case, no statutory requirement that the report in question be presented to the Legislative Assembly. However, it did illustrate a situation in which:
(a)a report had been prepared for a statutory purpose under the Inquiries Act 1991 (ACT);
(b)findings in that report were sought to be made the subject of declaratory relief; and
(c)the report had been provided to the Chief Minister, who was entitled to table the report in the Assembly under s 14A of the Inquiries Act.
Crispin J concluded:
(a)the evidence did not establish that the report was prepared for the purposes of transacting the business of the Legislative Assembly: at [21];
(b)even though privilege may be attracted by the retention of a document for a relevant purpose, the privilege created does not attach to the document and any copies for all purposes: at [22]; and
(c)the tabling of a copy of a document not prepared for purposes of or incidental to the business of the Legislative Assembly would not prevent the tendering of copies of the document which were not prepared or used for such a purpose: at [22].
The differences between the circumstances in Szwarcbord and this case — namely that, in Szwarcbord, there was no obligation to table the document and no evidence of an actual intention to table the document — indicate that resolution of the issue in this case turns upon the significance of the statutory provisions in the IC Act and whether they are sufficient to make the purposes of the Commission purposes “of or incidental to the transacting of the business” of the Legislative Assembly.
In Carne, the majority judgment of Kiefel CJ, Gageler and Jagot JJ identified that the question of whether the purposes of a document are “of or incidental to, transacting business of the Assembly or a committee” is to be determined objectively on the basis of the “functional connection” of the document and the Assembly or committee (at [35]‑[36]). Their Honours continued (at [36]):
In requiring that something be said or done for the purposes of conducting the business of the Assembly or a committee, s 9(1) is clearly concerned with establishing a connection to the work of the Assembly or a committee. The mere preparation of a document for them, or presentation of a document to them, by a third party will not suffice if there is no other connection to their work at the time the document was prepared. As McPherson JA observed in Rowley v O’Chee, not all mail that is delivered to and received by a member of Parliament attracts privilege.
(Footnote omitted.)
In Carne, Kiefel CJ, Gageler and Jagot JJ found that the required connection was not established on the facts: at [39]. That conclusion was contributed to by the fact that the relevant Parliamentary committee had not directed the Crime and Corruption Commission to prepare the report and the report was prepared for the Commission’s purpose of having it tabled and made public.
Once again, the decision in that case raises for consideration whether the statutory provisions in the IC Act are sufficient to require the conclusion that the Report was prepared “for purposes of or incidental to” transacting the business of the Legislative Assembly, or whether it should be characterised as being prepared for the statutory purposes of the Commission.
In the present case, there is clearly a closer statutory link between the actions of the Commission and the Legislative Assembly than existed in either Szwarcbord or Carne. That is because, in this case, a special report must be “for the Legislative Assembly” (s 206), must be provided to the Speaker before being made public (ss 213(1)(a) or 213(2)(a)) and must be presented or is taken to be presented to the Legislative Assembly (ss 213(1)(b) or 213(2)(b)). In Szwarcbord, those features were not present in the Inquiries Act. In Carne, the factual finding was that the report in question was prepared for the purposes of the Crime and Corruption Commission and that, in fact, the making of the report was not supported by the statutory provision relied upon. Despite those differences, neither decision is inconsistent with the conclusions reached above that the preparation of the Report sought to be tendered was not incidental to the transacting of the business of the Legislative Assembly and the Report to be tendered was not a document published by or pursuant to an order of the Legislative Assembly.
The decision of McWilliam J in Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396 was delivered after the hearing in the present matter. In that case, the court concluded that a report prepared by the Inspector of Correctional Services was the subject of parliamentary privilege and hence could not be tendered in the proceedings. McWilliam J concluded that there was a significant functional connection between the report in question and the business of the Legislative Assembly such that it was created “for purposes of or incidental to … the transacting of the business of” the Legislative Assembly. Her Honour's conclusions expressed at [405]-[420] were that:
(a)there was a sufficient functional connection because of the mandatory requirement to give the report to the Legislative Assembly (at [408]); and
(b)the statutory provisions had the effect that the Legislative Assembly did in substance direct the preparation of the report: [412].
These conclusions were dependent upon the particular provisions of the Inspector of Correctional Services Act 2017 (ACT) in force at the relevant time. The conclusion that I have reached in the present case, while turning on the specific provisions of the IC Act, reflects a lesser willingness to characterise statutory processes undertaken by independent statutory officers as being for the purposes of or incidental to the transacting of the business of the Legislative Assembly.

Consistency of the conclusion with the purpose of parliamentary privilege

Having regard to the overall purpose of Art 9 of the Bill of Rights and s 16 of the Privileges Act, it would seem, in the absence of a clear statutory command to the contrary, to be artificial to characterise the performance of statutory functions by a statutory entity outside the Legislative Assembly as protected by a privilege available to the Legislative Assembly. It would not enhance or protect the freedom of speech and action of the Legislative Assembly or its committees or members to immunise from challenge a statutory report prepared by a statutory officer in contravention of the statutory constraints that apply to that officer.
To exclude from the scope of parliamentary privilege such a statutory report does not detract from the freedoms of the members of the Legislative Assembly to deal with and act upon the terms of the Report once it is presented or taken to have been presented to the Legislative Assembly. It merely means that the antecedent preparation of the Report is not immunised from judicial review for compliance with the statutory limitations upon the Commission’s power.
What, if any, consequences a successful application for judicial review in relation to the Report may have for the Legislative Assembly’s treatment of the Report would remain a matter for the Legislative Assembly.

Ruling

I therefore rule that the document at Tab 12 of Exhibit 1, which is a copy of the Report, is admitted into evidence.
It is now appropriate to deal with each substantive ground in the plaintiff’s amended originating application.

Factual context for certain grounds

In order to deal with the substantive grounds in the plaintiff’s amended originating application (in particular, Grounds 3, 4 and 5), some understanding of the factual circumstances reported on by the Commission and the conclusions reached is necessary. As such, it is appropriate to briefly set out some relevant facts as reported by the Commission.
The Report is 277 pages long and contains very detailed analysis of the factual circumstances investigated by the Commission, as well as discussions of the legal context in which those circumstances existed, in order to reach the conclusion that the plaintiff had engaged in “serious corrupt conduct”. Only the briefest summary will be provided in these reasons in order to place the legal contentions in Grounds 3, 4 and 5 in their proper context.
The CIT is a publicly funded tertiary education provider. The plaintiff was the CEO and a member of the Board. There was a Board Chair, Mr Craig Sloan. In the years leading up to 2021, the CIT had been undergoing a process of organisational change. Associated with that process, it had entered into four contracts with Mr Hollingworth or an entity associated with him. These four contracts had a total value in excess of $3.27 million: see Table 1 at [6] of the Report.
The Minister had written a letter to Board Chair on 19 February 2021 questioning the value for money provided by these contracts.
On 22 September 2021, a fifth contract was entered into valued at $512,050.
Subsequently, on 22 December 2021, the Minister’s Chief of Staff, Dr Rayner, had a conversation with the plaintiff, expressing the view that the previous contracts with Mr Hollingworth had not been in accordance with community expectations and would not “pass the pub test”: Report at [337].
A sixth contract was entered into on 28 March 2022 which included very substantial payments in advance and was worth $4,999,990 over two years.
The Commission found:
(a)The Board was not informed of the 19 February letter in a way that brought the issue raised to its attention: Report at [446].
(b)The reply to the 19 February letter was “significantly less than candid” and “seriously misleading”: Report at [240]-[241].
(c)The Board was not informed of the reply in a way that brought the issue raised to its attention: Report at [177]-[179].
(d)The Board and Board Chair were not informed of the comments of the Minister’s Chief of Staff: Report at [350].
(e)The Board was not informed of the intention to execute the fifth and sixth contracts, or those contracts’ terms, prior to them being entered into: Report at [446].
(f)The Board only became aware of the sixth contract in June 2022 after the Minister had discovered that it had been executed and wrote to the Board Chair again, with copies of that letter sent to the Board members: Report at [436]‑[437].
The Report was concerned with whether or not the plaintiff and the Board Chair, Mr Craig Sloan, had engaged in serious corrupt conduct in relation to their disclosures (or lack thereof) to the Board relating to the Minister’s 19 February letter, the comments of the Chief of Staff, and the entry into the fifth and sixth contracts.
The conclusion reached in the Report in relation to the plaintiff is set out in full in a Schedule to these reasons. In summary:
(a)The Minister’s questions raised in his 19 February letter concerning the major policy implications of the progress of the CIT’s transformation project and the utility of Mr Hollingworth’s contracts “were edited out of the narrative” provided to the Board, when “any reasonable person should have understood they were an important part of the conversation”: Report at [443].
(b)The 19 February letter remained relevant to the importance of bringing the actual details of the fifth and sixth procurements to the Board’s attention: Report at [444].
(c)The failure to bring the 19 February letter to the attention of the Board became more serious when the plaintiff contemplated the sixth contract and when that contract was on the brink of execution: Report at [445].
(d)“The imperative duty to inform the Board of this proposed contract before it had been agreed … was so obvious as to make a finding that this failure to inform the Board was part of a pattern of conduct that leads inevitably to the conclusion that the only plausible explanation for non‑disclosure of the 19 February letter, Dr Rayner’s warning and the procurement itself was intentional concealment for the purpose of avoiding, if possible, the risk that the Board might prevent the contract from eventuating”: Report at [445]
(e)The plaintiff had an independent responsibility to bring the Minister’s 19 February letter to the Board’s attention, which she failed to fulfil: Report at [446].
(f)The proposal to proceed with the fifth contract with Mr Hollingworth should have been disclosed to the Board: Report at [446].
(g)The proposed expenditure on the sixth contract was a substantial proportion of the CIT’s operational budget. The contract was of a kind whose justification had previously been queried by the Minister and his Chief of Staff: Report at [446].
(h)The plaintiff had a duty to bring the Chief of Staff’s views of the proposed contract to the attention of the Board: Report at [446].
(i)The budget papers “should have specifically identified the proposed procurement as this expenditure was an important and material matter”: Report at [446].
(j)The sixth contract proposed a substantial payment in advance which any public official in the plaintiff’s position “would or should have realised entailed a substantial departure from conventional governmental (and commercial) practice” and which constituted a substantial departure from the proposal upon which the Government Procurement Board had advised: Report at [446].
(k)The financial and reputational risk to the CIT if the terms of the contract became public (which “one way or another … was bound to occur”) was considerable: Report at [446].
(l)Had the Board been aware of this contract, it was bound by virtue of its statutory responsibilities to have brought it to the Minister’s attention: Report at [446].
(m)There was a substantial likelihood that the Board would not have approved the contract. The plaintiff’s duty of informing the Board “required her to have brought the proposed procurement to the Board’s attention before the procurement was commenced and even more so when its terms were settled and before it was executed”: Report at [446].
(n)The plaintiff agreed that the sixth contract should have been disclosed. Although she claimed to have left the matter in the hands of the Board Chair, Mr Sloan, “she had an independent responsibility to ensure it was brought to the Board’s attention”: Report at [447].
(o)The plaintiff had an independent responsibility to bring the substance of her conversation with Dr Rayner to the attention of the Board before proceeding with the procurement: Report at [447].
(p)The failure to tell the Board about the Minister’s 19 February letter, the entry into the fifth contract, the conversation with Dr Rayner and the intention to enter into the sixth contract were part of a pattern of conduct by which the plaintiff hoped to avoid reconsideration by the Board of the desirability of retaining Mr Hollingworth’s services: Report at [219], [350], [446], [450].

Of significance for Grounds 3 and 4 are the statements at [446] and [447] that the plaintiff had an independent responsibility to bring the Minister’s 19 February letter, the comments of Dr Rayner and the intention to enter the fifth and sixth contracts to the attention of the Board.

Ground 1: “serious corrupt conduct”

In Ground 1, the plaintiff contends that the Report was materially affected by an error of law in its construction of “serious corrupt conduct” within the meaning of the IC Act. This is particularised as follows:
a.     Paragraph 18 of the Report says that the distinction between “serious corrupt conduct” and “corrupt conduct” does not depend on the degree to which the conduct is wrongful;
b. Paragraph 18 of the Report departs from the statutory definition of “serious corrupt conduct” in s 10 of the IC Act by saying “it is sufficient if a likely consequence of the identified corrupt conduct is to threaten public confidence in the soundness or efficacy of government or public administration apart from its probity”;
c.     Paragraph 19 of the Report says in relation to the likelihood of identified corrupt conduct threatening public confidence in the integrity of government or public administration:
“The likelihood is not required to be more probable than not but conveys the notion of a substantial – a real and not remote – chance regardless of whether it is less or more than fifty percent.”
d. The s 10 IC Act definition of “serious corrupt conduct” is:
“‘serious corrupt conduct’ means corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration”;
e.     The additional qualifier “serious” used in “serious corrupt conduct” must signify an additional, more serious, element of misconduct in addition to the required factors for “corrupt conduct” as listed in s 9(1)(b) IC Act[.]

Plaintiff’s submissions

The plaintiff’s submissions noted that “corrupt conduct” is defined separately to “serious corrupt conduct”. She submitted that the use of the qualifier “serious” in the expression “serious corrupt conduct” establishes a question of degree that distinguishes “corrupt conduct” under s 9 from “serious corrupt conduct” under s 10.
The plaintiff then submitted that any conduct that met the definition of “corrupt conduct” can be assumed to have an adverse effect on public confidence. Therefore, the requirement that it be “serious” signifies an additional, more serious element of misconduct in addition to the factors required for “corrupt conduct”. Such an interpretation is consistent with the principle of statutory interpretation that “no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], quoting Commonwealth v Baume (1905) 2 CLR 405. The plaintiff submitted that the formulation of “serious corrupt conduct” used by the Commission did not identify more serious conduct than that already listed in s 9(1)(b), and was not consistent with the clear statutory intent to identify as “serious corrupt conduct” conduct which has a greater degree of culpability than required for “corrupt conduct”.
The submissions targeted the finding of the Commission at [456] (set out in the Schedule to these reasons) and submitted that the Commission did not grapple with the requirement of s 10 that the conduct “threaten public confidence in the integrity of government or public administration”. The plaintiff also submitted that the paragraph was affected by the errors alleged in Grounds 4 and 5.

Commission’s submissions

The Commission submitted that the definition of “corrupt conduct” involves an element of “moral turpitude or lack of probity”. The balance of the definition of “serious corrupt conduct” gives content to the adjective “serious” in the phrase. As a result, there is no additional requirement of seriousness over and above the corrupt conduct being likely to threaten public confidence in the integrity of government or public administration.
The Commission submitted that s 10 requires not merely corrupt conduct which has an adverse effect on “public confidence”, but corrupt conduct that is likely to threaten public confidence “in the integrity of government or public administration”. The submissions then addressed the reasoning adopted by the Commission to reach the conclusion at [456].

Decision

Section 9 defines “corrupt conduct” and s 10 defines “serious corrupt conduct”. They provide:
9Meaning of corrupt conduct
(1)For this Act, corrupt conduct is conduct—
(a)that could—
(i)constitute a criminal offence; or
(ii)constitute a serious disciplinary offence; or
(iii)constitute reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of, a public official; and
(b)that is any of the following:
(i)conduct by a public official that constitutes the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial;
(ii)conduct by a public official or former public official that—
(A)constitutes a breach of public trust; or
(B)constitutes the misuse of information or material acquired by the official in the course of performing their official functions, whether or not the misuse is for the benefit of the official or another person;
(iii)conduct that adversely affects, either directly or indirectly the honest or impartial exercise of functions by a public official or a public sector entity;
(iv)conduct that—
(A)adversely affects, either directly or indirectly the exercise of official functions by a public official or public sector entity; and
(B)would constitute, if proved, an offence against a provision of the Criminal Code, chapter 3 (Theft, fraud, bribery and related offences);
(v)conduct that involves any of the following:
(A)collusive tendering;
(B)fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety, protect the environment or facilitate the management and commercial exploitation of resources;
(C)dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage;
(D)defrauding the public revenue;
(E)fraudulently obtaining or retaining employment or appointment as a public official;
(vi)conduct engaged in by a person in relation to conduct mentioned in subparagraphs (i) to (iv) (the primary conduct), that would constitute an offence against the Criminal Code, part 2.4 (Extensions of criminal responsibility) on the basis that the primary conduct is an offence, whether or not the primary conduct is in fact an offence.
(2)For subsection (1) (a) it does not matter if—
(a)proceedings or action in relation to the conduct can no longer be taken; or
(b)the conduct happened outside the Territory.
Example—par (a)
Action for a disciplinary offence may no longer be taken as the person who engaged in the conduct has resigned.
(3)In this section:
criminal offence means a criminal offence under the law of the Territory or under any other law relevant to the conduct in question.
Examples—criminal offences
offences in the Criminal Code, ch 3 (Theft, fraud, bribery and related offences), including:
·pt 3.2 (Theft and related offences)
·pt 3.3 (Fraudulent conduct)
·pt 3.4 (False or misleading statements, information and documents)
·pt 3.5 (Blackmail)
·pt 3.6 (Forgery and related offences)
·pt 3.7 (Bribery and related offences)
·pt 3.8 (Impersonation or obstruction of territory public officials)
·pt 3.8A (Cheating at gambling).
serious disciplinary offence includes—
(a)any serious misconduct; or
(b)any other matter that constitutes or may constitute grounds for—
(i)termination action under any law; or
(ii)a significant employment penalty.
serious misconduct—see the Fair Work Regulations 2009 (Cwlth), section 1.07 (Meaning of serious misconduct).
10Meaning of serious corrupt conduct
In this Act:
serious corrupt conduct means corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration.
It is notable that the definition of “corrupt conduct” in s 9 is a complex one containing multiple alternative components. It therefore has a statutory meaning dependent upon the terms of each individual component of the definition.
In contrast, the definition of “serious corrupt conduct” is much simpler, as it takes as its starting point the concept of “corrupt conduct” and adds the additional requirement that the conduct “is likely to threaten public confidence in the integrity of government or public administration”. As with the individual components available to establish “corrupt conduct” set out in s 9, the additional element required to establish “serious corrupt conduct” is defined by the language used in s 10.
Despite the structural complexity in these provisions arising from the many alternative components within s 9, the language itself used is quite straightforward. Because the definition of “serious corrupt conduct” picks up, as its starting point, the definition of “corrupt conduct”, what must be established for corrupt conduct to be serious corrupt conduct is the likelihood of the threat to public confidence in the integrity of government and public administration. The words mean what they say. Because of the language used, there may be room to debate as to when the threshold set out in s 10 has been crossed. However, contrary to the submissions of the plaintiff, there is no room to read in some additional requirement of “seriousness” when that is not one of the words used in the operative part of the definition. The concept of seriousness referred to in the phrase “serious corrupt conduct” is given statutory effect by the words used, namely that the conduct “is likely to threaten public confidence in the integrity of government or public administration”.
Ground 1 is not established.

Ground 2: “likely”

In Ground 2, the plaintiff contends that the Report was materially affected by a misunderstanding of the law. This is particularised as follows:
a. The Commission proceeded on a misunderstanding of the standard of proof at paragraph 19 that “Whether the identified corrupt conduct is likely to threaten public confidence in the integrity of government or public administration is a question of fact, not law. The likelihood is not required to be more probable than not but conveys the notion of a substantial – a real and not remote – chance regardless of whether it is less or more than fifty percent.”
b. As a consequence of this misunderstanding, the Commission failed to act with due deliberation and regard to the seriousness of the consequences of its decision.

Plaintiff’s submissions

The plaintiff submitted that the formulation at [19] of the Report picked up the interpretation of the word “likely” in Boughey v The Queen (1986) 161 CLR 10. The plaintiff accepted that the word “likely” may carry a range of meanings. In s 10 of the IC Act, the word is used in the expression “likely to threaten public confidence in the integrity of government or public administration”.
The plaintiff submitted that the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336) should have been applied. She submitted that the Report involved the drawing of inferences from circumstantial evidence through references to the logic of events. The submissions pointed to the decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 as to the need, when proof on the balance of probabilities is required, that circumstances give rise to a “reasonable and definite inference”, not merely “conflicting inferences of equal degrees of probability”.
The plaintiff submitted that the clear legislative intent of s 184 of the IC Act was to support the protection of the reputation of affected individuals. She also submitted that the Report had expressly disavowed the application of Briginshaw principles at [21].

Commission’s submissions

The Commission pointed out that the word “likely”, when used in a statutory provision, can mean more probable than not, or a real or not remote chance or possibility. Which of those formulations is adopted depends upon the context in which the word is used. It submitted that the context strongly supported the conclusion that the word “likely” in s 10 of the IC Act refers to a real or not remote chance or possibility, whether or not it is more probable than not. The contextual factors pointed to by the Commission were:
(a)the objects of the IC Act, which were said to support a lower threshold for the risk to public confidence in the integrity of government or public administration; and
(b)the use of the word “threaten” in s 10, which itself “imports a degree of provisionality”, as distinct from requiring the Commission to be satisfied of an actual adverse effect on public confidence in the integrity of government or public administration.
The Commission contended that the meaning of “likely” in the definition of serious corrupt conduct had nothing to do with the standard of proof or the principles in Briginshaw. Further, the Commission contended that the principles in Briginshaw have no application to the process of preparing special reports under the IC Act because the rules of evidence do not apply. In any event, the Commission submitted that it had regard to the Briginshaw principles in making adverse findings against the plaintiff.

Decision

The plaintiff’s submissions were somewhat confused. They mixed a question of statutory interpretation as to the meaning of the word “likely” in s 10 with a question about the application of the principles in Briginshaw. In my view, Ground 2 raises only the former: the meaning of the word “likely”. The meaning of that term is a question of statutory interpretation relating to the concept of “serious corrupt conduct”. It does not relate to the standard of proof.
So far as the word “likely” is concerned, it is well accepted that it may mean either more probable than not or a real and not remote chance or possibility: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346; Sheen v Fields Pty Ltd (1984) 58 ALJR 93 at 95; Boughey at 14-15, 19-22, 41-45; James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; 274 ALR 85 at [181]-[185]. Which of those meanings it bears depends upon the statutory context and purpose.
There can be no doubt that, in the present context, “likely” means a real and not remote chance or possibility. That is because it appears in the expression “likely to threaten public confidence”. The concept of a threat itself reflects an imprecise potential for adverse future consequences. It is decidedly unlikely that, having regard to the solid pedigree for the word “likely” as meaning “a real and not remote chance or possibility”, the drafter of the legislation nevertheless chose to use that word to combine a precise standard of “more likely than not” with the imprecise concept of “threaten”. Rather, it is more coherent to conclude that the drafter used the well‑established approach to the meaning of “likely” in combination with another word involving a non-specific definition of the extent of a risk.
The interpretation of “likely” as involving a real and not remote possibility creates a lower threshold than would exist if likely meant “more probable than not”. That, in turn, makes it easier for the Commission to include in any investigation report (s 184) or special report (s 208) a finding that a person has engaged in serious corrupt conduct. However, that fact does not tend against the interpretation adopted. Although the provisions of the IC Act do reflect, to some extent, a concern to protect individual reputations, that concern is not so manifest as to compel an unusual and difficult to apply interpretation of the meaning of “likely” in s 10.
Ground 2 is not established.

Ground 3: reporting significant events

The plaintiff contends that the Report was materially affected by an error of law in its construction of ss 84 and 101 of the FM Act. This is particularised as follows:
a. Section 84 of the FM Act sets out the functions of the CEO of a Territory authority (such as the CIT).
b. Section 84(1)(d) of the FM Act requires the CEO to immediately advise the Board about “significant events”.
c.     Section 101(1) of the FM Act sets out the obligation of an authority to tell the Minister of significant events “as soon practicable”;
d. Section 101(2) of the FM Act defines significance as used in s 101 and s 84(1)(d);
e.     Section 101(2)(a) of the FM Act says an event, part of assets or activity is “significant” if:
“it is significant when interpreted in accordance with accounting standards relating to materiality ordinarily used in Australia when the decision about whether it is significant is made”
f.   Paragraph 42 of the Report says that the sense in which “material is used in s 101(2) of the FM Act”:
“covers a far wider range of matter than finances, specifically as it might affect the entity’s performance or its carrying out of significant activities”
g.     In paragraphs 307 and 445 of the Report refers [sic] to Ms Cover as having an “imperative” duty to inform the Board of the CIT in relation to certain matters;
h.     Paragraph 47 describes the CEO as being obliged to act with “complete good faith in respect of the governance and operations of the authority”;
i. The construction of ss 84 and 101 of the FM Act reflected in paragraphs 42, 47, 307, 445 of the Report are [sic] infected by an error of law[.]

Plaintiff’s submissions

The plaintiff contended that the Commission misconstrued ss 84 and 101 of the FM Act and misunderstood the role of the Board Chair and CEO throughout the Report. The plaintiff pointed out that s 84 of the FM Act sets out the functions of a CEO as distinct from the duties of a CEO.
The plaintiff pointed to what she submitted was the “permissive language” in s 200(1) of the Legislation Act 2001 (ACT) (which gives functions to the person “for the time being occupying the position”) and the meaning of “may” and “must” set out in s 146 of that Act. The plaintiff appeared to be submitting that the exercise of the functions by a CEO was a discretionary matter rather than being an obligation.
The plaintiff submitted that, although s 84(1)(c) required the CEO to prepare regular reports to the Board, that should not be understood as bypassing the statutory scheme and internal Board Charter, which places that responsibility on the Board Chair. The only provision indicating an intention to bypass that division of responsibility was the obligation in s 84(1)(d) to immediately tell the Board about “significant events” (which picks up the definition of significant event in s 101(2)). The plaintiff submitted that the Report misconstrued ss 84 and 101 in the Report at [42]-[44], [47]-[48], [372], [445]-[447] and [456]. She submitted that the CEO would fulfil the obligation to inform the Board by the preparation of a report to the Board (which would be included in the Board papers by the Board Chair), and that it is only in an urgent case where the Board needs to be notified immediately that the corporate governance structure can or should be bypassed.

Commission’s submissions

The submissions of the Commission pointed out, in some detail, the relevant provisions of the CIT Act and the FM Act, including the meaning of “significant event”.

Given the investigatory nature of the functions performed by the Commission when fulfilling its duty to investigate conduct that is alleged to be corrupt conduct, and the difference between such an administrative process and judicial processes, it will be more difficult for a court to be satisfied that the implied statutory constraint of reasonableness has been infringed than would be the case in relation to an exercise of statutory power closer to those with which courts are familiar: Li at [111]-[112] (Gageler J).
The assessment of the reasonableness of the decision not to conduct an examination of Ms Hudson takes place in the context of the following chronology:
(a)On 23 June 2022, the Commission announced its decision to investigate, with the investigation given the codename “Operation Luna”.
(b)Between July 2022 and December 2023, the Commission undertook examinations of other witnesses.
(c)On 9 November 2023, the Commission provided the plaintiff with the proposed special report.
(d)On 20 November 2023, a version of the proposed special report correcting some typographical and drafting errors was provided to the plaintiff.
(e)On 12 January 2024, the plaintiff provided submissions to the Commission in response to the proposed special report.
(f)On 28 February 2024, the Commission disclosed the email from Ms Hudson sent at 5:48pm on 23 February 2021 (and certain other material).
(g)On 14 March 2024, the plaintiff provided further written submissions to the Commission in response to the proposed special report.
(h)On 26 April 2024, the plaintiff was provided an amended proposed special report and the Commissioner’s response to the plaintiff’s submissions.
(i)On 29 May 2024, the plaintiff requested either a transcript of any evidence given to the Commission by Ms Hudson or advice that she had not given any evidence.
(j)On 11 June 2024, the plaintiff provided the Commission with written submissions on the amended proposed special report.
(k)On 14 June 2024, the Commission provided reasons for not amending the amended proposed special report in response to the plaintiff’s comments.
(l)On 27 June 2024, the Report was provided to the Speaker.
The submission made on behalf of the plaintiff to the Commission on 11 June 2024 was that Ms Hudson should be orally examined by the Commission or, if she had been examined, the plaintiff should be provided with her evidence. The submission to the Commission then identified certain matters which the plaintiff would have given evidence of had she been asked about Ms Hudson’s email.
In its response of 14 June 2024, the Commission addressed each of the matters raised on the plaintiff’s behalf in her submissions to it. The response then addressed the assertion that the Commission failed to exercise its discretionary power under s 140 of the IC Act to examine Ms Hudson. The response made it clear that the Commission did not consider itself to be under an obligation to disclose whether or not Ms Hudson was examined. However, it addressed the merits of the plaintiff’s submission on the assumption that she was not examined. The response made the following points:
(a)The allegations made against the plaintiff were clearly outlined in the amended proposed special report which enabled her to make an informed response to them. Although Ms Hudson was described as a “critical witness” in the plaintiff’s submission, there was no indication of the evidence that she would provide and the mere recital of her administrative responsibilities was not sufficient to characterise her potential evidence as “critical”.
(b)The Commission has a wide discretion in managing the scope, direction and focus of an investigation and must balance the efficient use of limited resources against the likelihood of the potential acquisition of useful information, bearing in mind not only the public interest in an adequate and competent investigation, but also the public interest in timeliness. The process is not amenable to any other obligation other than that it be undertaken bona fides for the purposes of the investigation.
(c)The apparent simplicity of making a decision based upon whether it is useful to examine any particular witness is illusory. Instead, a decision needs to be made taking into account the whole of the data considered by the Commissioner and the range of judgments and assessments progressively made up to that point. Whether Ms Hudson should have been examined was considered, but the Commission noted that there was no obligation to disclose the decision made or the reasons for it.
(d)There was no obligation to disclose the considerations that led up to that decision except if it was considered that it was likely to result in information supportive of the plaintiff’s position or had been taken into account in arriving at an adverse finding.
(e)Ms Hudson was not examined and, except for the disclosed email, no information was provided from Ms Hudson that assisted the plaintiff, and there was no evidence from her which had been used adversely to the plaintiff.
(f)Procedural fairness was satisfied by the provision of the amended proposed special report under s 212 of the IC Act.
The decision not to conduct an examination of Ms Hudson did not infringe the implied statutory requirement that the power in s 140 be exercised reasonably. The IC Act confers a wide discretion upon the Commission as to how to conduct its investigation, and s 140 confers a wide discretion as to whether or not to conduct an examination. The reasons given by the Commission in its communication on 14 June 2024 articulated why it had chosen not to conduct an examination and why procedural fairness did not require an examination to be conducted. Having regard to the investigatory purpose of the Commission, the public interest in it making a report, the stage at which the investigation had reached and the evidence already given by the plaintiff, it cannot be said that, in the circumstances, the decision not to conduct an examination of Ms Hudson satisfied any of the formulations of unreasonableness in Li.
Rather the decision is one which is within the principle articulated in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473, quoted by Gageler J in Li (at [109]), namely:
If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.
Applied to this case, it is clear that the Commission was acting within the scope given to it by the legislature to determine whether or not to conduct an examination of Ms Hudson.
Ground 6 is not established.

Costs

Unless the parties agree on the costs orders which should be made (including in relation to the costs reserved on 3 March 2025), I will hear them further on costs.

Orders

The orders of the Court are:
(1)The report entitled Special Report – Operation Luna (Part One) at Tab 12 of Exhibit 1 is admitted into evidence.
(2)The proceedings are dismissed.
(3)Unless the parties provide proposed consent orders in relation to costs to the chambers of Mossop J by 4pm on 24 September 2025, the proceedings are listed for the determination of costs at 9:15am on 29 September 2025 and the parties have leave to provide written submissions on costs limited to not more than three pages by email to the Associate to Mossop J by 4pm on 26 September 2025.

Schedule – extract of the conclusions in relation to the plaintiff in the Report (see [89] above)

Conclusion: Ms Cover
443.The present analysis, commencing with the earlier contracts with Mr Hollingworth, focuses on what followed from the Minister’s letter of late February 2021. The contracting of Mr Hollingworth’s services for the development of Evolving Together and the organisational change that had been underway for something like four years was, as the Board understood, a continuing undertaking, with the particular decision points (made by Ms Cover) comprising the successive contracts, of present particular relevance the fifth and the sixth. Of obvious importance was that the serious questioning of what value for money the identified contracts provided and the outcomes that had been achieved, which had been raised by the Minister, necessarily applied not only to those contracts but any continuing work and, especially, any further contracts. Thus, any consideration at Board level of the utility of Mr Hollingworth’s work, particularly that in which implicit or explicit support for its continuation was sought – which occurred, one way or another, at every Board meeting from February 2021 to June 2022 – must have necessarily been significantly incomplete without knowledge that the Minister had questioned its utility and cost. The Minister and the Board – and the CIT – did not inhabit different universes. The statutory structure outlined at the beginning of this report explicitly provided for a substantial degree of interaction, which reflected the character of the CIT as a public entity serving public interests at public cost, in respect of which the Minister necessarily was accountable to the public. He was not only entitled to give binding directions under s 7 of the CIT Act but also to be involved less formally and less authoritatively in its operations, for example, by asking questions and making suggestions. Indeed, this was implicitly recognised by the regular meetings between him, Mr Sloan and the CEO. There can be no question but that the Board not only would but should have taken very seriously any expression of views, critical or otherwise, by the Minister about Evolving Together and could do so without compromising their independent role or that of the Minister. In effect, the Minister’s questions – which fundamentally concerned the major policy implications about the progress of transformation and the connected utility of Mr Hollingworth’s contracts – were edited out of the narrative when any reasonable person should have understood they were an important part of the conversation.
444.The continuing relevance of the Minister’s letter to evaluating the importance of bringing the actual details of the fifth and sixth procurements to the Board’s attention is a repeated theme of this Report. Its importance did not diminish, let alone disappear, after the Board meetings of 24 February or 28 April 2021. To the contrary, its importance continued with increasing significance when the procurements of the fifth and sixth contracts were proposed and the 2022 budget considerations were underway. This was reinforced by the conversation with Dr Rayner of 22 December 2021. It was of critical importance by 14 February 2022 when the Request for Proposal, entitled “CIT FUTURES 2025”, went to market for the sixth contract, then ultimately with the finalisation of the terms for a contract with Mr Hollingworth for $4,999,990 over two years with almost $1.7 million payable on execution of the contract and most of the balance of the contract price also payable substantially in advance of the services to be provided.
445.Thus, whilst the failure to bring the Minister’s letter to the attention of the Board at its meeting of 24 February 2021 or shortly after or, at least, by the next Board meeting in April was serious, it became more so as occasions arose on which the Board considered the issue of the continuing transformation that involved Mr Hollingworth. This was especially so when Ms Cover contemplated procuring the sixth contract and then even more markedly when negotiations as to its terms had been completed and it was on the brink of execution. The imperative duty to inform the Board of this proposed contract before it had been agreed, in light of the Board’s action item of September, the issues with the budget overrun, the conversation with Dr Rayner and its extraordinary scale when compared to prior Hollingworth contracts, was so obvious as to make a finding that this failure to inform the Board was part of a pattern of conduct that leads inevitably to the conclusion that the only plausible explanation for non-disclosure of the Minister’s letter, Dr Rayner’s warning and the procurement itself was intentional concealment for the purpose of avoiding, if possible, the risk that the Board might prevent the contract from eventuating. This risk became all the more likely had the Board been aware of the actual terms of the sixth contract in respect of the very large and highly questionable payment in advance.
446.In summary: Ms Cover had an independent responsibility, which she failed to fulfil, to bring the Minister’s February 2021 letter to the Board’s attention; the proposal to proceed with the fifth contract with Mr Hollingworth should have been disclosed to the Board in light of the Minister’s letter, to give it the opportunity to consider whether the proposal was appropriate; the proposed expenditure on a sixth contract for two years with Mr Hollingworth for $4.5 million dollars (exceeding by a considerable margin the entire expenditure on the four contracts queried by the Minister) was a substantial proportion of the CIT’s operational budget, then in deficit, proposed to be spent on one supplier; the contract was of a kind whose justification was previously queried by the Minister in writing and subsequently in strongly deprecating terms by his Chief of Staff; Ms Cover had a duty to bring the Chief of Staff’s views of the proposed contract to the attention of the Board; the budget papers should have specifically identified the proposed procurement as this expenditure was an important and material matter; the sixth contract proposed a substantial payment in advance which any public official in Ms Cover’s position would or should have realised entailed a substantial departure from conventional governmental (and commercial) practice and which constituted a substantial departure from the proposal upon which the GPB had advised; the financial risk arising from the payment of such a substantial sum in advance and the reputational risk to CIT were the terms of this contract to have become public – and, one way or another, this was bound to occur – was considerable; had the Board been aware of this contract, it was bound by virtue of its statutory responsibilities to have brought it to the Minister’s attention; and there was a substantial likelihood that the Board would not have approved the contract. Ms Cover’s duty of informing the Board required her to have brought the proposed procurement to the Board’s attention before the procurement was commenced and even more so when its terms were settled and before it was executed.
447.The progressive failure to consult the Board cannot reasonably be regarded as an oversight or a misjudgement: any reasonable CEO must have known that consulting with the Board was not only desirable but necessary. Ms Cover agreed in her evidence that the Minister’s February 2021 letter and the procurement of the sixth contract should have been disclosed. As to the former, she claimed to have left the matter in the hands of Mr Sloan. However, she had an independent responsibility to ensure it was brought to the Board’s attention. In respect of the sixth contract, she claimed to have informed Mr Sloan about its scope and cost. Having carefully considered Ms Cover’s evidence, including the manner in which it unfolded and her demeanour, Mr Sloan’s evidence, the objective documentary material and the logic of events, I do not accept the truthfulness of her evidence on this matter. Furthermore, I accept the substance of Dr Rayner’s evidence that she warned Ms Cover of the Minister’s view of the proposed procurement of Mr Hollingworth, and I do not accept either Ms Cover’s denial that this was said or that, if it had been said, she had no recollection of it. I do not accept that she told Mr Sloan of the substance of Dr Rayner’s conversation. At all events, even had she done so, she had an independent responsibility to bring what amounted to the views of the Minister to the attention of the Board before proceeding with the procurement.
448.The question now requiring determination is whether this conduct amounted to corruption within the meaning of the Act.
449.The need to inform the Board, in particular, about the procurement and terms of the fifth and the sixth contracts and inform them of the substance of the Chief of Staff’s conversation that occurred at a pivotal juncture, and seek its approval before moving forward would have been appreciated by any public official in Ms Cover’s position and, I am satisfied, was fully understood by her. I am reasonably satisfied that this was not done because she deliberately decided not to do so. In coming to this conclusion, I am conscious of the fact that there is no evidence from which it is reasonable to infer any particular underlying motive. A number of possibilities are speculatively open but it is unnecessary to deal with them. Taking the evidence as a whole, including in particular Ms Cover’s testimony, I have concluded that no other plausible explanation is reasonably open except that, for whatever motive, these decisions were made to exclude the possibility or, at least, reduce the risk that the Board would not permit the procurement or the contract to proceed.
450.Ms Cover’s dealings concerning the sixth contract alone constituted a gross breach of trust. I am also reasonably satisfied that it was dishonest by the standards of ordinary people and known by Ms Cover to be dishonest in this sense. The consequence of her conduct was to give Mr Hollingworth a substantial financial gain at the cost of the Territory. This was not isolated conduct by Ms Cover but part of a pattern of concealment, commencing with how the Minister’s February letter was dealt with and the response to it and moving through the ensuing processes up to and including execution of the fifth contract. Almost certainly, the Board would not have permitted the fifth or the sixth contract (including their provision for substantial payments in advance) to have proceeded had any of the Minister’s letter, or the procurements for the fifth or the sixth contract been disclosed. In the result, Ms Cover’s conduct has badly affected the reputation of the CIT and led to substantial adverse financial consequences.
451.The misleading character of the executive response to the Minister that was attached to Mr Sloan’s letter of 5 March 2021, must have been calculated. It is plain that Ms Cover was aware of the matters disclosed and entertained the opinions expressed in the Hollingworth/Cover report at the time when the response was prepared. I have explained the sense in which the response was misleading. It was formulated with the intention of misleading the Minister as to the true position and constituted a gross breach of trust. Supressio veri, expression falsi.
452.The task of the Commission, having made these findings, is to consider whether they constitute corrupt conduct within the meaning of the Act. Under s 184 of the Act, the Commission cannot include in this report a finding that Ms Cover has engaged in corrupt conduct unless the corrupt conduct is serious corrupt conduct or systemic corrupt conduct. Serious corrupt conduct is defined in s 10 as “corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration”. “Integrity” carries two major meanings: the first connotes moral rectitude; the second, organisational soundness or doing what is required or undertaken to be done. Section 11 defines systemic corrupt conduct as ‘instances of corrupt conduct that reveal a pattern of corrupt conduct in 1 or more public sector entities’. However, a finding about Ms Cover’s conduct that may be corrupt conduct but is not serious or systemic can be made as long as the conduct is not described as corrupt conduct.

453.As has already been explained, the notion of corrupt conduct itself requires at least proof of two components, one of the instances specified in s 9(1)(a) together with one of the instances specified in s 9(1)(b). The facts found here permit a gradation of possible conclusions as to the s 9(1)(a) instances. The failure to inform the Board of any of the identified matters, if done because Ms Cover was unaware of her obligation to inform, is a matter of competence and raises no issue of criminality. On the other hand, understanding and fulfilling the obligation to inform the Board of important matters is a fundamental responsibility of the CEO. The failure here was not trivial or insubstantial, but was of major significance, with serious consequences for the operations of the agency, and adverse financial and reputational consequences. It is an essential component of the Board’s ability to undertake its responsibilities that it is able to place complete trust in the CEO’s appreciation of the scope of the duty to disclose important information. Due governance of the CIT as a separate agency outside the direct control of government depended on the elements of its structure – of which the Minister, the Board and the CEO were the major formal elements – working cooperatively, with each being able to trust the others to perform their responsibilities with due care and diligence. Thus, considered only as a failure of competence, the conduct of the CEO in concealing from the Board matters in relation to the procurement of the fifth and sixth contracts could have constituted “reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of, a public official” within the meaning of s 9(1)(a)(iii). The lack of candour in the response forwarded to the Minister by the Chair on 5 March also constituted an independent instance of conduct within s 9(1)(a)(iii). Thus, as to both Ms Cover’s conduct in relation to her concealment of matters from the Board and her dealings with the Minister, both instances of Ms Cover’s conduct satisfy the first element of “corrupt conduct” under s 9(1)(a)(iii).
454.So far as the instances specified in s 9(1)(b) are concerned, I am satisfied to the requisite degree that Ms Cover’s conduct also constituted dishonest conduct within the meaning of s 9(1)(b)(i) and, also, constituted “a breach of public trust” within s 9(1)(b)(ii)(A) and/or “the misuse of information or material acquired … in the course of performing … [her] official functions” within s 9(b)(ii)(B). As outlined above, these categories of misconduct comprised each of the misleading reply of 5 March 2021 to the Minister’s letter, and deliberately concealing information that was important to enable the Board to perform its function of ensuring, as far as practicable, that the CIT operated in a proper, effective and efficient way (vide ss 77 (1)(c) and 84(1)(c) of the FM Act), in order to avoid the risk that the Board might disapprove of the procurements of the fifth and sixth contracts, by misusing information (by concealment) about the procurements of Mr Hollingworth’s that should have been disclosed to the Board. In the circumstances, Ms Cover was obliged to disclose to the Board the Minister’s letter, the information conveyed by Dr Rayner, the proposal for the procurement of the fifth contract, the proposal for the procurement of the sixth contract, the procurements being undertaken of these contracts and the proposed contracts themselves before execution. Her failure to do so in respect to all or any of these matters comprised conduct within s 9(1)(b)(i) and also s 9(1)(b)(ii)(A) and (B).
455.I am satisfied to the requisite degree of certainty that Ms Cover, in breach of her duty of disclosure, intentionally concealed from the Board the matters referred to in order to avoid or reduce the risk that the Board may have disapproved of the transactions. Two possible situations need to be considered. The first is that Ms Cover was unsure about whether her duty to disclose important matters to the Board included the matters identified but decided against doing so because she was concerned that bringing the information forward carried the risk that the Board would review the desirability of retaining Mr Hollingworth’s services and decline to permit further contracts or only permit limited and more defined work. This would amount to a reckless breach of public trust within the meaning of s 9(1)(b)(ii)(A). The second is that Ms Cover knew the information should have been conveyed to the Board but decided not to do so to avoid the risk of such a review and outcome. This would also amount to a breach of public trust within the meaning of s 9(1)(b)(ii). I consider to the requisite degree of certainty that Ms Cover was aware that she was duty bound to disclose each of the Minister’s letter, the fifth procurement and contract, the sixth procurement, the substance of the conversation with Dr Rayner and the sixth contract, including (in relation to the contracts) the provision for payments in advance and decided not to disclose in order to avoid, if she could, a consideration by the Board or the Minister of the desirability of continuing contracts with Mr Hollingworth. This amounts to deliberate concealment and, although it represents the most serious conclusion about the conduct in question, I am satisfied to the relevant standard of proof that it is completely justified. Put otherwise, it was designed to convey to the Board that no transactions involving Mr Hollingworth were envisaged or underway that needed to be brought to their attention. In short, it involved conduct that was all or any of being not honest within the meaning of s 9(b)(i), constituted a breach of public trust within the meaning of s 9(1)(b)(ii)(A) and a misuse of information acquired in the course of performing her official functions. It also resulted in a substantial benefit for Mr Hollingworth.
456.The integrity of the legal frameworks that provide for governance of public entities such as the CIT, depends on the due performance of their responsibilities by the officials who are charged with its management including, in particular, the CEO. Her corrupt conduct adversely impacted the exercise by the Board of its supervisory function (as provided by s 77(1)(c) of the FM Act) in connexion with the program of organisational change of which a major part at considerable cost was the procurement of the Hollingworth contracts. Accordingly, this conduct was “likely to threaten public confidence in the integrity of government or public administration”. It follows that Ms Cover was guilty of serious corrupt conduct within s 10 of the IC Act.

I certify that the preceding one hundred and seventy‑five [175] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date:

[2025] ACTSC 424

18 September 2025