Cox v Corruption and Crime Commission - [2008] WASCA 199

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COX -v- CORRUPTION AND CRIME COMMISSION [2008] WASCA 199

CORAM: MARTIN CJ
STEYTLER P
McLURE JA

HEARD: 7 MAY 2008

DELIVERED : 6 OCTOBER 2008

FILE NO/S: CIV 2277 of 2007

BETWEEN: WALTER JACOB COX
Applicant
AND
CORRUPTION AND CRIME COMMISSION
Respondent
ATTORNEY GENERAL
Intervener

Catchwords:

Administrative law - Corruption and Crime Commission - Jurisdiction to determine whether or not the Corruption and Crime Commission exceeded its statutory jurisdiction - Corruption and Crime Commission Act 2003 (WA) - Interpretation of misconduct - WA Public Sector Code of Ethics 2002 - Disciplinary offence - Serious breach - Failure to take into account material consideration - Denial of procedural fairness

Remedies - Prerogative writs - Certiorari - Equitable remedies - Declaration

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 4(d)(ii)
Public Sector Management Act 1994 (WA)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Applicant:     Mr R L Hooker
Respondent:     No appearance
Intervener:     Mr R J Meadows QC & Ms C L Conley

Solicitors:

Applicant:     Wright Barristers and Solicitors Pty Ltd
Respondent:     No appearance
Intervener:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Briginshaw v Briginshaw (1938) 60 CLR 336
Buck v Bavone (1976) 135 CLR 110
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
G v H (1994) 181 CLR 387
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Webb v The Queen (1993) 181 CLR 41

MARTIN CJ:

Summary

The applicant, Dr Walter Cox, asks the Court to quash those parts of the report of the Corruption and Crime Commission (the Commission) entitled 'Report on the Investigation of Alleged Public Sector Misconduct linked to the Smiths Beach Development at Yallingup' (the Smiths Beach Report) that relate to Dr Cox. There is no right of appeal from the findings of the Commission. Dr Cox seeks the intervention of the court on the grounds that the Commission exceeded its jurisdiction in a number of different respects in making findings adverse to him. For the reasons which follow, Dr Cox has failed to establish that the Commission exceeded its jurisdiction and his application should be dismissed.

The scope of judicial review

Dr Cox moves the court to grant relief in the form of the issue of a prerogative writ (certiorari) which would have the effect of setting aside and quashing those parts of the Commission's report in which adverse findings were made against him. In the alternative, if relief in that form is not available Dr Cox asks the court to declare that the Commission exceeded its jurisdiction in making adverse findings against him, and to further declare that those findings are of no force or effect.
It is important to emphasise at the outset that in these proceedings the court is not required to form or express a view as to whether the Commission was right or wrong to express the opinions which it has expressed in relation to the conduct of Dr Cox, in the way in which the court would be required to proceed if it were hearing an appeal from the findings of the Commission. The jurisdiction of the court invoked by Dr Cox is not appellate jurisdiction, but jurisdiction to determine whether or not the Commission exceeded its statutory jurisdiction in making the findings adverse to him.
The bounds of the jurisdiction ordinarily taken to have been conferred by the legislature upon an administrator, an administrative body or tribunal are well established. If such a person or body breaches a requirement of procedural fairness (which requirements are to be implied in the absence of statutory provision to the contrary), or takes into account an irrelevant consideration, or fails to take account of a consideration or matter which it was obliged to take account, it will exceed its jurisdiction. If such a body exceeds its jurisdiction, the court can grant relief accordingly.
Because the inquiry in each case is directed to the ascertainment of the precise scope of the jurisdiction conferred upon the repository of the relevant power or duty by the statute, care must be taken when applying principles enunciated in one statutory context in a different statutory context. So, principles enunciated in the context of an administrative body or tribunal undertaking a determinative or adjudicative function will not necessarily be applicable without modification to a body like the Commission, which was undertaking a function which was primarily investigative in relation to the Smiths Beach Report. The nature and character of the statutory function, the precise statutory terms in which the powers and duties which attend the performance of that function are bestowed, the conditions under which the function is to be performed, and the terms of any express limitations upon the extent of the jurisdiction conferred will always be relevant to the ascertainment of the precise extent of the jurisdiction conferred by the statute. It is therefore appropriate to commence with a brief consideration of the statutory provisions relevant to the functions performed by the Commission in the preparation and publication of the Smiths Beach Report.

Corruption & Crime Commission Act 2003 (WA) (the Act)

Section 7A(b) of the Act provides that one of its mains purposes is:
[T]o improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector.
Section 7B of the Act describes how the purposes of the Act are to be achieved, including, relevantly:
(1)The Act's purposes are to be achieved primarily by establishing a permanent commission to be called the Corruption and Crime Commission.
…
(3)The Commission is to help public authorities to deal effectively and appropriately with misconduct by increasing their capacity to do so while retaining power to itself investigate cases of misconduct, particularly serious misconduct.
Section 4 of the Act defines 'misconduct' in the following terms:
Misconduct occurs if -
(a)a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer's office or employment;
(b)a public officer corruptly takes advantage of the public officer's office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person;
(c)a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years' imprisonment; or
(d)a public officer engages in conduct that -
(i)adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct;
(ii)constitutes or involves the performance of his or her functions in a manner that is not honest or impartial;
(iii)constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or
(iv)involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person,
and constitutes or could constitute -
(v)an offence against the Statutory Corporations (Liability of Directors) Act 1996 or any other written law; or
(vi)a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).
Later provisions of the Act establish the Commission and create the office of Commissioner.
Division 2 of pt 2 of the Act sets out the functions of the Commission, which include the function of helping to prevent misconduct, described as 'the prevention and education function' (s 17), 'the misconduct function' (s 18), and 'the organised crime functions' (s 21) (the latter is set out in pt 4 of the Act).
In preparing and publishing its Smiths Beach Report, the Commission was performing the misconduct function described by s 18 of the Act. That function includes investigating whether misconduct has or may have occurred and making recommendations and furnishing reports on the outcome of investigations. More specific provision for the performance of the misconduct function is provided by pt 3 of the Act.
Section 22, which falls within pt 3 of the Act, provides that the Commission may make assessments and form opinions as to whether misconduct has or may have occurred on the basis of consultations and investigations. The section empowers the Commission to advise an independent agency or appropriate authority of an assessment or opinion. Further, pursuant to s 43 of the Act (which is also within pt 3), the Commission may make recommendations as to whether consideration should or should not be given to, amongst other things, the taking of disciplinary action against particular persons, or the taking of other action that the Commission considers should be taken in relation to the subject matter of its assessments or opinions or the results of its investigations. There are many other provisions within pt 3 of the Act dealing with the exercise of the misconduct function by the Commission which it is not necessary to analyse for the purposes of this case.
Part 5 of the Act deals with reporting by the Commission. Section 84 of the Act (which falls within that part) provides that the Commission may prepare a report on any matter that has been the subject of an investigation or other action in respect of misconduct. This report may include statements as to any of the Commission's assessments, opinions and recommendations, and the reasons for them. Such reports can be laid before each House of Parliament or, if a House of Parliament is not sitting, transmitted to the Clerk of that House (s 93(1) of the Act).
Section 86 of the Act provides that:
Before reporting any matters adverse to a person or body in a report under section 84 … the Commission must give the person or body a reasonable opportunity to make representations to the Commission concerning those matters.
Part 6 of the Act deals with the powers of the Commission, including its investigative powers. Those powers are extensive, and include the power to compel attendance to give evidence. Part 7 of the Act deals with the power to conduct examinations and the exercise of those powers. Pursuant to s 139 of the Act (which is within pt 7), examinations are to be conducted in private unless the Commission decides that the examination is to be conducted in public (under s 140 of the Act).

Dr Cox and the Smiths Beach investigation

Dr Cox has a distinguished record of public service, and has held a number of senior positions within the public service of Western Australia. Relevant to the Commission's investigations, with respect to the Smiths Beach Report, Dr Cox held the position of chairman of the Environmental Protection Authority (EPA) between 31 March 2003 and 10 May 2007.
In late 2005 the Commission received an allegation concerning funding irregularities in an election for the Council of the Shire of Busselton (the Council). Following its assessment of the allegation, the Commission decided to undertake an investigation pursuant to s 33 of the Act. In the course of that investigation, the Commission considered allegations of misconduct by public officers in connection with a proposed development of land situated at Smiths Beach. The owner of the land was Canal Rocks Pty Ltd (Canal Rocks). The Commission investigated allegations made in connection with steps taken by Canal Rocks and its consultants so as to influence members of the Council, officers of the public service and politicians to support the proposed development of the land. The consultants engaged by Canal Rocks included Mr Brian Burke and Mr Julian Grill. Mr Burke had served as Premier of Western Australia, and Mr Grill had served as a Minister in the Government of Western Australia.
For the purposes of its investigations the Commission conducted private hearings and two sets of public hearings. Dr Cox was examined publicly during the first set of public hearings on 1 November 2006. His evidence was to the effect that an amendment proposed by the Shire of Busselton to its Town Planning Scheme relating to Smiths Beach was referred to the EPA for assessment. Officers of the EPA formed the view that a formal assessment of the proposal was required, so as to determine its environmental impact. It was later resolved that the level of assessment to be applied to the proposal was that of a Strategic Environmental Assessment (SEA).
Following the commencement of that process, Dr Cox attended a meeting with Mr McKenzie, who was an officer of Canal Rocks, and Mr Grill, on 30 September 2005. The development proposal being promoted by Canal Rocks was discussed at that meeting.
At the public hearing, Dr Cox was asked about his relationship with Mr Grill. He was asked if he had socialised with him. Dr Cox responded that he had had lunch with Mr Grill on one occasion about five months before giving his evidence. Counsel assisting the Commission also asked if anyone else had attended that lunch and Dr Cox stated that Mr Brian Burke had also been present. Dr Cox said that Mr Grill had telephoned him and invited him to lunch. When it was put to Dr Cox that he knew Mr Grill was a consultant for Canal Rocks by that stage he responded:
He is a consultant who operates for a number of clients and he knows my rule that I do not have lunch with proponents while I'm considering a proposal. His opening remark in issuing the invitation was, 'This is not to talk about any proposal I am associated with.'
Dr Cox acknowledged that the Canal Rocks proposal was pending before the EPA at the time Mr Grill issued the invitation. He was then asked:
Did you have any concerns about that meeting with Mr Grill bearing in mind he was, you knew, a consultant for Canal Rocks whilst there was still a matter pending before the EPA?‑‑‑My concern was that we were not to talk about any proposal, any proponent, at that luncheon. That's how he opened his conversation because he knows my standards, that I refuse to socialise and discuss proposals in a social setting.
All right. Where did the lunch take place?‑‑‑A restaurant in West Perth. If I knew the name I would tell you.
It's not one that you frequent then?‑‑‑Not regularly, no.
Who chose the restaurant?‑‑‑Mr Grill.
And Mr Burke, I take it, did attend?‑‑‑Yes.
What was discussed?‑‑‑They were particularly interested in my views that were fairly well publicised about public sector management, the benefits or otherwise of aggregation of government agencies.
Did you know that Mr Burke was also a paid consultant at Canal Rocks?‑‑‑No.
Was anything at all discussed about Canal Rocks at this meeting?‑‑‑No.
Who paid?‑‑‑Either Mr Grill or Mr Burke. I'm not sure who paid.
You're sure that you didn't?‑‑‑I did not.
Was that discussed at all?‑‑‑It was not. The invitation came from Mr Grill and the assumption was in that case that he would pay.
Why? Why was that assumption made by you?‑‑‑I made that assumption because he wanted to explore some generic issues which he knew I had a keen interest in and I'm not the person that would normally go to lunch - it was his invitation.
Were you at all concerned about appearances, regardless - just for a moment - regardless of what you had sought by way of an assurance from him that Canal Rocks would not be discussed; matters to do with Canal Rocks were still before the EPA, you were the chair of the EPA, you were going out to a lunch that these consultants were paying for. Did it not cross your mind that the appearance of this would be one that was unfavourable to you and your independent exercise of mind?‑‑‑There is always the perception issue but, as I say, the reality was I had an assurance that we would not be discussing proposals. I had no intention of discussing proposals. I refused to discuss proposals in social sittings.
Do you think it was altogether wise given that there might be a perception to the contrary to have lunch with people who acted as consultants for a company that had a matter pending before you?‑‑‑As I said, I try to split the roles. Mr Grill has a number of clients. In this case here I came to the view that the issue we were discussing was not an issue associated with any client and in the circumstances I thought it was not inappropriate to have lunch but I acknowledge the fact there's always the perception issue.
Dr Cox was recalled to give further evidence before the Commission on 4 December 2006. Between the first occasion upon which Dr Cox gave evidence and his recall, evidence was given of a telephone conversation between Mr Grill and Dr Cox on 8 May 2006 which was intercepted and recorded. The transcript shows that after the exchange of pleasantries the conversation was as follows:
GRILL:Brian and I'd like to take you out to lunch just to talk about, uh, perhaps, uh, organisation of the environment portfolio and perhaps to bring you up to date on Smith's Beach. If you can't do lunch, then coffee.
COX:Okay. Now, I'm just thinking, you've got nothing in front of me have you? Uh
GRILL:Not that I'm aware of.
COX:No, Jack Hills has been through us.
GRILL:Yeah.
COX:Uh, Mandurah's with other people. No, it's okay. Yeah, No. I'm just always careful never to have lunch with people who've got something in front of me. (laughs)
GRILL:Oh, right, right, right.
COX:Okay. The answer is yes.
GRILL:Great. When might you be available?
COX:Okay. How soon?
GRILL:Just whenever it suits you really.
COX:Oaky, uh.
…
COX:Ah, next Monday, or, Wednesday
GRILL:Wednesday would be excellent for me.
COX:Okay.
GRILL:What, twelve-thirty?
COX:Yeah. Sounds good.
GRILL:Now, uhm, somewhere in your arena, uh, down at the Parmelia perhaps? Do you like the food down there, or?
COX:No, uh, we better, uh, disappear a little bit further away into West Perth or something or
GRILL:Alright. We could go to, uhm, ah let's get the back room at Perugino's.
COX:Yeah, that sounds good.
GRILL:Great. I'll do that.
COX:Okay, twelve-thirty, Wednesday the sixteenth.
GRILL:Perugino's.
COX:Yep.
GRILL:Okay. I'll get that organised.
When recalled to give evidence, Dr Cox conceded that his earlier evidence to the effect that he had received an assurance that there was to be no discussion over lunch about any proposal that Mr Grill was associated with was wrong. He explained that error by saying:
I got mixed up but I certainly was of the view in my mind that we were not going to be talking about any proposal.

On his recall, Dr Cox also agreed that his statement in the telephone conversation to the effect that there was no proposal pending before him was not correct. However, Dr Cox reiterated his earlier evidence to the effect that there was no discussion of Smiths Beach in the course of the lunch. Dr Cox was also cross‑examined on the extent to which Mr Burke and Mr Grill may have influenced his appointments to various positions within the public service. This line of questioning was prompted by a number of assertions in intercepted and recorded telephone conversations.
On 13 April 2007, the Commission gave Dr Cox notice of possible adverse findings against him pursuant to s 86 of the Act. In particular, Dr Cox was advised that the Commission proposed to report, in respect of his lunch with Mr Burke and Mr Grill, that:
Discussions about the venue for the lunch and Dr Cox saying that he had a preference to 'disappear' further away from his office indicated that Dr Cox was conscious of the possibility of a perception of bias arising from the lunch. It also indicates that, contrary to what Dr Cox said in evidence, the expressed intention of Mr Grill was to raise the topic of Smiths Beach.
Dr Cox showed a lack of integrity in agreeing to attend the lunch and allowing Messrs Burke and Grill to pay for it in circumstances where the SEA process was still current. This conduct was a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties. Such a breach could constitute a disciplinary offence contrary to section 80 of the Public Sector Management Act1994 that would provide reasonable grounds for termination of office or employment. This conduct, therefore, constitutes misconduct pursuant to s 4(d)(ii) and (vi) of the Act.
A legal advisor to Dr Cox responded to that notice by requesting further particulars. Particulars were sought of the specific text of the WA Public Sector Code of Ethics 2002 (the Code) that was said to have been breached by Dr Cox. Particulars were also sought of the evidence which was said to be inconsistent with Dr Cox's evidence to the effect that Smiths Beach was not discussed during the course of his lunch with Mr Burke and Mr Grill. However, as the Commission made no finding contrary to the evidence of Dr Cox in that respect, it is unnecessary to delve into that issue to any extent.
The Commission replied to the request for particulars by letter dated 1 May 2007. The Commission advised:
The specific text of the WA Public Sector Code of Ethics 2002 is under the rubric 'Justice' which requires public officers, inter alia, to act impartially, to protect due process, to refrain from using any circumstance connected to official duties for personal gain, to declare any interest that may conflict with performance of public duty and to act in an open and accountable way.
Following receipt of those particulars, Dr Cox provided detailed written submissions to the Commission in opposition to the prospective adverse findings which had been disclosed.

The Smiths Beach Report

The Smiths Beach Report published by the Commission is dated 5 October 2007, and appears to have been delivered to each House of Parliament on about that date.
The report contains a section entitled 'Executive Summary' which provides an overview of the issues investigated by the Commission and of the findings made and opinions formed by the Commission. In that portion of the report reference is made to Dr Cox in the following terms:
Dr Walter Cox: Chairman of the Environmental Protection Authority
On 17 May 2006, Dr Cox accepted an invitation from Mr Grill to attend a lunch hosted by Messrs Burke and Grill, specifically knowing from Mr Grill that Smiths Beach was to be discussed at the lunch. This lunch and the discussion occurred at a time when Dr Cox had before him and his agency a Strategic Environmental Assessment (SEA) lodged by Canal Rocks Pty Ltd and affecting Smiths Beach. In accepting the invitation and attending the lunch Dr Cox deliberately sought to avoid a perception of a conflict of interest by asking Mr Grill to shift the proposed location for the lunch to a more discrete place. The acceptance of the invitation and attendance by Dr Cox to this private lunch, when he knew the agenda for discussion and knew (or should have known) that the Canal Rocks Pty Ltd's SEA was before him and his agency, constituted the performance of functions as a public officer in a manner that was not impartial. The conduct could constitute a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties. This conduct constitutes misconduct pursuant to sub‑paragraphs 4(d)(ii) and (vi) of the CCC Act.
Dr Cox and Mr Grill both deny that Smiths Beach was discussed at the lunch. Mr Burke (in light of surrounding email evidence) confirmed that it is likely that Smiths Beach was discussed as planned. That is not an issue the Commission needs to decide, as the impropriety, with regard to Dr Cox, is in the acceptance of the invitation and attendance at this private lunch when he knew the agenda for discussion and knew (or should have known) that the Canal Rocks Pty Ltd SEA was before him and his agency.
The Commission made the following observation in relation to the EPA in its Executive Summary:
Mr Grill's Influence on the Environmental Protection Authority
While the Commission has formed an opinion that Dr Cox, as the Chairman of the EPA, has engaged in misconduct as a result of the influence of Mr Grill it is not apparent to the Commission, on the basis of the material before it, that any other person in the Authority engaged in misconduct.
In par 2.5 of its report, the Commission referred to the Code and s 9 of the Public Sector Management Act 1994 (WA) (the PSMA). The Commission observed:
Both the Code and the PSMA emphasise the need to act with integrity and to be scrupulous in the use of information. One of the express guiding principles of the Code is justice, which is explained as 'being impartial and using power fairly for the common good'.
In the same section of its report the Commission observed:
Section 80 of the PSMA defines action that constitutes a breach of discipline. This includes contravening the PSMA or any public sector standard or Code of Ethics, committing an act of misconduct or being negligent or careless in the performance of duties.
A distinction is made between minor and serious breaches of discipline. Only serious breaches can result in termination of employment and, therefore, only such breaches can constitute misconduct for the purposes of section 4 of the CCC Act.
There is no definition of 'serious breach' and the 'Disciplinary Procedures Guide' provides that 'agencies must use their own judgement when determining if a breach is serious or minor'.
The Commission set out its findings with respect to the lunch attended by Dr Cox, Mr Burke and Mr Grill in par 4.8 of the Smiths Beach Report. In relation to the arrangements for the lunch, the Commission's findings correspond generally with the transcript of the intercepted telephone conversation between Dr Cox and Mr Grill. The Commission expressed the view that Dr Cox's expressed preference to 'disappear' further away from his office for the lunch was:
… consistent with Dr Cox being quite conscious of the possibility of a perception of bias arising from the lunch.
The Commission then expressed the following opinion:
Given the expressed intention of Mr Grill in the invitation was to perhaps raise the topic of Smiths Beach, it is difficult to understand how Dr Cox could possibly accept such an invitation in these circumstances. This could only be compounded by the fact that Messrs Burke and Grill paid for the lunch.
However, the Commission made no finding to the effect that Smiths Beach was discussed at the lunch. Nor did the Commission find that either Mr Burke or Mr Grill had in fact influenced Dr Cox's appointment to positions in the public service.
In par 4.8.1 of its report, under the heading 'Commission's Opinion Related to the Lunch Between Dr Cox, Mr Burke and Mr Grill', the Commission repeated, verbatim, the two paragraphs of text related to Dr Cox provided in the Executive Summary ([30] above). The same two paragraphs are again repeated in ch 7 of the Smiths Beach Report, which sets out the Commission's conclusions, opinions and recommendations. The other paragraph in the Executive Summary referring to Dr Cox, in the context of the issue relating to Mr Grill's influence over the EPA, was repeated (verbatim) at par 5.7.3 of the Smiths Beach Report and again in ch 7.

Subsequent events

Subsequent to the publication of the Commission's report, an investigator was appointed to inquire into Dr Cox's suitability to continue to serve as chairman of the Natural Resource Management Council. The investigator arrived at a different conclusion to the Commission on the question of whether there had been a breach of the Code, and on the question of whether Dr Cox's conduct constituted misconduct within the terms of the Act. However, that subsequent investigation, and the findings made, have no bearing whatever upon the question of whether the Commission exceeded its statutory jurisdiction and are therefore irrelevant to that issue. Their only possible relevance to these proceedings is in respect of the appropriate form of relief to be granted to Dr Cox in the event that he establishes that the Commission exceeded its jurisdiction.

The grounds

Ground (a): interpretation of misconduct

Dr Cox has enunciated four grounds in support of his application. The first ground has five separate components. This ground is to the effect that the Commission exceeded its jurisdiction because the facts found by the Commission were incapable of constituting misconduct within the meaning of s 4 of the Act.

Particular (i): failure to act with integrity

The first basis upon which this assertion is advanced is the proposition that the Commission's finding of misconduct by reason of a serious breach of the Code was based upon a finding of failure to act with integrity, whereas it is asserted that the Code does not proscribe any norm of conduct in those terms.
The Code in operation at the time Dr Cox had lunch with Mr Burke and Mr Grill was gazetted on 19 February 2002 and came into operation on 1 March 2002. It was promulgated pursuant to s 21 of the PSMA. Under the heading 'Justice' it provides:
Justice means being impartial and using power fairly for the common good. It means not abusing, discriminating against or exploiting people.
The Code
To meet the minimum standards of conduct and integrity, all public sector bodies and employees must:
•Act impartially and in the public interest …
The Code contains two other sections, headed 'Respect for Persons' and 'Responsible Care'. In each of these sections, the specifications of 'The Code' are said to be required, 'to meet the minimum standards of conduct and integrity'.
It is argued on behalf of Dr Cox that although the specific provisions of the Code are each said to be required 'to meet the minimum standards of … integrity', the Code does not in express terms require officers to act with integrity. However, the argument acknowledges that s 9(b) of the PSMA expressly requires that all public sector bodies and employees 'are to act with integrity in the performance of official duties'.
Section 80 of the PSMA defines a 'breach of discipline' to include contravention of any provision of the Act or any public sector standard or code of ethics. Accordingly, for the purposes of disciplinary proceedings that might lead to termination, there is no material distinction between a breach of the Act or breach of a public sector standard or code of ethics. Either breach is, if 'serious', capable of leading to disciplinary proceedings which might result in termination of employment (see s 83 and s 86 of the PSMA).
There are at least four reasons why this ground must be rejected. First, it proceeds upon an overly pedantic and narrow view of the Code. While it is strictly correct that there is no express provision in the Code enunciated in terms of a requirement that an officer act with integrity, each of the three separate sections of the Code contains express provisions which are said to be directed to meet 'minimum standards of … integrity'. In the natural and ordinary meaning of the Code, it requires officers to comply with specific norms of conduct, including acting impartially, so as to ensure a minimum standard of integrity. That is precisely the standard of conduct applied by the Commission in its expression of opinions adverse to Dr Cox. The Commission found that by accepting the invitation and attending lunch, in a place selected for its privacy and knowing that the agenda for discussion included the Smiths Beach Development, was a failure to act impartially which was properly characterised as a failure to act with integrity. This approach corresponds exactly with the structure of the Code, in which the obligation to act impartially is specified so as to ensure a minimum standard of integrity.
The second reason this argument must be rejected is that the critical opinion expressed by the Commission was to the effect that the conduct of Dr Cox constituted the performance of his functions in a manner that was not impartial. That finding corresponds directly with the norm of conduct prescribed by the Code. The subsequent reference to a failure to act with integrity is nothing more than a characterisation of the critical opinion of lack of impartiality. That characterisation does not undermine or in any way vitiate the critical opinion formed with respect to breach of the Code.
The third reason the argument must be rejected requires attention to be directed to the nature of the function performed by the Commission in its report. The Commission does not perform the function of making binding adjudications or determinations of right. It is neither a court nor an administrative body or tribunal in the usual sense of those expressions. In the performance of the misconduct function it is an investigative agency. After conducting investigations, its role is limited to making assessments, expressing opinions and putting forward recommendations as to the steps which should be taken by others. In characterising the findings made by the Commission as 'assessments' and 'opinions' it is clear that the legislature intended that the conclusions of the Commission should not be regarded as determinative or binding in any subsequent proceedings. So, if the Commission expresses an opinion that a member of the public service has been guilty of misconduct and that disciplinary proceedings are warranted, the question of whether or not a breach of discipline has been committed can only be authoritatively determined in the course of subsequent disciplinary proceedings instituted by the relevant employing authority, and not by the Commission.
It follows from the nature of the function performed by the Commission, and the fact that its findings and conclusions have no operative legal effect, that the published reports of the Commission should not be scrutinised by a court undertaking judicial review as if they were the reasons for decision of a court, administrative body or tribunal making decisions with determinative effect. The published reports of the Commission are 'not to be construed minutely and finely with an eye keenly attuned to the perception of error' (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287. Also see: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 [30]; Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57) [23]. Put another way, the ambit of the jurisdiction conferred upon the Commission is to be assessed having regard to the essential character of its misconduct function, which is to make assessments, form opinions and perhaps put forward recommendations, and not, at least in this context, to make authoritative determinations which affect legal rights or obligations.
In the present case, the gravamen of the finding made against Dr Cox by the Commission is abundantly clear from the terms of its report. Given the nature of the function performed by the Commission, and the fact that its report has no operative legal effect, it would be quite wrong to approach the question of whether the Commission had exceeded its jurisdiction by reference to a semantic and technical analysis of the precise terminology used by the Commission in its report - especially where the substance of the report is abundantly clear.
The fourth reason why this argument must be rejected is that even if, contrary to my view, the Code does not prescribe integrity as a norm of conduct, that norm is prescribed by s 9 of the PSMA and there is no material difference between contravention of that section and contravention of the Code in the context of the investigation undertaken by the Commission. Put another way, the precise legal source of the obligation to act with integrity is of no consequence to the finding made by the Commission to the effect that Dr Cox breached that obligation. Accordingly, even if there was a misdescription of the source of that obligation in the Commission's report, it would not provide any sound basis for setting that report aside on the ground that the Commission had exceeded its jurisdiction.

Particular (ii): procedural fairness (and ground (c))

The second enunciated basis for the assertion that the Commission exceeded its jurisdiction because the facts found by the Commission were incapable of constituting misconduct asserts that the Commission's opinion went beyond the adverse findings in respect of which notice had been given to Dr Cox pursuant to s 86 of the Act. The complaint is essentially a complaint of denial of procedural fairness and/or failure to comply with s 86 of the Act. It corresponds, apparently exactly, with the third ground advanced by Dr Cox in support of his application. This component of the first ground, and the third ground are therefore appropriately considered together, although they have nothing to do with the assertion in the first ground to the effect that the facts found by the Commission were incapable of constituting misconduct.
Even though the relevant grounds of the application are expressed in very general terms, it is clear from the written and oral argument advanced in support of these grounds that the complaint is a narrow one, and derives entirely from the Commission's characterisation of Dr Cox's conduct as involving 'impropriety', in the second paragraph of the text set out at [30] above. It is asserted that, because the letter to Dr Cox of 13 April 2007 does not suggest that Dr Cox's conduct was improper, he has been denied procedural fairness or, in the terms of s 86 of the Act, 'a reasonable opportunity to make representations to the Commission'.
The precise content of the obligations of procedural fairness will, in any case, depend upon the particular facts and circumstances of that case. Whether procedural fairness has been denied will depend in large part upon an assessment of whether the purpose or object of the obligations of procedural fairness has been defeated, by the course which has been followed. Where, as here, the allegation is of a failure to provide notice of an adverse finding, the question of whether there has been a breach will depend upon whether, in the circumstances, there has been a denial of an adequate opportunity to make submissions (and perhaps present evidence) in opposition to the possible finding. Expressed in that way, the issue corresponds exactly with the question posed by s 86 of the Act, which is whether the Commission has given a person the subject of an adverse report a reasonable opportunity to make representations to the Commission in respect of that matter.

So, the question is not whether, in its report, the Commission has used terminology which does not correspond exactly with the terminology used in the prior notice provided pursuant to s 86 of the Act. Rather, the question is whether, in all the circumstances, the lack of notice of a possible adverse finding has deprived Dr Cox of a reasonable opportunity to make representations to the Commission concerning the issue.
In the present case, the line of cross‑examination pursued by counsel assisting the Commission on the two occasions Dr Cox gave evidence could not have left Dr Cox in any real doubt as to the matters of interest to the Commission, and in respect of which he was exposed to the possibility of an adverse finding. Any possible uncertainty or ambiguity in that regard was resolved by the Commission's letter of 13 April 2007, in which the factual findings which the Commission proposed to make were set out clearly and unequivocally. Those findings were to the effect that Dr Cox accepted an invitation to lunch with knowledge that Mr Grill wished to raise the topic of Smiths Beach at that lunch, and expressed a preference to 'disappear' because of his awareness of a possibility of a perception of bias arising from the lunch (given that Mr Grill was acting for the proponent of a proposal which was before the EPA). The letter of 13 April 2007 also placed Dr Cox upon notice of the possible finding that those facts constituted a serious breach of the Code, which could constitute a disciplinary offence providing reasonable grounds for termination of office or employment.
Dr Cox was given every opportunity to make submissions to the Commission in opposition to those findings. He exercised that opportunity. There is no basis whatever for any assertion that Dr Cox was denied procedural fairness, or the statutory entitlement created by s 86 of the Act.
When the portion of the Commission's report which is said to ground this complaint is considered in context, it is clear that the word 'impropriety' is used as a generic descriptor of the particular conduct the subject of specific findings in the previous paragraph of the report. In that context, the word 'impropriety' does not connote any different or discrete finding adverse to Dr Cox, but simply paraphrases, in a shorthand way, the specific finding of lack of impartiality which is detailed in the preceding paragraph.

Particular (iii): the performance of functions

The next component of the assertion that the facts found by the Commission were incapable of constituting misconduct within the meaning of the Act focuses upon the Commission's reference to s 4(d)(ii) of the Act, being a component of the definition of 'misconduct' that:
[C]onstitutes or involves the performance of his or her functions in a manner that is not honest or impartial.
It is argued on behalf of Dr Cox that it was not open to the Commission to find that by accepting Mr Grill's invitation to lunch, and attending the lunch, Dr Cox engaged in conduct which constituted or involved the performance of his or her functions as chairman of the EPA.
The obstacles in the path of the acceptance of this submission are obvious. As counsel for Dr Cox conceded, it is clear that Dr Cox would not have been invited to lunch if he had not held the office of chairman of the EPA. Further, the transcript of the intercepted telephone conversation with Mr Grill shows that Mr Grill stated that the purpose of the lunch was to talk about 'organisation of the environment portfolio and perhaps to bring you up to date on Smiths Beach'. Obviously these are issues which fall squarely within the functions of the chairman of the EPA. In the face of these apparently insurmountable obstacles, counsel for Dr Cox was driven to advance the proposition that even though Dr Cox knew that he had been invited to lunch to discuss issues within the scope of his responsibilities, because his evidence was to the effect that it was not his subjective intention to discuss Smiths Beach at the time he attended the luncheon, it follows that by attending the lunch he was not performing the functions of his office. With respect, the argument only needs to be expressed in this way to be immediately rejected.
The subjective intention of Dr Cox at the time he attended Perugino's for lunch is irrelevant to the adverse finding made by the Commission. That adverse finding was based upon his acceptance of the invitation to lunch which was expressly made on the basis that the purpose of the lunch was to discuss matters within his area of responsibility, including a particular proposal which was before the EPA. There cannot be any doubt that it was open to the Commission to find that Dr Cox was acting in the performance of his functions at the time he accepted the invitation, and attended the lunch.
Further, and in any event, the facts found by the Commission, and the opinions expressed as a consequence of those findings, would appear to fall squarely within other aspects of the definition of 'misconduct' provided by s 4 of the Act. Section 4(d)(i) includes within that definition conduct that
could adversely affect, directly or indirectly, the … impartial performance of the functions of a … public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct.
Accordingly, the question of whether or not Dr Cox was acting in his capacity as a public officer at the time he accepted the invitation to lunch and attended the lunch is not critical to the question of whether his conduct could constitute 'misconduct' within the meaning of s 4 of the Act. It follows that the Commission's jurisdiction to express the opinion that Dr Cox's conduct constituted misconduct was not dependent upon a finding to the effect that he was performing his functions as a public officer at the relevant time.
This ground of the application also asserts that the Commission misconstrued s 4(d)(ii) of the Act. It is difficult to glean from the written and oral submissions of counsel for Dr Cox precisely what is said to constitute the misconstruction of the section, other than perhaps a failure to appreciate the significance of the distinction between those portions of the definition of misconduct which require a finding to the effect that the conduct was committed in the course of performance of public duties, and those which do not require such a finding. It is sufficient to say that there doesn't appear to be any reason to conclude that the Commission misconstrued s 4(d)(ii) of the Act in this respect, and in any event, in the circumstances of this case, the question of whether or not Dr Cox was acting in the performance of his functions as a public officer was not critical to the question of whether or not his conduct amounted to 'misconduct'.

Particular (iv): reasonable grounds for termination

The next basis upon which it is argued that the facts found by the Commission were incapable of constituting misconduct is the assertion that the facts found by the Commission were incapable of constituting a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the PSMA.
The terms in which this component of ground 1 are enunciated, and the argument in support of the ground, draw attention to the fact that Dr Cox is not a public service officer whose office could have been terminated under the PSMA. That issue may be immediately discarded. Section 4(d)(vi) expressly provides that the definition of 'misconduct' applies whether or not the public officer is a public service officer whose employment could be terminated on the grounds of a disciplinary offence under the PSMA. It is therefore clear that the conduct defined as 'misconduct' by s 4(d) of the Act is that which would provide reasonable grounds for termination if the public officer was liable to termination under the PSMA, irrespective of whether or not the public officer is so liable. In the case of a public officer who is not a public service officer covered by the PSMA, the definition imposes a hypothetical standard of conduct - the hypothesis being that the officer could in fact be liable to dismissal under the terms of the PSMA.
It is also significant to note that s 4(d) embraces conduct which 'constitutes or could constitute' a disciplinary offence providing reasonable grounds for termination. Accordingly, the jurisdiction of the Commission is not dependant upon a conclusion that the conduct found would result in termination of a person's office. Rather, the jurisdiction of the Commission extends to all conduct which could constitute reasonable grounds for the termination of a person's office. So, if it is reasonably arguable that the relevant conduct could provide reasonable grounds for termination, the Commission has jurisdiction to investigate and report upon it. It is also worth reiterating, in this context, that the question which this court is required to address is not whether it considers the conduct in which Dr Cox was found to have engaged would provide reasonable grounds for the termination of a person's office under the PSMA. Rather, the question is whether the Commission exceeded its jurisdiction in finding that the conduct of Dr Cox could provide reasonable grounds for termination. So, in order to establish lack of jurisdiction, it is necessary for Dr Cox to establish that such a finding was not open - that is, that no reasonable person properly turning their mind to the issue could conclude that the conduct of Dr Cox could give rise to reasonable grounds for termination of a public service officer under the PSMA.
Under the terms of the PSMA, only 'serious' breaches of discipline can give rise to termination of office. On behalf of Dr Cox it was asserted that no reasonable person could form the view that the conduct in which he was found to have engaged could constitute a serious breach of discipline. I do not accept that proposition.
The EPA which Dr Cox chaired has very important public functions to perform. By their nature, those functions will often involve the environmental assessment of proposals which are of substantial economic significance to the proponents of those proposals. The proposal to develop land at Smiths Beach provides an obvious example of the potential economic significance of the proposals considered and assessed by the EPA. It is obvious that these functions must be performed with the utmost integrity and impartiality. It is equally obvious that any circumstance which might give rise to a perception that there has been improper influence exerted in relation to the assessment of a proposal, or any departure from appropriate standards of impartiality and integrity must be avoided.
As chairman of the EPA, Dr Cox was responsible for ensuring the promotion and maintenance of appropriate standards of conduct on the part of all engaged in the performance of the agency's functions. His obligations, as the senior executive officer of the EPA, included the obligation to lead by example. In my opinion it was open to the Commission to conclude that the conduct in which Dr Cox was found to have engaged amounted to such a departure from the responsibilities and obligations of his office as to be characterised as a serious breach of discipline within the terminology used in the PSMA. Accordingly, the facts found by the Commission provided a basis for the expression of its opinion to the effect that misconduct had occurred and this ground must be rejected.

Particular (v): failure to apply objective standard

The next matter relied upon for the assertion that the facts found by the Commission did not sustain a conclusion of misconduct is another one of those particulars that is quite different to the assertion it is said to support. The complaint is to the effect that the Commission failed to enunciate and apply any objective standards to the determination of whether there were reasonable grounds for the termination of the applicant's office.
For the purposes of this assertion I will assume, without necessarily being taken to accept, that there is some necessary minimum content to a report published by the Commission in which it expresses opinions on the subject of misconduct. Given that there is no right of appeal from findings made or opinions expressed by the Commission, and that, at least when expressing opinions as to misconduct, those opinions have no operative legal effect upon rights and obligations, there seems to me to be a serious question as to whether a failure to enunciate the process of reasoning adopted by the Commission in a report presented pursuant to s 84 of the Act leads to the conclusion that the Commission has exceeded its jurisdiction. There is much to be said for the proposition that the terms of a report published by the Commission must sustain the conclusion that the Commission has departed from the statutory functions imposed upon it before it could be concluded that the Commission has exceeded its jurisdiction. Put another way, a failure by the Commission to enunciate its processes of reasoning may only provide a basis for judicial intervention if that failure sustains the conclusion that the Commission did not correctly address the issues required to be addressed in the exercise of its statutory functions. In Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, which is the authority upon which the argument in support of this ground heavily relied, the court concluded that judicial intervention was justified because the reasons of that Commission sustained the conclusion that it had not correctly addressed the questions which had to be addressed it the performance of its statutory functions.
However, in Greiner, the conclusion at which the court arrived was dependent upon the particular circumstances of that case. Those circumstances included the fact that the relevant Commission was required to form a view as to whether the established conduct could constitute reasonable grounds for a Governor (or an Executive Council) to dismiss a Premier or a Minister. Dismissals of that kind are, of course, extremely rare. The principles to be applied in assessing whether conduct justifies such an extraordinary course of action are, of their nature, inherently controversial. In that unusual context, a conspicuous failure to enunciate the principles which had been applied was capable of supporting the inference that the Commission had not in fact identified the principles which were applied to the formation of its opinion and had, to that extent, departed from the statutory task which it was required to perform. That inference was reinforced by some of the specific findings made by the Commission in that case, which appeared to be positive findings in favour of Mr Greiner, and to that extent, inconsistent with its ultimate conclusion. In such a context, a court might well conclude that a failure to enunciate the reasons why those positive findings did not result in a positive conclusion supports an inference that the process of reasoning and objective evaluation required by the statute had not been undertaken.
The circumstances of the present case are very different. In the present case, the statutory definition of 'misconduct' supplies the criterion to be applied. For the purposes of s 4(1)(d) of the Act, the relevant criterion is whether the conduct found by the Commission could be characterised as a serious breach of discipline providing reasonable grounds for the termination of a public service officer under the provisions of the PSMA. In par 2.5 of the Smiths Beach Report, the Commission expressly enunciated the approach which it took to the application of that criterion in the passage which I have set out above [30].
It is clear from the Smiths Beach Report as a whole that the Commission has applied that approach to the findings of fact made in relation to the conduct of Dr Cox. The reasons for the Commission's adverse view of that conduct are clear from the terms in which the opinions of the Commission are expressed. The characterisation of the conduct as potentially constituting a 'serious' breach of discipline is plainly a value judgment made by the Commission based on the facts which it found. It is difficult to see what more could usefully be added in that context, and while the Smiths Beach Report is silent on the reasoning that sustained its conclusion that the conduct could provide reasonable grounds for termination of a public office under the PSMA, it is clear from the terms of the Smiths Beach Report that the Commission's conclusion in this regard is drawn from its evaluation of the seriousness of the misconduct found. Unlike Greiner, there is no inference to be drawn from the terms of the Smiths Beach Report to the effect that the Commission had not correctly addressed the questions it was required to address in the performance of its statutory functions. Accordingly, this ground of attack upon the Commission's finding must be rejected.

Ground (b): failure to take into account material consideration

The second general ground relied on by Dr Cox is the assertion that the Commission failed to take into account a material consideration which thereby took it beyond jurisdiction. The material consideration which it is said the Commission failed to take into account is:
[T]he nature and extent of the work history of the Applicant, including evidence that neither Mr Brian Burke nor Mr Julian Grill was instrumental in securing any of his positions within the public service (which material consideration was taken into account in the Commission's formation of an opinion concerning the conduct of Mr Mark Brabazon at page 72 of the Smiths Beach Report).
This ground proceeds upon the assumption that the principles which have been enunciated in the context of defining the jurisdiction of an administrative decision maker apply to the Commission. As I have already observed, there is reason to doubt that those principles apply without modification to an investigative agency such as the Commission when performing its misconduct function, especially when its opinions have no determinative or operative legal effect. However, for the sake of the argument I will proceed on the assumption that the well known principles enunciated by Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 apply to the Commission in the exercise of its misconduct function.
As Mason J there observed, the ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he or she is bound to take into account in making that decision (Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, 39; see also: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375). As Mason J also pointed out, the factors which a decision maker is bound to consider in making a decision are to be determined by the construction of the statute conferring the power of decision (Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, 39). In the present case, the statutory definition of misconduct requires that the Commission have regard to all relevant elements of that definition in the exercise of its misconduct function. Obviously the Act does not expressly require the Commission to take into account the work history of Dr Cox or the fact that neither Mr Burke nor Mr Grill was instrumental in securing any of his positions within the public service. So, this ground can only succeed if it can be established that the Commission was legally obliged to take those matters into account by reason of an implication to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, 40 (per Mason J).

There is nothing in the subject matter, scope and purpose of the Act which would require the Commission to take into account the work history of Dr Cox or the manner in which he was appointed to various positions within the public service. The investigation carried out by the Commission was directed to the question of whether the actions of Dr Cox in accepting the invitation to lunch constituted misconduct. There is nothing in the nature of that function which would require the Commission, as a matter of law, to take into account the history of Dr Cox's employment in the public service.
This is of course not to say that those historical matters could not be taken into account by the Commission if it thought fit to do so. However, the proposition upon which this ground depends is that, as a matter of law, to be implied from the construction of the Act, the Commission was obliged to take those matters into account, with the result that failure to do so took it outside its statutory jurisdiction. That proposition is, with respect, an impossible proposition.
There are other reasons why this ground must fail. As a matter of fact, the Commission did take into account its finding that neither Mr Burke nor Mr Grill had influenced Dr Cox's promotion through the public service. Those findings are set out in par 4.9 of the Smiths Beach Report, immediately following the adverse findings made in respect of Dr Cox. It cannot be supposed that when making those adverse findings, the Commission did not take into account its rejection of the proposition that Mr Burke and Mr Grill had been influential in Dr Cox's promotion through the public service.
Further, the fact that some matters were taken into account in relation to Mr Brabazon provides no logical or legal reason why the Commission was obliged to take them into account in relation to Dr Cox, especially when the issues involved in relation to the allegations of misconduct were quite separate and distinct. In the case of Mr Brabazon, the question investigated by the Commission was whether, as a matter of fact, Mr Burke had influenced Mr Brabazon in the performance of his duties with respect to the proposal to develop Smiths Beach. In that context, where the issue was one of actual influence, it is easy to see why the Commission would place greater weight on the question of whether or not Mr Burke had been instrumental in Mr Brabazon's previous appointments within the public service.

Ground (d): flawed and unfair approach to fact finding

The final ground relied upon by Dr Cox is the assertion that the Commission exceeded its jurisdiction by failing:
(i)…to take account properly, or at all, of the available evidence consistent with a view of Dr Cox's conduct which could not have given rise to an assessment or opinion of misconduct; [and]
(ii)…to have any, or any proper, regard to the principles concerning fact finding enunciated in Briginshaw v Briginshaw.
Neither the written nor the oral submissions advanced in support of this ground identify with any precision the 'available evidence' which it is said that the Commission failed to take into account. In the course of oral submissions, reference was made, in very general terms, to the written submissions which were provided to the Commission on behalf of Dr Cox. Obviously enough, those submissions are not themselves 'available evidence'. Nor do the submissions refer to any evidence which is contrary to the factual findings made by the Commission, and which support its conclusion of misconduct. That is hardly surprising, as those factual findings derive almost entirely from the transcript of the intercepted telephone conversation, which was not challenged by Dr Cox, and the fact that the Smiths Beach SEA was underway. The written submissions provided to the Commission on behalf of Dr Cox conceded that he 'was in error in failing to have regard at that time to the presence of the Smiths Beach SEA'.
Upon analysis, it is clear that the essential substance of this complaint is that the submissions made to the Commission on behalf of Dr Cox were rejected. There is nothing in the rejection of those submissions which goes to the issue of the Commission's jurisdiction.
The reference to the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 is misconceived. That case is concerned with the standard of proof to be applied to factual determinations where serious allegations of misconduct are made (such as, in that case, adultery). In the present case, the facts with respect to the conduct of Dr Cox were not in serious controversy. The essential facts found by the Commission were established by the intercepted telephone conversation and the admission by Dr Cox that a SEA was underway in relation to the Smiths Beach Development proposal. Accordingly, the facts upon which the opinion expressed by the Commission was based were not contentious and there is no occasion for the consideration of the principles enunciated in Briginshaw.
When the Commission came to consider the opinions properly formed on the basis of the facts which it had found, it is clear from the portions of its report to which I have referred, that it took into account, and applied, the requirement of the PSMA to the effect that any breach of discipline be characterised as 'serious'. This approach to the formation of an opinion is consistent with the approach to fact finding enunciated in Briginshaw.
For these reasons there is no substance in this ground and it must also be rejected.

Conclusion

In my opinion none of the grounds advanced by Dr Cox sustain the proposition that the Commission exceeded its jurisdiction in expressing opinions adverse to him in the Smiths Beach Report. Accordingly, the question of relief does not arise. However, in deference to the arguments that were presented on that subject, I can see no reason why the principles enunciated in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey and Gaudron JJ, 595 Brennan J) (see also Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ)) would not apply to this case. That case establishes, authoritatively in my view, that certiorari is not available to quash a report like the Smiths Beach Report, which has no operative legal effect. However, that case also establishes that injury to reputation provides a sufficient basis for the grant of declaratory relief in

cases in which certiorari is not available. Accordingly, if I had concluded that the Commission had exceeded its jurisdiction in those portions of the Smiths Beach Report in which opinions adverse to Dr Cox were expressed, I would have granted declaratory relief to give effect to that conclusion. However, because I did not reach that conclusion, this application should be dismissed.

STEYTLER P: On 25 January 2008 Templeman J granted the applicant, Dr Walter Cox, an order nisi requiring the respondent (CCC) to show cause before this court why a writ of certiorari should not be issued against it. The writ is sought for the purpose of quashing parts of a report prepared by the CCC on 5 October 2007 (Smiths Beach report), pursuant to its powers under the Corruption and Crime Commission Act 2003 (WA) (CCC Act). The report was prepared in respect of alleged public sector misconduct concerning the Smiths Beach development at Yallingup. The application for the order nisi was supported by an affidavit sworn by Dr Cox on 13 December 2007. Since then, Dr Cox has sworn two further affidavits, respectively dated 20 March 2008 and 14 April 2008.
The CCC chose not to appear on the return of the order nisi. It will accept any order made by the court. However, the Attorney General sought, and was granted, leave to intervene and be heard.

The Smiths Beach report

The background to, and relevant contents of, the Smiths Beach report are fully described in the judgment of the Chief Justice. Essentially they are as follows.
In 1999 a company, Canal Rocks Pty Ltd (Canal Rocks), proposed an extensive tourist and residential development on land adjacent to Smiths Beach, some 10 km southwest of Dunsborough. There was widespread public opposition to the proposal. In 2003, because of lack of progress in obtaining development approval, Canal Rocks retained a firm of lobbyists, Julian Grill Consulting (which subsequently became Julian Grill Consulting Pty Ltd), to act on its behalf. The firm was run by Mr Julian Grill. Mr Grill, in turn, obtained the assistance of another lobbyist, Mr Brian Burke, through Mr Burke's company Abbey Lea Pty Ltd.
On 12 September 2003, the Environmental Protection Authority (EPA), wrote to the Busselton Shire in order to inform it that it had decided to conduct an assessment of the development proposal put

forward by Canal Rocks in respect of the Smiths Beach development. As matters transpired, on 18 August 2005, Canal Rocks wrote to the EPA applying for a Strategic Environmental Assessment (SEA) of its development proposal. As its name suggests, an SEA is an assessment of the environmental impact of a development proposal. The EPA agreed to the commencement of the SEA process and, on 26 September 2005, advertisements were lodged in respect of the assessment.

The SEA process was still in train in May 2006. Dr Cox was then the Chairman of the EPA. On 17 May 2006, he accepted an invitation from Mr Grill to attend a lunch to be hosted by him and Mr Burke. The relevant findings of the CCC relate to that lunch. The CCC found that Dr Cox accepted the invitation, knowing from Mr Grill that the Smiths Beach development proposal was to be discussed at the lunch. In its report, the CCC went on to find [4.8.1]:
This lunch and the discussion occurred at a time when Dr Cox had before him and his agency a Strategic Environmental Assessment (SEA) lodged by Canal Rocks Pty Ltd and affecting Smiths Beach. In accepting the invitation and attending the lunch Dr Cox deliberately sought to avoid a perception of a conflict of interest by asking Mr Grill to shift the proposed location for the lunch to a more discreet place. The acceptance of the invitation and attendance by Dr Cox to this private lunch, when he knew the agenda for discussion and knew (or should have known) that the Canal Rocks Pty Ltd's SEA was before him and his agency, constituted the performance of functions as a public officer in a manner that was not impartial. The conduct could constitute a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties. This conduct constitutes misconduct pursuant to sub‑paragraphs 4(d) (ii) and (vi) of the CCC Act.
Dr Cox and Mr Grill both deny that Smiths Beach was discussed at the lunch. Mr Burke (in light of surrounding email evidence) confirmed that it is likely that Smiths Beach was discussed as planned. That is not an issue the Commission needs to decide, as the impropriety, with regard to Dr Cox, is in the acceptance of the invitation and attendance at this private lunch when he knew the agenda for discussion and knew (or should have known) that the Canal Rocks Pty Ltd SEA was before him and his agency.
Although the report mentions that Dr Cox 'knew (or should have known)' that the Canal Rocks SEA was before him and his agency, it is obvious from the evidence given by Dr Cox to the CCC on 1 November 2006 that he did know, at the time of accepting the invitation, that the SEA was 'before him and his agency'.
Sections 4(d)(ii) and (vi) of the CCC Act, referred to in the first of the paragraphs quoted from the Smiths Beach report, read as follows:
Misconduct occurs if ‑
…
(d)a public officer engages in conduct that ‑
…
(ii)constitutes or involves the performance of his or her functions in a manner that is not honest or impartial;
…
and constitutes or could constitute ‑
…
(vi)a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).
Dr Cox was a 'public officer' by virtue of his position as Chairman of the EPA.
Other relevant provisions of the CCC Act have been set out in the judgment of the Chief Justice. It is unnecessary for me to repeat them.

Grounds of review

Dr Cox raises four grounds of review in support of his application for the issue of a writ of certiorari.
The first (ground (a)) is that the CCC acted in excess of jurisdiction because the facts found by it were incapable of constituting misconduct for the purposes of s 4(d)(ii) and (vi) of the CCC Act. The particulars provided in support of that contention read as follows:
(i)it was found that the Applicant's conduct could constitute a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties, yet the Code of Ethics does not prescribe any norm of conduct in those terms;
(ii)the assessment and opinion as to misconduct went beyond the particulars and related explanation of the Commission regarding its previously proposed finding to that effect;
(iii)the Commission concluded that the facts as found constituted the performance of functions as a public officer in a manner that was not impartial (thereby amounting to a failure to act with integrity in the performance of official duties), when:
(A)those facts, at their highest, enabled no conclusion that Dr Cox was relevantly acting in the performance of his functions as a public officer;
(B)the Commission misconstrued s 4(d)(ii) of the CCC Act and accordingly made an erroneous factual finding, thereby affecting its purported exercise of power.
(iv)the assessment and opinion of the Commission regarding the Applicant's conduct concerned facts that were incapable of constituting a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the Public Sector Management Act 1994 (particularly when regard is had to the fact that the Applicant, being a public officer to whom the allegation of misconduct related, was not a public service officer or a person whose office or employment could in fact have been terminated on the grounds of such conduct); and
(v)in reaching its conclusion as to the component of the definition of 'misconduct' in s 4(d)(vi) of the CCC Act, the Commission failed to enunciate and apply any objective standards to the determination of whether there were reasonable grounds for the termination of the Applicant's office.
The second ground (ground (b)) is that the CCC failed to take into account a material consideration which affected its exercise of jurisdiction, being the nature and extent of Dr Cox's work history. Particular reliance is placed upon evidence that neither Mr Burke nor Mr Grill was instrumental in securing any of Dr Cox's positions within the public service.
The third ground (ground (c)) is that the CCC denied Dr Cox procedural fairness because it 'failed adequately to particularise the provisional assertion that [he] failed to act with integrity in the performance of official duties'.
The final ground (ground (d)) is that the CCC undertook a flawed and unfair approach to fact‑finding and thereby committed jurisdictional error. The particulars relied upon in this respect suggest that the CCC:
(i)declined to take account properly, or at all, of the available evidence consistent with a view of Dr Cox's conduct which could not have given rise to an assessment or opinion of misconduct;
(ii)failed to have any, or any proper, regard to the principles concerning fact finding enunciated in Briginshaw v Briginshaw [(1938) 60 CLR 336].

Jurisdictional error

The question whether there was a jurisdictional error necessarily involves an examination of the limitations and restraints found in the CCC Act.
The CCC is a body corporate established for the purposes of the CCC Act (s 7B, s 8 of the CCC Act). Its 'misconduct function', provided by s 18(1), is 'to ensure that an allegation about, or information or matter involving, misconduct is dealt with in an appropriate way'. Section 18(2) of the CCC Act provides guidance on the processes by means of which the CCC performs its misconduct function. Section 22(1) provides that the CCC 'may make assessments and form opinions as to whether misconduct … has or may have occurred'. Section 22(2) provides that the CCC may make the assessments and form the opinions on the basis of, amongst other things, investigations and information of the kind there referred to. Reports are provided for by Part 5 of the Act. Section 86 (which falls within Part 5) provides that, before 'reporting any matters adverse to a person or body in a report' on any matter that has been the subject of an investigation in respect of misconduct, the CCC 'must give the person or body a reasonable opportunity to make representations to [it] concerning those matters'.
That brings me to the jurisdictional error contended for.

Ground (a) - Whether the facts found were capable of constituting misconduct

Particular (i) ‑ Public Sector Code of Ethics

Section 21(1)(b) of the Public Sector Management Act 1994 (WA) (PSM Act) gives to the Commissioner for Public Sector Standards the function of establishing codes of ethics setting out minimum standards of conduct and integrity to be complied with by public sector bodies and employees. Section 9 of the PSM Act provides that all public sector employees are to comply with the provisions of that Act, so far as it governs their conduct, and with public sector standards and codes of ethics: s 9(a)(i) and (ii). The Act also requires public sector employees to act with integrity in the performance of official duties: s 9(b).
The Public Sector Code of Ethics (Code) that applied at the relevant time is that gazetted on 19 February 2002. This took effect on 1 March 2002. It is divided into three sections, being 'Justice', 'Respect for persons' and 'Responsible care'. Under the heading 'Justice', the Code requires public sector employees to, amongst other things, act impartially and in the public interest; act without fear or favour and be open and accountable; and comply with any applicable code of conduct. It is not in dispute that the Code applied to Dr Cox.
The PSM Act provides that any employee who contravenes any provision of the Act applicable to that employee or any public sector standard or code of ethics, or who commits an act of misconduct, commits a breach of discipline: s 80(b) and (c). If, following the investigation of an alleged breach of discipline, an employing authority finds that a serious breach appears to have been committed, the employing authority must cause the person concerned to be charged with that breach: s 83(1)(b). If the charge is found to be proved, the employing authority may, amongst other things, dismiss the person concerned: s 86(3)(b)(vi) and s 86(10)(a) of the PSM Act.
Against this background, Dr Cox contends, by his counsel, that it was not open to the CCC to find that a failure to act with integrity in the performance of official duties constituted a serious breach of the Code. That is said to be so because the Code does not proscribe any norm of conduct in those terms.
There is no substance to this contention. The CCC found that Dr Cox's conduct in respect of the lunch constituted the performance of functions as a public officer in a manner that was not impartial. It was this that was found to amount to a failure to act with integrity (which would amount to a breach of s 9(b) of the PSM Act). It was also this conduct that was found to be capable of amounting to a serious breach of the Code. That finding was undoubtedly open to the CCC. The first of the requirements listed in the Code under the heading 'Justice' is a requirement to act impartially and in the public interest. The fact that Dr Cox's conduct also amounted to a failure to act with integrity does not affect the finding that his lack of impartiality was capable of amounting to a serious breach of the Code.

Particular (ii) - The finding of impropriety

The complaint under particular (ii) is that the Smiths Beach report introduced, for the first time, the notion of 'impropriety'. This is said to manifest jurisdictional error in two ways. The first is that 'impropriety' is said to be something distinct from a 'failure to act with integrity', being the only adverse finding of which Dr Cox had been warned by the CCC pursuant to s 86 of the CCC Act. The making of the finding of 'impropriety', without first giving Dr Cox a reasonable opportunity to make representations in respect of it, was consequently said to have breached the requirements of s 86. The second error is said to be that the CCC introduced, in its report, a characterisation of Dr Cox's conduct that did not fall within the definition of 'misconduct' in s 4 of the Act.
The opportunity to comment on possible adverse findings was provided by the CCC by letter to Dr Cox dated 13 April 2007. The substance of the matters, adverse to Dr Cox, that might be contained in the proposed report were expressed as follows:
Part 3.8 of the proposed report is headed 'A New Development Proposal' and canvasses the Strategic Environmental Assessment (SEA) process. In that context, the Commission's proposed report considers the nature of the existing relationship between Dr Cox and Messrs Burke and Grill. In particular, the proposed report concludes, at Part 6.2 that 'Dr Cox went to lunch with Mr Burke and Mr Grill in May of 2006 but said that there had been no discussion of Smiths Beach at that time. Other evidence is inconsistent with that of Dr Cox. Discussions about the venue for the lunch and Dr Cox saying that he had a preference to 'disappear' further away from his office indicated that Dr Cox was conscious of the possibility of a perception of bias arising from the lunch. It also indicates that, contrary to what Dr Cox said in evidence, the expressed intention of Mr Grill was to raise the topic of Smiths Beach.
Dr Cox showed a lack of integrity in agreeing to attend the lunch and allowing Messrs Burke and Grill to pay for it in circumstances where the SEA process was still current. This conduct was a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties. Such a breach could constitute a disciplinary offence contrary to section 80 of the Public Sector Management Act 1994 that would provide reasonable grounds for termination of office or employment. This conduct, therefore, constitutes misconduct pursuant to section 4(d)(ii) and (vi) of the Act'.
Dr Cox's counsel sought further particulars of the matters identified in the letter dated 13 April. These were provided by letter dated 1 May 2007. That letter included the following:
Public Sector Code of Ethics
The specific text of the WA Public Sector Code of Ethics 2002 is under the rubric 'Justice' which requires public officers, inter alia, to act impartially, to protect due process, to refrain from using any circumstance connected to official duties for personal gain, to declare any interest that may conflict with performance of public duty and to act in an open and accountable way.
Inconsistent evidence/briefing note
The evidence before the Commission established that Dr Cox had lunch with Mr Burke and Mr Grill at Perugino Restaurant on Wednesday 17 May 2006. On 1 November 2006, Dr Cox gave evidence that there was no discussion about Canal Rocks at this meeting.
Both Mr Burke and Mr Grill initially gave evidence that Canal Rocks was not raised with Dr Cox at this lunch, however, at a subsequent examination on 4 December 2006 Mr Burke gave evidence that he 'probably would've raised it [Canal Rocks] at the lunch' (at page 1101).
Despite the evidence of Dr Cox, other circumstantial evidence (including emails, lawfully intercepted telephone conversations, and the evidence of Mr [David] McKenzie) led at the public examinations of the Commission is inconsistent with Dr Cox's evidence.
The following is inconsistent with Dr Cox's evidence:
•T0026 ‑ A telephone discussion between Dr Cox and Mr Grill on 8 May 2006 during which the lunch meeting is scheduled for 12.30pm on 17 May 2006, Mr Grill said 'Brian and I'd like to take you out to lunch just to talk about, uh, perhaps, uh, organisation of the environment portfolio and perhaps bring you up to date on Smiths Beach';
•T0026 ‑ Dr Cox refused a suggestion that the venue to the lunch meeting take place in the city but instead suggested that 'we better, uh, disappear a little bit further away into West Perth or something or';
•On 5 December 2006, Mr McKenzie gave evidence that either Mr Grill or Mr Burke asked him to arrange for Michael Swift (consultant town planner) to email Mr Burke information about the Strategic Environmental Assessment process for the purpose of the lunch meeting that was to be had with Dr Cox on 17 May 2006 (at page 1203);
•E9096 ‑ Approximately 2 hours before the lunch meeting, at 10.32am on Wednesday 17 May 2006, Mr Swift emailed Mr Burke 'a layman's brief' on the Strategic Environmental Assessment process then underway for Smiths Beach;
•E9096‑ Following the lunch meeting at 5.24pm on 17 May 2006 Mr Burke emailed Mr Swift and said 'Julian and I had a good meeting with Wally Cox today. Julian will brief David [McKenzie] at golf on Friday … Sufficient to say things appear on track from the DOE, EPA and CALM fronts'…
There is no difference in substance between what was raised in the letter of 13 April 2007, as supplemented by the letter dated 1 May 2007, and the findings in the Smiths Beach report. It is obvious that the conduct of concern, in each case, was the lack of impartiality shown by Dr Cox in accepting the invitation to attend the lunch, and attending it, in the circumstances described. The word 'impropriety', in [4.8.1] of the Smiths Beach report, did not introduce any new or different notion of 'misconduct'. It was merely a shorthand description of the performance of Dr Cox's functions as a public officer in a manner that was not impartial, constituting misconduct pursuant to sub‑section 4(d)(ii) and (vi) of the CCC Act, that had been referred to in the immediately preceding paragraph.
There is consequently no substance to either of the contentions advanced under this heading.

Particular (iii) - performance of functions as a public officer

Dr Cox contends, by his counsel, that s 4(d)(ii) comprehends only conduct that constitutes or involves the performance of a public officer's functions as a public officer in a manner that is not honest or impartial and that Dr Cox's attendance at a private lunch was not an act in the performance of his official duties. He argues that there was nothing to establish, and no finding, that Dr Cox's attendance at the lunch influenced or impacted upon his performance of his functions as Chairman of the EPA.
In his evidence to the CCC, Dr Cox described his relationship with Mr Grill as being that of a 'professional colleague' rather than a friend. He said that his relationship with Mr Grill had always been confined to professional matters. This was the only lunch that he had ever attended with Mr Grill. It cannot sensibly be contended (and nor was it) that the invitation to lunch was made to, and accepted by, Dr Cox in any capacity other than as Chairman of the EPA. If he had not held that post, he would not have been invited to the lunch by Mr Grill. I have said that the CCC found that Dr Cox accepted the invitation at a time when the SEA process was still in train, knowing that the Smiths Beach development was to be discussed at the lunch. This was the lack of impartiality which, in the CCC's opinion, amounted to 'misconduct' as defined. That conduct plainly constituted or involved the performance of Dr Cox's functions as Chairman of the EPA. Counsel for Dr Cox suggested that this could not be so in circumstances in which Dr Cox had not, himself, intended to discuss Smiths Beach during the lunch. Even if that were so, that cannot mean that he did not attend in the performance of his functions as a public officer. It does not change the fact that he was only invited because of his office and that he knew, when accepting the invitation, that Smiths Beach (and, as Mr Grill put it in the telephone conversation on 8 May 2006, the 'organisation of the environment portfolio') was intended to be discussed by Messrs Grill and Burke.
There was no misconstruction of s 4(d)(ii) of the CCC Act and the misconduct found was undoubtedly capable of falling within that section.

Particular (iv) - reasonable grounds for termination

Counsel for Dr Cox next contends that the misconduct found by the CCC could not amount to a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the PSM Act. That is said to be especially so having regard for the fact that Dr Cox was not a public service officer whose employment could have been terminated under the PSM Act.
Taking the last point first, there is nothing in s 4(d)(vi) of the CCC Act that requires the public officer in question to have been a public service officer under the PSM Act. That is made plain by the words '(whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct)'. It is consequently irrelevant whether Dr Cox was, or was not, a public service officer for the purpose of the PSM Act.
As to the principal point under this heading, it is a large task to upset a finding of the kind made by the CCC in this case. Where satisfaction of a statutory precondition turns on factual matters or a matter of opinion or policy on which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision under challenge: Buck v Bavone (1976) 135 CLR 110, 118 ‑ 119 (Gibbs J); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [137] (Gummow J). It cannot be said that conduct of the kind found against Dr Cox could not reasonably have been found to be capable of constituting a disciplinary offence providing reasonable grounds for the termination of a person's office or employment under the PSM Act.
Not surprisingly, the legislature has placed emphasis on the need for integrity and impartiality in public servants: s 9(b) of the PSM Act and the Code. Dr Cox must have known that he was invited to lunch only because of his position. He knew that Messrs Burke and Grill intended to discuss the Smiths Beach development. He knew that this would be done at a private lunch with no‑one else present. It was him who tried to avoid a perception of a conflict of interest by asking Mr Grill to shift the proposed location for the lunch to somewhere more discreet. It was undoubtedly up to the CCC to form the opinion that this lack of impartiality, on the part of a very senior public servant in a position of substantial influence, was serious misconduct of a kind that could constitute a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the PSM Act. That is so however the word 'could' is understood: see, in this respect, the different approaches to the use of that word in s 9(1)(c) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 129, 136 (Gleeson CJ), 167 (Mahoney JA) and 186, 187 (Priestley JA), although it may be significant that s 4(d)(vi) of the CCC Act is prefaced by the words 'constitutes or could constitute', unlike s 9(1)(c) of the ICAC Act ‑ the terms of which are set out under the next heading ‑ which uses the words 'could constitute or involve'.

Particular (v) - Failure to apply an objective standard

In order to establish a jurisdictional error of the kind identified in particular (v), Dr Cox must establish that a legal precondition to the exercise of the CCC's power has not been met: Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446 [59] (Basten JA). He tries to do this by contending that the CCC overlooked a statutory precondition that, as a matter of objective fact, the misconduct in question could constitute a disciplinary offence providing reasonable grounds for termination. He relies, in this respect, on the reasoning of the Court of Appeal in Greiner.
Section 9(1)(c) of the ICAC Act read (relevantly) as follows:
Despite section 8 [which defined 'corrupt conduct' for the purposes of the ICAC Act], conduct does not amount to corrupt conduct unless it could constitute or involve:
…
(c)reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official.
Gleeson CJ said that, on the true construction of s 9, the test of what constitutes reasonable grounds for dismissal is objective and does not turn on the purely personal and subjective opinion of the Commissioner (145). Mahoney JA expressed a similar opinion (167). So, too, did Priestley JA (179 ‑ 180, 184).
The task of the Commission under the ICAC Act was that of conducting investigations, and, following such investigations, making 'determinations' as to whether any corrupt conduct had occurred: Greiner (129). What the CCC was required by s 22 of the CCC Act to do in the present case was to form an 'opinion' whether misconduct occurred as defined in s 4 of the CCC Act. The opinion must, of course, be reasonable. It must also be based upon the matters referred to in s 22(2) of the CCC Act, including the CCC's consultations and investigations and information given to it. The fact that the misconduct must be such as constitutes or could constitute a disciplinary offence providing reasonable grounds for termination of a person's office or employment as a public service officer under the PSM Act provides an objective yardstick against which the opinion must be formed.
There is nothing, on my reading of the report, to suggest that the CCC misunderstood its task in any of these respects. It recognised that, in forming an opinion that misconduct has occurred, it 'does not act as some roving moral guardian, with its own idiosyncratic views of what is in the public interest' and that its function was 'to measure conduct against the statutory definition before expressing an opinion that it constitutes "misconduct"' (page 25). It recognised that there is a distinction between minor and serious breaches of discipline. It appreciated that only serious breaches can result in termination under s 86(3)(b)(vi) of the PSM Act (referred to earlier in these reasons), and hence amount to misconduct for the purposes of s 4 of the CCC Act (page 31). It noted that there was no definition of 'serious breach' and that the 'Disciplinary Procedures Guide' provides that 'agencies must use their own judgment when determining if a breach is serious or minor' (also at page 31). Although the CCC's reasoning in par 4.8.1 of its report is brief, there is nothing to suggest that its assessment of the seriousness of Dr Cox's misconduct, for the purposes of s 4(d)(vi) of the CCC Act, when read in conjunction with the other comments to which I have referred, overlooked or misapplied any precondition to the exercise of its power.
Counsel for Dr Cox next argued that the CCC should have, but did not, specify on what basis the misconduct was considered by it to be a serious breach of discipline. He relies, in that respect, upon what was said by Gleeson CJ in Greiner, to the effect that one of the purposes of s 9(1)(c) of the ICAC Act was to 'require that consideration be addressed to the degree of seriousness of the conduct in question' (140) and that the Commissioner should have identified the standards by reference to which a power of dismissal might reasonably be exercised. However, those comments were made in a context in which the Commissioner had been required to assess whether the conduct in question could constitute or involve reasonable grounds for the dismissal by the Governor of a Premier or a Minister. That was an extraordinary circumstance for which there was little in the way of guidance. In the present case, as I have said, guidance was provided by the PSM Act and the Code, to each of which the CCC referred. The question whether the misconduct was 'serious' enough to justify termination of 'a' person's office or employment as a public service officer under the PSM Act was a value judgment to be made in all of the circumstances, taking into account the relevant provisions of the PSM Act and the Code. That is what the CCC did. Nothing more was required of it for its jurisdiction to be lawfully exercised.

Ground (b) - Failure to take into account a material consideration

A ground of failure to take into account a material consideration can only be made out if the decision‑maker fails to take into account a consideration that he or she is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J) and the cases there cited. The factors that the decision‑maker is bound to consider in forming its opinion in the present case are to be looked for, first, in the terms of the CCC Act. To the extent that it does not state the factors that the decision‑maker is bound to consider, these must be found by implication from the subject matter, scope and purpose of the Act: Peko‑Wallsend (39 ‑ 40) (Mason J).
The CCC Act does not expressly set out the considerations that are required to be taken into account by the CCC in deciding whether or not there has been misconduct, other than to the extent already mentioned. Consequently, regard must be had to the subject matter, scope and purpose of the Act. There is nothing in these that should lead to the conclusion that the CCC was bound to take into account the consideration that neither Mr Burke nor Mr Grill was instrumental in securing any of Dr Cox's positions within the public service. The question was whether or not Dr Cox engaged in misconduct on the day in question. It cannot be said that no reasonable opinion could be arrived at in that respect without taking into account the consideration whether or not any prior advantage had been secured for Dr Cox by one or both of Mr Grill and Mr Burke.
Counsel for the appellant relied, in this respect, on the fact that a like consideration had been taken into account by the CCC when forming an opinion about the conduct of Mr Mark Brabazon, a senior officer in the Department of Conservation and Land Management, who also featured in the Smiths Beach report. That is of no significance, for two reasons. The first is that the answer to the question whether the CCC is bound to take a particular consideration into account is not influenced by the fact that a like consideration was taken into account by it in some other context. The second is that the consideration arose, in the case of Mr Brabazon, in the context of answering a question whether Mr Burke had been in a position to exercise influence over him (pages 71 ‑ 72). While that question may also have been generally relevant to Mr Burke's relationship with Dr Cox, it had no bearing on the only finding of misconduct made by the CCC concerning Dr Cox.
Counsel for Dr Cox also contended that the CCC failed to take into account evidence and submissions concerning Dr Cox's extensive experience within the public sector. There was no requirement that it should have done so. In any event, these were irrelevant to the misconduct found by the CCC.

Ground (c) - Denial of procedural fairness

Dr Cox's contention under ground (c) is that he was denied procedural fairness because the CCC failed to adequately particularise the provisional assertion, in its letter of 13 April 2007, that he failed to act with integrity in the performance of his official duties.

In this case, the requirement to give notice of matters that might be found against the person concerned derives from the CCC Act. I have said that s 86 of the CCC Act requires the CCC, in a case such as the present, to provide a 'reasonable opportunity' to make representations to it concerning any matters adverse to a person that are likely to be reported upon.
There is no doubt that Dr Cox knew of the matters adverse to him that might appear in the Smiths Beach report. In his evidence at public hearings of the CCC on 1 November 2006, he was asked about the lunch with Messrs Burke and Grill. He returned to give additional evidence on 4 December 2006. An audiotape of a conversation between himself and Mr Grill was played to him. Arising out of that, it was put to him that he had known that one of the reasons for the lunch was to discuss the Smiths Beach development. He was also asked why he had wanted the lunch venue to 'disappear a little bit further away'. He was asked, at some length, about what was discussed at the lunch. I have said that, by letter dated 13 April 2007, Dr Cox was told of the substance of the matters adverse to him in the proposed report and given an opportunity to make representations with respect to them. Also, I have mentioned that further particulars were provided by letter dated 1 May 2007. On that day Dr Cox was given an extension of time until 4 May 2007 to provide submissions. In fact, his submissions were provided to the CCC on 10 May 2007.
It is consequently plain that Dr Cox was made aware of the specific conduct that was likely to be found to have constituted a failure to act with integrity in the performance of his duties. He was also given an adequate opportunity to address the concerns held by the CCC.

Ground (d) - Flawed and unfair approach to fact‑finding

There are two complaints under this heading.
The first, as it was put in the written submissions prepared on behalf of Dr Cox, is that the CCC 'considered no hypothesis or characterisation of events which supported a benign, or at least less serious, conclusion'. It is difficult to know just what is the nature of the jurisdictional error that is sought to be raised by this. The CCC considered that there was no benign hypothesis or characterisation of events, or any less serious than that at which it arrived. It was entitled to form that opinion on the evidence before it.
Counsel for Dr Cox suggested, in this respect, that relevant written submissions that had been placed before the CCC were not referred to in the Smiths Beach report. This is said to reflect an inadequate and improper exercise of jurisdiction. The submissions particularly relied upon were to the effect that, properly understood, none of the evidence and material referred to in the CCC's letter dated 1 May 2007 was inconsistent with Dr Cox's evidence that there had been no discussion about Canal Rocks at the lunch. However, the CCC found it unnecessary to decide whether Smiths Beach was or was not discussed at the lunch because the finding of misconduct was based upon Dr Cox's 'acceptance of the invitation and attendance at this private lunch when he knew the agenda for discussion'.
The second complaint is that the CCC failed to have any, or any proper, regard to the principles concerning fact‑finding enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171 the court (Mason CJ, Brennan, Deane & Gaudron JJ) said:
[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found' … [T]hey should be understood as … reflecting … a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … '
In G v H (1994) 181 CLR 387, 399, Deane, Dawson and Gaudron JJ said:
It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that '[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal' (1938 60 CLR, at p 362, per Dixon J … ). Thus, if there is an issue of 'importance and gravity', to use the words of the trial judge, due regard must be had to its important and grave nature.
Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw …

There is no express reference in the Smith's Beach report to Briginshaw. However, there was no need for one. I have mentioned that the CCC reminded itself, in the report, that an opinion formed by it that misconduct had occurred was 'a serious matter'. It went on to say [1.5]:
It may affect individuals personally and professionally. It has the capacity to affect relations between those of whom the Commission has adversely mentioned [sic], and their family, friends and acquaintances. Accordingly, there is a need to exercise care in forming opinions as to the occurrence of misconduct.
This is a sufficient acknowledgement of the principles in Briginshaw. This ground has not been made out.

The availability of prerogative relief

Because none of the grounds has been made out, the order nisi must be discharged and the application for a declaration must be refused. It is consequently unnecessary for me to consider whether the publishing of the Smith's Beach report had a discernible or apparent legal effect upon Dr Cox's rights sufficient for certiorari to issue, as to which see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron & Gummow JJ); and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580 (Mason CJ, Dawson, Toohey & Gaudron JJ), 595 (Brennan J).

Conclusion

I would discharge the order nisi and dismiss the application.
McLURE JA: I have had the opportunity of reading in draft form the judgments of the Chief Justice and the President. I agree that the application should be dismissed. There is much common ground in the judgments of the other members of the court and on those matters I agree with their reasons. That is sufficient to dispose of all the grounds of appeal. However, I propose to make some observations on ground (b) which is to the effect that the CCC failed to take into account a material consideration which affected its exercise of jurisdiction, being the nature and extent of the appellant's work history including evidence that neither Mr Burke nor Mr Grill was instrumental in securing any of the appellant's positions within the Public Service. The Chief Justice has concluded that those matters were not mandatory relevant considerations but were matters which the CCC could take into account if it saw fit to do so. The President concluded that the matters were not mandatory relevant

considerations and were not relevant to the misconduct found by the CCC. I agree with the President.

The umbrella issue in the application is whether the CCC committed any reviewable jurisdictional error in forming its opinion that the appellant engaged in conduct that ‑
(a)constituted or involved the performance of his functions in a manner that was not impartial; and
(b)constituted or could constitute a disciplinary offence providing reasonable grounds for the termination of a person's office as a public service officer under the Public Sector Management Act 1994 (WA) (PSM Act).
A failure to take into account a relevant consideration is a recognised common law ground of review for jurisdictional error. An understanding of the basis for the finding that the appellant did not act impartially is a precondition for identifying whether a matter is a mandatory relevant consideration. Moreover, the matter cannot be a mandatory relevant consideration if it is not factually relevant to the questions in issue. The differences of views of the Chief Justice and the President is as to the factual relevance of the material relied upon by the appellant.
On my reading of the reasons of the CCC, the Chief Justice and the President, the statutory reference to acting impartially in s 4(d)(ii) of the Corruption and Crime Commission Act 2003 (WA) and the duty in the Public Sector Code of Ethics (Code) to act impartially are treated as equivalent to the common law bias rule which is a rule of procedural fairness that encompasses both actual and apprehended bias. There is apprehended bias where a fair‑minded observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the questions the decision maker is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Webb v The Queen (1993) 181 CLR 41.
There was no evidence in this case of actual bias by the appellant in any decision concerning the Strategic Environmental Assessment being considered by the Environmental Protection Authority. This was a case of apprehended bias (partiality). On my reading of the grounds of appeal there was no claim of jurisdictional error directed to the meaning of the term 'impartial' in the PSM Act and the Code.
The second issue for the CCC was whether the conduct which in its opinion satisfied s 4(d)(ii) could in its opinion constitute a disciplinary offence providing reasonable grounds for termination. The focus of the Commission was properly on the capacity of the relevant conduct to provide reasonable grounds for termination under the PSM Act. It is not the role of the CCC to determine or form an opinion on whether the person under investigation should be dismissed from office. The matters relied upon by the appellant are not relevant to the s 4(d)(ii) misconduct found by the CCC or the capacity of that conduct to provide reasonable grounds for termination.