Crime and Corruption Commission v Carne

[2023] HCATrans 74

[2023] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 2022

B e t w e e n -

CRIME AND CORRUPTION COMMISSION

Appellant

and

PETER DAMIEN CARNE

Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 JUNE 2023, AT 10.00 AM

Copyright in the High Court of Australia

MR P.J. DUNNING, KC:   May it please the Court, I appear with my learned friends MR M.R. WILKINSON and MS S.E.D. SPOTTISWOOD for the appellant.  (instructed by Crime and Corruption Commission)

MR J.M. HORTON, KC:   May it please the Court, I appear with my friend MR J.P. PEMBERTON for the respondent.  (instructed by Gilshenan & Luton Legal Practice)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends MS R.M. O’GORMAN, KC and MR C.J. TESSMANN, intervening on behalf of the Speaker of the Legislative Assembly of Queensland.  (instructed by Clerk of the Queensland Parliament)

KIEFEL CJ:   I think the parties have been advised that leave to intervene has been granted.

MR T.M. BEGBIE, KC:   If the Court pleases, I appear with MR P.J. MELICAN and MS E.H.I. SMITH on behalf of the Attorney‑General of the Commonwealth of Australia intervening.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, our principal submission is that the matter can be disposed as shortly of as the – by the operation of sections 9(2)(c), (d), and (e) of the Parliament of Queensland Act, which made both the preparation and the presentation of the report proceedings in the Assembly then by force of section 8, unable to be impeached.  Ultimately, our submission is that is how your Honours should dispose of it, but that submission was rejected by the majority in the Court of Appeal, and it is pressed against us in this Court.

Can I briefly take your Honours to how it was ultimately dealt with in the Court of Appeal.  May I ask your Honours, please, to take the core appeal book at page 85.  Your Honours will see in paragraph [80], there is a reference to the conclusion that it:

was subject to parliamentary privilege –

being:

dependent upon the report being one which was made by the Commission –

and critically at [81]:

However, those facts could not confer parliamentary privilege upon a document made and delivered to the PCCC in purported, but not actual performance of the Commission’s functions.  The preparation and delivery of the report, without the operation of section 69, were not acts done in transacting the business of the Assembly or its committee.

Which means what becomes critical is the construction that the majority placed on section 69 of the Parliament of Queensland Act, and that which is urged by the respondent in this Court.

Your Honours, the facts leading to the litigation were essentially agreed between the parties by an agreed statement of facts.  They are conveniently set out in the reasons for judgment of Justice Freeburn in dissent in the Court of Appeal – which your Honours will find starting at page 87 of the core appeal book.  If I can just emphasise these particular parts of that factual background.  There is a complaint made in June 2018, anonymously, that the respondent was engaged in multiple acts of:

“corrupt conduct” under s 15 of the CC Act.

I will take your Honours to 15 in a little while.  The investigation pursues – you will see at (g), of paragraph [89], that the respondent is informed of both the disciplinary interview he was invited to and the criminal interview.  Subparagraph (j):  by the end of 2019 he had received a “show cause” letter.  Going over to page 88, subparagraph (n):

The Commission says that it completed the investigation on 3 April 2020 and that no further investigation of the –

respondent, as he is in this Court:

is contemplated by it under the CC Act.

KIEFEL CJ:   That was an advice to the Attorney‑General, was it?

MR DUNNING:   It was, your Honour, yes.  But can I direct your Honours’ attention to subparagraph (r), you will see it in relatively like terms – matters are communicated to the respondent’s solicitors shortly after that.

Then, may I ask your Honour, please, to notice subparagraph (q) – the exchange in June 2020 between the chair of the PCCC and the then‑chair of the Commission – where the chair of the PCCC raises with the chair of the Commission the prospect of a report being prepared under section 69 in relation to this investigation, and to use the chair of the PCCC’s language:

because it seems like, again, a cultural issue, as we have discussed in relation to the earlier matter?”

The response was a tentative one, but that such a report was in prospect.  In July of 2020, the respondent resigns as ‑ ‑ ‑

KIEFEL CJ:   Could we just pause there for the moment?  How do we read the response of the chair of the Commission?  The Commission is of the view that it has been:

high profile, and it has been in the media.

And “we” – that is, the Commission:

should articulate some of the concerns –

That is the rationale for the preparation of the report.  Is that right?

MR DUNNING:   In our respectful submission, no, that would not adequately set out the rationale for it.  It was ‑ ‑ ‑

KIEFEL CJ:   That is what the Commission is saying.

MR DUNNING:   Yes, and it was an oral exchange on the day in response to – and one needs to see it, in response to what had prompted it.  In terms of the ascertainment of the purposes, we will come to submit one looks at the structure of the legislation, what was contemplated on the provision of such a report, and then what the Commission does in terms of the preparation of that report and, ultimately, the terms of the report.

The respondent resigned as Public Trustee in July of 2020 and that – as everybody accepted and the courts below brought an end to the disciplinary proceedings.  Then, there were further exchanges later in 2020 between the Commission and the appellant’s solicitors regarding the prospect of a report being published pursuant to section 69.  On 11 September 2020, one sees at subparagraph (u), at a private meeting between the PCCC and Commission:

the Commission advised the PCCC that the Commission would be seeking a direction under s 69 –

There was then an exchange of further correspondence and, ultimately, the commencement of the proceedings in the Supreme Court for the declaratory relief, and then the PCCC providing an indication that it would not give the direction under section 69 until the completion of the litigation.

Your Honours, in terms of what was ultimately litigated, there was some amendment to the proceedings as initially commenced.  Indeed, as I will come to indicate to your Honours, section 332 is, originally, one of the provisions of the CC Act that was pursued at first instance.  But could I just give your Honours, please, this reference:  core appeal book page 22, paragraph 55, Justice Davis sets out what were the final terms on which the proceedings were pursued at first instance. Your Honours, may I then turn ‑ ‑ ‑

GORDON J:   Why is that important?

MR DUNNING:   Your Honour, it is ultimately not important.  I was more giving your Honours a reference in case you wanted to see ‑ ‑ ‑

GORDON J:   Okay.

MR DUNNING:   ‑ ‑ ‑ how the proceedings had been framed at first instance.  Your Honours, can I then move to the Crime and Corruption Act, because that, ultimately, is what is ‑ ‑ ‑

GORDON J:   Sorry, may I ask one question about that before you go on.  Is the position there about the denial of procedural fairness?  There was not a declaration sought at that point.

MR DUNNING:   No, the terms of the declaratory relief were in the form that your Honour sees them set out there.

GORDON J:   Thank you.

MR DUNNING:   Sorry, no, Justice Gordon, I was incorrect about that.  May I direct your attention, please, to paragraph 56 on page 23 of the core appeal book.

GORDON J:   I see, thank you.

MR DUNNING:   Yes.  My apologies.  Your Honours, can I then turn, please, to the construction of the Crime and Corruption Act, which your Honours will find in the joint book of authorities in volume 1.  If I can, first of all, ask your Honours, please, to go to page 68 of the volume, and section 35.

KIEFEL CJ:   I think you can take it that we are working from pamphlet copies.

MR DUNNING:   Thank you, Chief Justice, yes.  So, can I take your Honour, please, to section 35(1)(a), so that the anonymous complaint which had been received – and complaints themselves are comprehended by section 36(1) of the Act – so, the complaint that provoked this investigation is a kind contemplated by 36.  The investigation of that complaint was one of the ways in which the Commission performs it corruption functions pursuant to section 35(1)(a) of the Act.

“Corrupt conduct” is defined in section 15 of the Act.  Your Honours will see that, as with many of these permanent corruption commissions, there is quite wide language used to start off with that then has a limiting factor – in the case of the CC Act, by way of illustration, 15(1)(c).  So, there is effectively a proviso that the conduct of the kind identified in (a) and (b) must also amount to either a criminal offence or something that would be a disciplinary breach.  Your Honours will see a like proviso in 15(c).

GORDON J:   Section 15(1) (c) or 15(2)(c)?

MR DUNNING:   My apologies, Justice Gordon, 15(2)(c), yes, thank you.

GORDON J:   Does 15(2) extend the definition?  Is that the way we are to read it?  That it expands the definition?

MR DUNNING:   Yes, it does.  Though, in each case, one cannot ignore the limiting dimension of subsection (c) of each – or part (c) of each of those subsections.  So, if I can give the illustrations why, 15(2)(a):

impairs, or could impair, public confidence in public administration –

Now, there are many things that might meet that description, but of those, a good number could never amount to something that would fit within subsection (2)(c)(ii), much less (2)(c)(i).  Your Honours, “corruption” included suspected corruption.  Your Honours see that at section 22 of the Act – in particular, 22(2), and in the conduct of that investigation of corruption including suspected corruption, the Commission had to have:

regard to its prevention function –

and your Honours see that at subsection 24(g) of the Act.  I will come to deal with the prevention function in a little more detail later on but, for present purposes, it was by force of statute a feature of the investigation of the corruption function to have regard to its prevention functions.

GORDON J:   Am I right that there are in effect three categories:  prevention, crime and corruption functions?

MR DUNNING:   Correct.

GORDON J:   And that they overlap?

MR DUNNING:   Yes.

GORDON J:   Thank you.

GAGELER J:   I am having difficulty following.  We start with section 36, which is the complaint.

MR DUNNING:   Yes.

GAGELER J:   It is about corruption, I think.

MR DUNNING:   Yes.

GAGELER J:   Is “corruption” corrupt conduct or is it a broader concept?

MR DUNNING:   No, “corruption” is corrupt conduct.  So, if I can take your Honours please, to Schedule 2.  It is page 426 of my pamphlet copy.  Your Honours will see the definition:

corruption means corrupt conduct –

Corrupt conduct in itself is defined to send you back to section 15.

GAGELER J:   And then, the Commission picks that up in section 35?

MR DUNNING:   Yes.

GAGELER J:   And which paragraphs of 35(1) are engaged here?

MR DUNNING:   In our submission, your Honour, principally, 35(1)(a), assessing a complaint “involving, corruption made or notified to it”, which would include, we would submit, suspected corruption.  We would also notice 35(1)(f)(ii), though it does not rise as directly, but it may, in the course of the investigation, have relevance, and (g).

GAGELER J:   How do we get to section 24 in that context?

MR DUNNING:   We get to 24, Justice Gageler, by 24(g).  So, rather than it being in the part dealing with corrupt conduct, in the part dealing with prevention, it has that cover‑all – my language – provision.

GORDON J:   Is that the only provision that identifies the overlap?

MR DUNNING:   No, we would also reference 24(b) in that regard, Justice Gordon, and, indeed, (c), (d) and (i).

GORDON J:   Thank you.

MR DUNNING:   Thank you.  Your Honours, to save us turning back, if we are still at 24, can I also ask your Honours please to notice this aspect of section 23, where it is stated in terms that it has a “prevention function” which is:

helping to prevent . . . corruption.

Can I then take your Honours, please, to the purposes of the Commission, section 4, page 27.  Might I inquire, is my pagination the same as your Honours in the pamphlet copy?

KIEFEL CJ:   I think so far it appears to be.

MR DUNNING:   Thank you, your Honour.  So, section 4(1) sets out the main purposes of the Act and may I ask your Honours please to notice subsection (b):

to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.

So, when we come to construe the Act as a whole, part of its context is that stated main purpose, a matter that was important in Justice Freeburn’s reasons in dissent in the Court of Appeal.

KIEFEL CJ:   The Commission here did not make any recommendations touching upon prevention or reduction of the incidence of corruption in the public sector, did it?

MR DUNNING:   No specific recommendations.

KIEFEL CJ:   There is nothing in the report that related to this.

MR DUNNING:   I will have it double‑checked but I do not believe there is something as specific as that, no.  Your Honours, by section 7 of the Act, the Commission has primary responsibility for the achievement of the Act’s purposes, to which I have just take your Honours.  Your Honours, if I can then return to the corruption functions in section 33 of the Act, page 46 of the pamphlet, and may I particularly ask your Honours to notice these aspects of the legislative scheme.  Subsection 33(1):

The commission has the following functions for corruption (the corruption functions)—

(a)to raise standards of integrity and conduct in units of public administration;

(b)to ensure a complaint . . . is dealt with in an appropriate way –

Then at subsection (2) – I might invite your Honours to read subsection (2), rather than read it out to you.  May we particularly draw attention to these aspects of section 33.  Parliament has seen fit to provide that one of the corruption functions of the Commission is the raising standards of integrity and conduct in units of public administration.  When one goes to subsection (2), it has much wider ambit than actual corruption that is found, or not found, because it speaks of investigating:

conduct liable to allow, encourage or cause corrupt conduct –

and likewise in 2(b), “may happen”, at the end.  So, Parliament has seen fit to, in expansive language, define the corruption functions.  Unsurprisingly, because the purpose of the Commission is those that I have taken your Honours to, and it would have not only a historical role in pursuing historical acts of corruption, but also a forward-looking role to try and prevent or curtail insipient corruption, or those matters that may lay the ground for corruption.  One sees that expressed in those parts of section 33 I have just taken your Honours to.

Section 34 sets out some principles for the performing of the corruption functions, and can I direct your Honours’ attention, please, to ‑ ‑ ‑

EDELMAN J:   But 33 also is read with 22, is it not?

MR DUNNING:   Yes.

EDELMAN J:   So that corruption is the suspected corruption as well.

MR DUNNING:   That is exactly correct, your Honour, yes.

GORDON J:   Just for completeness, “unit of public administration”, section 20, includes, relevantly, the Public Trustee?

MR DUNNING:   Yes, it does.

GORDON J:   Thank you.

MR DUNNING:   Your Honours, can I then direct your attention please to section 34(d), “Public interest”:

the commission has an overriding responsibility to promote public confidence –

•in the integrity of units of public administration –

The statutory language could not, in our respectful submission, be more powerful, and if I may take up an exchange I had with the Chief Justice a little earlier, in our respectful submission, language like this is not consistent with the sort of delimiting of the power to report that one saw in Balog, but rather an indication that the Parliament was looking for the Commission, in the ways that it considered appropriate, to try and promote public confidence, and the making of recommendations is undoubtedly one of them.  Critiquing events in the way that happened here, in our submission, is another.  That is not without protections.  They are at section 332, and I will come to those shortly.

Your Honours, might I also direct you to section 35, which is, “How the commission performs its corruption functions”.  I have already taken your Honours – indeed, I hope – I think I have taken your Honours to all of the parts of section 35 that I wish to take you to.  Might I then ask your Honours, please, to go to section 46A.  I should perhaps start at section 46.  Section 46 talks ‑ ‑ ‑

GORDON J:   Did you say 36 or 46?

MR DUNNING:   No, 46.  Sorry, Justice Gordon, section 46 on page 58 of the pamphlet talks about the Commission dealing with complaints.  Your Honours, for completeness, can I give you the definition of “deal with”.  It is dealt with in Schedule 2, page 428 of the pamphlet, and what your Honours will see is to:

deal with, a complaint . . . or matter involving corruption –

which would include suspecting corruption, not only involves the investigation of the complaint and the gathering of evidence – one sees that in (a) and (b) – but can I ask your Honours also please to notice (e):

take other action, including managerial action, to address the complaint in an appropriate way.

So, when one comes to look at the ways of dealing with a complaint in section 46, it has to be read in light of that statutory definition.  Can I then take your Honours, please, to section 46A, page 60 of the pamphlet.  That deals with the matters mentioned in section 33(2).  I do not need to take your Honours back to it – that is the corruption functions – but it is at page 46 of the pamphlet if your Honours wanted the reference.  In respect of 33(2), what 46A provides:

(2)The commission deals with the matter by –

(a)assessing the matter; and

(b)if the commission considers it appropriate, investigating the matter; and

(c)taking the action the commission considers most appropriate in the circumstances having regard to the public interest principle set out in section 34(d).

Which is on page 47 of the pamphlet copy.  So, in fact, in the discharge of its corruption functions, the Parliament has charged the Commission with an investigation that is, in every sense, intended to be prophylactic in relation to corruption, suspected corruption, and insipient or potential corruption calibrated to promoting public confidence in the integrity of the units of public administration.  In doing so, by 46A(2)(c), it is left to the Commission’s discretion to take the action it considers most appropriate in those circumstances.

There is no controversy that the complaints, themselves, would have met the description of “corrupt conduct” if proved – it is just . . . . . but, if proved, they would have amounted to corrupt conduct.  So, there is no issue that the Commission’s power was engaged and, once engaged, the provisions I have just take your Honours to were those which directed and empowered the Commission to act as it did.

Your Honours, might I then move, please, to the Commission’s reporting functions, because it would be peculiar, indeed, if one investigative body, such as the Commission with all of these powers, gave it such a wide remit – instinct – to improve the integrity of public administration and then did not give it the means to communicate that to those who might be advantaged by knowing it or interested in knowing it.

GAGELER J:   Can I just ask a question before you do about what is referred to in the facts as the “show cause process”.  Is that a particular statutory process, or is that just encompassed within the working‑out of the provisions you have taken us to?

MR DUNNING:   It is encompassed in the working‑out and taking of these provisions.  I can check, your Honour.  I think there is a separate provision in relation to the laws that regulate State employees.

KIEFEL CJ:   It is not under the Crime and Corruption Act.

MR DUNNING:   No, not under the Crime and Corruption Act.

KIEFEL CJ:   It would be under public services provisions, would it not? 

MR DUNNING:   Yes, correct.

KIEFEL CJ:   Could you find those for us?

MR DUNNING:   Of course, yes. 

GAGELER J:   Are they coercive?  Is the show cause process coercive?

MR DUNNING:   Sorry, Justice Gageler, coercive in the sense that you have to attend an interview.

GAGELER J:   I am just asking, is it, in any way, coercive?

MR DUNNING:   Well, it is coercive, at least in the sense that if you do not respond – as the respondent did not in this case – you run the risk of it being acted upon, but not coercive in the sense of – as the facts here demonstrate – the respondent was invited to an interview in relation to the disciplinary proceedings and declined to attend.  He offered a reason for why he was not going to attend.

KIEFEL CJ:   You are not suggesting that the Crime and Corruption Commission has a part to play in the show cause procedures?

MR DUNNING:   No, I am not, Chief Justice.

KIEFEL CJ:   That was undertaken by the Attorney‑General, I think.

MR DUNNING:   Correct, because that was the responsible Department, and the responsible Minister, for the Public Trustee.

KIEFEL CJ:   So, it runs in parallel, in effect, to what we are concerned with here.

MR DUNNING:   It does.  Literally, it runs in parallel.  The reason I qualify it in that way is, if one goes back to the definition of “corrupt conduct” that I took your Honours to earlier, there is the obvious prospect of an overlap between the two.  So, if I can give your Honours illustration, 15(1)(c)(ii).  So, the CCC does not deal with the disciplinary proceeding but the prospect of something that is complained of amounting to:

a disciplinary breach providing reasonable grounds for –

termination is one of the controlling features to the definition of corruption – and I will take your Honours to section 49 shortly – that again shows interplay between the Commission and reporting to particular bodies that would have a relevance to that.

GORDON J:   Before you get to the reporting, can I just deal with the factual matter that I cannot clear up.  It will be my fault, and I apologise.  In the report itself – this is in the book of further materials at page 170, at paragraph 142 and onwards – it identifies that recommendations were made to the Public Trustee’s office by way of letter.  That is, separate recommendations of – this is after there is a finding of no corrupt conduct.  As I read it, the Commission then reports – reports is the wrong word – it writes to the Public Trustee’s office and says, we have the following recommendations to make notwithstanding the no finding of corrupt conduct.

Do we have that documentation in the book of materials and is that a play‑out of the provisions you have just taken us to?  In other words, is that the Commission identifying what it thought was the appropriate response, having completed its inquiry into the corrupt conduct?

MR DUNNING:   The answer is yes to your Honour’s second question.  As to the first question, I will find out if it is in the materials.

GORDON J:   Thank you.  So, that preceded any of the reporting that we are now looking at – that step.

MR DUNNING:   Yes.

GORDON J:   And it says there were 19 recommendations made by the Commission to the Public Trustee’s Office.

MR DUNNING:   Yes.

GORDON J:   Thank you.  Sorry, one more question.  Is that usually the way the Commission reports to one of the units of public administration when there is – or is it an available mechanism for it in response to it working out what its response would be to the provisions you have just taken us to?

MR DUNNING:   It is an available mechanism, by reason of the provisions I have taken your Honour to, and I will find out – I will get some instructions on the first of your Honour’s questions.

GORDON J:   Thank you.

MR DUNNING:   Your Honours, before I go to 64, perhaps while we are just on this topic, can I ask your Honours, please, to go to section 49, page 64 of the pamphlet.  This was a provision of some importance to the majority in the Court of Appeal.  Subsection (1):

This section applies if the commission investigates –

or some other matters:

a complaint about . . . corruption and decides that prosecution proceedings or disciplinary action should be considered.

Then, it sets out a series of reports in subsection (2) that might be pursued.  Most relevant for our purposes is 49(2)(f).  Subparagraph (a) deals with the prospect of a criminal offence; (b) to (e), as your Honours will see from their language, deal with a different arm of Government.

Returning to the matter – I think it was your Honour the Chief Justice raised with me – about the disciplinary proceedings running in parallel.  They are not conducted by the Commission, and so, in that sense, they do run in parallel.  But, in fact, there is certain interaction between the Commission and those who would be running those disciplinary proceedings, and that is because the definition of “corrupt conduct” requires consideration of that matter, and if that has occurred and there has been – to use the language of section 49, fourth line, Commission decides that:

disciplinary action should be considered.

Then that takes you to 49(2)(f).  In our submission, section 49 ‑ ‑ ‑

KIEFEL CJ:   Was it acted upon in this case, or are you just referring to this as a power?

MR DUNNING:   No, it was not acted upon, because there was no – sorry, the ‑ ‑ ‑

KIEFEL CJ:   No findings ‑ ‑ ‑

MR DUNNING:   Referral of the Attorney-General was under 49, yes.

KIEFEL CJ:   There were no findings of corrupt conduct, were there?

MR DUNNING:   No, there were not.  So, the referral had been made to the Attorney-General under section 49, but by – that came to an end by the reason of the resignation.  Section 49, in our submission, dealt with a very specific matter, and self-evidently did so, and that is where the Commission had, in the course of its investigation, decided that prosecution proceedings or disciplinary should be commenced, it then provided the machinery for the Commission reporting to the appropriate body to pursue that matter which the Commission had decided would be considered.

GAGELER J:   Was section 35(1)(e) engaged?  Was this a case where there was – the Commission was dealing with a complaint in cooperation with the Attorney-General?

MR DUNNING:   In as much as it made a referral to the Attorney-General, yes, it was being dealt with in cooperation with a unit of public administration, and in so much as it was corresponding with the Public Trustee’s office, in the matter Justice Gordon referred to earlier, it would also ‑ ‑ ‑

KIEFEL CJ:   Which part of “dealing with” involves – is it (c), the referral of the complaint?

MR DUNNING:   Yes.

KIEFEL CJ:   No, it cannot be, because that is:

to start a prosecution or disciplinary proceedings –

so, one needs to be careful, I think, Mr Dunning.  If you are saying, in response to Justice Gageler, that 35(1)(e) was engaged because the Commission was dealing with a complaint in cooperation with the Attorney‑General, you needed to identify which part of “dealing with” is involved if there was a mere referral and then it was left to the Attorney‑General. 

MR DUNNING:   Yes, that is the point.

KIEFEL CJ:   So, was it “dealing with” in cooperation or was it not?

MR DUNNING:   In our submission, there would be “dealing with” in cooperation.  One receives a complaint about the conduct which is allegedly corrupt; the Commission commences an investigation; in the course of that investigation, it decides that consideration should be given to disciplinary proceedings; it then refers to ‑ ‑ ‑

KIEFEL CJ:   But the question is, was is it dealing with the Attorney‑General’s Department in cooperation in relation to the complaint or did it simply refer and leave the matter to the Attorney‑General – in which case, it is not “dealing with” in cooperation.

MR DUNNING:   It is the latter.  In our submission, the expression “cooperation” would be wide enough to contemplate something at that level – that is ‑ ‑ ‑

KIEFEL CJ:   It would have to be undertaking some act with the Attorney‑General if it is cooperating, would it not?  If you have merely made a referral, how are you cooperating with the Attorney‑General thereafter?

MR DUNNING:   Because the cooperation is in relation to the performance of the corruption functions, and if part of that is to refer the subject of the complaint to the appropriate organ to investigate whether disciplinary proceedings should occur, that is cooperation.  In our respectful submission, the distinction is this:  cooperation does not require to act in concert.  It simply requires that – the expression “cooperate” has its ordinary meaning.  It does not mean that the Attorney‑General’s Department, in this case, and the Commission had to do something in concert.  It would be sufficiently met by the Commission arriving at a point, making that decision and contacting the Attorney‑General so that that part of the investigation that had been provoked could be pursued by the appropriate organ of government.

GORDON J:   The reason why the question might be of importance is because, on the statement of agreed facts, it looks as though the Attorney‑General took the action unilaterally to issue the show cause letter.

MR DUNNING:   Can I check that, Justice Gordon and confirm that?  I had not thought that was the sequence of events.

GAGELER J:   I am sorry, Mr Dunning, did you say section 49 is or is not engaged on the facts here?

MR DUNNING:   There was a referral to the Attorney‑General.  So, that would empower the giving of a report under section 49, but whether that happened and how it happened was not something that was litigated between the parties.  It was not an issue that arose in these proceedings.  It was no part of anyone’s case that there was a report under section 49.  The case was conducted on the basis that the basis of the report was section 64.

GORDON J:   So, although 49 was a power referred to by the majority below, one takes it as part of the context of the Act, rather than anything else.

MR DUNNING:   Correct.

GORDON J:  Thank you.

MR DUNNING:   Your Honours, might I then please turn to section 64, which is the reporting power on which we rely.  And your Honours will find that on page 76 of the pamphlet.  Can I ask your Honours please to notice these aspects of section 64:  by subsection (1) the Commission is given choice in relation to reporting in the performance of its functions.  If it chooses to report, subsection (2) sets out what the content of that report should look like, and including subsection (4) which provides that:

The Commission may also include in a report any comments it may have on the matters mentioned in subsection (2)(b).

Which is the objective summary for and against making a recommendation.  And we particularly ask your Honour to notice “oppose or are otherwise relevant to recommendations”.

GORDON J:   Sorry to be really slow, Mr Dunning.

MR DUNNING:   Not at all, Justice Gordon.

GORDON J:   Does the letter of 23 April, which we have not got, is that a section 64 report giving rise to the recommendations that are apparently contained in it?

MR DUNNING:   Your Honour, can I find that out?  I have been shown a passage that actually deals with this issue.  I would just like to, if I may, at the morning adjournment ‑ ‑ ‑

GORDON J:   Okay.  I apologise.

MR DUNNING:   No, not at all, I am sorry.

KIEFEL CJ:   Perhaps that can be done over the morning break which is coming up.  You could perhaps look at that over the morning break.

MR DUNNING:   Yes, that was my intention.  Thank you, your Honour.  Your Honours, may we then turn, please, to have a look at how ‑ ‑ ‑

KIEFEL CJ:   Just before you do, Mr Dunning, while we are on the question of reports or recommendations, there was only one report here, is that – factually, there was only one report – that provided to the committee?

MR DUNNING:   Yes, correct.

KIEFEL CJ:   And copied to the respondent?

MR DUNNING:   Yes, an earlier iteration.

KIEFEL CJ:   There was a draft and then there was a final?

MR DUNNING:   Yes.

KIEFEL CJ:   And that is the only report that was ever produced?

MR DUNNING:   Yes.  Now, your Honours, can I then take you, please, to how the majority dealt with this issue and can I ask your Honours please to take up the core appeal book, and may I ask your Honours, please, to go to page 67 of that book.  The reasons of the majority, Justices McMurdo and Mullins, as her Honour then was, start at paragraph [1] on the previous page, but can I particularly draw your Honours’ attention to these paragraphs, which our ultimate submission will be sitting consistently with the statutory architecture I am taking your Honours to.  At paragraph [6] on page 67, their Honours say that upon the resignation:

the task of the Commission in dealing with the complaint of corrupt conduct was apparently performed.

That succinct statement of approach is borne out later on and expanded upon in the reasons for judgment yet, in our respectful submission, the provisions I have just taken your Honours to indicated that Parliament had entrusted a wider role to the Commission that was not spent simply upon the disciplinary proceedings coming to an end and, in this case, there being no criminal proceedings.  Can I ask your Honours, please, then, to notice paragraph [15] on page 68, and this lay at the core of the majority’s reasons.  The second line:

In essence –

this being why the appeal should be allowed:

is because this is not a report of a kind to which section 69(1)(b) applies, because it is not a report which has been made by the Commission in the performance any of its of its statutory functions.  Section 69 is not itself the source of a further power or duty of the Commission to report –

Now, we would accept that:

and the Commission’s relevant function, namely its corruption function, having been performed, the Commission was not empowered or required –

and their Honours go on.  Can I then take your Honours, please, to paragraph [19] and in the fourth line:

By s 23, the prevention function is concerned with prevention of . . . corruption.  This is not a broader function of helping to prevent conduct by senior public servants and public officials which might be considered to fall short of a standard to be expected of them, but where that conduct does not constitute . . . corruption.

I am ignoring “major crime” for obvious reasons.  Your Honours, about five lines from the bottom:

And again, each of the powers in s 24 is exercised for the purpose of preventing . . . corruption.

Now, in our respectful submission, the provisions I have taken your Honours to indicate a much wider statutory remit for the Commission than that identified by the majority.

GORDON J:   I am sorry to come back to it, but the bottom of [19] was where I picked up, I think, the view they had formed was that the letter of 23 April that had gone to the Public Trustee had performed its function of reporting by recommendation already – and that is why it was not necessary for the further report.  Is that the way I am to read that reasoning:

As the Commission wrote to the Attorney‑General in April 2020 –

and I would add, it would appear also to the Commission, to the Public Trustee’s Office – in a sense, they had done their reporting.

MR DUNNING:   That is the Court of Appeal’s case – that is the majority’s characterisation of it.

GORDON J:   Thank you.

MR DUNNING:   Yes, consistent with the notion that it was spent upon – the trial was spent upon the resignation and therefore the show cause coming to an end.  May I take your Honours, please, to paragraph [26] on page 72.  Their Honours deal with the argument again pressed by my side in this Court in relation to the function set out in section 33, in the third line:

But that does not mean that the Commission has a wider function to do whatever it believes would be likely to promote a standard of conduct to be expected of senior public servants and public officials, beyond raising those standards above a level at which conduct is corrupt.

I will naturally not rehearse before your Honours all of the provisions I took you to, but can I simply remind your Honours of section 4(1)(b) of the Act, which says:

The main purposes of this Act are –

. . .

(b)to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.

so, improvement was part of its statutory charge.  Your Honours, can I then please take you to paragraph [56] of the reasons of the majority, and in particular, your Honours, about six lines into that paragraph:

As we have discussed, it is not the Commission’s function to adjudicate upon allegations of corruption.  Having investigated a complaint of corruption, the task of the Commission is to decide whether prosecution proceedings or disciplinary action should be considered.  If it decides that such proceedings or action should be considered, it may report, not publicly, but to a prosecuting authority, a head of jurisdiction or the chief executive . . . Otherwise, there is no provision by which it is to report.

Now, in our submission, that is a confined operation for the Commission not borne out by the provisions that I have taken your Honours to.  Can I then ask your Honours please to notice ‑ ‑ ‑

KIEFEL CJ:   But you would agree that there is no public reporting as part of its function?

MR DUNNING:   No, in fact, in our submission, that is one of the great misnomers that has featured in the way the case is, we would respectfully submit, run by the respondent.  But publication is an incident of how Parliament organises itself, and to the extent section 69(5) to (7) deal with publication, it is simply to harmonise the position with the Parliament and to make sure there is no difference between a report directed to be given to the Speaker between when the Parliament is sitting and when it is not.  I will come to deal with 69 in some detail.  So, in our submission ‑ ‑ ‑

KIEFEL CJ:   I think we might be at cross‑purposes.

MR DUNNING:   Sorry, your Honour.

KIEFEL CJ:   That might be how tabling of a report is dealt with under section 69.  I do not think you have relied upon that as part of a reporting function.  But at paragraph [56], the Court of Appeal is saying that it does not – it is not part of its function to report publicly, that is, itself, to report publicly.  You do not have any difficulty with that?

MR DUNNING:   No, we have no difficulty with that, no.

KIEFEL CJ:   So, the Court of Appeal is saying it is confined to reporting to “a prosecuting authority”, which would be the Attorney‑General, one would assume, or the DPP, directly.

MR DUNNING:   DPP.

KIEFEL CJ:  

a head of jurisdiction or the chief executive officer of the relevant unit of public administration –

that is where recommendations will be made.  Is there anything that the Court of Appeal has missed there?

MR DUNNING:   No, in respect of section 49, that is correct, but sections 64 and 69 are in a different category.  The Court of Appeal ‑ ‑ ‑

GAGELER J:   So, Mr Dunning, in relation to section 64(1), you have to find the Commission performing one or more of its functions, as I understand it ‑ ‑ ‑

MR DUNNING:   Yes.

GAGELER J:   ‑ ‑ ‑ and then, in so doing, it can report.  Which precise functions is the Commission performing in proffering this report?

MR DUNNING:   Certainly.  It is dealing with its corruption functions.  In section 33, the investigation it was conducting was in the course of its corruption functions.  In terms of reporting on the performance of its functions, we would call in aid 31(1)(a) ‑ ‑ ‑

KIEFEL CJ:   Sorry, section 31 ‑ ‑ ‑

MR DUNNING:   Sorry, 33.  My apologies.

KIEFEL CJ:   Section 33(1)(a).

MR DUNNING:   Sections 33(1)(a), 33(2)(a)(i) and (b), 34(d), and by operation of 24(g) ‑ ‑ ‑

KIEFEL CJ:   I am sorry, I missed that last one.

MR DUNNING:   Section 24(g).  By operation of 24(g).  Picking up 24(b), (c), (d), and (i).  Sorry, your Honours, I may not have given you a reference to 33(1)(b), as well.

GAGELER J:   It is out of 35, ends in 33.

MR DUNNING:   Sorry, your Honour?

GAGELER J:   In proffering this report, we have moved beyond 35.  Section 35 is not the function being performed – or it is?

MR DUNNING:   Oh, sorry, it is ‑ ‑ ‑

GAGELER J:   Yes.

MR DUNNING:   ‑ ‑ ‑ because the – what emerges out of the assessment of the complaint in 35(a) then takes one to 35(f) and 35(g).

KIEFEL CJ:   But that is how it performs its corruption functions.  It is not itself a corruption function.  Section 35 deals with how it goes about the corruption functions, it is not to identify the function itself.

MR DUNNING:   No, that is why I had ‑ ‑ ‑

KIEFEL CJ:   You are really left with 33, are you not?  And read by reference to the principles stated in 34, if needs be, but it is really 33.

MR DUNNING:   It is essentially 33, and that is where I started, but one should not ignore how 24(g) picks up the prevention function, particularly when one reads that with the objectives of the Act.  When one talks of a corruption function, it is not possible to divorce the execution of the corruption function by the Commission from ‑ ‑ ‑

KIEFEL CJ:   So, it is corruption and prevention function.

MR DUNNING:   Yes.

GORDON J:   I keep going back to it.  We have already had the report to the Public Trustee which would fall within the same reporting functions.  So, they are the same functions for both the report to the Public Trustee and now this report?

MR DUNNING:   Yes.  So, the Commission might make more than one report.  Perhaps, if I pick up that to illustrate the point.  In the execution of its functions and the powers that Parliament has entrusted to it to decide how best to pursue its corruption functions and preventative function, it might – as it did here – provide a report directly to the Public Trustee as to ways in which it might improve at an operational level what it is doing and it might, similarly, provide to the parliamentary committee for the parliamentary committee to decide – not the Commission – whether there should be a referral of that report to the Speaker.

Your Honours, may I return, please, to the majority judgment at paragraph [58] on page 80 of the core appeal book.  Your Honours will see that their Honours return to this reasoning that:

the Commission’s corruption functions do not extend to addressing conduct which, whilst falling short of a proper standard of performance, is not corrupt conduct.  The Commission’s function of raising standards of integrity and conduct in units of public administration is one of its “functions for corruption”.

Then, if I can take your Honours, please, to – their Honours refer in paragraph [59] to “dealing with” – and will take your Honours to the definition if we go over the page:

By providing this report, the Commission would not be addressing the complaint.  The Commission has already addressed the complaint:  it has completed its investigation and the outcome is that there will be no criminal or disciplinary proceeding.

In our respectful submission, that starkly demonstrates the limited operation, contrary to the breadth of the provisions of the Act that I have taken your Honours to, that the majority proceeded on.  It is, in our respectful submission, not right, as the majority held, to conclude that the Commission’s functions were completed simply upon the ascertainment of whether there should or should not be criminal or disciplinary proceedings recommended.

KIEFEL CJ:   The foreword of the report that is set out at paragraph [58] of the Court of Appeal, what is the standard expected of them?  It is not a reference to corrupt conduct, is it, because there is no finding.

MR DUNNING:   No.

KIEFEL CJ:   It is a standard which relates to public servants and public officials in the performance of their office more generally, is it?

MR DUNNING:   Yes, and it is a foreword that is referable to the body of the report, and it was the foreword that had not been shown to the respondent.  But it was, in effect – as forewords are – an epitome of what was set out in more detail in the report itself.  Your Honours, can I give you, please, two other references in this regard.  Paragraph [67] of the majority’s judgment, page 81:

The Commission performed its corruption functions by itself dealing with this complaint.

It then sets out the manner which:

There was no other action to be taken by the Commission to address the complaint.

That led to the conclusion one sees at paragraph [68].  Now, your Honours, in fact, during the course of the investigation and prior to seeking any direction from the Commission, the respondent did have protections under the Act and, in particular, section 332.  Can I take your Honours, please, to the joint book of authorities ‑ ‑ ‑

KIEFEL CJ:   What is the relevance of this, Mr Dunning?

MR DUNNING:   Well, the complaint ‑ ‑ ‑

KIEFEL CJ:   It is what could have been done, but was not done.

MR DUNNING:   Because the complaint and the reliance on cases like Ainsworth and Balog is directed at saying there were reputational issues at stake here, and the construction, which the primary judge accepted and Justice Freeburn in the minority accepted, would leave those matters unprotected.  The point was simply to make ‑ ‑ ‑

KIEFEL CJ:   Was this to go to some discretion about whether a declaration should be made?

MR DUNNING:   No, it does not go to that.  It goes to, in effect, the contextual argument, as we perceive we are meeting, that one arrives at a construction of the Act about its operation because of concerns around publicity of the report.

KIEFEL CJ:   To the effect that you might read certain provisions more strictly because of the effect.

MR DUNNING:   Yes.

KIEFEL CJ:   I understand.

MR DUNNING:   Thank you.  Your Honours, can I just give your Honours the reference to it, at page 362.  Your Honours will see in section 332, provision is made for somebody who considers – somebody in the position of the respondent who considers the investigation “is being conducted unfairly”, or 332(1)(b):

that the complaint . . . does not warrant an investigation –

to approach the court for relief.

KIEFEL CJ:   But that is limited to the stage at which the Commission is investigating.

MR DUNNING:   It is.  That is correct.

KIEFEL CJ:   But we have passed that stage at this point.

MR DUNNING:   We have.  And the relief one can see is in 334.  Your Honours will recollect, from the nature of the omitted application set out in Justice Davis’ judgment that I took your Honours to, that initially that featured in the proceedings but, ultimately, Justice Davis dismissed that and that matter has not been referred to again, because it was decided before Justice Davis on the basis that there was authority that 332 could only be availed of while the investigation was underway and the evidence was the investigation had come to an end.  I will not take your Honours to it, but Justice Davis deals with that topic starting at page 55 of the core appeal book, paragraph [168] and onwards with his reasons.

A feature of the case that is put against us and featured in the reasons for judgment is that there was something adjudicative or judicial or quasi‑judicial in the Commission’s investigation or report.  Now, in our respectful submission, that is contrary to what this Court held in Today FM in relation to what reports of this kind in fact do.  Can I ask your Honours, please, to go to volume 4 of the joint appeal book, starting at page 859 of the joint appeal book. 

GORDON J:   What is that document, please?

MR DUNNING:   Your Honour, it is the decision of this Court in Australian Communications and Media Authority v Today FM. 

GORDON J:  Thank you.

MR DUNNING:   Joint bundle of authorities, volume 4, page 859.  Can I give your Honours, please, the passages at 63 to 64 in the judgment of Justice Gageler, pages 887 and 888 of the joint book; also paragraph 81 of your Honour Justice Gageler’s reasons; also paragraphs 58 to 59 of the joint reasons of Chief Justice French and Justice Hayne, your Honour the Chief Justice, Justices Bell and Keane.

In our respectful submission, consistent with the reasoning in that case, there was nothing in what the Commission was doing here or the report that is complained of, that would meet the description of adjudicative, judicial, or quasi‑judicial ‑ ‑ ‑

KIEFEL CJ:   Is that put against you?

MR DUNNING:   Yes, it is put against us, your Honour.  It is dealt with in our learned friend’s written submissions at paragraphs 67, 68, and 72, and it appears to have been of some importance to the majority.  Can I take your Honours, please, to paragraph 34 of the majority’s reasons on page 74 of the core book, where their Honours’ second sentence:

Its role is to investigate, and not to adjudicate upon the merits of the complaint.

And, likewise, if I can take your Honours, please, to paragraph 56.  I think I have taken your Honours to the passage already, but line 6:

As we have discussed, it is not the Commission’s function to adjudicate upon allegations of corruption.

Your Honour, the decision in Balog is put against us.  In our respectful submission, it is disposed of as shortly as appreciating the difference between the statutory regimes in question.  Can I ask your Honours, please, to take up volume 4 of the joint book of authorities, and can I ask your Honours, please, to go to page 895 of that book, in the decision of the judgment of the Court, which is Chief Justice Mason, Justices Deane, Dawson, Toohey, and Gaudron.

May I ask your Honours, please, to go, first of all, to page 630 of the report, 900 of the joint appeal book.  At the foot of that page, their Honours set out the relevant statutory provision in the ICAC legislation; it was section 74.  Can I ask your Honours, please, to notice these aspects, 74(1):

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

Section (4) provided the furnishing of it to the presiding officers.  And then (5):

A report may include a statement of the Commission’s findings as to whether there is or was any evidence or sufficient evidence warranting consideration of –

and then it enumerates certain topics.  Went on to go and consider the extent of the reporting remit to the ICAC, they say this – if I can take your Honours, please, to page 633 of the report, 903 of the book, middle of the page:

Moreover, the quite guarded way in which s. 74(5) is phrased lends support to the construction for which the appellants contend.

And their Honours expand on why it was guarded.  In the next paragraph:

If the legislature had intended, by allowing or requiring the Commission to report, to confer upon it a power to express a finding concerning the criminal liability of a specified person, then it would have been unnecessary to include sub‑s. (5) –

KIEFEL CJ:   This is quite different legislation.

MR DUNNING:   Completely, and in that case, your Honours, can I simply give you these other references – page 634, starting at about point 4 on the page:

It would at least be consistent with that concern to conclude that the relevant limits of s. 74 are defined by sub-s. (5) –

through to the end of the next paragraph, and at the foot of that page – the last word on the page, in fact, “moreover”, and the whole of that paragraph.  Balog was a case decided in terms on the basis of its ‑ ‑ ‑

KIEFEL CJ:   Particular provisions.

MR DUNNING:   Correct.  It does not ‑ ‑ ‑

KIEFEL CJ:   Section 74(5) is not a provision found in the Act here.

MR DUNNING:   No, or even closely aligned to it, we would submit.  Is that a ‑ ‑ ‑ 

KIEFEL CJ:   That might be a convenient time, Mr Dunning.  The Court will adjourn for fifteen minutes.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honours.  Your Honours, can I just deal with a couple of matters that arose before we broke.  Justice Gordon, in answer to your question, the letter to the Public Trust Office of 23 April 2020 is not in evidence but we are having copies made, should it be convenient to receive a copy.  But the substance of that recommendation is set out in the draft report.  It is in the respondent’s book of further materials, starting at page 170 of that book, starting at paragraph 142, under the heading, “Recommendations to PTO” – I am sorry, the final report.

Your Honours will see the response of the Public Trust Office referred to at paragraphs 150 and 151.  In terms of the suite of powers that were given to the Commission, in our submission, properly characterised, in the performance of those tasks under section 35(1) – including as 24(g) picks that up – one receives the referral to the Attorney‑General under section 49(2)(f) – I have already taken your Honours to the provision, I will not take you it again ‑ ‑ ‑

GORDON J:   Where do I see that, did you say?

MR DUNNING:   If I can ask your Honours, please, to go to – still in the respondent’s further bundle – page 166, to paragraph 97, at the top of that page.

GAGELER J:   In your submission, are we allowed to draw inferences of fact from this document?

MR DUNNING:   Yes, because it is the basis upon which the parties have litigated the proceedings and the person who is proffering it is the respondent and, as the applicant, I am adopting it.  So, in those circumstances, your Honours could draw those inferences if, ultimately, they ‑ ‑ ‑

GAGELER J:   I am really alluding to your parliamentary privilege argument.

MR DUNNING:   I understand, your Honour, which I intend to move to promptly.  So, your Honour, there was ‑ ‑ ‑

GORDON J:   So just so I am clear, I just want to make three facts and then I am clear.  So, the Commission completes its investigation on 3 April 2020.  I am looking at the core appeal book 88, subparagraph (n).

MR DUNNING:   Yes.

GORDON J:   Then it takes three steps:  it writes to the Attorney‑General, consistent with 49(2)(f); it writes to the Public Trustee setting out its recommendations arising out of that investigation; and third, it writes to Mr Carne’s solicitors to tell them the investigation is over and there will be no criminal charges at that time.

MR DUNNING:   Well, the CCC is not asking for them to be considered.  That is the extent of that ‑ ‑ ‑

GORDON J:   I mean to say that is ‑ ‑ ‑

MR DUNNING:   Sorry, I did not mean to split hairs, if your Honour ‑ ‑ ‑

GORDON J:   So those three reporting mechanisms had taken place in April 2020.

MR DUNNING:   That is correct.  So, we would say that what the case really involves, in terms of that communicating – leave aside the communications with the respondent himself – that 49(2)(f), which I have just taken your Honours to, the information to the Public Trustee that your Honour has raised with me, in our submission, that is provided under section 24(e) of the Act, which is page 38 of the pamphlet copy, together with section 60, which is page 75 of the pamphlet copy, subsection (2)(a).

KIEFEL CJ:   Mr Dunning, given those reports, under section 49, who was there left to report to?

MR DUNNING:   Well, there were – when your Honour says who was there left to report to ‑ ‑ ‑

KIEFEL CJ:   Yes, who?  The prosecuting authority has been – well, taking the Attorney‑General as the prosecuting authority, or a decision was made not to ‑ ‑ ‑

MR DUNNING:   Not to prosecute, yes.

KIEFEL CJ:   ‑ ‑ ‑ report to the DPP, the chief executive officer of the Public Trustee Office has been reported to.  There is no one else, there is no other body in section 49 referred to, to report to.

MR DUNNING:   That is correct.  For the purposes of the section 49 report, that is correct.  But section 64 contemplates that a much broader power to report, reflective of the – and that is the point we lost on below.  The majority’s view was the Commission’s functions were spent upon determining whether there should be any recommendation of criminal charges or disciplinary proceedings and there was nothing left to do after that.  Now, in our submission, section 64 makes clear that the Commission has much wider functions.

GORDON J:   It did not report to the Public Trustee.  Was that a section 64 report?

MR DUNNING:   No, in our submission, that was a 24(e) and section 60.

GAGELER J:   One way of looking at what occurred is in terms of section 33(1)(b).  There had been a complaint and it had been dealt with in April.

MR DUNNING:   And that assumes that the extent of the Commission’s statutory power in respect of a complaint is to decide two and two only things:  should they recommend criminal charges and should they recommend disciplinary proceedings – and for the Commission not to have a function outside that.  In our submission, that is just not consistent with the statutory language – just one of the ways in which it would ‑ ‑ ‑

KIEFEL CJ:   So, you read 33 and 64 as giving a wider power of reporting?

MR DUNNING:   I am not meaning not to respond directly to your answer, Chief Justice, in my submission ‑ ‑ ‑

KIEFEL CJ:   Sorry, reporting about complaints.

MR DUNNING:   Yes.  So, 64(1):

The commission may report in performing its functions.

Those functions include the 33 functions that are not delimited to just questions of whether there should be disciplinary proceedings or whether there should be criminal proceedings, but much, much wider, picking up in turn the ‑ ‑ ‑

KIEFEL CJ:   So, you draw a distinction in section 49, which is to do with reports about complaints – the Commission reports general in section 64 are something other than reports about complaints.

MR DUNNING:   In our respectful submission, more limited than that.  Section 49 is calibrated to deal with the sorts of complaints that ‑ ‑ ‑

KIEFEL CJ:   No, section 64 does not have any reference to complaints – it is talking much more generally about reporting, including recommendations to the Police Minister – obviously about crime, and perhaps corruption – more generally in the performance of its functions.  What you would have to do is to explain how this report is that kind of report.

MR DUNNING:   A section 64 report?

KIEFEL CJ:   A section 64 report.  And you, in that regard, rely on section 33, as I understand it.

MR DUNNING:   Correct, your Honour, yes – and 24 as well, for picking up those functions.  If I may just complete the answer – 64(1):

The commission may report in performing its functions.

So, there is an unfettered power to ‑ ‑ ‑

KIEFEL CJ:   While it is a Commission that can report – informing its functions – but, relevantly, you would say that the report in reliance on section 64 is – the report in question is not a report about a complaint deal with by the Commission, it is more general, is it not?  To come under section 64, it is more generally, in relation to its corruption functions, it is making a report – but it is not making a report about a particular complaint.  That is how you would have to frame it, would you not?

MR DUNNING:   In our respectful submission, no.  So, there is no – sorry, I did not mean to cut your Honour off.

GORDON J:   Sorry, I did not hear what you said then.

KIEFEL CJ:   No, I am just saying that you seem to be not dealing with the particular matters to which section 49 refers.  You are referring to matters more general, but having regard to the complaint in fact made, and somehow running the two together, whereas the Act itself seems to draw a distinction between reports done for different purposes.

And it is because of the text that says the document is “proceedings in the Assembly” – section 9(2)(d) – that, in our submission, it is then irresistible that, as a matter of enacted language, so long as it can be said that declaring that which claims to be a report not to be a report, because of what in administrative law we would call jurisdictional error, leading to what in jurisdictional or administrative law would lead to it being void, more generally speaking, in one of the chameleon uses of the word, “unlawful”, certainly “unfair” or “unjust”, if it be procedural fairness that is the standard which has been transgressed.

Those are, in our submission, not capable of being seen – any of them – as being in some category which is drastic, complete as to the reversal of the claimed juristic character of the document or the decision or act that it records or constitutes, compared to others which, of a kind not easy to imagine, are so much more serious that they are impeachment or questioning but not the total invalidation or denunciation as unlawful.

It is for those reasons, in our submission, that the notion of a middle ground is one which supposes that there is something more serious than the

complete stripping away of the ostensible character of a document that will answer the description of impeaching or questioning, while the complete stripping away of the ostensible nature of the document is apparently not impeachment or questioning.

The problem comes to this.  We respectfully submit that the impulse or imperative for the rule of law, including keeping persons bound by law within the limits of the law, such as official personages, produces the notion that it is entirely salutary in the public interest at a level which must be shared, surely, by chambers of Parliament that there be a tribunal peculiarly fit for that – the Supreme Court – to adjudicate the question, and that, in our submission, entirely misses the point of the shifting of the limits by section 9 for the article 9 protection given by section 8.  That whole point is to say that there will be cases that otherwise cry out for justice that cannot be entertained by courts of law because of where we have now newly set the limits of these institutions’ intention.

EDELMAN J:   Is that, in effect, really, just to say that impeached or questioned cannot have a different meaning in its extension in section 9 than it did in section 8?

MR WALKER:   I hope it says more than that, but it certainly says that, yes.

EDELMAN J:   What more does it say, then?

MR WALKER:   Well, it says in particular that it will not matter how deserving or pressing the claim for justice in a court of law is; it will still be impeaching or questioning if the aim of it is to, say, invalidate or completely impugn the claim to its legal character of something like an official report.

So, it will never be – article 9 does not diminish in its potency as the scandal of an injustice unadjudicated appears.  So, I am saying that as well.  But I am certainly saying the extension by section 9, unless there is some connection between the two of those propositions, the extension of section 9 certainly is not a reason, anachronistically, to read in a way that will not be found either in dictionaries or in practice these strong words impeached or questioned.

I am sorry for leaving three minutes unoccupied, your Honours, but that is all I want to say.

KIEFEL CJ:   We do not mind, Mr Walker.  The Court adjourns to 9.30 am for pronouncement of orders and otherwise until 10.00 am.

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 JUNE 2023