Knightsbridge North Lawyers Pty Ltd v State of New South Wales (No 2)

[2019] NSWSC 45

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Knightsbridge North Lawyers Pty Ltd v State of New South Wales (No 2) [2019] NSWSC 45

Hearing dates:

14 November 2018, 22 November 2018 and 14 December 2018

Date of orders:

06 February 2019

Decision date:

06 February 2019

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

(1)   The summons is dismissed.

 (2)   Unless the parties approach to be heard within 14 days, Knightsbridge is to bear the first and second defendants’ costs, as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Whether appointments of the Chief Commissioner and Commissioners of ICAC invalid – s 64A Independent Commission Against Corruption Act 1988 (NSW) – Consequence of failing to make a written referral of the appointment of the Chief Commissioner to Parliamentary Joint Committee after Independent Commission Against Corruption Amendment Act 2016 (NSW) came into force – Whether s 64A required Joint Committee to consider referred appointments for at least a day before making and communicating its decision and appointments being made – Consequence of consultation required by s 5(2) of the Independent Commission Against Corruption Amendment Act being undertaken before Chief Commissioner appointed – appointments valid - application dismissed – costs

 

STATUTORY INTERPRETATION - Transitional provisions – Whether clause 19A of the Amendment (Commissioners) Regulation 2017 (NSW) valid – Whether clause 19A “of a savings or transitional nature” – Effect of s 26 of the Interpretation Act 1987 (NSW) – regulation valid

 

EVIDENCE — Relevance – Opinion required by s 7(c) of the Subordinate Legislation Act 1995 (NSW) – presumption of validity – s 45 Interpretation Act and s 9(1) Subordinate Legislation Act – opinion not relevant

EVIDENCE — Privileges — Client legal privilege – Whether opinion required by s 7(c) of the Subordinate Legislation Act 1995 (NSW) privileged under s 118 of the Evidence Act 1995 – Whether the State was a client of the Attorney or Parliamentary Counsel who gave the opinion – opinion unlikely to be privileged

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Independent Commission Against Corruption Amendment Act 2016 (NSW)
Independent Commission Against Corruption Amendment (Commissioners) Regulation 2017 (NSW)
Interpretation Act 1987 (NSW)
Subordinate Legislation Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Cassell v The Queen (2000) 201 CLR 189; [2000] HCA 8
Forrest & Forrest Pty Ltd v Wilson (2017) 346 ALR 1; [2017] HCA 30
Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55
Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387
Kutlu v Director of Professional Services Review [2011] FCAFC 94
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop (2010) 79 NSWLR 217; [2010] NSWSC 1253
SAS Trustee Corporation v Miles [2018] HCA 55
Shanahan v Scott (1957) 96 CLR 245 at 250; [1957] HCA 4
State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160
State of New South Wales v Jackson [2007] NSWCA 279
Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396

Texts Cited:

Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (3rd ed, 2014, LexisNexis Butterworths) at 6.4

Category:

Principal judgment

Parties:

Knightsbridge North Lawyers Pty Ltd
ABN 99 154 559 172 (Plaintiff)

 

State of New South Wales (First Defendant)
Independent Commission Against Corruption purportedly constituted by the Third, Fourth and Fifth Defendants (Second Defendant)

 

The Honourable Peter Hall QC in his capacity as the Chief Commissioner of the Independent Commission Against Corruption purportedly appointed pursuant to section 5 of the Independent Commission Against Corruption Act 1988 (NSW) (Third Defendant)

 

Patricia McDonald SC in her capacity as a Commissioner of the Independent Commission Against Corruption purportedly appointed pursuant to section 5 of the Independent Commission Against Corruption Act 1988 (NSW) (Fourth Defendant)

Stephen Rushton SC in his capacity as a Commissioner of the Independent Commission Against Corruption purportedly appointed pursuant to section 5 of the Independent Commission Against Corruption Act 1988 (NSW) (Fifth Defendant)

Representation:

Counsel:
B K Nolan (Plaintiff)
A Bell SC and Mr S Robertson (First and Second Defendants)

  Solicitors:
Knightsbridge North Lawyers Pty Ltd (Plaintiff)
Crown Solicitor’s Officer (First and Second Defendants)

File Number(s):

2018/292114

Publication restriction:

Nil

Judgment

1. In its “Operation Skyline” investigation the Independent Commission Against Corruption is investigating the activities of the Awabakal Local Aboriginal Land Council under the Independent Commission Against Corruption Act1988 (NSW). That investigation concerns the proposed sale and development of properties which the Land Council owns, as well as whether any director of its Board acted dishonestly and/or in breach of his or her duty, in agreeing to or purporting to retain or retaining Knightsbridge North Lawyers Pty Limited, to act for the Land Council on the proposed sale and development.

2. ICAC has summoned Knightsbridge to appear at its public inquiry into these matters.

3. In March 2018 Fagan J dismissed Knightsbridge’s application to restrain ICAC from pursuing this inquiry: Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387. It is thus proceeding.

4. In these proceedings Knightsbridge now challenges the validity of the appointment of ICAC’s Chief Commissioner and Commissioners, the third to fifth defendants, to their offices. Chief Commissioner Hall and Commissioners McDonald and Rushton have entered submitting appearances. Knightsbridge also challenges the validity of the Independent Commission Against Corruption Amendment (Commissioners) Regulation 2017 (NSW).

5. The relief sought by the further amended summons which Knightsbridge was given leave to file when the hearing commenced, sought:

“1.   A declaration that Independent Commission Against Corruption Amendment (Commissioners) Regulation 2017 (NSW) (No. 116 of 2017) (the Commissioners Regulation) is invalid and of no effect.

2.   A declaration that the purported referral made pursuant to the Commissioners Regulation of the Third Defendant to the Committee on the Independent Commission Against Corruption, constituted under the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act), was invalid and of no effect.

3. A declaration that the purported referral made pursuant to the Commissioners Regulation of the Fourth Defendant to the Committee on the Independent Commission Against Corruption, constituted under the ICAC Act was invalid and of no effect.

4. A declaration that the purported referral made pursuant to the Commissioners Regulation of the Fifth Defendant to the Committee on the Independent Commission Against Corruption, constituted under the ICAC Act, was invalid and of no effect.

4A.    In the alternative to prayer 2, a declaration that the purported referral made 7 August 2017 of the Third Defendant to the Committee on the Independent Commission Against Corruption, constituted under the ICAC Act, was invalid and of no effect.

5.   A declaration that the purported appointment of the Third Defendant as the Chief Commissioner of the Second Defendant on 7 August 2017 was invalid and of no effect.

6.    A declaration that the purported appointment of the Fourth Defendant as a Commissioner of the Second Defendant on 7 August 2017 was invalid and of no effect.

6A.    In the alternative to prayers 3 and 4. a declaration that the purported referral made 7 August 2017 of the Fourth and Fifth Defendants to the Committee on the Independent Commission Against Corruption, constituted under the ICAC Act, was invalid and of no effect.

7.   A declaration that the purported appointment of Fifth Defendant as a Commissioner of the Second Defendant on 7 August 2017 was invalid and of no effect.

8. A declaration that the purported exercises by the Third Defendant and or the Second Defendant as constituted under s 5 of the ICAC Act of the functions conferred by the provisions of Part 4 of the ICAC Act in respect of a series of transactions purporting to deal with land, owned by the Awabakal Local Aboriginal Land Council between 2014-2016, styled "Operation Skyline", is invalid and of no effect.

9. A declaration that all the evidence, documents and material obtained by the Third Defendant and Second Defendant in the course of the exercise of the functions conferred by the provisions of Part 4 of the ICAC Act in respect of the subject matter of "Operation Skyline" has been illegally obtained.

10.   An order in the nature of a writ of prohibition that the Second Defendant and Third Defendant take no further step in respect of the investigation and public inquiry into the subject matter of "Operation Skyline".

11.   Costs.

12.   Such further and other orders as the Court deems fit.”

6. During the course of the hearing, however, Knightsbridge submitted that the relief it sought raised a question arising under s 78B of the Constitution. While that was not conceded, directions were then agreed by the parties as to the formulation of amendments to Knightsbridge’s further amended summons, to deal with the issue so raised; the provision of a draft s 78B notice; and an outline of Knightsbridge’s submissions on the claimed Constitutional issue.

7. The proposed amendments and the giving of the s 78B notices were later agreed, with the result that the leave Knightsbridge sought to further amend its pleadings was granted and further consent orders were made. It transpired, however, that Knightsbridge did not comply with those orders, having decided that it did not wish to pursue the matter which it had earlier contended raised the Constitutional question. In the result, by consent, the leave to amend the further amended summons was later revoked.

8. For the reasons which follow, I am satisfied that none of the relief Knightsbridge finally pressed may be granted and that accordingly, its application must be dismissed.

What remained in issue.

9. What was in issue when the hearing commenced was identified in Knightsbridge’s submissions in reply to be:

“a. Did s 117 and Schedule 4, clause 1 of the ICAC Act, as it stood at 31 March 2017, authorise the making of the Amendment Commissioners Regulation?

b. Does a failure to abide by the requirements of s 64A, Schedule 1, clause 2 and s 5 of the ICAC Act, as amended, invalidate the appointments of the Third to Fifth Defendants?

c.   Can the de facto officer's doctrine operate to preserve the validity of the constitution of the ICAC and the exercise of functions by otherwise invalidly appointed Commissioners?”

10. In opening it was explained for Knightsbridge that the questions which on its case arose to be resolved were, however, capable of being reduced to a single question: did the appointments of the third to fifth defendants on 7 August 2017 conform to the requirements of the ICAC Act, which came into force that day? The answer to that question depended upon:

1. The nature of the statutory power to appoint the Chief Commissioner and Commissioners, Knightsbridge contending that it was “absent until indispensable preliminary conditions to its exercise have been met”;

2. Whether cl 19A of the 2017 Regulation authorised any step done in apparent breach of such conditions, as constituting a valid step in the statutory scheme regulating those appointments;

3. If the 2017 Regulation was invalid, whether the statutory requirements for valid appointment were satisfactorily complied with on 7 August 2017; and

4. If the appointments were invalid, whether the common law de facto officer’s doctrine revived, or made good the exercise of functions under the ICAC Act, by the putative Commissioners.

11. Knightsbridge also finally contended that the appointments were invalid, because the Parliamentary Committee on the Independent Commission Against Corruption constituted under the ICAC Act, which was there given power to veto the appointments, could not have notified the Minister of its decision under s 64A that it would not exercise that power, prior to 8 August 2017.

12. The State did not concede either that there had been any failure to comply with applicable statutory requirements, or that the 2017 Regulation was invalid. Its case was further that if there had been any failure to comply with a statutory requirement when the appointments were made, the Parliament did not intend that the consequences was the invalidity of the appointments: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] - [93].

13. On Knightsbridge’s case, that raised for consideration matters dealt with in Forrest & Forrest Pty Ltd v Wilson (2017) 346 ALR 1; [2017] HCA 30, with the result that it would still be concluded that the appointments were invalid.

14. At the hearing there was also an issue as to the production Knightsbridge sought of an opinion required to be given under s 7(c) of the Subordinate Legislation Act1989 (NSW). I concluded production of that opinion was not required, because it was not relevant to anything which lay in issue between the parties. Reasons for that conclusion and an argument advanced by the State as to privilege, are also given below.

What was not in issue

15. There was no issue that:

1. In November 2016 the Independent Commission Against Corruption Amendment Act2016 (NSW) was enacted in order to, amongst other things, re-organise the structure of ICAC by the introduction of the offices of Chief Commissioner and Commissioners, replacing the former single Commissioner structure: s 5 ICAC Act. In the Second Reading Speech the purpose of the 2016 Amendment Act was explained to be to “to improve the structure and governance, decision-making and oversight of the ICAC”.

2. The 2016 Amendment Act did not, however, come into force until 7 August 2017. Until then ICAC thus had but a single Commissioner who could exercise its functions, then Acting Commissioner Blanch: s 4 ICAC Act. His appointment came to an end on 7 August 2017: s cl 41(1) Part 15 Schedule 4 of the 2016 Amendment Act.

3. Until the 2016 Amendment Act came into force, appointment to the former office of Commissioner depended on written referral of the proposed appointment by the Minister to a joint Parliamentary committee of 3 members of the Legislative Council and 8 members of the Legislative Assembly, known as the Committee on the Independent Commission Against Corruption: ss 63, 65 and the definition of “Joint Committee” in s 3.

4. The Joint Committee was empowered to veto such proposed appointments under a procedure prescribed in s 64A. It then provided:

“64A Power to veto proposed appointment of Commissioner or Inspector

(1) The Minister is to refer a proposal to appoint a person as Commissioner or Inspector to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.

(2)    The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.

(3)    The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.

(4)    A referral or notification under this section is to be in writing.”

5. On 27 February 2017 the Chair of the Joint Committee wrote to the Deputy Secretary, Cabinet and Legal, advising that at its 23 February meeting, it had resolved to call for the 2016 Amendment Act to be proclaimed immediately, noting that the Government had established a nominations panel, to identify suitable candidates for appointment to the new offices of Chief Commissioner and Commissioner, which were to come into existence when the 2016 Amendment Act came into force. The Committee also advised of its concern that the Amendment Act be proclaimed, before any proposed nominations to the new offices were referred to it, “so that the Committee will have clarity around the powers under which it is acting”.

6. On 31 March 2017 the Independent Commission Against Corruption Regulation 2010 was amended by the 2017 Regulation, which commenced that day, it being “the day on which it is published on the NSW legislation website”: cl 2. The explanatory note to this Regulation indicated that its object was:

“to amend the Independent Commission Against Corruption Regulation 2010 to make a transitional provision relating to the first appointment of the Chief Commissioner and other Commissioners of the Independent Commission Against Corruption who are to take office on the commencement of the Independent Commission Against Corruption Amendment Act 2016. Before such a Commissioner is appointed, the joint Parliamentary Committee on the Independent Commission Against Corruption must be given the opportunity to veto a proposed appointment and the Chief Commissioner must be consulted about the proposed appointment of the other Commissioners. This Regulation authorises those procedural requirements to be undertaken before the commencement of the Independent Commission Against Corruption Amendment Act 2016.”

7. Clause 19A of the 2017 Regulation made transitional provisions regulating appointments to the new positions of Chief Commissioner and Commissioner, in advance of the 2016 Amendment Act coming into force.

8. At that time, the 2016 Amendment Act not yet having come into force, “Commissioner” was then still defined in s 3 of the ICAC Act to mean “the Commissioner for the Independent Commission Against Corruption”. Clause 1 of Schedule 1 to the ICAC Act then provided the criteria for eligibility for appointment to that office. The definition of ‘Commissioner and that schedule were amongst the provisions amended by the 2016 Amendment Act.

9. On 20 April 2017 the Premier wrote to the Joint Committee, referring to it the proposed appointment of Chief Commissioner Hall, then an acting judge of this Court, at a time when that office had not yet come into existence, as cl 19A permitted.

10. On 21 June 2017 the Premier wrote to Chief Commissioner Hall, to consult with him about the appointment of the two Commissioners, noting that:

“Transitional arrangements have been put in place to facilitate your consideration of the proposed appointments prior to the commencement of the Amendment Act. The Independent Commission Against Corruption Amendment (Commissioners) Regulation 2017 enables the Chief Commissioner to be consulted about the proposed appointment of the other Commissioners, before the commencement of the Amendment Act.”

11. On 22 June Chief Commissioner Hall responded, advising that he would welcome these appointments, for reasons which he explained, given his knowledge of the proposed appointees.

12. On 22 June the Premier then wrote again to the Joint Committee. Amongst other things she withdrew her April referral of Chief Commissioner Hall’s proposed appointment, but again referred his appointment to the Committee, together with the appointments of Commissioners McDonald and Rushton, in order that the Committee could consider the proposed appointments together.

13. The Premier also there advised the Joint Committee that she proposed that the 2016 Amendment Act would be proclaimed to commence on 28 July and asked the Committee consider formally exercising its powers on that day, to coincide with the commencement of that Act. She also advised that she intended to recommend to the Governor that the Acting Commissioner Blanche’s appointment be extended, until the Amendment Act commenced. The Premier also advised that:

“Section 64A of the Independent Commission Against Corruption Act 1988 provides that the Committee has 14 days from the day it is notified of a proposed appointment to veto the proposed appointment. The Committee may seek an extension of this period to consider the matter further and I expect the Committee to do so in relation to the Chief Commissioner and Commissioners until at least 28 July 2017.”

14. On 22 June the Chair of the Joint Committee replied, advising:

“… the Committee decided that it requires a further 30 days (after the initial 14 days) to consider the proposed appointments of the Hon Peter Hall QC to the office of Chief Commissioner of the ICAC and to consider the proposed appointments of Ms Patricia McDonald SC and Mr Stephen Rushton SC to the office of Commissioner of the ICAC”

15. On 24 July the Chair of the Joint Committee wrote to the Acting Deputy Secretary, Cabinet and Legal, the 2016 Amending Act not having been proclaimed as the Premier had foreshadowed. The Chair then advised that the Committee understood that it had until 4 August to consider whether to exercise its veto power in relation to the June referrals and sought “clarity about when the Amendment Act will commence, and an assurance that it will commence prior to 4 August 2017”.

16. On 2 August the Governor proclaimed that the 2016 Amendment Act would came into force on 7 August. It thus took effect from the first moment of that day: s 2 of the 2016 Amendment Act and ss 23(1)(c) and 24 of the Interpretation Act1987 (NSW) – see discussion in Dennis Pearce and Robert Geddes, Statutory interpretation in Australia (3rd ed, 2014, LexisNexis Butterworths) at 6.4.

17. On 3 August the Acting Deputy Secretary, Cabinet and Legal wrote to the Joint Committee, advising:

“In accordance with section 64A of the ICAC Act, and taking into account section 36 of the Interpretation Act 1987, the Committee is to advise the Premier of its position in relation to the proposed appointments to the office of Chief Commissioner and Commissioners by 7 August 2017.

I also note that the Committee has sought clarity about when the Amendment Act will commence. I confirm that the Amendment Act will commence by proclamation on 7 August 2017. It is expected that the proclamation will be published on the NSW Legislation website on 4 August 2017.

Section 24 of the Interpretation Act 1987 provides that if an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day.

This revised commencement date has been selected following consultation with the current Acting Commissioner of the ICAC and the proposed Chief Commissioner of the ICAC.”

18. On 7 August:

1. The office of Commissioner occupied by Acting Commissioner Blanch was abolished when the 2016 Amendment Act came into force at the commencement of that day.

2. Section 64A was amended to provide:

“(1) The Minister is to refer a proposal to appoint a person as a Commissioner or Inspector to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.

(2)    The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.

(3)    The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.

(4)    A referral or notification under this section is to be in writing.”

3. The definition of “Commissioner” in s 3 was amended to mean “the Chief Commissioner or other Commissioner of the Commission appointed under section 5”. Section 5 was amended to provide:

5   The Commissioners

(1)    The Commission consists of a Chief Commissioner and 2 other Commissioners appointed by the Governor.

(2)    The Chief Commissioner is required to be consulted on the persons to be appointed as the 2 other Commissioners.

(3) A Commissioner has and may exercise the functions conferred or imposed on a Commissioner by or under this or any other Act.

(4) Schedule 1 contains provisions relating to the Commissioners.

4. Clause 1 of Schedule 1 was amended to provide:

“(1)    A person is not eligible to be appointed as a Commissioner or as an Assistant Commissioner, or to act in that office, unless the person is qualified to be appointed as or has been:

(a)    a Judge of the Supreme Court of New South Wales or of another State or Territory, or

(b)    a Judge of the Federal Court of Australia, or

(c)    a Justice of the High Court of Australia.

(2)    A person is not eligible to be appointed as a Commissioner or as an Assistant Commissioner, or to act in that office, if the person is:

(a)    a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth, or

(b)    the holder of any judicial office of the State or elsewhere in Australia.”

5. The proposed Chief Commissioner and Commissioners each had the necessary qualifications for appointment to their offices.

6. At 10.58 am, the Chair of the Joint Committee wrote to the Premier advising:

““I refer to verbal advice received today from the Department of Premier and Cabinet (DPC), that you propose to appoint the Hon Peter Hall QC to the office of Chief Commissioner of the Independent Commission Against Corruption (the ICAC). I note further that the Independent Commission Against Corruption (Amendment) Act2016 has commenced by proclamation today.

DPC's verbal advice has been received by the Committee on the ICAC, which met this morning, and has been accepted as appropriate notification for the purposes of section 64A of the Independent Commission Against Corruption Act 1988 (as amended by the Independent Commission Against Corruption (Amendment) Act2016).

As you are aware, the Committee on the ICAC has 14 days after a proposed appointment is referred to it to veto the appointment, and a further 30 days (after the initial 14 days) if it notifies the Premier within the 14 day period that it requires more time to consider the matter.

I wish to advise that the Committee has resolved not to veto the proposal to appoint the Hon Peter Hall QC as Chief Commissioner of the ICAC.

Further, I note that under section 5 of the Independent Commission Against Corruption Act 1988 (as amended by the Independent Commission Against Corruption (Amendment) Act 2016), the Chief Commissioner must be consulted on the persons to be appointed as the two other ICAC Commissioners. Therefore, before the Committee considers any proposed appointments from you to the two other ICAC Commissioner positions, the Committee will need advice of who the proposed appointees are, and confirmation that the Chief Commissioner has been consulted about those two proposed appointees.

7. Chief Commissioner Hall then resigned his office as an acting judge of this Court; his resignation was accepted by the Governor; and at 3 pm he was appointed to the office of Chief Commissioner.

8. The Premier wrote to the Joint Committee at 3.16 pm, advising of Chief Commissioner Hall’s appointment; reiterating her intention to appoint Ms McDonald and Mr Rushton as Commissioners; confirming that the Chief Commissioner had been consulted about those appointments; and seeking urgent confirmation that the Committee did not propose to veto them. It was common ground that the consultation to which the Premier there referred, had predated Chief Commissioner Hall’s appointment earlier that day.

9. The Chair of the Joint Committee responded to the Premier at 3.31 pm, advising that the Committee had met and accepted the advice she had so given as “appropriate notification for the purposes of section 64A” and that it had also decided not to veto these appointments.

10. Commissioners McDonald and Rushton were then appointed to their offices.

The 2017 Regulation is valid

16. Much of what lies in issue depends on whether the 2017 Regulation, particularly cl 19A, is valid. That turns both on the terms of cl 19A and on the meaning of ss 117, 117A and Schedule 4 to the ICAC Act, when that Regulation came into force in March 2017, before the amendments made by the 2016 Amendment Act came into force in August.

The parties’ cases

17. The nub of the case pressed for Knightsbridge was that the 2017 Regulation was invalid because what cl 19A purported to do, was to alter the statutory scheme which existed in the ICAC Act when the Regulation came into operation in March 2017.

18. It contended that clause 19A purported to introduce a scheme for the period after the enactment of the 2016 Amendment Act in November 2016 and it coming into force in August 2017, which did not exist in the ICAC Act, either before or after the 2016 Amendment Act came into operation.

19. That was firstly, because cl 19A sought to introduce the new three Commissioner structure, before the amendments to the ICAC Act which introduced that structure came into effect on 7 August 2017. That, however, could only be done by the Amendment Act itself, which could have provided that those amendments took effect from enactment, but did not so provide.

20. Secondly, because cl 19A purported to give a role under s 64A, to a person such as Chief Commissioner Hall, who it was proposed would be appointed to an office which only came into existence when the 2016 Amendment Act came into force on 7 August 2017.

21. Knightsbridge also contended that the provisions made in cl 19A were not “transitional” as s 117A and Schedule 4 permitted. Nor were they required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to “this Act”, that is the ICAC Act prior to its amendment by the 2016 Act, as s 117 then permitted.

22. The State’s case was that the 2017 Regulation was valid because it contained “provisions of a transitional nature consequent on the enactment of” the 2016 Amending Act, as both s 117A and Schedule 4 permitted. Further, that it was not inconsistent with the then provisions of the ICAC Act, within the meaning of s 117(1) because, as was explained in the response to the summons, clause 19A was a regulation:

“with respect to matters that were necessary or convenient to be prescribed for carrying out or giving effect to the ICAC Act in that it was necessary or convenient to make provision to facilitate the prompt appointment of Commissioners so as to eliminate or limit the period during which the Commission was not constituted in the way contemplated by the IACAC Act as amended from time to time“.

23. The State also contended that in construing s 117, account had to be taken of the entire structure of the then existing provisions of the ICAC Act, which included s 117A and Schedule 4.

24. It followed that cl 19A did not have the effect for which Knightsbridge contended, but that it was truly a transitional provision of the kind then expressly authorised by the ICAC Act, in order that the new structure to be introduced by the 2016 Amendment Act could take effect on the day that act came into force.

25. The intention of the 2017 Regulation was to ensure that there was no hiatus in ICAC’s important operations, resulting from the need to make appointments to the new positions of Chief Commissioner and Commissioners, in accordance with the process prescribed by s 64A as amended, which required prior consultation with the Joint Committee and in the case of the Commissioners, with the Chief Commissioner, prior to the appointments being made.

26. Clause 19A thus ensured that such consultation could be effectively pursued after enactment of the 2016 Amendment Act, but before it came into force after proclamation. That enabled the appointments to the new offices to be made immediately upon the new structure coming into operation, when the Amendment Act came into force on 7 August.

27. I am satisfied that the case advanced for the State must be accepted, given the terms of ss 117, 117A, schedule 4 to the 2016 Amendment Act and cl 19A of the 2017 Regulation.

Regulation making powers under the ICAC Act

28. The reasons for that conclusion begin with the need to interpret both the ICAC Act and cl 19A of the 2017 Regulation, by preferring a construction that would promote their respective purposes and the objects underlying them, whether or not that purpose or object is expressly stated in the ICAC Act or the Regulation over any construction that would not promote them: s 33 Interpretation Act.

29. The 2017 Regulation, being an “instrument’ as defined in s 3 of the Interpretation Act, that is an instrument made under the ICAC Act, must also be “construed as operating to the full extent of, but so as not to exceed, the power conferred by” that Act: s 32(1) Interpretation Act. When interpreting the 2017 Regulation, account may also be taken of the explanatory note, in the way provided in s 34 of the Interpretation Act. That is, to confirm that the meaning of cl 19A is the ordinary meaning conveyed by its text and to determine its meaning, in so far as it is ambiguous or obscure.

30. That requires the words of cl 19A to be considered in the way discussed by Gageler J in SAS Trustee Corporation v Miles [2018] HCA 55 at [20]. Contrary to the case advanced for Knightsbridge, a transitional provision does not, regardless of its terms, speak only to conduct which has occurred in the past. Rather:

“The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. [footnotes omitted]

31. The words used in cl 19A were:

“19A Transitional provision relating to first appointment of Chief Commissioner and other Commissioners

(1) This clause applies to the first appointment of the Chief Commissioner and other Commissioners under the Act, as amended by the Independent Commission Against Corruption Amendment Act 2016.

(2) Before the commencement of the Independent Commission Against Corruption Amendment Act 2016:

(a) the Minister may refer a proposal that a person be appointed as the Chief Commissioner or other Commissioner to the Joint Committee under section 64A of the Act, and

(b)    the Joint Committee may consider the proposal and notify the Minister whether or not it has decided to veto the proposed appointment.

For that purpose, section 64A applies as if a reference to the Commissioner were a reference to the Chief Commissioner or other Commissioner.

(3) A referral and notification under subclause (2) may be relied on for the purposes of clause 2 of Schedule 1 to the Act, as inserted by the Independent Commission Against Corruption Amendment Act 2016.

(4) The Minister is not to refer a proposal to the Joint Committee under this clause to appoint a person as a Commissioner (other than the Chief Commissioner) until the Minister has consulted the person proposed to be appointed as the Chief Commissioner on the proposed appointment. If the person is appointed as Chief Commissioner, that consultation may be relied on for the purposes of section 5 (2) of the Act, as inserted by the Independent Commission Against Corruption Amendment Act 2016.”

32. On Knightsbridge’s case, cl 19A(2)(b) involved a purported amendment to the ICAC Act, given the then definition of ‘Commissioner” in s 3, the amendments to that definition and s 64A made by the 2016 Amendment Act not yet having come into force. Further, that cl 19A(3) purported to give prospective effect to the operation of s 64A, which was yet to commence and that cl 19A(4) created a new creature, a “person proposed to be appointed as the Chief Commissioner”, which did not exist either in the ICAC Act then in force, or as later amended by the 2016 Amendment Act.

33. Further, that by a completely confused process, cl 19A purported to introduce a regime of veto regarding positions not then in existence, which was applied retrospectively when the ICAC Act was later amended. It also impermissibly created a new method of consultation for the purpose of s 5, when amended, thereby creating a new island of power, whose operation was suspended, in respect of what that section eventually required.

34. Whether cl 19A was validly made, given the provisions of the ICAC Act at the time, was thus in issue. That depends firstly on s 117, which then provided:

“117   Regulations

(1)    The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)    In particular, the regulations may make provision for or with respect to:

(a)    the appointment, conditions of employment, discipline, code of conduct and termination of employment of staff of the Commission, and

(b)    security checks of officers of the Commission and applicants for appointment or engagement as officers of the Commission, and

(c)    the service of a notice to an occupier whose premises are entered under a search warrant,

and

(d)    the issue of identity cards to officers of the Commission and their use, and

(e)    forms to be used for the purposes of this Act, and

(f)    the use and custody of the seal of the Commission.

(3)    A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.

(4)    Regulations may be made only on the recommendation of the Commissioner, except regulations made under section 110.”

35. Schedule 4 to the ICAC Act, given effect by s 117A, dealt with savings, transitional and other provisions. It then provided:

“(1)    The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

Independent Commission Against Corruption (Amendment) Act 1990

Investigative Bodies Legislation Amendment Act 1997

Independent Commission Against Corruption Amendment (Ethics Committee) Act 2003

Independent Commission Against Corruption Amendment Act 2005

Public Sector Employment Legislation Amendment Act 2006, to the extent that it amends this Act

Independent Commission Against Corruption Amendment Act 2008

Independent Commission Against Corruption and Ombudsman Legislation Amendment Act 2009

Independent Commission Against Corruption Amendment Act 2011

any other Act that amends this Act

(2)    Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)    To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)    to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)    to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.”

36. Whether cl 19A of the 2017 Regulation was a provision “of a savings or transitional nature” of the kind contemplated by cl 1 of Schedule 4, must be resolved. The term is not defined in the ICAC Act.

37. The ordinary meaning of the noun “transition” includes “passage from one position, state, stage etc to another”: Macquarie Online Dictionary. The Encyclopaedic Australian Legal Dictionary defines “transitional provision” to mean “A provision regulating the operation and effect of an amending Act during the period of transition from one statutory regime to another.”

36. Sections 117, 117A and Schedule 4 to the ICAC Act are not provisions of the kind which arose for consideration in ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18. There the statutory regulation making power in question authorised the making of regulations "whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations”: at [31].

37. A provision of that kind is also to be found in s 14(2) of the Subordinate Legislation Act, for example, which permits regulations to be made amending or replacing Schedule 3 or 4 of that Act, after consultation with the Legislation Review Committee. There is no such provision in the ICAC Act.

38. It is also settled that a regulation making power such as that contained in s 117, even when granted as it there is in very general terms, does not enable regulations to be made which extend the scope or general operation of the Act, such a regulation being “strictly ancillary”: Shanahan v Scott (1957) 96 CLR 245 at 250; [1957] HCA 4 per Dixon CJ, Williams, Webb and Fullagar JJ.

39. Thus a regulation made under s 117 may provide for “subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions”, but it may not attempt “to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends”: at 250.

40. It does not follow, however, that s 117 does not authorise the making of transitional arrangements for amendments to the legislative scheme, as the provisions of s 117A and Schedule 4 provided. After all, given that the Legislature may make an act which authorises the making of regulations which deem the act itself to be amended, there can be no doubt that it can also authorise the making of regulations of a transitional nature. As Gagelar J observed in ADCO at [55]:

“Within the structure of the empowering provisions, it is the opening words of cl 1(1) of Pt 20 of Sched 6 which permit the making under s 280(1) of the Act of a regulation which contains a provision "of a saving or transitional nature" consequent on the enactment of the 2012 amending Act. A provision of such a nature will, by definition, either save a thing so as to remain governed by the Act as it existed before the enactment of the 2012 amending Act or transition the thing so as to be governed by the Act as amended by the 2012 amending Act. The various subclauses of cl 5 of Pt 19H are directed to spelling out the extent of the permissible legal operation of a provision of that nature.

43. The questions which thus arise about cl 19A include whether, at the time it came into effect, it was:

1. inconsistent with the ICAC Act;

2. made for or with respect to any matter that the ICAC Act then did not require or permit to be prescribed;

3. not necessary or convenient to be prescribed for carrying out or giving effect to the ICAC Act, as it then existed; and

4. impermissibly sought to extend the scope or general operation of the ICAC Act.

44. In resolving these questions, both the purpose of the ICAC Act and all that it required, permitted or prescribed, have to be taken into account. That includes the provisions made in s 117A and schedule 4, for the making of transitional regulations, they also being a part of the Legislature’s statutory plan. They include, it must be remembered, empowering the making of provisions of a transitional nature, consequent on the enactment of any other Act that amends the ICAC Act.

45. So approached it is apparent that cl 19A did not impermissibly seek to amend the statutory scheme of the then ICAC Act. What was there provided was intended to be a “transitional” regulation, concerned with “the first appointment of the Chief Commissioner and other Commissioners under the Act, as amended by the 2016 Amendment Act”: cl 19A(1).

46. Clause 19A(2)(a) thus provided that before the commencement of the 2016 Amendment Act, a proposal that a person be appointed as the Chief Commissioner or Commissioner could be referred, to the Joint Committee. That occurred in June 2017.

47. The Joint Committee was then to consider that referral and notify the Minister as to whether or not it had decided to veto the proposed appointment. For that purpose, s 64A was to be applied as if the reference then there made to the Commissioner, was a reference to the Chief Commissioner or other Commissioner: cl 19(2)(b).

48. Clause 19A(2) was thus a deeming provision, brought into operation before the new statutory structure came into force, so that the Joint Committee could consider the Premier’s referral of those who she wished to appoint to the new offices which would come into existence, with the new structure which the 2016 Amendment Act introduced, when it came into force.

49. Given the impending amendment to s 5 of the ICAC Act, requiring the Chief Commissioner “to be consulted on the persons to be appointed as the 2 other Commissioners”, cl 19A(4) thus also provided that no proposal to appoint a person as a Commissioner should be made to the Joint Committee, before consultation with the person proposed to be appointed as the Chief Commissioner had taken place. It was only if that person was later appointed as Chief Commissioner, as Chief Commissioner Hall was, that such consultation could be relied on, however, for the purposes of s 5(2) of the ICAC Act.

50. It follows that the transitional provisions which cl 19A introduced were not either confused, or inconsistent with the amendments to the statutory scheme which the 2016 Amendment Act would introduce, when it came into force. Rather, the “thing” which cl 19A was intended to “transition”, was the change to ICAC’s structure from constitution by a single Commissioner, to constitution by a Chief Commissioner and two Commissioners which the Legislature had enacted.

51. Clause 19A thus sought to ensure that the requirements to be introduced by ss 5(2) and 64A in respect of appointments to the new offices could be undertaken after the 2016 Amendment Act was enacted, so that the proposed appointments to those offices could be made immediately that Act came into force, without the delay which would otherwise necessarily follow, for ICAC’s publically important operations.

52. That was consistent with the effect of cl 41 of Part 15 of Schedule 4 to the ICAC Act, which was also amended by the 2016 Amendment Act, to provide that upon that Act coming into force, the office of the former Commissioner was abolished.

53. It follows that while the ICAC Act does not contain a provision of the kind dealt with in ADCO, it cannot be accepted, as was contended for Knightsbridge, that what cl 19A impermissibly purported to do was to amend or replace then current aspects of the ICAC Act, with the result that it was invalid.

54. Clause 19A did introduce transitional provisions of the kind then expressly contemplated by the ICAC Act, consequent on the enactment of the 2016 Amendment Act. That was reflected both in its terms and in the Explanatory note to the 2017 Regulation, where it was stated: “This Regulation is made under the Independent Commission Against Corruption Act 1988, including section 117 and clause 1 of Schedule 4.”

55. In the result, cl 19A, it must be concluded, was not inconsistent with the then provisions of the ICAC Act, concerned as this regulation was to ensure that in the transitional period during which it operated, necessary steps could be taken, so that the new structure which was to come into effect when the 2016 Amendment Act came into force, could then immediately be implemented. Contrary to the case advanced for Knightsbridge, cl 19A thus did deal with “a transition to other things under the new law”: Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [188]. That is, the transition from the existing ICAC structure, to that which the Legislature intended would come into operation, when the 2016 Amending Act it had enacted, came into force.

56. Nor did cl 19A attempt to impermissibly widen the purposes of the ICAC Act, as they then existed, or purport to add new or different means of carrying out those purposes, as was also contended for Knightsbridge. Clause 19A neither departed from, nor varied the plan which the Legislature had at that time adopted in the ICAC Act, in order to attain its ends. Nor did it impermissibly extend the scope or general operation of the ICAC Act, as it then provided.

57. While when cl 19A came into force ICAC was still constituted by a single Commissioner, the Legislature had contemplated that this structure could be altered by amendment, as resulted from its enactment of the 2016 Amendment Act. It was this which empowered the making of the transitional provisions contained in cl 19A under the power granted by s 117 of the ICAC Act.

58. Neither by its terms or effect, however, did cl 19A impermissibly permit the appointment of Chief Commissioner Hall to that position, before the Joint Committee had the opportunity of exercising its power of veto over his appointment, as s 64A contemplated.

59. This is so notwithstanding that cl 19A permitted consultation with him about the appointment of the two Commissioners to occur during the transitional period, which then had effect for the purpose of s 5(2) when he was appointed to the office of Chief Commissioner, after the 2016 Amendment Act came into force.

60. Thereby cl 19A did not seek to depart from, or vary the scheme of the ICAC Act as it was, when it came into operation. Rather, as I have explained, by the deeming mechanism adopted, it ensured that the Joint Committee had a practical opportunity to exercise a veto over the proposed appointments to the offices of Chief Commissioner and Commissioners, by consideration of the referrals it received after the enactment of the 2016 Amendment Act, but before it came into operation on the date the Governor proclaimed.

61. That the Legislature would be concerned to ensure that such steps could effectively be taken, by the making of appropriate transitional arrangements, so that appointments could be made immediately to new offices introduced by amendment to ICAC’s structure, when the amending act came into force, was certainly understandable. That flows from the important work which ICAC is given to undertake under its statutory scheme.

62. That the provisions made in cl 19A were thus ones “convenient to be prescribed”, for carrying out or giving effect to the ICAC Act, as it then existed, must also be accepted, ensuring as they did that any hiatus in the change in constitution of ICAC, resulting from the enactment of the 2016 amendment to the Act, could be avoided.

63. Given that in construing a provision of an Act or statutory rule, a construction that would promote its underlying purpose or object must be preferred to one that would not promote that purpose or object, the conclusion that cl 19A was truly a regulation of a transitional nature, then permitted by the ICAC Act to be made as it was, cannot be resisted.

64. It is also pertinent to note that what cl 19A intended to achieve appears to be similar to the result contemplated by s 23 of the Interpretation Act. Given that section, it would appear that had the Joint Committee purported to exercise its s 64A powers by considering the Minister’s referrals prior to 7 August 2106 and then notified the Minister of its decision not to veto the proposed appointments to the new offices, the exercise of those administrative powers would have taken effect on 7 August, when the 2016 Amendment Act came into force.

Was the appointment of the Chief Commissioner invalid?

65. As it transpired the Joint Committee did not finalise its consideration of the Chief Commissioner’s appointment until after the 2016 Amendment Act came into force.

66. Knightsbridge contended that the evidence established that on 7 August, however, the requirements of s 64A were not complied with, with the result that the Chief Commissioner’s appointment was invalid. Further, that properly construed, s 64A did not empower the Joint Committee to advise of its decision not to veto the proposed appointments, until 8 August. Accordingly there was no power to make the appointments on 7 August and so all three appointments made by the Governor on 7 August were invalid.

67. That the appointments were not finally dealt with by the Joint Committee during the transitional period during which cl 19A operated, after it received the Premier’s written referrals of the proposed appointments in June 2017, does not result in the conclusion so urged.

68. The Premier’s referrals of the proposed appointments were not “purported” referrals, as Knightsbridge contended. Nor was this a case like that which arose for consideration in Kutlu v Director of Professional Services Review [2011] FCAFC 94, where a Minister failed entirely to consult a specified body about appointments to a statutory office.

69. The Premier’s April and June referrals were properly made in accordance with the transitional provisions of cl 19A. The Joint Committee had not finalised its consideration of the June referral of the Chief Commissioner’s appointment, when on 7 August the 2016 Amendment Act came into force. Verbal advice was given that the Premier still wished the Committee to deal with that referral. Section 64A then provided:

“64A    Power to veto proposed appointment of a Commissioner or the Inspector

(1) The Minister is to refer a proposal to appoint a person as a Commissioner or Inspector to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.

(2)    The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.

(3)    The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.

(4)    A referral or notification under this section is to be in writing.”

70. The Premier’s written referral of the Chief Commissioner had not been withdrawn and accordingly, the Joint Committee finalised its consideration of his appointment.

71. Understandably, given that Acting Commissioner’ Blanche’s appointment had been brought to an end that day when the 2016 Amendment Act came into force, as the Joint Committee had earlier been advised, it delayed no further and resolved that it would not to veto the Chief Commissioner’s appointment. That decision was then communicated in writing and his appointment made.

72. In my view there is no basis on which it can be concluded that the appointment so made was invalid, even if it were accepted that s 64A then strictly required that the Premier give the Joint Committee a third written referral of the Chief Commissioner’s proposed appointment on 7 August, after s 64A came into operation, as was contended for Knightsbridge.

73. To make good this submission it relied on the "Anthony Hordern” principle "that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course": Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at [43].

74. As discussed in Project Blue Sky at [91], however, even an act done in breach, rather than attempted compliance with a condition such as that then imposed by s 64A of the ICAC Act, regulating as it does the exercise of an important statutory power, is not necessarily invalid and of no effect. In such cases consideration must be given to whether a legislative purpose to invalidate any act that fails to comply with the condition in question can be discerned. The existence of such a purpose has to be ascertained by reference to the language of the statute, its subject matter and objects, given the need to give effect to the harmonious goals of the legislation, viewed as a whole: at [32].

75. In considering these matters, the provisions of s 2A must be taken into account. It provided:

“2A   Principal objects of Act

The principal objects of this Act are:

(a)    to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:

(i)    to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii)    to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b)    to confer on the Commission special powers to inquire into allegations of corruption.”

76. The importance of the function which the Joint Committee is given by s 64A over the Government’s appointments to the statutory offices must also be borne in mind.

77. That follows from the nature of the work ICAC is given to do and the great powers it is given under the ICAC Act, to undertake that work. That includes the investigation of serious corrupt conduct, systemic corrupt conduct and the prevention of corrupt conduct, as defined in s 8 by reference to, amongst other things “the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority”: Part 3. ICAC also has other functions in relation to, for example, the gathering of evidence that may be admissible in the prosecution of criminal offences in connection with such corrupt conduct: Part 4.

78. The importance of the offices of Chief Commissioner and Commissioners must also be borne in mind, given that ICAC’s functions are exercisable by the Chief Commissioner and Commissioners: s 6(1). With a decision to conduct a public inquiry such as that here in issue having to be authorised by the Chief Commissioner and at least one other Commissioner: s 6(2). In exercising these functions, the protection of the public interest and the prevention of breaches of public trust are made the paramount concerns: s 12.

79. It is also relevant that in pursuit of its investigations, ICAC is empowered to conduct compulsory examinations; public inquiries; to summon witnesses; and to take evidence: Division 3 of Part 4. It is also given powers in relation to arrest and the issue of search warrants: Divisions 3 and 4 of Part 4. ICAC is also empowered to make reports to Parliament about its investigations: Part 8.

80. Offences are also created for conduct obstructing the exercise of ICAC’s functions; for specified failures including failing to attend before ICAC when summoned for giving false evidence; and for dealing with witnesses in specified ways: Part 9.

81. What the Legislature thus required in s 64A was that a written referral of the proposed Chief Commissioner’s appointment be given to the Joint Committee, that triggering the opportunity it was there given to exercise its power of veto over the appointment.

82. On Knightsbridge’s case, given the extraordinary intrusive and coercive powers ICAC is granted, it followed that the statutory preconditions to the appointment of the offices of Chief Commissioner and Commissioner, had to be strictly adhered to, for appointments to be validly made. That required that there be a written referral in respect of the Chief Commissioner’s appointment on 7 August, if it was to be validly made.

83. Also necessary to take into account is that there is no question, however, that the Premier had referred his proposed appointment to the Joint Committee in writing, as cl 19A permitted. Further, that the Committee finalised its consideration of that referral on 7 August and having done so, communicated its decision not to veto the appointment, with the result that the Chief Commissioner’s appointment was then made. The result was that the oversight which the Legislature envisaged when it enacted s 64A the Committee would have over that appointment, thus actually occurred.

76. In the result, I am satisfied that it must be concluded that the Chief Commissioner’s appointment was valid, notwithstanding that the confirmation given on 7 August that the Premier still proposed to make the appointment she had referred in writing to the Joint Committee in June, was given orally. In the circumstances, if that did involve a failure to comply with the requirements of s 64A(4), it was not of a kind which can give rise to the conclusion that in this legislative scheme, the Legislature intended that it would render the Chief Commissioner’s appointment invalid.

77. In my view what was decided in Forrest leads to no different conclusion. There it was noted at [62] that the majority in Project Blue Sky were strongly influenced in reaching the conclusion that the act there in question was not invalid:

“… by the consideration that the requirement in question regulated the exercise of functions already conferred on the agency, rather than imposed essential preliminaries to the exercise of those functions. Their Honours were also influenced by the circumstance that the provisions did not have "a rule-like quality which [could] be easily identified and applied", many of the obligations relevant in that case being "expressed in indeterminate language". Also important to the decision was the consideration that "public inconvenience would be a result of the invalidity of the act", especially if those affected by non-compliance were neither responsible for, nor aware of, the non-compliance.” [footnotes omitted]

86. Invalidity was found in Forrest because:

“63   … A consideration of "the language of the statute, its subject matter and objects, and the consequences for the parties of holding void" acts done in breach of the Act, reveals that ss 74(1)(ca)(ii), 74A(1) and 75(4a) imposed essential preliminaries to the exercise of the power conferred by s 71 of the Act. That this was so was made clear by both the express terms and the structure of the provisions as sequential steps in an integrated process leading to the possibility of the grant of a mining lease by the Minister. These provisions were not expressed in indeterminate terms: they imposed rules which could be easily identified and applied. In addition, any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister's power would ensure only to those with some responsibility for the non-observance, whereas (as will be explained) the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act. Finally, and importantly, Project Blue Sky was not concerned with a statutory regime for the making of grants of rights to exploit the resources of a State.”

87. In this case, by comparison, s 64A imposes sequential steps which can be described as having a rule like quality. Nevertheless, to conclude that the Premier’s failure to write again to the Joint Committee on 7 August about the Chief Commissioner’s appointment, having in June already referred his appointment as cl 19A permitted, but the Joint Committee not having finalised its consideration of that referral before s 64A came into operation, resulted in the invalidity of the appointment which the Joint Committee decided not to veto, would involve very considerable disadvantage to the public interest and also significant inconvenience.

88. I consider that result was not intended by the Legislature, given the statutory scheme which came into existence when the 2016 Amendment Act came into force.

89. That conclusion is supported by the fact that upon the 2016 Amendment Act coming into force, the Acting Commissioner’s office was abolished. Thus in order for ICAC to effectively continue its operations uninterrupted, as the Premier and the Joint Committee clearly intended, and the ICAC Act and cl 19A permitted, it had to finalise its consideration of the referrals of the Chief Commissioner’s proposed appointment on 7 August.

90. The inconvenience which would result from treating the requirements of s 64A(4) as rendering invalid the Chef Commissioner’s appointment, if a further written referral to the same effect as that the Premier had already given the Joint Committee in June was required again to be given on 7 August, would enure not only to those with responsibility for the non-observance of that requirements. It would also be contrary to the considerable public interest in ICAC being effectively able to pursue its operations from 7 August 2017, under the new structure the Legislature had introduced by the 2016 Amendment Act, given that the Joint Committee did actually exercise the oversight over this appointment, which s 64A intended it to have.

91. In the result, I am satisfied that the Chief Commissioner’s appointment was not rendered invalid by the Premier’s failure, again on 7 August, to refer his proposed appointment to the Joint Committee in writing.

Section 26 of the Interpretation Act 1987 (NSW)

92. That conclusion is supported by, but does not depend on the provisions made in s 26 of the Interpretation Act.

93. As I have explained, ss 117, 117A and Schedule 4 to the ICAC Act expressly contemplated that regulatory steps may be taken after amending legislation such as the 2016 Amending Act was enacted, but before it came into force. Section 117A thus gives effect to Schedule 4, which provides for the making of regulations containing provisions of "a savings or transitional nature", consequent on the enactment of amending legislation and s 117 empowers regulations to be made which are "not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act". That must be understood as encompassing the provisions made in s 117A and Schedule 4.

94. That was what cl 19A was directed to, namely, a transitional provision relating to the first appointment of the Chief Commissioner and other Commissioners who it was contemplated could thereby take office on the commencement of the 2016 Amendment Act.

Such circumstances are expressly dealt with in s 26 of the Interpretation Act, which provides:

“26   Exercise of certain powers between enactment and commencement of Acts and making and commencement of instruments

(1)    If an Act (in this section referred to as the Act concerned) that does not commence on its enactment would, had it commenced:

(a)   confer a power, or

(b)   amend some other Act in such a manner that the other Act, as amended, would confer a power,

that must or may be exercised by the making of an instrument of a legislative or administrative character, then:

(c)   such an instrument may be made, and

(d)   anything may be done for the purpose of enabling such an instrument to be made or of bringing such an instrument into effect,

before the Act concerned commences, as if the Act concerned had commenced.

(2)   A provision of an instrument made by virtue of subsection (1) shall take effect:

(a)   on the day on which the Act concerned commences, or

(b)   on the day on which the provision would have taken effect had the Act concerned commenced when the instrument was made,

whichever is the later.

(3)   If:

(a)    this section applies to an Act that would, had it commenced, amend some other Act as referred to in subsection (1) (b), and

(b)   the other Act has not commenced,

this section has effect as if the references in subsections (1) and (2) to the commencement of the Act concerned were references to the commencement of the other Act, as amended by the Act concerned.

(4)    This section applies to an instrument that does not commence on its making in the same way as it applies to an Act that does not commence on its enactment. For that purpose, a reference in this section to an amendment of some other Act includes a reference to an amendment of some other instrument."

95. In this case, the results of the amendments to the definition of “Commissioner” in s 3 and s 64A made by the 2016 Amendment Act, included empowering the Minister to refer proposed appointments to the positions of Chief Commissioner and Commissioner to the Joint Committee and the Joint Committee to veto such appointment. Both the Minister's referral and the Joint Committee's notification of its decision had to be given in writing: s 64(4).

96. A question arises as to whether those amendments fall within s 26(1)(a) of the Interpretation Act, with the result that the Minister's referral to the Joint Committee could be made, prior to the 2016 Amendment Act coming into force: s 26(1)(c) and (d).

97. That depends on whether document by which the Minister makes a written referral of the proposed appointments to the Joint Committee is an "instrument" of an "administrative character". There can be no question that such a referral would involve an administrative act. That such a document is an “instrument” is less clear. That word is unhelpfully defined in s 3 of the Interpretation Act to mean:

"an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument"

98. It seems to me that the better view is that the important written notice required by s 64A to be given to the Joint Committee before an appointment to the offices of Chief Commissioner or Commissioners can be made, is an "instrument", as so defined.

99. For its part Knightsbridge contended that the ‘instrument’ referred to in s 26 pertains to subordinate legislation, but it seems to me that does not take necessary account of either the definition, or the inclusion in s 26 of an instrument of an administrative character.

100. In Roads and Traffic Authority of NSW v Birchfield; Roads and Traffic Authority of NSW v Dunlop (2010) 79 NSWLR 217; [2010] NSWSC 1253 where the question which arose was whether a road sign was an “instrument”, Davies J observed:

“31   First, I do not accept that the road sign is an instrument within the meaning of the definition in s 3(1). It is to be noted that the argument that it is an instrument succeeds only by pointing to dictionary definitions of what an instrument is. The only definition of instrument in a relevant Act is the definition in s 3(1). Although that definition has some slight usefulness in identifying that a statutory rule or an environmental planning instrument falls within the definition, the definition is otherwise entirely circular. The enquiry must be, therefore, whether Parliament can, by the words it has used in defining “instrument” have intended including such things as traffic signs as instruments.

32    It is possible to discern from various provisions in the Interpretation Act that what was intended by the use of the word “instrument” throughout the Act is some form of enactment by some person or somebody having the power to bring about a result by the enactment. (In saying that I am conscious of the need to avoid an infinite regression of definition where one word, such as “enactment”, becomes substituted for another like “instrument”.) For example, ss 5(1), 21A and 21B speak of instruments being “enacted or made” relative to the commencement of the Act. Such a statement does not apply easily or at all to a sign promulgated under a portion of the Road Rules.

33 Similarly, the word “instrument” is frequently used in the Interpretation Act as something which is in the same category as an “Act” – see, for example, ss 5-17 and 19. Further, references to “instruments commencing” (s 25 and 26) do not sit easily with an instrument being other than a source of power or obligation”

101. In this case, the document by which the proposed appointment of the Chief Commissioner or Commissioners is referred to the Joint Committee, is certainly the result of a statutory obligation imposed by s 64A, to take an administrative act which results in the creation of a written notice which must be given to the Committee, before these appointments to important statutory offices are made. Given the character of such documents and the functions they perform in this statutory scheme, I am satisfied that it must be concluded that they are instruments falling within s 26.

102. Accordingly, the effect of s 26 of the Interpretation Act is that the Minister's written June referrals came into effect on 7 August 2017, when the 2016 Amendment Act came into force and the Joint Committee dealt with them, as it then was empowered to do by the amendments made by s 64A, which came into force that same day.

103. That is another reason for concluding that the appointment of the Chief Commissioner on 7 August was valid, the Premier’s written June referral having taken effect that day.

Appointment on 7 August

104. I am also satisfied that s 64A cannot be construed as requiring the Joint Committee to take any specified time, let alone a day, in which to consider a referral of an appointment under s 64A and to communicate its decision, with the result that the Chief Commissioner’s appointment was invalid, because it could not be made before 8 August, as was also contended for Knightsbridge.

105. Reliance was placed on s 36 of the Interpretation Act, which provides:

“(1)   If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.”

106. But s 64A(3) only limits to 14 days after a proposed appointment is referred to it, with a possible 30 day extension, the time the Joint Committee is given to veto a proposed appointment. In accordance with s 36 of the Interpretation Act, that limitation period is calculated exclusive of the day on which the referral is received.

107. What s 64A does not do, however, is to preclude either the Joint Committee considering a proposed appointment on the day it receives the referral, or communicating its decision, if made that day. Nor does it preclude the appointment being made that day, if the Joint Committee gives notice that it has decided not to veto the appointment.

108. Understandably, given the membership of the Joint Committee, s 64A does not purport to control how the Committee undertakes the statutory function involved in considering whether it will veto a proposed appointment. That reflects the importance of the oversight which the Committee is thereby given over such appointments.

109. It was Knightsbridge’s case that the evidence established that the Joint Committee had given perfunctory consideration to the referrals it received. That was not established by the evidence, which showed that it had first had the Chief Commissioner’s appointment referred to it in April and the two Commissioner’s appointments in June. While the decisions not to veto the appointments were not made until 7 August, it does not follow that the only time the Committee considered the appointments was on that day.

110. Given the nature of the qualifications which proposed appointees must have for appointment to those offices, that the Committee’s oversight may be able to be exercised quickly, is entirely possible. Given the qualifications of those appointed to the positions of Chief Commissioner and Commissioners, even if the Committee’s consideration of whether to exercise its power of veto did not take long, it does not follow that it was peremptory.

111. That in a particular case the Committee takes a short time to consider a referral suggests nothing about the nature of the Committee’s exercise of its power. Nor is that a matter with which s 64A concerns itself. Contrary to the case advanced for Knightsbridge, it does not seek either to ensure that “there is time for pause and time to think”, or to force the Joint Committee to “sit down and think about” the appointment, by requiring that its deliberations take at least a day.

112. The only requirement imposed by s 64A is that the Joint Committee notify the Minister of its decision, within the time specified in s 64A(2). That is a period which expires 14 days after the referral is received, calculated from the day following its receipt, unless the power to extend that time by a further 30 days is exercised. A referral is otherwise left to the Joint Committee to consider as it determines.

113. The Chief Commissioner, then an acting judge of this Court, was qualified for the proposed appointment. The Joint Committee had before it, for a considerable time prior to 7 August, a valid referral about the appointment. Even if there was conceivably any technical failure in the Premier not providing the Joint Committee with another written referral about his appointment on 7 August, as I have explained, that did not invalidate the Committee’s exercise of its statutory power under s 64A that day.

114. For all of these reasons I am satisfied that the Chief Commissioner was validly appointed to his office.

Were the appointments to the offices of Commissioner invalid?

115. Section s 5(2) of the ICAC Act required that the Chief Commissioner be consulted about the proposed appointment of the Commissioners, before they were made. During the transitional period cl 19A(4) permitted consultation with the person proposed to be appointed as the Chief Commissioner, about the proposed appointment of the Commissioners, before s 5(2) came into force. If that person was later appointed, as Chief Commissioner Hall was, such consultation satisfied the requirements of the section.

116. By its terms cl 19A thus made no provision for the results of any of the steps there provided to take effect before the amendments to ss 5 and 64A made by the 2016 Amendment Act came into force and only even then, if the person with whom consultation about the appointment of the Commissioners had been pursued, was appointed to the new office of Chief Commissioner.

117. Clause 19A(4) thus had the effect of deeming the consultation which actually took place with the Chief Commissioner, to be consultation for the purpose of s 5 of the ICAC Act, when the 2016 Amendment Act came into force.

118. There was no issue that after the enactment of the 2016 Amendment Act, the Premier consulted Chief Commissioner Hall about her proposed appointment of the two Commissioners, as cl 19A then permitted. He was then an acting judge of this Court, that evidencing his qualification for his proposed appointment. His approval of the proposed appointments of the Commissioners was communicated in writing to the Joint Committee in June 2017.

119. On 7 August, after the 2016 Amendment Act came into force, the Chief Commissioner was validly appointed his office, as I have explained.

120. Thereafter, the results of the Premier’s earlier consultation with Chief Commissioner Hall were again communicated to the Joint Committee in writing, when their appointments were referred again to the Committee, as s 64A provided. The Committee’s decision not to veto those appointments was then communicated, before those appointments were made later on 7 August.

121. I am satisfied that in the result, the appointments of Commissioners McDonald and Rushton were also both valid.

If the 2017 Regulation was invalid

122. I am also satisfied that even if the 2017 Regulation was invalid, the appointments made on 7 August 2016 to the offices of Chief Commissioner and Commissioner were valid.

123. True it is that if the 2017 Regulation was invalid when the Premier’s June referrals were made to the Joint Committee, the appointments then proposed were to offices which did not yet exist, the 2016 Amendment Act not yet having come into force. The Joint Committee thus did not then have the statutory power to consider vetoing appointments to those offices, given what the ICAC Act provided up until 7 August 2017.

124. But as it transpired it was not until 7 August, when the Joint Committee had to act under s 64A, it having come into force that day, that it finally considered the proposed appointments.

125. As I have explained, the potential problems with the appointments made that day were first, that there was no further written referral that day to the Joint Committee of the proposed appointment of the Chief Commissioner. That day there was only verbal confirmation given that the Premier wished to pursue her June referral of that appointment. The Joint Committee acted on that advice; considered the referral; decided that it would not veto his appointment; and communicated its decision, after which the appointment was then made by the Governor.

122. Secondly, that the advice given to the Committee in writing on 7 August that then Acting Justice Mr Hall supported the proposed appointments of the two Commissioners, rested on the consultation which the Premier had pursued with him before he was appointed to the position of Chief Commissioner that day.

123. Third, that the Committee’s decision not to veto the three appointments could not have been validly communicated or acted on, before 8 August.

124. Even if it be accepted that the steps taken on 7 August by the Premier and the Joint Committee in relation to the Chief Commissioner’s appointment did not strictly adhere to the requirement of s 64A(4), that there be a written referral of the proposed appointment of the Chief Commissioner to the Committee, for reasons I have already explained, that did not invalidate his appointment, even if the 2017 Regulation was invalid.

125. That is because its invalidity does not alter the fact that the Joint Committee actually received a written referral from the Premier about the Chief Commissioner’s appointment, after enactment of the 2016 Amendment Act. It considered that referral after that Act came into force. The oversight which the Joint Committee was to have over the appointment having actually occurred, given the nature of the failure to comply with the requirements of s 64A, that did not invalidate the Chief Commissioner’s appointment, even if the 2017 Regulation was invalid.

126. In my view the fact that the Premier’s consultation with the Chief Commissioner about the appointment of the Commissioners occurred before the Chief Commissioner was appointed on 7 August, also did not invalidate their appointments.

127. That is for similar reasons to those I have explained in relation to the failure that day to give the Joint Committee a further written referral of the proposed appointment of the Chief Commissioner.

128. Section 5 required consultation with the Chief Commissioner about the Commissioners’ appointments. The invalidity of the 2017 Regulation does not alter the fact that there was actually consultation with him about those appointments, albeit predating his appointment. If the 2017 Regulation was valid, that consultation would have satisfied the requirements of s 5, as I have explained. The invalidity of the Regulation, in my view, does not lead to a different result.

129. That is because to construe the requirements imposed by s 5 of the ICAC Act on 7 August in the way contended for Knightsbridge, with the result that the appointment of the Commissioners was invalid, merely because of the timing of the consultation actually undertaken with the Chief Commissioner, would also not accord with the proper construction of the legislative scheme, approached in the way discussed in Project Blue Sky and Forrest.

130. Invalidity of the Commissioners’ appointments resulting from such a departure from the legislative scheme which came into effect when the 2016 Amending Act came into force, is in my view also not what the Legislature intended, given the nature of this statutory scheme, which I have already explained.

131. That is because the problem with the timing of the actual consultation which took place was not such, I consider, that it is open to conclude that the Legislature contemplated that the result would be the appointments made to these important offices were invalid.

132. For reasons already explained, I also consider that the Joint Committee was not precluded by s 64A from communicating its decision not to veto the three appointments on 7 August as it did and the appointments then being made that day, as they were.

Call for the production of the opinion required by s 7(c) of the Subordinate Legislation Act 1989

137. At the commencement of the hearing issues arose as to:

1. the relevance of an opinion required by s 7 of the Subordinate Legislation Act in relation to the 2017 Regulation, which Knightsbridge sought to have the State produce, to what here arose to be decided; and

2. whether such an opinion was privileged under s 118 of the Evidence Act 1995 (NSW).

138. There was no issue as to the Court’s power under the Civil Procedure Act2005 (NSW) to order the opinion be produced, even though there was a question as to whether the email by which the production had earlier been sought, had complied with the requirements of Rule 21.10 or 34.1 of the Uniform Civil Procedure Rules 2005 (NSW).

139. I concluded that the opinion Knightsbridge pursued was not relevant to what arose to be determined on its application. I also consider that it is likely that such an opinion is not privileged. The reasons for those conclusions follow.

Relevance

140. Section 7 of the Subordinate Legislation Act provides:

“7    Requirements before making statutory rules

A proposed statutory rule must not be submitted for making by the Governor, or for the approval or confirmation of the Governor, unless the following are submitted together with the proposed statutory rule:

(a)    a copy of a certificate of the responsible Minister stating whether or not, in his or her opinion, the provisions of this Act relating to the proposed statutory rule have been complied with,

(b)    a copy of any relevant certificate under section 6,

(c)    a copy of the opinion of the Attorney General or the Parliamentary Counsel as to whether the proposed statutory rule may legally be made.”

141. A “statutory rule” is defined in s 3 to include a regulation such as the 2017 Regulation.

142. Given what s 7(c) requires and the claim of privilege which the State had made, it was obviously “on the cards” that the opinion in issue had been brought into existence, albeit that the State did not concede that to be the case.

143. Even if the required opinion had not been given, however, that did not affect the validity of the 2017 Regulation: s 9(1) Subordinate Legislation Act.

144. While the State also relied on s 45 of the Interpretation Act, which contains a presumption of validity, Knightsbridge contended that if no s 7(2) opinion had been given, that would evidence that preliminary conditions had not been complied with, before the 2017 Regulation was made. Section 45 provides:

“45    Presumption of validity of certain instruments

(1)    It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an instrument have been complied with and performed.

(2)   In this section:

instrument means:

(a)    an instrument:

(i)    that is made by the Governor, or

(ii)    that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or

(b)    a rule of court, or

(c)    an environmental planning instrument,

being an instrument or rule of court that is required by law to be published on the NSW legislation website or in the Gazette.

145. In this case, the general provision made in s 45 cannot, however, override the specific provision made in s 9(1) of the Subordinate Legislation Act as to the matters there expressly dealt with: Goodwin v Phillips (1908) 7 CLR 1 at 14; [1908] HCA 55. It provides:

“9   Compliance with Part

(1)   Except as provided by section 8, failure to comply with any provisions of this Part does not affect the validity of a statutory rule.

(2)   The provisions of this Part regarding the requirements to be complied with before a statutory rule is made, approved or confirmed are in addition to, and do not affect, the provisions of any other Act.”

146. In any event, any opinion which the Attorney or Parliamentary Counsel expressed as to whether the 2017 Regulation could legally be made, was simply irrelevant to any of the questions which here arose to be resolved. That was because the answers to those questions depended upon the evidence and application of settled principle to the interpretation of the ICAC Act and the 2017 Regulation, not on any opinion which the Attorney or Parliamentary Counsel had given about the 2017 Regulation was made, in accordance with the requirements of s 7(c) of the Subordinate Legislation Act.

147. Contrary to the case pressed by Knightsbridge, such an opinion could also not shed any light on the matters which arose to be considered under the principles discussed in Project Blue Sky at [91] - [93]. Those principles required that consideration be given to the consequences of an act done in breach of a condition regulating the exercise of s 64A of the ICAC Act. A breach of s 7(c) of the Subordinate Legislation Act was not relevant to that consideration.

148. Nor did any breach of s 7(c) of the Subordinate Legislation Act shed any light on the question of whether the appointments in question were validly made, that depending as it did on whether that Parliament intended that any established breach of the requirements of s 64A would result in the invalidity of the appointments to the offices of the Chief Commissioner and Commissioners.

149. In the result, I declined to require the production of the opinion.

Privilege

150. Section 7(c) of the Subordinate Legislation Act requires an opinion to be given either by the Attorney General or the Parliamentary Counsel, as to whether a “proposed statutory rule may legally be made.”

151. Sections 118 and 119 broadly correspond with the categories of legal professional privilege at common law known as legal advice privilege and litigation privilege: State of New South Wales v Jackson [2007] NSWCA 279 at [35]. Section 131A, extends the operation of s 118 to circumstances where a process such as a notice to produce, or an order of the Court would require disclosure of a communication or document falling within s 118.

152. Section 118 deals with adducing evidence, providing:

“118    Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)    a confidential communication made between the client and a lawyer, or

(b)    a confidential communication made between 2 or more lawyers acting for the client, or

(c)    the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

153. Section 118 is thus concerned with “confidential documents” prepared by a client, lawyer or another person, “for the dominant purpose of the lawyer providing legal advice to the client”. “Confidential document” is defined in s 117 to mean:

“a document prepared in such circumstances that, when it was prepared:

(a)    the person who prepared it, or

(b)    the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

154. “Lawyer” is there defined to mean “an Australian lawyer, a foreign lawyer, or an employee or agent of either of them” and “client” to include:

“(a)   a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b)    an employee or agent of a client,

(c)    an employer of a lawyer if the employer is:

(i)    the Commonwealth or a State or Territory, or

(ii)    a body established by a law of the Commonwealth or a State or Territory,

(d)    if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, Gordon committee or person so acting,

(e)    if a client has died—a personal representative of the client,”

155. The onus falling on the State to establish that it had the privilege which it claimed, it had to establish that the opinion to which the claimed privilege attached, had been provided by a person falling within the statutory definition of “lawyer”; that it was that lawyer’s “client”; and that the opinion was a “confidential document”, as defined. It led no evidence about those matters, despite their resolution depending on it establishing the relevant facts, on the balance of probabilities: s 142.

156. I accept that given what s 7(c) requires, that it must sensibly be inferred that any one who provided the opinion had to fall within the definition of “lawyer” and that the opinion having been provided to the State in accordance with the statutory requirement, that it may fall within the definition of “confidential document”.

157. That the State was, however, either a “client” of the Attorney or Parliamentary Counsel who gave the opinion, as s 7(c) required, is less clear. In State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 it was observed, for example:

“The relationship between the State and Parliamentary Counsel may be one of client and lawyer: see Waterford v Commonwealth (1987) 163 CLR 54, 60-2 per Mason and Wilson JJ. If advice were sought of and given by Parliamentary Counsel in relation to the drafting and preparation of draft legislation, this would qualify for legal advice privilege: see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 652 [41]; and Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at 521 [74].

158. But the circumstances here are quite different to those which arose for consideration in any of the cases there referred to. It is as the result of a requirement imposed by statute that the opinion required by s7 is be given, not because the State has sought any advice.

159. In the result, it seems to me that there must be real doubt that a s7(c) opinion is privileged under s 118 of the Evidence Act, even more so if it is one given by the Attorney. It is difficult to see that the State could ever be a “client” of the Attorney, as that term is defined in s 117.

160. I consider, however, that it is finally unnecessary to come to a concluded view about this question, given the conclusion which I had otherwise reached that such an opinion was not relevant to what here arose to be decided.

The de facto officers principle

161. It was Knightsbridge’s case that if the appointments were invalid, ICAC’s decision to commence the investigation at the heart of this application should be quashed, the de facto officers principle not saving it.

162. That principle was referred to in Cassell v The Queen (2000) 201 CLR 189; [2000] HCA 8, in the context of another investigation conducted by ICAC. There it was explained to be a common law principle that where an office exists, but the title to it of a particular person is defective the "acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office". In that case evidence had been tendered without objection as to the formal institution of an investigation by ICAC’s then Commissioner and an Assistant Commissioner. It was concluded that there was in that case no evidence which cast any doubt upon the regularity of the proceedings there in question.

163. The principle was also discussed in Kutlu, where reference is made to R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281. There it was observed at [132] that where the Project Blue Sky test is satisfied, “it is difficult to see that the de facto officers principle could ever be applicable”.

164. In this case, I am satisfied that the appointments of the Chief Commissioner and Commissioners were valid, with the result that like in Cassel, the order sought quashing ICAC’S decision to conduct the investigation, cannot be made. The de facto officers principle thus has no work to do, albeit if it were concluded that the appointments were invalid, the principle would appear to apply to ICAC’s decision to pursue the investigation.

Costs

165. Under the Uniform Civil Procedure Rules, costs usually follow the event, which in this case would be an order that Knightsbridge bear the first and second defendants’ costs.

166. Unless the parties approach to be heard within 14 days, that will be the Court’s order.

Orders

167. For these reasons I order that:

1. The summons is dismissed.

2. Unless the parties approach to be heard within 14 days, Knightsbridge is to bear the first and second defendants’ costs, as agreed or assessed.

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Decision last updated: 06 February 2019