Re Carruthers v Connolly, Ryan & A-G - [1997] QSC 132

IN THE SUPREME COURT

OF QUEENSLAND
No. 4924 of 1997
[Re Carruthers v Connolly, Ryan & A-G.]

BETWEEN:
  KENNETH JOHN CARRUTHERS
  Plaintiff
AND:
  PETER DAVID CONNOLLY
  First Defendant
AND:
  KEVIN WILLIAM RYAN
  Second Defendant
AND:
  THE ATTORNEY-GENERAL OF QUEENSLAND
  Third Defendant

No. 5236 of 1997
[Re CJC and Le Grand v Connolly, Ryan & A-G.]

BETWEEN:
  CRIMINAL JUSTICE COMMISSION
  First Plaintiff
AND:
  PIERRE MARK LE GRAND
  Second Plaintiff
AND:
  PETER DAVID CONNOLLY
  First Defendant
AND:
  KEVIN WILLIAM RYAN
  Second Defendant
AND:
  THE ATTORNEY-GENERAL OF QUEENSLAND
  Third Defendant

JUDGMENT - THOMAS J.

Delivered:5 August 1997

CATCHWORDS: ADMINISTRATIVE LAW - Bias - Actual or apparent bias - Whether either or both Commissioners of Commission of Inquiry disqualified on grounds of actual or apparent bias - Politically sensitive inquiry - Legal opinion on matters touching Inquiry previously given by Commissioner - Public statements critical of person involved - Political affiliation - Bias in conduct of Inquiry - Refusal to hear witnesses - Uneven treatment of parties - Prejudgment - Whether apprehension of bias extended to both Commissioners.

COMMISSIONS OF INQUIRY - Immunity - Whether Commission of Inquiry subject to judicial review.
COMMISSIONS OF INQUIRY - Ultra vires - Whether Order in Council authorised investigation of ongoing CJC inquiry - Whether Order in Council and regulation permitted one Commissioner to complete Inquiry alone.
ADMINISTRATIVE LAW - Waiver - Objection before Inquiry - Delay in seeking judicial review.
ADMINISTRATIVE LAW -Standing - Whether statement by Commissioner of Inquiry that there was no evidence on which to make finding adverse to plaintiff destroyed standing of plaintiff to seek judicial review.
WORDS & PHRASES - “Quorum” - “Protection and immunity”.
Commissions of Inquiry Act 1950, s.20
Commissions of Inquiry Regulation (No. 2) 1996
Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564; Calvin v Carr & Ors [1977] 2 NSWLR 308; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Mahon v Air New Zealand Ltd [1984] 1 AC 808; R v. Maurice & Ors ex parte Attorney-General (Northern Territory) (1987) 73 ALR 123; R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256; Re Finance Sector Union of Australia ex parte Illaton Pty Ltd (1992) 66 ALJR 583; Stollery v The Greyhound Racing Control Board (1972-1973) 128 CLR 509; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106; Vakauta v Kelly (1989) 167 CLR 568.

Counsel:Mr W. Sofronoff QC with him Mr G. Newton and Mr L. Kelly for the Plaintiffs
Mr T.E. Hughes QC with him Mr S. Couper QC and Mr J.G. Gormley for the Third Defendant.

Solicitors:Clayton Utz for the Plaintiff in 5236/97
McCullough Robertson for the Plaintiff in 4924/97
Corrs Chambers Westgarth for the First and Second Defendants
Crown Solicitor for the Third Defendant

Hearing dates: 21 to 25 July 1997

IN THE SUPREME COURT

OF QUEENSLAND

No. 4924 of 1997
[Re Carruthers v Connolly, Ryan & A-G.]

BETWEEN:
  KENNETH JOHN CARRUTHERS
  Plaintiff
AND:
  PETER DAVID CONNOLLY
  First Defendant
AND:
  KEVIN WILLIAM RYAN
  Second Defendant
AND:
  THE ATTORNEY-GENERAL OF QUEENSLAND
  Third Defendant

No. 5236 of 1997
[Re CJC and Le Grand v Connolly, Ryan & A-G.]

JUDGMENT - THOMAS J

Judgment delivered 5 August 1997
INDEX

Parties............................................................................................................................. 1

Issues.............................................................................................................................. 2

The Criminal Justice Commission: Investigation of its role..................................... 3

Narrative of principal events......................................................................................... 6

Partisan Political Bias.................................................................................................. 26

Bias in Conduct of the Inquiry..................................................................................... 30

Conclusions on Bias..................................................................................................... 53

Waiver.......................................................................................................................... 59

Immunity....................................................................................................................... 65

Terms of Reference: Ultra Vires................................................................................ 72

Statement of 17 July: Locus standi............................................................................. 76

Can Dr Ryan continue alone?..................................................................................... 81

Short summary: some principal findings and conclusions.......................................... 93

Relief............................................................................................................................ 95

The primary facts are not in contention. They consist of matters of public record, transcripts of actual proceedings, correspondence and matters in the public domain. The principal contention in these proceedings concerns the inferences that are to be drawn from the known facts and circumstances.

Parties
The respective plaintiffs are the Criminal Justice Commission (a corporation whose functions will shortly be described), the Honourable K.J. Carruthers QC (who for some months during 1996 conducted a CJC investigation) and Mr Le Grand who is the director of the Official Misconduct Division of the CJC.
The defendants are the Honourable Mr Connolly QC and the Honourable Dr Ryan QC, who have since October 1996 conducted a Commission of Inquiry under the Commissions of Inquiry Act 1950. Their terms of reference require them to examine and make recommendations in relation to the future role, structure, powers and operations of the CJC and various other matters.
Mr Carruthers, Mr Connolly and Dr Ryan are (and were at all material times) retired judges, Mr Carruthers having formerly been a member of the Supreme Court of New South Wales and Mr Connolly and Dr Ryan having formerly been members of the Supreme Court of Queensland.
The procedure suggested in R v. Australian Broadcasting Tribunal; ex parte Hardiman[1] was not invoked until very shortly before the hearing. Up to that point, the defendants retained solicitors and presumably gave the necessary instructions for preparation for trial. However on 15 July 1997, the Attorney-General applied to be joined and was added as a party. Thereafter the adversarial response to the claims has been taken over by the Attorney-General, and the defendants indicated that they would abide the order of the Court. In the course of the hearing the defendants (through their solicitor) appeared in a limited respect as protagonists, in my view quite properly, in order to present a short submission defending their own interpretation of the terms of reference of their Inquiry. This was no doubt provoked by the submission of counsel for the Attorney-General that Mr Connolly and Dr Ryan had stepped outside their terms of reference.
[1](1979-1980) 144 CLR 13, 35-36. When the conduct or decisions of such a body is challenged, it or its members should not become protagonists other than in exceptional circumstances. It is preferable that the adversarial role be assumed by some other party.
Issues
The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters upon which they are required to investigate and report. Each is said to have shown apparent bias, and Mr Connolly is alleged to have shown actual bias against both Mr Carruthers and the CJC and in respect of matters that arise under their Inquiry.
There is a further question whether the Commissioners acted and threatened to act outside the terms of their reference in undertaking an investigation of the conduct of Mr Carruthers, and if so, what relief should be granted.
If bias or excess or jurisdiction is found against either Commissioner, consequential issues arise, including
(i)whether the plaintiffs have waived their right to complain of such bias or excess of jurisdiction;
(ii)whether the Commissioners are in any event immune from review by any Court by reason of s. 20 of the Commissions of Inquiry Act.
Further questions arise as to the effect of a statement made by the Commissioners on 17 July 1997, and its effect (if any) upon the plaintiffs' entitlement to relief.
Finally there is the question, if adverse findings are made against Mr Connolly, whether Dr Ryan may continue to investigate and report alone.

The Criminal Justice Commission: Investigation of its role
The Criminal Justice Commission (the CJC) is a corporation established in 1989 by the Criminal Justice Act 1989. It was set up with support from both sides of politics following recommendations by the Fitzgerald Commission of Inquiry.[2] The evidence and recommendations in that Inquiry exposed cause for deep community concern in relation to police corruption and other matters of public administration. Consequential legislation has produced significant changes to the public law and institutions of Queensland. It may be noted in passing that since 1922 Queensland has had a unicameral legislature. Changes included the setting up of two commissions, the CJC and the Electoral and Administrative Review Commission (EARC). The supervisory mechanisms of the CJC are the Supreme Court (in limited respects), and, more generally, a parliamentary committee called the Criminal Justice Committee, known as "the PCJC".
[2]Established by Orders-in-Council of 26 May 1987, 24 June 1987, 25 August 1988 and 29 June 1989; Report presented on 3 July 1989.
The objects of the Criminal Justice Act are to establish and maintain a permanent body
"(i)to advise on the administration of the criminal justice system in Queensland with a view to ensuring its efficiency and impartiality;

(ii)to continue investigations commenced by the commission of inquiry;[3]
[3]i.e. the Fitzgerald Commission of Inquiry.

(iii)to investigate the incidence of organised or major crime;

(iv)to take measures to combat organised or major crime for an interim period;

(v)to investigate complaints of official misconduct referred to the body and to secure the taking of appropriate action in respect of official misconduct;

(vi)to hear and determine disciplinary charges of official misconduct in prescribed circumstances;

(vii)to discharge such functions and responsibilities as are incidental to or in aid of discharge of the activities mentioned in subparagraphs (i) to (vi);"[4]
[4]Criminal Justice Act 1989 s.2(a).

Its functions include the obligation to
"(a)continually monitor, review, coordinate and, if the commission considers it necessary, initiate reform of the administration of criminal justice;

(b)discharge such functions in the administration of criminal justice as, in the commission's opinion, are not appropriate to be discharged, or cannot be effectively discharged, by the Police Service or other agencies of the State."[5]

The CJC has an "official misconduct" division[6] which investigates instances of official misconduct not only within the Police Service, but also within any "unit of public administration" which term expressly includes the Legislative Assembly, the Executive Council and the Courts of the State.
The matters upon which the CJC has the power to investigate and report include many matters upon which different perceptions might be held by persons of different political persuasions.
Questions such as the desirability of a body such as the CJC, and the powers and functions that should be entrusted to it, have arisen from time to time. Such questions are of considerable importance to the State, and it would be perfectly proper for any government to investigate them, if necessary by the appointment of a commission of inquiry. Such topics might be regarded as falling within the subject matter of political science or constitutional theory. In theory at least, the answers to such questions would not necessarily invoke party political issues or induce partisan political responses.
That however was not to be the case.
Political controversy surrounded the commission to which the defendants were appointed both before and after its creation. In the circumstances which are about to be described, it was particularly important that those appointed to conduct this particular commission of inquiry could be seen to be impartial, and not as serving the interests of one side or the other of politics.[7]

[5]Section 21.(1). Its extensive responsibilities are further described in s.23.

[6]The term “official misconduct” is widely defined in s.32.

[7]The reasons for this conclusion appear particularly in parts 4 and 5 of these reasons.

Narrative of principal events
The commission to which Mr Connolly QC and Dr Ryan QC were appointed on 7 October 1996 was preceded by an investigation, still at that time current, presided over by Mr Carruthers QC. He had been appointed by the Chairman of the CJC under the Criminal Justice Act. The event directly leading up to his investigation was a request from Mr Cooper, a Minister of the newly appointed Coalition Government, on 27 February 1996, that the CJC consider whether any impropriety existed in relation to the signing of a document described as a Memorandum of Understanding (“MOU”). The Chairman of the CJC, Mr Clair, replied two days later that the circumstances deserved investigation. On 26 March 1996 the CJC made a formal decision to conduct such an investigation and appointed Mr Carruthers to constitute the Commission under s.25(2) of the Act.
Mr Carruthers commenced hearings, mainly in public[8], in April 1996. Over the following months considerable publicity[9], potentially embarrassing to Mr Cooper, to the Premier and to others who were involved with the memorandum of understanding, ensued from extensive reporting of the work of Mr Carruthers' Inquiry. The Premier (Mr Borbidge), the Police Minister (Mr Cooper) and other members of the government gave evidence and were cross-examined by counsel assisting (Mr Hampson QC) and were questioned by Mr Carruthers. The hearings attracted intense publicity.
[8]Under power conferred by s.90 of the Criminal Justice Act.
[9]Such publicity was proved by evidence given in the present proceedings.
The CJC resolution effecting Mr Carruthers' appointment on 21 March 1996 was in the following terms:
"THE COMMISSION RESOLVED . . .
(1)To conduct an investigation into the circumstances surrounding the creation and execution of the said MOU with a view to determining whether any member of the QPS[10] or any other person should be charged with a disciplinary offence of official misconduct or misconduct or any other offence, criminal or disciplinary.
[10]Queensland Police Service.

(2)As part of the investigation referred to in paragraph (1) hereof, to consider generally such circumstances, and to make such recommendations as may seem appropriate in light of the Commission's responsibilities under s.23 of the Act and otherwise having regard to the statutory duty of the Commission imposed by s.93 of the Act.

(3)To engage the services of an independent qualified person pursuant to sections 25(2)(d) and 66 of the Act, that person being The Honourable Kenneth Carruthers QC, to conduct the investigation, to hold such public or private hearings as may be appropriate and to report thereon to the Commission, to enable the Commission the Commissioners and the officers of the Commission to discharge the functions and responsibilities imposed upon them by the Act."

The investigation required a determination whether any member of the Police Service "or any other person" should be charged with official misconduct or any other offence. By August 1996 there was a live question whether Mr Cooper's participation could lead to a charge under s.155 of the ElectoralAct 1992.
Mr Cooper had by this time obtained an opinion from Mr Connolly QC. This opinion exonerated Mr Cooper from any suggestion of wrong-doing. It was supplied to Mr Gallagher QC (Mr Cooper's counsel before Mr Carruthers) and was tendered by him to the Commission on 29 August 1996 in an attempt to counter written submissions and other opinions which had already be tendered in support of the view that certain police officers were guilty of official misconduct and that Mr Cooper may have committed an offence against s.155 of the Electoral Act.
Mr Connolly's opinion touched matters factual, legal and political. It was in all respects favourable to Mr Cooper. It included the following statements
ØI am clearly of the opinion that neither wholly nor in any part do these documents evidence the formation of a contract.

ØThat conclusion [in the Fitzgerald Report that the Union ought not influence the selection of Police Commissioner][11] was reached some seven years ago. The actors whose conduct led to this recommendation have departed, and much water has flowed under the bridges. In any case, with all respect, such conclusions do not have binding force and it is a matter for the decision-makers, including the Parliament, whether they adopt them.
[11]Words in square brackets are interpolated.

ØNothing could have been more open and regular than the procedure whereby the contents of the MOU were decided upon it being clearly understood that that document would be forwarded to the Union.

There is no conceivable damage which querist or the National Party could sustain by the revelation that he had reached agreement on certain matters of policy affecting the conduct of the Police Service with the Union. [This is expressed in the context of rebutting any suggestion that Mr Cooper should have disclosed publicly the existence of the memorandum.]

ØThe documents read as a list of the Union's concerns and wishes on the one hand and, on the other, the policy of the Coalition in relation to these matters. In one form or another this is a commonplace of the election period.

The opinion relied on certain instructions that Mr Connolly had apparently been given, including that
ØMr Wilkinson, the President of the Police Union, did not see the MOU as a binding document

Øso far as querist is concerned the answers [to proposals in the MOU] represented policy for which he was responsible as Shadow Minister and

Øthere was no secrecy about the furnishing of the MOU.

The accuracy of these instructions was disputed by counsel assisting Mr Carruthers' inquiry.
Mr Connolly's opinion and its use on Mr Cooper's behalf was the subject of extensive media publicity on and after 31 August.
The inference was open that if Mr Connolly's opinion was correct, the long-running Carruthers Inquiry was a waste of time and money, and that it would be very difficult for Mr Connolly ever to see it as anything else. As will be seen, there are subsequent statements suggesting that Mr Connolly strongly retained that opinion. The retention of that opinion would also make it very difficult for him ever to accept that the CJC had any justification for setting up that inquiry.
On 2 September 1996 the Attorney-General announced that an inquiry into the CJC would be held, and that "a retired Supreme Court Judge" would conduct it. No details were given of timing or subject matter. Then on 13 September 1996, Mr Grice, a National Party MLA, made serious allegations against Mr Le Grand, a director of the CJC's Official Misconduct Division, in the Legislative Assembly. They were to the effect that Mr Le Grand had unlawfully disclosed confidential CJC documents and had later knowingly set up an inquiry by Mr R Hanson QC into the "leakage" of those documents. It was alleged that he had perjured himself before Mr Hanson. Mr Grice claimed that his allegations should be investigated by the recently foreshadowed commission of inquiry into the CJC, and that "in view of the seriousness of the matters raised today" Mr Le Grand should be removed from his position.

The Government quickly made a decision to establish the relevant commission of inquiry before the conclusion of the Carruthers Inquiry. The reason publicly given for this was that the allegations against Mr Le Grand necessitated an early investigation.
On 7 October 1996 the subject Commission of Inquiry was established by Order in Council and Mr Connolly was commissioned to chair it with Dr Ryan as a co-commissioner.
Mr Connolly had not by this time been paid his fee ($4000) by his client Mr Cooper. That was attended to on 10 October.
With commendable speed, Parliament then enacted the Criminal Justice Legislation Amendment Act, which was passed and assented to by 15 October, declaring that the Commissions of Inquiry Act prevailed over the Criminal Justice Act, and ensuring that all persons associated by the CJC would be compellable to give evidence and supply documents to the Connolly-Ryan Inquiry. The explanatory notes[12] asserted that the Act implemented recommendations by the Solicitor-General and by senior counsel appointed to assist the Connolly-Ryan Commission.
[12]Queensland Acts, Explanatory Notes, 1996, p 277.
The Commissioners at a very early stage reached the view that part of their task was to investigate the conduct by Mr Carruthers in the carrying out of his inquiry. Whether that was a correct conclusion will be later considered.[13] Mr Carruthers of course had not by then completed his inquiry and among other issues was considering the position of Mr Cooper.
[13]See part 10, pp 72-76 below.
On 24 October, consistently with the intention of Mr Connolly and Dr Ryan as publicly expressed on a number of occasions[14] to include Mr Carruthers’ conduct of his Inquiry as a matter within their authority to investigate, Mr Hanger QC (counsel assisting the Connolly-Ryan Inquiry) sought an undertaking from Mr Carruthers
[14]Including their joint statement of 30 October 1996, described below, pp 14-15.
"not to destroy any document which comes into or has come into your or their possession or has been produced in the course of the inquiries conducted by you for the preparation of your reports. I include drafts of your reports in the category of documents which should not be destroyed."

His letter alleged

"There exists the distinct possibility that the conduct of your inquiries will be a matter to be considered by this Commission of Inquiry."

Mr Carruthers declined to give such an undertaking. On 25 October Mr Hanger repeated this request, asking additionally whether Mr Carruthers was prepared to permit staff of the Connolly-Ryan Inquiry to inspect and copy documents of the kind referred to in his previous letter. He added
"It would be regrettable if this Commission of Inquiry was compelled to exercise its coercive powers to achieve an object which could readily be achieved by cooperation."

The extent (if any) to which Mr Connolly and Dr Ryan initially instructed Mr Hanger to proceed in this way is not the subject of any direct evidence. However subsequent statements by Mr Connolly and Dr Ryan did not retreat in the least from the demands that had been made, and I infer that they were supportive of it. Mr Connolly, in a radio interview soon to be mentioned, referred to Mr Hanger's letter as "perfectly sensible".
On the same day, 25 October, Mr Hanger told Mr Carruthers' solicitor that he was indeed serious, that while he did not want to do so, he would "get an order" if there was no agreement about it. He also told Mr Carruthers’ solicitor that he should "see him (Mr Carruthers) and tell him to do what he is told".
Anyone who has prepared a report requiring the expression of personal opinion, let alone a judgment, would know how oppressive and unfair these demands were. In my opinion they were outrageous.
On 29 October Mr Carruthers convened a public sittings of his inquiry and, having read a prepared statement, resigned. His reasons for this included the establishment of the Connolly-Ryan Inquiry, the chairmanship of Mr Connolly, and the demands made to him in correspondence by counsel assisting the Connolly-Ryan Commission.
On the following day Mr Connolly attended the Toowong Studios of the ABC and gave a live radio interview broadcast. Speaking of the prospect of his Commission looking into the conduct of Mr Carruthers' Inquiry, he observed
"The only way this can happen, in my book, is if people come and complain about the way they were treated in the Carruthers Inquiry. I don't know whether any are going to, although I am told - this is only anecdotal at this stage - that there are such complaints in the pipeline.[15] Now we can't refuse to look at them if they come before us."
[15]Such complaints did in fact eventuate, including a particularly strong one from Mr Cooper.

Speaking of Mr Carruthers' resignation, he stated

"Well, I can't speak for the Queensland taxpayer - at least not for more than one of them - but I don't think it is a very happy end to it and I think it is childish . . . . Now, if he chooses to take his bat home, that really has nothing to do with us but we have in no sense have we interfered in the least in his Inquiry . .

Question: Would you see now your Inquiry looking specifically at the documents, the evidence, that was presented before the Carruthers Inquiry and perhaps having a finding of your own?

Mr Connolly: I certainly don't see that as a top priority. We might ultimately have to look at something there, but I don't think that the facts in the Carruthers Inquiry, with all due respect to Mr Carruthers, and I only know what I was furnished with - I gave an opinion as everybody knows to Mr Cooper's solicitors as to whether section 155 of the Criminal Code - I think that's the right number - covers this sort of situation, and I point out that if it does, there are lots of criminals wandering around Queensland. Every time you fellows - anybody - says to a Minister or prospective Minister, What's your policy on so and so?, he says, 'Oh fellows, you can rely on us' - right, got him! A bribe!"

In response to the question whether having given advice to Mr Cooper with regard to the Carruthers Inquiry, there might be a question mark over his participation in the current review he responded
"I am now just a barrister, and barristers give opinions, and then they are asked to do other things, and you've just got to see if there is any conflict of interest. I can't see it . . ."

He referred to an opinion obtained from Victoria confirming that mens rea was necessary and continued
"it is not enough, as it happens, you know you help an old lady across the road the polling booth. - Good, we've gotcha! You bribed her! She's got an advantage from resting on your arm. And this, I don't feel embarrassed in this. I gave my best opinion, people are at liberty to disagree with me, but I think its got nothing to do with whether for example the CJC is - the people of Queensland are getting value for money, that is really . . that's the bottom line."

Mr Connolly gave a further interview outside the studio during which he made the following comments
"Mr Connolly: If you call that interfering in the conduct of his affairs, well, its a matter of opinion.

Question: If you call that political interference, why is he reading it that way?

Mr Connolly: Ahh I would rather not answer that. I think things have worked themselves up. Has stated that is paranoia but it is nothing to do with us.

Question: Was he being paranoid?
Mr Connolly: I don't know. You would have to ask him. That or you would have to ask his medical advisers, but I don't know.

Question: How do you describe his behaviour over the last couple of days?

Mr Connolly: Childish. Very childish. He didn't ring me, he got this direction, he gave us a two-line response. 'I will not give the undertaking that I am asked for' . . .

Question: Should he come back and finish it up?

Mr Connolly: That's entirely up to him. It has got nothing to do with me. I don't offer or express opinions on how the rest of the world should act, unless it becomes by direct responsibility to do so. Has he gone? I don't know if he is still in Brisbane. I don't know either. I would think, honestly I would think that, let's put it this way, he seems to have been paid a lot of money and Queensland doesn't seem to have very much for it. I think decency might suggest to him that he reconsider his situation and see, and not start crying until he is actually hurt. In other words, until he gets some direction from us. What sort of direction it might be which interferes with the conduct of this, and after all, by the way, the conduct of it is over. All he has got to do is write his report."

Among other things it is apparent from these interviews that Mr Connolly roundly and publicly insulted Mr Carruthers. It would also seem that he actively promoted to the public the validity of the opinion he had given in favour of Mr Cooper. If the opinion was valid, one would be inclined to think that the Carruthers Inquiry exercise had been a waste of time.
On the same day (30 October ) Mr Connolly and Dr Ryan convened their commission and publicly affirmed that they would investigate how Mr Carruthers conducted his Inquiry. The joint statement indicated their view that they were required to examine how proceedings instituted by the CJC had been conducted. They considered that their obligation was in general terms and encompassed all proceedings including the Carruthers Inquiry.
They asserted that Mr Connolly's opinion given to Mr Cooper was "irrelevant". It may be mentioned in passing however, that much time was subsequently spent at the present Inquiry debating whether the CJC was justified in investigating a possible breach of section 155 of the Electoral Act, and it remains an issue upon which both Commissioners must eventually report.

The joint statement of Mr Connolly and Dr Ryan did not advert to the contribution that the conduct of their own Inquiry may have had upon Mr Carruthers' resignation, other than to assert that they failed to see how a request for the undertaking could infringe his independence.
There then ensued correspondence between the solicitors for Mr Carruthers, the CJC, and the Connolly-Ryan Inquiry with allegation and counter-allegation concerning the terms of reference, the relevance if any of Mr Connolly's opinion and subsequent conduct, and the question whether Mr Connolly ought to continue as a Commissioner. In a letter of 1 November 1996 Mr Hanger intimated that Mr Connolly considered that his opinion was of no relevance, and that he proposed to continue the Inquiry.
On 5 November 1996 Mr Cooper made a public statement that his political enemies, some within the CJC, were “hell-bent” on targeting him “to bring down the Government.”
On 14 November 1996, by means of a private member's bill, the Carruthers Inquiry Enabling Act was passed. It, perhaps belatedly, forbade the Connolly-Ryan Inquiry from taking "any action that has the effect of hindering the deliberations of the Carruthers Inquiry, including the completion of a report for the Carruthers Inquiry".
On 14 November a further radio interview was given by Mr Connolly. The point of the question was "Now that you can't get to the documents because of the Private Members Bill, doesn't that concern you?". His response was, "Not in the slightest because . . . for example let's suppose that there is something there that in the future we might want to see, its almost certainly going to be a copy of something that the CJC has anyway. So you know I think its a lot of - if I may say so without any disrespect - political kerfuffle".
On 18 November 1996, the first day of hearings scheduled by the Connolly-Ryan Inquiry, there was a private session in which the question of Mr Connolly's bias was raised by Mr Hampson on behalf of the CJC. The transcript, which was later made public, shows that Mr Hampson took objection on the ground of bias of Mr Connolly in relation to "the Carruthers Inquiry". He defined this as involving investigation of "the rights and wrongs of whether it was correctly appointed; the way it was conducted by Mr Carruthers; Mr Carruthers' failure to finish his report." This seems to have been taken by the Commissioners as a mere starting point, and Mr Connolly added to that list "What about such things as why it took such a long time . . why certain matters are the subject of public inquiries, others are the subject of private inquiries? We can't really avoid looking at that sort of thing."
Mr Hampson sought to "make it clear that we don't want to waive this" [complaint in relation to bias]. Mr Hanger stated "I've got no problem with Mr Hampson keeping it up his sleeve which is, I think, the way that he's approaching this, with a right to - and I made that point in time - argue about this if that's -should be necessary." Mr Connolly raised the question whether he could properly stand aside from any part of the investigation. "Am I allowed to [do] this? Is it lawful for me to do it? Is it lawful for my colleague to conduct any part of this investigation without me?" Mr Hampson stated that he "would see no difficulty . . in your relying upon what Mr Ryan had found in relation to those issues".
Without reaching any decision on the issue Mr Connolly indicated that he might at some future stage say "All right. My views about Mr Carruthers' behaviour are not unknown and it might be better if I didn't sit on this point".
One week later (25 November) Mr Connolly made a further statement on the question of the objection on the ground of bias. He commenced with a statement concerning the terms of reference and the extent to which his Commission might be concerned with the conduct of the Carruthers Inquiry. On the question of bias, he maintained an entitlement to sit in relation to such matters. However he considered that
"to do what I was inclined to do may well lead to costly litigation and occasion unjustifiable delay in the completion of our task. I am minded, therefore, to accede to Mr Hampson's submission if it can be lawfully achieved. This is a real problem. It is our opinion that in the present state of the law, neither of us can take evidence without the participation of the other. Moreover, our ultimate decision and report should desirably be a joint one. If a workable solution to this problem can be found I am prepared, in the public interest, and against my own inclination to stand aside when any Inquiry into the Carruthers Inquiry, as defined by Mr Hampson, occurs."

The definition to which Mr Connolly referred was to say the least loose and unsatisfactory. Mr Connolly adopted it as referring to
“an inquiry into the correctness of
(1)Mr Carruthers’ appointment,
(2)the way it was conducted by Mr Carruthers,
(3)that gentleman’s failure to finish his report,
(4)why his inquiry took so long,
(5)why it was in public rather than in private, and
(6)generally the way he went about his work.”[16]
[16]Transcript p 7; I have interpolated the numbers.

The first mentioned matter would involve scrutiny of the conduct of the CJC, but all the others would involve only potential fault in the part of Mr Carruthers. The terms of reference in any event concerned the conduct and performance of the CJC, and Mr Carruthers’ conduct could only be an incidental matter for the Inquiry to consider. The above definition would not preclude Mr Connolly from hearing evidence and participating in the determination of the CJC’s fault with respect to items (2) to (6), if fault were shown on its part. But of course if there was a possible combination of fault by both Mr Carruthers and the CJC how could be determine one without the other? And even if he left it to Dr Ryan to sit alone when hearing anything that might reflect upon Mr Carruthers, how could he eventually consider the propriety or otherwise of the CJC’s conduct in these respects without reading the transcript and getting the whole picture?
These problems asserted themselves in due course, as will soon be mentioned.
Three days later, on 28 November, the Governor-in-Council promulgated the Commissions of Inquiry Regulation (No. 2) 1996. It provided, with respect to the Connolly-Ryan Inquiry,
"Either Commissioner of the CJC Inquiry may constitute a quorum of the CJC Inquiry."

The full regulation, and in particular the effect of these words will be later considered.[17] For convenience I will refer to it as "the Quorum Regulation".
[17]In part 12, pp 82-83.
Mr Connolly indicated that he would accept whatever findings Dr Ryan might make concerning the Carruthers Inquiry. Thereafter on most (though not all) occasions when evidence has been led concerning "the Carruthers Inquiry" Mr Connolly has absented himself, in apparent reliance upon the above Regulation as justifying such a course. He has, however, continued to issue summonses under s.5 of the Commissions of Inquiry Act, even in matters that might be thought to involve the investigation into matters in which Mr Carruthers was involved. This merely highlights a difficulty in the division of subject matter to be investigated by a single commission which consists of two persons. Only the chairman has the authority under s.5 to issue necessary compulsory process,[18] and such a function cannot be described as purely formal or a rubber-stamp process. It involves the exercise of a discretion.
[18]It is arguable however that under the Quorum Regulation Dr Ryan could act as chairperson with respect to the limited functions he would perform without Mr Connolly being present. See cl 3(2) of that regulation.
Other difficulties have also highlighted what is submitted to be the impracticability of the proposed arrangement of splitting off "the Carruthers Inquiry" from other subjects of investigation. In the course of difficulties that later arose in this respect Mr Connolly has commented
"Shows you how unrealistic the whole business has been."

"I don't think it's realistic to suggest that every time the magic word 'Carruthers' floats across the atmosphere I have to suddenly vanish out through the wall. That's just not on."

"It's absurd."

"Well I was trying not to listen."

and

"Well, I've always thought this whole business was childish but I engaged to do something of the sort when the matter was first raised. Otherwise I was told, you will recall, that an objection on the ground of perception of bias would be made on the ground that I had given an opinion on a point of law. I couldn't see the sense in it."

The following incident instances the difficulty faced by the Commission in performing its task by means of the artificial attempt to fence off Mr Connolly from this area of the Inquiry. Mr Davies complained that a CJC Inquiry which had exonerated the ALP from impropriety concerning an alleged bribe made to Mr Davies to persuade him not to stand as an independent, had been determined with great speed and superficiality. Not surprisingly a contrast was drawn with the length and depth of the Carruthers Inquiry. Mr Connolly (rightly with respect) considered it a relevant exercise to make a comparison between the results and conduct of the two inquiries. He observed
“I’m going to take no part in the finding of the primary facts in relation to the Carruthers matter, but when they’re found I’ll certainly have to try and make up my mind what I think about the comparison between the two.”

He later added
“When facts have been found, if inferences are to be drawn from the results, and . . . there’s a contention that there is a tendency in a particular direction, I must be involved in looking at that.”[19]
[19]Transcript 3068-3069.

It is fair to say that the attempted arrangement has caused problems, and could yet cause further problems.
On 22 January 1997, one of the part-time commissioners of the CJC, Professor Homel, attended the premises of the Connolly-Ryan Commission to give evidence in private session before the Commissioners. He was met in the reception area by Mr Connolly. The men had not previously met. Outside the room in which Professor Homel was to give evidence Mr Connolly said words to the effect

"Now that our side of politics is back in power we can do a proper critique of the Fitzgerald experiment."

Prior to the Mundingburra election in 1995, Professor Homel had been a member of an association called The Coalition for Crime Prevention which had prepared an "action plan" relating to the prevention of crime. This had been given to Mr Beanland who is now the Attorney-General, and it had been adopted by the Coalition as part of its "Law and Order" policy prior to that election. However in fact Professor Homel had no political affiliations.
Professor Homel was very surprised by the remark but put the comment to one side. He had taken the stance with Mr Hanger, and others, that he wanted to see some constructive things come out of the Inquiry, and he comforted himself with the thought "I guess Mr Connolly will exercise his legal training and be objective".
It will be necessary to mention the manner in which the CJC became aware of this piece of information, as one of the issues in this case is whether the CJC and Mr Carruthers have waived the right to complain of bias or apparent bias on the part of the Commissioners.
During meetings of the CJC which he attended, the Chairman Mr Clair usually made mention of how matters were progressing at the Connolly-Ryan Inquiry, but matters of that kind were not recorded as formal business in the minutes. There had always been some concern, so far as Professor Homel could tell, about the appointment of the two Commissioners, particularly Mr Connolly. The level of concern had grown as the Commission progressed and it became "more of an issue in our meetings". It is probable that the remarks of Mr Connolly on the radio had been raised at an earlier meeting. At the meeting of 22 April, or possibly a later meeting, the Chairman Mr Clair expressed concern over what he saw as biased conduct on the part of Mr Connolly. The increased concern by April probably arose from Mr Clair's perception of the way in which some witnesses were being treated by the Commissioner. The Chairman's concern on 22 April [or later] prompted Professor Homel for the first time to disclose to others at the meeting the conversation that Mr Connolly had had with him on 22 January.
I accept that Mr Clair and those responsible for making decisions on behalf of the CJC, had no knowledge or notice of any concern that might arise from the statement that had been made to Professor Homel until at least 22 April 1997 and possibly later.
On 10 March 1997 Dr Ryan sat alone to hear objections taken on behalf of counsel for Mr Carruthers on the ground of both Commissioners' bias. The objection included a submission that the "quorum regulation" and separate sittings by members of the Commission was ineffective to avoid the consequences of that bias. It was further submitted that Mr Connolly should hear his client's objection because it concerned him also. Dr Ryan adjourned to notify Mr Connolly, who Dr Ryan believed was available to hear the objection. However he returned later without Mr Connolly and proceeded to hear the objection without explaining Mr Connolly's absence.
Dr Ryan considered it unnecessary at that stage to give any formal ruling, because
"[A]s I have explained to you already and I repeat it - if there was any question arising even in this week, let alone at a later stage of any matter which may reflect upon the reputation or position of Mr Carruthers in any way, then you would be notified and further submission could then be addressed."

In the days following, Dr Ryan seems to have encountered some difficulty in giving effect to this intended exclusion of evidence affecting Mr Carruthers. Cross-examination adduced matters touching and concerning Mr Carruthers' conduct, but no notice was given to Mr Carruthers. A number of examples have been mentioned in submissions, and it will suffice to instance one only.
"Question: By 2 April had anybody from the Commission or indeed Mr Carruthers, identified or articulated one potential fact which might be found which would make a skerrick of difference to Mr Hampson's view that there was no breach of section 155?

Answer: I can't recall any specific individual articulating specific facts. I think from what you've referred me to yesterday about Mr Carruthers' comments on 2 April and a note that I have of 1 March - 1 April rather, a conference on that date, it was something in his consideration."[20]
[20]Transcript, p 3301.

The examples serve to emphasise the impracticability of tidily cutting off the investigation touching and concerning Mr Carruthers' conduct with the object of fencing off Mr Connolly from it.
On 30 April 1996 Mr Cooper made a formal complaint to the Inquiry concerning his treatment by the CJC, including at the hands of the Carruthers Inquiry. He incorporated into his complaint the text of a speech he had given on 17 April, with the request that that speech be regarded as a "formal submission". He complained that "my own side of politics paid dearly" and accused the CJC of spending most of 1996 to ensure his personal and political destruction. The complaint continued that
"literally hundreds of other Queenslanders had their rights trampled upon; their privacy invaded, their homes bugged, their telephone records seized and analysed as the CJC embarked upon its crusade to bring down the newly-elected Coalition Government."

He also referred to "the Carruthers tumbril as it careered across the landscape in what we now know was always an exercise doomed to failure", and alleged that "the Carruthers Inquiry was allowed to take over and distort the political landscape of our State . . . when all along the CJC knew there was no case to answer; no charge to bring."
On 27 May Mr Hanger gave written notice to Mr Carruthers' counsel that
"The hearing before Dr Ryan QC in relation to the Inquiry by Mr Carruthers QC into the Memorandum of Understanding resumes next week. It is possible that evidence will be given which will reflect adversely on his conduct of the Inquiry."

What had until then only seemed a possibility to Mr Carruthers was converted into a reality. Mr Carruthers responded quickly. On 2 June his counsel appeared before Dr Ryan, who was sitting alone, and reasserted his objections that both Commissioners were biased and that the device of separating the Commissioners on matters concerning Mr Carruthers was ineffective to cure the objection. Again it was submitted that Mr Connolly should hear the objection, but again Mr Connolly declined to participate in the hearing of those submissions.
Dr Ryan then rejected the submissions on the ground that no reason had been shown why he should not continue to hear "evidence in relation to the Carruthers Inquiry", observing that such evidence was not limited to evidence concerning the initiation of that Inquiry. Three days later he gave formal reasons for dismissing the objection. He rejected the notion of bias or apparent bias on either his own part or of Mr Connolly, stating that fair-minded people could not reasonably apprehend or suspect that Mr Connolly had "pre-judged or might pre-judge the issue of the manner in which Mr Carruthers had conducted his Inquiry".[21]
[21]Transcript p 6929.
On 3 June Mr Carruthers commenced the present action against Mr Connolly and Dr Ryan, and on 12 June the CJC did likewise. Mr Connolly and Dr Ryan have continued to conduct their Inquiry, which has since then ranged in considerable detail into the activities and responses of Mr Carruthers during his Inquiry. There are more than 700 pages of transcript bearing upon this aspect of the Inquiry. It contains many searching questions concerning Mr Carruthers' actions and responses in the course of conducting his Inquiry. Inter alia it ascertained whether the CJC was funding the present action of Mr Carruthers.
In the meantime directions were given to expedite the present hearings and by 18 June the present trial had been set to commence on 21 July.
On 17 July, the penultimate working day before the trial was to commence, the Commission convened in public, and the following statements were made
"DR RYAN: Before we begin this morning's proceedings I wish to make a brief statement. All the evidence in relation to what has been referred to as the Carruthers Inquiry has now been heard. Submissions will be called for in relation to that matter at an appropriate time. I consider that I should make now this statement having regard to the provisions of the Criminal Justice Act and the Order in Council of 7 October 1996. First, it is clear, as the resolution of the Criminal Justice Commission of 21 March 1996 records, that Mr Carruthers was engaged pursuant to sections 25(2)(d) and 66 of the Criminal Justice Act to conduct an investigative hearing which the Commission had resolved should be conducted. While criticism has been made of the Commission for having adopted paragraph 1 of that resolution, no criticism can be made of Mr Carruthers for having complied with the terms of his engagement.

Secondly, no criticism can properly be made of Mr Carruthers in relation to the use by the Commission of its coercive powers during the course of his investigation, including the search warrant and listening device powers, since the responsibility for invoking the exercise of such powers is cast by the Criminal Justice Act upon the Chairperson of the CJC. And, thirdly, there is no evidence before this Inquiry upon which a finding adverse to Mr Carruthers personally could be made concerning his conduct of his Inquiry.

MR CONNOLLY: I agree."

The present trial then commenced on 21 July.

Partisan Political Bias
It is not to be expected that Commissioners who are appointed to examine and make recommendations on the matters such as those entrusted to these Commissioners should be devoid of a sense of social, political, moral or economic direction.[22] The main question in the end will be whether a Commissioner is reasonably open to persuasion and seen to be so. In the circumstances which have been shown to exist in relation to the appointment of this particular Commission and the performance of its work, political prejudice or favouritism, if shown to be harboured by a Commissioner, would be a matter for considerable concern. In determining the ultimate question of ostensible bias on the part of a Commissioner, the Court must attempt to form some view whether the conduct in the circumstances would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Commissioner will not discharge his task impartially.[23]
[22]cf. Aronson and Dyer, Judicial Review of Administrative Action (1996) p 601, 616.
[23]See R v Watson; ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1982-1983) 151 CLR 288; Re JRL; ex parte CJL (1986) 161 CLR 342; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; and Webb v The Queen (1993-1994) 181 CLR 41. The principles are further discussed in part 7.
Such a citizen would be likely to be concerned if a Commissioner entrusted with the powers of this particular Commission were thought to harbour political prejudice. This follows from the circumstance that influential members of the Coalition had expressed hostility towards the CJC, including their view that the CJC had engineered considerable embarrassment for the Government. The narrative of principal events provides sufficient basis for this conclusion but it is as well to amplify it.
On 27 August 1996, at an advanced stage of the Carruthers investigation, counsel assisting it (Mr Hampson QC) expressed the view that there was "enough evidence" against Mr Cooper to support a charge. Mr Connolly's opinion was tendered by Mr Cooper's counsel, strongly refuting any such suggestion. For a number of days Mr Cooper suffered wide publicity and speculation about his jeopardy, at local, statewide and national levels. This was quickly followed by Mr Beanland's statement of 2 September foreshadowing an inquiry into the CJC. From a public viewpoint, it was already obviously important that the appointees in any such inquiry should be seen to be impartial, and not as persons who might be thought to have preconceptions antipathetical to the CJC or views that coincided with those on one side of politics or the other. In short it was important that anyone appointed to the Inquiry be seen to be a commissioner, not an executioner.
Mr Grice's statement in Parliament then accelerated the commencement of the inquiry. His informant was his employee Mr Nicholls and there is evidence suggesting that he had known of these allegations for some time. On 17 September 1996 the Premier announced that the Inquiry was now to be "brought forward" and suggested particular terms of reference which would investigate not only Mr Grice's allegations, but some other issues as well which plainly were of a political nature, and capable of leading to a judgment concerning which side of politics had behaved properly or improperly on such issues. The particular issues were ones in which CJC investigations had produced results apparently helpful to the Labor side of politics.
In early November, between 2 and 4 November, both the Premier and Mr Cooper made public statements which left little doubt where they stood in relation to the CJC. They accused it of a political vendetta against Mr Cooper. Counsel for the CJC, before me, submitted that Mr Cooper's allegations were of a matter of public importance, and that the public deserved to know whether they were correct. The point that he makes is that whether they were right or wrong the allegations deserved scrupulously impartial scrutiny. I accept that submission. It is consistent with observations in Mahon v Air New Zealand[24] and Kioa v West.[25]
[24][1984] 1 AC 808.
[25](1984-1985) 159 CLR 550 at 615-616 per Brennan J.
Counsel for the CJC submitted that the requirement of political impartiality grew even more acute as time passed, particularly upon a reference by Mr Beanland to the Inquiry of the complaint of one Mrs Mack in relation to her treatment by the CJC. Her complaint had formerly been espoused by Mr Beanland when in opposition. There is also the circumstance that on 30 April 1997 Mr Cooper's formal complaint was entrusted to Messrs Connolly and Ryan. This produced the consequence that Mr Cooper moved from a complainant outside the Inquiry to one within it, and he would be seen to be bringing a complaint to his former barrister. Part of his complaint in fact quotes from Mr Connolly's opinion.
A complaint (concerning conduct of the CJC) was lodged by the Liberal Party in a letter of 15 May 1997. Mr Connolly, as Chairman, issued a summons to the CJC requiring it to make response to the Liberal Party's complaint. There was also one from the National Party dated 30 October 1996. The need to deal with such matters reinforces the submission that a substantial part of the Commission's work involved consideration of matters where scrupulous political even-handedness was necessary. Indeed, 80 out of 122 sitting days were devoted to matters described as the Heery, Mack, Davies, Grice and Heiner matters, all of which are politically flammable.[26] Most of these issues involved allegations of political favouritism on the part of the CJC allegedly calculated to harm the Coalition side of politics or to assist the anti-Coalition side of politics. The cross-examination of some counsel makes it a foregone conclusion that submissions to this effect will eventually be made before the Commissioners. To give one example only, Mr Beanland, when shadow Attorney-General, had made a complaint to the CJC alleging that the ALP had tried to bribe Mr Davies into not contesting a seat as an independent candidate, and that the CJC had rejected that complaint extremely quickly, privately and unsatisfactorily. The Commissioners decided to review the CJC’s treatment of it. On this matter, during cross-examination of Mr Clair, Mr Connolly put the following question, with unmistakable sarcasm
[26]Grice allegations 44 days; Davies 18; Carruthers 11; Mack 3; Heery 2; Heiner 2.
“Mr Davies was in the fortunate position of being the recipient of much kindness in all this business, wasn’t he? Kindness from the ALP and then kindness from the CJC; it’s a heartening story? . . .”[27]

To the witness’s response that it was an attempt to be fair he commented
“Well . . . fairness and kindness both, very good.”
There is no doubt that the alleged political partisanship of the CJC is a central question that has been examined and is still being examined by these Commissioners.
Looking at all the circumstances, including those described by Professor Homel, I think that the fair-minded observer would indeed be seriously troubled by any inference of continuing political allegiance on Mr Connolly's part. Mr Hughes QC, for the Attorney-General, submitted that the reference to "our side" was hardly shocking, and that the dominant effect of the statement is that he wanted to do good a job of review. However I think it would naturally be interpreted as indicative of a continuing favourable alignment with one side of politics.
As in most circumstantial cases, particular pieces of evidence, standing alone, may seem trivial, and sometimes neutral, but in combination they may overwhelmingly point in a particular direction.
I shall defer conclusions on this question until after consideration of the next section, which deals with actual conduct of the Commissioners during the work of the Inquiry.

[27]Transcript 3142.

Bias in Conduct of the Inquiry
In each instance of conduct that is said to be indicative of bias it will be necessary to try to understand the Commissioners' responses in a wider context.
It must be remembered that the cut and thrust of forensic work may produce tensions, and that denigratory comments to counsel, sarcasm and hard words from time to time may not be amiss. It is also to be remembered that although there are the trappings of court procedure, the investigation is essentially inquisitorial, and that the Commissioners are to be expected to play a far more active role in ascertaining the facts than occurs in a court. A wide range of expression and conduct must be permitted for a commissioner, and one should not interpret robust conduct as a badge of bias.
There are very many instances of conduct by Mr Connolly during his chairmanship of the Commission that are relied on by counsel on behalf of the CJC. These he submits, when collectively considered, show a consistent pattern of hostility to the CJC and to what it has achieved, and an unwillingness to bring an objective mind to the assessment of its conduct. In short it was submitted that his conduct shows a continuing predisposition against the CJC. Some of these instances are said to reveal pre-judgment of the allegation brought by Mr Grice against Mr Le Grand. There are also some instances cited concerning Dr Ryan's conduct.
It is not feasible to deal here at length with all of the very many occasions that are the subject of complaint. It will suffice to mention a few illustrative instances, including some relatively trivial and some more worrying instances.
(a)One of the major instances relied on against Dr Ryan is his statement on 20 January 1997 publicly accusing the CJC of a lack of cooperation. He alleged that not only had staff members of the Commission failed to present a single submission, but that the Commission
"has not received any submission on any of the matters to which I have referred on behalf of the CJC itself or its Chairman and senior officers. We have not been informed what views, if any, are held by them in respect of any of the matters which we have been charged to examine and review."

He continued

"There has, however, been no indication to us that it intends to put in any submission to us and the course it has followed so far in this Inquiry gives no reason to suppose that it intends to do so. That course is one which I can only characterise as manifesting almost total non-cooperation."

and

"The principal officers of that body appear to be bent upon a course of hindering our Inquiry in every way within their power."

The statement was somewhat surprising in that it was in at least some respects incorrect. The CJC had in fact delivered a lengthy submission (125 pages) in November and its Intelligence Division had delivered another extensive submission on 2 December. Beyond this it is impossible for me to tell whether the CJC's cooperation with the Inquiry was more of a pretence than a reality, but I am prepared to infer that there was some basis for the Commissioners to be concerned at the level of cooperation they were receiving.
The Commissioner's allegation was immediately contradicted by Mr Hampson who outlined the history of arrangements between the Commission and the CJC and the material which it had supplied. A press release of the Commissioner's comments was however permitted to be released.
The incident is suggestive of an "us and them" attitude that seems to have existed between the CJC and the Commission, and it evidences a lack of trust on both sides.

(b)On numerous occasions Mr Connolly has expressed a degree of disapproval of the CJC's conduct in claiming legal professional privilege with respect to a number of documents gathered for its own protection and for the protection of Mr Le Grand in an attempt to defend themselves against the Grice allegations. Such resentment can be seen at a fairly early stage in transcript references.[28] For example when a part-time commissioner of the CJC was being examined the following remarks were made
[28]e.g. pp 726, 807.
"Question by Mr Connolly: Do you like the idea of being a part-time commissioner of the CJC whose counsel, your counsel, is denying us access to documents which may be very helpful? Do you like that idea?

Answer:Well I'm not sure that - I mean, I don't know that he is denying it.

Mr Connolly: He's doing his best."

This was to be a recurring theme displaying frustration if not outrage at the CJC for daring to assert such a right. The Commissioners ruled against the privilege claim, but the CJC and Mr Le Grand appealed to the Supreme Court where the matter came on before me. I upheld the substance of their claim to privilege. One consequence of this was that when the Commission later came to examine the alleged improper conduct of Mr Le Grand, counsel for the CJC and Mr Le Grand had some documents which the Commission did not.[29]
[29]See for example pages 726, 807 and 893.
Mr Connolly's disapproval seems to have intensified after the adverse court decision. His comments included that the suggestion that Mr Pearce (a barrister) was bound by legal professional privilege was "extraordinary" and that the claim was "a technical device", that the insistence upon a claim of privilege was "just a game that's being played" and that "you'd think that (the CJC was) from the Soviet Union or something you people". He added that the Commission of Inquiry was "being frustrated at every turn" by the claim of privilege.
He later asserted, while respecting the Court's decision "that the evidence was changed when it came before that learned Judge". Certainly no suggestion to that effect had been made in the proceedings before me. In an attempt to demonstrate that such a view could be reasonably entertained by the Commissioner, counsel for the Attorney-General during final address invited me to make a comparison between certain pages of the private transcript when the matter was originally raised before the Commission, and the affidavits which were filed in the proceedings before me (in particular, to compare private transcript pages 84, 90, 102-103, 126-127 and 135-137 with paragraphs 7, 8 and 26 of Mr Clair's affidavit and paragraphs 29-31 of Mr Pearce's affidavit). Having done so I consider that the essential basis of the claim did not vary although some confusion was exposed in the minds of those witnesses under lengthy questioning. There always was a difficulty in separating out the special defensive task (to defend Mr Le Grand and the CJC in relation to the Grice allegations) entrusted to Mr Pearce, and other official CJC functions such as retrieving material concerning the "Wallah" investigation and a preliminary collection of what might become relevant to any official inquiry the CJC might make into the Grice allegations. The issue both before the Commission and before me was the same - whether those things could be regarded as separate tasks or whether privilege was lost by reason of dual purpose. The matter had been simplified to some extent by the time it came to the Supreme Court, because in the meantime the CJC had conceded that some of the documents in respect of which they originally sought to claim privilege were not so entitled and these had already been supplied to the Commission.
In those respects some elements capable of producing confusion had been removed by the time the case was presented in the Supreme Court. However I do not think that it was fair to allege that the evidence had changed or that there was any reasonable basis for Mr Connolly to make that allegation, as he repeatedly did, against the CJC and its officers. Mr Connolly conceded that he had not read the evidence in the Supreme Court proceeding.
On succeeding days Mr Connolly returned to the same theme, stating to Mr Nicholls’ counsel with respect to a privileged document "We've been facing this sort of business for months" and again some days later to Mr Nicholls’ counsel when a document was put to him "and all the matter of legal professional privilege you must remember. That gives it a special weight I suppose." Upon Mr Hampson submitting that "we're all bound by the way it's been determined" by the Supreme Court, Mr Connolly replied "You're perfectly correct. We're perfectly bound by it but we're also entitled to be conscious of the fact that the evidence was changed". Mr Hampson protested observing "It seems a case of bad losers, but its kept being re-ventilated the whole time". Mr Connolly however subsequently responded that the CJC witness had relied on "chapter 2, on the amended statement of evidence". As recently as 24 June 1997, Mr Connolly repeated his belief that the evidence was changed.
I am conscious of presenting extensive quotations and discussing at some length a series of incidents on a theme that might be regarded as relatively unimportant. However it is necessary to do so in order to place it into some kind of context and in order to characterise it. It does not seem to have been merely playful banter with counsel or part of the cut and thrust of contentious proceeding. It can be seen as a part of a wider pattern of denigration of and apparent hostility towards the CJC. The CJC was the body he was appointed to investigate and its future would be affected by his report, according to whether he saw it in a positive or a negative light.
The examples in this subparagraph expose resentment against the CJC which is difficult to justify, and they were in my view unfair.

(c)On 20 January 1997, having expressed his concern at Mr Hampson and his instructing solicitors having the authority to act not only on behalf of the CJC, its Chairman, its Commissioners and members of staff of the CJC, Mr Connolly stated
"I have seen a document which was a statement made by a fairly recent witness with parts of the document struck out apparently by your instructing solicitor."[30]
[30]Transcript page 1095.

The insinuation was that the CJC's solicitor was taking a proactive role in maintaining a consistency of interest between those persons, to the extent of striking out part of a statement. Mr Hampson referred to the document in question and reminded Mr Connolly that its maker had already given evidence that he had made the alterations to it himself. There was no retraction. This is of itself perhaps a minor matter, but it tends to support the submission that there was a propensity to attribute impropriety to those acting for the CJC.
(d)On 11 February 1997 in questioning by Mr Connolly of Mr K.H. Davies (the former Chairman of the PCJC) Mr Connolly stated
" . . . I'd like to be corrected on this if I've got it wrong, but that seems to be the view that they take, that means that they're not obliged to give any reasons to anybody for anything that they do."[31]
[31]Transcript p 2006.

The witness responded by suggesting that "they" (no doubt the CJC personnel) "get hung up on this word 'independence'" and went on to quote what Mr Fitzgerald had to say about balancing accountability and independence.
This example shows no more than a concern about a perceived attitude of the CJC, and it may well have been a justified perception. Its only relevance is that it is another of many negative perceptions.

(e)During the giving of evidence by Mr Strange, an officer of the CJC, counsel for the CJC (Mr Martin) objected to the continued cross-examination of Mr Strange after he had stated that he could only make the comparison he had been requested to make if he had the necessary material to do so,[32] and submitted that it was impossible for Mr Strange to answer those questions unprepared without documentation relative to one of those matters. Mr Connolly responded
[32]p 2460.
"He wouldn't accept that if he were sitting in the CJC; unprepared is the way they like them, surely."

(f)A little later on the same day Mr Morris QC, counsel for Mr Davies, cross-examined Mr Strange on the meaning of the word "substantiated". The witness’s answer was "proven". The following exchange ensued
“Question:Proven. What, you're judge and jury now are you?

Answer: No.

Question:You decide whether something's proven. I think 'proved' is actually the word but you decide guilt or innocence, do you?

Answer: No we didn't decide that at all.

Question:This Gestapo Headquarters at Toowong is now the organisation which decides who's guilty or innocent in our community.

Answer:No, we don't, and I've explained our role before."

This was inflammatory and unacceptable, and there was no intervention on the part of the commissioners. It must be said however that neither was there any objection taken by Mr Hampson. It might be noted that a similar sentiment was subsequently echoed by Mr Connolly on 12 June 1997 (transcript page 7252) in the course of consideration of Mrs Mack's complaint. Mr Martin referred to the fact that allegations were made against a number of police officers and others in the course of the investigation. Mr Connolly responded
"A sort of Gestapo raid, a horde of people descended upon these people, I don't know, but that's not of any great interest to anybody is it? I wouldn't know."

Counsel for the Attorney-General sought to explain the comment on the footing that it was a heavy execution of a search warrant, and that it would have been preferable to have served a notice to produce under s. 69 of the Criminal Justice Act. It still seems however to be an intemperate way to describe the incident.
(g)There are a number of respects in which it was submitted that unfairness is evident in approaches taken by Mr Connolly in relation to the Grice allegations made against Mr Le Grand. These allegations are founded entirely upon the evidence of one Mr C. Nicholls, who during a former inquiry into the very question of who was responsible for the loss of relevant CJ documents had assured the inquiry that it was not Mr Le Grand. The submissions include the following
(i)a lack of even-handedness in the treatment of Mr Nicholls on the one hand and Mr Le Grand on the other. The suggestion is that there was some cosseting by Mr Connolly of Mr Nicholls and some indication of pre-judgment against Mr Le Grand. For example, during cross-examination of Mr Nicholls Mr Hampson commented that he had already "told us all that" and that there was no need to repeat it all. Mr Connolly commented
"It's an immense story that he's telling. It covers a long period. Then you asked him how long did it take, he tells you, and you say 'Don't be repetitive'."

A little later ( 35 pages later) Mr Hampson made submissions that Senator Chapman should be called to give evidence which would assist Mr Le Grand's case. The following comments were then made
"Mr Connolly: But there's got to be an end to the evidence and counter-evidence and we just have to be satisfied at the end whether something happened or didn't.

Mr Hampson: You have been told a long elaborate story by this witness.

Mr Connolly: I wouldn't have thought so."

(ii)At page 4586 the following exchange occurred in relation to Mr Nicholls’’s evidence
“Mr Connolly: Well you ask the sort of question that requires a long explanation, you'll get a long explanation.

Mr Hampson: This, with the greatest respect, is a witness who gives long explanations for every question.

Mr Connolly: Well because he doesn't feel he's amongst friends. Perhaps, Mr Hampson, he feels he should cover it as best he can. He's not a 'yes' and 'no' witness and you're not going to make him into one."

In cross-examining Mr Nicholls Mr Hampson drew to his attention that if his story was correct he was criminally liable for having induced someone to break the law. Mr Connolly's response was
"That's kind of you Mr Hampson. Could you get on with the cross-examination. Don't threaten the witness."

In contrast to these instances (4586 and 5096) is the approach taken towards Mr Le Grand when he gave evidence (page 5322-5325). The passage is too long for quotation here, but there was an insistence that the witness answer responsively and an occasion when after apparently having answered a question responsively Mr Connolly asked "Are we approaching an answer to the question yet?".
(iii)Mr Nicholls produced a note allegedly made by himself when he claimed that Mr Le Grand disclosed confidential information to him. It was tendered. In upholding the application of counsel assisting for a suppression order in relation to it, Mr Connolly stated
"The fact that Mr Le Grand told Mr Nicholls doesn't mean that it should be let free into the community."[33]
[33]Transcript p 5116.

Taken literally, that statement indicates a serious pre-judgment at a time before Mr Le Grand had given any evidence. It was submitted by counsel for the Attorney-General that this was merely a clumsy use of words, and that Mr Connolly would have intended the words "assuming it to be a fact" to be included. Counsel for the plaintiffs submitted that it was an unguarded comment indicating his actual attitude. That submission would gain strength if there happens to be other substantial evidence of errors being made against Mr Le Grand, discretions being exercised against him or of questionable decisions being made contrary to his interests.
(iv)Mr Pearce, who made inquires concerning Mr Nicholls on behalf of the CJC and Mr Le Grand, was required to provide counsel for Mr Nicholls with a list of the persons to whom he had spoken about Mr Nicholls during his investigation. A request on behalf of Mr Le Grand for similar information was denied. His advisers however were given access to documents provided by Mr Nicholls to the Inquiry before they were required to cross-examine him.
(v)There are instances of Mr Hampson being denied further cross-examination of Mr Nicholls after receiving a denial to an answer going to his credit. A Commission such as this is of course not bound by the rules of evidence. Not uncommonly however a Commission may find it convenient to follow familiar rules of evidence including the application of the collateral evidence rule. There are instances where further cross-examination could have been permitted,[34] but I find it difficult to see that these particular refusals show anything amiss.
[34]See for example pp 4586, 4599, 4604, 4615, 4616.
(vi)Mr Hampson put to Mr Nicholls a conversation in which Mr Grice allegedly mentioned that certain people doubted his (Nicholls') veracity. Mr Connolly interrupted the cross-examination to advise the press not to regard denials as a form of evidence of the truth of the content of the questions. Counsel for the plaintiffs simply point to the fact that no similar statement or protection was volunteered during the evidence of Mr Le Grand, to whom propositions alleging disgraceful conduct were repeatedly put and not accepted.
(vii)Mr Nicholls denied Mr Hampson's proposition that he (Mr Nicholls) had prepared a personal reference that the Senator had signed in his favour.[35] Mr Hampson produced a copy of a letter (which had been obtained by Mr Pearce) from Mr Nicholls' father which had been sent to Mr Nicholls care of Senator Chapman shortly before the reference was obtained, suggesting that he get a reference from the Senator. It was in my view perfectly proper to produce that letter to the witness. Mr Nicholls' counsel objected that the letter was "stolen" and suggested impropriety on the part of the CJC in having possession of it. The copy letter, produced on Senator Chapman's fax machine, had been left in the Senator's possession. I can see nothing objectionable in the obtaining of a copy of the fax from Senator Chapman who was willing to supply it to the CJC, or in counsel's use of it to jog Mr Nicholls' memory on the circumstances in which the reference came to be prepared. Mr Connolly's response appears in the following exchange
[35]Transcript 4664.
"Mr Connolly: Well it may not be theft but it leaves a rather nasty taste, doesn't it?

Mr Hampson: No, with respect and I don't see anything at all in that . . .

Mr Connolly: Anything the CJC wants they should have and that doesn't leave any nasty taste anyway?"

This then led to further statements by Mr Connolly accusing the CJC of having changed the evidence when it succeeded in having its claim to privilege of such documents upheld.
(viii)A substantial issue concerning the exclusion of allegedly relevant evidence from 10 witnesses which would tend to support Mr Le Grand's case and weaken that of Mr Nicholls (wrongful exclusion) will be separately dealt with.[36]
[36]See sub-para (h) below pp 45-52.

(g)On 14 March 1997[37] the following exchange occurred between Mr Martin (counsel for the CJC) and Mr Connolly.
[37]Transcript 3486.
"Mr Martin:. . .There is no foundation, on the face of the document, to suggest how he could be giving these opinions. In my respectful submission evidence - and I use the term very loosely - evidence of this type simply lowers the standing of this Inquiry.

Mr Connolly: I thought that was what you were rather anxious to achieve but anyway.

Mr Martin:Of what Your Honour?

Mr Connolly: Lower the standing of the Inquiry.

Mr Martin:What, are you accusing me of doing that, Mr Chairman?

Mr Connolly: Well your system.

Mr Martin:I beg your pardon?

Mr Connolly: Your system.

Mr Martin:My system?

Mr Connolly: Yes, the people for whom you appear. But anyway you say it lowers the standard of the Inquiry. Well that's our province not yours."

It may be noted that this occurred on 14 March 1997, four days after objection had been taken on the ground of bias. Coincidentally it was also four days after the delivery of judgment in favour of the CJC on the question of privilege.
Counsel for the Attorney-General submitted that Mr Connolly might reasonably at that time have been of the impression that the CJC was trying to lower the standard of the Inquiry. He relied firstly on the fact that Mr Clair had been very critical of the setting up of the Inquiry in the first place, citing The Courier Mail report of 17 September 1996. That was six months earlier and at least some level of cooperation had since been forthcoming. Secondly counsel referred to the somewhat aggressive statements made by Ms Hamilton (general counsel for the CJC) when she gave evidence on 11 December 1996. She had said

[84]For example “One was fast, slipshod and the other went on for a generation, just about, or it seemed like a generation. The contrast couldn’t be more stark”. Transcript p 1944.

[85]Evidence has been led from which criticisms could be made of Mr Carruthers concerning the undue length of the Carruthers Inquiry; Mr Carruthers’ decision to obtain opinions on s. 155 from interstate counsel; his decision to hold public hearings; his approval of various investigative steps; and whether he was suitably qualified to act as an inquirer.

[86]“While criticism has been made of the Commission (i.e. the CJC) for having adopted paragraph (1) of that resolution, no criticism can be made of Mr Carruthers . . . “ and “No criticism can properly be made of Mr Carruthers in relation to the use by the Commission of its coercive powers during the course of his investigation . . . since the responsibility for invoking the exercise of such powers is cast by the Criminal Justice Act upon the chairperson of the CJC . . ..”

[87]The listed subject matter is:

(1)whether the CJC acted within its investigative jurisdiction in adopting the resolution of 21 March 1996;

(2)whether having regard to the provisions of ss.16 and 25 of the Criminal Justice Act the resolution of 21 March 1996 was properly adopted;

(3)whether the opinion of Hampson QC or the substance thereof should have been publicly disclosed or at least disclosed to the legal representatives of the parties involved in the inquiry before Mr Carruthers;

(4)whether the CJC was really acting on the advice of Mr Hampson QC in adopting the resolution of 21 March 1996;

(5)whether the search of the Police Union premises was justified in all the circumstances;

(6)whether the material placed before the Supreme Court in relation to the application for a search warrant of the Police Union’s premises fulfilled the CJC’s obligations of disclosure under s.71;

(7)whether the CJC acted properly within its investigative jurisdiction in investigating:

(a)Bradshaw and Suter

(b)Heery

(c)the Concerned Citizens of Mundingburra

(d)United Fire Fighters Union

Locus Standi
Under the Judicial Review Act 1991 which expressly preserves the Court’s jurisdiction to make “prerogative orders”[88] the necessary standing that enables a person to sue, whether for a remedy in the nature of a prerogative order or for administrative review, is the same. The test broadly speaking is whether that person’s interests may be adversely affected by the decision, report or recommendation that the respondent might make.[89] In my view if a person reasonably fears that his or her interests may be adversely affected by further conduct of an Inquiry or by publication of its ultimate report, and can show that the conduct of the Inquiry is tainted by bias, that person has the necessary standing to obtain a prerogative order from the courts.
An interest in preserving personal reputation from harm may suffice (Annetts v McCann[90]), though of course a mere emotional or intellectual concern at what is being done is not sufficient.
In my view the same result follows whether one applies the common law or the tests stated in the Judicial Review Act.
My conclusions are
(a)Mr Carruthers has at least the right to a declaration in relation to acts performed beyond the power of the Commission which affected him before his resignation.[91]
There also remains some residual possibility of harm, although the risk of it occurring would seem to be quite slight since the making of the statement of 17 July. That statement however fails to give him complete protection and I do not think that his locus standi has been destroyed by the issue of this statement.
(b)The CJC in my view retains its standing to sue. The statement of 17 July only fortifies the jeopardy of that body.

[88]Sections 3, and 43(2). The more cumbersome procedures of writs of certiorari, mandamus and prohibition have been replaced by “prerogative orders” described as being “in the nature of” certiorari, mandamus or prohibition, with simpler procedural provisions.

[89]s. 7(1) states:

“ In this Act, a reference to a person aggrieved by a decision includes a reference -

(a)to a person whose interests are adversely affected by the decision; or

(b)in the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.”

[90](1990) 170 CLR 596.

[91]See above pp 10-12, 72-76.

Can Dr Ryan continue alone?
The Governor in Council saw fit to appoint two persons to constitute this Commission, inter alia “to make full and faithful report and recommendations”. In the absence of some special binding provision to the contrary, the report which in the end comes from this Commission must be the report of both. Without some special dispensation, they would also sit together to conduct the relevant hearings of the Commission. If during the currency of the Inquiry one of those members were removed by death, disqualification or any other cause, the remaining member would not have the authority to discharge the duties of the Commission alone.[92] In that respect the position is perhaps similar to that of a court sitting in banc. If a certain number of persons is necessary to comprise the court, and one of its members is removed by any cause before the delivery of judgment, then in the absence of some special statutory provision the remaining members of the court cannot proceed to deliver judgment. The court must be reconstituted and the matter heard afresh. There may be some instances where consent of the parties may confer jurisdiction but no question could arise of the conferring of consent jurisdiction upon a statutory body such as a commission of inquiry.
[92]Green v The Queen (1891) 17 VLR 329, 333; St Leonards Municipality v Williams (1966) 15 LGRA 62, 68-70; Re Municipal Commission of Tasmania (1968) 16 LGRA 211, 213-215.
Prima facie then, the disqualification of Mr Connolly means that Dr Ryan no longer has the authority or power to perform the functions of this Commission.
Counsel for the Attorney-General submitted however that the “quorum regulation” overcomes this problem.
The regulation would seem to have been made under s.33 which provides
“(1) The Governor in Council may make regulations under this Act.

(2) A regulation may make provision about the conduct of commissions.”

The regulation states:
“COMMISSIONS OF INQUIRY REGULATION (No. 2) 1996
Short title

1. This regulation may be cited as the Commissions of Inquiry Regulation (No. 2) 1996.
Definition

2. In this regulation -

“CJC inquiry” means the commission established under the order in council published in the gazette on 7 October 1996 at pages 475 and 476.

CJC inquiry quorum

3.(1) Either commissioner of the CJC inquiry may constitute a quorum of the CJC inquiry.

(2) If the CJC inquiry is constituted by a quorum of the commissioner who is not the chairperson of the CJC inquiry, the commissioner is taken in that event to be acting as the chairperson.”

Section 3 of the Commissions of Inquiry Act defines “commission” as follows

“commission” means any commission of inquiry issued by the Governor, by and with the advice of the Executive Council of this State, under the Governor’s hand and the public seal of the State, and includes the members of the commission, or a quorum thereof, or the sole commissioner in cases where the commission is constituted of a sole commissioner, sitting for the purposes of the inquiry and, where by an instrument other than a commission of inquiry as aforesaid the Governor in Council appoints a person or persons to make an inquiry into or with respect to any matter or matters and declares in that instrument of appointment or in a separate instrument that this Act or specified provisions of this Act shall be applicable for the purposes of that inquiry, then for the purposes of so applying this Act or, as the case may be, the provisions of this Act specified as aforesaid, includes that instrument of appointment and the person, or persons, or a quorum of the persons thereby appointed sitting for the purposes of the inquiry thereunder.”

That somewhat perplexing definition defines a commission as the commission, and as including its members, or a quorum thereof sitting for the purposes of the inquiry, or the sole commissioner (where the commission is constituted of a sole commissioner);
and it also includes in certain situations the actual instrument of appointment to an inquiry.
The definition obviously permits various alternative meanings to be given to the word “commission” so that when it is used in varying contexts throughout the Act, the appropriate meaning can be given.
“Commissioner” is separately defined.
The term “quorum” is not defined, and apart from being mentioned in the definition of “commission” it is not used anywhere in the Act.
What then does “quorum” mean in the regulation? Mr Hughes submitted that the regulation should be construed in the light of the problems that had arisen in the Commission up to that point, and further that it should be seen as a response by the executive that gave effect to the principle of “necessity” to the end that the work of the Commission should be saved. He submitted that it was legitimate to infer that the intent of the regulation-making authority was to preserve the Connolly-Ryan Commission of Inquiry by avoiding any problem that might possibly arise from Mr Connolly’s conduct in giving the media interviews, and presumably from the uncertainty that then confronted the Inquiry in view of the objections that had been taken on 18 and 25 November 1996. The difficulty confronting this submission is that the problem that had arisen, and the solution suggested for it in the Commission, had been quite limited. The suggested solution was that Mr Connolly should not sit “on this point” (i.e. on the matters affecting Mr Carruthers’ conduct of his Inquiry). It had been proposed that if Mr Connolly did not sit on those matters, he could in due course rely upon what Dr Ryan found in relation to those issues. The Commissioners stated (correctly in my respectful opinion)[93]
[93]See the cases mentioned above in note 92.
“It is our opinion that in the present state of the law, neither of us can take evidence without the participation of the other. Moreover, our ultimate decision and report should desirably be a joint one.”

The situation then was not one which contemplated the disappearance of Mr Connolly at any stage from further participation in the Inquiry; it was to make lawful a proposed arrangement that would permit Dr Ryan to sit without Mr Connolly being present when a particular subject was under consideration, and in due course to enable the Commissioners to present a joint report free from the possible taint of Mr Connolly’s contribution respecting a particular question on which he was said to be biased. A question would always remain whether the Commissioners in fact attained that objective, but if they did, it would assist in insulating the Inquiry from any invalidity that might otherwise flow from Mr Connolly’s participation in findings on that topic.
The executive then responded with a simple regulation permitting one of the Commissioners to constitute a quorum of the Inquiry. That seems to have been appropriately responsive to the problem that had arisen and to the solution that had been at that time suggested.
Various dictionary definitions of quorum have been presented. Its most common meaning concerns the number of persons necessary to enable the business of a meeting to proceed, although it is also capable of relating to business other than that conducted at meetings.
It is to be noted that the regulation did not state that either Commissioner might constitute the Commission. That would have been a considerably wider provision. If it had done so, it would, by means of the definition of “commission” in s.3 of the Act, arguably have permitted either appointee to sit alone, determine alone and report alone. I find it difficult to think however that this particular regulation, which confines its reference to a commissioner’s power to constitute a quorum, refers to anything more than a quorum for the purpose of conducting sittings.
The definition of “commission” in s.3 does not advance the argument for expanding the natural meaning of quorum. To do so would rely upon a conversion, namely that because the word “commission” can in an appropriate context mean a quorum of a commission, use of the word “quorum” should be taken to be a reference to the Commission. I do not think that this follows. The meaning to be given to each expression should depend upon the particular context in which those expressions are respectively used. It may also be noted that the only reference to “quorum” in the whole Act is in s.3, and that that reference is to “a quorum thereof . . . sitting for the purposes of the Inquiry” (my italics).
Mr Hughes went on to submit that the Court should impute to the executive an intention that if there was any disqualification afflicting Mr Connolly, Dr Ryan should complete the commission of inquiry alone, and that the regulation now operates to that effect if Mr Connolly is disqualified from further participation. He further submitted that the rule of necessity applies to a statutory administrative tribunal as it does to a court, to ensure that the tribunal is not disabled from performing its statutory functions, referring to Laws v Australian Broadcasting Tribunal.[94] Whilst accepting that it can so apply I do not think that doctrine of necessity has any application to the circumstances surrounding the making of this particular regulation, or that that doctrine calls for the wide construction of the regulation for which Mr Hughes contends. The submission fails at several levels. In the first place it might be thought that there was an adequate choice of alternative personnel if a difficulty were entertained with respect to a member or members of the Commission. There might be a wastage of work so far done, but the function of such a Commission could be entrusted to someone else. I am unable to read this particular regulation as subordinate legislation effecting a statutory requirement that one or other of the members of the Commission should perform the functions assigned to it free from the application of the rules of natural justice. I am unable to see the clear intention that would be necessary to achieve such a result.[95]
[94](1990) 170 CLR 70.
[95]Twist v Randwick Municipal Council (1976) 136 CLR 106, 112, 118.
The submission went on that the appointment of 7 October 1996 and the Quorum Regulation of 28 November 1996 invested the Commission “with an enormous measure of immunity and protection” leading to “a conclusion that in this case it would be inappropriate to frustrate the intention of the executive that this Commission of Inquiry go on, and having started, to complete its task.”
In my view the proper construction of the regulation is that it gave to the members of the Commission of Inquiry the opportunity of undertaking a procedure which would permit one of the Commissioners to sit alone for the purposes of taking evidence on discrete topics, but that it did not change the fundamental structure of the Commission or authorise the ultimate discharge of the duties of the Commission by one person only. Nor did it confer a licence to disregard the rules of natural justice.
It follows that if this view of the regulation is correct, the disqualification of Mr Connolly means that Dr Ryan no longer has the right to perform the functions of the Commission alone and in particular that he cannot report and recommend on behalf of both. In short my primary conclusion is that once Mr Connolly is disqualified, Dr Ryan no longer has any power to complete the Inquiry.
If I am wrong in that conclusion, and if the correct position be that the regulation empowers Dr Ryan to prepare and deliver a report on behalf of the Commission, the question remains whether he is disqualified under principles such as those expressed in Stollery v The Greyhound Racing Control Board[96] by reason of his association with Mr Connolly.
[96](1972) 128 CLR 509.
There has earlier[97] been a qualified finding in favour of Dr Ryan which has reserved the question of the effect of his association with Mr Connolly and related matters.
[97]In part 7, pp 58-59.
The law on this subject is very much concerned with appearances. The mere presence of an apparently biased person while a tribunal is engaging in deliberations is usually enough to require any decision to be set aside. Stollery’s case[98] is instructive. There a member of the Greyhound Racing Control Board who had made the original complaint against Mr Stollery remained in the room with the board while it deliberated. He was present in the boardroom throughout the deliberations and decisions, but took no part in them. It was held that his presence during that time was inconsistent with the principles of natural justice even though he had not participated. Barwick CJ, having referred to a line of authorities, and in particular to R v Sussex Justices; ex parte McCarthy[99] observed[100]
[98]Reference above.
[99][1924] 1 KB 256.
[100]At page 519.
“As in that case, so in this the continued presence of a disqualified person is fatal to the validity of the decision taken as the result of deliberations in his presence.”

He continued
“The basic tenet that justice should not only be done but be seen to be done does not, of course, warrant fanciful and extravagant assertions and demands. What justice requires will ever depend on circumstances, and the degree to which it should be manifest that it is being done will likewise be related to the particular situation under examination by a supervising tribunal. But, in my opinion, dissatisfaction engendered in the mind of an observer aware of the facts, by the continued presence of Mr Smith in this board room, having regard to his personal connexion with the matter in hand, is not extravagant or far-fetched. As I have said, a reasonable man could very properly suspect that the clear opportunity which Mr Smith had for influencing the decision of the Board might well have been used.”

He concluded that this circumstance was inconsistent with the requirements of natural justice, and certiorari was granted.
Menzies J[101] stated
[101]At p 520-521.
“ Authority further establishes that a person who has an interest adverse to, or in such proceedings, has been opposed to, the person on trial, is within the category of persons who in fairness ought not to be present at the deliberations of the tribunal.”[102]
[102]The authorities referred to by Menzies J are Dickason v Edwards (1910) 10 CLR 243; Allinson v General Council of Medical Education [1894] 1 QB 750; and R v London County Council ex parte Akkersdyk [1892] 1 QB 190.

Gibbs J[103] considered that it was appropriate to review the Administrative Tribunal’s actions as “it is making a decision which may have a serious effect on the rights and livelihood of the person whose conduct is called in question.” He agreed that it was “clear” that it would not be in accordance with the principles of natural justice for a person who was in truth the accuser to be present as a member of the tribunal when the charge which he had promoted was heard, even if he took no actual part in the proceedings. He noted that the very presence of such a person, may, “even unconsciously, inhibit the discussions and affect the deliberations of the other members of the tribunal”.

[103]p 526.
It is unnecessary for me to set out the celebrated statement of Lord Hewart LCJ in R v Sussex Justices ex parte McCarthy[104] beyond noting my own view that it is important to maintain public confidence not only in the judicial system but also the exercise of quasi-judicial power and in the integrity of royal commissions. That was another case where the mere presence of an acting clerk, who had an interest adverse to that of the defendant, with the Justices when they retired was sufficient to require the conviction to be quashed. Again the evidence showed that the Justices had come to their conclusion without consulting the acting clerk who in fact had abstained from referring to the case.
[104]Ibid.
A brief mention may also be made of R v The Justices of Suffolk.[105] In that case the mere presence of a county magistrate (Mr Steward) who was interested in the case (he being a rated inhabitant of the appellant parish) during deliberations was enough to invalidate the decision. It is a strong case. Objection having been taken to Mr Steward taking part in the case, the chairman stated that Mr Steward would not do so. However Mr Steward remained on the bench while the chairman and the three other Justices heard it. The chairman and Mr Steward, believing that counsel was satisfied with that statement, continued. Mr Steward took no part, neither giving any opinion upon it nor having any conversation with the others about it. He did acknowledge that he might have spoken to the chairman and referred to some papers lying before him. It was argued that the parties had acquiesced in his presence. Lord Campbell CJ thought that the proceedings were “much to be censured” and that if Mr Steward had done his duty he would have withdrawn from the court. Wightman J stated
[105][1852] 18 QB 416; 118 ER 156.
“It is very important that no magistrate who is interested in the case before the Court should interfere, while it is being heard, in any way that may create a suspicion that the decision is influenced by his presence or interference. Mr Steward’s presence and interference was sufficient to create such a suspicion.”

Mr Sofronoff for the plaintiffs submitted that no lower standard than that applicable to the Greyhound Racing Board is applicable to a commission of inquiry. He submits that the removal of Mr Connolly at this stage cannot save the Inquiry from the apprehension of bias which results from Mr Connolly’s extensive participation in the hearings to date and in decisions and in discussions with Dr Ryan.
Mr Hughes for the Attorney-General submitted that Stollery should be distinguished on the facts, pointing out that the commissioner in Stollery was an accuser and witness. Secondly he submitted that this Inquiry, unlike that in Stollery, cannot affect rights. That submission however would seem to conflict with the interest which the Court was prepared to protect in Ainsworth v Criminal Justice Criminal.[106] The potential public and private impact of the present Inquiry is very great. Thirdly he submitted that the executive has directed its mind to Mr Connolly’s position and protected it by the regulation of 28 November 1996, but I have already rejected that submission as too wide. Fourthly he invoked the principle of necessity, as saving the Inquiry in the person of Dr Ryan if all else were to be found against the defendants. I have already stated why I do not think that the situation properly invokes that principle.
Finally he submitted that if Mr Connolly is precluded from continuing with the Inquiry, there is no basis for an apprehension that the deliberating tribunal would be biased.
On this important last matter, it is reasonable to think that extensive consultations and deliberations have been occurring throughout the nine months during which the Inquiry has been running. On most issues it is impossible to know what work has been done by each, or how much each may have influenced the other. This is not to imply a lack of independence on the part of Dr Ryan on a personal level, but rather to note that there has been a joint process occurring during which the two men concerned have had the opportunity of exercising their powers of persuasion upon one another. It would be natural that they should attempt to work as a team. Their conclusions may be provisional at this stage on many matters, but it is reasonable to think that many such conclusions would have been formulated with the benefit or burden of joint discussion. It would seem to be an almost impossible task at this stage for anyone to unscramble whatever provisional conclusions presently exist and start afresh.
In addition to this Mr Sofronoff referred to a number of instances where Dr Ryan has been supportive of Mr Connolly’s position. These include Dr Ryan’s decision rejecting the notion of any apparent bias on Mr Connolly’s part. He failed to disassociate himself from any of the statements or conduct of Mr Connolly indicating an apparent attitude of hostility toward the CJC. He joined in decisions and rulings including those which resulted in the apparent disadvantage of Mr Le Grand in the matters affecting him. He issued the statement of 17 July 1997 which contemplated that the two Commissioners would jointly continue to investigate and report on the propriety of the CJC’s actions in relation to the setting up and the conduct of the Carruthers Inquiry. I do not find it necessary to pursue the other particulars stated by Mr Sofronoff.
In my view the considerations mentioned above are sufficient to require the same result as that considered necessary in Stollery. The findings of fact which have been provisionally made in favour of Dr Ryan in part 7 of these reasons are narrowly expressed, and the present question has been expressly reserved for present consideration. It seems to me that this was necessary as Stollery may be seen as a special example of a finding of ostensible bias, though disqualification by association may also be regarded as a special category of case where it is recognised that disqualification must be virtually automatic without the need for any fine analysis of the question of what the reasonable observer would fear. In my view the circumstances are such as would give rise to an apprehension in the mind of a fair-minded and informed member of the public that whilst Dr Ryan is not personally predisposed to views that would disqualify him, his association over a substantial period with a co-commissioner on whose part there is a reasonable apprehension of bias produces an unacceptable risk that the result would not be that of an impartial decision-maker. Whichever way the test is posed, it is my view that the above mentioned circumstances make it necessary that the Inquiry come to an end and that Dr Ryan, essentially through association, is disqualified from now proceeding to complete the Inquiry.

[106]Reference above.

Short summary: some principal findings and conclusions
1.In view of the political controversy surrounding the creation of this Commission and the issues which it examined, it was particularly important that the Commissioners be seen to be impartial and as not minded to serve the interests of one side or the other of politics.
2.There is a strong case of ostensible bias on the part of Mr Connolly with respect to matters that the Commission had to consider. The facts (stated in parts 4, 5 and 6) largely speak for themselves. They include a perception of his continuing favour for one side of politics. A truncated summary is given at pages 57 to 58 listing some of the main areas of concern supporting this conclusion. I conclude that the circumstances are such as would give rise in the mind of a fair-minded and informed member of the public to a reasonable apprehension of a lack of impartiality on his part with respect to the subject matter of the Inquiry. A similar fear would also reasonably arise in the minds of the plaintiffs.
3.Mr Connolly is for those reasons disqualified from further participation in the Commission.
4.In the absence of Mr Connolly, Dr Ryan lacks the power and authority to complete the work of the Commission. It is not possible for one person to discharge the obligations of this two-person Commission.
5.If the conclusion in paragraph 4 is incorrect, that is, assuming that Dr Ryan does have the power and authority to complete the work of the Commission alone and to deliver a sole report, it is unacceptable that he do so in view of his extensive association with Mr Connolly in the work of the Commission so far. The association has been too great and so is the difficulty of unscrambling provisional conclusions and of undoing influence. Despite the perception of Dr Ryan as a person without personal predisposition to views that would disqualify him, his extensive association with Mr Connolly makes a reasonable apprehension of unfairness and lack of impartiality in the result inevitable in the circumstances.
6.Neither plaintiff has waived the right to bring the present claims.
7.Neither Mr Connolly nor Dr Ryan is immune from the jurisdiction of this Court to review the question whether in the conduct of the Inquiry they have observed the principles of natural justice. In particular they are not immune from court review of the question whether either of them is disqualified because of ostensible bias.
8.The Commissioners acted outside their terms of reference whilst Mr Carruthers’ Inquiry was still current, in the enforcement of their process upon Mr Carruthers and in determining to proceed with an examination touching his conduct. However, after Mr Carruthers’ resignation, it was within their terms of reference to investigate his conduct, at least incidentally to their duty to investigate the CJC’s conduct.
9.Both Mr Carruthers and the CJC stand to be adversely affected by the conduct of the Commission, and each of them has the necessary standing to bring this action.

Relief
In a recent decision of the Full Court of the Federal Court[107] the Court observed
[107]Gaisford v Hunt and The Commonwealth of Australia (G 68 of 1996, 6 December 1996, per Beaumont, O’Loughlin and Lehane JJ). It concerned an inquiry into alleged paedophile activity by officers of the Department of Foreign Affairs and Trade. The person conducting the inquiry unwisely chose to speak with a journalist and may be inferred to have expressed views suggestive of strong preconceptions.
“. . .we are, of course, aware that the orders which we shall make will have the result that an inquiry which has already proceeded some distance will be brought to a premature end so that considerable time and resources will have been wasted. It is perhaps to state the obvious, however, to say that a finding of a reasonable apprehension of bias can lead to no other result.”

I share that view in the circumstances of the present case.
There will be a declaration that the Commissioners are disqualified from further proceeding with the subject Inquiry and an injunction should be granted restraining them forthwith from so proceeding.
Further submissions may be made on additional orders and on costs.