Viscariello v Legal Profession Conduct Commissioner - [2015] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2015] SASC 132
Judgment of The Honourable Justice Parker
27 August 2015
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - DELEGATION OF POWER CONFERRED BY ACT
PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - DUTIES
The plaintiff challenged the delegation of investigative and determinative powers by the Legal Profession Conduct Commissioner to two legal practitioners. The delegations were made because of a conflict of interest the Commissioner had in respect of various complaints lodged with the former Legal Practitioners Conduct Board by the plaintiff against certain legal practitioners. The plaintiff challenged the delegations on the basis that the Board, the Commissioner and the delegates had failed to comply with obligations and duties imposed on persons exercising statutory powers, including those regulating conflicts of interests. The primary relief sought by the plaintiff was orders that the delegations were unlawful and that the matter be referred to the Attorney-General to appoint an acting Commissioner to carry out investigations into the complaints and to act in relation to legal actions initiated by the plaintiff.
Held, dismissing the application:
(1) Duties imposed on statutory corporations under the Public Corporations Act 1993 did not apply to the Board because there was no regulation to that effect. The duties did not apply to the Commissioner or the Commissioner’s first delegate because neither was a “body corporate”.
(2) Duties to declare conflicts of interest under the Public Sector (Honesty and Accountability) Act 1995 did not apply to the Board because it was a body corporate. The duties did apply to the Board members and to the Commissioner.
(3) Board members did not face a conflict that precluded them from deciding that the Board should defend its own actions as the Hardiman principle is concerned only with avoiding the possibility that a reasonable apprehension of bias might arise in the future.
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied.
(4) The Board and its members did not have a personal interest such that they would be precluded from participating in decision-making in situations where there was a duty to accord procedural fairness.
Isbester v Knox City Council (2015) 89 ALJR 689, distinguished.
(5) The Board and its members did not have a pecuniary interest within the meaning of the Public Sector (Honesty and Accountability) Act 1995.
(6) The delegation made to the first delegate by the Commissioner on 15 July 2013 was not authorised in writing by the Attorney-General as required by s 17(1) of the Public Sector (Honesty and Accountability) Act 1995, but the delegation was not thereby invalid as invalidity had not been intended by the legislature. Each of the other delegations had been authorised by the Attorney-General.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied.
Kirkham v Industrial Relations Commission (2015) 121 SASR 471, discussed.
Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, discussed.
(7) The first delegate was not a “senior official” or an “employee” under the Public Sector (Honesty and Accountability) Act 1995.The powers delegated to the first delegate did not expose him to a conflicting pecuniary or personal interest as a “contract worker”.
(8) The Commissioner did not seek to improperly direct the first delegate.
(9) The Court does not have jurisdiction or power to make a referral to the Attorney-General requiring that he appoint an acting Commissioner to deal with the matters raised by the plaintiff.
Legal Practitioners Act 1981 s 74, s 75, s 77, s 82(2a); Public Sector (Honesty and Accountability) Act 1995 s 2(1), s 6, s 16, s 17, s 17(1), s 17(1)(c), s 17(6), s 17(7); Public Corporations Act 1993 s 3(1), s5, s 5(1)(a); Crown Proceedings Act 1992 s 18(1); Public Sector Act 2009 s 3(1), s 3(3), s 5, s 6, s 54(3), referred to.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied.
Isbester v Knox City Council (2015) 89 ALJR 689, distinguished.
Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116; Kirkham v Industrial Relations Commission (2015) 121 SASR 471; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, discussed.
Viscariello v Legal Practitioners Conduct Board [2014] SASC 53; Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37; Viscariello v Macks [2014] SASC 189; Simpson v Attorney-General [1955] NZLR 271; Montreal Street Railway Company v Normandin [1917] AC 170, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Chief Executive Officer", "Statutory corporation", "Senior official", "Public sector agency", "Corporate agency members", "Personal interest", "Pecuniary interest"

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2015] SASC 132
Civil: Application

PARKER J: This judgment concerns the validity of the delegation of certain powers and functions by the Legal Profession Conduct Commissioner (the Commissioner). For the reasons that follow, I find the delegation to be valid and effective and dismiss the interlocutory application.
Background
On 19 December 2013 Mr Viscariello sought permission to proceed with an application for judicial review against the former Legal Practitioners Conduct Board (the Board). He sought orders in the nature of mandamus compelling the Board to enquire into the conduct of certain named legal practitioners. He also sought an order compelling the Board to seek the written consent of the Attorney-General under s 82(2a) of the Legal Practitioners Act 1981 (the LP Act) so as to permit the Board to lay charges against the relevant practitioners outside the five year limitation period. On 16 April 2014 Nicholson J held that Mr Viscariello had demonstrated a reasonable basis upon which he might establish a right to judicial review and granted permission for him to proceed with the application under r 200(1) as it then stood.[1]
[1] [2014] SASC 53.
On 1 July 2014, as a result of amendments to the LP Act, the Board was abolished and its functions were assumed by the Commissioner. Mr Greg May was appointed as Commissioner and continues to hold that office. On 1 July 2014 the Chief Justice directed that the Commissioner be substituted for the Board as defendant.
Relief sought
On 13 August 2014 Mr Viscariello filed an interlocutory application seeking a series of orders and also what he described as a “referral to the Attorney‑General”. The basis for the orders sought by Mr Viscariello is said to arise because the Commissioner has admitted that he is disqualified by a conflict of interest from dealing with the various complaints made by Mr Viscariello against certain practitioners.
Mr Viscariello seeks orders to the following effect:
·A declaration that all actions taken by the Board in opposing his application for permission to proceed with his action for judicial review, and in defending that action up to 30 June 2014, are unlawful;
·A declaration that all actions taken by the Commissioner in opposing the action for judicial review after 1 July 2014 are unlawful;
·A direction that delegations made by the Commissioner under s 77 of the LP Act to the Hon Timothy Anderson QC and to Mr Timothy Bourne are unlawful;
·“A referral to the Attorney-General” that he appoint an acting Commissioner under s 74 of the LP Act to carry out the investigation into the conduct of the relevant practitioners that has been sought by Mr Viscariello and also the conduct of certain other specified lawyers referred to in the instrument of delegation dated 15 July 2014;
·“A referral to the Attorney-General” that he appoint an acting Commissioner to meet the statutory obligations under the LP Act in relation to these proceedings;
·In the alternative to the preceding orders, an order that the Commissioner disclose and produce to Mr Viscariello a copy of all documents relating to the delegations and all communications between the Commissioner, the Hon Timothy Anderson QC and Mr Bourne in relation to the delegations;
·In the further alternative, an order that certain paragraphs be struck out from the Commissioner’s defence to this action or alternatively that he provide further and better particulars of his defence;
·Alternatively, that Mr Viscariello be permitted to inspect the documents listed in the Commissioner’s list of documents.
No submission was made in relation to the final three points. I understand that they are to be dealt with later. I also note that Mr Anderson has relinquished the delegation and that Mr Viscariello apparently does not pursue the orders relating to him.
In order to understand properly the many contentions advanced by Mr Viscariello in support of his interlocutory application, it is necessary to refer in some detail to a considerable number of items of correspondence and also several instruments of delegation made by the Commissioner.
The Commissioner acknowledges a conflict
On 9 July 2014 the Commissioner wrote to Mr Viscariello. He noted that the effect of the order made on 1 July 2014 by the Chief Justice was that he had become the defendant in the judicial review. He also noted that Mr Viscariello had extended the range of lawyers that were the subject of his complaints to include the Commissioner. That complaint was based upon the Commissioner’s former role as the chief operating partner in Adelaide of the firm of Minter Ellison. A solicitor employed by the Commissioner was also the subject of a complaint by Mr Viscariello. For these reasons the Commissioner stated that he would have a conflict of interest in being the instructing party in the judicial review and also in considering the conduct of the practitioners whom were the subject of the complaints. The conflict extended to all employees of the Commissioner. He therefore indicated his intention to delegate his investigative and determinative functions relating to the judicial review and the complaints by Mr Viscariello against practitioners to a person, or persons, independent of him and of his office.
On 11 July 2014 Mr Viscariello responded to the Commissioner’s letter of 9 July 2014. He made wide ranging allegations that it is unnecessary to repeat in detail. In essence, he alleged that the proceedings in the Tribunal, which ultimately resulted in his name being struck from the roll of legal practitioners by the Full Court,[2] had been brought and prosecuted by the Board for a collateral and improper purpose.
[2] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27 and Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
In light of those allegations Mr Viscariello went on to submit to the Commissioner that the proposed delegation would severely undermine public confidence in his office and the administration of justice. Mr Viscariello submitted that the Attorney-General should appoint an impartial person as a special purpose Legal Profession Conduct Commissioner under the LP Act.
The Commissioner informs the Attorney-General of the conflict on 14 July 2014
On 14 July 2014 the Commissioner sent a letter to the Attorney-General informing him of the Supreme Court proceedings instituted by Mr Viscariello and the complaints he had made against named practitioners. The Commissioner informed the Attorney-General that he had a conflict of interest in respect of these matters. He therefore intended to delegate both his investigative and determinative functions. His determinative functions were to be delegated to the Hon Timothy Anderson QC, a former judge of this Court. His investigative functions, his power to conduct proceedings and the making of decisions relevant to those proceedings would be delegated to Mr Timothy Bourne, an Adelaide solicitor.
The Commissioner concluded his letter with the following paragraph:
Unless you tell me that you think I should do otherwise, or that you intend to take some other course of action in response to Mr Viscariello’s requests, I will just proceed in the manner I have described above. If Mr Viscariello then wants to take other action as a result, then we will deal with that at the time.
On 17 July 2014 the office manager to the Attorney-General sent a letter to the Commissioner acknowledging receipt of his letter dated 14 July 2014. She advised the Commissioner that his correspondence would be brought to the attention of the Attorney-General. The Attorney-General made no further response to the Commissioner.
The Commissioner delegates his powers on 15 July 2014
In the meantime, on 15 July 2014 the Commissioner had delegated his powers and functions in relation to various matters concerning Mr Viscariello to Mr Anderson QC and to Mr Bourne. Mr Anderson later relinquished the delegation because of a past professional connection with one of the practitioners that was the subject of a complaint by Mr Viscariello.
The preamble to the Commissioner’s instrument of delegation referred to the complaints made by Mr Viscariello to the Board, and thus now the Commissioner, against three specified lawyers. Two of those practitioners had appeared as counsel in the disciplinary proceedings against Mr Viscariello instituted before the Tribunal by the Board. The third practitioner is an employee of the Commissioner who had acted as the instructing solicitor on behalf of the Board in those proceedings.
The Commissioner also referred in the instrument to what he described as the first, second and third Supreme Court proceedings. The first proceedings are the present judicial review application. The second proceedings are the application for permission to pursue judicial review of the Tribunal’s findings against Mr Viscariello of unprofessional conduct and unsatisfactory conduct.[3] On 7 August 2015 the Court refused permission to proceed with that action.[4] The third proceedings are an application under r 242 of the Supreme Court Civil Rules. In this application Mr Viscariello seeks that the Full Court set aside its decisions to dismiss his appeal against the findings of the Board,[5] and to strike his name from the roll of practitioners.[6]
[3]    Action 673 of 2014.
[4] [2015] SASC 116.
[5]    Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
[6]    Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37. The r 242 application is also expressed as an application to set aside the findings of the Tribunal. The application is to be considered in action 806 of 2014 once this judgment has been published.
The Commissioner noted in the preamble to the instrument that because of his conflict of interest, which is shared by all employees of his office, he had determined to delegate to persons independent of him, and of his office, both his determinative and investigative functions relating to each of the three Supreme Court proceedings and the complaints.
The Commissioner also noted in the preamble that the Board had previously briefed Mr Andrew Harris QC in relation to the first Supreme Court proceedings. But for his own conflict of interest, he would have briefed Mr Harris in relation to the second and third Supreme Court proceedings. For that reason, he had delegated to Mr Bourne his role as instructing solicitor so that Mr Bourne could continue to instruct Mr Harris in relation to the first proceedings and could do so in relation to the second and third proceedings or could otherwise retain counsel as he considers appropriate.
The terms of the delegation of 15 July 2014
It is necessary to set out in full the terms of the delegation to Mr Bourne.
DELEGATION NO 2
MR TIMOTHY BOURNE
15 JULY 2014
Pursuant to section 77 of the Act, in relation to the SC Proceedings, I hereby delegate to Mr Timothy Bourne the following functions and powers that I have under the Act:
1.   the power to conduct the defence of each of the SC Proceedings and to make all decisions relevant to those defences as if he were the Commissioner;
2.   the power to act as the instructing solicitor to Counsel in relation to the conduct of each of the SC Proceedings;
3.   subject to the requirements of justice and fairness and the proper administration of the Act, Mr Bourne, in acting as my delegate, is to (and is to instruct Counsel to) act in the best interests of the Commissioner, including (without limitation) by:
a)defending the prior actions or omissions of the Board that are being criticised by Mr Viscariello in the First SC Proceedings;
b)resisting my being joined as the second defendant to the Second SC Proceedings;
c)resisting the orders, relief and directions being sought by Mr Viscariello in the Third SC Proceedings;
d)resisting the making of any orders (including any orders in the nature of mandamus or certiorari) by the Supreme Court in favour of Mr Viscariello; and
e)if Mr Viscariello is unsuccessful in his proceedings, seeking a costs order against him.
Nothing in paragraph 3 prevents Mr Bourne from agreeing to end any or all of the SC Proceedings on terms that he considers would be reasonably acceptable to the Commissioner.
Further, pursuant to section 77 of the Act, in relation to the Complaints, I also hereby delegate to Mr Bourne the following functions and powers that I have under the Act:
1.   to investigate suspected unsatisfactory professional conduct and/or professional misconduct by each of the Specified Lawyers (which, for the sake of clarity, includes taking directions from Mr Anderson as a delegate of the Commissioner to carry out those investigations);
2.   to comply with, or to assist Mr Anderson to comply with, any procedural requirements that either:
a)would apply to the Commissioner if here were carrying out his functions or exercising his powers under the Act; or
b)apply to Mr Anderson in carrying out his delegated functions or exercising his delegated powers under the Act;
3.   to exercise any of the powers conferred on the Commissioner under Schedule 4 as an “investigator” – and, for that purpose, Mr Bourne is specifically authorised by me to investigate the Complaints and the conduct of each of the Specified Lawyers.
4.   if Mr Anderson determines to lay a charge against any one or more of the[7] under section 77L, then to act as instructing solicitor in any proceedings (either in the Legal Practitioners Disciplinary Tribunal or in the Supreme Court) that may follow the laying of a charge under section 77L (and, for the sake of the clarity, to brief counsel in relation to those proceedings);
5.   to act on the instructions of Mr Anderson in relation to any appeal under section 77K that is made against any determination Mr Anderson makes using his delegated powers; and
6.   to do anything which is reasonably necessary or incidental to give effect to this Delegation.
[7]    At this point words have clearly been omitted in the original document.
In the several months following the delegation to Mr Bourne a number of email messages were exchanged between him and Mr Viscariello. The latter continued to protest that his complaints were not being investigated to which Mr Bourne responded that the delay was caused by the challenge to the validity of the delegations and the assertion that any action taken by the delegates was unlawful and void. Mr Bourne also noted that, in response to Mr Viscariello’s complaints, steps were being taken to make a new delegation.
The delegations of 2 December 2014

On 25 November 2014 the Commissioner sent a letter to the Attorney-General seeking his approval for the making of fresh delegations. The Commissioner noted that he had revoked the previous delegation to Mr Anderson and now proposed to delegate his determinative and investigation functions in relation to the complaints against practitioners to Ms Dymphna (Deej) Eszenyi, an Adelaide barrister. He also noted that Mr Viscariello had challenged the validity of the earlier delegation on the basis that he had not complied with s 17 of the Public Sector (Honesty and Accountability) Act 1995 (the PSHA Act). Section 17 directs how senior officials are to address conflicts of interest.
The Commissioner informed the Attorney-General that, in his view, the contention by Mr Viscariello as to the operation of s 17 was completely misconceived. Nevertheless, so as to avoid any possibility that his delegations might be invalid because of a failure to comply with s 17, he was now seeking the authorisation of the Attorney-General to make fresh delegations. A copy of the proposed delegations was attached.
On 2 December 2014 the Attorney-General informed the Commissioner by letter that “as the relevant Minister, I hereby authorise you proceeding in accordance with the delegations described above in relation to the complaints by Mr Viscariello”. The reference by the Attorney-General to “the delegations described” above referred to the following passage in his letter:
–   the delegation to Ms Dymphna Julienne Eszenyi of your determinative and investigative functions in relation to the complaints by Mr Viscariello;
–   the delegation to Mr Timothy Bourne of your investigative functions in relation to the complaints by Mr Viscariello; and
–   the delegation to Mr Bourne of your role as instructing solicitor in relation to the conduct of Mr Viscariello’s court proceedings.
On 2 December 2014, having received the letter from the Attorney-General bearing that date, the Commissioner made delegations in favour of Ms Eszenyi and Mr Bourne. The delegation to Mr Bourne was identical to that made on 15 July 2014 save for the substitution of Ms Eszenyi’s name for that of Mr Anderson wherever it appeared and replacement of gender specific pronouns. The delegation to Ms Eszenyi was identical to that previously given to Mr Anderson save for the substitution of her name and appropriate pronouns.
The delegation of 18 December 2014
On 15 December 2014 the Commissioner wrote again to the Attorney-General. On this occasion he referred to the judgment of Kourakis CJ in Viscariello v Macks,[8] in which the Chief Justice had been critical of the role of Minter Ellison in some of the proceedings referred to in that judgment. Because of the conflict arising from his former role at Minter Ellison, the Commissioner proposed to make further delegations to Ms Eszenyi and Mr Bourne. Those delegations would empower them to decide whether an own initiative investigation should be commenced. They would also be empowered to conduct any investigation that arises for that reason, or because of a complaint from Mr Viscariello, and to make any necessary decisions following such an investigation. For the reasons expressed in previous letters to the Attorney-General, the Commissioner sought his approval of the Attorney-General under s 17 of the PSHA Act for the making of the proposed delegations. A copy of the draft instrument was attached to the letter.
[8] [2014] SASC 189.
The Attorney-General replied to the Commissioner’s letter on 18 December 2014. He granted approval under s 17(1)(c)(ii) of the PSHA Act in the terms that had been proposed by the Commissioner.
On 18 December 2014, after receiving authorisation from the Attorney-General, the Commissioner made a further delegation to Ms Eszenyi and to Mr Bourne. The effect of the delegations was as described in the Commissioner’s letter to the Attorney-General of 15 December 2014, ie the delegations empowered Ms Eszenyi and Mr Bourne to deal with the issues identified by the Chief Justice in Viscariello v Macks.
The delegation of 27 January 2015
On 27 January 2015 the Commissioner issued a further delegation to Mr Bourne. This delegation was expressed to replace that granted to Mr Bourne on 2 December 2014 and to add to but not replace that of 18 December 2014. The only change made to the delegation dated 2 December 2014 was to add the words “as appropriate” in paragraphs 3(a) and 3(b) in relation to the Supreme Court proceedings so that the paragraphs read respectively “defending as appropriate the prior actions or admissions of the Board ...” and “resisting as appropriate my being joined as the second defendant ...”.
Mr Viscariello’s submissions
While there are many strands to Mr Viscariello’s case, his primary submission was that the Board, its members and Directors, and also the Commissioner and Mr Bourne, have failed to comply with various provisions of the Public Corporations Act 1993 (the PC Act) and the PSHA Act relating to conflicts of interest. He said that because he has been unable to ascertain the bases upon which appointments have been made and Mr Bourne has been engaged it has been necessary for him to make submissions in the alternative as to the provisions that he contends have not been observed.
Mr Viscariello submitted that each of the members of the Board and its Director had in the period ending 30 June 2014 failed to deal with a conflict of interest as required by the PSHA Act and the PC Act.
The same allegation was made about the Commissioner and Mr Bourne in the period commencing 1 July 2014. The alleged failure to deal with the conflict of interest is said to have caused the delegation by the Commissioner of his powers and functions to Mr Bourne to be unlawful and void. The delegation was also said by Mr Viscariello to be invalid on other grounds.
For completeness, I have examined as far as possible the various alternative submissions made by Mr Viscariello as to the provisions that he suggests were applicable. Because I have found that there was no relevant conflict of interest it has not been necessary for me to decide whether certain of the provisions to which he referred actually applied. In some instances I could not make that determination because not all relevant information had been put before the Court.
The Public Corporations Act
Mr Viscariello submitted that the Board, it members and its Director, and also the Commissioner and Mr Bourne, have acted contrary to the duties imposed upon them under the PC Act with respect to conflicts of interest on the basis that they were a “director”, a “senior executive”, an “employee” and a “chief executive” as defined in that Act.
The PC Act only applies in strictly defined circumstances. Section 5(1) provides that a provision of the PC Act applies to a statutory corporation to which the provision is declared to apply by either the corporation’s incorporating Act or by regulation. While prior to 1 July 2014 s 68(1a) of the LP Act provided that the Board was a body corporate, there was nothing in the LP Act (being the incorporating Act for the purposes of s 5(1)(a) of the PC Act) that applied any provision of the PC Act to the Board. In addition, no regulation to that effect had been promulgated.
Because the PC Act did not apply to the former Board, it also did not apply to its members or its Director. Thus, the breaches of duties under the PC Act alleged by Mr Viscariello could not possibly arise.
The PC Act also does not apply to the Commissioner or to Mr Bourne. Section 5(1) makes clear that a provision of the Act can only be applied to a statutory corporation. The term “statutory corporation” is defined in s 3(1) to mean certain classes of body corporate. The LP Act does not incorporate the Commissioner and there is no other legislation which has that effect.[9] The Commissioner is simply the holder of a public office that has attached to it certain functions and powers under the LP Act. Thus, it would not be possible to make a regulation applying any provision of the PC Act to the Commissioner.
[9] Some public offices are incorporated (eg the Crown Solicitor under s 18(1) of the Crown Proceedings Act 1992) and others are not (eg the Director of Public Prosecutions and the Solicitor-General under respectively the Director of Public Prosecutions Act 1991 and the Solicitor-General Act 1972).
Even if Mr Bourne’s legal practice is incorporated (there is no information before the Court on that question), the instruments signed by the Commissioner make it manifestly clear that Mr Bourne is receiving the delegated powers as a natural person and not as a body corporate. Mr Bourne is plainly not a statutory corporation. Thus, the PC Act is not relevant to him.
For the preceding reasons it is quite clear that neither the Board nor the Commissioner nor Mr Bourne was subject to any of the duties and restrictions imposed on certain statutory corporations and their members and staff by the PC Act. Thus, I reject the submission by Mr Viscariello that the Board, its members or Director, and the Commissioner or Mr Bourne, had breached their duties under the PC Act. That Act was completely irrelevant.
The Board
Mr Viscariello submitted that the Board and its members had an “other personal interest” in the outcome of this action for the purposes of the public sector principles set out in s 5 of the Public Sector Act 2009 (the PS Act), and the Public Sector Code of Conduct referred to in s 6 of the PS Act and in s 6 of the PSHA Act.
While the submissions made by Mr Viscariello are not clear on this point, if he has suggested that the Board, as distinct from its members and its staff, had failed to comply with the PSHA Act, that submission must be rejected. There is no provision in the PSHA Act which purports to apply any of the provisions of that Act to a body corporate, as distinct from its members and its staff. The PSHA was irrelevant to the Board as a body corporate but, for the reasons given at paragraph [46], did apply to its members and staff.
Mr Viscariello further contended that the allegation he has made in these proceedings that the Board had refused to carry out its statutory obligations under the LP Act without proper reason could, if established, amount to maladministration and/or abuse of public office by the Board. If the allegation is established, such a finding would be adverse to the personal and pecuniary interests of the Board (I take this to mean the members). The professional reputation of the Board and each of its members’ entitlement or ability to receive remuneration from the practice of the law is, he contended, a “pecuniary interest” for the purposes of regulation 4(1) of the Public Sector (Honesty and Accountability) Regulations 2010. That regulation lists the pecuniary interests that must be disclosed by senior officials to the relevant minister.
Mr Viscariello has also contended that because of the pecuniary and other personal interests held by the Board, its members and its Director, they had each acted unlawfully in opposing his application for permission to proceed with his action for judicial review. He therefore submitted that the conduct of the Board may constitute “misconduct” as defined in the PS Act thereby making the Board (presumably this was meant to be it its members) liable to disciplinary action and/or termination. I understand the reference to “termination”, in the case of the Board members, to be intended to mean removal from their public office. Because the dissolution of the Board brought to an end the appointments of Board members and the Director to their respective public offices, Mr Viscariello’s submission is otiose.
Mr Viscariello has further submitted that the conduct of the Board of which he complains may amount to unprofessional or unsatisfactory conduct under the LP Act by its members. That submission has nothing to do with the alleged invalidity of the actions taken by the Board to defend these proceedings and for that reason does not need to be considered.
The members of the Board
Division 1 of Part 2 of the PSHA Act sets out certain of the duties and liabilities of “corporate agency members”. Section 8 states the duties of corporate agency members with respect to conflicts of interest. That is potentially relevant to the submissions made by Mr Viscariello.
The term “corporate agency member” is defined in s 2(1) of the PSHA Act to mean either, a member of a public sector agency that is a body corporate, or a member of the governing body of such an agency. A “public sector agency” is defined in s 2(1) to have the same meaning as in the PS Act. Paragraph (f) of the relevant definition in the latter Act refers to a body corporate, comprised of persons appointed by the Governor, or with a governing body so appointed. Because members of the Board were appointed by the Governor,[10] it was a public sector agency.
[10] Section 68(2) of the Legal Practitioners Act 1981, as it stood prior to 1 July 2014.
As the Board was a body corporate and a public sector agency, its members were corporate agency members and therefore subject to the obligations under s 8 if they had a conflict of interest as defined in that provision. I have found at paragraphs [67] and [69] below that they did not have a conflict of interest.
Division 3 of Part 2 of the PSHA Act refers to the duties of senior officials. The term “senior official” is defined in s 2(1) to mean, amongst other things, a chief executive of an administrative unit or the chief executive of a public sector agency other than an administrative unit. The term “administrative unit” is defined in s 2(1) to have the same meaning as in the PS Act.
Section 3(1) of the latter Act defines an “administrative unit’ to mean either a department or an attached office. A department or an attached office is a body established as such under Part 6 of the PS Act or continued under Schedule 3. Neither party has submitted that the Board was an administrative unit. In any event, the South Australian Legislation website operated by the Parliamentary Counsel publishes current and historical information about the creation, abolition and changes in title of administrative units, including the details of the publication of relevant proclamations in the Gazette. There is nothing in that information to suggest that the Board ever was an administrative unit. Because of the conclusion I have reached at paragraphs [67] and [69] that there was no relevant conflict of interest, it has not been necessary to invite submissions from the parties about the correctness of the information published by the Parliamentary Counsel.
There is a further relevant element in the definition of “corporate agency member”. I refer to the requirement that the relevant body corporate must be a public sector agency and, if not, the definition will have no application. The term “public sector agency” is defined in s 2(1) of the PSHA Act to have the same meaning as in the PS Act.
Section 3(1) of the PS Act defines the term “public sector agency” to mean, amongst other things, a body corporate comprised of persons, or with a governing body comprised of persons, a majority of whom are appointed by the Governor, a minister or an agency or instrumentality of the Crown. As it stood prior to 1 July 2014, s 68(2) of the LP Act provided for all members of the Board to be appointed by the Governor. Thus, the Board was a public sector agency in the absence of any notice published in the Gazette by the relevant Minister under s 3(3) declaring it not to be a public sector agency. Counsel for the Commissioner did not address the issue as to whether any relevant notice has been published in the Gazette. Because of the conclusion I have reached at paragraphs [67] and [69] that there was no relevant conflict of interest, it has not been necessary to invite submissions from the parties about that issue. I will proceed on the basis that a notice has not been published and the Board was thus a public sector agency.
I have found that the Board as a body corporate was not subject to the duties in relation to conflicts of interest placed on various classes of office holder by the PC Act and the PSHA Act. However, s 8 of the PSHA Act did apply to Board members in their capacity as corporate agency members. Section 17 of that Act also applies to the Commissioner by virtue of his status as a senior official under s 75 of the LP Act.
Defending the Board’s decision
Mr Viscariello contended that, in the period prior to 1 July 2014, the Board had a conflict of interest in defending his application for orders in the nature of mandamus. It seems that he is intending to refer to a personal interest within the meaning of s 8 of the PSHA Act. If that submission is correct, it would have enormous implications. Provisions in similar terms to s 8 are included elsewhere, such as in the PSHA Act (eg s 17), the PC Act, the Local Government Act 1999 and certain other Acts, and apply to most categories of decision maker in the State and local government sector.
Thus, the principle advanced by Mr Viscariello would apparently extend to all South Australian public sector decision-makers involved in any form of legal action, whether they be ministers, statutory authorities, local councils or other holders of public office or statutory powers. The suggested personal interest would also seemingly extend to directors and others making decisions on behalf of private sector bodies corporate. Mr Viscariello could not refer me to any authority in support of the proposition but instead invited me to make new law. For the reasons that follow, I have declined that invitation.
Before further considering Mr Viscariello’s submission that the Board could not lawfully defend its own decision or actions, there are two principles that must be distinguished. The first principle emerged from the judgment of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[11] The second principle to be distinguished is that which requires a person with an interest in the outcome, or a perceived interest, not to participate in decision-making in circumstances where there is a duty to accord procedural fairness, ie the bias rule.
[11] (1980) 144 CLR 13 at 35–36.
The Hardiman principle
The High Court observed in Hardiman that in certain circumstances a decision maker should not defend its own decision in litigation.[12] For the reasons that follow, I do not consider that this principle applies in the present case.
[12] (1980) 144 CLR 13 at 35–36.
The High Court noted in Hardiman that the usual course where a decision made by a tribunal is challenged in a judicial review is for the tribunal to submit to such order as the court may make. Thus, in practice, tribunals (and also inferior courts) instruct their legal representative to attend at the first opportunity and to give an undertaking to abide the decision of the court save as to costs. If there is no other contravener, the Attorney-General (or in some cases another Minister) may then intervene or appear as amicus curiae. The High Court made clear that there is a risk if a tribunal actively defends its own decision that it will endanger its impartiality should the matter be remitted for further consideration.
It was because of the Hardiman principle that the Tribunal was not represented before the Court in Viscariello v Legal Practitioners Disciplinary Tribunal.[13] Instead, the Attorney-General appeared as amicus curiae. Alternatively, for the reasons I have stated at paragraph [59] below, the Commissioner might potentially have been joined as the second defendant and conducted the defence of the action.
[13] [2015] SASC 116.
Whether or not the Commissioner should observe the Hardiman principle depends upon the nature of the decision that is under challenge. Section 77J of the LP Act empowers the Commissioner, if he is satisfied that there is evidence of unsatisfactory professional conduct that can be adequately dealt with under s 77J(1), to impose the sanctions provided for in that sub-section, eg a reprimand, an order that the practitioner apologise and so forth. If the Commissioner’s decision as to the guilt of the practitioner or the penalty he has imposed is challenged, the Hardiman principle would require that he not defend his own decision. Instead, the Attorney-General might appear.

The latter situation may be distinguished from a case where a decision of the Tribunal in proceedings instituted by the Commissioner is under appeal or subject to judicial review. In that situation I consider that the Hardiman principle would not preclude the Commissioner from defending the decision of the Tribunal. That is because the Commissioner has been the prosecutor before the Tribunal and not the decision maker. I hold the same view in relation to the Board in its former role as prosecutor.
The important point is that the basis for the Hardiman principle is not that a tribunal has a conflict of interest in defending its own decision. Rather, as the High Court observed, a tribunal must be careful to avoid an apprehension of bias arising should the matter be remitted to it for further consideration. Such an apprehension may arise if a tribunal actively defends its own decision.
Because the Hardiman principle is concerned only with avoiding the possibility that a reasonable apprehension of bias might arise in future, and does not establish that a decision maker will face a conflict of interest if they seek to defend their own action, the principle does not support Mr Viscariello’s contention that the Board members faced a conflict that precluded them from deciding that the Board should defend its own actions.
An interest in the outcome
The law is clear that a person with an interest in the outcome, or who might reasonably be perceived to have such an interest, must not participate in decision-making in situations where there is a duty to accord procedural fairness. The application of that principle to an unusual fact situation was recently considered by the High Court in Isbester v Knox City Council.[14]
[14] (2015) 89 ALJR 689.
In Isbester, a council delegate decided what action was to be taken with respect to a dog following conviction of the owner as a result of attacks by the dog. A particular council officer who had been centrally involved in the investigation and prosecution of the owner had actively participated in the making by the delegate of the further decision about the dog. The council was required to accord procedural fairness to the owner.
Kiefel, Bell, Keane and Nettle JJ held:[15]
A personal interest in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment.
[15] Ibid at [46].
For the purpose of this analysis I will assume that the members of the former Board do have an interest in defending decisions that the Board had made with respect to Mr Viscariello’s complaints about practitioners. However, there is an important point of distinction between this case and Isbester. The council officer was not defending in legal proceedings her own decision to prosecute the dog owner but was instead participating in the making of a new decision that affected the rights of the owner. That past involvement required her to recuse herself from the making of the new decision. However, there is nothing in the High Court judgment to suggest that she would not have been entitled to oppose an appeal by the dog owner against their conviction.
If the contention advanced by Mr Viscariello was to be accepted, a prosecutor would not be entitled to oppose an appeal because they would be defending their own decision. The action of the Board in defending the judicial review is, in the context of this contention, no different to that of a prosecutor defending an appeal. Likewise, statutory boards and holders of public office frequently defend their actions in civil litigation, including judicial review applications. Public administration could not function if holders of public office were disqualified by a conflict of interest from defending their own decision or action when challenged in legal proceedings.
For these reasons I reject the submission by Mr Viscariello that the Board and its members had a personal interest in the matter and thus could not defend these proceedings.
No pecuniary interest
A further related argument advanced by Mr Viscariello is that the Board members would suffer a loss of reputation which will diminish their future earning capacity should the Court decide the judicial review in his favour. That was said to be a pecuniary interest for the purposes of the PSHA Act.
I reject that submission. There is no evidence to suggest that an adverse finding would damage the members’ reputations and I see no basis upon which the Court could properly infer such damage even if it were to become known what role individual members took in the making of a particular Board decision or the failure to make a decision. Furthermore, I consider that any connection between participation as a member in decision-making by the Board and a diminution of future earning capacity is so tenuous and remote as not to be capable of constituting a conflict of interest for the purposes of the PSHA Act. Once again, if Mr Viscariello were right in his contention, the effect would be to frustrate many public sector decision-making processes.
Mr Viscariello has also suggested that the Board (which I take to mean the members) may have committed what he describes as “an offence” against s 18 of the PSHA Act. Contrary to this contention, s 18 of the PSHA Act does not create an offence. Instead, s 18 provides that a person who is convicted of an offence against another provision of Division 3 of Part 2 of the PSHA Act[16] may be required to disgorge any profits made as a result of the offence and pay compensation for loss or damage. In any event, because of my finding that there was no personal or pecuniary interest, it is unnecessary to consider this issue further.
[16] The relevant offences are the failure to act honestly contrary to s 16 and the failure to deal with a conflict as required by s 17.
The Director of the Board
It is clear from the definition in s 2(1) of the PSHA Act, to which I have referred at paragraph [47], that the Director of the Board would have been a “senior official” if she had been its chief executive. The term “chief executive” is not defined in the PS Act and must be taken to bear its ordinary meaning, ie the highest-ranking executive or administrator in charge of the management of an organisation.[17] I would consider that organisations for the purpose of this definition include substantial bodies such as a government department, a statutory authority, a company and so forth.
[17] See the definition of “chief executive officer” in the Macquarie Dictionary, accessed online at 26 August 2015.
Section 72(2) of the LP Act as it stood prior to 1 July 2014 provided that the Director was the chief administrative officer of the Board. I do not regard that title as necessarily excluding the possibility that she was the chief executive of the Board. While neither party made any submission on the question, it appears likely that she may have been the Board’s chief executive and thus a senior official for the purposes of compliance with the conflict of interest provisions in of s 17 of the PSHA Act. However, I do not need to consider this point any further. That is because my conclusion at paragraphs [67] and [69] that Board members were not exposed to a conflict of interest, whether personal or pecuniary, applies equally to the Director.
The Commissioner
The Commissioner has at all relevant times acknowledged that he has a conflict of interest in relation to the matters involving Mr Viscariello because of his past connection with Minter Ellison. Section 75 of the LP Act provides that the Commissioner, and any acting Commissioner, are senior officials for the purposes of the PSHA Act. Thus, the Commissioner must comply with the duties of senior officials under s 17 of that Act with respect to conflicts of interest. The Commissioner took office on 1 July 2014. There has been no suggestion by Mr Viscariello that the Commissioner took any action between 1 July and 15 July 2014 that may not have been permitted by s 17.
On 15 July 2014 the Commissioner made the first delegation to Mr Bourne. The substance of his letter to the Attorney-General dated 14 July 2014 was that because of his conflict of interest he would delegate his powers unless the Attorney-General instructed him that he should not do so. The validity of that approach must be considered in light of the precise terms of s 17 which provides as follows:
17—Duty of senior officials with respect to conflict of interest
(1) A senior official must—
(a)on appointment as a senior official, disclose his or her pecuniary interests to the relevant Minister in writing in accordance with the regulations; and
(b)on acquiring any further pecuniary interest of a kind specified in the regulations, disclose the pecuniary interest to the relevant Minister in writing in accordance with the regulations; and
(c)if a pecuniary interest (whether or not required to be disclosed under paragraph (a) or (b)) or other personal interest of the senior official conflicts or may conflict with his or her duties—
(i)disclose in writing to the relevant Minister the nature of the interest and the conflict or potential conflict; and
(ii)not take action or further action in relation to the matter except as authorised in writing by the relevant Minister.
Penalty: Division 4 fine.
(2)Subsection (1)(a) applies to a person who is a senior official on the commencement of this section as if the requirement to disclose interests on appointment as a senior official were a requirement to disclose the interests within one month after that commencement.
(3)A senior official must comply with any written directions given by the relevant Minister to resolve a conflict between the senior official's duties and a pecuniary or other personal interest.
Penalty: Division 4 fine.
(4)Without limiting the effect of this section, a senior official will be taken to have an interest in a matter for the purposes of this section if an associate of the senior official has an interest in the matter.
(5)If a senior official makes a disclosure of interest and complies with the other requirements of subsection (1) in respect of a proposed contract—
(a)the contract is not liable to be avoided; and
(b)the senior official is not liable to account for profits derived from the contract.
(6)If a senior official fails to make a disclosure of interest or fails to comply with any other requirement of subsection (1) in respect of a proposed contract, the contract is liable to be avoided by the relevant Minister.
(7)A contract may not be avoided under subsection (6) if a person has acquired an interest in property the subject of the contract in good faith for valuable consideration and without notice of the contravention.
(8)This section does not apply in relation to a conflict or potential conflict between a senior official's duties and a pecuniary or other personal interest while the senior official remains unaware of the conflict or potential conflict, but in any proceedings against the senior official the burden will lie on the senior official to prove that he or she was not, at the material time, aware of the conflict or potential conflict.
The Commissioner made the delegation to Mr Bourne the day immediately after he had sent the letter to the Attorney-General. I consider that the period allowed by the Commissioner for the Attorney-General to provide a response was plainly inadequate. Moreover, on 17 July 2014, being two days after the Commissioner had made the delegation, he was advised by the Office Manager for the Attorney-General, in what was clearly a pro forma letter, that the correspondence would be brought to the attention of the Attorney. That informed the Commissioner that the Attorney-General had not seen his letter before he made the delegation. At that point the Commissioner should have realised that he could not rely on the fact that he had not been told by the Attorney-General not to proceed with the delegation. In any event, s 17(1)(c)(ii) provides that a senior official must not take action or further action where there is conflict without having received approval in writing from the relevant Minister. The approach of “I’ll do it unless you tell me not to” can never satisfy the requirement that approval be obtained in writing.
I therefore find that the delegation made by the Commissioner to Mr Bourne on 15 July 2014 was not authorised by the Attorney-General in writing as required by s 17. It is necessary to consider the consequences of that failure.
As I have already noted, s 17(1)(c)(ii) provides that a senior official must not take any action or further action where there is a conflict of personal or pecuniary interest unless authorised in writing to do so by the relevant minister. The issue is whether an action taken contrary to that stipulation is void and of no legal effect. That is the position put by Mr Viscariello. In making that submission he has relied upon the principles stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[18] In that case McHugh, Gummow, Kirby and Hayne JJ said:[19]
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: “substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.”
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
(citations omitted)
[18] (1998) 194 CLR 355.
[19] Ibid at [91]–[93].
After making those observations the High Court went on to hold that while the particular provision of the relevant Commonwealth statute imposed a legal duty on the Australian Broadcasting Authority, an act done in breach of its provisions was not invalid.[20] The High Court held that:[21]
In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision “may in particular cases be punishable”.[22] That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.
[20] Ibid at [99].
[21] Ibid at [100].
[22] Simpson v Attorney-General [1955] NZLR 271 at 281; Montreal Street Railway Co v Normandin [1917] AC 170 at 175.
Kourakis CJ (with whom Vanstone and Bampton JJ agreed) applied the Project Blue Sky principles in Kirkham v Industrial Relations Commission to determine the consequence of a failure to comply with s 54(3) of the PS Act.[23] Section 54(3) provides that a public sector agency may not terminate the employment of an employee unless it has informed the Commissioner for Public Sector Employment of the proposed grounds for termination and the processes leading up to that proposal and has considered any advice given by the Commissioner within fourteen days about the adequacy of the processes. In arriving at his decision that a failure by an agency to consult the Commissioner as required by s 54(3) did not invalidate the dismissal, Kourakis CJ had regard to the fact that the provisions were intended to regulate the conduct of statutory officers in the management of the public service. That pointed strongly against a statutory intention to invalidate decisions where the Commissioner had not been notified.
[23] (2015) 121 SASR 471.

Kourakis CJ also noted that there is High Court authority that statutory controls internal to government do not, when breached, invalidate dealings with other parties. In Australian Broadcasting Corporation v Redmore Proprietary Limited,[24] a contract that had been entered by the ABC without the approval of its Minister was found not to be invalid. This finding was made even though the relevant provision in the Australian Broadcasting Corporation Act 1983 provided that “the corporation shall not, without the approval of the Minister” enter contracts over a certain value and that value had been exceeded. The provision was directed at internal management and conduct, and was not intended to invalidate decisions made without ministerial approval.
[24] (1989) 166 CLR 454.
Section 17(6) of the PSHA Act provides that if a senior official has not complied with ss 17(1) in relation to a contract, the relevant Minister may avoid the contract. That right is qualified by s 17(7), which provides that a contract may not be avoided if a person has acquired an interest in property under the contract in good faith for valuable consideration and without notice of the contravention.
The conferral of a right upon Ministers to avoid a contract strongly suggests that a failure to comply with the disclosure obligations under s 17(1) was not intended by the legislature to invalidate all decisions where there had not been compliance. If all such decisions were intended to be invalid, it would not have been necessary to enact s 17(6).
There are additional considerations that also suggest a failure to comply with s 17(1) is not intended to invalidate a decision or action. Great inconvenience could result if every decision, regardless of the particular circumstances, is rendered invalid and inoperative by s 17(1). It cannot be assumed that in every case where a decision-maker has a personal or pecuniary interest in the outcome of a decision that they will make an inappropriate or improper decision. For example, a public official may be required to decide amongst a number of competing applicants for some form of licence or permission. One of the applicants might be a close family member. Section 17(1)(c) requires that the senior official should disclose that personal interest to the relevant Minister and not take any action without having first received written authorisation from the Minister. However, despite a failure to comply with s 17(1)(c), the official may have properly decided the matter and granted the permission or licence to a person other than the close relative. If Mr Viscariello is correct in his contention that s 17(1)(c) automatically invalidates all decisions taken where there is a conflict of interest, the consequences for an innocent party could be very harsh. In the example I have given, the person granted permission may have made substantial financial commitments or significant decisions in reliance upon the validity of the approval without any knowledge that an unsuccessful applicant was a relative of the decision maker.
The possibility of such difficulties and potentially harsh consequences strongly suggests that s 17(1), and the other analogous provisions in the PSHA Act, were not intended to invalidate decisions that have not been made in accordance with the written directions of a relevant Minister after disclosure of the conflict. I consider that, like the provision of the Australian Broadcasting Corporation Act 1983 considered by the High Court in Redmore, these provisions are directed at the internal management of public sector agencies.
If a decision made by an official contrary to s 17(1) (and equivalent provisions) is amenable to judicial review it may potentially be quashed by this Court. The grant of such a remedy is in the discretion of the Court thereby enabling harsh and unjust outcomes to be avoided.
Alternatively, if the impugned decision involved the awarding of a contract, that contract may be avoided at the option of the Minister. I also note that under s 18, and also under the analogous provisions in other Divisions of the PSHA Act, if a person is convicted of an offence relating to a conflict of interest or a failure to act honestly, a court may, in addition to imposing a penalty, order that the person pay to the relevant Minister an amount equal to any profit made as a result of the contravention or, if loss or damage has been suffered, compensation.
In addition to the risk of criminal prosecution, a person who has acted contrary to their obligations under the conflict of interest provisions in the PSHA Act would also be potentially liable to disciplinary action or removal from public office.
The availability of these alternative remedies and sanctions reinforces my conclusion that s 17(1) and like provisions in the PSHA Act were not intended to directly render invalid decisions made without receiving written Ministerial directions as to how to deal with the conflict. These provisions were intended to regulate the behaviour of public sector decision-makers while leaving it open to the relevant Minister (in the case of contracts) or the Court to set aside a decision.
I therefore find that while the Commissioner had not complied with his obligations under s 17(1) before making the delegation to Mr Bourne on 15 July 2014, the delegation was not invalid. I turn to the other contentions advanced by Mr Viscariello in relation to the delegations made to Mr Bourne.
Mr Viscariello submitted that the delegations made by the Commissioner on 2 December 2014, 18 December 2014 and 27 January 2015 were invalid. The Commissioner had received specific written approval from the Attorney-General prior to him making the delegations on 2 December 2014 and 18 December 2014. I find that the Commissioner did comply with s 17(1) before making those delegations.
The Commissioner did not obtain the specific approval of the Attorney-General before making the delegation on 27 January 2015. However, I have noted at paragraph [28] that the only alteration made in this delegation to the earlier delegation to Mr Bourne was the addition of the words “as appropriate” in paragraphs 3(a) and 3(b) in relation to the Supreme Court proceedings. The effect of the additional words was to make it even clearer than hitherto that Mr Bourne was expected to act independently of the Commissioner. The addition of those clarifying words was entirely consistent with the approval previously given by the Attorney-General under s 17(1). In my very firm view the Commissioner was acting well within the scope of the subsisting approval by the Attorney-General as to the actions he was permitted to take. I reject the contention by Mr Viscariello that the making of the further delegation by the Commissioner on 27 January 2015 had not been authorised by the Attorney-General.
As I have noted at paragraph [23] above, Mr Viscariello submitted that the reference by the Attorney-General to “the delegations described above” had the effect of limiting the authorisation given by the Attorney-General for the making of the delegations to the precise terms used in the three dot points that appear in the letter. Thus, the Commissioner was not entitled to refer to any other matter whatsoever in the instrument. I reject that submission, which is based upon a fundamental distortion of the content of the Attorney-General’s letter. That letter made clear that the Attorney-General was responding to the Commissioner’s letter of 25 November 2014. The latter was a three page document that had attached to it the draft instrument proposed by the Commissioner. It set out in considerable detail the matters relating to Mr Viscariello and the effect of the proposed delegations. When read in that context, it is clear that when the Attorney-General referred to the grant of approval for delegations “as described above” he was referring to the matters set out in considerable detail in the earlier letter and the annexed draft instrument of delegation. The three dot points were quite clearly only a summary of that information and were not intended to limit in any way the terms of the delegation. I therefore reject the assertion by Mr Viscariello that the Commissioner exceeded the scope of the approval granted by the Attorney-General when he made the delegations.
Mr Bourne
Mr Viscariello contended that Mr Bourne was either a senior official, an employee or was performing “contract work” for the purposes of the PSHA Act. He suggested that if Mr Bourne was a “senior official”, he was required to comply with s 17 of the PSHA in relation to conflicts of interest. Alternatively, he was bound by the duties of an employee under s 27 of the PSHA Act with respect to conflicts. By way of further alternative, if he was performing “contract work” he was required to comply with the analogous obligations under s 30 of the PSHA Act. Mr Viscariello contended that Mr Bourne should not have accepted the delegation without first having complied with the relevant provisions of the PSHA Act and the PC Act.
I have already referred at paragraph [47] to the definition of “senior official” in s 2(1) of the PSHA Act. In addition to chief executives, that definition also refers to the Commissioner for Public Sector Employment, to a statutory officer holder with the powers and functions of a chief executive of an administrative unit, and to a person declared under s 2(2), or by another Act,[25] to be a senior official.
[25] See, eg, the Commissioner under s 75 of the LP Act.
The only information before the Court concerning the relationship between the Commissioner and Mr Bourne is found in the several instruments of delegation. There is nothing whatsoever in any of those instruments that might possibly be taken to suggest that Mr Bourne falls within any of the limbs of the definition of “senior official”. There is also nothing in those instruments to suggest that Mr Bourne has become an employee of the Commissioner. The instruments do no more than delegate to Mr Bourne certain of the powers and functions of the Commissioner in relation to the matters referred to therein.
A delegate is a person or entity authorised to exercise legal powers or functions held by another. The transfer of powers or functions does not, of itself, convert a delegate into an employee.
Section 77 of the LP Act authorises the Commissioner to delegate a function or power to a person. It is clear that the Commissioner could delegate his powers to a person whom he employs. However, his power to delegate is not restricted to employees (as is sometimes the case).[26] There is also nothing whatsoever in s 77 to suggest that the mere act of delegation is, of itself, sufficient to make the delegate an employee of the Commissioner.
[26] See, eg, s 7(2) of the Correctional Services Act 1982.
A further submission by Mr Viscariello was that if Mr Bourne is not a senior official or an employee he must be a contractor for the purposes of the PSHA Act. Section 30 of that Act imposes duties upon persons performing contract work for public sector agencies or for the Crown with respect to conflicts of interest. The term “contract work” is defined in s 2(1) of that Act, subject to an exclusion which is not relevant, to mean work performed, by a person who is a contractor, or as an employee of a contractor.
There is nothing in the instruments of delegation made by the Commissioner in favour of Mr Bourne that demonstrates a contractual relationship. However, I will proceed on the basis that it can be reasonably inferred that Mr Bourne is being remunerated by the Commissioner for his services as delegate and that there is a contract to provide services. It is therefore necessary to consider the application of s 30 of the PSHA Act.
Section 30(1) provides that if a person performing contract work for a public sector agency or the Crown has a pecuniary or other personal interest that conflicts or may conflict with their duties in relation to the contract work, they must disclose that interest in writing and not take any action in relation to the matter except as authorised in writing by the relevant authority. In the present circumstances the effect of s 30(7) is that the relevant authority would be the Attorney-General.
The duties imposed by s 30 will only be relevant if Mr Bourne has a relevant personal or pecuniary interest. The basis for the alleged conflict was said by Mr Viscariello to be incompatibility between the two different functions delegated to him by the Commissioner. He submitted that Mr Bourne cannot investigate the complaints against the specified practitioners while also defending the second and third Supreme Court proceedings. I cannot see any basis whatsoever to find that the two discrete sets of functions delegated to Mr Bourne by the Commissioner somehow expose him to a conflicting pecuniary or personal interest, whether actual or perceived.
I find that the powers and functions delegated to Mr Bourne did not require him to make disclosure and seek directions from the Attorney-General under s 30 of the PSHA Act. I also find that he was not bound by the duties of a senior official under s 17 of the PSHA Act or those of an employee under s 27.
Has the Commissioner improperly sought to direct Mr Bourne?
Mr Viscariello has suggested that the Commissioner has improperly sought to direct Mr Bourne concerning the exercise of his delegated powers and functions. I understand the effect of Mr Viscariello’s submission to be that if the Commissioner sought to control the exercise by Mr Bourne of his delegated powers and functions that would have the effect of “contaminating” Mr Bourne with the conflict that has disqualified the Commissioner from acting in the matter. He has not submitted that a delegator cannot in any circumstances influence decision-making by their delegate. I therefore do not need to consider that broader question.
The terms of the delegation made by the Commissioner on 15 July 2014 are set out at paragraph [19] above. Paragraph 3 relating to the Supreme Court proceedings opens with the words “subject to the requirements of justice and fairness and the proper administration of the Act” and then indicates that Mr Bourne is to act in the best interests of the Commissioner by defending the various proceedings, resisting orders sought by Mr Viscariello and seeking costs as appropriate. I consider that the references to defending the proceedings, resisting orders and seeking costs are intended to define the scope of the functions to be performed by Mr Bourne as delegate rather than to direct how he is to carry out his functions. The opening words of paragraph 3 relating to the proceedings make clear that the Commissioner is not seeking to control decision-making by Mr Bourne. That point is made even clearer by the proviso to paragraph 3 which specifies that nothing in that paragraph prevents Mr Bourne from agreeing to end all or any of the proceedings on terms that he considers would be reasonably acceptable to the Commissioner.
The reference to acting in “the best interests of the Commissioner” was criticised by Mr Viscariello as an impermissible interference with the independence of Mr Bourne. I reject that suggestion. Quite clearly the Commissioner, and thus his delegate, must act in the best interests of the statutory office. The amendment to the instrument of delegation made on 27 January 2015 to add the words “as appropriate” in paragraphs 3(a) and 3(b) in relation to the Supreme Court proceedings make it even clearer that the Commissioner was not improperly seeking to influence the work to be done by Mr Bourne as delegate. I find that Mr Bourne has been delegated an independent discretion and there is no evidence of any attempt by the Commissioner to direct how he carries out his various tasks under the delegation. That is equally true of the delegations to Ms Eszenyi.
The selection of Mr Bourne
I granted permission to Mr Viscariello to file a supplementary outline of argument within seven days of him receiving certain documents that had not been provided to him prior to the hearing. Unfortunately, his supplementary outline went well beyond the scope of the permission by raising fresh matters relating to the appointment of Mr Bourne.
Mr Viscariello has put forward a series of contentions in the form of rhetorical questions concerning the choice of Mr Bourne by the Commissioner as his delegate. In essence, he has questioned the qualifications Mr Bourne has to carry out effectively the functions delegated to him, asked what prior personal or business connection he has with the Commissioner or the firm of Minter Ellison, and queried the basis upon which he was selected. These questions contain an implicit suggestion of impropriety. Such a suggestion ought not to have been made without a proper factual foundation. This material should not have been raised for the first time in a supplementary submission made after the hearing. In any event, there is no material whatsoever before the Court that would provide a basis to impugn the appointment of Mr Bourne. At all times in the relevant documents the Commissioner has made clear that Mr Bourne is to operate independently.
Conclusion
I find that there is no basis upon which the Court could declare that the actions taken by the Board in opposing Mr Viscariello’s application to proceed with his action for judicial review and in defending that action up to 30 June 2014 were unlawful. I also find that there is no basis upon which the Court could declare that the actions taken by the Commissioner after 1 July 2014 were invalid, albeit that in the period from 15 July 2014 until 2 December 2014 Mr Bourne was acting under a delegation that had been made by the Commissioner without the written direction of the Attorney-General as required by s 17(1) of the PSHA Act. The delegations made from 2 December 2014 onwards have been properly approved by the Attorney-General.
The Court does not have any jurisdiction or power to make “a referral to the Attorney-General” requiring that he appoint an acting Commissioner to deal with the matters raised by Mr Viscariello. Leaving aside that defect in the relief sought by Mr Viscariello, the effect of my findings is that there is no basis for the Court to make a declaration that might achieve a similar end. I also note that there is no provision in the LP Act that would enable the Attorney-General to appoint a “special purpose Legal Profession Conduct Commissioner” as sought by Mr Viscariello.
I dismiss the application for declarations and for “referral(s) to the Attorney‑General”. I will hear the parties as to costs.