Supreme Court New South Wales

• Medium Neutral Citation: Cunneen and Ors v Independent Commission Against Corruption [2014] NSWSC 1571
• Hearing dates: 5.11.2014; 6.11.2014; 7.11.2014
• Decision date: 10 November 2014
• Before: Hoeben CJ at CL

Decision

The plaintiffs' summons is dismissed.

Costs are reserved.

• Catchwords: ADMINISTRATIVE LAW - judicial review - decisions of Independent Commission Against Corruption to conduct an investigation and conduct a public hearing - application by Plaintiffs for Statement of Reasons pursuant to r 59.9 Uniform Civil Procedure Rules (UCPR) - refusal by ICAC to give reasons - interrelation of s 111 of the ICAC Act with r 59.9 UCPR whether ICAC's decision to conduct investigation beyond jurisdiction - interpretation of s 8(2) of ICAC Act - application of principle of legality - whether allegations in ICAC Summons capable of establishing corrupt conduct as defined by s 8(2) ICAC Act - whether ICAC's decision to conduct a public hearing invalid - challenge by Plaintiffs to whether ICAC was or could be satisfied that decision to hold a public hearing was in the public interest - relevant tests - challenges to ICAC decisions not made out - Summons dismissed.
• Legislation Cited: Crimes Act 1900 (NSW) - s 312, s 319; Crown Prosecutors Act 1986 (NSW); Independent Commission Against Corruption Act 1988; Supreme Court Act 1970 - s 69; Uniform Civil Procedure Rules 2005 - r 59.9
• Cases Cited: A v Independent Commission Against Corruption [2014] NSWSC 1167; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] 13 FCR 124; Australian Postal Corporation v D'Rozario [2014] FCAFC 89; Avon Downs Pty Ltd v The Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; D'Amore v Independent Commission Against Corruption [2013] NSWCA 87; 303 ALR 242 at [103]; Einfeld v R [2008] NSWCCA 215; 71 NSWLR 31; Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 221 CLR 309; Hagan v Independent Commission Against Corruption [2001] NSWSC 890; Lee (No 1)v NSW Crime Commission [2013] HCA 39; 87 ALJR 1127; Michael v R [2014] NSWCCA 2; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Minister for Immigration and Citizenship v SZGUR & Anor [2011] HCA 1; 241 CLR 594; Minister for Immigration and Multicultural Affairs Ex parte: Application S20/2002 [2003] 198 ALR 59; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; 156 CLR 296; Police Integrity Commission and Anor v Shaw [2006] NSWCA 165; 66 NSWLR 446; Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656; R v OM [2011] NSWCCA 109; R v Rogerson [1992] HCA 25; 174 CLR 268 at 280
• Category: Principal judgment
• Parties: Margaret Cunneen - First Plaintiff; Stephen Wyllie - Second Plaintiff; Sophia Tilley - Third Plaintiff; Independent Commission Against Corruption - Defendant
• Representation: Counsel: Mr A Moses SC/Mr T Howard SC/Ms R Gall - Plaintiffs; Dr J Kirk SC/Mr S Robertson - Defendant; Solicitors:
• File Number(s): 2014/324898

Judgment

1 HIS HONOUR:

Nature of proceedings

By summons dated 4 November 2014 the plaintiffs seek orders pursuant to s 69 of the Supreme Court Act 1970 as follows:

(1) A declaration that the defendant is exceeding its jurisdiction in conducting an investigation under the Independent Commission Against Corruption Act 1988 (ICAC Act) into the allegations that on 31 May 2014 the first and second plaintiffs, with the intention to pervert the course of justice, counselled the third plaintiff to pretend to have chest pain and that the third plaintiff, with the intention to pervert the course of justice, did pretend to have chest pains to prevent investigating police officers from obtaining evidence of the third plaintiff's blood alcohol level at the scene of a motor vehicle accident (the allegations).

(2) A declaration that the decision of the defendant made under s 31 of the Independent Commission Against Corruption Act 1988 (the Act) to hold a public inquiry into the allegations is invalid and a nullity.

(3) An order restraining the defendant from continuing to investigate the allegations.

(4) An order restraining the defendant from conducting a public inquiry into the allegations under s 31 of the ICAC Act.

(5) An interlocutory injunction in terms of Orders (3) and (4) above pending the final determination of these proceedings or until otherwise ordered by the Court.

(6) An order that the defendant pay the plaintiffs' costs.

(7) Such further or other orders as the Court sees fit to make.

2 The grounds upon which that relief is sought are as follows:

• The defendant is acting beyond its jurisdiction in investigating the allegations.

• The defendant took into account an irrelevant consideration.

• The defendant exceeded its power by deciding to conduct a public hearing.

Factual background

3 The evidence in support of the summons comprises two affidavits of Hamish Cockburn, dated 4 and 5 November 2014. Those affidavits are essentially formal and have correspondence annexed. The following recital of facts is taken from those two affidavits.

4 The first plaintiff holds the public office of "Deputy Senior Crown Prosecutor" and has been appointed Senior Counsel. The second plaintiff is her son and the third plaintiff is the partner of her son.

5 In July 2014 the first plaintiff was served with a summons by the defendant to appear at a compulsory private hearing, which was expressed to be:

"For the purposes of an investigation of the following allegations:

(i) Margaret Cuneen SC on 31 May 2014 with the intention to pervert the course of justice counselled Sophia Tilley to fake chest pains and that Sophia Tilley with the intention to pervert the course of justice did fake chest pains to prevent investigating police officers from obtaining evidence of Tilley's blood alcohol level at the scene of a motor vehicle accident."

(The summons referred to another related allegation, which is irrelevant to these proceedings.)

6 The compulsory private hearing took place on 1 August 2014, at which the first plaintiff was represented by her solicitor, Mr Cockburn.

7 By letter dated 29 October 2014 the first, second and third plaintiffs received summonses from the defendant, dated 27 October 2014, in the following form:

"You are required to appear before the Independent Commission Against Corruption ("the ICAC") to give evidence at a compulsory examination to be conducted:

at 10:00am on Monday, 10 November 2014

at level 7/255 Elizabeth Street Sydney, New South Wales 2000

and until such time as you are excused from further attending.

The public inquiry is being conducted for the purposes of an investigation of an allegation or complaint of the following nature:

That on 31 May 2014 Deputy Senior Crown Prosecutor, Margaret Cunneen SC and Stephen Wyllie, with the intention to pervert the course of justice, counselled Sophia Tilley to pretend to have chest pains, and that Sophia Tilley, with the intention to pervert the course of justice, did pretend to have chest pains, to prevent investigating police officers from obtaining evidence of Ms Tilley's blood alcohol level at the scene of a motor vehicle accident.

The general scope and purpose of the public inquiry is to gather evidence relevant to the matters being investigated for the purpose of determining the matters referred to in s 13(2) of the ICAC Act."

8 Given the date of service, and the date specified for the commencement of the public hearing, the urgency associated with the hearing of this summons is clear. The matter initially came before Davies J on the afternoon of 4 November 2014 and as a result of orders made by his Honour, commenced before me on 5 November 2014. As well as the summons, a Notice to Produce directed to the defendant also came before me on that day. The notice required production of any complaint made to the defendant and all documents associated with the decision by the defendant to investigate the plaintiffs and the decision by the defendant to conduct a public hearing in relation to the plaintiffs.

9 On the afternoon of 4 November a Notice to Public Authority was served on the defendant, pursuant to Rule 59.9 of the Uniform Civil Procedure Rules 2005 (UCPR) requiring the defendant to produce the following:

(a) A copy of the decision to investigate the first and/or second and/or third plaintiffs in relation to or in connection with the Allegations (as defined in the summons filed 4 November 2014) and;

(b) A Statement of Reasons for that decision.

(c) A copy of the decision to hold a public inquiry into the Allegations against the first and/or second and/or third plaintiffs (as defined in the summons filed 4 November 2014) and;

(d) A Statement of Reasons for that decision.

10 The Notice also required in accordance with r 59.9 UCPR that a Statement of Reasons must:

(a) Set out the findings on material questions of fact; and

(b) Refer to the evidence or other material on which those findings were based; and

(c) Explain why the decision was made.

11 When the matter came before the Court on 5 November the plaintiffs advised that they would not call upon the Notice to Produce pending the outcome of the r 59.9 UCPR Notice. The position of the defendant was that it declined to comply with the Notice. In those circumstances, the plaintiffs in accordance with r 59.9(4)(a) sought an order from the Court that the defendant provide them with a copy of the decision and a Statement of Reasons for the decision.

12 The parties agreed that that preliminary issue needed to be decided before the substantive issues raised in the summons.

13 Having heard argument, I declined to make the order sought by the plaintiffs under r 59.9 UCPR, with reasons to be provided at a later date. In order to enable the parties to deal with the implications of that decision, I stood over the hearing of the summons to Thursday, 6 November 2014. The parties agreed that the hearing was to be in respect of final orders.

Preliminary point - Rule 59.9 UCPR Notice

14 I now provide reasons for my ruling in respect of the r 59.9 UCPR Notice.

15 In order to understand the submissions and the ruling, it is necessary to set out a number of sections of the ICAC Act.

"2A Principal objects of Act

The principal objects of this Act are:

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

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

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

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

...

7 Corrupt conduct

(1) For the purposes of this Act, corrupt conduct is any conduct which falls within the description of corrupt conduct in either or both of subsections (1) and (2) of section 8, but which is not excluded by section 9.

(2) Conduct comprising a conspiracy or attempt to commit or engage in conduct that would be corrupt conduct under section 8 (1) or (2) shall itself be regarded as corrupt conduct under section 8 (1) or (2).

(3) Conduct comprising such a conspiracy or attempt is not excluded by section 9 if, had the conspiracy or attempt been brought to fruition in further conduct, the further conduct could constitute or involve an offence or grounds referred to in that section.

8 General nature of corrupt conduct

(1) Corrupt conduct is:

(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or

(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or

(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or

(d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters:

(a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition),

(b) bribery,

(c) blackmail,

(d) obtaining or offering secret commissions,

(e) fraud,

(f) theft,

(g) perverting the course of justice,

(h) embezzlement,

(i) election bribery,

(j) election funding offences,

(k) election fraud,

(l) treating,

(m) tax evasion,

(n) revenue evasion,

(o) currency violations,

(p) illegal drug dealings,

(q) illegal gambling,

(r) obtaining financial benefit by vice engaged in by others,

(s) bankruptcy and company violations,

(t) harbouring criminals,

(u) forgery,

(v) treason or other offences against the Sovereign,

(w) homicide or violence,

(x) matters of the same or a similar nature to any listed above,

(y) any conspiracy or attempt in relation to any of the above.

(3) Conduct may amount to corrupt conduct under this section even though it occurred before the commencement of this subsection, and it does not matter that some or all of the effects or other ingredients necessary to establish such corrupt conduct occurred before that commencement and that any person or persons involved are no longer public officials.

(4) Conduct committed by or in relation to a person who was not or is not a public official may amount to corrupt conduct under this section with respect to the exercise of his or her official functions after becoming a public official.

(5) Conduct may amount to corrupt conduct under this section even though it occurred outside the State or outside Australia, and matters listed in subsection (2) refer to:

(a) matters arising in the State or matters arising under the law of the State, or

(b) matters arising outside the State or outside Australia or matters arising under the law of the Commonwealth or under any other law.

(6) The specific mention of a kind of conduct in a provision of this section shall not be regarded as limiting the scope of any other provision of this section.

9 Limitation on nature of corrupt conduct

(1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve:

(a) a criminal offence, or

(b) a disciplinary offence, or

(c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or

(d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament-a substantial breach of an applicable code of conduct.

(2) It does not matter that proceedings or action for such an offence can no longer be brought or continued, or that action for such dismissal, dispensing or other termination can no longer be taken.

(3) For the purposes of this section:

applicable code of conduct means, in relation to:

(a) a Minister of the Crown - a ministerial code of conduct prescribed or adopted for the purposes of this section by the regulations, or

(b) a member of the Legislative Council or of the Legislative Assembly (including a Minister of the Crown) - a code of conduct adopted for the purposes of this section by resolution of the House concerned.

criminal offence means a criminal offence under the law of the State or under any other law relevant to the conduct in question.

disciplinary offence includes any misconduct, irregularity, neglect of duty, breach of discipline or other matter that constitutes or may constitute grounds for disciplinary action under any law.

(4) Subject to subsection (5), conduct of a Minister of the Crown or a member of a House of Parliament which falls within the description of corrupt conduct in section 8 is not excluded by this section if it is conduct that would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into serious disrepute.

(5) Without otherwise limiting the matters that it can under section 74A (1) include in a report under section 74, the Commission is not authorised to include a finding or opinion that a specified person has, by engaging in conduct of a kind referred to in subsection (4), engaged in corrupt conduct, unless the Commission is satisfied that the conduct constitutes a breach of a law (apart from this Act) and the Commission identifies that law in the report.

(6) A reference to a disciplinary offence in this section and sections 74A and 74B includes a reference to a substantial breach of an applicable requirement of a code of conduct required to be complied with under section 440 (5) of the Local Government Act 1993, but does not include a reference to any other breach of such a requirement.

10 Complaints about possible corrupt conduct

(1) Any person may make a complaint to the Commission about a matter that concerns or may concern corrupt conduct.

(2) The Commission may investigate a complaint or decide that a complaint need not be investigated.

(3) The Commission may discontinue an investigation of a complaint.

(4) If a prisoner informs the governor of the prison that the prisoner wishes to make a complaint under this section, the governor of the prison must:

(a) take all steps necessary to facilitate the making of the complaint, and

(b) send immediately to the Commission, unopened, any written matter addressed to the Commission.

(5) For the purposes of subsection (4), prisoner and governor of a prison have the same meanings as inmate and governor have in the Crimes (Administration of Sentences) Act 1999.

...

12 Public interest to be paramount

In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns.

12A Serious corrupt conduct and systemic corrupt conduct

In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct.

13 Principal functions

(1) The principal functions of the Commission are as follows:

(a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that:

(i) corrupt conduct, or

(ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or

(iii) conduct connected with corrupt conduct,

may have occurred, may be occurring or may be about to occur,

(b) to investigate any matter referred to the Commission by both Houses of Parliament,

(c) to communicate to appropriate authorities the results of its investigations,

(d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct,

(e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated,

(f) to advise public authorities or public officials of changes in practices or procedures compatible with the effective exercise of their functions which the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct,

(g) to co-operate with public authorities and public officials in reviewing laws, practices and procedures with a view to reducing the likelihood of the occurrence of corrupt conduct,

(h) to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct,

(i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity of public administration,

(j) to enlist and foster public support in combating corrupt conduct,

(k) to develop, arrange, supervise, participate in or conduct such educational or advisory programs as may be described in a reference made to the Commission by both Houses of Parliament.

(1A) Subsection (1) (d) and (f)-(h) do not extend to the conduct of police officers, Crime Commission officers or administrative officers within the meaning of the Police Integrity Commission Act 1996.

(2) The Commission is to conduct its investigations with a view to determining:

(a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and

(b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and

(c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct.

(2A) Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur.

(3) The principal functions of the Commission also include:

(a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and

(b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.

(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9 (1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.

(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B (Report not to include findings etc of guilt or recommending prosecution) prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission's powers under subsection (3).

(5) The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission's power to make findings and form opinions:

(a) findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct,

(b) opinions as to:

(i) whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or

(ii) whether consideration should or should not be given to the taking of other action against particular persons,

(c) findings of fact.

...

31 Public inquiries

(1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry.

(2) Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following:

(a) the benefit of exposing to the public, and making it aware, of corrupt conduct,

(b) the seriousness of the allegation or complaint being investigated,

(c) any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an inquiry),

(d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.

(3) An Assistant Commissioner may determine to conduct a public inquiry only with the concurrence of the Commissioner. However, concurrence is not required if the Commissioner would or might have a conflict of interest in relation to the inquiry.

Note. Powers of the Commission under this Division may be delegated to an Assistant Commissioner under section 107 (5) (e).

(4) A public inquiry is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.

(5) At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry.

(6) A person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the public inquiry and the nature of the allegation or complaint being investigated before or at the time the person is required to appear at the inquiry.

(7) A failure to comply with subsection (6) does not invalidate or otherwise affect the public inquiry.

(8) A public inquiry is to be held in public.

(9) Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest.

(10) Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel.

Note. Section 17 (2) requires the Commission to conduct public inquiries with as little emphasis on an adversarial approach as possible.

...

111 Secrecy

(1) This section applies to:

(a) a person who is or was an officer of the Commission, and

(b) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner's functions as counsel to the Commission, and

(c) a person who conducts a review under section 104D, but only in relation to the person's functions under that section, and

(d) a person or body referred to in section 14 (3), 16 (4) or 53 (6), and

(e) a person who is or was an officer of the Inspector.

(2) A person to whom this section applies shall not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act:

(a) make a record of any information, or

(b) divulge or communicate to any person any information,

being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(3) A person to whom this section applies shall not be required:

(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or

(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,

except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions.

(4) Despite this section, a person to whom this section applies may divulge any such information:

(a) for the purposes of and in accordance with this Act, or

(b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or

(c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or

(d) to any prescribed authority or person.

(5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.

(6) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to."

16 It was accepted by the parties that the Court's power under r 59.9 was discretionary. It was also accepted by the parties that in relation to the preliminary question and in relation to the final orders, the allegations by the defendant in its summonses to the plaintiffs had to be taken at their highest, i.e. that the factual matters therein set out would be established.

17 The plaintiffs submitted that r 59 UCPR was introduced on 15 March 2013, specifically for the purpose of enabling a person seeking judicial review to be provided with material to enable that person to determine whether there was any error in the process of reasoning of the decisionmaker.

18 In support of that proposition, the plaintiffs relied upon the observation of Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] 13 FCR 124 at 130:

"Person aggrieved"

Section 13 of the ADJR Act is a remedial provision in that the duty for which it provides stands in high contrast to the apparently very limited obligations at common law of a decision-maker to furnish reasons: Public Service Board of NSW v Osmond (1986) 60 ALJR 209 at 215, 217. Brennan J recently observed (Miller v TCN Channel Nine Pty Ltd (1986) 60 ALJR 698 at 720-721) that the ADJR Act removes what would otherwise have been procedural obstacles to discovery of the grounds on which discretions have been exercised. The policy which s 13 implements is (as Lockhart J explained in Dalton v Deputy Commissioner of Taxation (NSW) (1985) 7 FCR 382 at 391-392) to provide any citizen having sufficient interest in the matter with material to assist him in determining whether there is any error in the process of reasoning of the decision-maker and, accordingly, to chart his future course of action, by, for example, seeking an order for review under the other provisions of the ADJR Act. Section 13 is not to be construed grudgingly or with a penchant for technicality."

19 The plaintiffs submitted that there were two fundamental decisions made by the defendant in relation to which they seek reasons, i.e. the decision to investigate the allegations and the decision to conduct a public hearing into the allegations by force of s 31 of the Act.

20 The plaintiffs submitted that under s 31 there were matters that needed to be satisfied in order for that power to be exercised, including matters pertaining to the public interest and to the potential harm to their reputations. They submitted that they were entitled to know whether those preconditions had been satisfied and if so, on what basis.

21 The plaintiffs submitted that access to these documents (and therefore the reasoning process of the defendant) was important because it was their contention that the defendant's decisions to investigate pursuant to s 13(1)(a) and conduct a public inquiry pursuant to s 31, were such that it was not reasonably open to the defendant to form such an opinion.

22 In the alternative, the plaintiffs submitted that access to the reasons of the defendant was fundamental to their right to challenge the two impugned decisions. Without those reasons, there was no way in which the state of mind of the defendant could be assessed, either by themselves or by a Court. They submitted that the ability of this Court to assess whether s 31 had been complied with would be frustrated if the defendant did not provide reasons. This was particularly so when the defendant was purporting to exercise extraordinary powers given to it by Parliament which were meant to be carefully implemented. The plaintiffs submitted that the purpose of r 59(9) was to avoid the very consequence which had occurred here, i.e. a State body making a decision impacting upon the rights of citizens and then not being accountable for what it had done.

23 In the course of oral argument, it was implicitly conceded by the plaintiffs that the decision to investigate (s 13) was qualitatively different from the decision to conduct a public hearing (s 31). It was accepted by the plaintiffs that subject to the jurisdictional question, and the question of whether an extraneous issue was taken into account being substantive matters raised in the summons, the allegations themselves were capable of exposing a sufficient reason for the matter being investigated. In those circumstances, the submissions of the plaintiffs and the defendant in relation to providing reasons focused upon the decision to conduct a public hearing under s 31.

24 The plaintiffs submitted that in relation to s 31 if the defendant did not expose its reasons and there was no transparency about the matters which it took into account, the Court should find that the precondition to the operation of s 31 had not been satisfied. This was because the defendant was accountable, just like any other public authority, and because it did not get any special status because it was a public authority. They submitted that they must succeed in their argument in relation to s 31 because there was nothing before the Court to establish that the defendant had satisfied the jurisdictional requirements necessary before a public hearing under s 31 could be conducted.

25 The plaintiffs submitted that the defendant could not rely upon s 111 to overcome that difficulty. They submitted that there was no evidence of why reasons were not given in relation to the s 31 decision. They submitted that if the defendant were relying upon s 111 on the basis that to disclose its reasoning would prejudice the investigation, there needed to be evidence to that effect. There was no such evidence.

26 The defendant submitted that the observation of Gummow J in the Marine and Power Engineers case needed to be read with the Act which was under consideration in that case. In that regard, the defendant noted that s 13 of the ADJR Act contained a number of specific exclusions from the requirement to give reasons which included criminal and disciplinary investigations and matters of that kind. It submitted that 13 of the ADJR Act was different to r 59.9 which was silent as to any exclusions and involved an exercise of discretion by the Court. The defendant submitted that the exercise of discretion could include excluding the provision of reasons where it might prejudice ongoing criminal or other investigations. The defendant submitted that without being specific, there might be many different circumstances as to why reasons should not be provided and that r 59.9 did not provide an unqualified entitlement to reasons as was submitted by the plaintiffs.

27 The defendant submitted that the application under r 59.9 UCPR should be refused. This was because of s 111(3) of the ICAC Act. It submitted that an order that the defendant "provide the plaintiffs with a copy of the decision" would offend s 111(3)(a); and an order that the defendant provide the plaintiffs with "a Statement of Reasons for a decision" would offend s 111(3)(b) of the Act (noting that a Statement of Reasons must, inter alia, "refer to the evidence or other material on which [the decisionmaker's] findings were based (r 59.9(3)(b)). It submitted that in those circumstances, the power to require reasons conferred by r 59.9(4) was properly to be regarded as excluded by s 111(3) of the Act and could therefore not be exercised in these proceedings.

28 In support of that submission, the defendant relied upon the decision of Harrison J in "A" v Independent Commission Against Corruption [2014] NSWSC 1167. The defendant submitted that although the decision in "A" was concerned with a summons issued by it requiring the production of certain documents in accordance with s 35(1)(a) of the Act, the principles were the same.

29 The defendant relied upon the following statement from "A":

"40 It is a mistake to conflate difficulties that may be associated with establishing jurisdictional error with the proof of constitutional invalidity as a fact. Broad investigatory functions have been validly conferred on the Commission by the Act. As this Court noted in Independent Commission Against Corruption v Cornwall (1993) 116 ALR 97; (1993) 28 NSWLR 207 at 241, the Commission is entitled to conduct inquiries "of a very general kind" with the result that "[t]o demonstrate that a question is irrelevant or outside a relevant area of investigation will not be an easy task". Moreover, the Commission and its officers are not obliged to give reasons for some decisions. There is no general duty at common law to give reasons for administrative decisions (Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656) and as Gibbs CJ explained in that case at 663, "the fact that no reasons are given for a decision does not mean that it cannot be questioned"."

30 The defendant submitted that s 111 was a comprehensive provision dealing with "secrecy" in connection with its functions. The clear object of that section was to avoid its investigatory and other functions being prejudiced by disclosures otherwise than for the purposes of the Act or in the other limited circumstances contemplated. It submitted that the plaintiffs' construction of s 111 would defeat that object. It submitted that if that construction were correct, it could be required to produce the internal documents created by it in the course of its investigations such as documents that recorded the progress of investigations, the identity of suspects and potentially the circumstances that were being investigated. It submitted that premature disclosure of material of that nature could prejudice ongoing investigations.

31 By reference to what it submitted was its primary function, i.e. to investigate, the defendant relied upon National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; 156 CLR 296 at 323-4 where the plurality (Mason, Wilson and Dawson JJ) said:

"It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry."

Consideration

32 Fundamental to the plaintiffs' submission is the relationship between s 111 of the Act and r 59.9 UCPR. On that issue I agree with the defendant that r 59.9 is a form of subordinate legislation directed to the power of the Court generally. When deciding whether to make an order pursuant to the rule in a case like this, the Court has to have regard to the provisions of s 111 of the Act. This is because s 111 is not a form of subordinate legislation and is directed precisely to the question agitated before the Court, i.e. an obligation to provide a Statement of Reasons which would include setting out the findings of fact and the evidence or other material on which the findings were based.

33 The issue raised involves the interpretation of s 111. This has already been carried out in part by Harrison J in "A". I respectfully adopt his Honour's reasoning and conclusions on the issues which were before him. Although s 111 is framed as applying to "officers of the Commission" rather than the Commission itself, the section is to be read as applying to the Commission ("A" at [15] and Hagan v Independent Commission Against Corruption [2001] NSWSC 890 at [18] - [20]). Read in that way, s 111 applies to Notices to Produce or other compulsory processes such as a Notice under r 59.9 UCPR directed to the defendant.

34 Further, s 111 applies both to documents received from third parties, as well as documents created by officers of the defendant in the exercise of their functions ("A" at [16] - [22]). It is clear from its terms that the plaintiffs' Notice under r 59.9 UCPR seeks the production of information and/or documents specifically referred to in s 111(3). The wording of that section is in clear terms:

"A person to whom this section applies shall not be required ... to produce in any court any document or ...to divulge or communicate to any court any matter ..."

except in the circumstances specified by the section.

35 Even though the prohibition is directed to the defendant, or one of its officers and not the Court, it is clear that it affects in a practical sense the efficacy of any order which the Court might make. If the Court made an order that the defendant "provide the plaintiff with a copy of the decision", this would come within the ambit of s 111(3)(a). Similarly, if the Court ordered the defendant to provide the plaintiffs with a "Statement of Reasons for a decision", this would come within the ambit of s 111(3)(b) noting that a Statement of Reasons must "refer to the evidence or other material on which [the decision-maker's] findings were based" (r 59.9(3)(b) UCPR).

36 If the Court made orders of that kind, the defendant would not be obliged to comply with the orders. In other words, such orders would be ineffective.

37 This gives rise to another consideration. As the parties agreed, the power in r 59.9 UCPR involves an exercise of discretion by the Court. In considering whether to make an order of the kind sought by the plaintiffs pursuant to that rule, the Court has to take into account, in the exercise of its discretion, s 111(3) of the Act and the fact that such an order would be ineffective because not only is the defendant not obliged to comply with it, but its counsel has said that it will not.

38 There are other matters which affect the exercise of the Court's discretion, pursuant to r 59.9. While the Court has no information concerning the defendant's reasoning process, it does have before it the terms of the allegations and is aware that the "investigation" is at its earliest stage, i.e. a decision has been made to investigate and for that investigation to take place as a public hearing. Given the nature of the allegations and the very early stage of the "investigation", it may well be that the refusal of the defendant to provide a Statement of Reasons is because to do so would be prejudicial to the conduct of the investigation as it would require the defendant to prematurely disclose material (see "A" at [19]). This is notwithstanding that there is no affidavit or other evidence to that effect.

39 It is trite law that there is no general duty at common law to give reasons for administrative decisions (Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656). While a failure to give reasons may make the plaintiffs' task more difficult in challenging the two decisions which they impugn, such challenges are still available although on a more limited basis (Avon Downs Pty Ltd v The Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360).

40 It is also relevant to the exercise of the discretion that any argument as to prejudice to the investigation would not exist once the defendant has concluded the investigation by completing a report. As has become common in recent times, judicial review is available and is often sought, to quash recommendations and findings made in an ICAC report following an investigation. Such judicial review could be sought on the basis that the investigation was never within jurisdiction and/or that no public hearing should have been held. While it can be said that such an approach is not entirely satisfactory since reputational damage would already have occurred, a positive finding in favour of a plaintiff and the quashing of a report can still be of considerable value. This was recognised by the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564.

41 It is for these reasons that I declined to make the orders sought by the plaintiffs pursuant to r 59.9 UCPR. I note that the plaintiffs did not thereafter call upon the Notice to Produce and I make no finding in that regard.

42 As an addendum to the above, it should be noted that at 5pm on 4 November 2014 the defendant provided reasons for its decisions or decision to the plaintiffs. The Court was not shown those reasons but they were contained in a two page letter from the defendant. At the commencement of the hearing of the substantive proceedings, when the defendant sought to tender the letter setting out those reasons, objection was taken by the plaintiffs. In those circumstances, the Court had no option but to reject the tender and it did so. The basis for the rejection was that the letter was hearsay and contained what were apparently self-serving statements which had come into existence after the relevant decisions had been made and in the course of litigation.

The substantive issues raised by the summons

DID THE DEFENDANT ACT BEYOND ITS JURISDICTION IN DECIDING TO INVESTIGATE THESE ALLEGATIONS?

43 In order to appreciate the competing submissions on this issue, it is convenient to set out again the "allegations relied upon by the defendant".

"On 31 May 2014 Deputy Senior Crown Prosecutor, Margaret Cunneen SC and Stephen Wyllie, with the intention to pervert the course of justice, counselled Sophia Tilley to pretend to have chest pains, and that Sophia Tilley, with the intention to pervert the course of justice, did pretend to have chest pains, to prevent investigating police officers from obtaining evidence of Ms Tilley's blood alcohol level at the scene of a motor vehicle accident."

44 The plaintiffs submitted that the functions and powers of the defendant arise only by virtue of the Act and as such it was necessary to properly construe that legislation, including a consideration of any express or implied limitations on those functions and powers. They submitted that while the defendant had broad investigatory powers, those powers were not unfettered. They submitted that the provisions must be construed in the light of the Act as a whole and that the context, general purpose and policy of the provisions was relevant.

Failure to give reasons for decision to conduct an investigation

45 The plaintiffs submitted that the failure by the defendant to provide reasons for its decision to conduct an investigation meant that in proceeding to conduct an investigation it was acting beyond power. In support of that proposition, the plaintiffs relied upon the observation of Beazley P (Bathurst CJ agreeing) in D'Amore v Independent Commission Against Corruption [2013] NSWCA 87; 303 ALR 242 at [103] where her Honour said:

"103 ... However, to the extent the requirement to give reasons was said to involve an obligation on the trial judge to express the reasons that led to the result, Hayne J's comments would, in my opinion, apply to reasons given in accordance with the statutory requirements of this case. Such a duty is consistent with the requirement that a decision of the kind that may be made under the Act must be in conformity with the law and be reasonable in the sense discussed in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd and the later authorities that restate this principle. ..."

46 The plaintiffs submitted that this statement of principle by her Honour required the defendant to provide reasons at each step of the process of investigation, commencing with the decision to commence the investigation. They submitted that a failure to provide those reasons meant that the subsequent conduct was not authorised by the Act and was beyond jurisdiction. The plaintiffs submitted that the defendant should not be allowed to hide behind s 111 of the Act so as to avoid this obligation.

Consideration

47 I do not accept the submission that the effect of what Beazley P said in D'Amore was to require the defendant to provide reasons at every point in the investigation where a decision by it was required. This is particularly so in relation to the decision to conduct an investigation.

48 There is nothing in the Act which requires reasons to be given at that early point in time. As already indicated, there is no common law obligation to provide reasons. In any event, the very allegations themselves provide a justification for the conduct of an investigation. Subject to the correctness of my conclusions on the other submissions by the plaintiffs in relation to whether the defendant has jurisdiction to conduct this investigation, nothing has been put to suggest that otherwise the decision to conduct the investigation was so irrational and illogical as to be beyond the jurisdiction of the defendant. This submission has not been made out.

Application of the principle of legality to the allegations

49 The plaintiffs submitted that the provisions of the Act must be construed in light of the principle of legality. They submitted that the principle of legality required the Court not to impute an intention in legislation to "abrogate or curtail fundamental rights or freedoms unless such an intention was clearly manifested by clear and unmistakable language" (Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 221 CLR 309 at [19] - [20] per Gleeson CJ and Lee (No 1)v NSW Crime Commission [2013] HCA 39; 87 ALJR 1082 at [171] - [173] and [307] - [312]).

50 They noted that the allegations did not refer to the first plaintiff doing anything in her capacity as Crown Prosecutor but merely asserted that she held that office at the time of the events alleged. They submitted that the allegation against the first plaintiff was in precisely the same terms as that made against the second plaintiff who held no public office. In those circumstances, the plaintiffs submitted that the allegations in their terms said no more than that there had been an attempt to pervert the course of justice on 31 May 2014. They submitted that there was no suggestion in the allegations that any alleged conduct in the matter could adversely affect any public official beyond that which is ordinarily involved in perverting the course of justice.

51 The plaintiffs submitted that fundamental to the defendant's entitlement to conduct an investigation of them is that it was able to establish one of the pre-conditions in s 13(1)(a) of the Act, in particular that corrupt conduct or conduct connected with corrupt conduct might have occurred, might be occurring or might be about to occur. They submitted that for the concept of corrupt conduct to apply, the provisions of s 8(2) of the Act needed to be satisfied.

52 The plaintiffs submitted that by reference to the allegations, the relevant parts of s 8(2) are:

"(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials, or any public authority and which could involve any of the following matters:

...

(g) perverting the course of justice.

...

(y) Any conspiracy or attempt in relation to any of the above."

53 The plaintiffs submitted that in order to constitute "corrupt conduct" within the meaning of that provision, the conduct must satisfy each of two criteria. The first is that the conduct needed to adversely affect, or be conduct that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority. Secondly, it must be conduct of a type which could involve any of the matters set out in s 8(2)(a) to (y), relevantly in this case, perverting the course of justice or attempting to pervert the course of justice. The plaintiffs submitted that these two requirements were separate and should not be conflated. By this the plaintiffs meant that the two tests could not overlap or be satisfied by the same conduct. They submitted that s 8(2) should be interpreted so that the conduct which could indirectly affect a public official had to be different to that which constituted perverting or attempting to pervert the course of justice.

54 The plaintiffs submitted that the defendant's interpretation relied upon the same conduct, i.e. counselling Ms Tilley to pretend to have chest pain with the intention of perverting the course of justice as satisfying the two tests which were pre-conditions for the operation of s 8(2). The plaintiffs submitted that such an interpretation would give such wide powers to the defendant as to create in it a secret crime body to investigate any alleged attempt to pervert the course of justice. They submitted that such a consequence was indicative of the defendant's interpretation being incorrect.

55 The plaintiffs submitted that when an allegation of attempting to pervert the course of justice is investigated by the NSW Police Force, the citizen, the subject of that investigation, has fundamental rights and privileges recognised by the common law and statute, including the right to silence and the privilege against self-incrimination. If the Act were construed so as to confer a parallel power on the defendant to investigate that same allegation, the consequence would be that the citizen's fundamental rights would be overthrown (in the case of the right to silence) or very significantly abrogated (in the case of the privilege against self-incrimination).

56 By reference to the principle of legality, the plaintiffs submitted that for s 8(2) to be construed so as to deprive citizens of such fundamental rights the requisite intention would have to be expressed with irresistible clarity. They submitted that no such intention was expressed in that way in s 8(2). They submitted that on the contrary, it was clear that Parliament did not intend that the defendant have jurisdiction to investigate an allegation of perverting the course of justice in the absence of any additional conduct as set out in the chapeau to s 8(2).

57 The plaintiffs submitted that by reference to the form and layout of s 8(2) the investigation of criminal offences must be subsidiary to the investigation of corrupt conduct. The defining requirement of "corrupt conduct" set out in the chapeau must first be satisfied and that requirement cannot properly be said to be satisfied merely by identifying the elements of an alleged attempt to pervert the course of justice.

58 The plaintiffs submitted that it was clear that the defendant's function was not to simply investigate criminal offences because of the prohibition on it being able to make any finding of guilt (s 77B of the Act). The plaintiffs submitted that such a limitation existed because findings of guilt were within the exclusive domain of the courts that administer criminal justice in New South Wales in which the judicial power of the Commonwealth might be invested.

Consideration

59 I do not accept the foregoing interpretation of s 8(2) by the plaintiffs.

60 Section 13(1) sets out the core functions of the defendant. What s 13(1)(a) makes clear is that the defendant is essentially an investigatory body. The focus is on corrupt conduct or conduct connected with corrupt conduct "which may have occurred, may be occurring or may be about to occur". It is important to note that the last consideration is expressed in terms of possibilities. The defendant is not concerned with corrupt conduct which "has occurred" but with such conduct as "may have occurred". This is further confirmation of the defendant's primary investigatory function.

61 When one looks at s 8, it comprises two parts. Section 8(1) relates to conduct by public officials. Section 8(2) has a different focus. It is concerned with conduct by "any person (whether or not a public official)" which might in some way adversely affect the conduct of a public official (which includes in the definition part of the Act a member of the NSW Police Force).

62 As the plaintiffs submitted, s 8(2) identifies two tests which have to be met. The first is conduct that "... could adversely affect ... indirectly the exercise of official functions by any public official ...". The second test is "... and conduct which could involve any of the following ...". The requirement is cumulative so both tests have to be met. There is, however, nothing in s 8(2) to suggest that the two tests cannot be met by the same conduct. There is nothing to suggest that the conduct which satisfies the first test has to be entirely separate and distinct from that which satisfies the second test.

63 When one looks at the words used by Parliament in s 8(2), they are ordinary English words and there is no ambiguity about them. When one looks at the first test, it is obvious that the legislature intended the definition to be broad. Similarly, the words "could" and "any" as used in the second test expand the concept of what is included in the second test. They are not words of limitation. Not only are specific crimes referred to but those crimes themselves are broadened by (x) and (y) which refer to:

"(x) matters of the same or similar nature to any listed above,

(y) any conspiracy or attempt in relation to any of the above."

64 Given the comparatively straightforward wording, it is difficult to see how the principle of legality would apply. The plaintiffs suggest that there is some kind of fundamental principle of law that crimes are only to be investigated by the police. That is clearly not the case when there are numerous bodies in NSW which investigate criminal activity of different types, e.g. the Crime Commission, ASIC and even the RSPCA. Accordingly, there is no substance in the submission that there is some fundamental right for wrongdoers to have their crimes, or alleged crimes, investigated only by the police.

65 There is no doubt that the Act involves significant infringements of basic rights. The privilege against self-incrimination is expressly overridden, albeit in a limited way. The right to silence is overridden, so that a person can be required to testify. That abrogation of fundamental rights is within the power of the legislature. That is how the Act is expressed. It follows that the application of the principle of legality to the Act means that when construing provisions such as that relating to the privilege against self-incrimination (s 37), one would do so with a critical eye and one would look for clear words which brought about that result.

66 The plaintiffs' submission is to the effect that the principle of legality should be applied to the entire Act, not just to those sections which abrogate rights. In other words, the Court is invited to read down the grant of jurisdiction to ICAC.

67 I am not persuaded that the principle of legality should be applied in that way and the Court was not referred to any authority to that effect. While I accept that provisions which infringe fundamental general law rights should be carefully examined and may be read down if the language allows, that is not to say that the gateway provisions of the Act itself should be read down in the same way. Perhaps the most telling argument against the plaintiffs' submission is that the principle of legality is a principle of construction which must give way to the text. Here the meaning of the text is clear.

68 On that issue Gageler and Keane JJ said in Lee:

"313 ... The principle [of legality] ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

314 The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve"."

69 By reference to that guidance, I am of the opinion that the same conduct can satisfy both tests for the purposes of the application of s 8(2). The conduct does not have to be separate and distinct, nor for that matter should the conduct necessary to meet the first test be regarded as more important than that required to meet the second test, if in fact the conduct is different. As appears from s 8(2) it is fundamental to the defendant's role that it investigate criminal offences.

Did the defendant take into account irrelevant considerations?

70 The plaintiffs submitted that jurisdictional error may be shown if the defendant acted upon a wrong principle or allowed extraneous or irrelevant matters to infect its decision. They submitted that in this case the defendant took into account an irrelevant consideration, namely that the first plaintiff held the office of a Crown Prosecutor. They submitted that this had no relevance whatsoever to the allegations. They submitted that such was plain from the contents of the allegations in that there was no suggestion that the first plaintiff did anything in her role as a Crown Prosecutor in relation to what occurred on 31 May 2014.

71 The plaintiffs submitted that it was not the function of the defendant to investigate the conduct of an individual that occurred in their personal life where that conduct did not take place in the discharge of their functions as a public official. The plaintiffs submitted that there had to be some conduct of the person in his or her role as a public official in order to trigger the exercise of the jurisdiction. Otherwise, they submitted the defendant would operate as a secret police force with coercive powers to examine the personal lives of public officials and to sweep away not only their rights but the rights of other people because they just happen to be related to those public officials.

72 The plaintiffs submitted that the Act does not and was not intended to provide that a public official and persons related to the public official were to be deprived of their fundamental rights, including the right to silence, simply because the first plaintiff was a public official in circumstances where the alleged conduct was not in the exercise of the first plaintiff's functions as a public official. The plaintiffs submitted that the Act was never intended to operate so that because a person held the office of a public official, that person would have less rights than any other person for what he or she did in their personal life.

Consideration

73 The plaintiffs' submission that the defendant took into account an irrelevant consideration is not made out. There is nothing in the terms, scope, subject matter or purpose of the Act which supports a proposition that the status of the person who is alleged to have engaged in corrupt conduct was a matter that the defendant was forbidden to consider in exercising its discretionary powers, either generally or in circumstances where the alleged "corrupt conduct" was said to have occurred in a person's "private capacity". On the contrary, given that the "principal purposes" of the Act stated in s 2A include "to investigate, expose and prevent corruption involving or affecting public authorities and public officials", it was entirely appropriate for the Commission to have regard to a person's status as a "public official" in deciding whether to exercise its discretionary powers. That point is all the more forceful when the person in question holds a senior office with the Director of Public Prosecutions, being a role of importance in the administration of justice and where the allegation relates to possibly acting with intent to pervert the course of justice.

74 There is no inconsistency between that conclusion and the fact that the defendant's jurisdiction does not depend on the first plaintiff being an officer of the DPP. The foundation of jurisdiction for current purposes is s 8(2) and s 13(1). If the criteria/tests in s 8(2) and 13(1) are met, then the defendant has jurisdiction to conduct an investigation. What the Act does not say is that if one of the persons being investigated is a public official, even though that is not the foundation of the jurisdiction because it might involve something relating only to their personal life, that person is excluded from the jurisdiction of the defendant. The reverse of the proposition put forward by the plaintiffs applies, i.e. such a person should be in no better position because of being a public official than an ordinary member of the public to whom the s 8(2) and s 13(1) criteria apply.

75 In a different statutory context, a similar argument was put and rejected in Police Integrity Commission and Anor v Shaw [2006] NSWCA 165; 66 NSWLR 446 at [105] where Basten JA said:

"105 It may be recalled that s 130 was treated by the Respondent in the Court below as an expansion of the Commission's powers to deal with the conduct of public officials in the context of an investigation of police conduct. The Respondent said it did not apply to him because he was acting in a private capacity. Once the premise to the argument, namely that the Commission had no other source of power with respect to the Respondent is rejected, the potential role of s 130 changes. The question is then whether s 130 operates, despite the generality of the functions otherwise conferred on the Commission, so as to prevent the Commission investigating or otherwise dealing with the matter because it involves a public official.

106 The term "public official" is defined in s 4(1) of the PIC Act as having the same meaning as in the ICAC Act and is expressly extended to include a former public official. Under s 3(1) of the ICAC Act, a public official includes a judge, which the Respondent was at the time of the matters which gave rise to the investigation. It follows that the Commission could not have investigated his conduct, or dealt with a matter involving his conduct, if the matter did not also involve the conduct of police officers. In the case of an investigation, involvement must include possible or suspected involvement. Even if the matter did involve the conduct of police officers, as well as that of a public official, the power of the Commission to investigate and otherwise deal with the matter was also limited by the requirement that its investigation of the conduct of a public official must be done "in the context of" matters that also involve police officers.

...

109 The answer to the Respondent's contention is that the definition of "public official" in the ICAC Act refers to the individual by his or her status and not by reference to the nature of conduct under investigation. (The limitation with respect to conduct is found in s 8 of the ICAC Act, which deals with the concept of "corrupt conduct".) The Commission was correct to treat him as a "public official". Further, it is clear that the Commission was of the view that the matter before it involved the conduct of both the Respondent and police officers and that it was investigating his conduct in the context of matters that also involved police officers. Unless that opinion could be attacked on the basis that it failed to comply with the legal limits on the existence of a valid opinion (as discussed at s 461 [60] supra) the Commission was not threatening to exceed the limits of its power under s 130. The Respondent did not in terms mount an attack on the opinion of the Commission in this manner. Accordingly, the constraints imposed by s 130 provide no basis for identifying a potential excess of jurisdiction in the present case."

76 The analysis by Basten JA supports the proposition that it is not appropriate to read extrinsic limitations about personal or private conduct into the Act. What is decisive are the terms of the Act and they provided no such limitation.

The allegation cannot amount to perverting the course of justice

77 The plaintiffs submitted that the conduct alleged against them failed to satisfy the second test under s 8(2) of the Act because it could not possibly amount to any of the matters set out in s 8(2)(a) - (y). They submitted that the allegations that the first and second plaintiffs in their private capacity counselled the third plaintiff to pretend to have chest pain and that the third plaintiff did pretend to have chest pain to prevent investigating officers from obtaining evidence of the third plaintiff's blood alcohol level at the scene of the motor accident, was not conduct which could ever constitute:

(i) Perverting the course of justice within the meaning of s 8(2)(g) of the Act; or

(ii) A conspiracy or attempt to pervert the course of justice within the meaning of s8(2)(y) of the Act.

78 They submitted that a determination of this issue involved a consideration of s 319 of the Crimes Act 1900 (NSW). Section 319 provides:

"319 General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years."

Section 312 provides:

"312 Meaning of "pervert the course of justice"

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law."

79 The plaintiffs submitted that it was the phrase "course of justice" in the offence which was of significance on this issue. They submitted that the reference to "course of justice" was a reference to the due exercise by a court or competent judicial authority of its power to enforce, adjust or declare the rights and liabilities of persons in accordance with the law. They submitted that the course of justice is perverted by impairing the capacity of a court or competent judicial authority to do justice. On that issue, the plaintiffs relied upon R v Rogerson [1992] HCA 25; 174 CLR 268 at 280 (Brennan and Toohey JJ) and Einfeld v R [2008] NSWCCA 215; 71 NSWLR 31 at [89] - [99].

80 The plaintiffs particularly relied upon the following statements of principle by the Court (Bell, RS Hulme and Latham JJ) in Einfeld where their Honours said:

"89 "The administration of the law" does not readily describe the role of the police in the investigation of crime. Expressions such as the "enforcement of the law" or the "investigation of crime" would seem more apt if it were Parliament's intention to include within the offence of perverting the course of justice conduct involving the obstruction or perversion of a police investigation, in circumstances in which the offender did not have curial proceedings in contemplation. In our opinion, the scheme of Pt 7 does not suggest that Parliament intended to include police investigations within the umbrella of "the course of justice" for the purpose of the offence of perverting the course of justice. This is because of the exactitude with which the offences in ss 315 and 316 were drafted (section 315A was inserted by the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001). Section 315 is confined to conduct involving the intentional hindering of the police in the investigation of a serious indictable offence committed by another. A serious indictable offence is one punishable by imprisonment for life or for a term of 5 years or more (s 4 of the Crimes Act). The offence in s 316 is also confined to concealing information with respect to a serious indictable offence. It would seem anomalous, given the provision for these specific offences involving conduct intended to obstruct the police in the investigation of serious crime, if the Court were to construe s 319, by reason of the definition in s 312, as including any conduct intended to obstruct the police in the discharge of any function involving, applying or enforcing any law of the State.

90 We do not see how the expression "the administration of the law" could be interpreted to apply to the police investigation of crime without also applying to the activities of other public officials whose functions include applying and enforcing the laws of the State. A wilfully false statement made to a State Revenue Transit Protection Officer about the circumstances in which a weekly bus pass was lost would on such an interpretation of the provision be a perversion of the course of justice punishable by a maximum of 14 years' imprisonment." (emphasis added)

81 The plaintiffs submitted that put at their highest, the allegations against them went no further than an interference with a police investigation of a motor vehicle accident and as such, the elements of the offence of perverting the course of justice, contrary to s 319 of the Crimes Act were not present. They noted that s 8(2) did not include a reference to the offence of hindering a police investigation which was specifically dealt with in s 315 of the Crimes Act 1900 and which could not apply here since the core allegation relating to the third plaintiff was not a serious indictable offence.

82 The plaintiffs submitted that if this submission was made out, the allegations were fundamentally flawed as was the decision to conduct an investigation which would have to be set aside.

Consideration

83 The plaintiffs' submission on this issue is not made out. It depends upon an incorrect interpretation of the elements of the offences of pervert the course of justice and attempt to pervert the course of justice. It also misstates the effect of the decision in Einfeld.

84 If the sentence from Einfeld underlined above is a correct statement of the law, the plaintiffs' submission is made out. Taken in isolation, however, the sentence is not a correct statement of the law and needs to be read in the context of the decision as a whole and the particular issue to which it was directed. It is also, with due respect to their Honours, expressed too widely, is contrary to what was said by the majority in Rogerson, and is contrary to a more recent decision of the Court of Criminal Appeal which was directed to this particular issue (R v OM [2011] NSWCCA 109).

85 Einfeld v R was primarily concerned with the interpretation of s 312 of the Crimes Act 1900 and in particular, whether the words "the administration of the law" expanded the common law concept of "course of justice". This was because five of the offences of perverting the course of justice on which the Crown relied in Einfeld, were based on the provision by the offender of a false statutory declaration to the Infringement Processing Bureau arising out of a camera detected traffic offence. In Einfeld, the primary judge held that the phrase "the administration of the law" extended the scope of the offence of perverting the course of justice so as to include the provision of a false statutory declaration to that administrative body. The issue, as ultimately articulated before the Court of Criminal Appeal in Einfeld was:

"Whether the offence of perverting the course of justice under s 319 by reason of the inclusion of the expression "the administration of the law" in s 312, extends to conduct that is intended in any way to obstruct, prevent or defeat a government body in the exercise of its functions in applying and enforcing any of the laws of this State." (Einfeld at [21]) (emphasis added)

86 The Court of Criminal Appeal concluded that the phrase "the administration of the law" did not expand the common law concept of "course of justice". It was in that context that [89] was stated. The rationale behind the Court of Criminal Appeal's decision can be seen at [90] of Einfeld.

87 It is clear from the statements of the majority (Mason CJ, Brennan and Toohey JJ) in R v Rogerson that interference with a police investigation with the intention of deflecting criminal or disciplinary proceedings can amount to perverting the course of justice or an attempt to pervert the course of justice.

88 Mason CJ said at 277 - 278:

"It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement. So, in Kalick v The King (14) (1920) 55 DLR 104, at p 109, it did not matter whether the police officer intended to institute a prosecution; it was sufficient that, being apprehensive of a prosecution, the accused gave a bribe to prevent it. Action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the administration of justice as action taken to obstruct the conduct of a prosecution after it has been commenced.

Accordingly, I agree with Brennan and Toohey JJ that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice.

...

... The necessity of proving that an act has a tendency to pervert the course of justice by frustrating or deflecting a possible criminal prosecution and that the act was intended to have that effect does not require evidence that a prosecution for a particular or identifiable offence was in contemplation either by the accused or by investigating officers. In this respect, in a case such as the present, it is enough that there is evidence that an investigation into the relevant transaction or transactions could lead to a prosecution for some offence. Then, it will be a question of determining whether, in the light of that and any other material evidence, the act or acts done by the accused had a tendency to pervert the course of justice and was or were intended to have that effect."

89 Brennan and Toohey JJ said at 280:

"The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions."

90 Their Honours expanded on that statement of principle at 283-84:

"Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice. ...

...

The gravamen of the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities. As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice."

91 By reference to the statements of principle in R v Rogerson, the question of what the police were doing on 31 May 2014 is capable of more than one characterisation. The plaintiffs submitted that it involved no more than the police obtaining evidence. Alternatively, the conduct of the plaintiffs was capable of being characterised as an attempt to deflect the police from obtaining evidence which might result in a prosecution of the third plaintiff for driving with a blood alcohol content above the prescribed limit. In a context where s 8(2) uses the word "could" the availability of another characterisation of what occurred on 31 May 2014 is sufficient to access that gateway.

92 If there were any doubt as to whether an interference with a police investigation in certain circumstances can amount to perverting the course of justice or an attempt to pervert the course of justice, that was removed by the analysis of the Court of Criminal Appeal (Whealy JA with whom McCallum and Schmidt JJ agreed) in OM. The facts of that case involved the offender seeking to persuade two persons to make false statements to the police that he was not present in a motor vehicle at a particular time and therefore, could not have committed an offence. A District Court judge, relying upon [89] of Einfeld v R held that those facts could not constitute an offence contrary to s 319 of the Crimes Act. In finding that the District Court judge was in error, Whealy JA said:

"31 It is clear, in my opinion, that the primary judge was plainly in error in his understanding of the Court of Criminal Appeal's decision in Einfeld . This error led his Honour to believe that section 319 had altered, in a significant respect, the accepted view of the scope of the common law offence of doing an act intending to pervert the course of justice. It did not. His Honour's mistaken view in this regard was the sole basis of the ruling he made.

...

39 Given the clear conclusion in Einfeld , it is necessary next to examine the scope of the offence (perverting the course of justice) as it had been explained in Rogerson . In particular, it is necessary to consider the situation where a person is charged with the offence (as the respondent was here) involving the deflection of a police investigation prior to the institution of proceedings. It was that situation that [the primary judge] thought could not substantiate the offence created by section 319.

..."

His Honour then set out the various statements of principle in R v Rogerson before stating his conclusion as follows:

"48 It is quite clear from the foregoing analysis that the scope of the offence created by section 319 does not differ, in relevant respects, from the scope of the former common law offence. The relevant parameters are those identified in Rogerson's case. This means that the submissions made on behalf of the respondent to [the primary judge] were incorrect. Importantly, it means that the primary judge, with all respect, was led into error. The Court of Criminal Appeal decision in Einfeld reinforced the proposition that the scope of the offence under section 319, although it had not been enlarged beyond the common law concept, neither had it been diminished.

...

49 In other words, if the Crown, in the present matter, could establish that the respondent's actions were intended to deflect the police from prosecuting him for the criminal offence that he had allegedly committed, or from adducing evidence of the true facts relating to the alleged offence, the prosecution was clearly capable of being maintained. The fact that no judicial proceedings had been commenced at the time when the respondent spoke to Ms Ullah and Mr Sundarjee, did not preclude the finding of a prima facie case. Nor would it preclude a subsequent determination by a jury that, subject to proof of all the elements of the offence beyond reasonable doubt, that each offence had been committed."

93 The Court of Criminal Appeal in Michael v R [2014] NSWCCA 2 upheld a conviction of an offence contrary to s 319 of the Crimes Act where the offender sought to persuade a potential witness to tell the police that he could not remember who was driving his car at a particular point in time when in fact he had such a recollection. It should, however, be noted that this issue was not specifically argued in that case and the correctness of the approach in OM was assumed.

94 I have concluded, therefore, on the assumption that the factual basis for the allegations against the plaintiffs will have been made out, that the conduct alleged against them is capable of amounting to perverting the course of justice or an attempt to pervert the course of justice.

95 In written submissions but not orally, the defendant submitted:

"12 There are two additional potential bases of power. The first is that the Allegation (if established) might involve "a breach of public trust" by the First Plaintiff, given her position in the State's justice administration. The second is that, again in relation to the First Plaintiff, ss 9(1)(b) and 9(1)(c) might apply - that is, her conduct could also constitute or involve a disciplinary offence and grounds for dismissal (under the Crown Prosecutors Act 1986 (NSW) the Governor may remove a Crown Prosecutor from office for, among other things, misbehaviour)."

96 These arguments were not further developed by the defendant. No argument was addressed to them by the plaintiffs. In those circumstances, I do not propose to deal further with them.

THE DECISION TO HOLD A PUBLIC HEARING WAS NOT AUTHORISED BY THE ICAC ACT

97 The plaintiffs submitted that the exercise of the power by the defendant to conduct a public hearing exceeded the power in s 31 of the Act because:

(i) A public hearing must be "for the purposes of an investigation" and therefore could only be conducted where there is an investigation authorised by the Act; and

(ii) The absence of the existence of jurisdictional facts, namely whether the defendant considered matters as required by s 31(2).

98 The plaintiffs noted that the first matter had already been argued, i.e. that the defendant's power to conduct an investigation was only in respect to "corrupt conduct". The plaintiffs did not wish to add anything further to the submissions which they had already made. It was the second basis of challenge which it developed.

99 The plaintiffs submitted that s 31(1) gave rise to a jurisdictional fact, i.e. the defendant could only hold the public hearing if it were satisfied that it was in the public interest to do so. They submitted that this question gave rise to a jurisdictional fact and that on judicial review, this Court was in as good a position as the defendant to determine whether the jurisdictional fact existed. In support of that proposition, the plaintiffs relied upon the judgment of Besanko J (with whom Jessup and Bromberg JJ agreed) in Australian Postal Corporation v D'Rozario [2014] FCAFC 89 where his Honour said:

"8 In terms of legal analysis, a convenient starting point is the decision of the High Court in the Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 ("City of Enfield"). In that case, Gleeson CJ, Gummow, Kirby and Hayne JJ referred (at 149-150, [32] [34]) to the difference between a jurisdictional fact and a criterion which turns on a decisionmaker's opinion or state of satisfaction as to whether a relevant fact or matter exists. In the former case, a party may call evidence on an application for judicial review and a court will decide for itself whether the relevant fact exists. If the court finds that the fact does not exist, then jurisdictional error has been established and, subject to any relevant discretionary considerations, relief will be granted (see Parisienne Basket Shoes Proprietary Limited and Others v Whyte [1938] HCA 7; (1938) 59 CLR 369, at 391 per Dixon J (as his Honour then was); Beyazkilinic v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465). In the latter case, different grounds of challenge arise. In this case, the Court is concerned with the latter type of case, that is to say, the criterion depends on whether the decisionmaker has formed the view that a particular fact or matter has been established."

100 The plaintiffs submitted that although some reasons were produced on the afternoon of 5 November, those reasons were properly objected to and rejected, so that the position before the Court was that no reasons have been given for the defendant's decision to conduct a public hearing. The plaintiffs submitted that in those circumstances there was no evidence that the defendant took the factors in s 31(2) of the Act into account, especially subs 31(2)(c) and (d), in its decision to conduct a public hearing. They submitted that the Court should also take into account that the defendant had failed to lead evidence from any authorised person under oath that the jurisdictional facts required by s 31 of the Act in fact existed.

101 The plaintiffs submitted that in the absence of evidence from the defendant, in relation to the defendant's determination (assuming there was such a determination) to conduct a public hearing, it was open to the Court to infer and the Court should properly infer that the defendant did not take into account the mandatory factors in s 31(2) of the Act or paid no more than lip service to them. The plaintiffs submitted that the failure to take into account relevant considerations, such as those set out in s 31(2), constituted jurisdictional error because the defendant was bound to take into account those matters when making a decision to conduct a public hearing. The plaintiffs relied upon Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [39] per Mason J.

102 The plaintiffs submitted that the only conclusion that the Court could come to in this case was that in the absence of evidence, the jurisdictional facts required by s 31 to be taken into account under s 31(2), in particular (c) and (d), had not been taken into account. That being so, the plaintiffs submitted, that the relief which they sought should be granted. In that regard, the plaintiffs noted that should they succeed on the s 31 point, there was nothing to stop a non public hearing proceeding.

103 The plaintiffs submitted that even if the matters required to be considered pursuant to s 31(2) were considered by the defendant, their decision to proceed with a public hearing was irrational, illogical and not based on inferences of fact supported by logical grounds. The plaintiffs submitted that this conclusion should be arrived at when regard was had to the nature of the allegations made against the plaintiffs, the nature of the conduct alleged against them and the disproportionate embarrassment and damage to their reputations that the conduct of a public hearing was likely to occasion. They submitted that any putative satisfaction reached by the defendant that it was in the public interest to hold a public hearing into the allegations was irrational and illogical, such as to deprive any such putative satisfaction of the legal character of satisfaction for the purposes of s 31 of the Act and to render any such satisfaction a nullity (Minister for Immigration and Multicultural Affairs Ex parte: Application S20/2002 [2003] 198 ALR 59).

Consideration

104 On my reading of s 31, the jurisdictional fact is the defendant's state of satisfaction. That being so, the relevant statement of principle is that by Besanko J in D'Rozario as follows:

"In the latter case different grounds of challenge arise. In this case the Court is concerned with the latter type of case, that is to say the criterion depends on whether the decisionmaker has formed the view that a particular fact or matter has been established."

The necessary analysis is whether that ground of challenge has been made out by the plaintiffs. Paragraphs [9] - [20] of D'Rozario then go on to discuss and give examples of challenges to that kind of decision making.

105 In this case, there are no reasons but there are facts. The facts are those in the allegations which can be assumed as established for the purpose of these proceedings.

106 In those circumstances, what the plaintiffs have to establish is that there was no basis for the defendant's state of satisfaction as to the matters in s 31(2) if one had regard to the facts set out in the allegations. If they are successful in showing that a state of satisfaction could not exist, then the fact of a state of satisfaction is eliminated and the decision to conduct a public hearing can be set aside.

107 As already discussed, I have concluded that there is no general law duty on the part of the defendant to give reasons at every stage of the decision making process. This includes a decision to hold a public hearing pursuant to s 31 of the Act. The President's judgment in D'Amore at [103] should not be read as imposing such a requirement. What D'Amore was concerned with can be seen at [100], i.e. the requirement under the Act for a written report. As also discussed, there is nothing in the Act or the general law which requires the defendant to give reasons at different points throughout the investigation process.

108 It should be kept in mind that the plaintiffs carry the onus of making out their challenge that the defendant's state of satisfaction did not, or could not, have existed. In this regard, the observations of Gummow J in Minister for Immigration and Citizenship v SZGUR & Anor [2011] HCA 1; 241 CLR 594 at [67] and [70] are instructive:

"67 An applicant in the Federal Magistrates Court for judicial review of the Tribunal's decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case. In Industrial Equity Ltd v Deputy Commissioner of Taxation, Gaudron J made a similar point with respect to the ADJR Act. We are not concerned here with questions of a presumption of the regularity or validity of administrative action. Rather, the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.

...

70 An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, should not be drawn lightly. Nothing found in the authorities relied upon by Rares J assists in the present case. The statement by McHugh, Gummow and Hayne JJ in Yusuf, given the surrounding context and the authorities collected in the footnote at its conclusion, demonstrates that the reference there was to "matters of fact" or "findings of fact" and not to matters generally, such as the procedures the Tribunal chose to adopt in fulfilling its duty to review the delegate's decision."

109 Two of the decisions identified by Besanko J in D'Rozario illustrate what has to be established by the plaintiffs to be successful on this issue. There his Honour said:

"10 In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, Dixon J (as his Honour then was) considered a decision of the Commissioner of Taxation as to the voting power of a company at the end of a year of income. His Honour said (at 360):

"But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."

11 To similar effect is the analysis of Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, where his Honour considered the relevant principles where a decisionmaker has the power to take action if he or she is satisfied of the existence of certain matters specified in the statute. I set out one short passage from his Honour's reasons (at 118 - 119) because it is particularly relevant where the criterion such as public interest is a very broad one:

"However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes and Vale Pty Ltd v New South Wales [No 2] itself was a case of that kind. Where the authority is required to be satisfied on the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.""

110 The only evidence of what material was before the defendant as a decisionmaker are the facts set out in the allegations. What the plaintiffs have to show by reference to those facts was discussed by Besanko J as follows:

"18 I turn to the relevant principles in relation to the ground that the decision to grant permission to appeal was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. The High Court in SZMDS considered whether the classification of a decision as irrational, illogical, or not based on findings or inferences of fact supported by logical grounds meant that it was infected by jurisdictional error. Four members of the Court held that it was in certain circumstances, and the fifth member, Heydon J, analysed the facts on the assumption that that was the case. Again, the decision was a decision under s 65(1) of the Migration Act. Gummow A-CJ and Kiefel J held that a decision on a jurisdictional fact, albeit one which turned on the opinion or state of satisfaction of the decisionmaker, could be quashed if it was irrational or illogical (at 621, [24], 625, [40]). Crennan and Bell JJ were clear that the decision needed to relate to a jurisdictional fact before it could be struck down on the ground that the decision was irrational or illogical (at 636, [94][95], 643644, [119]). Their Honours also made the point that an allegation of irrationality or illogicality in relation to a decision was an allegation of a similar order to an allegation that the decision is arbitrary or capricious. ...

...

20 As I have previously mentioned, the relevant criterion in this case is the FWC's opinion or state of satisfaction that a grant of permission to appeal is in the public interest. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 (at 216) Mason CJ, Brennan, Dawson and Gaudron JJ said of the expression "in the public interest":

"Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (NSW) v Browning, Per Dixon J.""

111 There being no reasons given, and there being no obligation to give reasons, the task of the plaintiffs in seeking to set aside the decision of the defendant to conduct a public hearing was a difficult one. Given the seriousness of the facts asserted in the allegations, there is a an obvious benefit in exposing the conduct to the public. It has not been argued that the allegations are not serious.

112 The thrust of the plaintiffs' submissions is that no reasonable or rational decisionmaker could form the view that the public interest in conducting a public hearing outweighed any risk of undue prejudice to their reputations. A similar argument was raised before Harrison J in "A" at [76] - [77]. His Honour rejected that submission (at [87] - [88]) as follows:

"87 The only detectable basis upon which the plaintiff is able to assert that the Commission's decision to issue the particular summons went beyond the bounds of legal reasonableness is that the plaintiff objects to complying with it. This is in my view little more than an arbitrary dogmatic statement that the plaintiff expects will be accepted as valid. There may of course be reasonable examples to be found in administrative law where the extravagance of an action betrays the reason for it. A disproportionate exercise of administrative discretion may occasionally, perhaps often, speak for itself. The only way in which the plaintiff propounds that analysis in this case is to contend that the summons exceeds what on any view could be necessary for the purpose that s 35(1) serves, and that the Commission's failure or refusal so far to identify an allegation or complaint that is being examined by the Commission bears witness to that fact.

88 I accept the Commission's contention that there is nothing in the material before me to support a conclusion that the decision to issue the summons was infected by Wednesbury or Li unreasonableness or irrationality or that it was issued otherwise than for the purposes of an investigation under the Act."

113 In my opinion, similar but not identical reasoning is applicable to this aspect of the plaintiffs' submissions.

114 There is no presumption that just because the defendant has not provided reasons for its decision to conduct a public hering, pursuant to s 31, that it has failed to take into account the public interest as there defined. The power sought to be exercised under s 35 in "A" is a similar power to that exercised in s 31, although without the mandatory consideration. Both powers are for the purposes of an investigation. The public hearing, like a compulsory examination under s 35 and like a range of other mechanisms available to the defendant, is a tool of investigation.

115 A public hearing is one of a number of available methods of progressing an investigation under the Act. It would be a surprising result were the Court to hold that the investigation was within jurisdiction, but that the decision that it was in the public interest to hold a public hearing was entirely unreasonable. Presumably that would mean that the investigation would have to be conducted in secrecy, despite the fact that it involved serious allegations against, amongst others, a senior public officer. That secrecy in the conduct of the hearing would not prevent the final report being provided to Parliament and made public pursuant to s 74 of the Act.

116 Where allegations relating to interference with the course of justice are raised against persons, one of whom who holds senior office in the administration of justice in the State, and where the facts asserted in the allegations are such as to warrant further investigation, it cannot plausibly be said that no rational or reasonable decisionmaker could reach the view that a public hearing should not be held.

117 It is trite to observe that most persons to be investigated by the defendant would consider that the investigation would cause "disproportionate embarrassment and damage" to their reputation. But the discretion lies with the defendant. I am not satisfied that the plaintiffs' submissions meet the high threshold of legal irrationality necessary to make out their complaint in respect of s 31 of the Act.

Conclusion

118 It follows from the above that the plaintiffs have not made out the issues raised in their summons and that their summons should be dismissed. I have not heard argument as to costs and accordingly, I will give the parties an opportunity to make submissions on that issue and I reserve my decision as to costs.

119 The orders which I make are as follows:

(1) The plaintiffs' summons is dismissed.

(2) Costs are reserved.

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Decision last updated: 10 November 2014