Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Cunneen v Independent Commission Against Corruption [2014] NSWCA 421
• Hearing dates: 18 November 2014
• Decision date: 05 December 2014
• Before: Bathurst CJ at [1]; Basten JA at [30]; Ward JA at [125]

Decision

1 Grant the applicants leave to appeal from the orders made in the Common Law Division on 10 November 2014.

2 Direct the applicants to file within seven days the draft notice of appeal contained in the white folder.

3 Set aside the orders made in the Common Law Division dismissing the applicants' summons and reserving costs.

4 Declare that the Commission has no power to investigate the allegation involving the applicants identified in the summons issued to the applicants dated 27 October 2014.

5 Grant the parties leave to file within 14 days any application for an order as to costs, in the absence of which, the respondent is to pay the applicants' costs in this Court and in the Common Law Division.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - power to investigate "corrupt conduct" - whether allegations capable of falling within the meaning of "corrupt conduct" - whether conduct could "adversely affect" exercise of official functions by any public official - whether status of the applicant is an irrelevant consideration - whether conduct could pervert (or be an attempt to pervert) the course of justice - power to conduct "public inquiry" - whether legally unreasonable to conduct "public inquiry" - Independent Commission Against Corruption 1988 (NSW), ss 7, 8, 13, 31; ADMINISTRATIVE LAW - reasons for administrative decisions - obligation of the Independent Commission Against Corruption to provide reasons - power of the court to direct a public authority to provide a statement of reasons in "judicial review proceedings" - whether order would be inconsistent with requirement of an officer of the Commission not to divulge or communicate information -- Independent Commission Against Corruption 1988 (NSW), s 111 - Uniform Civil Procedure Rules 2005 (NSW), r 59.9; CRIMINAL LAW - offence - perverting course of justice - whether "course of justice" includes police investigations - alleged attempt to divert police from conducting a blood alcohol test by pretending to have chest pains - whether "course of justice" perverted by deflecting possible court proceedings resulting from investigations - Crimes Act 1900 (NSW), ss 312, 319
• Legislation Cited: Crimes Act 1900 (NSW), ss 312, 319, 341; Crimes (Public Justice) Amendment Act 1990 (NSW), Sch 1; District Court Act 1973 (NSW), s 12; Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 7, 8, 12A, 13, 30, 31, 35, 111; Interpretation Act 1987 (NSW), s 7; Local Court Act 2007 (NSW), s 12; Road Transport Act 2013 (NSW), ss 110, 112; Supreme Court Act 1970 (NSW), ss 25, 69, 101(2)(r); Taxation Administration Act 1996 (NSW), Pt 8; Uniform Civil Procedure Rules 2005 (NSW), r 59.9
• Cases Cited: A v Independent Commission Against Corruption [2014] NSWCA 414; A v Independent Commission Against Corruption [2014] NSWSC 1167; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386; Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239; (2007) 5 DDCR 97; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378; Cunneen v Independent Commission Against Corruption [2014] NSWSC 1571; Duffy v Da Rin [2014] NSWCA 270; (2014) 312 ALR 340; Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309; Financial Services Council Ltd v Industry Super Australia Pty Ltd [2014] FCAFC 92; (2014) 222 FCR 455; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Hagan v Independent Commission Against Corruption [2001] NSWSC 890; Haque v Commissioner of Corrective Services [2008] NSWSC 253; (2008) 216 FLR 271; House v The King (1936) 55 CLR 499; In re A Solicitor and the Legal Practitioners Act [1971] 2 NSWLR 113; In re A Solicitor; Ex parte the Prothonotary (1939) 56 WN(NSW) 53; Lee (No 1) v NSW Crime Commission [2013] HCA 39, (2013) 87 ALJR 1127; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; R v Einfeld [2008] NSWCCA 215; (2008) 71 NSWLR 31; Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656; The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268; The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
• Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013, LawBook Co)
• Category: Principal judgment
• Parties: Margaret Cunneen (First Applicant); Stephen Wyllie (Second Applicant); Sophia Tilley (Third Applicant); Independent Commission Against Corruption (Respondent)
• Representation: Counsel: A Moses SC with T Howard SC and R Gall (Applicants); J Kirk SC with S Robertson (Respondent); Solicitors: Cockburn and Co (Applicants); Crown Solicitor's Office (Respondent)
• File Number(s): CA 2014/00332831

Decision under appeal

• Citation: [2014] NSWSC 1571
• Date of Decision: 2014-11-10 00:00:00
• Before: Hoeben CJ at CL
• File Number(s): SC 2014/00324898

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants - Margaret Cunneen, Stephen Wyllie and Sophia Tilley - were summoned to a public inquiry by the Independent Commission Against Corruption ("the Commission"). The inquiry concerned allegations that Ms Cunneen and Mr Wyllie, with the intention of perverting the course of justice, counselled Ms Tilley to pretend to have chest pains to divert police from conducting a blood alcohol test at the scene of an accident.

The applicants commenced proceedings challenging the inquiry on the basis that the allegations could not constitute "corrupt conduct" under the Independent Commission Against Corruption 1988 (NSW) ("the Act"). Section 8(2) of the Act relevantly provides that conduct which could constitute an attempt to pervert the course of justice could constitute "corrupt conduct" if it could adversely affect the exercise of official functions by a public official.

The applicants also requested an order that the Commission provide reasons for its decision to investigate the allegations and to hold a public inquiry: Uniform Civil Procedure Rules 2005 (NSW), r 59.9(4). The primary judge, refusing the request, held the order would be ineffective as the Commission was not required to produce documents or divulge information in court: s 111(3) of the Act. The primary judge ultimately dismissed the proceedings. The applicants sought leave to appeal.

Held, granting leave and (by majority, Bathurst CJ dissenting) allowing the appeal,

1. The meaning of "adversely affects" in s 8(2) only extends to conduct that has the capacity to compromise the integrity of public administration. Unlawful conduct that falls within the second limb of s 8(2) is not "corrupt conduct" unless it could lead a public official to exercise his or her functions dishonestly, partially or otherwise improperly: [67], [71]-[75], [92] (Basten JA); [188]-[190] (Ward JA)

2. The alleged conduct could amount to an attempt to pervert the course of justice but it was not "corrupt conduct" within the meaning of s 8(2) as it could not be said a police officer (or other public official) might be led to exercise his or her powers improperly: [90], [92] (Basten JA); [195] (Ward JA)

(Bathurst CJ dissenting)

3. Conduct will have an adverse effect where it limits or prevents the proper performance of a public official's functions. The alleged conduct fell within the meaning of s 8(2) as it had the potential to divert the police officer from investigating a suspected offence: [22]

(Ward JA, Bathurst CJ agreeing; Basten JA not deciding)

4. The primary judge did not err in his construction of s 111 of the Act and there was no error disclosed in the exercise of his discretion to refuse the request for reasons that would warrant appellate intervention: [28] (Bathurst CJ); [156] [160] (Ward JA)

House v The King [1936] HCA 40; 55 CLR 499; A v Independent Commission Against Corruption [2014] NSWCA 414 applied.

Consideration of whether the decision of the Commission to conduct a public inquiry was legally unreasonable: [111]-[117] (Basten JA); [206] (Ward JA).

Judgment

1 BATHURST CJ: I have read the judgments of Basten JA and Ward JA in draft. Their Honours have set out the facts giving rise to the proceedings and it is unnecessary to repeat them. I have the misfortune to differ from their Honours on the question of whether the alleged conduct of the applicants could constitute corrupt conduct within the meaning of s 8(2) of the Independent Commission Against Corruption Act 1988 (the Act). I can state my reasons shortly.

The relevant statutory provisions

2 Section 2A of the Act describes the principal objects of the Act in the following terms:

"2A 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."

3 Section 3 of the Act defines corrupt conduct as having the meaning given by Pt 3 of the Act. Section 3 also defines public authority to include the New South Wales Police Force and public official to include a member of that force. The section also defines public officials to include a judge, magistrate or holder of any other judicial office.

4 Sections 7 and 8 of the Act contain the definition of corrupt conduct. They provide as follows:

"7(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(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."

5 Section 9 of the Act contains a limitation on the definition in s 8. So far as relevant it provides as follows:

"9(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."

6 As each of Basten JA and Ward JA have pointed out, s 8(2) of the Act imposes two requirements. First, that the conduct could adversely affect, either directly or indirectly, the exercise of official functions by any of the persons or bodies referred to in the subsection (the first limb). In this context "could" in my opinion refers to a reasonable possibility that the conduct would have such an effect.

7 Second, it is necessary that the conduct could involve one of the matters referred to in s 8(2)(a)-(y) of the Act (the second limb). In this context "could" means that a jury properly instructed could reasonably conclude that the offence had been committed: See Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 136.

8 In the present case it is convenient to deal with the second limb first.

Perverting the course of justice

9 The applicants contended that the conduct referred to in the summons could not constitute the offence of perverting the course of justice. For the reasons given by Basten JA, I am unable to agree. However, a consideration of the elements of the offence does provide assistance in dealing with the question of whether or not the first limb of the subsection is satisfied.

10 It is clear that merely interfering with a police investigation will not constitute the offence. The circumstances where such interference will constitute the offence in question were explained by Mason CJ and Brennan and Toohey JJ in The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268. In that case Mason CJ after stating that police investigations do not themselves form part of the course of justice, made the following remarks (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 agency. So, in Kalick v. The King, 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."

(References omitted).

11 Whilst Brennan and Toohey JJ dealt with the issue in the following terms (at 283-284):

"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. It impairs the court's capacity to do justice in the actual circumstances of the case. In Kalick v. The King, a bribe to a policeman to induce him not to prosecute for an offence against the Saskatchewan Temperance Act was held to be a corrupt interference with the due 'administration of justice' for the purposes of s. 157 of the Canadian Criminal Code. Anglin J. said:

'It is quite immaterial whether the police officer actually intended or contemplated instituting a prosecution. It suffices that the appellant gave the bribe with intent to head off such a proceeding. The due administration of justice is interfered with quite as much by improperly preventing the institution of a prosecution as by corruptly burking one already begun.'

We respectfully agree. 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. Subject to a limited discretion not to prosecute, it is the duty of the police to prosecute when offences are committed."

(References omitted).

12 It is important to note the emphasis placed by each of their Honours on the fact that the conduct is intended to frustrate or deflect the course of a criminal or tribunal proceeding (in the case of Mason CJ) or of impairing the Court's capacity to do justice in the actual circumstances of the case (in the case of Brennan and Toohey JJ).

The construction of s 8(2) of the Act

13 The task of construing the subsection must begin with a consideration of the text itself, taking into account the context, including the general purposes and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]. Context is important as statutory construction requires deciding what is the legal meaning of a provision by reference to the language of the instrument viewed as a whole: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23], [24], [68] and [88] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

14 The definition of corrupt conduct contained in s 8 of the Act, as Gleeson CJ pointed out in Greiner v Independent Commission Against Corruption at 129, is wide and in a number of respects unclear. In the same case Priestley JA described at 182 s 8 as intending to cast a very wide net. He stated that the unifying idea is that in the interest of honest and impartial exercise of official functions by public officials any conduct adversely affecting such exercise is prima facie to be regarded as corrupt. He said at 183 that the prime aim of s 8 was to bring a broad area of conduct, detrimental to the public interest, within the investigative reach of the Commission.

15 In dealing with s 8 of the Act, there are a number of textual matters which should be noted. First, s 8(6) provides a specific mention of a kind of conduct in one provision of the section does not limit the scope of any other. Thus, the width of s 8(2) is not limited by any of the provisions in s 8(1).

16 Second, the first limb of s 8(2) of the Act unlike s 8(1), does not direct itself expressly to any form of misconduct or potential misconduct by a public official. The misconduct, or potential misconduct, is picked up in the second limb of the subsection, which could include, but is not limited to conduct of the nature of that referred to in s 8(1).

17 Third, the width of s 8(2) of the Act would mean that in many cases conduct will fall within both s 8(1) and s 8(2). This does not provide a reason for reading down the scope of the latter section. As I have indicated, to do so would be contrary to s 8(6).

18 Fourth, it does not seem to me to be outside the contemplation of the legislature that each limb of the section would be satisfied by the same set of facts. That invariably would be the case in respect of conduct falling within s 8(2)(a) of the Act, which conduct would also appear to fall within s 8(1). However, the same result would apply in relation to other sections, for example, bribery of a public official, which would fall within s 8(2)(b).

19 In these circumstances, I agree with Basten JA and Ward JA that the critical question is what is meant by the expression "adversely affecting directly or indirectly the exercise of official functions".

20 Basten JA (judgment [71]) has expressed a view that what is referred to is conduct which has the capacity to compromise the integrity of public administration. Whilst there is much force in what his Honour says, I would prefer to focus on the words of the section. However, applying that test, in my opinion the alleged conduct falls within the section, in particular for the reasons which I have given in pars [24] and [25] below.

21 Ward JA (judgment [188]) has expressed the view that for the first limb of the section to be satisfied it is necessary for the conduct to have the capacity to divert the relevant public officer from the proper exercise of his or her functions. Again, I would prefer to focus on the words of the section, which when applied have the result referred to below.

22 In my opinion if the conduct in question limits or prevents the proper performance of the public official's function, then the first limb will be satisfied. In the present case the conduct had the potential effect of diverting the police officer from the performance of an investigation into a suspected crime. This in my opinion is sufficient to satisfy the first limb of the subsection, assuming the second limb is made out.

23 That does not mean that any conduct designed to mislead a police officer will be corrupt conduct within the meaning of s 8(2) of the Act. As the courts have made clear, such conduct without more will not constitute perversion of the course of justice. It is only where the conduct has the tendency to deflect the police from invoking the jurisdiction of the court, when it is their duty to do so, that the offence will be committed: The Queen v Rogerson at 284.

24 There is a more fundamental reason why the first limb is attracted. The conduct complained of could have the tendency to frustrate or deflect the course of possible curial or tribunal proceedings or to impair the court's capacity to do justice in the particular circumstances of the case: The Queen v Rogerson at 277 per Mason CJ and 284 per Brennan and Toohey JJ. It must be remembered that judges and magistrates are public officials and a court comprises a body of public officials: Supreme Court Act 1970 (NSW), s 25, District Court Act 1973 (NSW), s 12 and Local Court Act 2007 (NSW), s 12.

25 Conduct which could impair the court's capacity to do justice in the particular case is conduct which in my opinion could adversely affect at least indirectly the exercise by a court of its official functions. For this reason alone the first limb of the subsection is made out.

26 I appreciate that my reasoning necessarily involves the conclusion that any offence of perverting the course of justice or attempting to do so will fall within the subsection. This is not surprising where the essence of the offence is to impair the court's capacity to administer justice, something at the core of our legal and political system.

27 For these reasons the alleged conduct falls within s 8(2) of the Act. This of course does not involve forming any view as to the merits of the underlying allegation.

28 On the other issues in the appeal I agree with Basten JA and Ward JA.

29 In these circumstances in my opinion the appeal should be dismissed with costs.

30 BASTEN JA: The Independent Commission Against Corruption ("the Commission") is currently investigating an allegation involving the three applicants. The allegation under investigation was first set out in a notice given to the first applicant, Ms Margaret Cunneen SC, with a summons requiring her to attend a compulsory examination pursuant to s 30 of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). That examination was scheduled for 1 August 2014.

Procedural background

31 On 29 October 2014 each of the applicants received a summons from the Commission, dated 27 October 2014, requiring them to attend to give evidence at a "compulsory examination", although the notice also referred to a "public inquiry". A "compulsory examination" is conducted in private: ICAC Act, s 30(5). A "public inquiry" is, unless the Commissioner directs otherwise, to be held in public: s 31(8). Despite the confusion in the Commission's notice, it was common ground that it intends to conduct a public inquiry, which has been deferred pending determination of these proceedings. The allegation identified in the notice of 27 October 2014 was as follows:

"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."

32 The time for the commencement of the public inquiry identified in the notice was Monday, 10 November 2014. On 4 November 2014 the applicants filed proceedings in the Common Law Division seeking a declaration that the Commission was acting without jurisdiction and orders restraining the Commission from continuing its investigation.

33 The matter was listed before Hoeben CJ at CL on 5 November 2014. In addition to filing the summons, the applicants issued a notice to produce documents directed to the Commission and a notice under the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 59.9, seeking reasons for two decisions, namely (a) the decision to investigate the allegation and (b) the decision to hold a public inquiry. By arrangement with the parties, the notice to provide reasons was addressed first, and, the Commission indicating that it would not comply with the notice to give reasons, the primary judge declined the applicants' request that he order it to do so.

34 The matter then proceeded to a hearing on 6 and 7 November on the substantive issues raised by the applicants. On 10 November the primary judge dismissed the applicants' summons and delivered his reasons for judgment: Cunneen v Independent Commission Against Corruption [2014] NSWSC 1571.

35 An application for leave to appeal was filed the following day. On 11 November Macfarlan JA gave directions and fixed the hearing of the leave application (and the appeal, if leave were granted) for Tuesday, 18 November 2014. He noted an undertaking from senior counsel for the Commission that it would not proceed with a public inquiry until the determination of the appeal.

36 The primary judge noted that "the urgency associated with the hearing of this summons is clear": at [8]. Accepting that view, the matter was disposed of with exemplary expedition. However, the need for urgency is not entirely clear. The Commission having fixed a public inquiry to commence on 10 November, it was no doubt administratively convenient that the matter not be delayed or, if delayed, for only a short period. Further it is proper that matters concerning the integrity of the public administration of justice be dealt with as expeditiously as practicable, without compromising the proper consideration of the issues raised.

37 The appellate proceedings having been listed with unusual expedition in this Court, it is desirable that they be determined as expeditiously as possible. Nevertheless, the effects on other litigants which may result from that high degree of expedition does not seem to be warranted by a sufficient pressing public interest.

Issues on appeal

38 The draft notice of appeal identified sixteen grounds, which can be grouped in four categories. The first (request for reasons), challenged the refusal of the primary judge to order, pursuant to UCPR r 59.9(4), that the Commission provide reasons for its decisions to investigate the applicants in connection with the allegation and to hold a public inquiry: grounds 1-7.

39 The second category alleged error in construing the first limb of s 8(2) of the ICAC Act: grounds 8, 9 and 13. Ground 9 alleged that the Commission took into account an irrelevant consideration, namely the status of the first applicant as a deputy senior crown prosecutor, when the conduct sought to be investigated was unrelated to her role as a public official. The grounds otherwise identified a 'gateway' issue, namely that the allegation did not provide a basis for an inquiry into corrupt conduct, as defined in the ICAC Act.

40 The third category identified a separate issue with respect to the operation of the second limb of s 8(2), namely whether the allegation could involve conduct constituting an offence, under s 319 of the Crimes Act 1900 (NSW), of perverting the course of justice: grounds 10-12.

41 The fourth category concerned the challenge to the decision to hold a public inquiry pursuant to s 31 of the ICAC Act. This category comprised grounds 14-16.

42 The issues raised concern the scope of the Commission's functions and powers and involve matters of public importance in relation to the public administration of the State. The Commission did not ultimately oppose leave: accordingly the applicants were granted leave to appeal in the course of the hearing. The applicants should, in due course, file the draft notice of appeal in the Registry.

43 It is convenient to deal first with the grounds in the second and third categories, which in substance alleged that the investigation being undertaken by the Commission did not fall within the scope of its statutory functions. For the reasons given below, that ground should be upheld. That being so, the other matters fall away. The question of reasons becomes moot, as does any issue as to the validity of the decision to hold a public inquiry.

44 One other matter should be noted at the outset, namely that the Commission appeared as the active respondent in these proceedings. The Commission is certainly not a court, nor a tribunal in the usual understanding of that term. Rather, it is an investigative body which can hold inquiries and make reports to Parliament, amongst other functions. To the extent that it is required to exercise these functions, as it must do, impartially and without interest in the conduct or result of the investigations, it is undesirable that it become engaged in adversary proceedings with persons whose conduct is subject to investigation: see The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36. As the High Court stated, "[i]f a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted."

45 There is a qualification to that principle (although itself regarded as "exceptional") where the submissions to be made are limited to the powers and procedures of the tribunal. These principles should apply to the Commission. At least in so far as the matters to be dealt with are limited to statutory gateway to the exercise of its investigative functions, no issue arises as to the propriety of the Commission itself appearing and presenting legal argument as to the scope of its authority.

The investigative function

46 As senior counsel for the Commission correctly stated, the power being exercised by the Commission is to be found in s 13 of the ICAC Act, which, so far as relevant provides:

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,

...

(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 ...

(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.

47 Although it is clear that the Commission can investigate conduct which is not itself corrupt conduct and, of course, conduct which may, upon investigation, prove not to be corrupt conduct, the concept of "corrupt conduct" is central to the exercise of the principal function identified in s 13(1)(a) and (2)(a). The temporal element was fixed by events which had occurred, although the possibility of repercussions in the future which might involve corrupt conduct could not be dismissed. The case as presented by the applicants, without demur from the Commission, was that the allegation of which the applicants had been notified must itself involve corrupt conduct. Accordingly, it is necessary to consider the meaning of that term, as defined in s 8. There are constraints on the definition identified in s 9, but nothing turned on these for present purposes.

48 Part 3 of the ICAC Act is headed "Corrupt conduct". Section 7(1) provides:

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.

49 Both parties approached the matter in this Court (and it would appear before the primary judge) on the basis that the Commission's authority was to be found within that part of the definition of corrupt conduct which appears in s 8(2) of the ICAC Act, or not at all. There are indeed two parts to the definition of "corrupt conduct", set out in s 8(1) and s 8(2). It is not possible to understand the scope of s 8(2) without reference to s 8(1). As expressly recognised by s 7(1), particular conduct may fall within both subsections. It is clear that the drafter has sought to be comprehensive without seeking to establish two separate and independent provisions. Accordingly, both must be addressed together.

Scope of Commission's power to investigate

(a) definition of corrupt conduct

50 Section 8 relevantly provides:

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,

...

(g) perverting the course of justice,

...

(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.

...

(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.

51 While s 8(6) expressly requires that one provision not be read down by some implication deriving from the scope of another, it is nevertheless necessary to read the section as a whole, and in the context of the objects of the Act (s 2A), the functions of the Commission (Pt 4), including the reporting functions set out in Pt 8.

52 It is not necessary to set out the provisions of Pts 4 and 8, but reference will be required to the language of s 2A, which reads as follows:

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.

53 The structure of s 8(1) and (2) is of some importance. It is in form and effect a definition of "corrupt conduct", as is recognised by s 3(1), corrupt conduct. The use of the adverb "also" in subs (2) indicates that subs 8(1) is the primary part of the definition. Of the four paragraphs in subs (1), all apply to the conduct of a public official, but par (a) applies to the conduct of any person, whether or not a public official. The evil or mischief at the heart of par (a) (complemented by (b)) is the dishonest or partial exercise of an official function. The provision covers both dishonesty and partiality on the part of a public official and conduct of a second person which may seek to induce or encourage dishonesty or partiality on the part of a public official. Thus, to take an obvious example, the offering of a bribe to an electoral officer by a private person could fall within par (a) because it could adversely affect the honest and impartial exercise of the electoral officer's functions.

54 The word "also" has a second significance: it indicates that subs (2) is intended to extend the scope of the definition in subs (1). The first limb of subs (2) mirrors subs (1)(a), incorporating the concept of an adverse effect, but omitting the reference to "honest or impartial" exercise of official functions. The omission of that qualifying phrase must be taken to allow for adverse effects which do not fall within the concepts of dishonesty and partiality. By way of balance, the second limb is a restriction on the operation of subs (2), namely that the conduct could involve any of the long list of crimes and other official misconduct, which concludes with a dragnet of matters of the same or similar nature to those listed: par (x).

55 How the list operates is less clear. Subsection (2), like subs (1)(a), must be given a distributive operation. That is, it applies to the conduct of both public officials and others. To the extent that it applies to the conduct of others, that conduct must nevertheless be capable of adversely affecting the exercise of an official function by a public official. The comparison between subs (1)(a) and subs (2) with respect to the conduct of those who are not public officials may be paraphrased as follows (using the term "private person" to refer to someone other than a public official): the former provision catches any conduct of a private person which could adversely affect the honest or impartial exercise of official functions; the latter provision catches conduct which both falls within the list and could adversely affect the exercise of official functions in an unspecified manner.

56 There is undoubtedly much overlap between the scope of s 8(1) and s 8(2): the first step is to identify in what manner the latter extends the former with respect to conduct of a private person. That involves asking what sort of adverse effect on the exercise of official functions is envisaged by subs (2). For example, a dishonest statement as to the sale price of a property, for the purpose of reducing an assessment of duty, might involve an offence under Pt 8 of the Taxation Administration Act 1996 (NSW) and thus be a form of "tax evasion" for the purposes of subs (2)(m). The result might be that an official assessed an inadequate amount of duty, but in doing so the official would be acting honestly, impartially and in accordance with his or her statutory obligations.

57 By way of an example closer to the present case, the fact that a driver tells a lie about his health in order to avoid being breathalysed in circumstances where the driver thinks his blood alcohol level is above the prescribed limit, would not involve any dishonest or partial conduct on the part of the police officer, who would be exercising a discretionary power appropriately according to the facts which the officer reasonably believed at the time. The question is, in each case, whether the result of the conduct of the private person, namely that a tax payer avoids paying his or her full legal liability or a potential offender escapes prosecution, attracts the description of conduct which "could adversely affect ... the exercise of official functions by any public official". (In each case the conduct would appear to satisfy the second limb.)

58 The applicants submitted that the two limbs of s 8(2) could be satisfied only by separate acts or omissions. Were that not the case, the submission continued, any criminal conduct which fell within the list could become the subject of investigation by the Commission. This submission cannot be accepted in its terms. There is nothing in the statutory language which requires two separate acts, as distinct from an act which has two prescribed characteristics. On the other hand, many circumstances will involve conduct having at least two elements. Furthermore, there is substance in the underlying premise, namely that subs (2) must not be read in a way which gives no work to the first prescribed characteristic, so that any conduct falling within the list of unlawful activities (primarily criminal) would suffice to engage the functions of the Commission.

59 Whether subs (2) requires one or more than one activity in a particular case will depend upon two elements. First, in a practical sense, it will make a difference whether the conduct which is the subject of the first limb of subs (2) is the conduct of a private person or a public official. Secondly, it will depend on the nature of the unlawful conduct.

60 In one sense, the applicants' submission may have depended upon an assumption as to the scope of the term "conduct", which is not a defined term and is to be understood in the natural and ordinary meaning of the word. That meaning depends upon the context in which it is used and the circumstances to which it may apply. To take a simple example of a bribe offered to a police officer to overlook criminal conduct, there could be a single course of conduct or two separate activities each constituting conduct. Thus, the offering of a bribe by the private person would constitute corrupt conduct satisfying both characteristics identified in subs (2). Acceptance of the bribe could fall within the subs (1) or subs (2), but in the latter case because it is conduct which could adversely affect the exercise by the officer of his or her official functions. It might be thought to be an awkward reading of the provision (and this may be part of the applicants' submission) to fit within it the conduct of the corrupt police officer as being both the "conduct of any person" and having the effect of compromising "the exercise of official functions by any public official", being the same person. Such conduct would more naturally fall within subs (1)(b). How that issue should be addressed is not critical for present purposes: rather, the applicants' case must turn upon the meaning of "adversely affects" and its contingent form "could adversely affect".

61 If subs (2) were satisfied whenever a private person understates his or her income in order to avoid paying the full amount of tax, the first limb of subs (2) will be deprived of effect, so long as the conduct constituted (in this example) "tax evasion" under the second limb. To the extent that such conduct might fall within a possible understanding of conduct which adversely affects the exercise of official functions, because the result is to reduce public revenue, that reading should not be accepted. Some more limited understanding must be given to the term "adversely affect". The appropriate limitation must be derived from the statutory context.

62 On one view, the ordinary meaning of corrupt conduct would require a partial or dishonest exercise of an official function by a public official. However, to read the first limb of subs (2) as so limited would render it superfluous, because it would then cover precisely the same conduct as subs (1)(a). The omission of that language from subs (2) must have been deliberate, not to avoid overlap, but to allow a broader field of conduct to be identified.

63 There are two respects in which the first limb of subs (2) expands the coverage of subs (1). First, it expands the scope of pars (b), (c) and (d) of subs (1), which are restricted to the conduct of public officials and, in the case of (c) and (d), former public officials. Subsection (2) is not so limited: it applies generally to conduct of private persons and public officials.

64 Secondly, the apparent purpose of subs (1)(c) and (d) is to expand the concept of dishonest or partial exercise of an official function to conduct involving a "breach of public trust" or "misuse of information or material that he or she has acquired in the course of his or her official functions". Thus, subs (2) would, on one construction of the expression "adversely affect", cover the conduct of a private person designed to achieve a breach of public trust by a public official, where the conduct of the private person would not fall within subs (1)(c). It could also cover the conduct of a public official who seeks to have others breach public trust or misuse information obtained in the course of their official functions.

65 No doubt there might be a serious question as to whether such conduct could also fall within the concepts of dishonesty or partiality which limit the operation of subs (1)(a) and (b), but the drafter having adopted different language one should assume it was not superfluous or otiose, but expansive of the other paragraphs.

66 On this approach, the first limb of subs (2) will, first, cover the exercise of official functions in a way which may not properly be characterised as dishonest or partial; secondly, cover the activities of both private persons and public officials which would not necessarily fall within subs (1), but thirdly, impose a constraint on the term "adversely affect" which is consistent with the ordinary understanding of corruption affecting public authorities and public officials. This approach excludes from the scope of the Commission's functions conduct which may be unlawful but does not involve corruption or corrupt conduct because it does not compromise public administration. By contrast, a tax payer offering a benefit to a public official in order to curry favour, with the intention of avoiding an inquiry into one's actual income, would constitute a form of corruption. Thus the adverse effect on public administration arises in the latter case, but not in the former.

67 Such an approach derives contextual support from the language of s 2A, set out at [52] above, identifying the principal objects of the ICAC Act. The explicit mischief to which the Act is directed is "corruption involving or affecting public authorities and public officials" and the detrimental effect of such corruption on "public administration and on the community". It is evident from this language, and the two-limbed structure of s 8(2), that the Act is not concerned with, nor does it require investigation of, all unlawful conduct which could adversely affect public administration even quite directly, such as tax evasion and revenue evasion: see s 8(2)(m) and (n).

68 Senior counsel for the Commission submitted that such an approach would run foul of the principle that one not use the ordinary meaning of the defined term in order to give meaning to the definition. Further, to the extent that the scope of the definition is being approached by reference to the broad purposes of the Act, as stated in s 2A, that section merely picked up "other parts of speech and grammatical forms of the [defined] word or expression", which should be given "corresponding meanings", pursuant to s 7 of the Interpretation Act 1987 (NSW).

69 While it may be accepted that the purpose of s 7 is to give an expanded operation to a statutory definition, it may be doubted whether "corruption" bears the necessary relationship to the defined term "corrupt conduct" to fit within the linguistic operation identified in s 7. More importantly, there is no rigid principle which requires that a statutory definition, which itself requires interpretation, should be abstracted from its statutory context, given a meaning and then reinserted in an operative provision. The Act, including any defined terms, should be read as a whole: context is often important and sometimes determinative.

70 This Court considered the use of the defined term to understand a definition in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379. There can be no universal rule against such an approach; in the present circumstances, the preferable approach is to have regard to both the apparent purpose expressed in the principal objects of the Act, which do not themselves use the defined term "corrupt conduct", and the ordinary meaning of corruption in relation to the administration of the government.

71 On that basis, the reference in s 8(2) to conduct which could "adversely affect" the exercise of an official function should be understood to refer to conduct which has the capacity to compromise the integrity of public administration, rather than simply, for example, adversely affect government revenue.

72 There are two further factors to be noted. First, it may have been implicit in the Commission's approach that some different analysis is required with respect to perverting the course of justice. In other words, the nature of the offence may be such that any conduct having that effect will be conduct which adversely affects, or could adversely affect, the exercise of official functions by a public official.

73 If that approach were to be accepted, it would mean that, at least with respect to such conduct, the careful construction of s 8(2), involving two separate characteristics, would be otiose. The justification for reading the concept of adverse affectation differentially in this way was not articulated. It is not consistent with conventional approaches to statutory interpretation.

74 How this reasoning might operate may appear more clearly after reference is made below to the concept of perverting the course of justice. However, the statutory construction may be identified briefly as follows. Interference with or deflection of a police investigation does not of itself constitute perverting the course of justice. However, where such conduct is intended, and tends, to have the effect of deflecting officials from undertaking a criminal prosecution, it may interfere with (and thus pervert) the course of criminal justice as administered by a court.

75 However, the police officer to whom the private person lies or seeks to mislead, will not be compromised in any of the senses referred to above. That officer will not be deflected from an honest and impartial exercise of his or her functions, nor inveigled into a breach of public trust, nor into misuse of information acquired in an official capacity. Thus the first characteristic identified above would not be satisfied. Nor is there any clear reason for thinking that it should be satisfied in such circumstances. The short point may be stated in somewhat incomplete terms as follows: where the conduct of an individual is unlawful within one of the paragraphs in subs (2), but that conduct does not (and does not have the capacity) to lead a public official into dishonest, partial or otherwise corrupt conduct, subs (2) will not catch the conduct.

76 Secondly, it has not been necessary for the purposes of this analysis to determine whether the concept of a "breach of public trust" involves something other than the dishonest or partial exercise of an official function, so as to give pars (b) and (c) different applications. It should be assumed that the drafter intended that the different language covered different conduct. In Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Gleeson CJ said at 135:

"Reverting to s 8(1), the two concepts involved in that provision which were regarded by the Commissioner as relevant are those of partiality, and breach of public trust. As it happens, the only form of breach of public trust relied upon was partiality and therefore, for practical purposes, it became unnecessary to explore the meaning of the expression 'breach of public trust'."

77 Mahoney JA, who took a somewhat different approach to that of Gleeson CJ and Priestley JA, did discuss to a limited extent the concept of "breach of public trust". After referring to some historical precedents, Mahoney JA stated at 165F:

"It is not necessary to attempt a precise definition of the term where used in s 8(1). It includes the misuse of an office or of the powers of an office in circumstances such as the present. The Commissioner concluded that Mr Greiner and Mr Moore used their position, their power and the influence it gave them to procure the preferment of Dr Metherell for the purpose of achieving for them a political advantage and, perhaps, in the case of Mr Moore, to assist a friend. This is a use of the trust confided in them for a purpose for which it was not given."

78 Broadly speaking, this reflects the concept of improper purpose in administrative law, which extends beyond the concepts of honesty and impartiality.

(b) status of first applicant

79 It is unnecessary to deal with a further ground of challenge raised by the applicants to the decision to investigate the allegation. The submission assumed that the status of the first applicant as a Deputy Senior Crown Prosecutor was a factor taken into account by the Commission in determining to hold an investigation (and a public inquiry). That inference should be accepted, having regard to the description of the subject matter and nature of the inquiry stated by the Commission.

80 By characterising the status of the first applicant as "an irrelevant consideration", the applicants were invoking the principle that a decision-maker errs in law, and may exceed his or her jurisdiction, by taking into account a consideration which, within the statutory boundaries of the jurisdiction being exercised, is impermissible or "forbidden": M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013, LawBook Co) at [5.30], referring to Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239; (2007) 5 DDCR 97 at [113]; see also Duffy v Da Rin [2014] NSWCA 270; (2014) 312 ALR 340 at [43].

81 Once it is found that the investigation did not fall within the statutory confines of the Commission's powers, this ground falls away. That is because those constraints which are described as irrelevant or impermissible considerations are best understood as limits on the scope of a power which has been engaged, rather than limits on the engagement of the power. Thus, where the power is unavailable, it is illogical to ask whether the Commission erred in deciding whether to exercise the power on an impermissible basis. Such an exercise of discretion is inconsistent with the absence of the power.

(c) perverting the course of justice

82 The applicants separately contended that s 8(2) was not engaged because none of the aspects of unlawful conduct identified in the second limb was satisfied. The only paragraph relied on by the Commission was (g), which refers to "perverting the course of justice", together (if needed) with par (y), "any conspiracy or attempt in relation to any of the above."

83 The applicants submitted below that interfering with a police investigation at the scene of a motor accident did not constitute perverting the course of justice at a time when there were no proceedings before any court or tribunal. That proposition was said to derive from the judgment of the Court of Criminal Appeal in R v Einfeld [2008] NSWCCA 215; (2008) 71 NSWLR 31 (Bell JA, RS Hulme and Latham JJ) at [89]. Einfeld involved an appeal from a refusal to quash counts in an indictment involving offences under s 319 of the Crimes Act. Section 319 makes it an offence to do any act "intending in any way to pervert the course of justice", the offence carrying a maximum term of 14 years imprisonment. The applicant, having received a penalty notice with respect to a speeding offence, was charged with falsely making a statutory declaration that he was not the person in charge of the vehicle at the time of the offence. That constituted a contravention of traffic legislation as well, potentially, as involving an offence under Pt 7 of the Crimes Act, entitled "Public justice offences".

84 The Crimes Act, Pt 7, provides that "[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": s 312. The application in Einfeld to quash the counts of the indictment alleging contraventions of s 319 turned on whether the language of s 319, read in conformity with s 312, expanded the concept of "the course of justice" beyond that established for the purpose of common law offences, so as to cover the exercise by any government authority of functions in applying and enforcing the law of the State, otherwise than through criminal prosecution.

85 The primary judge in Einfeld, James J, had concluded that the statutory declaration made in response to a penalty notice for a traffic offence did not constitute an attempt to pervert the course of any criminal prosecution: accordingly, the counts should have been set aside unless the common law offence was expanded by s 312. James J held that it was expanded; the Court of Criminal Appeal rejected that view. The applicants submitted that the concept of perverting the course of justice required a narrow reading in the light of a passage in the reasoning of the Court of Criminal Appeal at [89]:

"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."

86 This submission takes one sentence out of context in a way which changes the meaning of the judgment, read as a whole.

87 The reasoning commenced with acceptance of the principles derived from the judgments of the High Court in The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268 in similar terms to those set out by Mason CJ 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 agency....

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."

88 The "course of justice" is thus the proceeding before a court or judicial tribunal; to deflect such a proceeding even before it has been commenced may constitute perverting the course of justice. A police investigation does not itself fall within "the course of justice" but the effect of deflecting a police investigation may be to deflect the course of justice. In this sense, the statement from Einfeld at [89] (set out above and relied upon by the applicants) is strictly correct, although, abstracted from its context, it could be misread.

89 The context in Einfeld was as follows. Part 7 of the Crimes Act was inserted by the Crimes (Public Justice) Amendment Act 1990 (NSW), Sch 1. Part 7, Div 5 abolished certain common law offences, including the offences of perverting the course of justice and attempting or conspiring to pervert the course of justice: s 341. The primary offence was replaced with s 319. The Court in Einfeld described this as effecting a government decision "to codify the law of this State with respect to public justice offences", at [87]; see also [65]. (It is not necessary for present purposes to consider whether Pt 7 involved "codification": unless all common law offences were abolished, which s 341 did not in terms purport to do, the term may be misleading.) Einfeld, therefore, was not addressing the common law offence considered in Rogerson. The question was not whether the exposition in Rogerson applied, but rather whether the scope of s 319 had been significantly expanded by the new definitional provision in s 312. The Court held that there was no such expanded operation; but there was no suggestion that the scope of the statutory offence did not extend as far as the common law offence discussed in Rogerson. The Court did not hold that deflecting a police investigation could not amount to perverting the course of justice. There was a problem in the expanded concept in s 312, as the Court identified it at [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."

90 The Court concluded that the expression "the administration of the law" in s 312 "differs little, if at all, from the expression 'the course of justice' as explained in Rogerson": at [99]. In the present case, it was likely apparently that the police would seek to test the third applicant, following her motor vehicle accident, to determine her blood alcohol level. On the alleged facts, subject to the investigation, her anxiety to avoid that outcome could reasonably give rise to the inference that the test might reveal a level above the prescribed minimum, so as to constitute an offence under, for example, s 112 of the Road Transport Act 2013 (NSW). Such a reading would be likely to result in the issue of a court attendance notice commencing proceedings for an offence. To act with intent to prevent that outcome would be to attempt to pervert the course of justice (and, if the attempt succeeded to commit the substantive offence).

91 This ground of objection must fail. The primary judge was correct to dismiss this ground of challenge in the summons.

(d) power to investigate - conclusion

92 On the construction of s 8 adopted above, the conduct of the applicants did not fall within the scope of s 8(2). Assuming that the advice given by the first and second applicants was acted upon by the third applicant and assuming that, as a result, the police were dissuaded from undertaking a blood alcohol reading in respect of the third applicant at the scene of the accident, it could not be said that the police officer acted otherwise than honestly and impartially in taking steps in accordance with his or her understanding of the circumstances. There was no suggested breach of public trust, in the sense of a statutory power being used for an extraneous purpose, nor any allegation of the misuse of information acquired in carrying out an official function.

Public hearing

(a) the statutory considerations

93 In the light of the last conclusion it is not necessary to address the separate challenge to the decision of the Commission to hold a public inquiry under s 31 of the ICAC Act. However, it is desirable to identify the nature of the challenge raised, in the absence of available reasons for the decision, and the issues with respect to the rejection of the challenge by the primary judge.

94 In earlier times it was common practice to anonymise proceedings dealing with unproven claims of misconduct against professionals, particularly lawyers and medical practitioners. The rationale behind this approach was that a professional was dependent upon his or her (usually his) reputation for integrity, which could be unjustifiably (and possibly irreparably) damaged by the dissemination of unproven allegations. A change in approach was signalled by Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47. The new approach gave priority to principles of open justice, which should prevail except in cases where disclosure of a party's identity would undermine the proper administration of justice. Prior to that time it was commonplace to see reports under the title, for example, In re A Solicitor and the Legal Practitioners Act [1971] 2 NSWLR 113 and In re A Solicitor; Ex parte the Prothonotary (1939) 56 WN(NSW) 53.

95 Similar protection was commonly provided in those days to medical practitioners in disciplinary proceedings. However, once there was an independent investigative agency responsible for considering complaints of medical misconduct, there was pressure to abandon the practice because publication of the practitioner's name was apt to bring forth further complaints which would not otherwise have been reported and investigated. No one suggests that these developments should be turned back; indeed, in the present age of instantaneous electronic communication, such a step would probably be impractical. Nor is professional reputation so jealously guarded today. On the other hand, there is a value in the privacy of investigations into unproven allegations which deserves to be considered by an investigative body with powers to undertake either private or public inquiries. Particularly is that so where the potential damage to reputation (and intrusions on personal privacy) result not from the considered assessment and reporting of an investigation but from public examination, often involving questions put in colourful terms and denials which are disregarded.

96 The statutory mandate of the Commission to promote the integrity and accountability of public administration should not be diminished by too ready an adoption of implied constraints. However, the Commission itself is described in its principal object as "an independent and accountable body". Its accountability is primarily to the Parliament: ICAC Act, Pt 5A (through the Inspector) and Pt 7. However, what is now seen as an essential institution in maintaining public accountability of government administration must temper its use of public inquiries by a careful consideration of where the public interest referred to in s 31(1) lies. There is a risk that the function of preventing breaches of public trust may be undermined if the Commission, lacking a power to do more than make findings, form opinions and formulate recommendations for the taking of action by others, should come to see the denunciation of what it believes to be corrupt conduct through a public inquiry as necessarily an end in itself.

97 Just as directors of public prosecutions in most jurisdictions publish guidelines allowing a degree of transparency with respect to prosecutorial decisions, one might expect the Commission to publish guidelines as to the circumstances in which it holds public inquiries. No such guidelines were in evidence. While no doubt the existence of guidelines might invite further applications for judicial review and remove flexibility from the statutory power of the Commissioner to make such decisions, there is a cost to be paid. If this Court considers that the decision to hold a public inquiry was capricious or arbitrary, it may require the Commission to hold its hand until further decision-making process has been undertaken.

98 Absent reasons and guidelines, the applicants' challenge had to rely on the fact of the decision viewed in the context of the statement of mandatory considerations in s 31(2). The relevant parts of s 31 are as follows:

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.

99 Although the inquiry is to be held in public, the Commission may decide to hold part of the inquiry in private and may hear closing submissions in private: s 31(8), (9) and (10). The section is followed by a note referring back to s 17(2) which requires that a public inquiry "shall be conducted with as little emphasis on an adversarial approach as is possible." What is meant by "adversarial" in this context is not entirely clear. There is no suggestion that an inquiry undertaken by the Commission involves competing parties: rather, in practical terms, there is the Commission undertaking investigative functions on the one hand and the person whose conduct is under investigation on the other. It would be consistent with that role if the Commissioner conducting an inquiry were to insist that the evidence of a witness should be explored openly and thoroughly, with contradictory material put to the witness, but without aggressive questioning implying disbelief on the part of the questioner to the answers given.

100 The first mandatory consideration must be read within the broad ambit of the ICAC Act. Thus the objects of the Act include exposing corruption and educating public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community: s 2A. At one level, those factors will usually militate in favour of a public inquiry. On the other hand, the Commission has power to prepare a report in relation to any matter that has been the subject of an investigation, and shall furnish reports to each House of Parliament: s 74(1) and (4). In considering whether to conduct a public inquiry, with potential adverse effects on individuals whose conduct is under investigation, consideration will be given to whether the functions of exposing, and educating about, corruption may best be served by the publicity attendant upon a report involving considered findings and recommendations.

101 The second consideration, namely the seriousness of the subject matter of the investigation, has a number of facets. An allegation or complaint may be treated seriously because of its source, because of its subject matter or because of the potential consequences of the conduct complained of. In some circumstances the seriousness of the allegation may militate in favour of a public inquiry but in others, perhaps where the allegation is of very serious misconduct but of a highly contestable kind, this factor may militate against taking that step.

102 So far as par (c) is concerned, the risk of "undue prejudice" to a person's reputation will usually arise from holding an inquiry rather than not holding one, although the latter possibility is recognised. How it will operate in a particular case is obviously a matter for discretionary judgment.

103 Paragraph (d) requires what will usually be obvious, namely the need to weigh the public interest in exposing the matter, against the competing public interest of protecting the privacy and reputations of those who may be adversely affected by public exposure of their affairs.

104 The factor which should have weighed heavily in the present case was that the conduct in question had two aspects. On the one hand, the public officials who may have been adversely affected in the conduct of official functions were police officers. The conduct could have led them not to take steps which might have revealed the commission of an offence, but which would not have affected in any way the honest and impartial exercise of their functions, being the primary aspect of corrupt conduct.

105 The other aspect of the conduct was the concern that the first applicant, a public official directly involved in enforcement of the criminal law as a prosecutor, might, in a personal capacity, have demonstrated a willingness to undermine mechanisms for law enforcement when the interests of a close friend of a relative so invited. On one view, given what is known from the allegation, the preferable course to public exposure might have been a report with a recommendation that the Director of Public Prosecutions take whatever action was deemed appropriate in the circumstances. However, senior counsel for the Commission submitted that the Court should draw no inferences as to the scope of the evidence or the seriousness of the conduct from the mere statement of the allegation.

(b) reasonableness review

106 The proper balancing of the factors, both known and unknown, was a matter for the Commission. The satisfaction of the relevant Commissioner can be reviewed on conventional administrative law grounds. The challenge mounted by the applicants with respect to the decision to hold a public inquiry relied in substance, if not in form, on the concept of "legal unreasonableness" where the focus of the challenge is on the outcome of the exercise of the power, rather than on the reasoning process of the decision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [47] (Allsop CJ, Robertson and Mortimer JJ). That distinction was derived from a discussion of the reasons of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, in Singh at [44]. The process required that an inference be drawn in circumstances where it is not known how the decision was reached. The discussion in Singh at [44] continued:

"In those circumstances, the exercise of power is seen by the supervising court as lacking 'an evident and intelligible justification'. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power ...."

107 In considering the standard of legal reasonableness, the Full Court noted that "the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case": at [48].

108 The Court further noted the proposition in Li at [14], in the judgment of French CJ, that a statutory provision conferring broad discretionary powers with respect to procedure do not remove any obligation to act according to law in the exercise of the statutory functions of the decision-maker, which is "not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law."

109 This Court recently had occasion to consider the approach required by the decision of the High Court in Li in Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386 at [89]-[93]. After referring both to the joint reasons and the reasons of Gageler J in Li and noting the latter's comment that, with respect to Wednesbury unreasonableness, "the stringency of the test remains", Tobias AJA (Meagher and Barrett JJA agreeing) noted that "the threshold required to be satisfied by the appellants is extremely high." Nevertheless, that language should not be taken out of context: the test applied to the Minister's decision was ultimately to ask whether it lacked "an evident and intelligible justification when its provisions are considered as a whole", adopting the joint reasons in Li at [76]: see Arnold at [118].

110 The applicants relied upon the so-called "principle of legality" to support a restrictive view of the powers of a statutory commission with investigative functions, where the exercise of the powers will infringe on the liberties, freedoms and rights of ordinary citizens. The Commission, not accepting that principle as valuable in the present context, submitted that the range of functions conferred by the legislature on the Commission was deliberately broad and carried the necessary implication that it was for the Commission, not the court, to be satisfied as to the available scope of the powers in relation to a particular factual context: see generally, the discussion in A v Independent Commission Against Corruption [2014] NSWCA 414 at [27]-[30]. That discussion will not be repeated here.

(c) reasoning of primary judge

111 Whether the decision to hold a public inquiry in the present case was tainted by legal error need not be determined, given the conclusion that the conduct did not fall within the first limb of s 8(2): the inquiry may not be held, or the investigation otherwise pursued. However, it is desirable to refer to the findings of the primary judge with respect to the holding of a public inquiry.

112 The primary judge noted that "[t]he thrust of the plaintiffs' submissions is that no reasonable or rational decision-maker could form the view that the public interest in conducting a public hearing outweighed any risk of undue prejudice to their reputations": at [112]. He further stated that a "similar argument" had been raised before Harrison J in A v Independent Commission Against Corruption [2014] NSWSC 1167 at [76]-[77]. That proposition was capable of misleading. The point in issue in the present case was the reasonableness of the Commission's decision to hold a public inquiry, having held a (private) compulsory examination. The issue in "A" was whether the Commission had acted reasonably in issuing a summons for the purpose of a private examination, a question which was remote from the considerations set out in s 31 of the Act with respect to public inquiries.

113 The primary judge continued at [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."

114 On one view, there is an implicit assumption in this passage that such investigations should not be conducted "in secrecy" and it would be a "surprising result" if a decision to hold a public hearing was, in the circumstances of the case, "entirely unreasonable." However, as explained above, there might be very pressing reasons why the subjection of a public official to an examination in public in circumstances where no conclusions had yet been reached would speak powerfully against such a course. To refer to the possibility of a final report revealing the nature of the conduct is not a factor which counts in favour of a public hearing. The damage which can be done to a reputation, possibly rendering the continued holding of public office untenable, in circumstances where denials may later be accepted or, apparently serious conduct may be held to be a minor infraction, tend in favour of caution in exercising the power to hold a public inquiry.

115 The primary judge continued:

"[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."

116 It may be accepted that the Commission would not act under s 31 unless satisfied that the allegations were sufficient to "warrant further investigation". However, that is not the test: the question is whether they were sufficient to warrant the holding of a public inquiry. Further, there is a question as to whether the primary judge was correct to assume that the applicants had to meet "the high threshold of legal irrationality" in order to obtain relief. There is a difference between serious unreasonableness and irrationality.

117 While the applicants' complaints about the reasoning of the trial judge were not unfounded, it was by no means clear that, on the limited evidence before him, he was wrong to reject the challenge to the decision to hold an inquiry.

Request for reasons

118 Again, it is not necessary to determine the applicants' challenge to the refusal of the trial judge to order the Commission to supply reasons for its decisions. Part 59 of the UCPR deals with "judicial review proceedings". Rule 59.9 is in the following terms:

59.9 Special procedure where public authority is defendant

(1) This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority.

(2) The plaintiff may, within 21 days of commencing proceedings against a public authority or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff:

(a) a copy of the decision, and

(b) a statement of reasons for the decision.

(3) A statement of reasons for the decision must:

(a) set out 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.

(4) If:

(a) the public authority does not comply with a notice under this rule within 14 days of service, or

(b) the plaintiff has not served a notice within the time prescribed by subrule (2),

the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision.

119 The primary judge noted a submission that this was a relatively new provision "introduced on 15 March 2013": at [17]. That was correct only in the sense that Pt 59 itself commenced on that date. The procedural power to require reasons commenced with Practice Note No 119: see (2001) 50 NSWLR 660.

120 In the course of the hearing before the primary judge, the Commission resisted any obligation to give reasons, relying on the terms of s 111 dealing with "secrecy". The key aspects of that provision are as follows:

111 Secrecy

(1) This section applies to:

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

...

(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,

121 Subsection 111(2) requires that an officer of the Commission not divulge or communicate to any person any information acquired by reason of or in the course of exercising functions under the ICAC Act. Because of the express terms of subs (3), that obligation should not be understood to preclude communication to a court. Subsection (3) states that an officer of the Commission shall not be required to divulge or communicate relevant matters to any court. However, neither provision prevents a voluntary disclosure by an officer, no doubt in the exercise of his or her functions under the ICAC Act, by means of a statement of reasons.

122 The primary judge noted that on 4 November 2014 the Commission produced reasons for the decisions, in apparent compliance with the notice served upon it. Although the applicants insisted and the Commission accepted that the reasons supplied did not comply with r 59.9, the application sought, in substance, further and more complete reasons, but without the applicants' revealing what had been provided. This was an unsatisfactory basis to pursue an application under r 59.9(4), which empowers the court to direct that a public authority provide a statement of reasons where there has been non-compliance with a notice. Identification of the defects in the reasons supplied would no doubt have allowed a focused identification of the interrelationship of s 111 and r 59.9. In any event the issue need not be addressed further.

Conclusions

123 The applicants are entitled to the relief sought in the summons, to the extent of a declaration that the Commission had no authority to investigate the matter identified in the summons by reference to the general scope and purpose of the proposed public inquiry and the nature of the allegation or complaint being investigated.

124 The Court should make the following orders:

(1) Grant the applicants leave to appeal from the orders made in the Common Law Division on 10 November 2014.

(2) Direct the applicants to file within seven days the draft notice of appeal contained in the white folder.

(3) Set aside the orders made in the Common Law Division dismissing the applicants' summons and reserving costs.

(4) Declare that the Commission has no power to investigate the allegation involving the applicants identified in the summons issued to the applicants dated 27 October 2014.

(5) Grant the parties leave to file within 14 days any application for an order as to costs, in the absence of which, the respondent is to pay the applicants' costs in this Court and in the Common Law Division.

125 WARD JA: By summons filed 11 November 2015, the applicants have sought leave to appeal from a decision by Hoeben CJ at CL (Cunneen v Independent Commission Against Corruption [2014] NSWSC 1571) refusing to grant the declaratory and other relief sought by them in relation to the following decisions made by the Independent Commission Against Corruption (ICAC): first, the decision to conduct an investigation into certain allegations made against the applicants and, second, the decision to hold a public inquiry into those allegations. The applicants also complain as to his Honour's refusal to order ICAC to provide them with a statement of reasons for the respective decisions pursuant to r 59.9(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The application for leave to appeal was listed to be heard concurrently with the appeal.

Background

126 In or about July 2014, the first applicant, Ms Cunneen SC, was summoned by ICAC pursuant to s 35 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) to appear and give evidence at a compulsory examination on 14 August 2014. Such examinations are required to be held in private (s 30(5)). The summons notified Ms Cunneen that the compulsory private hearing was for the purposes of an investigation into two allegations, the only relevant allegation now being that:

Margaret Cunneen SC on 31 May 2014, with the intention to pervert the course of justice, counselled Sophia Tilley [the third applicant in the present proceedings] 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.

127 Ms Cunneen is a deputy senior Crown prosecutor. Ms Tilley (the third applicant in these proceedings) is the de facto partner of Ms Cunneen's son, Stephen Wyllie (the second applicant in these proceedings).

128 The applicants' solicitor, Mr Cockburn, has deposed that he appeared, with ICAC's leave, at the private hearing and compulsory examination on 1 August 2014, presumably there intending to refer to 14 August 2014. Nothing is before the Court as to what transpired on that occasion.

129 Subsequently, by letters dated 29 October 2014, each of the applicants was served with a summons by ICAC to appear before it to give evidence at a public inquiry to be conducted on 10 November 2014. The summons served on Ms Cunneen (which was substantially in the form of that served on the other applicants) stated that the public inquiry was 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.

130 This summons, unlike the earlier summons, made specific reference to Ms Cunneen's position as deputy senior Crown prosecutor.

131 The applicants then commenced proceedings by summons dated 4 November 2014 in the Common Law Division of the Supreme Court, seeking declaratory and other relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). The relief sought included urgent injunctive relief restraining ICAC from continuing to investigate, and conducting a public inquiry into, the said allegations.

132 In connection with that application, the applicants' solicitor served on ICAC a notice to produce documents requiring production of any complaint made to ICAC and documents relating to the decisions to investigate and to conduct a public hearing. (No call was ultimately made on that notice to produce.) At the same time, a notice to public authority was served on ICAC pursuant to r 59.9 of the UCPR requiring ICAC to provide the applicants with a copy of each of the respective decisions and a statement of reasons for each of the decisions.

133 The notice to public authority also set out the requirements under r 59.9(3) as to the contents of a statement of reasons for decision, those being that the statement must: set out findings on material questions of fact; refer to the evidence or other material on which those findings were based; and explain why the decision was made.

134 ICAC declined to comply with the r 59.9 notice. No point was taken as to the temporal aspects of r 59.9, it being accepted that the matter was to be dealt with as a matter of urgency having regard to the scheduled date for the commencement of the public inquiry.

135 On 5 November 2014, Hoeben CJ at CL heard as a preliminary issue an application by the applicants for an order pursuant to r 59.9(4)(a) UCPR that ICAC provide a statement of reasons for the decisions in question. His Honour refused that application. Following a hearing on 6 November 2014 as to the substantive application, his Honour dismissed the applicants' summons.

Primary judgment

Ruling as to r 59.9 notice

136 In arguing against the order sought by the applicants for the provision of reasons, ICAC invoked the secrecy provisions contained in s 111 of the ICAC Act. Its contention was that an order for provision of a copy of the decisions would offend s 111(3)(a) of the ICAC Act and that an order for provision of a Statement of Reasons would offend s 111(3)(b).

137 Section 111(3) of the ICAC Act provides that:

(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.

138 Included in the persons to whom s 111(3) in its terms applies is a person who was or is an officer of the Commission (s 111(1)(a)). "Officer of the Commission" is defined in s 3 as including, inter alia, both a member of staff of the Commission and a person engaged by the Commission under s 104B to provide services, information or advice.

139 Section 111(4) permits the disclosure of such information in a number of circumstances, one being where it is in accordance with a direction of the Commissioner if the Commissioner certifies that it is necessary to do so in the public interest.

140 His Honour accepted (at [32]) that r 59.9 is a form of subordinate legislation directed to the power of the Court generally and that the Court should have regard to the provisions of s 111 of the ICAC Act when determining whether to make an order pursuant to r 59.9 in a case such as this.

141 His Honour referred to the first instance decisions in A v Independent Commission Against Corruption [2014] NSWSC 1167 (at [15]) and Hagan v Independent Commission Against Corruption [2001] NSWSC 890 (at [18]-[20]), in both of which it had been held that a person answering a notice to produce addressed to ICAC was a person to whom the secrecy provisions in s 111(3) applied. His Honour followed those decisions and concluded that s 111 applied to notices to produce or other compulsory processes such as a notice under r 59.9 UCPR directed to ICAC ([33]).

142 His Honour took into account the practical effect of the prohibitions in s 111(3) on the efficacy of any order which the Court might make, concluding that if orders of the kind sought by the applicants were to be made, ICAC would not be obliged to comply with them and hence that such orders would be ineffective ([35]-[36]). The applicants maintain that this, in effect, wrongly puts ICAC above the Court.

143 His Honour also had regard to various matters as affecting the exercise of the discretion of the Court, namely that: ICAC's Counsel had said that it would not comply with such an order ([37]); the investigation was at its earliest stage and therefore that it might well be that the refusal of ICAC to provide a statement of reasons was because to do so would be prejudicial to the conduct of the investigation as it would require the premature disclosure of material ([38]); there is no general duty at common law to give reasons for administrative decisions ([39], citing Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656); and that any argument as to prejudice to the investigation would not exist once ICAC had concluded the investigation by completing a report at which stage an application for 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 ([40]). As to the last point, his Honour acknowledged that an application for judicial review after a report had been completed would not be entirely satisfactory since reputational damage would already have occurred, but referred to authority in which it was recognised that a positive finding and quashing of a report could still be of considerable value ([40], citing Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564).

144 As an addendum to his earlier observations, his Honour noted (at [42]) that at 5pm on 5 November 2014 (i.e., after the application for the r 59.9 order had been heard), ICAC had provided a two page letter to the applicants which his Honour described as providing reasons "for its decisions or decision". His Honour was there referring to what he had been told about the letter since the applicants had objected to its tender and it was not admitted into evidence. The letter was therefore not before his Honour nor was it before this Court.

145 It appears from the transcript of the proceedings before his Honour on 6 November 2014 that ICAC's Senior Counsel, Dr Kirk SC, described the letter as "dealing with reasons relating to the decision to conduct a public inquiry involving [the applicants]" (T 28.35). Dr Kirk fairly conceded that his Honour would be likely to reject the tender for the reasons that had led to a similar ruling in Haque v Commissioner of Corrective Services [2008] NSWSC 253; (2008) 216 FLR 271.

146 At the hearing before this Court, Dr Kirk accepted that the Court could proceed on the basis that the letter related only to the decision to conduct a public inquiry and indicated that it was not a complete statement of reasons of the kind required under r 59.9(3) UCPR. (Hence the submission by ICAC on this appeal, to the effect that even if the discretion were to be re-exercised no order for reasons should be made because reasons had already been provided, even if accepted would not address the whole of the applicants' complaint as to the non-provision of a statement of reasons, there being no suggestion that any reasons for the first decision had been provided.)

Dismissal of applicants' summons

147 As to the substantive relief sought by the applicants, his Honour rejected a submission that the failure by ICAC to provide reasons for its decision to conduct an investigation meant that it was acting beyond power in proceeding to conduct the investigation ([45], [47]) and concluded that nothing had been put by the applicants to suggest that (assuming there was jurisdiction to conduct the investigation) the decision to do was so irrational and illogical as to be beyond the jurisdiction of ICAC ([48]).

148 At [59], his Honour rejected the construction of s 8(2) for which the applicants contended (and still contend), namely that, in order to constitute "corrupt conduct", the conduct must satisfy each of two separate criteria and that those criteria should not be conflated. His Honour was also not persuaded that the principle of legality would apply to read down the grant of jurisdiction to ICAC ([67]). At [69], his Honour said:

"By reference to [the guidance given by Gageler and Keane JJ in Lee (No 1) v NSW Crime Commission [2013] HCA 39, (2013) 87 ALJR 1127 at [313]-[314]], 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."

149 As to other matters raised by the applicants, his Honour rejected the submission that ICAC had taken into account an irrelevant consideration when having regard (as it was apparent from the terms of the summons it had done) to the status of Ms Cunneen as someone holding a senior office with the Director of Public Prosecutions ([73]) and rejected the applicants' submission that the conduct alleged against them failed to satisfy the second limb of s 8(2) because it could not possibly amount to any of the matters set out in s 8(2)(a)-(y) ([83]).

150 As to the decision to hold a public inquiry, his Honour accepted that the relevant jurisdictional fact was ICAC's state of satisfaction that it was in the public interest to do so ([104]). His Honour was not satisfied that the applicants had met what he referred to as the high threshold of legal irrationality necessary to make out this complaint ([117]).

Leave to appeal

151 Leave to appeal is required pursuant to s 101(2)(r) of the Supreme Court Act. ICAC did not oppose the grant of leave to appeal. As the appeal is one that clearly raises important issues of principle, this Court, at the commencement of the concurrent hearing of the application for leave, granted leave to appeal and the matter proceeded on that basis.

Grounds of appeal

152 The draft notice of appeal raises 16 grounds of appeal, which I propose to deal with in three groups: first, as to the refusal of his Honour to order the provision of a statement of reasons (grounds 1-7); second, as to the proper construction of s 8(2) of the ICAC Act and whether the conduct alleged on the part of each of the applicants fell within the definition of "corrupt conduct" for the purposes of s 8(2) (grounds 8-13); and, third, as to the decision of ICAC to conduct a public inquiry into the allegations made against the applicants (grounds 14-16).

153 Insofar as the refusal to make a r 59.9 order was dealt with by his Honour as a matter of discretion, ICAC has served a draft notice of contention seeking to uphold that decision on the basis that the Court had no power to make the order sought by the applicants.

Grounds 1-7 - refusal to make an order under r 59.9(4) UCPR

154 In essence, the applicants contend that his Honour erred in his construction of s 111 of the ICAC Act, and that the two first instance decisions to which his Honour referred (Hagan and A v ICAC) were wrongly decided in this regard. The applicants argue that s 111(3) is not to be construed as applying to individuals acting on behalf of ICAC when producing documents under the rules of the court. They emphasise the distinction between an individual carrying out a function on behalf of ICAC and ICAC itself as a separate corporate entity.

155 Alternatively, the applicants argue that if s 111 does have the operation for which ICAC contends (which they maintain involves impermissibly reading words into s 111(1)) then it is constitutionally invalid on the basis that it impermissibly curtails the Supreme Court's ability to determine the extent to which ICAC committed jurisdictional error in making the impugned decisions and offends the institutional integrity of the court.

156 The same arguments were considered by this Court in A v Independent Commission Against Corruption [2014] NSWCA 414. For the reasons there given, grounds 3-5 of the applicants' notice of appeal are not made out.

157 That said, I see a distinction between the situation that was before this Court in A v ICAC and that in the present case. Here, the applicants sought an order for the provision by ICAC of a statement of reasons. At least insofar as this would involve the preparation of a new document created for the purposes of compliance with a court order, in my opinion it would not be something that came into the possession of the relevant person for the purpose of exercising a function under the ICAC Act per se. Therefore, I consider that there is force to the submission by the applicants that a statement of reasons produced in compliance with a Court order is not (or at least not necessarily) a document falling within s 111(3). Nevertheless to the extent that the statement of reasons sought in the present case was one that required the disclosure of documents or material otherwise caught by s 111(3) the difficulty considered in A v ICAC remains.

158 ICAC argued that the Court would not make an order that would, in effect, require or direct the Commissioner to make a certification under s 111(4)(c) of the kind that would be necessary to permit disclosure by an officer of ICAC of information otherwise prohibited to be disclosed, as this would amount in effect to an impermissible merits review of the decision not to comply with the r 59.9 notice. However, that does not address the possibility that an order made under r 59.9(3) could be tailored so as not to infringe upon the secrecy provisions of the ICAC Act, including dispensing with some of the requirements as to the content for a statement of reasons under that rule.

159 In any event, that issue does not arise in the present case, since there was no application by the applicants for a more limited r 59.9 statement of reasons.

160 As to the other challenges made by the applicants to the exercise of his Honour's discretion, I am not persuaded that the applicants have pointed to anything that discloses error in the House v The King (1936) 55 CLR 499 sense that would warrant appellate intervention.

161 His Honour's reference to the investigation being at the "earliest" or "very early" stage may or may not be factually correct. This Court has no knowledge of what has occurred in relation to the investigation since July 2014 other than that Ms Cunneen's lawyer attended before the Commission on the day scheduled for the compulsory examination. However, the comment made by his Honour as to the stage of the investigation was in the context that there might well be the potential for the disclosure of material sought by the applicants to be prejudicial to the conduct of the investigation. The possibility of such prejudice was expressly adverted to in National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 at 323-324 and is a matter of common sense. There was no error in contemplating such a possibility in the present case.

162 The applicants further contend that his Honour erred in taking into account (or placing as much weight as he did on) the proposition that any prejudice to the investigation would not exist once the investigation was complete. They contend that his Honour did not properly consider the corollary to this observation, including such matters as the significant reputational damage that individuals may suffer (and which may not be compensable) and the removal of fundamental rights such as the right to silence as a consequence of the relevant decisions (see [6.17] of the applicants' submissions). The lack of prejudice to an investigation by disclosure of reasons once the investigation is complete follows logically from the premise that the investigation is complete, so there can have been no error in taking that into account. What seems to be challenged by the applicants in this regard is whether his Honour erred in balancing the potential prejudice to the investigation with the potential prejudice to the persons being investigated. His Honour's reasons reveal that his Honour did take into account the reputational damage to the applicants as one of the factors affecting the exercise of his discretion to make an order under r 59.9.

163 I am not persuaded that his Honour has been shown to have erred in the exercise of his discretion not to order the provision of a statement of reasons. Even if his Honour had been shown to have been in error in refusing to make the order sought, I agree with the submission by ICAC that this would not support the relief claimed by the applicants as to the invalidity of the impugned decisions.

164 Grounds 1-7 of the appeal have not been made out. It is therefore not necessary to consider ICAC's notice of contention.

Grounds 8-13 - s 8(2) of the ICAC Act

Meaning of "corrupt conduct" in ss 8(1)(a) and (2)

165 Basten JA has set out in his reasons the relevant provisions of the ICAC Act and I do not propose to repeat them here.

166 Relevantly, ICAC is empowered to conduct a compulsory examination (s 30) or a public inquiry (s 31) for the purposes of an investigation if it is satisfied that it is in the public interest to do so. When considering whether it is in the public interest to conduct a public inquiry, ICAC must consider the four matters set out in s 31(2). If the conduct the subject of the proposed examination or inquiry does not fall within the definition of "corrupt conduct" then ICAC could not investigate the conduct.

167 Here, the summons issued pursuant to s 35 makes clear that the general scope and purpose of the public inquiry was 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. Those matters include whether any corrupt conduct (or conduct liable to allow, encourage or cause the occurrence of, or connected with, corrupt conduct) has occurred, is occurring or is about to occur (s 13(2)(a)).

168 "Corrupt conduct" is defined in s 7(1) as being any conduct which falls within the description of corrupt conduct in either or both of ss 8(1) and (2) but which is not excluded by s 9; and as including conduct comprising a conspiracy or attempt to commit or engage in conduct that would be corrupt conduct under s 8(1) or s 8(2) (s 7(2)). It is clear from the definition, therefore, that the legislature contemplated that the same conduct might fall within both ss 8(1) and (2).

169 It was not contended in the present case that the alleged conduct fell within the definition of "corrupt conduct" in s 8(1). The critical question was whether it fell within the definition in s 8(2).

Proper construction of s 8(2)

170 The applicants contend, as they did before the primary judge, that it is not sufficient that there be an allegation of conduct that could involve one of the matters listed in s 8(2)(a)-(y), such as an allegation of an attempt to pervert the course of justice. Rather, they contend that there must also be an allegation of conduct that satisfies the first "limb" in s 8(2) and that these should not be conflated. The applicants contend that conduct that adversely affects or could adversely affect the exercise of official functions by a public official within the meaning of the first limb in s 8(2) is conduct that goes beyond what would "ordinarily" be involved in the crime of perverting or attempting to pervert the course of justice. Emphasis is placed on the policy and purpose of the ICAC Act, being the investigation of corruption; not of crime generally.

171 In my opinion a textual analysis of s 8(2) supports the conclusion that conduct is not corrupt conduct within the meaning of that section unless it satisfies both of the criteria there set out and, in relation to the first criterion, that it has at least the potential adversely to affect the exercise of official functions in the sense of corrupting the exercise of those functions having regard to the concept of corruption on which the ICAC Act focuses. This is necessary to give a meaningful operation to the adverb "adversely" in the first limb of s 8(2).

172 Before turning to what meaning is imported by the use of that adverb, I note the following features of the sub-section (which were considered in the course of submissions at the hearing and have been developed in Basten JA's reasons).

173 First, the word "also" in the opening words of s 8(2) suggests that this subsection is introducing into the concept of corrupt conduct some conduct that is at least additional to and perhaps wider than the conduct defined in s 8(1). (The applicants maintain that s 8(2) does not widen the scope of s 8(1) but, rather, that the word "also" simply means that s 8(2) is introducing another variation of corrupt conduct.)

174 It is clear from s 7(1) that the legislature contemplated that conduct might fall within both s 8(1) and s 8(2), so the latter provision may not necessarily have been intended to have a wider operation than the former. Nevertheless, some extension of the concept of corrupt conduct beyond that in s 8(1) can be found in the two respects noted by Basten JA (namely that the conduct in s 8(2) is not limited to that of a public official or former official and that it may encompass conduct referred to in s 8(1)(c) and (d) in relation to breach of public trust or misuse of information).

175 Second, while the first part of the definition in s 8(2) broadly mirrors the definition of corrupt conduct in s 8(1)(a), it omits the adjectives ("honest or impartial") that in s 8(1) qualify the words "the exercise of official functions by any public official ...". This must mean that it encompasses conduct that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, whether or not what is potentially so affected is the honesty or impartiality of the official in the exercise of those functions. This suggests that the subjective intention of the official is not necessarily relevant when considering the definition of corrupt conduct in s 8(2).

176 Third, the phrase introduced by the conjunction "and" makes it clear that in order to fall within the definition of corrupt conduct in s 8(2) there must be conduct that satisfies both the first part of the definition (i.e., conduct "that adversely affects or could adversely affect either directly or indirectly the exercise of official functions by any public official ...") and the second part of the definition (i.e., conduct which could involve any of the matters thereafter listed). (The relevant matters for the purposes of the present case are those listed in s 8(2)(g) - perverting the course of justice - and s 8(2)(y) - any conspiracy or attempt in relation to any of the above.) There is nothing to suggest that the same conduct, whether the same or different elements of that conduct, could not satisfy both aspects of the definition.

177 Fourth, in both s 8(1)(a) and the first part of the definition in s 8(2) what is required is not necessarily that the conduct have an actual adverse effect on the exercise of the relevant official functions. It is sufficient that there be the potential for the exercise of those functions to be adversely affected.

Meaning of "adversely affect"

178 That brings me to the meaning to be attributed to the adverb "adversely" for the purposes of s 8(2). What is required (whether in terms of actual or potential effect) is that the conduct have an adverse effect on the exercise of the relevant official functions.

179 It is not sufficient for the purposes of s 8(2) (or for that matter s 8(1)(a)) that the exercise (or in s 8(1)(a) the honest or impartial exercise) of official functions by a public official has been or could be affected in some way by the alleged conduct which is to be the subject of the investigation. The requirement is that the conduct in question have at least a potential adverse effect on the exercise (whether honestly and impartially, or otherwise) of those functions.

180 Whether "adversely" permits or requires a consideration of the actual or potential outcome or result of the exercise of the relevant public official's functions or simply of the manner of exercise of the relevant official functions is not altogether clear. What is clear is that the adverse (or potential adverse) effect must be on the exercise of those functions. It may be that such an effect can be discerned by reference to the potential or actual manner or outcome of the exercise of those functions but something more is required than that the conduct has the potential to cause a public official to exercise his or her functions differently than he or she might otherwise have done but for the conduct.

181 The applicants point to the principal objects of ICAC (set out in s 2A of the ICAC Act), which focus on the (undefined) concept of "corruption", and to the statutory direction for ICAC, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct (in s 12A of the Act).

182 ICAC contends that the word "adversely" in s 8(2) refers to conduct that affects (in the sense of directs, changes or has a consequence on) the exercise of official functions in a way that "has an adverse consequence" in the sense that (though not necessarily being conduct that is unlawful, criminal or amounts to misfeasance in public office), it diverts the decision-making function in a way that is adverse to the course of public administration. ICAC's submission, in short, is that "adversely" connotes a diversion to the course of public administration which can reasonably be seen as adverse.

183 ICAC argues that the word "adversely" introduces a subjective and inherently evaluative element as to which it is for ICAC to form the relevant opinion. ICAC accepts that in reaching that opinion it must act honestly and reasonably.

184 The applicants submit that ICAC's construction of s 8(2) would expand ICAC's powers beyond the scope contemplated in the second reading speech made by the then premier in relation to the legislation (Hansard Legislative Assembly, 26 May 1988, 672-685, by Premier Greiner, at 674-675) and would leave both the word "and" and the first limb of s 8(2) with no work to do.

185 ICAC submits that conduct that involves perverting the course of justice or attempting to pervert the course of justice will almost invariably satisfy both characteristics in s 8(2). If so, then there is force to the applicants' contention that the first limb of s 8(2) will have no work to do in that context. ICAC submits that the focus of s 8(1) is on the exercise of official functions but that the focus on s 8(2) is on the "other side of the equation", namely serious or criminal conduct being conduct that must at least have a potential "adverse" effect on the public administration of justice. In the course of argument, Dr Kirk accepted that if there were conduct that involved, say, an attempt to pervert the course of justice but it was conduct that (because of its misguided nature or manner of exercise or otherwise) would inevitably fail, then the first criterion in s 8(2) would not be satisfied.

186 The adverb "adversely" in the first limb of s 8(2) should be construed having regard to the scope and purpose of the ICAC legislation (see Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [23] per Gleeson CJ and at [182] per Kirby J in dissent).

187 The focus of the ICAC Act is on corruption in the public sector.

188 What is required by the first part of the definition, in my opinion, is that the conduct the subject of the relevant allegation be conduct that has at least the potential to affect the exercise of the relevant public official's functions in a manner adverse to the public administration of justice in the sense of diverting the proper exercise of those functions.

189 Conduct which could have a potential effect on the exercise of official functions in the sense that it might cause a different decision to be made or the functions to be exercised in a different manner but which does not have the potential to cause any "corruption" in the exercise by the public official of his or her functions, or which could have no adverse outcome when viewed from a public corruption perspective, is not conduct that could "adversely" affect the proper exercise of official functions in the relevant sense.

190 In other words, if there is conduct which, though it might involve an attempt to pervert the course of justice, could not have the potential "adversely" to affect the exercise of official functions in the sense of diverting the proper exercise of those functions, such conduct would not in my opinion fall within the definition in s 8(2).

Application of that construction in the present case

191 ICAC points out that driving in excess of relevant blood alcohol levels is an offence pursuant to s 110 of the Road Transport Act 2013 (NSW); and notes that the allegation the subject of investigation refers to investigating police officers seeking to obtain evidence. It submits that where a potential offence is at stake, and an act is done or counselled or procured with an intent to impede the gathering of evidence in relation to that potential offence, then this is not only conduct falling within the concept of perverting or attempting to pervert the course of justice but is also conduct that could have a harmful effect on the public administration of justice.

192 In the present case, the allegation the subject of investigation is one that focuses on an attempt to pervert the course of justice.

193 I agree with Basten JA's conclusion (at [92]), for the reasons that his Honour there gives, that the conduct the subject of the allegation described in the s 35 summons is not conduct that could adversely affect the exercise of official functions by the investigating police officers at the scene of the motor vehicle accident. Therefore, the alleged conduct does not fall within the definition of corrupt conduct s 8(2) and ICAC does not have jurisdiction to conduct the investigation.

194 Accordingly, ground 13 of the grounds of appeal is made out and the appeal must be allowed.

195 It is not necessary in light of that conclusion to consider the contention of the applicants that the alleged conduct would not satisfy the second limb of s 8(2). Had it been necessary to determine, I would have concluded that the alleged conduct could involve an attempt to pervert the course of justice as that offence is explained in The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 283-284. There, Brennan and Toohey JJ held that while the "course of justice" only commences when the jurisdiction of a court or some other judicial authority is invoked, misleading police in the course of their investigations into crime can amount to an attempt to pervert the course of justice. I agree with Basten JA that the primary judge did not err in rejecting this contention of the applicants.

Grounds 14-16 - decision to conduct public inquiry pursuant to s 31 of the ICAC Act

196 Grounds 14-16 relate to the decision to hold a public inquiry. It is contended that his Honour erred in finding that there had been no jurisdictional error in relation to that decision.

197 The first basis on which the applicants maintain that the decision to hold a public hearing was not authorised by the ICAC Act and was beyond the power conferred by s 31 is that the investigation itself was not authorised. For the reasons set out above, I agree with that contention.

198 It is not therefore necessary to consider whether, as the applicants also contend, the decision was beyond power because of the absence of the existence of a jurisdictional fact (that being identified by them as whether ICAC considered the matters it was required to by s 31(2)) or because ICAC took into account an irrelevant consideration in the decision to conduct a public inquiry, namely, Ms Cunneen's public role as deputy senior Crown prosecutor.

199 As to the first of those matters, the applicants accept that it may be inferred from the contents of the summons that the Commissioner had regard to the matters mandated by s 31(2)(a) and (b) (i.e., the benefit of exposure to the public, and making it aware, of corrupt conduct and the seriousness of the allegation or complaint) but submit that there is nothing to indicate that regard was had to the mandatory considerations in s 31(2)(c) and (d) (i.e., any risk of undue prejudice to a person's reputation and whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned).

200 The applicants contend that, having regard to: the nature of the allegations made against them; the nature of the conduct alleged against them; and the disproportionate embarrassment and damage to their reputations that the conduct of a public inquiry is likely to occasion, even assuming ICAC did take into account the factors mandated by s 31(2)(c) and (d), it could not rationally and logically have reached the necessary state of satisfaction. They emphasise that the reputational damage likely to attend the holding of a public inquiry (particularly given the first applicant's public role) as a factor that is so great that the decision to hold a public inquiry lacks an evident and intelligible justification. (Pausing there, this submission in itself demonstrates why the first applicant's public role could not have been an irrelevant consideration.)

201 The primary judge's reasoning on this issue has been summarised by Basten JA (at [112]-[113]). The applicants maintain that his Honour erred in proceeding on the basis that they had to meet a high threshold of legal irrationality and they call in aid the analysis in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 308 ALR 280, to which Basten JA has referred.

202 As to the question whether the Commissioner could reasonably have been satisfied that the allegations were sufficient, if proper regard were had to the mandatory requirements of s 31(2) of the ICAC Act, to warrant the holding of a public inquiry, I have been troubled. I accept that what was alleged against the applicants was conduct that could amount to the offence of attempting to pervert the course of justice. It was conduct that was alleged to have been committed in the respective applicants' private capacities.

203 The first applicant's public role was in my opinion a relevant consideration to be taken into account in assessing the risk of undue reputational prejudice to the first applicant by the holding of a public inquiry and in assessing whether the public interest in exposing the matter was outweighed by the public interest in preserving the privacy of the persons concerned.

204 Dr Kirk emphasised that what is to be assessed there is the risk of "undue" reputational prejudice and that this Court does not know anything about what has transpired in the investigation to date and as to the scope of the proposed public inquiry. If, for example, the three applicants had already been examined in a private hearing and no further witnesses were to be called at the public inquiry then one might readily conclude that the factors in s 31(2) would weigh against a public inquiry, since the benefit of exposing matters to the public could presumably be equally achieved by publishing a report without the need for a public inquiry. However, as Dr Kirk was instructed to confirm to the Court, ICAC's position is that this Court cannot draw any inference from the evidence before it as to the scope of the proposed public inquiry. Nor can any inference be drawn as to what preceded the decision to conduct a public inquiry.

205 The likelihood of reputational damage to the first applicant must be high, given her public role. There seems to be no obvious prejudice that might arise, in terms of reputational damage to the applicants, from the matter proceeding not by way of public inquiry but instead by way of compulsory examination. One might expect that the public interest in exposing any corrupt conduct that were found to have been established following an investigation of the allegations would be able to be met by the publication of a report as to the outcome of the investigation following a private compulsory examination of the relevant witnesses. Mr Moses SC argues that there is no public interest in holding a "show trial".

206 Nevertheless, without knowing what, if anything, transpired at the compulsory examination on 14 August 2014 and what other steps may have been taken to investigate the allegations, I am not satisfied that the applicants have established that the decision to hold a public inquiry could not reasonably have been justified had each of the mandatory factors been properly considered by the Commissioner and hence I am not satisfied that the decision must be taken to have been unreasonable or made without proper consideration of the mandatory factors. Hence, I would not have found that his Honour erred in rejecting the challenge to the decision to hold a public inquiry.

Relief

207 By way of relief, the applicants' draft summons sought not only to set aside the orders made by his Honour but, inter alia, the following declarations and orders:

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

(4) A declaration that the decision of the respondent made under section 31 of the ICAC Act to hold a public inquiry into the Allegations is invalid and a nullity.

(5) An order restraining the respondent from continuing to investigate the Allegations.

(6) An order restraining the respondent from conducting a public inquiry into the Allegations under section 31 of the ICAC Act.

208 ICAC submits that if the applicants succeed on grounds 13 and/or 14-16 then the appropriate relief is simply the making of the declarations sought in prayers 3 and 4. It is submitted that injunctive relief is inappropriate (referring to Financial Services Council Ltd v Industry Super Australia Pty Ltd [2014] FCAFC 92; (2014) 222 FCR 455 at [37]-[39)) and that the applicants' position would be vindicated by allowing the approval and granting the declarations sought. I agree.

Conclusion

209 I agree with Basten JA that there was no power for ICAC to conduct an investigation into the allegation as described in the summons issued pursuant to s 35 of the ICAC Act because the alleged conduct did not fall within the definition of "corrupt conduct" in s 8(2) of the Act. I agree that the orders proposed by Basten JA should be made.

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Amendments

09 December 2014 - typographical errors
Amended paragraphs: 1 and 9

Decision last updated: 09 December 2014