Balog v Independent Commission Against Corruption

June 28 Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.

The Independent Commission Against Corruption has been conducting an investigation into the manner in which the Waverley Municipal Council dealt with applications for the development of land within its municipality during a period commencing in July 1982. The appellant Balog is the managing director of a company called Dainford Ltd., which is involved in land development, and the appellant Stait was for some six years during the period under investigation the engineer and town planner for the municipality. Each of them is, within the meaning of s. 74(6) of the Independent Commission Against Corruption Act 1988 N.S.W. ("the Act"), a person substantially and directly interested in the subject-matter of a hearing which the Commission has been holding as part of its investigation.

The appellants were unsuccessful at first instance in seeking to limit by way of declaration and injunction the findings which the Commission might make against them. By the time the matter reached the Court of Appeal, the appellants sought only a declaration in the following terms:

[That] on the true construction of the Independent Commission Against Corruption Act 1988 ("the Act"), and in the events which have happened, the defendant is not entitled in any report prepared pursuant to section 74 or 76 of the Act to make any finding or state any conclusion that the plaintiff, he being a person substantially and directly interested in an investigation, was guilty of a criminal offence or of any conduct which may constitute a criminal offence other than making a statement within section 74(5) of the Act. Although in the Court of Appeal the respondent contested the appellants' entitlement to a declaration, it did not contest that, where appropriate to do so, a court may grant declaratory relief in a case such as this. The respondent did not alter its position upon appeal by the appellants to this Court, but the appellant Balog sought and obtained leave to amend his grounds of appeal by adding a ground that the Court of Appeal ought to have held that the respondent Commission has no power to make any statement that corrupt conduct by the appellant may have occurred. The appellant Stait was, at all events tacitly, granted similar leave to amend his grounds of appeal.

The Commission is incorporated and exercises its functions through a Commissioner and Assistant Commissioners appointed under the Act. Its principal functions broadly involve the investigation of corrupt conduct, the education of the community, public authorities and public officials concerning corrupt conduct and the means whereby it might be eliminated, and the enlisting and fostering of public support in combating corrupt conduct: s. 13(1). It is the investigative functions of the Commission which are significant in this case and these are as follows:

(a) to investigate any circumstances implying, or any allegations, that corrupt conduct may have occurred, may be occurring or may be about to occur;

(b) to investigate any conduct which, in the opinion of the Commission, is or was connected with or conducive to corrupt conduct;

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

"Corrupt conduct" is defined in ss. 7, 8 and 9 and extends generally to any conduct of any person that adversely affects or could adversely affect the honest or impartial exercise of official functions or which constitutes or involves the dishonest or partial exercise of official functions or a breach of public trust. It also includes conduct that adversely affects or could adversely affect the exercise of official functions and involves any one of a number of specified criminal offences, including bribery, blackmail, perverting the course of justice and the like. Nevertheless, conduct does not amount to corrupt conduct unless it could constitute or involve a criminal offence, a disciplinary offence or reasonable grounds for dismissing or dispensing with the services of a public official or otherwise terminating those services.

Under s. 13(2)(a)(i) and (ii) the principal functions of the Commission also include the investigation of any matter referred to it by both Houses of Parliament with a view to determining whether any corrupt conduct may have occurred, may be occurring or may be about to occur or whether the laws governing any public authority need to be changed with a view to reducing the likelihood of the occurrence of corrupt conduct. Section 14 confers "other functions" upon the Commission. Under s. 14(1) the Commission is to assemble evidence that may be admissible in a prosecution in New South Wales in connexion with corrupt conduct and to furnish that evidence to the Director of Public Prosecutions. Where evidence obtained in the course of its investigations may be admissible in a prosecution in another State, the Commonwealth or a Territory, the Commission is to furnish the evidence to the Attorney-General and to recommend what action should be taken in relation to it. Under s. 14(2), if the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority, it may, if it considers it desirable to do so, furnish that information or a report on that information to the Minister responsible for the authority, together with recommendations. If any evidence or information is furnished under sub-ss. (1) or (2) of s. 14 on the understanding that the evidence is confidential, it is subject to quite stringent sec /leg.ref>.

Provision is made for the issue of search warrants, either by an authorized justice or the Commissioner, to enter premises and to search for and seize documents or other things connected with any matter that is being investigated under the Act: ss. 40, 41.

Under s. 53 of the Act the Commission may refer a matter for investigation or action to any person or body considered by it to be appropriate, recommending what action should be taken and the time within which it should be taken. If the Commission communicates information for this purpose on the understanding that the information is confidential, that information will be subject to the secrecy provisions of s. 111: s. 53. Various steps may be taken by the Commission to ensure that action is taken: ss. 55, 77.

Section 73 provides that both Houses of Parliament may, by resolution of each House, refer to the Commission any matter of the kind mentioned in s. 13(2) and that it is the duty of the Commission to investigate fully a matter referred to in s. 13(2)(a).

(1) The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.

(2) The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses.

(3) The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public hearing, unless the Houses of Parliament have given different directions under subsection (2).

(4) The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament.

(5) A report may include a statement of the Commission's findings as to whether there is or was any evidence or sufficient evidence warranting consideration of -

(a) the prosecution of a specified person for a specified offence; or

(b) the taking of action against a specified person for a specified disciplinary offence; or

(c) the taking of action against a specified public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.

(6) A report shall include such a statement in relation to the persons substantially and directly interested in the subject-matter of the investigation concerned or persons named in the reference made by both Houses of Parliament.

(7) A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter.

(8) The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament.

(9) In determining whether it is desirable in the public interest to defer making a report under this section, the Commission shall have regard as to whether or not the matter is before a court.

The matter being investigated by the Commission in this case was not referred to the Commission by Parliament but, as it has conducted a public hearing, it is required to prepare a report and must furnish the report to the presiding officer of each House. Under s. 78, a copy of the report must be laid before each House within 15 sitting days after it is received by the presiding officer and it is clear from the section that it is intended that by this means the report will be made public.

The submission is made on behalf of the appellants that the power of the Commission to report a finding concerning the liability of a person to be prosecuted or convicted of a criminal offence is limited to the finding referred to in s. 74(5), namely, whether there is any evidence or sufficient evidence warranting consideration of the prosecution of a specified person for a specified offence, and that the Commission is precluded from reporting a finding that any offence was or may have been committed by either of the appellants. It is also submitted that the Commission is precluded from reporting that corrupt conduct involving the appellants or either of them may have occurred, may be occurring or may be about to occur.

The first of these submissions is based chiefly upon the structure of s. 74. It is conceded that the Commission's report must, because the appellants are substantially and directly interested in the subject-matter of the investigation, contain a statement whether there is any evidence or sufficient evidence warranting consideration of the prosecution of either or both of them for a specified offence or specified offences. But, it is said, that is the extent of any statement of findings which the Commission may properly make concerning the criminal liability of the appellants. In support of this contention, the appellants are able to rely upon the maxim that the express mention of something excludes that which is not mentioned - expressum facit cessare tacitum. However, that maxim, whilst a valuable servant, is apt to be a dangerous master and it is necessary to seek confirmation in the broader context of the whole Act.

That confirmation is, we think, to be found there. Since the broad function of the Commission under s. 13(1)(c) is to communicate the results of its investigations concerning corrupt conduct to appropriate authorities, it is apparent that its primary role is not that of expressing, at all events in any formal way, any conclusions which it might reach concerning criminal liability. Not only does corrupt conduct extend beyond the commission of a criminal offence, but the appropriate authorities (an expression which is not defined), to whom the Commission is to communicate its results, obviously extend beyond those agencies concerned with law enforcement. Indeed, under s. 14(2) the Commission may report, with appropriate recommendations, to the Minister responsible for any public authority if it considers it desirable to do so, if necessary under the protection of the secrecy provisions of s. 111. Also, the Commission may refer a matter to any person or body under s. 53 and may take steps under ss. 54 and 55 to see that proper action is taken in relation to it.

The one function expressly given to the Commission which directly relates to criminal proceedings (and it is not a principal function) is that referred to in s. 14(1), where it is required to assemble evidence that may be admissible and to pass it on to either the Director of Public Prosecutions or the Attorney-General. It is significant that this sub-section speaks of evidence in this way, because it is apparent that the Commission in the exercise of its other functions is not required to confine itself to evidence that may be admissible in a court of law. It may proceed upon the basis of hearsay or privileged evidence, being able to inform itself as it considers appropriate. Not only does this, together with the other matters which we have mentioned, indicate that the Commission is intended to be primarily an investigative body and not a body the purpose of which is to make determinations, however preliminary, as part of the criminal process, but it also indicates how inappropriate it would be for the Commission to report a finding of guilt or innocence. Because it speaks of prosecution, the evidence referred to in s. 74(5)(a) is by implication admissible evidence. It is hardly to be supposed that if the Commission were to reach a finding that there was insufficient admissible evidence to warrant consideration of the prosecution of a specified person for a specified offence, the section nevertheless contemplates that it should go on to express a finding, upon inadmissible evidence, that the same person had committed the offence in question.

Moreover, the quite guarded way in which s. 74(5) is phrased lends support to the construction for which the appellants contend. The use of the expression "any evidence or sufficient evidence warranting consideration" suggests that it is someone else's evaluation of the evidence - that of the person who is to consider it - which is to determine whether a person is to be prosecuted or not and that the function of the Commission is to investigate and assemble the evidence rather than to evaluate it for itself, save for the limited purpose of deciding whether it warrants further consideration.

If the legislature had intended, by allowing or requiring the Commission to report, to confer upon it a power to express a finding concerning the criminal liability of a specified person, then it would have been unnecessary to include sub-s. (5) of s. 74. The reason for the inclusion of the sub-section in the limited form in which it is expressed is not difficult to discern. The expression of a finding of guilt or innocence of an offence or even of a prima facie case against an individual, in a report which is bound to be made public, must be likely to have a damaging effect on the reputation of the person concerned. And whilst such a finding may not necessarily have a tendency to interfere with the due administration of justice in the event of a subsequent trial, the possibility cannot be disregarded. Under s. 18, the Commission may furnish reports in connection with an investigation despite any proceedings that may be before any court (presumably proceedings in relation to a matter under investigation). But in the event of there being proceedings before a court, the Commission is, under the same section, to defer making a report to Parliament during the currency of the proceedings. Clearly the legislature was aware of the dangers of a report which would be made public and was concerned to protect proceedings before a court from interference arising from the publication of such a report. The concern of the legislature for the potentially damaging effect of a report is also to be seen in s. 74 itself. Sub-section (8) of that section allows the Commission to defer making a report (not being a report as to a matter referred by Parliament) where it is desirable to do so in the public interest, particularly, under sub-s. (9), where the matter is before a court. It would at least be consistent with that concern to conclude that the relevant limits of s. 74 are defined by sub-s. (5) and to construe the section as conferring no other power to make findings as to the liability of an individual to conviction or even prosecution.

For all of those reasons it seems to us, simply as a matter of construction, that the only finding which the Commission may properly make in a report pursuant to s. 74 concerning criminal liability is that referred to in sub-s. (5), namely, whether there is or was any evidence or sufficient evidence warranting consideration of the prosecution of a specified person for a specified offence.

Similar considerations are raised by the appellants' further submission that the Commission is not in the present case entitled to report a finding in relation to them that corrupt conduct may have occurred, may be occurring or may be about to occur. They concede that such a finding may be reported where a matter has been referred to the Commission by Parliament. One of the functions of the Commission under s. 13(2)(a)(i) in that event is to determine "whether any corrupt conduct may have occurred, may be occurring or may be about to occur". That is not expressed to be a function of the Commission where a matter is not referred to it by Parliament, its relevant duty (under s. 3(2) a function includes a duty) then being merely to investigate any circumstances implying, or any allegations, that corrupt conduct may have occurred, may be occurring or may be about to occur and to investigate any conduct which, in its opinion, is or was connected with or conducive to corrupt conduct. Again the appellants are able to rely upon the maxim expressum facit cessare tacitum, having regard to the express provision made by s. 13(2)(a) where a matter is referred to the Commission by Parliament. That suggests that, had the legislature intended the Commission otherwise to have the function of making findings of corrupt conduct, it would have made specific provision for it to do so. Not only does the presence of s. 13(2)(a) suggest that, but so also does s. 74(5), where specific power is expressly given to the Commission to make a finding of a particular kind. Moreover, the power given to the Commission in the case of a reference by Parliament to determine whether corrupt conduct may have occurred, may be occurring or may be about to occur, is a power to make a finding of a tentative kind only which, together with the limited nature of the findings which may be expressed pursuant to s. 74(5), indicates that the Commission was intended to have only a restricted capacity to make findings, its principal roles being to investigate, educate and advise and to enlist and foster public support against corrupt conduct.

It follows that while the Commission may, and in some instances must, report the results of its investigations to Parliament, it may not make any findings apart from those which it is empowered to make under s. 13(2)(a) and s. 74(5). At least in theory there may be a fine line between making a finding and merely reporting the results of an investigation. But in practice the line should not be difficult to draw. It is clear enough that there is a distinction between the revelation of material which may support a finding of corrupt conduct or the commission of an offence and the actual expression of a finding that the material may or does establish those matters. And in this case it is possible to observe that the only finding which the Commission may include in its report in relation to the appellants is a finding whether there is any evidence or sufficient evidence warranting consideration of the prosecution of them or either of them for a specified offence or specified offences. It may not include a finding that any corrupt conduct on their part occurred or may have occurred.

Whilst in our view the conclusions which we have expressed f s nonetheless entitled to report upon the results of its investigation; it is merely precluded from expressing any finding, other than under s. 74(5), in relation to the appellants. We would declare in each appeal that the Commission is not entitled in any report pursuant to s. 74 of the Act to include a statement of any finding by it that the appellant was or may have been guilty of a criminal offence or corrupt conduct other than a statement made pursuant to sub-s. (5) of that section.