(b) inspect and take copies of or take extracts from any such document or record; and

(c) require any person to give such assistance as may be required.

(2) A person must not obstruct or hinder another person in the exercise of a power or the performance of a function under this section.

1. Counsel for the applicant made a submission to the effect that s 222(1)(c) should be construed ejusdem generis, so that it should be interpreted as empowering the Board only to require steps to be taken to facilitate its access to documents and records, such as requiring doors to be unlocked, filing cabinets to be opened, photocopiers to be made available, and so forth. Counsel for the Minister argued that s 222(1)(c) was a stand-alone provision that gave the Board wide powers to require individuals to provide assistance. I reject that submission.
2. It is true that s 8A of the Acts Interpretation Act 1931 requires an interpretation that promotes the purpose or object of the legislation to be preferred to one that does not. However the application of that principle involves discerning how far Parliament intended to go in conferring powers on Boards of Inquiry for the purpose of facilitating their investigations. In Carr v Western Australia [2007] HCA 47, 232 CLR 138 at [5], Gleeson CJ said the following:

"Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation ...".

1. As I have said, s 217 of the Act confers specific powers on Boards of Inquiry to summon witnesses, require the production of documents, require the giving of evidence on oath or affirmation, and require individuals to answer questions when appearing before them. If s 222(1)(c) confers unlimited powers on Boards of Inquiry to require individuals to give assistance for the purpose of their investigations, there would have been no need for s 217, and no need for the specific provisions in s 222(1)(a) and (b).
2. It is significant that the heading to s 222 reads, "Access to documents, &c". Such a heading is not part of the Act: Acts Interpretation Act, s 6(4)(a). However such a heading falls within the scope of par (a) of the definition of "extrinsic material" in s 8B(3) of the Acts Interpretation Act, and may therefore be taken into account under s 8B in the interpretation of an ambiguous provision, or for the purpose of providing an interpretation that avoids an absurd or unreasonable result.
3. It is also significant that s 222(2) makes it an offence, punishable by a fine, for a person to obstruct or hinder another person in relation to the requiring or giving of assistance pursuant to s 222(1)(c). That is a factor that weighs in favour of a narrow interpretation of s 222(1)(c).
4. Another relevant factor is that an individual has a common law right to silence. The significance of that right has often been discussed in cases relating to questioning by police and other officials. See, for example, Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95. As O'Connor J said in Sargood Bros v Commonwealth [1910] HCA 45; (1910) 11 CLR 258 at 279, "It is a well recognised rule in the interpretation of Statutes that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction." See also Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437.
5. Having regard to all of these factors, it is clear that it would be inappropriate to interpret s 222(1)(c) as conferring on a Board of Inquiry an unrestricted power to require any person to give whatever assistance the Board might reasonably demand for the purpose of an investigation. The power to require assistance should be interpreted as extending only to assistance relating to the obtaining, inspecting and copying of documents and records, or copies thereof.
6. It is also necessary to consider whether the Board has the power to require an individual to provide written answers to questions by virtue of s 216(2) which, as I have said, provides that, "A Board of Inquiry may do anything necessary or convenient to carry out its functions". Once again, I think it is significant that s 217 confers specific powers on Boards of Inquiry to summon witnesses, require the production of documents, and so forth. If s 216(2) empowers Boards of Inquiry to require individuals to answer specific questions, the specific provisions of ss 217 and 222(1)(a) and (b) are otiose.
7. I note that s 62(2) confers powers on the general manager of a council in very similar terms to the conferral of powers on a Board of Inquiry by s 216(2). It reads:

"The general manager may do anything necessary or convenient to perform his or her functions under this or any other Act."

It would be absurd to interpret that subsection as conferring powers of interrogation on general managers.

1. Having regard to these factors, and to an individual's common law right to silence, it is clear that it would be inappropriate to interpret s 216(2) as conferring on a Board of Inquiry a power to require written answers to questions.
2. It follows that the Board exceeded its powers when it purported to require the applicant to provide written responses to the material that accompanied the letter of 5 February 2016. It would have been perfectly appropriate for the Board to have requested, not required, the applicant and others to provide written responses to allegations or questions. One would expect councillors to co-operate by providing thorough responses in a timely manner. If any individual failed to respond, or if the Board desired further information, then the Board could always issue a s 217(1)(a) summons requiring the individual to appear before it to give evidence.

1. A statutory power must not be exercised by an individual if a fair-minded lay observer might reasonably apprehend that that individual might not bring an impartial mind to the resolution of the question that he or she is required to decide: Ebner v Official Trustee [2000] HCA 63, 205 CLR 337 at [6]. In this case, the Board has to decide what findings and recommendations to make.
2. The applicant contends that a fair-minded lay observer would reasonably apprehend that the Board of Inquiry might be biased against her by reason of a number of matters listed in ground (f) in the general order to show cause. Allegations numbered (i) to (viii) are set out in ground (f). Item (i) was abandoned at the hearing. The surviving parts of ground (f) read as follows:

"f There is a reasonable apprehension that the Board of Inquiry is bias [sic] against the applicant by:

1. in correspondence referring to the applicant as a respondent;
2. inviting the applicant to attend 'an interview' whereas in fact the Board of Inquiry intended to take evidence from the applicant under oath;
3. adopting an unnecessarily aggressive and intimidating style of questioning when taking the applicant's evidence;
4. not permitting the applicant to be represented by a legal practitioner when giving evidence;
5. providing the applicant with only limited and incomplete information and documents;
6. not providing the applicant the opportunity to test the evidence of witnesses called to appear before the Board of Inquiry;
7. purporting to require the applicant to respond to allegations from unidentified sources and which would, on the face of it, appear to be irrelevant to the inquiry's terms of reference and/or are [sic] of a trivial nature."

1. On the first day of the hearing I made an order pursuant to r 629(6) of the Supreme Court Rules 2000 permitting the applicant to rely on an additional contention relating to apprehended bias, as follows:

"(ix) Lynn Mason accepting a private invitation from the Mayor of Glenorchy City Council to attend a council meeting on 15 March 2016, including a closed session of such meeting, and in fact attending such meeting."

1. After the Board members attended the council meeting on 13 April 2016, which probably seemed a good idea at the time, new allegations were made in relation to the apprehended bias issue. As a result I made another order pursuant to r 629(6) on 6 May 2016, permitting the applicant to rely on three more contentions, as follows:

"(x) attending a closed meeting of the Glenorchy City Council on 13th April 2016 and purporting to rely on s222(1)(c) of the Local Government Act 1993, or s216(2) of the Act, as their authority to do so in circumstances in which the proper construction of s222(1) was the subject of the reserved judgment in these proceedings;

(xi) obtaining from a person or persons unknown the confidential agenda for the meeting of the Glenorchy City Council for 13th April 2016;

(xii) Lynn Mason hugging the Mayor of the Glenorchy City Council and Barry Easther saying to the Mayor 'You have done well today, Kristie' or words to that effect, such conduct occurring in the public areas of the Glenorchy City Council Chambers following the conclusion of the meeting of the Glenorchy City Council on 13th April 2016."

1. I will address the allegations numbered (ii) to (xii) in numerical order. In relation to some of them, I have reached conclusions that, in some respects, are adverse to the Board. The critical question is whether those adverse conclusions, in the aggregate, lead to a conclusion that a fair-minded lay observer might reasonably apprehend that the Board might not bring impartial minds to their task of making findings and making recommendations to the Minister.

1. The word "respondents" was used in the summary of the inquiry process published by the Board, which I have quoted above at [13]. The Board said at that stage that, after the receipt of written submissions, allegations against individuals or organisations would be "provided to respondents for response". After the applicant made a written submission, she received a letter from the members of the Board dated 11 November 2015 which reproduced the summary of the inquiry process with minor variations. The material sentence in that letter read:

"Where submissions raise specific allegations against specific individuals or organisations these will be provided to the affected persons (respondents) for response."

1. The Board referred to the applicant as a respondent in the letter of 5 February 2016, in the sentence that I have quoted at [17] above, which began, "All respondents have 14 days to respond ...". In that letter, the Board members made it clear that they wanted the applicant to respond to a quantity of material which, they said, included "direct allegations" against her as an individual alderman, and "allegations against a number of Alderman [sic] and the governance functions of the Glenorchy City Council". It was very obviously a standard form of letter that was sent to a number of aldermen, possibly all of them. The word "respondents" was used only in the context of a demand for the recipients of the letters to send in "responses" to written material, or to "respond" to written material.
2. The word "respondents" may well have been the most appropriate word to describe a number of people who would be writing to the Board in response to material sent to them. However it is clear that the Board used the word "respondents" in its public notice and in its letter of 11 November 2015 to refer to individuals against whom allegations were made, or to individuals affected by specific allegations. It follows that, when the Board members wrote to the applicant on 5 February 2016, they must have considered that at least some of the material forwarded with that letter contained "allegations" against her. Because of the scope and subject-matter of the Board's investigation, it does not follow that the Board members necessarily considered that impropriety had been alleged on the applicant's part. Any allegation suggesting that she might have had a dysfunctional relationship with one or more senior office holders, including the mayor, other councillors or the general manager, might well have been considered an allegation to which the Board desired a response.
3. In the circumstances, I do not think that the use of the words "respondent" and "respondents" could reasonably be regarded as evidence suggesting that the Board members might have prejudged any question as to the applicant's conduct or her capacity to perform her duties in conjunction with others.

1. The Board's public notice in which it outlined the inquiry process, which I have set out above at [13], referred to "interviews with complainants and other relevant persons". The public were advised that individuals would be contacted should they be "required for interview"; that interviews were likely to be held during a particular period; that legal representation would not be permitted at interviews; and that all interviews would be conducted in camera. This information was also contained in the letter from the Board members to the applicant dated 11 November 2015.
2. During January 2016 the applicant was informed by a DPAC officer of arrangements for an interview with the Board of Inquiry. On 10 January that officer sent the applicant an email about the interview which included the following:

"The Board of Inquiry will shortly issue you with a formal summons under Section 219 of the Local Government Act requesting your attendance at the above interview. This is intended to facilitate your attendance at the interview."

1. The applicant was subsequently served with a summons that was headed "SUMMONS TO ATTEND BEFORE BOARD OF INQUIRY". That summons was accompanied by extracts from the Act, including the text of s 217. An astute reader may have noticed that under s 217(1)(a) a Board of Inquiry may "summon any person to appear before it to give evidence". However, when the applicant appeared before the Board in response to the summons, she was surprised when she was asked to make an affirmation, and formally to give evidence. She had expected a somewhat informal discussion.
2. The use of the word "interview" to refer to the taking of oral evidence was misleading. At an interview in the ordinary sense of the word, one cannot be compelled to answer questions, and a false answer cannot result in a prosecution for perjury. When the applicant appeared before the Board, she could have been prosecuted if she had refused to make an affirmation or failed to answer a question: s 217(2)(d) and (c) respectively. Because the Board had the power to require her to give evidence on oath or affirmation under s 217(1)(c), its proceeding constituted a "judicial proceeding" as defined in s 89 of the Criminal Code, and the wilful making of a statement known to be false, or not believed to be true, would have amounted to perjury under s 95(1) of the Code.

1. In an affidavit filed in these proceedings, the applicant gave the following description of the so-called "interview":

"14 Immediately after I was administered the oath [sic], the process appeared to me to be more of an inquisition or interrogation rather than an interview. In particular, Ms Mason's manner, tone and body language (for example, leaning onto the table towards me) seemed to me more accusatory and confrontational than balanced and fair. I felt that the manner of questioning by the Board of Inquiry members was aggressive and intimidating. I did not feel that I was able to properly put my version of events to the Board of Inquiry members.

1. The Board of Inquiry members had prepared questions, each requiring detailed answers. I had had no prior notice of these questions. I felt berated and on trial. The 'interview' went for one hour. At the end of this time, I was asked if I had anything I wished to add. Knowing that another councillor was waiting outside, I said, feeling rushed, how disappointed I was in the process and that people's lives and reputations were being ruined, and started to cry."
2. Similar descriptions of the nature of the questioning by the Board were given by the four other aldermen who participated in these proceedings. Ald King said he found the "interview" to be quite confronting and frustrating, and that Ms Mason did not accept some of his answers, and suggested that they were not good enough. He described the interview as aggressive. Ald Pearce said that the questioning was like a cross-examination in a court, that his answers were challenged, and that he felt physically unwell at the end of the process. Ald Lucas said that Ms Mason was quite aggressive, and that she felt "very much on trial". Ald Slade, who was a police officer for nearly 22 years, said he felt like he was being cross-examined in a courtroom. On the other hand a DPAC officer who attended the "interviews", Dr Standish, gave evidence to the effect that the questioning was not confrontational, aggressive or overbearing.
3. As a result of allegations being made that the Board members hugged and complimented the mayor on 13 April, they both subsequently swore affidavits that were filed on behalf of the Minister, and were called as witnesses for cross-examination. They said nothing in their affidavits about the nature of their questioning of the applicant or anybody else. To my surprise, they were not cross-examined about the nature of their questioning. This did not involve non-compliance with the rule in Browne v Dunn (1893) 6 R 67 since all the evidence about aggressive and intimidating questioning was already before the Court. It would therefore be inappropriate to draw an inference adverse to the applicant as a result of her counsel not having cross-examined the Board members on this issue. I must of course take into account the fact that I have no evidence from either of them as to the issue.
4. It is unfortunate that the Board chose not to make audio recordings of the evidence given by aldermen other than the mayor. Her evidence was recorded because she gave evidence for a long time. Because no other recordings were made, the evidence that I have as to the manner of questioning comprises little more than evidence of the impressions of individuals. I have no reason to doubt the honesty or integrity of Dr Standish or any of the other witnesses who attended "interviews". Because so many witnesses gave evidence indicating that they were aggrieved by the nature of the questioning, I am satisfied that the questioning was disturbingly robust.
5. In inquisitorial proceedings, confrontational or aggressive questioning can result in a risk of bias being inferred. In Re Minister of Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60, 77 ALJR 1909, which concerned inquisitorial proceedings in the Refugee Review Tribunal, Gummow and Heydon JJ, with whom Gleeson CJ agreed, said, at [57]:

"The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no 'client', and has no 'case' to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial Tribunal Member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out; it was not part of the function of the Tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation."

1. In R v Carter; ex parte Gray [1991] TASSC 97; (1991) 14 Tas R 247, which concerned a Royal Commission, the Full Court said, at [34]:

"The fair minded observer of the proceedings of the Royal Commission would bear in mind that, although obliged to comply with the requirements of natural justice, the task of the Commissioner was not the same as that of a judicial officer who has no investigative function to perform. ...

Thus, the fair minded person would not be quick to suspect bias if the Commissioner intervened in the cross-examination of certain witnesses in a robust way and on occasions to an extent in excess of that expected of a judicial officer. Similarly, the fair minded observer would not be quick to suspect bias upon learning that the Commissioner was, in general terms, directing counsel assisting to pursue certain lines of inquiry nor even if he learnt that the Commissioner, as his inquiry progressed, began to entertain certain tentative views about key witnesses. The Commissioner's duty to inquire as well as to report and recommend is a factor which the fair minded bystander will have to the forefront of his or her mind when considering whether the Commissioner's conduct, relied upon by the Prosecutors reasonably gives rise to an apprehension of bias."

1. Although the questioning of the applicant and four other aldermen was disturbingly robust, I have no evidence as to the nature of the questioning of the mayor, any other aldermen, or any council officers. Evidence of aggressive questioning of one group, in the absence of any evidence as to the nature of the questioning of others, does not suggest a lack of impartiality.

1. As I have said, s 220(1) of the Act provides that a person summoned to attend before a Board of Inquiry "may, with the approval of the Board of Inquiry, be represented by a legal practitioner". Before anyone had had an opportunity to request approval for representation by a legal practitioner under that subsection, the Board announced, in the summary of the inquiry process quoted at [13] above, that it had "determined that legal representation will not be permitted at interviews".
2. In my view that was improper. The Board had a duty to allow individual witnesses to make applications for approval for legal representation. It may have been permissible for the Board to have decided that, unless persuaded to the contrary, approval would not be given for any witness to be legally represented. But the Board improperly announced at the outset that it would simply not permit legal representation. The Board obviously foresaw that some individuals were likely to desire legal representation if summoned to give evidence. They were likely to have to decide whether to give approval for legal representation. A fair-minded lay observer would reasonably apprehend that the Board might not bring impartial minds to the resolution of an application under s 220(1) for the approval of legal representation. It is true that s 218(2) empowers the Board to regulate its own procedure, but that general provision should not be regarded as taking precedence over the specific provision in s 220(1).
3. However it is very significant that the prohibition on legal representation applied to all individuals questioned by the Board, not just some, and not just the applicant. It follows that the prohibition on legal representation cannot be regarded as an indication of actual or possible bias.
4. As far as I know, it had not been suggested that the applicant or anyone else had broken the law or done anything that might result in the institution of legal proceedings against them. In those circumstances, it seems reasonable for the Board to have wanted, after inviting written submissions, to have conducted a series of private conversations with individuals to investigate the details of the matters upon which the Board was required to report. A desire for lawyers not to get involved in those conversations is very understandable, but the Board did not have the power to impose a general prohibition on legal representation.

(vi) Providing incomplete information and documents

1. The Board has not provided the applicant with copies of all the material received by it, but it is clear that that would be unnecessary and impractical. The only written material provided by the Board to the applicant was the material sent with the letter of 5 February 2016. As I have said, the Board sent the applicant a 6-page schedule of allegations and 90 pages of written material with that letter. The schedule of allegations contained 24 separate allegations. Where allegations were made by the mayor or other aldermen, their identities were revealed. Where allegations were made by members of the public, their identities were not revealed. The 90 pages of written material were divided into 24 "attachments". That material comprised a mixture of complete and incomplete documents.
2. The applicant does not know what she has not been sent. There is a possibility that the Board might make findings that the council is hopelessly dysfunctional, and that grounds exist for its dismissal, and that it might recommend to the Minister that he recommend to the Governor that she dismiss the councillors. There is a possibility that the Board might make findings that are critical of the applicant, and injurious to her reputation. Those possibilities raise questions of procedural fairness, but at the moment I am considering allegations relating to apprehended bias. If a Board of Inquiry provides a councillor with incomplete information, even if the material provided is so incomplete as to involve impropriety on the part of the Board, it does not necessarily follow that that should be taken as an indication of possible bias. And, once again, it appears that the policy applied by the Board in relation to the provision of information applies to all recipients of information, not just the applicant, and not just a group, with the result that there is no basis for inferring or suspecting bias.

(vii) No opportunity to cross-examine other witnesses

1. When witnesses, including the applicant, gave evidence before the Board, nobody else was present apart from the Board members and a DPAC officer. Therefore neither the applicant nor anybody else has had the opportunity to cross-examine other witnesses. This raises a question of procedural fairness but, because the Board treated all witnesses in the same manner, there is no basis for inferring that the lack of opportunity to cross-examine other witnesses is an indication of possible bias.

(viii) Unidentified sources, irrelevance and triviality

1. As I have said, the material sent by the Board to the applicant on 5 February 2016 included 24 allegations against her. Ten of those allegations concerned criticisms of the mayor or hostility to the mayor. Others can be summarised as follows:
   • That the applicant was a member of a voting bloc of aldermen who voted against sensible motions.
   • That she would not sit in her assigned seat at a council meeting.
   • That she made false allegations of bullying and danger.
   • That she prematurely disclosed information.
   • That she was hostile to new aldermen.
   • That she seconded the acceptance of an incomplete report.
   • That she participated in a decision made with incomplete information.
   • That she inaccurately represented a council decision.
   • That, in relation to the general manager's performance review committee, she colluded with the general manager and undermined the review process.
   • That she voted to adopt incorrect minutes.
   • That she did not attend a function to which she was invited.
   • That she was unfair to another alderman.
   • That the whole council failed to comply with a permit for a sewage treatment plant at Collinsvale, and was complicit with Tas Water in polluting Sorell Creek with effluent a number of times per year.
2. Some of these allegations may well be trivial. Some of them are vague. The Board's terms of reference are so wide that I doubt that any of the allegations fall outside them. It seems likely that the Board and its staff did not filter out trivial, vague and time-wasting allegations. The burden upon the applicant of having to respond to all the material sent to her may well be unfair. She was not told of the identities of the members of the public who had made 6 of the 24 allegations. She was generally provided only with extracts from documents, and not with copies of whole documents.
3. However, whilst the written questioning of the applicant might be unsatisfactory in several respects, there is no suggestion that she has been treated differently from other aldermen. The nature of the material she was sent therefore provides no indication of bias.

1. As I have said, one member of the Board of Inquiry, Ms Mason, attended a meeting of the council on 15 March 2016, accompanied by a DPAC officer, Mr Tilley. Part of the meeting was open to the public. Under s 218(1)(b), the Board was entitled to "inform itself on any matter in any way it considers appropriate". It must follow that there was nothing inherently improper about Ms Mason attending the meeting, subject to two issues:
   • The applicant contends that it was improper for Ms Mason and Mr Tilley to remain present for the part of the meeting that was closed to the public.
   • The applicant contends that Ms Mason attended the meeting as a result of a private invitation from the mayor, and that accepting such an invitation is an indication of possible bias.
2. The power to close part of a council meeting to the public is conferred by reg 15(1) of the Local Government (Meeting Procedures) Regulations 2015. That subregulation reads as follows:

"(1) At a meeting, a council by absolute majority, or a council committee by simple majority, may close a part of the meeting to the public for a reason specified in subregulation (2)."

1. The mayor was the chairperson of the meeting in question. Regulation 15(6) imposes duties and confers powers upon the chairperson of a closed council meeting in relation to attendance at that part of the meeting. That subregulation reads as follows:

(a) is to exclude members of the public from a closed meeting; and

(b) may exclude the general manager from a closed meeting if the matter to be discussed relates to the contract of employment, or the performance, of the general manager; and

(c) may invite any person to remain at the meeting to provide advice or information."

1. It was submitted on behalf of the Minister that Ms Mason and Mr Tilley were not members of the public, and therefore could not be excluded from the closed part of the meeting. I agree that, for the purposes of reg 15(6)(a), they were not "members of the public".
2. There are a couple of reported cases in which courts have had to consider legislative provisions as to the exclusion of the public from legal proceedings. In R (on the application of the Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London [2011] 3 All ER 1001, the Divisional Court had to consider the scope of a rule that provided that "the coroner may direct that the public be excluded from an inquest or any part of an inquest if he considers that it would be in the interest of national security to do so". Their Lordships held that "the public", for the purposes of that rule, did not include properly interested persons and their legal representatives who were participating in an inquest. In Re a Barrister and Solicitor (1980) 40 FLR 316, Blackburn CJ had to consider the scope of a provision in the Legal Practitioners Ordinance 1970 (ACT) which provided that an inquiry by a disciplinary committee was not to be "open to the public". His Honour held that a complainant who had given evidence at the inquiry was a member of "the public" for the purpose of the relevant provision at a time when he was not giving evidence. At 318 his Honour concluded that the words "the public" included "all persons except those who are parties to the inquiry or necessary for the conduct of the inquiry - that is to say, the members of the disciplinary committee, counsel and solicitors representing the barrister and solicitor and the Law Society respectively, witnesses while they are in the course of giving evidence, and those persons who are required to be present for the purpose of producing a transcript of the proceedings ...".
3. Regulation 15(6) does not cover the field so as to deal with every possible class of person who might or might not remain or depart when part of a meeting is closed to the public. Minute takers, for example, are not mentioned, but it would be absurd to consider that they are members of the public and are required to be excluded. Ms Mason and Mr Tilley were at the meeting to discharge their duties in relation to the inquiry ordered by the Minister. Their presence was not necessary for the conduct of the meeting but, unlike the general public, they were there because they had official duties to perform, and not because of any personal, political or intellectual interest in the business of the meeting. It was reasonable for them to be there because of the terms of reference of the Board of Inquiry. Regulation 15(6)(a) did not require their exclusion. The council may or may not have had the power to resolve that they be required to leave its premises. No alderman moved a motion that they be required or requested to leave. Most significantly, their continued presence, of itself, could not be regarded as an indication of possible bias.
4. However there is evidence that the mayor, in a conversation with Mr Tilley, personally invited the Board members and him to attend the closed session of the meeting, and the applicant contends that the invitation and its acceptance constitute evidence of possible bias on the part of the Board members.
5. Mr Tilley swore an affidavit that outlined the circumstances. On 11 March 2016 he phoned the mayor and requested a copy of the agenda for the closed session of the meeting to be held on 15 March. One would normally expect a person in his position to have contacted the general manager, not the mayor. However there was a history of delay and obfuscation on the part of the general manager. The mayor suggested that the Board members might like to attend the meeting, including the closed session, to observe the proceedings. Mr Tilley said he would be attending the open session, and that he would check to see whether either or both of the Board members would also attend. He subsequently sent an email to the mayor advising that Ms Mason would attend with him. When the meeting was closed to the public, the mayor invited them to remain, and to move from the upstairs public gallery down into the chamber, which they did.
6. Ald King queried the entitlement of Ms Mason to remain for the closed session. He suggested she was in a position of a conflict of interest. The council's Director Corporate Governance and General Counsel, Ms Iskandarli, said that Ms Mason and Mr Tilley should not be allowed to remain. A number of aldermen asked the mayor what power she had to allow them to remain. The mayor referred to reg 15. Ms Mason told the meeting that they were entitled to remain, and told the meeting of the restrictions placed on the Board by the injunction granted by Holt AsJ. She and Mr Tilley remained for the rest of the meeting.
7. The evidence as to the relationship between the Board members and the mayor relates to a number of aspects of this case. I will discuss the applicant's contentions in relation to other aspects of that relationship before reaching a conclusion as to whether the evidence about that relationship provides any basis for a reasonable apprehension of bias.

(x) Attending the council meeting of 13 April 2016

1. I concluded the hearing of this application on 11 April 2016 and reserved my decision. As I have said, the Board members and Mr Tilley attended the council meeting on 13 April. A number of allegations of impropriety were made against the Board members as a result of their attendance at that meeting. I gave the applicant, Ald Pearce and the Minister leave to re-open their cases. Six more affidavits were filed. The hearing resumed, and went for two more days.
2. When the Board members attended the meeting of 13 April, there was already a controversy as to their right to attend council meetings. In submissions made on behalf of the Minister on 11 April in relation to Ms Mason's attendance at the meeting of 15 March, the Solicitor-General argued that, pursuant to s 222(1)(c), Ms Mason had the right to require the council to "give such assistance as may be required", and therefore had the power to require the council to allow her to attend the closed session. He also argued that the Board's power to "inform itself on any matter in any way it considers appropriate", conferred by s 218(1)(b), entitled her to inform herself by attending the closed session. Counsel for the applicant argued that s 222(1)(c) should be given a much narrower interpretation, confining its operation to assistance in relation to documents and records. I have concluded, at [26] above, that such an interpretation is correct, but that is not presently to the point.
3. Before the meeting of 13 April the council's general manager, Mr Brooks, sent Mr Tilley an email saying that, if the Board wished to attend the meeting, then he requested an answer to the question, "Under which section of the Act will the BOI [Board of Inquiry] ... be present at the Council Meeting ...?" A Mr Brown of DPAC, apparently one of Mr Tilley's superiors, responded with an email that set out s 222(1) and asserted that the Board could compel its own attendance by virtue of s 222.
4. At the meeting there came a time when the public were excluded pursuant to reg 15 of the Local Government (Meeting Procedures) Regulations. Mr Brooks thereupon asked under what power the Board members and Mr Tilley were remaining. There is a controversy, which I do not need to resolve, as to whether the Board members responded or remained silent. The mayor certainly said that they were entitled to remain, citing Pt 13, Div 1 of the Act. That Division contains all the provisions relating to Boards of Inquiry, including s 222.
5. It is clear that the Board members had been provided with advice that s 222 entitled them to remain for the closed session of the meeting. They are not lawyers. It was reasonable for them to rely on that advice, even if they were aware that its correctness was a matter of controversy. They were not obliged to leave the meeting when it was closed to the public. They remained in order to perform their duties.
6. Section 216(2) is the provision that empowers a Board of Inquiry to "do anything necessary or convenient to carry out its functions". Attending the closed session of the meeting may be regarded, at least from the Board's point of view, as something convenient for the carrying out of its functions.
7. It is very difficult to see how the Board members' attendance at the closed session of the meeting, when the question whether they had a legal right to do so was awaiting judicial determination, could conceivably be regarded as indicative of possible bias against the applicant. By attending the meeting, they did something that she was asserting they had no right to do, but it simply does not follow that such conduct might be regarded as indicating that they would not bring open minds to any issues relating to her reputation or her status.

(xi) Obtaining the confidential agenda for the meeting of 13 April 2016

1. At about 3.42pm on 12 April 2016, the day before the council meeting, Mr Tilley telephoned the general manager, Mr Brooks, and asked him to provide the agenda for the part of the meeting that was to be closed to the public. He had been authorised by the Board to obtain agendas. He therefore had the right, under s 222(1), to require any person to produce the agenda, and "to give such assistance as may be required". Thus, he had the right to require a person to email the confidential agenda to him.
2. Mr Brooks waited until 11.30am the next day, and responded with an email to Mr Tilley containing the following:

"I note that yesterday 12th April 2016 at about 3:45 pm you called me and requested a copy of the Closed section of the Agenda for the 13th April 2016 Council Meeting. Please advise how you believe this is relevant to the Inquiry.

Once again, I am disappointed at the manner this Inquiry has been undertaken, and continues.

The BOI does not have the power under the Act to merely call the General Manager and request documents via a telephone call.

If the BOI wishes to see the closed section of the Agenda for the 13th April 2016 Council Meeting, the BOI must do so in compliance with the requirement specified in the Act."

1. The Board's terms of reference were so wide that it was appropriate for them to have the confidential agenda. There is nothing in s 222 that required Mr Tilley's authorisation to be in writing, nor is there anything that required him to communicate in writing when requiring the production of a document. Although s 217 provides for formal summonses, s 222(1) allows an authorised person to make a less formal requirement for the production of a document, and for the giving of required assistance. For these reasons, I regard Mr Brooks' responses as no better than obfuscation and nonsense.
2. By 9.58am on 13 April, Mr Tilley had decided not to wait for co-operation from Mr Brooks. He phoned the mayor and asked her for a copy of the confidential agenda. It arrived two minutes later. He made copies and provided them to the two Board members. He did not tell Mr Brooks of these developments.
3. After some further email activity, Mr Brooks emailed the confidential agenda to Mr Brown of DPAC, not Mr Tilley, at 2.45pm. The meeting was due to start at 3pm. If the Board members were going to attend the meeting at Glenorchy at 3pm, one could safely assume that they would be on the road at 2.45pm.
4. During the meeting, Mr Brooks saw that the Board members had the confidential agenda. He deduced that they must have got it from an unknown source. He swore an affidavit, which was filed by the applicant's solicitors, containing evidence as to his observations and the preceding communications about the confidential agenda. Ms Iskandarli also swore an affidavit, which was filed by the applicant's solicitors, containing evidence that she observed that the Board members had the confidential agenda during the closed part of the meeting.
5. The evidence as to the obtaining of the confidential agenda for the meeting of 13 April is relevant to the nature of the relationship between the Board members and the mayor. I will return to that subject.

1. In her affidavit, Ms Iskandarli said that, after the meeting of 13 April concluded, she was standing outside the meeting room when she saw the two Board members and Mr Tilley walk out of the room in company with the mayor and approach a photocopier in the adjacent reception area, where the mayor made some copies and gave them to the Board members. She said the Board members and Mr Tilley were about three or four metres from her, with their backs towards her. She continued:

"When the members of the board of inquiry and Mr Tilley were leaving Ms Mason briefly hugged the Mayor and I heard very clearly that Mr Easther said to the Mayor 'You have done well today Kristie'."

1. She said that she spoke to the general manager and told him everything she had witnessed. In his affidavit, Mr Brooks said that Ms Iskandarli told him about "some interactions between the board of inquiry members, the Mayor and Mr Tilley that she had observed after the Council meeting had concluded". He did not say what she told him.
2. Ald Pearce also swore an affidavit as to events immediately after the meeting. Paragraph 3 of his affidavit included the following:

"e) I observed the Mayor, Mr Easther, Mr Tilley and Ms Mason leave the meeting room at the same time. The Mayor left first and Mr Tilley, Ms Mason and Mr Easther followed her. I watched as they left the meeting room.

1. I saw Mr Easther, as he was leaving the room, pat the Mayor on the back or the shoulder. Mr Easther was behind her. I heard him say 'You've done well Kristie' or words like that. At time [sic] I heard this comment, they were walking out of the Council meeting room and heading towards the area where the photocopier is stationed."

1. His evidence as to the time and place of Mr Easther's alleged comment is inconsistent with the evidence of Ms Iskandarli. He said that the comment was made as the individuals were walking out of the council meeting room towards the photocopier. Ms Iskandarli said that the comment was made near the photocopier, after the mayor and the others had left the meeting room and the mayor had done some photocopying. Ald Pearce said nothing about Ms Mason hugging the mayor.
2. Mr Easther, Ms Mason and Mr Tilley all swore affidavits. Each of them said that Ms Mason did not hug the mayor. Each of them said that Mr Easther did not say, "You've done well today Kristie", or anything like that. All of them were cross-examined. All of them were unshaken as to their evidence that those things did not happen. All of them were impressive witnesses.
3. Ms Iskandarli and Ald Pearce were also cross-examined about their observations. They too were unshaken in relation to what they saw and heard. There was nothing about the way Ald Pearce gave his evidence to suggest even the slightest possibility that his evidence might be unreliable.
4. The Solicitor-General submitted to me that there were some matters relating to Ms Iskandarli's conduct and the way she gave her evidence that reflected adversely on her credibility. These included evidence as to attempts by the Board to obtain documents relating to Ms Iskandarli's appointment. The sequence of events relating to those attempts was as follows:
   • In February 2016 the Board requested Mr Brooks to provide copies of the advertisement for Ms Iskandarli's position and a copy of the selection report for that position.
   • Mr Brooks referred that request to Ms Iskandarli.
   • She sent an email to the Board members on 23 February in which she requested reasons for the Board's request, asserted that s 222 did not give the Board the power to make that request, asserted that she was not subject to the Board's terms of reference, said she assumed that allegations had been made in relation to her appointment, and concluded, "I request the BOI follow proper procedures, and from the natural justice point of view, put the allegations to us for our response."
   • On 25 February, Ms Iskandarli sent a further email to the Board members, referring to the fact that these proceedings had been commenced, and asking whether the Board still required the requested documents. She asked for an extension of time to allow the council to seek independent legal advice from senior counsel.
   • On 18 March, the Board issued a summons requiring the proper officer of the council to produce the documents relating to Ms Iskandarli's appointment and several other documents. The summons was returnable on 31 March at 2pm.
   • On 31 March at 1.35pm, Ms Iskandarli sent the Board members an email asserting for various reasons that their summons was invalid.
   • On 12 April, the Board sent Ms Iskandarli an email refuting her arguments and advising that a new summons was to be issued.
   • On 13 April, a fresh summons was issued.
   • On 3 May, Mr Brooks sent the Board members an email advising that the council had received external legal advice "that the requested information is not within the terms of reference of the BOI", but that Ms Iskandarli was nevertheless agreeable for the council to disclose the information to the Board "without her receiving the allegations". However he went on to say that he would contact the members of the selection panel - two external consultants from other States - and provide the requested information once he had spoken to them.
   • On 16 May, a subpoena for the production of the documents was issued in those proceedings at the request of the Solicitor-General.
   • On 24 May, Mr Brooks appeared before me and produced the documents in response to the subpoena. At that stage copies of them had still not been received by the Board.
5. The Board's terms of reference, amongst other things, required it to examine "the governance structures and processes adopted by the Council" during the period since the October 2014 local government elections. Ms Iskandarli was appointed to her present position in March 2015. It appears from documents tendered during the hearing that a staffing restructure took place at about that time. It was therefore lawful for the Board to investigate matters relating to Ms Iskandarli's appointment. The fact that it chose to investigate such matters does not compel a conclusion that any allegations had been made against Ms Iskandarli. The Board was entitled to investigate how well the selection and appointment process had been conducted. In the circumstances Ms Iskandarli's conduct in allowing the general manager to refer the first request to her when it concerned her appointment, jumping to the conclusion that there must be allegations against her, arguing that the first summons was invalid, and then withdrawing her opposition to the Board's request, despite protestations of impropriety, all seems very strange.
6. There was little about the way Ms Iskandarli gave her evidence that could be taken as a sign of possible unreliability. However, when cross-examined about the order in which the Board members, Mr Tilley and the mayor left the meeting room, she said five times that all four of them came out together, despite the fact that the doorway is not wide enough for that literally to be true.
7. When cross-examined about the context of Mr Easther's comment, "You've done very well today, Kristie", Ms Iskandarli initially said that Mr Easther said nothing before that comment, and that he was very loud when he made that comment. She went on to say that she was watching the group very carefully and very closely, and listening very carefully, but that she did not hear what was said because they were whispering. She said that other people were milling about at the time, including the general manager. However he said nothing in his evidence about hearing any such comment. If he had heard such a comment, I think he would have said so in his affidavit.
8. The two Board members appear to have had substantial experience in local government. Both have served as mayors. From my observations of them, they appear to be well aware of their responsibilities. Both would be well aware that they should maintain impartiality, and that it would be considered grossly inappropriate for either of them to hug the mayor, compliment her, or even call her by her first name. It is therefore inherently improbable that they would do any such things and then deny what they had done. Similarly, Mr Tilley appears to be well aware of how individuals in positions of responsibility should behave.
9. Ald Pearce appears to be a man of great integrity, and appeared to be an honest witness. But his evidence is in direct conflict with that of Mr Easther, Ms Mason and Mr Tilley.
10. The applicant bears the onus of proving on the balance of probabilities facts warranting the making of the orders she is seeking. Having considered the evidence very carefully, I am not satisfied on the balance of probabilities that either Mr Easther or Ms Mason behaved as alleged. That is to say, I am not satisfied that Mr Easther made the remark attributed to him, nor that he called the mayor Kristie, nor that Ms Mason hugged her. I am not making a finding as to whether or not any of those things occurred, but I consider it unlikely that any of them occurred.

1. The applicant and some other aldermen have reason to be unhappy about some aspects of the way in which the Board has conducted its inquiry. The Board purported to invite them to attend interviews, but in fact compelled them to attend interrogations that were disturbingly robust. Their answers to the Board were not adequately recorded. They were told that legal representation would not be permitted when the Board should at least have given individuals who desired legal representation an opportunity to try to persuade them to allow it. The Board purported to require written answers to questions when it lacked the power to make such a requirement, as distinct from a request. Those things might indicate heavy-handedness, but in my view they do not provide any reason to doubt the Board's impartiality. There is no reason to think that individuals were getting unequal treatment.
2. Under ordinary circumstances, one would not expect Mr Tilley and the mayor to have communicated as they did in relation to the meetings of 15 March and 13 April. However it is clear that the Board and its staff were not getting appropriate co-operation from the general manager in relation to the provision of documents. His obfuscation in relation to the confidential agendas and the documents relating to Ms Iskandarli's appointment appear to be symptomatic of a much larger problem. In the circumstances, I see nothing inappropriate in anything that Mr Tilley did, nor in the attendance of Ms Mason at the March meeting and both Board members at the April meeting. The mayor may have erred on the side of boldness in suggesting that the Board members attend the March meeting, at least if she knew how unhappy some aldermen were with the Board. However, for the reasons I have explained, the Board members had the right to attend council meetings. The council may or may not have had the right to resolve to require them to leave, but there was no such resolution. And, by attending, the Board members were able to inform themselves as to matters falling within their terms of reference, including the compliance by the mayor and aldermen with their statutory functions, and the processes adopted by the council.
3. It appears from a written submission that Ald Lucas made to me at a stage when her counsel was unavailable that she, and probably others, have a perception that the mayor desires the dismissal of the council, and that she is improperly influencing the Board members. However, despite the best efforts of the applicant, the aldermen who support her application, and their lawyers, there is no evidence to support any such theories.
4. After considering all the applicant's contentions as to the apprehended bias issue, I have concluded that there is no reason to think that a fair-minded lay observer might reasonably apprehend that either of the Board members might not bring an impartial mind to the task that the Board is required to perform. That is to say, there is no reason to grant the applicant's application on the basis of apprehended bias.

1. The grounds relied upon by the applicant in relation to this issue, as set out in the general order to show cause, are as follows:

"a The inquiry has been, and is being, conducted in breach of the rules of natural justice in that:

1. the Board of Inquiry has not provided the applicant with all evidence or other materials that have been received by it;
2. the Board of Inquiry has not held a hearing at which the applicant was afforded the opportunity to examine witnesses called before the Board of Inquiry;
3. the Board of Inquiry has taken evidence and received materials in private and has not disclosed such evidence or materials to the applicant;
4. the Board of Inquiry has conducted its inquiry on a 'confidential' basis and has only provided the applicant with limited information, such information only relating to allegations said to have been made against her.

1. The Board of Inquiry denied the applicant procedural fairness by pre-determining that the applicant would not be entitled to legal representation when being interviewed without first inviting her to be heard as to whether she should be permitted to be legally represented or not.

1. The Board of Inquiry is being conducted contrary to s220(2) of the Local Government Act 1993 in that the applicant has not been afforded the opportunity to have a legal practitioner or agent examine witnesses and address the Board of Inquiry because the Board of Inquiry has conducted and proposed to conduct interviews of witnesses in private rather than in a hearing and has not provided the applicant with all evidence or other materials upon which it has received or proposes to rely upon when preparing its report to the Minister.

1. The Board of Inquiry has denied, and is denying, the applicant procedural fairness by:
   1. receiving evidence in private and not by way of a hearing as is required or contemplated by s217 of the Local Government Act 1993;
   2. contrary to s219 of the Local Government Act 1993 denying the applicant adequate opportunity to make submissions relating to the subject matter of the inquiry of the Board of Inquiry by not providing to the applicant all evidence received by it and in particular undertaking its inquiry on a confidential basis and only advising persons who are affected by an allegation or complaint that an allegation or complaint has been made and only providing those persons, including the applicant, with a summary of the nature of the allegation."

1. If the Board makes findings or recommendations that are adverse to the applicant, her reputation could be affected and, if the councillors are dismissed from office as a result of its report, she would lose her status as a councillor. As I have said, the Board is required by s 218(1)(c) to "observe the rules of natural justice". It is well settled that "when a statute confers powers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 per Mason CJ, Deane and McHugh JJ at 598. It is clear that the Board's powers to make findings and recommendations might be exercised in a manner that would prejudice the applicant's interests in relation to her status as a councillor and/or her reputation.
2. The High Court made it clear in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 that "reputation is an interest attracting the protection of the rules of natural justice": per Mason CJ, Dawson, Toohey and Gaudron JJ at 578. That case concerned a report by Queensland's Criminal Justice Commission which contained adverse recommendations about individuals involved in the poker machine industry. The report was tabled in the State Parliament without any notice having been given to the individuals of its existence or its contents. The High Court held that the Commission had been required to comply with the rules of procedural fairness in preparing the report. At 581, Mason CJ, Dawson, Toohey and Gaudron JJ said:

"... had the appellants had advance notice of the Commission's intention to report adversely, its failure to observe the requirements of procedural fairness would have entitled them to relief by way of prohibition preventing it from reporting adversely without first giving them an opportunity to answer the matters put against them and to put submissions as to findings or recommendations that might be made." [Footnotes omitted.]

"... where a repository of a jurisdiction conditioned on observance of the rules of natural justice proposes to exercise the jurisdiction without observing those rules, a writ of prohibition quousque may issue to restrain the exercise of the jurisdiction until the rules are observed." [Footnote omitted.]

1. After the Minister has received the report of the Board, he will be obliged, pursuant to s 225(1), to advise the councillors in writing of the recommendations of the Board, and to invite further submissions. When a decision-making process involves a number of steps or stages before a final decision is made, the requirements of natural justice are ordinarily satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness": South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 per Mason CJ at 289; Ainsworth v Criminal Justice Commission (above) per Mason CJ, Dawson, Toohey and Gaudron JJ at 578. This is a situation where the decision-making process involves a number of steps or stages. The obligation of the Minister to advise the councillors of the recommendations of the Board, and to invite further submissions, is obviously concerned with procedural fairness. However there is no express statutory obligation for the Board or the Minister to make the Board's findings known to councillors.
2. That is the statutory framework within which the Board is required to observe the rules of natural justice. It follows that the Board has an obligation to afford procedural fairness to any councillor whose reputation or whose status as a councillor may be prejudiced by a finding or recommendation that the Board is thinking of making.

1. The applicant contends that the Board is obliged to conduct a hearing at which witnesses give evidence and are cross-examined. She contends that there is an implied statutory obligation to that effect and, alternatively, that in the circumstances of this case the Board's duty to observe the rules of natural justice cannot be discharged without an oral hearing.
2. There is no express provision in the Act that requires a Board of Inquiry to conduct an oral hearing. There is no general right to an oral hearing in administrative proceedings: Local Government Board v Arlidge [1915] AC 120 at 134, 141; Nahf v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; (2003) 128 FCR 359 at 365.
3. A statute can impliedly require the conduct of an oral hearing. Estate Agents Board v Nakic [1983] VicRp 115; [1983] 2 VR 570 illustrates that point. In that case the Full Court of the Supreme Court of Victoria held that the Estate Agents Act 1980 (Vic) impliedly required a board to conduct an oral hearing whenever an individual applied for an estate agent's licence. There were provisions in the relevant statute that referred to "the hearing of the application", provided for an adjournment of the hearing of the application, and gave an objector a right "to take part in the hearing of the application either personally or by his solicitor or counsel".
4. However this case concerns a statute that gives a Board of Inquiry great flexibility. Under s 218(1)(a), the Board is required "to conduct an inquiry with as little formality and technicality as a proper consideration of the matter before it permits". Under s 218(1)(b), it "may inform itself on any matter in any way it considers appropriate". A Board of Inquiry no doubt has the power to conduct an oral hearing. That is clear from s 217, which contains the provisions as to summonses for persons to appear or produce documents, requirements for persons to give evidence on oath or affirmation, and requirements for persons to answer questions. However the existence of such powers does not compel a conclusion that every Board of Inquiry has a duty to conduct some sort of hearing.
5. Section 220(1) empowers the Board to decide whether to permit a person who has been summoned to attend before it to be represented by a legal practitioner or an agent. However such a provision is a logical one for a board that has the power to receive evidence, even if the evidence is received in private. It provides no indication of an implied duty always to conduct some sort of hearing.
6. I think the same can be said of s 220(2), which provides that "A legal practitioner or agent who represents any person may examine witnesses and address the Board of Inquiry on behalf of the person." I do not think that subsection compels a conclusion that there has to be a hearing at which witnesses give evidence. No other provision in the legislation gives any such suggestion. Rather, I think s 220(2) should be interpreted as applying in a situation when a Board chooses to conduct a hearing at which witnesses give evidence. Such an interpretation is consistent with a Board of Inquiry having the duty to proceed "with as little formality and technicality as a proper consideration of the matter before it permits", and the right to "inform itself on any matter in any way it considers appropriate".
7. I therefore conclude that Boards of Inquiry do not have an implied statutory obligation always to conduct an oral hearing. Every Board of Inquiry of course has the power to conduct an oral hearing. I turn to consider the contention that the Board of Inquiry has a non-statutory obligation to conduct an oral hearing in this case.
8. As Tucker LJ observed in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118, "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth". The term "procedural fairness" has been said to convey "the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 584.
9. There are some situations in which a duty of procedural fairness requires the conducting of a hearing at which the evidence of witnesses can be tested by cross-examination. The applicant contends that in this case the Board's duty of procedural fairness cannot be discharged without a hearing at which the evidence of witnesses can be tested by cross-examination.
10. When a statutory authority has a discretion to hold an oral hearing, there are a number of factors that should be taken into account in determining whether there is a duty to conduct such a hearing in a particular case. In Aronson and Groves, Judicial Review of Administrative Action, 5th ed, Law Book Co, 2013 at [8.370] the learned authors say:

"In each case, the matter must be viewed through a prism of fairness and context. Any decision about cross-examination must take account of the wider circumstances in which it is sought. The question is not simply whether cross-examination should be allowed but whether it is required for a fair hearing. In determining that issue, the courts usually give particular weight to the significance of the issue to be tested, the extent to which the ultimate issue turns on conflicting evidence, the need to assess credibility or character of witnesses, and whether there are other ways for a party to controvert evidence. The common thread of each matter is that cross-examination is important to the proper or full presentation of a party's case."

1. The evidence before me includes only a fraction of the material that has been provided to the Board of Inquiry. As far as I am aware, no allegation of criminal conduct or gross impropriety has been made against anybody in the course of the inquiry. Obviously an oral hearing could be essential in a case involving conflicting assertions as to, for example, corruption in the tendering process leading to the making of a substantial contract. Equally obviously, a full-scale oral hearing would not be appropriate in relation to an allegation that a particular alderman was unwilling to sit in a particular seat at a council meeting. None of the evidence before me suggests that, in the course of the Board's investigation, a factual issue has emerged that is of such significance that it would be unfair if the conflicting assertions were not tested at a hearing where witnesses gave evidence and were cross-examined. I am therefore not satisfied that the Board's duty of procedural fairness requires the conducting of an oral hearing.
2. Councils established under the Act have a wide variety of powers and procedures, including some quite complex procedures. The range of subjects that might fall within the terms of reference of Boards of Inquiry established under s 215(1)(b) are likely to be many and various. It was therefore most appropriate for the Parliament to make provision for such Boards to regulate their own procedures. This case provides an excellent example of an inquiry whose subject-matter is so wide that an oral hearing involving a full investigation of every disputed allegation and every asserted error of judgment would simply not be feasible.

The Board's obligations to provide information and invite comment

1. Because of the Board's duty to observe the rules of natural justice, there can be situations in which it would be obliged to disclose to a councillor allegations that have been made, evidence that has been received, and findings and/or recommendations that it is thinking of making; to invite a response from the councillor; and then to consider any such response. It has a duty to proceed in that way if, but only if, a councillor's interests might be prejudiced, and unfairness might result if no opportunity for comment were provided.
2. The Board's published summary of its proposed inquiry process, which I have set out at [13] above, contains nothing to suggest that it might invite any further submissions from the applicant or others in her position before finalising its findings and recommendations and reporting to the Minister. Its revised deadline of 18 April 2016 tends to suggest that, had these proceedings not been instituted, there would have been little time for the Board to undertake such a process.
3. Ms Mason was cross-examined as to how the Board intends to proceed if it is able to complete its inquiry, but Mr Easther was not. When asked what process the Board was going to adopt to make findings of fact where the evidence of witnesses was contradictory, Ms Mason replied, "The final decision about how the contents of a report will be presented has not been determined." One of her subsequent answers suggested that the Board might simply report that there were conflicting assertions as to particular facts, without making findings as to which assertions were correct and which were incorrect. There may well be issues, particularly issues of little significance, that the Board, acting reasonably, will have no need to make findings about. The Board may well be able to decide upon its recommendations without reaching a conclusion in relation to every matter of dispute.
4. However it seems likely that the Board will make findings and/or recommendations that could lead to the status and/or reputation of the applicant and other aldermen being adversely affected. It follows that it has a duty to notify individual councillors of the findings and/or recommendations that it is thinking of making, and of the basis for them, to invite responses, and to consider any such responses.

1. The applicant's primary claim is for relief in the nature of a writ of prohibition. Writs of prohibition may no longer be issued by this Court: Judicial Review Act 2000, s 43. However relief in the nature of a prerogative writ of prohibition is still available: Supreme Court Rules, r 627(2)(c); Tasman Quest Pty Ltd v Evans [2003] TASSC 110, 13 Tas R 16, at [8], [9]. Rule 627(2)(c) provides that the Court or a judge, "instead of ordering that a writ of prohibition issue, may order that the relevant judicial or other authority or person be restrained from acting in excess of jurisdiction in any particular".
2. As that provision indicates, writs of prohibition were available only in cases involving actual or threatened excess of power. When a statutory authority makes a decision without complying with an obligation relating to procedural fairness, relief in the nature of prohibition can be granted to prevent further action from being taken on its decision because it has acted "in excess of jurisdiction". When a statutory authority is not observing an obligation relating to procedural fairness in the course of its decision-making, relief in the nature of prohibition can be granted to prohibit it from making a decision because its decision would be "in excess of jurisdiction". Although the role of a Board of Inquiry is to make findings and recommendations, its findings and recommendations form part of the decision-making process, and relief in the nature of prohibition can be ordered to prevent it from proceeding without complying with its obligations of procedural fairness.
3. The order sought by the applicant, if granted, would permanently restrain the Board from proceeding any further with its inquiry. That is to say, the inquiry would be closed down. The Board would not make any findings or recommendations. The Minister would be placed in a position where he would have to decide whether or not to establish a new Board of Inquiry constituted by different people.
4. When a court has the power to award a writ of prohibition, it may either do so unconditionally or grant the remedy so as to prevent the decision-maker or authority from proceeding until certain requirements are satisfied. The latter type of remedy is sometimes referred to as prohibition quousque. Thus in Ainsworth (above) at 595, Brennan J spoke of "a writ of prohibition quousque ... to restrain the exercise of the jurisdiction until the rules are observed".
5. This species of prohibition was discussed by Dixon CJ, Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 118. That case concerned an inquiry into the fitness of an employer for registration under stevedoring legislation. The defendant board in that case had the power to cancel or suspend an employer's registration. An employer contended that the board's delegate was contemplating its deregistration, not because of unfitness, but as a means of enforcing a policy of the board. At 118 their Honours said:

"If the facts are not inconsistent with the existence of a basis for exercising the board's power of suspension or cancellation but there is a real threat to apply an erroneous test or to go outside the scope of the discretion and so abuse the power, more difficulty as to the remedy in prohibition may arise. But the tenor of the writ might perhaps be moulded to meet the situation and the board and its delegate prohibited quousque, eg until they were satisfied lawfully or until they abandoned the unlawful course or criterion: see per Willes J in Mayor of London v Cox (1867) LR 2 HL 239 at 275, 276, and in White v Steele [1862] EngR 796; (1862) 12 CB (NS) 383 at 412 [142 ER 1191 at 1202-1203]."

1. The applicant and the other aldermen participating in this case contend that, unless restrained by an order in the nature of prohibition, the Board will make findings and recommendations without complying with its obligations of procedural fairness. They contend that that should be inferred from the way in which the Board has conducted its inquiry so far. However the Solicitor-General submitted that the application for relief in the nature of prohibition was premature. On the first day of the hearing, he made a submission to the effect that, if I were to conclude that the Board needed to take certain steps in order to comply with its legal obligations, then it would be necessary only for me to say what was required, and the Board could then be expected to act appropriately.
2. In my view the Board has a duty, before reaching any conclusions as to any findings and/or recommendations that might prejudice the interests of the applicant as to her status or reputation, to provide her with details of any such findings or recommendations, and the basis for them, and to allow her a reasonable opportunity to make submissions for it to consider.
3. From the evidence before me, I cannot deduce what findings or recommendations, if any, the Board might make that could result in prejudice to the applicant in relation to her status and/or reputation.
4. I have no reason to doubt the integrity and conscientiousness of the two Board members. However they are not lawyers, and their conduct of their inquiry, despite their apparent good intentions, has been unsatisfactory in a number of respects as discussed above. Mr Easther was not cross-examined about his understanding of the rules of natural justice in relation to the future of the inquiry, but Ms Mason was. It is clear that she does not have a thorough understanding of the Board's procedural fairness obligations. Although the Board is in a position to obtain good legal advice, I consider, in the light of the evidence I have referred to, that there is a sufficient risk of the Board failing to afford the applicant procedural fairness to warrant the making of an order in the nature of prohibition quousque.
5. I will confine the operation of that order so that it protects only the applicant since the other aldermen who have participated in these proceedings are not applicants. However, if the Board is thinking of making findings or recommendations that might prejudice the interests of one or more of them in relation to his or her status and/or reputation, then the Board's procedural fairness obligations to the individual or individuals in question will be similar in nature to its obligations to the applicant.

1. For these reasons, I have decided to discharge the injunction granted by Holt AsJ, and to order that the respondents be restrained from submitting a report of their findings and recommendations as a Board of Inquiry to the Minister for Planning and Local Government until:

(a) they have notified the applicant of every contemplated finding or recommendation which, if made, would be likely to prejudicially affect her status as an alderman and/or her reputation, and of the information or evidence considered by them to support such a finding or recommendation;

(b) they have allowed the applicant a reasonable time to make submissions to them in writing, personally or by a solicitor or agent, as to such matters; and