Cover v ACT Integrity Commission

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Cover v ACT Integrity Commission (No 3) Citation: [2025] ACTSC 424 Hearing Date: 29 April 2025 Decision Date: 18 September 2025 Before: Mossop J Decision: (1) The report entitled Special Report – Operation Luna (Part One) at Tab 12 of Exhibit 1 is admitted into evidence. (2) The proceedings are dismissed. (3) Unless the parties provide proposed consent orders in relation to costs to the chambers of Mossop J by 4pm on 24 September 2025, the proceedings are listed for the determination of costs at 9:15am on 29 September 2025 and the parties have leave to provide written submissions on costs limited to not more than three pages by email to the Associate to Mossop J by 4pm on 26 September 2025. Catchwords: CONSTITUTIONAL LAW – PARLIAMENTARY PRIVILEGE – Whether special report by ACT Integrity Commission (Report) is protected by parliamentary privilege – where Commissioner is an independent officer of the ACT Legislative Assembly – where Report prepared “for” the Legislative Assembly – where Report not produced at Legislative Assembly’s direction – where Report published under Commission’s statutory obligation to do so – where the Commission’s legislation otherwise deals with parliamentary privilege – Commissioner is an outsider to the Legislative Assembly – Report not protected by parliamentary privilege CONSTITUTIONAL LAW – PARLIAMENTARY PRIVILEGE – Purpose of parliamentary privilege – where statutory functions performed by statutory entity independent of the Legislative Assembly – where no legislative command extending parliamentary privilege – artificial to extend parliamentary privilege to the performance of such statutory functions – admitting Report in judicial review proceedings does not detract from the Legislative Assembly’s freedoms of speech and action STATUTES – INTERPRETATION – Integrity Commission Act 2018 (ACT), ss 9 and 10 – where “serious corrupt conduct” is “corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration” – whether “serious” imports a requirement of seriousness beyond “likely to threaten public confidence in the integrity of government or public administration” – it does not STATUTES – INTERPRETATION – Integrity Commission Act 2018 (ACT), s 10 – whether “likely” imports the Briginshaw standard of “more likely than not” – where “likely” is combined with the imprecise concept of “threaten” – usage of “likely” as meaning “a real and not remote chance or possibility” well established – improbable that the legislature combined a precise standard of “more likely than not” with the imprecise concept of “threaten” ADMINISTRATIVE LAW – STATUTORY DUTIES AND POWERS – Functions – whether functions of CEOs, board chairs and board members of public entities are duties which must be performed – where, in generally-applicable statutes, drafters are careful to use the interpretive rulebook that is the Legislation Act 2001 (ACT) – where “function” includes “authority, duty and power” – no contrary intention to displace the operation of the Legislation Act Legislation Cited: Annual Reports (Government Agencies) Act 2004 (ACT), s 7A Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 8, 24 Bill of Rights 1688 1 Wm & M sess 2 c 2, Art 9 Canberra Institute of Technology Act 1987 (ACT), ss 7, 10(2)(c) Civil Law (Wrongs) Act 2002 (ACT), s 137(2)(a) Commonwealth Constitution, s 49 Financial Management Act 1996 (ACT), ss 77, 82, 84, 85, 101 Financial Management Legislation Amendment Act 2005 (ACT) Inquiries Act 1991 (ACT), s 14A Inspector of Correctional Services Act 2017 (ACT) Integrity Commission Act 2018 (ACT), ss 7, 9, 10, 19, 20, 21, 22, 23, 25, 100, 101, 130A, 140, 177, 178, 182, 183, 184, 185, 186, 187, 188, 188A, 189, 190, 191, 192, 205, 206, 207, 208, 209, 210, 211, 212, 212A, 213, 214, 215, 216, Chs 3, 4, Pts 3.9, 4.2 Legislation Act 2001 (ACT), ss 6, 144, 146, 200, Dictionary Legislative Assembly (Broadcasting) Act 2001 (ACT) Legislative Assembly Precincts Act 2001 (ACT) Migration Act 1958 (Cth) Parliamentary Privileges Act 1987 (Cth), s 16 Supreme Court Act 1933 (ACT), s 20 Cases Cited: ACT v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 390 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Boughey v The Queen (1986) 161 CLR 10 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 Commonwealth v Baume (1905) 2 CLR 405 Cover v ACT Integrity Commission [2025] ACTSC 71 Crime and Corruption Commission v Carne [2023] HCA 28; 97 ALJR 737 Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151 James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; 274 ALR 85 Klein v Domus Pty Ltd (1963) 109 CLR 467 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Prebble v Television New Zealand Ltd [1995] 1 AC 321 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Murphy (1986) 5 NSWLR 18 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 Szwarcbord v Gallop [2002] ACTSC 28; 167 FLR 262 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 Williams v Director-General of the Justice and Community Safety Directorate [2025] ACTSC 396 Texts Cited: ACT Integrity Commission, Special Report – Operation Luna (Part One) (27 June 2024) ACT Legislative Assembly, Companion to the Standing Orders of the Legislative Assembly for the Australian Capital Territory (2022, 2nd ed) ACT, Parliamentary Debates, Legislative Assembly, 27 August 2024 ACT, Parliamentary Debates, Legislative Assembly, 27 June 2024 Halsbury’s Laws of England (Butterworth & Co, 1959, 3rd ed) S Walmsley, The Trials of Justice Murphy (LexisNexis Butterworths, 2017) Parties: Leanne Cover (Plaintiff) ACT Integrity Commission (Defendant) Speaker of the Legislative Assembly for the Australian Capital Territory (Amicus Curiae) Representation: Counsel C Webster SC with IJ King (Plaintiff) T Game SC with B Kaplan (Defendant) P Bindon (Amicus Curiae) Solicitors Mills Oakley (Plaintiff) ACT Integrity Commission (Defendant) ACT Government Solicitor (Amicus Curiae) File Number: SC 199 of 2024 MOSSOP J: Introduction

1. This is an application for prerogative relief in relation to the report by the ACT Integrity Commission entitled Special Report – Operation Luna (Part One), dated 27 June 2024 (Report). By her amended originating application filed on 30 August 2024, the plaintiff seeks declarations that: (a) the Report is materially affected by errors of law; (b) the Report is attended by jurisdictional error through a failure to consider a relevant consideration; and (c) the Commission’s determination that the plaintiff had engaged in “serious corrupt conduct” was made without or in excess of jurisdiction, and is thus a nullity.

2. The plaintiff also seeks costs.

3. The amended originating application outlines, with commendable clarity, the grounds upon which relief is sought. In summary, the grounds are: (a) Ground 1: The Commission misconstrued the expression “serious corrupt conduct” in the Integrity Commission Act 2018 (ACT) (IC Act). (b) Ground 2: The Commission erred in interpreting the word “likely” in s 10 of the IC Act as meaning “a real and not remote likelihood” rather than “more probable than not”. (c) Ground 3: The Commission erred in its construction of ss 84 and 101 of the Financial Management Act 1996 (ACT) (FM Act). (d) Ground 4: The Commission erred by failing to distinguish between the duties of the Chief Executive Officer (CEO) and the duties of the Chair of the Board (Board Chair). (e) Ground 5: The Commission erred in law in its determination about the status of an informal statement given by the relevant Minister and his Chief of Staff, in the absence of a formal direction under the Canberra Institute of Technology Act 1987 (ACT) (CIT Act). (f) Ground 6: The Report is affected by jurisdictional error because the Commission unreasonably failed to exercise its discretionary power in s 140 of the IC Act to examine a potentially critical witness. Background

4. The plaintiff is the former CEO of the Canberra Institute of Technology (CIT). On 23 June 2022, the Commission announced its decision to investigate, pursuant to s 100 of the IC Act, the awarding of contracts worth over $8.5 million by the CIT to entities associated with Mr Patrick Hollingworth (including Redrouge Nominees Pty Ltd t/a “ThinkGarden”).

5. The investigation, known as Operation Luna, involved numerous witness examinations, as well as review of documents. Prior to the conclusion of its investigation, the Commission decided to prepare a “special report” on the investigation (the Report). The preparation of a special report is provided for by s 206 of the IC Act. Having followed the process of disclosure under ss 212 and 212A of the IC Act, on 27 June 2024, the Commission provided the Report to the Speaker of the ACT Legislative Assembly (Speaker) and published the Report on its website.

6. The Report concerned the conduct of the plaintiff and the Board Chair, Mr Craig Sloan, in relation to the performance of their duties of disclosure to the CIT Board (Board) and to the relevant Minister, the Minister for Skills, of matters in relation to the contracts. The key issue considered in the Report was whether the plaintiff and/or Mr Sloan had informed the Board of several important matters surrounding the procurement of the services of Mr Hollingworth, including a letter from the Minister dated 19 February 2021 (19 February letter), which concerned the contracts which had been entered into and the subsequent proposals to enter into a fifth and sixth contract with entities associated with Mr Hollingworth.

Parliamentary privilege and the Report

Introduction

8. A preliminary evidentiary issue arose in relation to the admissibility of the Report. That issue arose because the Commission — and the Speaker, who was given leave to appear as amicus on the point: see Cover v ACT Integrity Commission [2025] ACTSC 71 — contended that the Report was a “proceeding in Parliament” for the purposes of s 16 of the Parliamentary Privileges Act 1987 (Cth) (Privileges Act). Section 16 defines the scope of the privileges of the ACT Legislative Assembly pursuant to s 24(3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act).

9. Both the Speaker and the Commission contended that the Report was a “proceeding in Parliament” and thus it was not permissible for the Report to be admitted into evidence because the purpose of doing so was to seek to challenge it in a manner that parliamentary privilege prevented.

10. The hearing on 29 April 2025 proceeded on the basis that the proceedings would be fully argued and that a ruling on the admissibility of the Report would be made as part of the court’s final determination of the matter.

Relevant legislative framework

11. Section 7 of the Self-Government Act establishes the Territory as a body politic under the Crown. Section 8 establishes the Legislative Assembly for the Australian Capital Territory. Section 24 establishes the powers, privileges and immunities of the Legislative Assembly. It empowers the Legislative Assembly to make laws declaring its own powers and those of its members and committees, “but so that the powers so declared do not exceed the powers for the time being of the House of Representatives or of its members or committees” (s 24(2)(a)). Section 24(3) provides: (3) Until the Assembly makes a law with respect to its powers, the Assembly and its members and committees have the same powers as the powers for the time being of the House of Representatives and its members and committees.

12. In this subsection, the reference to “powers” includes “privileges and immunities”: see s 24(1).

13. The Legislative Assembly has not, to date, made a general law “with respect to its powers”, even though it has made laws dealing with specific issues related to its operation: see, for example, Legislative Assembly Precincts Act 2001 (ACT); Legislative Assembly (Broadcasting) Act 2001 (ACT). Because of the absence of any general “law with respect to its powers”, s 24(3) has the effect that the Legislative Assembly and its members and committees have the same powers, privileges and immunities as the House of Representatives and that House’s members and committees. Therefore, it is necessary to examine the powers, privileges and immunities of the House of Representatives in order to determine those of the Legislative Assembly.

14. Section 49 of the Commonwealth Constitution provides: The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

15. The Privileges Act declares the powers, privileges and immunities of the Houses of the Commonwealth Parliament, their members and committees.

16. Sections 16(1)-(3) of the Privileges Act provide: 16 Parliamentary privilege in court proceedings (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

Presentation of the special report

29. The Report was provided to the Speaker on 27 June 2024. That was a sitting day. The Speaker announced to the Assembly that she had been provided with the Report. The Speaker identified that the Report would be presented to the Legislative Assembly on the next sitting day, which was in August. However, she also referred to the effect of s 214 of the IC Act and told members of the Legislative Assembly about the publication of the Report on the Commission’s website, which was to occur after her statement to the Assembly: ACT, Parliamentary Debates, Legislative Assembly, 27 June 2024, at 1888 (Joy Burch, Speaker).

30. A member of the plaintiff’s law firm downloaded a copy of the Report from the Commission’s website on 27 June 2024. That copy of the Report is the same as the copy sought to be tendered.

31. On the next sitting day, which was 27 August 2024, the Speaker presented the Report to the Legislative Assembly. On the same day, the relevant Minister tabled the government’s response to the Report: ACT, Parliamentary Debates, Legislative Assembly, 27 August 2024, at 2006-2007. Submissions of the Speaker and Commission

32. The Speaker made detailed submissions as to the application of parliamentary privilege. Those were adopted by the Commission with some minor elaboration. The submissions put on behalf of the Speaker comprised four steps: (a) First, the Report is itself a “proceeding in Parliament” for the purposes of s 16 of the Privileges Act because it is within the scope of both ss 16(2)(c) and (d) of the Privileges Act. This was put as follows: The matters set out above establish that the Special Report falls squarely within the category of ‘proceedings in Parliament’ in s 16(2)(d) of the Privileges Act, being “the formulation, making or publication of a document, including a report, by or pursuant to an order of a House … and the document so … published”. Put in terms of the “core concept”, the presentation by the Speaker and the publication by the Assembly are plainly “acts done in the course of … the transacting of the business of a House” and the provision of the Report to the Speaker is plainly an act done “for the purposes of or incidental to” that end: s 16(2)(c) of the Privileges Act. (b) Second, because parliamentary privilege attaches to the Report, it is not lawful in the present proceedings for the Report to be tendered or received into evidence, or for questions to be asked, or statements, submissions or comments made concerning it, to the extent that is done for the purposes set out in ss 16(3)(a)-(c) of the Privileges Act. (c) Third, Grounds 1-5 of the amended originating application will necessarily involve “questioning the correctness” of passages in the Report and “draw[ing] ... conclusions” from those passages as to whether or not the Report is infected by legal error, and that is prohibited by ss 16(3)(a) and (c). (d) Fourth, the court must, therefore, refuse to admit the Report into evidence.

33. The Speaker submitted that the decisions in Szwarcbord v Gallop [2002] ACTSC 28; 167 FLR 262 and Crime and Corruption Commission v Carne [2023] HCA 28; 97 ALJR 737 were distinguishable from the present circumstances on factual grounds because the evidentiary basis necessary to establish the connection between the relevant report and the proceedings of the relevant legislature had not been established in those cases.

Decision

39. The Report is admissible. Its admission in the proceedings does not contravene s 16 of the Privileges Act. It may be relied upon in proceedings challenging the compliance by the Commission with the terms of the IC Act.

40. The reasons that follow: (a) analyse the Speaker’s submissions by reference to the text of s 16(2) of the Privileges Act; (b) explain why the Report is not within s 16(2)(c); (c) explain why the Report is not within s 16(2)(d) (d) explain how this is consistent with the authorities relied upon by the Speaker; and (e) explain why the outcome is consistent with the purpose of parliamentary privilege.

41. Because of the conclusion that the Report sought to be tendered is not captured by s 16(2), it is not necessary to address the question raised by the third step in the Speaker’s argument, namely whether, if the Report were covered by parliamentary privilege, the purposes for which it would be used in the present judicial review proceedings would infringe s 16(3).

Analysis of the Speaker’s submissions

42. So far as the definition of “proceedings in Parliament” is concerned, the relevant words of s 16(2) are: (2) … proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: … (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

43. The Speaker’s submissions sought to locate the Report in s 16(2) by contending that it was: (a) within s 16(2)(c) because the presentation by the Speaker and the publication by the Assembly were “acts done in the course of … the transacting of the business of [the Legislative Assembly]” and hence the provision of the Report to the Speaker was an act done “for the purposes of or incidental to” that end; or (b) within s 16(2)(d) because it was “the formulation, making or publication of a document, including a report, by or pursuant to an order of [the Legislative Assembly] … and the document so … published”.

44. Because of the wrapped-up language used in the statutory provisions and picked up in the submissions of the Speaker, it is necessary to identify the actual contentions that are available.

45. So far as s 16(2)(c) is concerned, the Speaker’s contention is that, because the presentation of the Report and its publication by the Legislative Assembly — both uncontroversially being “proceedings in Parliament” — then the “preparation of” the Report was “for purposes of or incidental to” those proceedings and hence fell within s 16(2)(c).

46. So far as s 16(2)(d) is concerned, the reference to “an order of a House or a committee” qualifies the words “the formulation, making or publication of a document”. That means that, in the present case, it is only the publication of the document which could be within para (d), because the “formulation” and “making” of the document was not done pursuant to an order of the Legislative Assembly or a committee thereof. This means that the Speaker’s submission simply identifies that proceedings in Parliament include “the publication of [the Report] … pursuant to an order of [the Legislative Assembly] … and the document so published”. There can be no doubt that the notional publication that is authorised or ordered by the Legislative Assembly by reason of either standing order 212A or s 213(2)(e) of the IC Act is part of the proceedings of Legislative Assembly, but that act (or deemed act) of the Assembly is not being questioned. Rather, the issue is whether the words “and the document so published” means that the Report itself is part of the proceedings of the Legislative Assembly so that its tender for the purposes of judicial review proceedings is precluded.

Why the Report is not within s 16(2)(c)

47. The issue here is whether there is such a close connection between the Commission and the Legislative Assembly that the preparation of the Report by the Commission should be characterised as being “for purposes of or incidental to the transacting of” any business of the Legislative Assembly.

48. The relationship between the Commission and the Legislative Assembly is defined by the IC Act. When the IC Act is examined, it is not open to characterise the whole statutory process for the preparation of a special report under the Act as being “for purposes of or incidental to the transacting of” the business of the Legislative Assembly.

49. When one examines the provisions of the IC Act, it is quite clear that the Commission is a separate statutory entity performing functions which are not themselves “proceedings in Parliament”, and the IC Act does not indicate any intention that those statutory processes should be treated as though they were part of “proceedings in Parliament”.

50. The nature of the Commission: The Commissioner is described as “an independent officer of the Legislative Assembly”: s 21(1). While that could be seen as making the Commissioner part of the Legislative Assembly and hence more likely to be a beneficiary of parliamentary privilege, that is undermined by the terms of ss 21(2)-(3) and (6) (set out above at [20]). The existence of those provisions indicates that s 21(1) is intended to make clear that the Commissioner is an adjunct to the operation of the Legislative Assembly — as distinct from being part of the executive government — but is not intended to go as far as to constitute the Commissioner as an integral part of the processes of the Legislative Assembly itself, as would be the case with an Assembly committee. The statement that the Commissioner is an independent officer of the Assembly is intended to articulate lines of accountability rather than impliedly alter the nature of the powers given under the IC Act.

51. That conclusion is reinforced when one looks at the overall structure of the IC Act, which is to establish the Commission as a statutory authority undertaking investigation and reporting independent of the executive government and largely independent of the Legislative Assembly. While the Commissioner is appointed by the Speaker in accordance with s 25 and reports are made to the Speaker, the structure of the Act is otherwise consistent with the Commission being an independent statutory body whose conduct is determined by a quite prescriptive statutory regime. In addition to monthly reports to the Inspector of the Commission (s 205) and annual reports to the relevant responsible Minister under s 7A of the Annual Reports (Government Agencies) Act 2004 (ACT), there is the obligation to provide investigation reports and a power to provide special reports to the Speaker: IC Act, ss 189, 213.

52. The report was not prepared at the Legislative Assembly’s direction: The process for the making of special reports under Pt 4.2 provides the Commission with a capacity to report to the Legislative Assembly prior to the completion of an investigation and the preparation of an investigation report under Pt 3.9. The preparation of a special report does not arise from any order of the Legislative Assembly or any Assembly committee. Rather, special reports “may, at any time,” be prepared by the Commission “on any matter relating to the exercise of the commission’s functions”: s 206. Conducting investigations is one of the functions of the Commission outlined in s 23(1)(a), and the decision to investigate arose from the independent decision of the Commission under s 100 or s 101 of the IC Act.

Why the Report is not within s 16(2)(d)

59. Is the Report sought to be tendered the subject of parliamentary privilege under s 16(2)(d) because it was ordered to be published by the Legislative Assembly?

60. The answer is “No”, for a number of reasons.

61. First, the Report sought to be tendered had not been “ordered to be” or “authorised” to be published by the Legislative Assembly when it was obtained by the plaintiff on 27 June 2024. The Report was presented to the Legislative Assembly and “authorised” for publication pursuant to standing order 212A when it was presented to the Legislative Assembly on the next sitting day (27 August 2024). Had it been provided to the Speaker when the Legislative Assembly was not sitting, then publication would have been taken, by s 213(2)(e) of the IC Act, to have been “ordered” by the Legislative Assembly on the day it was provided to the Speaker. Quite apart from the authorisation of the Report’s publication pursuant to the Standing Orders, immediately following presentation to the Speaker, it was published pursuant to s 214 of the IC Act by the Commission on its own website. That publication occurred on 27 June 2024. The authorisation for publication pursuant to the Standing Orders occurred on 27 August 2024. There was, therefore, a two-month period during which the Report had been published by the Commission pursuant to statute but not authorised for publication by the Legislative Assembly pursuant to the Standing Orders. The Report obtained by the plaintiff was obtained by her solicitors from the Commission’s website on 27 June 2024 and it is the same Report proposed to be tendered.

62. Second, the authorisation of the publication upon the Report being presented to the Legislative Assembly did not involve any actual publication. There was no evidence specifically directed to the consequences of authorisation for publication under standing order 212A. In British American Tobacco at [54], the court observed that the equivalent rule in the Commonwealth Senate did not require any person to actually publish a document. Rather, the authorisation may be no more than “to signal a retreat from the privilege previously asserted by the Parliament at Westminster to restrain the publication of its proceedings”. That is consistent with the authority cited by their Honours, namely Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 336-337, where Lord Browne-Wilkinson (for the court) observed: In the past, Parliament used to assert a right, separate from the privilege of freedom of speech enshrined in article 9, to restrain publication of its proceedings. … Since 1980 this right has no longer been generally asserted by the United Kingdom Parliament and their Lordships understood from the Attorney-General that in practice the House of Representatives in New Zealand no longer asserts the right. See also Halsbury’s Laws of England (Butterworth & Co, 1959, 3rd ed) vol 28 at 458- 459.

63. There is nothing in the Standing Orders or the Companion to the Standing Orders of the Legislative Assembly for the Australian Capital Territory (2022, 2nd ed) to indicate there is any publication (in the sense of printing of documents), even though the documents may be made available to members of the Legislative Assembly. Therefore, at least so far as the evidence goes, no copy of the Report actually published by the Legislative Assembly is sought to be tendered.

Consistency of the conclusion with the purpose of parliamentary privilege

75. Having regard to the overall purpose of Art 9 of the Bill of Rights and s 16 of the Privileges Act, it would seem, in the absence of a clear statutory command to the contrary, to be artificial to characterise the performance of statutory functions by a statutory entity outside the Legislative Assembly as protected by a privilege available to the Legislative Assembly. It would not enhance or protect the freedom of speech and action of the Legislative Assembly or its committees or members to immunise from challenge a statutory report prepared by a statutory officer in contravention of the statutory constraints that apply to that officer.

76. To exclude from the scope of parliamentary privilege such a statutory report does not detract from the freedoms of the members of the Legislative Assembly to deal with and act upon the terms of the Report once it is presented or taken to have been presented to the Legislative Assembly. It merely means that the antecedent preparation of the Report is not immunised from judicial review for compliance with the statutory limitations upon the Commission’s power.

77. What, if any, consequences a successful application for judicial review in relation to the Report may have for the Legislative Assembly’s treatment of the Report would remain a matter for the Legislative Assembly. Ruling

78. I therefore rule that the document at Tab 12 of Exhibit 1, which is a copy of the Report, is admitted into evidence.

79. It is now appropriate to deal with each substantive ground in the plaintiff’s amended originating application.

Factual context for certain grounds

80. In order to deal with the substantive grounds in the plaintiff’s amended originating application (in particular, Grounds 3, 4 and 5), some understanding of the factual circumstances reported on by the Commission and the conclusions reached is necessary. As such, it is appropriate to briefly set out some relevant facts as reported by the Commission.

81. The Report is 277 pages long and contains very detailed analysis of the factual circumstances investigated by the Commission, as well as discussions of the legal context in which those circumstances existed, in order to reach the conclusion that the plaintiff had engaged in “serious corrupt conduct”. Only the briefest summary will be provided in these reasons in order to place the legal contentions in Grounds 3, 4 and 5 in their proper context.

82. The CIT is a publicly funded tertiary education provider. The plaintiff was the CEO and a member of the Board. There was a Board Chair, Mr Craig Sloan. In the years leading up to 2021, the CIT had been undergoing a process of organisational change. Associated with that process, it had entered into four contracts with Mr Hollingworth or an entity associated with him. These four contracts had a total value in excess of $3.27 million: see Table 1 at [6] of the Report.

83. The Minister had written a letter to Board Chair on 19 February 2021 questioning the value for money provided by these contracts.

84. On 22 September 2021, a fifth contract was entered into valued at $512,050.

85. Subsequently, on 22 December 2021, the Minister’s Chief of Staff, Dr Rayner, had a conversation with the plaintiff, expressing the view that the previous contracts with Mr Hollingworth had not been in accordance with community expectations and would not “pass the pub test”: Report at [337].

86. A sixth contract was entered into on 28 March 2022 which included very substantial payments in advance and was worth $4,999,990 over two years.

87. The Commission found: (a) The Board was not informed of the 19 February letter in a way that brought the issue raised to its attention: Report at [446]. (b) The reply to the 19 February letter was “significantly less than candid” and “seriously misleading”: Report at [240]-[241]. (c) The Board was not informed of the reply in a way that brought the issue raised to its attention: Report at [177]-[179]. (d) The Board and Board Chair were not informed of the comments of the Minister’s Chief of Staff: Report at [350]. (e) The Board was not informed of the intention to execute the fifth and sixth contracts, or those contracts’ terms, prior to them being entered into: Report at [446]. (f) The Board only became aware of the sixth contract in June 2022 after the Minister had discovered that it had been executed and wrote to the Board Chair again, with copies of that letter sent to the Board members: Report at [436]-[437].

Ground 1: “serious corrupt conduct”

91. In Ground 1, the plaintiff contends that the Report was materially affected by an error of law in its construction of “serious corrupt conduct” within the meaning of the IC Act. This is particularised as follows: a. Paragraph 18 of the Report says that the distinction between “serious corrupt conduct” and “corrupt conduct” does not depend on the degree to which the conduct is wrongful; b. Paragraph 18 of the Report departs from the statutory definition of “serious corrupt conduct” in s 10 of the IC Act by saying “it is sufficient if a likely consequence of the identified corrupt conduct is to threaten public confidence in the soundness or efficacy of government or public administration apart from its probity”; c. Paragraph 19 of the Report says in relation to the likelihood of identified corrupt conduct threatening public confidence in the integrity of government or public administration: “The likelihood is not required to be more probable than not but conveys the notion of a substantial – a real and not remote – chance regardless of whether it is less or more than fifty percent.” d. The s 10 IC Act definition of “serious corrupt conduct” is: “‘serious corrupt conduct’ means corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration”; e. The additional qualifier “serious” used in “serious corrupt conduct” must signify an additional, more serious, element of misconduct in addition to the required factors for “corrupt conduct” as listed in s 9(1)(b) IC Act[.] Plaintiff’s submissions

92. The plaintiff’s submissions noted that “corrupt conduct” is defined separately to “serious corrupt conduct”. She submitted that the use of the qualifier “serious” in the expression “serious corrupt conduct” establishes a question of degree that distinguishes “corrupt conduct” under s 9 from “serious corrupt conduct” under s 10.

93. The plaintiff then submitted that any conduct that met the definition of “corrupt conduct” can be assumed to have an adverse effect on public confidence. Therefore, the requirement that it be “serious” signifies an additional, more serious element of misconduct in addition to the factors required for “corrupt conduct”. Such an interpretation is consistent with the principle of statutory interpretation that “no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], quoting Commonwealth v Baume (1905) 2 CLR 405. The plaintiff submitted that the formulation of “serious corrupt conduct” used by the Commission did not identify more serious conduct than that already listed in s 9(1)(b), and was not consistent with the clear statutory intent to identify as “serious corrupt conduct” conduct which has a greater degree of culpability than required for “corrupt conduct”.

94. The submissions targeted the finding of the Commission at [456] (set out in the Schedule to these reasons) and submitted that the Commission did not grapple with the requirement of s 10 that the conduct “threaten public confidence in the integrity of government or public administration”. The plaintiff also submitted that the paragraph was affected by the errors alleged in Grounds 4 and 5.

Commission’s submissions

95. The Commission submitted that the definition of “corrupt conduct” involves an element of “moral turpitude or lack of probity”. The balance of the definition of “serious corrupt conduct” gives content to the adjective “serious” in the phrase. As a result, there is no additional requirement of seriousness over and above the corrupt conduct being likely to threaten public confidence in the integrity of government or public administration.

96. The Commission submitted that s 10 requires not merely corrupt conduct which has an adverse effect on “public confidence”, but corrupt conduct that is likely to threaten public confidence “in the integrity of government or public administration”. The submissions then addressed the reasoning adopted by the Commission to reach the conclusion at [456].

Decision

97. Section 9 defines “corrupt conduct” and s 10 defines “serious corrupt conduct”. They provide: 9 Meaning of corrupt conduct (1) For this Act, corrupt conduct is conduct— (a) that could— (i) constitute a criminal offence; or (ii) constitute a serious disciplinary offence; or (iii) constitute reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of, a public official; and (b) that is any of the following: (i) conduct by a public official that constitutes the exercise of the public official’s functions as a public official in a way that is not honest or is not impartial; (ii) conduct by a public official or former public official that— (A) constitutes a breach of public trust; or (B) constitutes the misuse of information or material acquired by the official in the course of performing their official functions, whether or not the misuse is for the benefit of the official or another person; (iii) conduct that adversely affects, either directly or indirectly the honest or impartial exercise of functions by a public official or a public sector entity; (iv) conduct that— (A) adversely affects, either directly or indirectly the exercise of official functions by a public official or public sector entity; and (B) would constitute, if proved, an offence against a provision of the Criminal Code, chapter 3 (Theft, fraud, bribery and related offences); (v) conduct that involves any of the following: (A) collusive tendering; (B) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety, protect the environment or facilitate the management and commercial exploitation of resources; (C) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage; (D) defrauding the public revenue; (E) fraudulently obtaining or retaining employment or appointment as a public official; (vi) conduct engaged in by a person in relation to conduct mentioned in subparagraphs (i) to (iv) (the primary conduct), that would constitute an offence against the Criminal Code, part 2.4 (Extensions of criminal responsibility) on the basis that the primary conduct is an offence, whether or not the primary conduct is in fact an offence. (2) For subsection (1) (a) it does not matter if— (a) proceedings or action in relation to the conduct can no longer be taken; or (b) the conduct happened outside the Territory. Example—par (a) Action for a disciplinary offence may no longer be taken as the person who engaged in the conduct has resigned. (3) In this section: criminal offence means a criminal offence under the law of the Territory or under any other law relevant to the conduct in question. Examples—criminal offences offences in the Criminal Code, ch 3 (Theft, fraud, bribery and related offences), including: • pt 3.2 (Theft and related offences) • pt 3.3 (Fraudulent conduct) • pt 3.4 (False or misleading statements, information and documents) • pt 3.5 (Blackmail) • pt 3.6 (Forgery and related offences) • pt 3.7 (Bribery and related offences) • pt 3.8 (Impersonation or obstruction of territory public officials) • pt 3.8A (Cheating at gambling). serious disciplinary offence includes— (a) any serious misconduct; or (b) any other matter that constitutes or may constitute grounds for— (i) termination action under any law; or (ii) a significant employment penalty. serious misconduct—see the Fair Work Regulations 2009 (Cwlth), section 1.07 (Meaning of serious misconduct). 10 Meaning of serious corrupt conduct In this Act: serious corrupt conduct means corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration.

Ground 2: “likely”

102. In Ground 2, the plaintiff contends that the Report was materially affected by a misunderstanding of the law. This is particularised as follows: a. The Commission proceeded on a misunderstanding of the standard of proof at paragraph 19 that “Whether the identified corrupt conduct is likely to threaten public confidence in the integrity of government or public administration is a question of fact, not law. The likelihood is not required to be more probable than not but conveys the notion of a substantial – a real and not remote – chance regardless of whether it is less or more than fifty percent.” b. As a consequence of this misunderstanding, the Commission failed to act with due deliberation and regard to the seriousness of the consequences of its decision. Plaintiff’s submissions

103. The plaintiff submitted that the formulation at [19] of the Report picked up the interpretation of the word “likely” in Boughey v The Queen (1986) 161 CLR 10. The plaintiff accepted that the word “likely” may carry a range of meanings. In s 10 of the IC Act, the word is used in the expression “likely to threaten public confidence in the integrity of government or public administration”.

104. The plaintiff submitted that the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336) should have been applied. She submitted that the Report involved the drawing of inferences from circumstantial evidence through references to the logic of events. The submissions pointed to the decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 as to the need, when proof on the balance of probabilities is required, that circumstances give rise to a “reasonable and definite inference”, not merely “conflicting inferences of equal degrees of probability”.

105. The plaintiff submitted that the clear legislative intent of s 184 of the IC Act was to support the protection of the reputation of affected individuals. She also submitted that the Report had expressly disavowed the application of Briginshaw principles at [21].

Commission’s submissions

106. The Commission pointed out that the word “likely”, when used in a statutory provision, can mean more probable than not, or a real or not remote chance or possibility. Which of those formulations is adopted depends upon the context in which the word is used. It submitted that the context strongly supported the conclusion that the word “likely” in s 10 of the IC Act refers to a real or not remote chance or possibility, whether or not it is more probable than not. The contextual factors pointed to by the Commission were: (a) the objects of the IC Act, which were said to support a lower threshold for the risk to public confidence in the integrity of government or public administration; and (b) the use of the word “threaten” in s 10, which itself “imports a degree of provisionality”, as distinct from requiring the Commission to be satisfied of an actual adverse effect on public confidence in the integrity of government or public administration.

107. The Commission contended that the meaning of “likely” in the definition of serious corrupt conduct had nothing to do with the standard of proof or the principles in Briginshaw. Further, the Commission contended that the principles in Briginshaw have no application to the process of preparing special reports under the IC Act because the rules of evidence do not apply. In any event, the Commission submitted that it had regard to the Briginshaw principles in making adverse findings against the plaintiff.

Decision

108. The plaintiff’s submissions were somewhat confused. They mixed a question of statutory interpretation as to the meaning of the word “likely” in s 10 with a question about the application of the principles in Briginshaw. In my view, Ground 2 raises only the former: the meaning of the word “likely”. The meaning of that term is a question of statutory interpretation relating to the concept of “serious corrupt conduct”. It does not relate to the standard of proof.

109. So far as the word “likely” is concerned, it is well accepted that it may mean either more probable than not or a real and not remote chance or possibility: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346; Sheen v Fields Pty Ltd (1984) 58 ALJR 93 at 95; Boughey at 14-15, 19-22, 41-45; James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; 274 ALR 85 at [181]-[185]. Which of those meanings it bears depends upon the statutory context and purpose.

110. There can be no doubt that, in the present context, “likely” means a real and not remote chance or possibility. That is because it appears in the expression “likely to threaten public confidence”. The concept of a threat itself reflects an imprecise potential for adverse future consequences. It is decidedly unlikely that, having regard to the solid pedigree for the word “likely” as meaning “a real and not remote chance or possibility”, the drafter of the legislation nevertheless chose to use that word to combine a precise standard of “more likely than not” with the imprecise concept of “threaten”. Rather, it is more coherent to conclude that the drafter used the well-established approach to the meaning of “likely” in combination with another word involving a non-specific definition of the extent of a risk.

111. The interpretation of “likely” as involving a real and not remote possibility creates a lower threshold than would exist if likely meant “more probable than not”. That, in turn, makes it easier for the Commission to include in any investigation report (s 184) or special report (s 208) a finding that a person has engaged in serious corrupt conduct. However, that fact does not tend against the interpretation adopted. Although the provisions of the IC Act do reflect, to some extent, a concern to protect individual reputations, that concern is not so manifest as to compel an unusual and difficult to apply interpretation of the meaning of “likely” in s 10.

112. Ground 2 is not established.

Ground 3: reporting significant events

113. The plaintiff contends that the Report was materially affected by an error of law in its construction of ss 84 and 101 of the FM Act. This is particularised as follows: a. Section 84 of the FM Act sets out the functions of the CEO of a Territory authority (such as the CIT). b. Section 84(1)(d) of the FM Act requires the CEO to immediately advise the Board about “significant events”. c. Section 101(1) of the FM Act sets out the obligation of an authority to tell the Minister of significant events “as soon practicable”; d. Section 101(2) of the FM Act defines significance as used in s 101 and s 84(1)(d); e. Section 101(2)(a) of the FM Act says an event, part of assets or activity is “significant” if: “it is significant when interpreted in accordance with accounting standards relating to materiality ordinarily used in Australia when the decision about whether it is significant is made” f. Paragraph 42 of the Report says that the sense in which “material is used in s 101(2) of the FM Act”: “covers a far wider range of matter than finances, specifically as it might affect the entity’s performance or its carrying out of significant activities” g. In paragraphs 307 and 445 of the Report refers [sic] to Ms Cover as having an “imperative” duty to inform the Board of the CIT in relation to certain matters; h. Paragraph 47 describes the CEO as being obliged to act with “complete good faith in respect of the governance and operations of the authority”; i. The construction of ss 84 and 101 of the FM Act reflected in paragraphs 42, 47, 307, 445 of the Report are [sic] infected by an error of law[.] Plaintiff’s submissions

114. The plaintiff contended that the Commission misconstrued ss 84 and 101 of the FM Act and misunderstood the role of the Board Chair and CEO throughout the Report. The plaintiff pointed out that s 84 of the FM Act sets out the functions of a CEO as distinct from the duties of a CEO.

115. The plaintiff pointed to what she submitted was the “permissive language” in s 200(1) of the Legislation Act 2001 (ACT) (which gives functions to the person “for the time being occupying the position”) and the meaning of “may” and “must” set out in s 146 of that Act. The plaintiff appeared to be submitting that the exercise of the functions by a CEO was a discretionary matter rather than being an obligation.

116. The plaintiff submitted that, although s 84(1)(c) required the CEO to prepare regular reports to the Board, that should not be understood as bypassing the statutory scheme and internal Board Charter, which places that responsibility on the Board Chair. The only provision indicating an intention to bypass that division of responsibility was the obligation in s 84(1)(d) to immediately tell the Board about “significant events” (which picks up the definition of significant event in s 101(2)). The plaintiff submitted that the Report misconstrued ss 84 and 101 in the Report at [42]-[44], [47]-[48], [372], [445]-[447] and [456]. She submitted that the CEO would fulfil the obligation to inform the Board by the preparation of a report to the Board (which would be included in the Board papers by the Board Chair), and that it is only in an urgent case where the Board needs to be notified immediately that the corporate governance structure can or should be bypassed.

Commission’s submissions

117. The submissions of the Commission pointed out, in some detail, the relevant provisions of the CIT Act and the FM Act, including the meaning of “significant event”.

118. The Commission pointed to the functions in ss 84(1)(c) and (d) of the FM Act. It pointed to the Dictionary to the Legislation Act which defines the word “function” as including “authority, duty and power”. It therefore submitted that the functions listed in s 84(1) are properly to be understood as duties. It pointed out that the plaintiff was also a member of the Board and had duties under s 77 of the FM Act. However, in any event, the specification of functions in s 84 involved a description of the CEO’s responsibilities.

Decision

119. Sections 77, 82, 84, 85 and 101 of the FM Act provided as follows: 77 Role of governing board (1) If a territory authority has a governing board, the governing board has the following functions: (a) setting the authority’s policies and strategies; (b) governing the authority consistently with the authority’s establishing Act and other relevant legislation; (c) ensuring, as far as practicable, that the authority operates in a proper, effective and efficient way; (d) ensuring, as far as practicable, that the authority complies with applicable governmental policies (if any). Examples of policies for par (a) 1 risk management 2 communication with government 3 corporate planning (2) This section does not limit the functions of a governing board. … 82 Chair’s functions The chair of the governing board of a territory authority has the following functions: (a) managing the affairs of the governing board; (b) ensuring, as far as practicable, that there is a good working relationship between the governing board and management of the authority; (c) ensuring the responsible Minister is kept informed about the operations of the authority. … 84 CEO’s functions (1) The CEO of a territory authority with a governing board has the following functions: (a) ensuring, as far as practicable, that the authority’s statement of intent is implemented effectively and efficiently; Example of implementation of statement of intent achieving objectives in statement of intent (b) managing the day-to-day operations of the authority in accordance with— (i) applicable governmental policies (if any); and (ii) the policies of the authority set by the board; and (iii) each legal requirement that applies to the authority; Example for par (iii) a direction by the independent competition and regulatory commission that relates to the authority (c) regularly advising the board about the operation and financial performance of the authority; (d) immediately advising the board about significant events. (2) In this section: significant event, for a territory authority, means an event that the authority is required to tell the responsible Minister about under section 101. 85 Honesty, care and diligence of governing board members In exercising the functions of a governing board member, a member must exercise the degree of honesty, care and diligence required to be exercised by a director of a corporation in relation to the affairs of the corporation. … 101 Obligation of authorities to tell Minister about significant events (1) A relevant territory authority must, as soon as practicable, tell the responsible Minister of any significant event that affects, or seems likely to affect— (a) the value of the authority; or (b) a significant part of the authority’s assets; or (c) the performance of the authority as a whole; or (d) the carrying out of a significant activity of the authority. (2) For this section, an event, part of assets or activity is significant for a relevant territory authority if— (a) it is significant when interpreted in accordance with accounting standards relating to materiality ordinarily used in Australia when the decision about whether it is significant is made; or (b) a document published by the authority identifies it as significant (however described); or (c) a memorandum of understanding or other agreement between the responsible Minister or Treasurer and the authority identifies it as significant (however described); or (d) it is prescribed under the financial management guidelines.

Ground 4: CEO versus Board Chair

132. In Ground 4, the plaintiff contended that the Report was materially affected by an error of law arising from its failure to distinguish between the duties of a CEO and Board Chair. This is particularised as follows: a. The particulars [set out at para [113] above] … are repeated. b. Section 82 of the FM Act specifies the functions of the Chair of the CIT. c. Section 82(a) of the FM Act says that the Chair has the specific function of “managing the affairs of the governing board”; d. Clause 4.2 of the Board Charter says: “The Chair of the Board is responsible for setting the agenda, in consultation with the CIT Chief Executive Officer, and Members may submit items for consideration by the Chair to be included in the meeting agenda. Members are free to raise issues at Board meetings through other business.” e. This description of the functions of the Chair does not limit the role of the Chair which includes having the primary responsibility of selecting matters and documents to be brought to the board’s attention, for formulating the policy of the board and promoting the position of the company: AWA Ltd v Daniels (trading as Deloitte Haskins & Sells) (1992) 7 ACSR 759; 10 ACLC 933; f. The Report states variously in paragraphs 47-51 that it is the duty of the CEO has the duty of informing the Board “has all that it needs to operate effectively” [sic]; g. Paragraph 52 of the Report then states: “It needs to be stressed that the obligation of the CEO (and of a director) is personal and independent and, even if in some fashion delegated to or raised with, say the Chair, the CEO is not absolved from ensuring that the appropriate disclosure to the Board has been made.” h. Paragraph 53 states further: “The essential characteristic of the relationship between the CEO and the Board is that members of the Board must be able to place complete trust in the CEO bringing to their attention any matters that they might need to know for the purpose of undertaking their responsibilities. Thus, the mere failure (if this occurs) of Board members to ask pertinent questions does not in any way provide a reason for the CEO omitting to provide necessary information. In short, the Board must be able to infer, from the lack of information about any particular matter, that nothing of importance has occurred in relation to it.” i. This failure to delineate between the duties of a CEO and the Chair of the Board is a material error of law. Plaintiff’s submissions

133. The plaintiff’s submissions pointed out the structure of the Board and submitted that the Board Charter, s 77 of the FM Act and the CIT Act do not suggest that the Board is an active governor of the CIT’s operations and potential initiator of significant projects. Rather, it has an advisory role. The submissions pointed to the findings at [47]-[51] and [53] of the Report that the CEO had an obligation to bring matters to the attention of the Board. The plaintiff submitted that this reflected a failure to delineate between the duties of a CEO and the Board Chair, which was inconsistent with the FM Act and the general law of director’s duties. The submissions pointed to ss 82 and 84 of the FM Act and various authorities concerning the scope of the responsibilities of a corporate board chair.

Commission’s submissions

135. The Commission submitted that the Report included reference to the statutory functions of the CEO and Board Chair in ss 82, 84 and 101, the functions of the Board under s 77, and the terms of s 85 of the FM Act. The Commission submitted that the Report correctly outlined the functions of the CEO at [47]-[53]. It submitted that s 82 of the FM Act said nothing about the Board Chair having to keep the Board informed of operational or financial matters including significant matters.

Decision

136. This Ground overlaps with the issues canvassed in relation to Ground 3. The relevant provisions have been set out above. Section 82 provides that the Board Chair’s functions include “managing the affairs of the governing board”. In contrast to this general obligation, the obligations of the CEO include the two matters identified at ss 84(1)(c) and (d). While the general responsibility of managing the affairs of the Board lay with the Board Chair, the CEO had specific and more detailed responsibilities to advise the Board in relation to “the operation and financial performance” of the CIT (s 84(1)(c)) and “significant events” (s 84(1)(d)). Further, the CEO was, herself, a member of the Board (CIT Act, s 10(2)(c)) obliged under s 85 of the FM Act to exercise “the degree of honesty, care and diligence required to be exercised by a director of a corporation in relation to the affairs of the corporation”.

137. Having regard to the relationship between ss 77, 82, 84 and 85, there can be no doubt that, in light of the factual conclusions reached by the Commission, a person in the position of the plaintiff was not absolved of responsibility to make the disclosures found in the Report to have been required by the fact that there was also a Board Chair with obligations under s 82.

138. Ground 4 is not established. Ground 5: disclosure of the 19 February letter

139. In Ground 5, the plaintiff contends that the Report was materially affected by an error of law in its determination of the status of informal intimations given by the Minister and his Chief of Staff absent a formal direction issued under the CIT Act. This is particularised as follows: a. On 19 February 2021 the Minister for Skills wrote to the Chair of the Board of the CIT (19 February 2021 Letter) requesting information about certain procurements by the CIT. b. The 19 February 2021 Letter was not a direction within the meaning of s 6 of the CIT Act. c. An informal ministerial communication such as the 19 February 2021 Letter [to] a statutory body that might be interpreted as a direction can be regarded as offending the purposes for the creation of such statutory bodies: Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151; d. In paragraph 182 of the Report the Commission states: “The letter, to any reasonable reader in the position of Ms Cover or Mr Sloan, unmistakably conveyed the message that the Minister was not merely seeking information but was airing scepticism about the appropriateness and utility of the successive contracts with Mr Hollingworth and his related entities and wanted to see how they were justified. For the responsible Minister to take this position in relation to what Ms Cover (and, likely, Mr Sloan) considered to be a fundamental operational necessity was plainly of the highest significance and should have been disclosed to the Board.” e. The conclusion in paragraph 182 of the Report reflects a misapprehension as to the status of the 19 February 2021 Letter; f. The conclusion in paragraph 182 reflects a misapprehension as to the identity of the person who had any duty to disclose to the Board the existence of the 19 February 2021 Letter. If any such duty existed, it was a duty of the Chair. Plaintiff’s submissions

Commission’s submissions

144. The Commission submitted that this Ground involves an appeal relating to the merits rather than legality of the Report. The submissions characterise the plaintiff’s complaint as being that the Minister’s 19 February letter and the conversation with Dr Rayner should have been given less weight in the Report. The Commission submitted that nothing in the Report indicated that the 19 February letter was treated as a direction. Rather the Commission submitted that the crucial question was whether the letter was of such importance in the circumstances of the case that it ought to have been disclosed to the Board pursuant to the responsibilities of the CEO. The same submission is made in relation to the conversation between the plaintiff and Dr Rayner.

Decision

145. The Minister’s letter was sent on 19 February 2021. Leaving aside formal parts, it provided: I am writing in relation to the following contracts, engaged by the Canberra Institute of Technology (CIT) in recent years. 1. Patrick Hollingworth for the transformation of CIT Strategic compass 2020, executed on 27 July 2017 for the value of $198,000 2. Redrouge Nominees Pty Ltd for provision of Transformational Consultancy Services, executed on 1 July 2018 for the value of $151,250 3. Redrouge Nominees Pty Ltd for provision of Organisational Transformation Strategic Guidance and Mentoring Services, executed on 9 November 2018 for the value of $825,000 and varied on 9 October 2019 to increase the value to $1,220,000 4. Patrick Hollingworth for provision of Organisational Transformation Strategy Guidance and Mentoring Services for CIT 2020-2021, executed on 9 April 2020 for the value of $1,705,000 I have been made aware of a media inquiry concerning these contracts and am seeking further information about the circumstances surrounding their procurement. I would appreciate advice on the processes that were undertaken to select Mr Hollingworth and Redrouge, including advice on how these contracts represent value for money. I am also seeking advice on the specific outcomes being sought by these consultancies and a report on how these outcomes have been delivered to date. I would appreciate this advice, in writing, by 5 March 2021.

146. The substance of the letter sent in response, and the attached report, are described at [221]-[226] and [243] of the Report. The Report made some adverse findings about the response and attached report at [223], [227], [240], [241] and [244], and foreshadowed further investigation of the substance of the response (at [227]).

147. The submissions of the plaintiff emphasise part of Finn J’s decision in Hughes Aircraft where his Honour addressed the propriety of ministerial communications which were not statutory directions but might be interpreted as having that intent. At 231-232, his Honour said the following: Where a ministerial communication could, because of its tenor or context, reasonably be interpreted by those to whom it is made either as being akin to a direction (whether or not it formally disclaims such an intent) or as manifesting an intent to contrive a decision to be taken, it properly can be regarded as offending the purposes (constitutional and statutory) which inform the legislative creation of bodies whose decisions are intended by Parliament to be freed from ministerial control save where the Minister, as contemplated by the statute in question, assumes responsibility for a particular decision in the manner envisaged by that statute.

148. In that context, the plaintiff submitted that “a key question to be asked, is whether the CIT (whether through its Board Chair, the CEO, or the Board) should have interpreted the 19 February 2021 Letter as anything other than a request for information”

149. The plaintiff’s submissions do not make reference to the earlier statement by Finn J recognising the entitlement of a Minister to communicate with a statutory board. At 230-231, his Honour said: Consistent both with his responsibility … to account to the Parliament for the actions of the CAA, and as I later hold, his right in virtue of his s 12 direction power to have access to any and all information of the authority concerning its affairs, Minister Collins had the prima facie right to communicate with the Board on any matter concerning the affairs of the CAA including, I would add specifically, the TAAATS procurement. There is nothing in the Act which is inconsistent with that right. On the contrary. Bearing in mind that responsible government is a premise of our system of government, the statutory arrangements created by the Act presupposes such a right.

Ground 6: failure to examine a “potentially critical” witness

156. In Ground 6, the plaintiff contends that the Report was affected by jurisdictional error due to the Commission’s unreasonable failure to exercise its discretionary power under s 140 of the IC Act to examine a “potentially critical” witness. This is particularised as follows: a. At all relevant times, Ms Catherine Hudson was the Board Strategy and Governance Advisor for the CIT; b. Ms Hudson had the functions specified in the Board Charter, viz: • “provide support services for meetings of the Board (and where required for meetings of Board committees), including preparation of minutes, in accordance with the item 4.2 above and any other Board agreed requirements • co-ordinate the provision of advice to the Board and decisions from the Board, where relevant • co-ordinate the drafting of all correspondence, letters of advice and other material • co-ordinate research on issues being considered • ensure that statutory obligations such as legal notifications are met • ensure timely payment of remuneration and other administrative arrangements for Board members, where relevant” c. An email from Ms Hudson to the Chair sent on 23 February 2021 at 17:48 indicated Ms Cover had suggested that the 19 February 2021 Letter should be drawn to the attention of the Board. This email was identified by the Commission during a documentary review after the examination of the witnesses (the majority of which occurred in 2022 and the last of which occurred in November 2023), and the Commission only advised of its existence on 28 February 2024. d. Ms Hudson was not examined by the Commission prior to the preparation of the Report. e. The failure to examine Ms Hudson undermined the Commission’s investigation. f. Evidence from Ms Hudson could have been substantial in relation to any findings of serious corrupt conduct, especially as the Commission’s findings in respect of the Minister's letter of 19 February 2021 underscored its conclusion that Ms Cover engaged in “a pattern of concealment, commencing with how the Minister’s February letter was dealt with and the response to it” at paragraph 450 of the Report. Plaintiff’s submissions

157. The plaintiff submitted that the Report did not demonstrate a proper appreciation of Ms Hudson’s role. The plaintiff identified that the Commission had, on 28 February 2024, disclosed to the plaintiff’s legal representatives an email from Ms Hudson to Mr Sloan on 23 February 2021 at 5:48pm. The email had been identified by the Commission during a documentary review. The email made reference to the plaintiff having mentioned that Mr Sloan may wish to advise the Board of “the other letter you received from the Minister last week”. The plaintiff’s submissions before this court referred to the submissions made in response to the draft of the Report that was provided to the plaintiff. She submitted that the Commission had failed to meaningfully consider her comments contrary to the obligation under s 212A of the IC Act.

158. The plaintiff submitted that the common law implies reasonableness as a condition of the exercise of a discretionary power by statute: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [88] (Gageler J). The plaintiff pointed out that s 140 of the IC Act confers a discretion to hold an examination.

Commission’s submissions

161. The Commission accepted that the power in s 140 must be exercised within the bounds of reasonableness.

162. It pointed out that, contrary to the plaintiff’s submissions, the Commission provided, on 14 June 2024, comprehensive reasons as to why it decided not to examine Ms Hudson. The submissions set out at some length extracts from the reasons that were given. Those reasons included that it was speculative whether or not Ms Hudson would be a corroborative witness and that, to the extent to which the email was consistent with the plaintiff’s evidence, it was taken into account by the Commission at [174] of the Report.

Decision

163. The power in question is that in s 140 of the IC Act which provides: “For an investigation, the commission may hold an examination.” The submission was that, in the circumstances, the refusal to conduct an examination of Ms Hudson was a legally unreasonable one and hence involved a jurisdictional error on the part of the Commission.

164. The decision of the High Court in Li held that reasonableness was a qualification implied in certain statutory powers of the Migration Review Tribunal under the Migration Act 1958 (Cth). Each of the judgments of the court recognised this to be the case: Li at [28] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]-[89] (Gageler J). While the judgments did not adopt the Wednesbury unreasonableness formulation, preferring to simply describe the qualification on the statutory powers as reasonableness, they did not disavow the Wednesbury formulation (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

165. It may be accepted that the decision of the Commission under s 140 of the IC Act is qualified by a requirement that the power be exercised reasonably. The scope of that implied statutory restraint must be assessed in the context of the statute as a whole, which provides for a flexible investigative process, a discretion as to whether or not to hold an examination, and statutory requirements that must be complied with in relation to investigation reports and special reports relating to persons and entities.

166. Given the investigatory nature of the functions performed by the Commission when fulfilling its duty to investigate conduct that is alleged to be corrupt conduct, and the difference between such an administrative process and judicial processes, it will be more difficult for a court to be satisfied that the implied statutory constraint of reasonableness has been infringed than would be the case in relation to an exercise of statutory power closer to those with which courts are familiar: Li at [111]-[112] (Gageler J).

167. The assessment of the reasonableness of the decision not to conduct an examination of Ms Hudson takes place in the context of the following chronology: (a) On 23 June 2022, the Commission announced its decision to investigate, with the investigation given the codename “Operation Luna”. (b) Between July 2022 and December 2023, the Commission undertook examinations of other witnesses. (c) On 9 November 2023, the Commission provided the plaintiff with the proposed special report. (d) On 20 November 2023, a version of the proposed special report correcting some typographical and drafting errors was provided to the plaintiff. (e) On 12 January 2024, the plaintiff provided submissions to the Commission in response to the proposed special report. (f) On 28 February 2024, the Commission disclosed the email from Ms Hudson sent at 5:48pm on 23 February 2021 (and certain other material). (g) On 14 March 2024, the plaintiff provided further written submissions to the Commission in response to the proposed special report. (h) On 26 April 2024, the plaintiff was provided an amended proposed special report and the Commissioner’s response to the plaintiff’s submissions. (i) On 29 May 2024, the plaintiff requested either a transcript of any evidence given to the Commission by Ms Hudson or advice that she had not given any evidence. (j) On 11 June 2024, the plaintiff provided the Commission with written submissions on the amended proposed special report. (k) On 14 June 2024, the Commission provided reasons for not amending the amended proposed special report in response to the plaintiff’s comments. (l) On 27 June 2024, the Report was provided to the Speaker.

Costs

174. Unless the parties agree on the costs orders which should be made (including in relation to the costs reserved on 3 March 2025), I will hear them further on costs.

Orders

175. The orders of the Court are: (1) The report entitled Special Report – Operation Luna (Part One) at Tab 12 of Exhibit 1 is admitted into evidence. (2) The proceedings are dismissed. (3) Unless the parties provide proposed consent orders in relation to costs to the chambers of Mossop J by 4pm on 24 September 2025, the proceedings are listed for the determination of costs at 9:15am on 29 September 2025 and the parties have leave to provide written submissions on costs limited to not more than three pages by email to the Associate to Mossop J by 4pm on 26 September 2025.

Schedule – extract of the conclusions in relation to the plaintiff in the Report (see [89] above) Conclusion: Ms Cover 443. The present analysis, commencing with the earlier contracts with Mr Hollingworth, focuses on what followed from the Minister’s letter of late February 2021. The contracting of Mr Hollingworth’s services for the development of Evolving Together and the organisational change that had been underway for something like four years was, as the Board understood, a continuing undertaking, with the particular decision points (made by Ms Cover) comprising the successive contracts, of present particular relevance the fifth and the sixth. Of obvious importance was that the serious questioning of what value for money the identified contracts provided and the outcomes that had been achieved, which had been raised by the Minister, necessarily applied not only to those contracts but any continuing work and, especially, any further contracts. Thus, any consideration at Board level of the utility of Mr Hollingworth’s work, particularly that in which implicit or explicit support for its continuation was sought – which occurred, one way or another, at every Board meeting from February 2021 to June 2022 – must have necessarily been significantly incomplete without knowledge that the Minister had questioned its utility and cost. The Minister and the Board – and the CIT – did not inhabit different universes. The statutory structure outlined at the beginning of this report explicitly provided for a substantial degree of interaction, which reflected the character of the CIT as a public entity serving public interests at public cost, in respect of which the Minister necessarily was accountable to the public. He was not only entitled to give binding directions under s 7 of the CIT Act but also to be involved less formally and less authoritatively in its operations, for example, by asking questions and making suggestions. Indeed, this was implicitly recognised by the regular meetings between him, Mr Sloan and the CEO. There can be no question but that the Board not only would but should have taken very seriously any expression of views, critical or otherwise, by the Minister about Evolving Together and could do so without compromising their independent role or that of the Minister. In effect, the Minister’s questions – which fundamentally concerned the major policy implications about the progress of transformation and the connected utility of Mr Hollingworth’s contracts – were edited out of the narrative when any reasonable person should have understood they were an important part of the conversation. 444. The continuing relevance of the Minister’s letter to evaluating the importance of bringing the actual details of the fifth and sixth procurements to the Board’s attention is a repeated theme of this Report. Its importance did not diminish, let alone disappear, after the Board meetings of 24 February or 28 April 2021. To the contrary, its importance continued with increasing significance when the procurements of the fifth and sixth contracts were proposed and the 2022 budget considerations were underway. This was reinforced by the conversation with Dr Rayner of 22 December 2021. It was of critical importance by 14 February 2022 when the Request for Proposal, entitled “CIT FUTURES 2025”, went to market for the sixth contract, then ultimately with the finalisation of the terms for a contract with Mr Hollingworth for $4,999,990 over two years with almost $1.7 million payable on execution of the contract and most of the balance of the contract price also payable substantially in advance of the services to be provided. 445. Thus, whilst the failure to bring the Minister’s letter to the attention of the Board at its meeting of 24 February 2021 or shortly after or, at least, by the next Board meeting in April was serious, it became more so as occasions arose on which the Board considered the issue of the continuing transformation that involved Mr Hollingworth. This was especially so when Ms Cover contemplated procuring the sixth contract and then even more markedly when negotiations as to its terms had been completed and it was on the brink of execution. The imperative duty to inform the Board of this proposed contract before it had been agreed, in light of the Board’s action item of September, the issues with the budget overrun, the conversation with Dr Rayner and its extraordinary scale when compared to prior Hollingworth contracts, was so obvious as to make a finding that this failure to inform the Board was part of a pattern of conduct that leads inevitably to the conclusion that the only plausible explanation for non-disclosure of the Minister’s letter, Dr Rayner’s warning and the procurement itself was intentional concealment for the purpose of avoiding, if possible, the risk that the Board might prevent the contract from eventuating. This risk became all the more likely had the Board been aware of the actual terms of the sixth contract in respect of the very large and highly questionable payment in advance. 446. In summary: Ms Cover had an independent responsibility, which she failed to fulfil, to bring the Minister’s February 2021 letter to the Board’s attention; the proposal to proceed with the fifth contract with Mr Hollingworth should have been disclosed to the Board in light of the Minister’s letter, to give it the opportunity to consider whether the proposal was appropriate; the proposed expenditure on a sixth contract for two years with Mr Hollingworth for $4.5 million dollars (exceeding by a considerable margin the entire expenditure on the four contracts queried by the Minister) was a substantial proportion of the CIT’s operational budget, then in deficit, proposed to be spent on one supplier; the contract was of a kind whose justification was previously queried by the Minister in writing and subsequently in strongly deprecating terms by his Chief of Staff; Ms Cover had a duty to bring the Chief of Staff’s views of the proposed contract to the attention of the Board; the budget papers should have specifically identified the proposed procurement as this expenditure was an important and material matter; the sixth contract proposed a substantial payment in advance which any public official in Ms Cover’s position would or should have realised entailed a substantial departure from conventional governmental (and commercial) practice and which constituted a substantial departure from the proposal upon which the GPB had advised; the financial risk arising from the payment of such a substantial sum in advance and the reputational risk to CIT were the terms of this contract to have become public – and, one way or another, this was bound to occur – was considerable; had the Board been aware of this contract, it was bound by virtue of its statutory responsibilities to have brought it to the Minister’s attention; and there was a substantial likelihood that the Board would not have approved the contract. Ms Cover’s duty of informing the Board required her to have brought the proposed procurement to the Board’s attention before the procurement was commenced and even more so when its terms were settled and before it was executed. 447. The progressive failure to consult the Board cannot reasonably be regarded as an oversight or a misjudgement: any reasonable CEO must have known that consulting with the Board was not only desirable but necessary. Ms Cover agreed in her evidence that the Minister’s February 2021 letter and the procurement of the sixth contract should have been disclosed. As to the former, she claimed to have left the matter in the hands of Mr Sloan. However, she had an independent responsibility to ensure it was brought to the Board’s attention. In respect of the sixth contract, she claimed to have informed Mr Sloan about its scope and cost. Having carefully considered Ms Cover’s evidence, including the manner in which it unfolded and her demeanour, Mr Sloan’s evidence, the objective documentary material and the logic of events, I do not accept the truthfulness of her evidence on this matter. Furthermore, I accept the substance of Dr Rayner’s evidence that she warned Ms Cover of the Minister’s view of the proposed procurement of Mr Hollingworth, and I do not accept either Ms Cover’s denial that this was said or that, if it had been said, she had no recollection of it. I do not accept that she told Mr Sloan of the substance of Dr Rayner’s conversation. At all events, even had she done so, she had an independent responsibility to bring what amounted to the views of the Minister to the attention of the Board before proceeding with the procurement. 448. The question now requiring determination is whether this conduct amounted to corruption within the meaning of the Act. 449. The need to inform the Board, in particular, about the procurement and terms of the fifth and the sixth contracts and inform them of the substance of the Chief of Staff’s conversation that occurred at a pivotal juncture, and seek its approval before moving forward would have been appreciated by any public official in Ms Cover’s position and, I am satisfied, was fully understood by her. I am reasonably satisfied that this was not done because she deliberately decided not to do so. In coming to this conclusion, I am conscious of the fact that there is no evidence from which it is reasonable to infer any particular underlying motive. A number of possibilities are speculatively open but it is unnecessary to deal with them. Taking the evidence as a whole, including in particular Ms Cover’s testimony, I have concluded that no other plausible explanation is reasonably open except that, for whatever motive, these decisions were made to exclude the possibility or, at least, reduce the risk that the Board would not permit the procurement or the contract to proceed. 450. Ms Cover’s dealings concerning the sixth contract alone constituted a gross breach of trust. I am also reasonably satisfied that it was dishonest by the standards of ordinary people and known by Ms Cover to be dishonest in this sense. The consequence of her conduct was to give Mr Hollingworth a substantial financial gain at the cost of the Territory. This was not isolated conduct by Ms Cover but part of a pattern of concealment, commencing with how the Minister’s February letter was dealt with and the response to it and moving through the ensuing processes up to and including execution of the fifth contract. Almost certainly, the Board would not have permitted the fifth or the sixth contract (including their provision for substantial payments in advance) to have proceeded had any of the Minister’s letter, or the procurements for the fifth or the sixth contract been disclosed. In the result, Ms Cover’s conduct has badly affected the reputation of the CIT and led to substantial adverse financial consequences. 451. The misleading character of the executive response to the Minister that was attached to Mr Sloan’s letter of 5 March 2021, must have been calculated. It is plain that Ms Cover was aware of the matters disclosed and entertained the opinions expressed in the Hollingworth/Cover report at the time when the response was prepared. I have explained the sense in which the response was misleading. It was formulated with the intention of misleading the Minister as to the true position and constituted a gross breach of trust. Supressio veri, expression falsi. 452. The task of the Commission, having made these findings, is to consider whether they constitute corrupt conduct within the meaning of the Act. Under s 184 of the Act, the Commission cannot include in this report a finding that Ms Cover has engaged in corrupt conduct unless the corrupt conduct is serious corrupt conduct or systemic corrupt conduct. Serious corrupt conduct is defined in s 10 as “corrupt conduct that is likely to threaten public confidence in the integrity of government or public administration”. “Integrity” carries two major meanings: the first connotes moral rectitude; the second, organisational soundness or doing what is required or undertaken to be done. Section 11 defines systemic corrupt conduct as ‘instances of corrupt conduct that reveal a pattern of corrupt conduct in 1 or more public sector entities’. However, a finding about Ms Cover’s conduct that may be corrupt conduct but is not serious or systemic can be made as long as the conduct is not described as corrupt conduct. 453. As has already been explained, the notion of corrupt conduct itself requires at least proof of two components, one of the instances specified in s 9(1)(a) together with one of the instances specified in s 9(1)(b). The facts found here permit a gradation of possible conclusions as to the s 9(1)(a) instances. The failure to inform the Board of any of the identified matters, if done because Ms Cover was unaware of her obligation to inform, is a matter of competence and raises no issue of criminality. On the other hand, understanding and fulfilling the obligation to inform the Board of important matters is a fundamental responsibility of the CEO. The failure here was not trivial or insubstantial, but was of major significance, with serious consequences for the operations of the agency, and adverse financial and reputational consequences. It is an essential component of the Board’s ability to undertake its responsibilities that it is able to place complete trust in the CEO’s appreciation of the scope of the duty to disclose important information. Due governance of the CIT as a separate agency outside the direct control of government depended on the elements of its structure – of which the Minister, the Board and the CEO were the major formal elements – working cooperatively, with each being able to trust the others to perform their responsibilities with due care and diligence. Thus, considered only as a failure of competence, the conduct of the CEO in concealing from the Board matters in relation to the procurement of the fifth and sixth contracts could have constituted “reasonable grounds for dismissing, dispensing with the services of, or otherwise terminating the services of, a public official” within the meaning of s 9(1)(a)(iii). The lack of candour in the response forwarded to the Minister by the Chair on 5 March also constituted an independent instance of conduct within s 9(1)(a)(iii). Thus, as to both Ms Cover’s conduct in relation to her concealment of matters from the Board and her dealings with the Minister, both instances of Ms Cover’s conduct satisfy the first element of “corrupt conduct” under s 9(1)(a)(iii). 454. So far as the instances specified in s 9(1)(b) are concerned, I am satisfied to the requisite degree that Ms Cover’s conduct also constituted dishonest conduct within the meaning of s 9(1)(b)(i) and, also, constituted “a breach of public trust” within s 9(1)(b)(ii)(A) and/or “the misuse of information or material acquired … in the course of performing … [her] official functions” within s 9(b)(ii)(B). As outlined above, these categories of misconduct comprised each of the misleading reply of 5 March 2021 to the Minister’s letter, and deliberately concealing information that was important to enable the Board to perform its function of ensuring, as far as practicable, that the CIT operated in a proper, effective and efficient way (vide ss 77 (1)(c) and 84(1)(c) of the FM Act), in order to avoid the risk that the Board might disapprove of the procurements of the fifth and sixth contracts, by misusing information (by concealment) about the procurements of Mr Hollingworth’s that should have been disclosed to the Board. In the circumstances, Ms Cover was obliged to disclose to the Board the Minister’s letter, the information conveyed by Dr Rayner, the proposal for the procurement of the fifth contract, the proposal for the procurement of the sixth contract, the procurements being undertaken of these contracts and the proposed contracts themselves before execution. Her failure to do so in respect to all or any of these matters comprised conduct within s 9(1)(b)(i) and also s 9(1)(b)(ii)(A) and (B). 455. I am satisfied to the requisite degree of certainty that Ms Cover, in breach of her duty of disclosure, intentionally concealed from the Board the matters referred to in order to avoid or reduce the risk that the Board may have disapproved of the transactions. Two possible situations need to be considered. The first is that Ms Cover was unsure about whether her duty to disclose important matters to the Board included the matters identified but decided against doing so because she was concerned that bringing the information forward carried the risk that the Board would review the desirability of retaining Mr Hollingworth’s services and decline to permit further contracts or only permit limited and more defined work. This would amount to a reckless breach of public trust within the meaning of s 9(1)(b)(ii)(A). The second is that Ms Cover knew the information should have been conveyed to the Board but decided not to do so to avoid the risk of such a review and outcome. This would also amount to a breach of public trust within the meaning of s 9(1)(b)(ii). I consider to the requisite degree of certainty that Ms Cover was aware that she was duty bound to disclose each of the Minister’s letter, the fifth procurement and contract, the sixth procurement, the substance of the conversation with Dr Rayner and the sixth contract, including (in relation to the contracts) the provision for payments in advance and decided not to disclose in order to avoid, if she could, a consideration by the Board or the Minister of the desirability of continuing contracts with Mr Hollingworth. This amounts to deliberate concealment and, although it represents the most serious conclusion about the conduct in question, I am satisfied to the relevant standard of proof that it is completely justified. Put otherwise, it was designed to convey to the Board that no transactions involving Mr Hollingworth were envisaged or underway that needed to be brought to their attention. In short, it involved conduct that was all or any of being not honest within the meaning of s 9(b)(i), constituted a breach of public trust within the meaning of s 9(1)(b)(ii)(A) and a misuse of information acquired in the course of performing her official functions. It also resulted in a substantial benefit for Mr Hollingworth. 456. The integrity of the legal frameworks that provide for governance of public entities such as the CIT, depends on the due performance of their responsibilities by the officials who are charged with its management including, in particular, the CEO. Her corrupt conduct adversely impacted the exercise by the Board of its supervisory function (as provided by s 77(1)(c) of the FM Act) in connexion with the program of organisational change of which a major part at considerable cost was the procurement of the Hollingworth contracts. Accordingly, this conduct was “likely to threaten public confidence in the integrity of government or public administration”. It follows that Ms Cover was guilty of serious corrupt conduct within s 10 of the IC Act.

I certify that the preceding one hundred and seventy-five [175] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: