D'Amore v Independent Commission Against Corruption - [2012] NSWSC 473 - NSWSC 2012 case summary — Zoe

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D'Amore v Independent Commission Against Corruption

[2012] NSWSC 473

Supreme Court of NSW|2012-04-02|Before: McClellan CJ

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Source facts

Court

Supreme Court of NSW

Decision date

2012-04-02

Before

McClellan CJ

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

ster for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 (1999) 46NSWLR 55 Weal v Bathurst City Council [2000] NSWCA 88 Wood v R [2012] NSWCCA 21 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) Category: Principal judgment Parties: Angela D'Amore (Plaintiff) Independent Commission Against Corruption (Defendant) Representation: Counsel: B W Walker SC/R R Tripodi (Plaintiff) J T Gleeson SC/A M Mitchelmore (Defendant) Solicitors: Thompson Eslick Solicitors (Plaintiff) Crown Solicitor (Defendant) File Number(s): 2011/138619

[2]

Judgment 1HIS HONOUR: The plaintiff, Ms Angela D'Amore, was the subject of an investigation and Report by the Independent Commission Against Corruption (ICAC). The Report was published in December 2010 and made findings of "corrupt conduct" in respect of the plaintiff under s 13 of the Independent Commission Against Corruption Act 1988 ("the Act"). 2The plaintiff seeks a declaration that the defendant's Report, and the defendant's findings of corrupt conduct in relation to the plaintiff, were not made in accordance with law and are void for jurisdictional error. 3The plaintiff was a member of the Legislative Assembly of the New South Wales Parliament. As such, she was entitled to engage staff to assist her in her electorate office and, when Parliament was sitting, she was entitled to engage a temporary staff member to work in the electorate office in lieu of a full-time officer who would assist her at Parliament House. This arrangement is referred to as the provision of "sitting day relief officers" to work at Parliament House. The sitting day relief entitlement was introduced by the Parliamentary Remuneration Tribunal ("the Tribunal") in July 2006. 4The allegations which were investigated by the Commission were that Karen Harbilas and Agatha La Manna (neither of whom were full-time officers) worked at Parliament House as sitting day relief officers for the plaintiff in October-November 2006 and May-June 2007 respectively, and were instructed or authorised by the plaintiff to falsely represent on sitting day relief claim forms that David Nicoletti, the plaintiff's Senior Electorate Officer, had worked at Parliament House while Ms Harbilas and Ms La Manna worked at the plaintiff's electorate office at Five Dock. It was alleged that the plaintiff had signed the claim forms knowing that they contained false representations made by Ms Harbilas and Ms La Manna. The conduct of the other persons involved was also investigated but only the plaintiff has brought proceedings. 5The Commission's findings are recorded in the Report's summary of investigations and results (Report at 5). They were as follows: In October 2006, Ms D'Amore engaged Ms Harbilas to work at Parliament House on sitting days as a sitting day relief officer. The Commission found that Ms D'Amore, knowing that Ms Harbilas was not entitled to receive payment from the sitting day relief allowance unless she worked at the electorate office when Ms D'Amore's electorate officer worked at Parliament House, instructed Ms Harbilas to complete a claim form to falsely indicate that Mr Nicoletti had worked at Parliament House on the relevant days. Ms Harbilas completed two claim forms in this false manner, which related to six sitting days during the period from 24 October 2006 to 26 October 2006, and from 14 November 2006 to 16 November 2006, and received payments from Parliament of around $1,500, to which she was not entitled. In May 2007, Ms D'Amore engaged Ms La Manna to work as a sitting day relief officer at her electorate office. The Commission found that on or prior to 1 June 2007 Ms D'Amore decided that Ms La Manna would work at Parliament House for the last 12 sitting days of the parliamentary session, knowing that this arrangement did not entitle Ms La Manna to receive sitting day relief payments. Ms D'Amore instructed or authorised Ms La Manna to complete three claim forms to falsely indicate that Mr Nicoletti had worked at Parliament House on the 11 sitting days that the evidence shows Ms La Manna had worked at Parliament House. Ms La Manna completed three claim forms in this manner and received payments of around $3,000 from Parliament to which she was not entitled. 6The Commission found that the plaintiff and Ms La Manna had engaged in corrupt conduct in relation to their involvement in obtaining sitting day relief payments. No findings of corrupt conduct were made in relation to Mr Nicoletti or Ms Harbilas. 7The plaintiff submitted that, in making its findings, the ICAC exceeded its statutory powers. Specifically, the plaintiff submitted that the ICAC's finding that the plaintiff had engaged in corrupt conduct was made without any evidence, or at least any rationally probative evidence, that she knew that the conditions of the sitting day relief entitlement had not been met. 8The ICAC is constituted under s 4(1) of the Act as a corporation. Section 2A of the Act states that the principal objects of the Act are: (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body: (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption. 9In exercising the functions and powers so conferred, the ICAC must "regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns": s 12. It is also to "direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct": s 12A. 10Section 13 of the Act sets out the ICAC's principal functions, which include, in s 13(1)(a), the power: to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that: (i) corrupt conduct, or (ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur, 11The ICAC may conduct an investigation on its own initiative or on a complaint, report or reference being made to it: s 20(1). If a matter is referred to the ICAC by both Houses of Parliament, it is required to investigate that matter: s 13(1)(c). 12Section 13(2) of the Act requires the ICAC to conduct its investigations with a view to determining, among other matters, "whether any corrupt conduct, or any other conduct referred to in subsection (1)(a), has occurred, is occurring or is about to occur". In undertaking an investigation, the ICAC is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate: s 17(1). French CJ considered that the presence of a similar provision in legislation relating to the Consumer Trader and Tenancy Tribunal indicated that the Tribunal was "able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law": Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [15]. 13The provisions of Divisions 2, 3 and 4 of Part 4 of the Act confer broad powers on the ICAC with respect to the conduct of its investigations, including the power to compulsorily obtain information (s 21) and documents (s 22), and the power to enter public premises (s 23). If it is satisfied that it is in the public interest to do so, the ICAC may conduct compulsory examinations, which are to be held in private: s 30(1), (5). Alternatively, the ICAC may conduct a public inquiry: s 31. In both instances, s 35(1) empowers ICAC to summon a person to appear and give evidence or produce documents. 14The ICAC may authorise a person who appears at an examination or inquiry to have legal representation: s 33. In the case of a public inquiry, a person required to attend is entitled to be informed, before or at the time that he or she is required to appear, of the general scope and purpose of the inquiry and the nature of the allegation or complaint being investigated: s 31(6). If the person is legally represented, his or her representative is permitted, with the ICAC's leave, to cross-examine any witness on any matter that the ICAC considers relevant: s 34(1). The legal practitioner appointed to assist the ICAC in an inquiry has the same entitlement. 15Section 13(3) confers on the ICAC: (a)the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and (b)the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations. Section 13(5) enumerates three examples of the findings and opinions which the ICAC may respectively make and form under s 13(3), including, in s 13(5)(c), "findings of fact". 16Under s 74(3) of the Act, the ICAC is required to prepare a report on matters in relation to which it has conducted a public inquiry. The contents of such a report are prescribed in s 74A, which provides: (1) The Commission is authorised to include in a report under section 74: (a) statements as to any of its findings, opinions and recommendations, and (b) statements as to the Commission's reasons for any of its findings, opinions and recommendations. (2) The report must include, in respect of each "affected" person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following: (a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence, (b) the taking of action against the person for a specified disciplinary offence, (c) the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official. 17Section 74B(1) of the Act limits the scope of findings and recommendations which may be included in a report; it provides that the ICAC is not authorised to include in a report a statement as to: (a)a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or (b)a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).

[3]

18Under s 7(1) of the Act, conduct will constitute "corrupt conduct" if it falls within the description of corrupt conduct in either or both of sub-sections (1) and (2) of s 8, and is not excluded by s 9. 19Section 8 describes a range of conduct that will, for the purposes of the Act, constitute corrupt conduct. In the present case, the following conduct described in s 8 is of particular relevance:

"any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority" (s 8(1)(a));
"any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions" (s 8(1)(b));
"any conduct of a public official or former public official that constitutes or involves a breach of public trust" (s 8(1)(c)); and
under s 8(2), "any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve", relevantly, "official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition)" (s 8(2)(a)) or fraud (s 8(2)(e)). 20Section 9(1) of the Act operates as a limitation on the scope of s 8. It provides that despite s 8, conduct does not amount to corrupt conduct "unless it could constitute or involve", relevantly for present purposes, a criminal offence (s 9(1)(a)) or, in the case of conduct of a Minister of the Crown or a member of a House of Parliament, a substantial breach of an applicable code of conduct (s 9(1)(d)). 21The power to make a finding that a person has engaged in or is engaging in corrupt conduct of a kind described in s 9(1)(a)-(d) is constrained by s 13(3A) of the Act. The latter section provides that the ICAC may make such a finding "only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph". 22In relation to conduct of a Minister of the Crown or a member of Parliament, s 9(4) creates a limited "carve-out" from the operation of s 9(1). It provides that in respect of Ministers and members of Parliament, conduct which falls within the description of corrupt conduct in s 8 "is not excluded by this section if it is conduct that would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into serious disrepute". Although this "carve-out" is not subject to the limitation in s 13(3A), it is expressly subject to s 9(5), which provides: Without otherwise limiting the matters that it can under section 74A(1) include in a report under section 74, the Commission is not authorised to include a finding or opinion that a specified person has, by engaging in conduct of a kind referred to in subsection (4), engaged in corrupt conduct, unless the Commission is satisfied that the conduct constitutes a breach of a law (apart from this Act) and the Commission identifies that law in the report. 23Aside from the restriction in s 74B, s 13(4) states that "section 9(5) and this section are the only restrictions imposed by this Act on the Commission's powers under subsection (3)". 24The proceedings in this Court are not a form of appeal from the decision of the ICAC. The Court's jurisdiction is confined to determining whether the ICAC has acted within the law as provided by the Act. 25The plaintiff does not submit that on the facts found by the ICAC there was any error in the s 9 finding or that s 8 did not apply. This was the difficulty which was resolved in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. In Greiner, the Court of Appeal held that the ICAC had erred in failing to apply objective standards for the dismissal of a member of Parliament. The failure to apply an objective standard meant that the ICAC's finding of corrupt conduct was affected by jurisdictional error: Greiner at 147 (Gleeson CJ). 26In the present case, the plaintiff submitted that the ICAC acted without jurisdiction by making findings for which there was no evidence, or alternatively, no rationally probative evidence.

[4]

27The Report contains a summary of the sitting day relief entitlement and the context in which it was introduced (at page 9): In 2006, Government and Opposition Members, including Ms D'Amore, were entitled to the services of two full-time electorate officers. In preparation for its 2006 Determination ('the Determination'), the Tribunal undertook a comprehensive review of staffing levels available to members. The Speaker and individual Members made submissions to the Tribunal, in which they argued for a third full-time staff member. On 13 July 2006, the Tribunal determined that, instead of providing a third staff member, funds would be made available to Members to provide for a temporary officer in the electorate office on occasions when the Member would bring one of their electorate officers to Parliament House on sitting days only. The funds allocated for this purpose were to be the equivalent of the salary of a senior electorate officer for a period of 61 days per annum. The Tribunal determined that the funds were not to be used for any other purpose. This became known as the sitting day relief entitlement. In the case of Ms D'Amore, the effect of the Determination was that she could claim the sitting day relief entitlement in order to pay temporary staff who worked at the electorate office on occasions when she attended Parliament House on sitting days with one of her electorate officers, namely Mr Nicoletti, Ms Turner or Ms Ford. 28As is noted at page 10 of the Report, it was alleged that on six days in October and November 2008, Ms Harbilas worked as a sitting day relief officer for the plaintiff, and that in June 2007, Ms La Manna worked for the plaintiff in the same capacity. It was further alleged that:

both women [Ms Harbilas and Ms La Manna] had falsely represented, on sitting day relief claim forms, that Mr Nicoletti had worked at Parliament House and that they had worked at the electorate office, as their entitlement to claim remuneration depended upon them working at the latter location, and
they had done so in order to obtain payments from Parliament to which they knew they were not entitled. 29The Report also listed allegations in respect of the plaintiff (at 10), which were that she: (i)knew that the entitlement to sitting day relief payments depended on the sitting day relief officer working at the electorate office when the electorate officer worked at Parliament House on sitting days; (ii)possessed of that knowledge, instructed or authorised Ms Harbilas and Ms La Manna to falsely represent on claim forms that Mr Nicoletti had worked at Parliament House; (iii)signed the Member's Declaration on the sitting day relief claim forms knowing that the forms contained false representations and, in doing so, falsely certified that the conditions of sitting day relief entitlement had been met; (iv)engaged in the conduct described in (ii) and (iii) with the intention of causing parliamentary officers to approve the claims for payment under the false belief that the conditions of the entitlement had been met; and (v)caused Parliament to make payments of sitting day relief on the strength of the misrepresentations contained in the forms. 30Counsel for the ICAC provided a helpful summary of the allegations made in the Report, the material in support of the allegation, and the material that contradicted it. I am satisfied that, viewed as a summary, it is accurate, and I have accordingly incorporated it in these reasons. It reads as follows: Allegation Material in support Material against The plaintiff knew that entitlement to sitting day relief payments depended on the sitting day relief officer working at the electorate office on sitting days, while the electorate officer attended Parliament House. Email dated 21 July 2006 from Mr McGill, Financial Controller of Legislative Assembly, to all Members, including the plaintiff, attaching the Tribunal's Determination; the email was sent to the plaintiff's account and was opened on the afternoon it was sent: Rep 17. The plaintiff accepted that she probably opened both the email from Mr McGill and Ms Schofield, but asserted that she did not recall reading them or the attachments about sitting day entitlements: Rep 17-18. Memorandum dated 18 August 2006 from Ms Schofield, then Manager of Corporate Services at Parliament House, attaching a draft policy and administrative practices document [regarding] sitting day relief, which was emailed to all Members, including the plaintiff. The draft practices document included material relating to sitting day relief and funding the purchase of additional computers. The email was sent to the plaintiff's email account and was opened on 19 August 2006: Rep 18-19. The plaintiff contended that her phone call with Ms Schofield may have been unconnected with her receipt of the memo of 18 August: Rep 19. Telephone call from the plaintiff to Ms Schofield on 21 August 2006, in which the plaintiff raised the issue of funding for the purchase of a computer for use in her parliamentary office. According to Ms Schofield, the conversation took place "in the context of sitting day relief": Rep 18-19. The plaintiff had an interest in industrial matters, and experience in industrial issues, including awards: Rep 17. Mr Nicoletti, the plaintiff's electorate officer, gave evidence that securing additional staff was an important matter for the plaintiff: Rep 17. The plaintiff's signature on the actual form which on its face disclosed the nature of the entitlement. Evidence of Ms Harbilas of an instruction consistent with the plaintiff understanding the nature of the entitlement. Possessed of that knowledge, the plaintiff instructed or authorised Ms Harbilas and Ms La Manna to falsely represent on claim forms that Mr Nicoletti had worked at Parliament House. Evidence of Ms Harbilas that she was so instructed. The plaintiff denied giving any such instruction and said that she did not read the forms which she signed: Rep 16. Evidence of Ms La Manna that she would not have provided false forms for the plaintiff's signature unless she knew she had her authority to do so: Rep 31, 33. Ms La Manna sought to qualify her concessions by denying that she was so instructed: Rep 31. The plaintiff signed the Member's Declaration on the sitting day relief claim forms knowing that the forms contained false representations and, in doing so, falsely certified that the conditions of the sitting day relief entitlement had been met. The structure of the form, with the "Member's Declaration", attesting to the nominated electorate officer having worked at Parliament House, immediately above the place for signature: Rep 21. The plaintiff accepted that she signed the forms but said that she did not remember reading any part of them when she signed, including the Member's Declaration: Rep 20-22. When the forms were presented for the plaintiff's signature, Ms Harbilas and Ms La Manna had filled in Mr Nicoletti's name as the electorate officer working at Parliament House, in the centre of the form: Rep 21-22. The plaintiff engaged in the conduct described in (ii) and (iii) with the intention of causing parliamentary officers to approve the claims for payment under the false belief that the conditions of the entitlement had been met. Inference reasonably drawn from steps (ii) and (iii). The plaintiff denied she did so. The plaintiff caused Parliament to make payments of sitting day relief on the strength of the misrepresentations contained in the forms. Reasonable inference from the conduct found to have been engaged in above. The plaintiff denied she intended this to occur, although could not dispute that on the face of the form she signed this was the likely and probable consequence. Ms Tuttlebee, Supervisor of Personnel Administration at Parliament House, approved the claim forms once she was satisfied that they had been checked by Ms Zai and Ms Adie, officers under her supervision: Rep 24. Ms Zai and Ms Adie checked the forms in accordance with instructions to make sure the Member had signed, the person named was in fact an electorate officer, the days claimed were sitting days and the appropriate rate of pay had been selected: Rep 24.

[5]

31The ICAC did not accept that the plaintiff's evidence was reliable. The Report says of her (at 16): [The plaintiff] was often unwilling to answer difficult questions candidly, and inclined to evade questions by using carefully chosen words that were intended to place her version of events in a better light. At some points in her evidence, Ms D'Amore simply refused to provide responsive answers to the questions, despite being repeatedly asked to do so. She did not impress as a reliable witness. 32A finding with respect to credibility is the function of a primary decision-maker par excellence: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] (McHugh J). It was open to the ICAC to make adverse findings in relation to the plaintiff's credibility, having seen the plaintiff and other witnesses give evidence. Nothing entitles this Court to conclude that the ICAC exceeded its powers when reaching its credit and demeanour-based conclusions. 33In any event, the ICAC's findings were not based merely on the view it took as to the reliability of the plaintiff's evidence. The ICAC attached importance to two emails that were sent to the plaintiff. The first email, sent in July 2006, was with respect to the Tribunal determination. The second email, sent in August 2006, informed members of the draft policy in relation to sitting day relief and the purchase of new computers. The plaintiff admitted that she probably opened these emails but said she had no recollection of reading them. There was evidence indicating that both emails had been accessed from the plaintiff's email account. In addition, the defendant considered that a telephone call that took place between the plaintiff and Elaine Schofield (then the Manager of Corporate Services at Parliament House) on 21 August 2006 evidenced the plaintiff's awareness of the latter of the two emails. The defendant concluded that the plaintiff knew of the conditions of sitting day relief entitlement based on the emails and the phone call, together with the plaintiff's knowledge of and experience in industrial relations, her knowledge that a submission had been made to the Tribunal for additional staffing, and her interest in obtaining an additional staff member on parliamentary sitting days (Report at 16-17). The defendant also considered it to be inherently implausible that a person who signed the claim form would not have noticed the Member's Declaration and thereby have been able to assess the accuracy of the information on the form (Report at 23). The evidence on which the defendant relied is the subject of more detailed discussion later in these reasons. 34In so far as the ICAC found that the plaintiff had told Ms Harbilas and Ms La Manna to put Mr Nicoletti's name on the claim forms for sitting day relief which they submitted, The ICAC had evidence directly to this effect from Ms Harbilas. Although in her initial interview with ICAC investigators she initially denied having worked at Parliament House on the days in question, Ms Harbilas admitted to the contrary in her compulsory examinations, and at the public inquiry, and gave consistent evidence on those occasions about what she could recall of the conversation in issue. On the latter occasion, she was cross-examined by the plaintiff's counsel. Relevantly, the plaintiff denied instructing Ms Harbilas to write Mr Nicoletti's name on the claim form (Report at 16). 35The ICAC considered that "the crucial dispute is whether Ms Harbilas is to be believed in her evidence as to the instruction Ms D'Amore gave her when she completed the claim form" (Report at 12). The Report continued: The issues that arose required the Commission to give careful attention to the way in which the two opposing witnesses testified and to their demeanour generally. The Commission weighed its impressions as to demeanour against the probable facts. It also examined whether the disputed evidence was consistent with the incontrovertible facts, the facts which were not in dispute, and other relevant evidence in the case. The probabilities, and overall consistency, with other relevant evidence which was led, were taken into account. 36The ICAC accepted that the plaintiff's counsel had made some justifiable criticisms of Ms Harbilas' testimony. Nonetheless, it accepted that Ms Harbilas had asked the plaintiff whose name she should put in the box on the form which asked for the name of the electorate officer working at Parliament House, and that the plaintiff had told her to put Mr Nicoletti's name in that box. The ICAC considered that although she could not remember the precise detail of the conversation, Ms Harbilas had an independent and accurate recollection of the gist of it, and that she knew that by putting Mr Nicoletti's name in the box she "was doing the wrong thing" (Report at 13). 37In reaching this conclusion, the ICAC accepted, consistent with the statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362, that the seriousness of the finding and the gravity of the consequences required "clear or cogent or strict proof" in order to be made out on the balance of probabilities (Report at 13). After weighing the inconsistencies, uncertainties and other defects in Ms Harbilas' evidence, to which the plaintiff's counsel drew its attention, the ICAC considered that Ms Harbilas' evidence as a whole met the standard in Briginshaw. 38The ICAC also took into account its findings as to the respective credibility of Ms Harbilas and the plaintiff. Ms Harbilas impressed ICAC "as a witness who was genuinely telling the truth", and it was "satisfied that her version of events, after she admitted that she worked at Parliament House, is entirely consistent with the known and probable facts" (Report at 23). By contrast, the ICAC had concerns about the manner in which the plaintiff gave evidence, which have been outlined above. 39Unlike Ms Harbilas, Ms La Manna denied that she had received any instruction from the plaintiff as to how to fill out the sitting day relief forms. As the ICAC noted in its Report, however, Ms La Manna eventually accepted that she knew she had falsely represented, on the first two of the three claim forms she submitted in June 2007, that Mr Nicoletti had worked at Parliament House, and that she presented these to the plaintiff for her signature. She further stated that she would not have done anything to mislead the plaintiff and agreed that she would not have given the plaintiff a false form to sign unless she was satisfied that the plaintiff wanted her to do so (Report at 30-31). 40In light of the evidence, the ICAC inferred that it was probable that the plaintiff had instructed Ms La Manna, in the same way as she had instructed Ms Harbilas, to falsify the forms. The Report reads (at 33): For the reasons already given, the Commission is satisfied that Ms D'Amore knew the conditions that had to be met before sitting day relief could be properly claimed. In light of this finding, the Commission is satisfied that Ms D'Amore knew that in order for Ms La Manna to be paid for working at Parliament House on the June 2007 sitting days, the relevant claim forms would have to falsely represent that an electorate officer had worked at Parliament House and that Ms La Manna had worked at the electorate office. The Commission is satisfied that Ms D'Amore knew this on or prior to 1 June 2007, when she decided that Ms La Manna would work at Parliament House on the remaining sitting days of the parliamentary session. In these circumstances it is probable that Ms D'Amore instructed or authorised Ms La Manna to falsify the forms in this manner. In addition, Ms La Manna admitted that she would not have provided false forms to Ms D'Amore for her signature unless she knew that had her authority to do so. The Commission accepts this evidence. It is consistent with her evidence that she respected and admired Ms D'Amore. In light of her unwillingness to compromise Ms D'Amore's reputation, which was not the subject of any dispute, it is improbable that Ms La Manna would have caused Ms D'Amore to make false declarations on three June 2007 claim forms unless Ms D'Amore had authorised her to do so. This conclusion is consistent with the finding that Ms Harbilas was instructed by Ms D'Amore to write Mr Nicoletti's name on the first form.

[7]

The plaintiff's submissions 44The plaintiff's submissions focussed in particular on ss 13(3A) and 9(5) of the Act. Reference has already been made to the statutory framework earlier in these reasons, but it is convenient to describe its operation here. Section 8 defines corrupt conduct for the purposes of the Act. Section 9(1) further restricts the definition of corrupt conduct. It provides that despite the definition of corrupt conduct in s 8, conduct does not amount to corrupt conduct unless it could constitute or involve a criminal offence, a disciplinary offence, reasonable grounds for terminating the services of a public official, or, in the case of Crown Ministers and members of Parliament, a substantial breach of an applicable code of conduct. Section 13(3A) provides: The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9(1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph (emphasis added). 45Section 9(5) further provides, in respect of Crown Ministers and members of Parliament whose conduct fitting the description in s 8 would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into disrepute: Without otherwise limiting the matters that it can under s 74A(1) include in a report under s 74, the Commission is not authorised to include a finding or opinion that a specified person has, by engaging in conduct of a kind referred to in subsection (4), engaged in corrupt conduct, unless the Commission is satisfied that the conduct constitutes a breach of a law (apart from this Act) and the Commission identifies that law in the report (emphasis added). 46The plaintiff's primary submission was that the states of "satisfaction" referred to in ss 13(3A) and 9(5) are preconditions to the exercise of the Commission's jurisdiction. According to the plaintiff, in order for the Commission to be "satisfied" that the person under investigation has breached an identified law or engaged in conduct that constitutes or involves an offence, the person's guilt must be the Commission's "preferred inference". That there is evidence that merely relates to the person's guilt is not sufficient to enliven the power to make a finding of corrupt conduct or include such a finding in the Commission's report. Nor will evidence that is merely consistent with the person's guilt suffice, as it will equally provide a foundation for an inference consistent with innocence. The plaintiff argued that guilt can be the Commission's "preferred inference" only if there is evidence that, together with all other relevant matters, logically or rationally supports the drawing of an inference of guilt in preference to an inference that the person under investigation is innocent or not guilty. 47The plaintiff also submitted that it would be wrong for the decision-maker to invert the "onus of proof" or engage in circular reasoning. That is, it would be wrong for the Commission to begin its inquiry on the footing that the person under investigation has committed an offence or breached a law, and only then consider whether the evidence was sufficient to rebut that conclusion. The plaintiff submitted that, were this approach adopted, nothing would have logically compelled the decision-maker to prefer an inference of guilt to an inference that the person was not guilty, or even innocent. 48The plaintiff submitted, and it may be accepted, that guilt in the present context turns on whether the plaintiff knew when she signed the claim forms that she had not satisfied the conditions of the sitting day relief entitlement. Only in that case could she have committed the relevant common law offence of misconduct in public office, which involves a "wilful and not merely inadvertent" breach of public trust: Question of Law Reserved (No 2 of 1996) [1996] SASC 5674; (1996) 67 SASR 63 at 87 (Duggan J), quoting R v Dytham [1979] QB 722 at 727 (Lord Widgery CJ). 49The plaintiff submitted that where a jurisdictional fact is expressed in terms of the decision-maker's "satisfaction" about certain matters, as in the Act, the decision-maker's state of satisfaction is open to judicial review on at least two grounds. The first ground is that there is no evidence on which the decision-maker could satisfy him or herself that the matters set out in the legislation are true (the "no evidence ground"). The second ground is that the decision-maker has drawn irrational or illogical inferences to support a conclusion that the matters are true (the "irrationality ground"). In neither case could the decision-maker really be "satisfied", in the sense required by the Act, of the matters in question. As I discuss below, the latter ground of review is more controversial than the first, having its foundation in the various High Court migration cases cited by the plaintiff: see, eg, M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 85 ALJR 891; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165. 50The plaintiff submitted that the defendant exceeded its jurisdiction under the Act because it committed one or both of these jurisdictional errors. The plaintiff said that there was no evidence on which the defendant could be satisfied that the plaintiff knew of the conditions of the sitting day relief entitlement when she signed the claim forms or when she instructed members of her staff to fill out the forms (assuming she did so). The plaintiff also said that the defendant's process of reasoning towards the conclusion that she did have the requisite knowledge was illogical or irrational. The plaintiff submitted that because the defendant's satisfaction was, in either case, based on a "misconstruction of one or more of the matters" set out in the Act (namely the requirement of dishonesty, without which there could be no criminal offence or breach of a law), the powers to make a finding of corrupt conduct and to include that finding in a report did not arise: M70 at [59] (French CJ). 51The factual arguments on which the plaintiff relied to make good these submissions are lengthy and detailed. They can be summarised as follows:

The evidence of Ms Harbilas was not rationally probative evidence. It had no bearing on the question whether the plaintiff herself knew that the conditions of the sitting day relief entitlement had not been met when she signed the forms or issued instructions about whose name should go on the form. The plaintiff conceded that Ms Harbilas' evidence may have been relevant to the wider ICAC inquiry into the sitting day relief controversy, but nevertheless suggested that the time spent parsing Ms Harbilas' evidence may have distracted the defendant from the facts in issue as they concerned the plaintiff. In this regard, the plaintiff took issue with the importance the defendant apparently gave to Ms Harbilas' opinion that she "was doing the wrong thing" when she represented Mr Nicoletti as the electoral officer working at Parliament House on the relevant sitting days (Report at 15).
Further, Ms Harbilas' evidence did not provide a logical basis for a conclusion that the plaintiff instructed Ms Harbilas to falsely represent on the form that Mr Nicoletti was the electoral officer working at Parliament House on the relevant sitting days. The evidence did not reveal that the plaintiff knew that the form was asking for the identity of the electoral officer working at Parliament House on the relevant days. Nor did the evidence reveal that the form was before the plaintiff at the time Ms Harbilas asked the plaintiff whose name should go on the form. There was evidence from Ms Harbilas to suggest that the plaintiff may have been under the mistaken impression that the form was asking for the identity of the other second-grade electoral officer ("EO2"), who was in fact Mr Nicoletti. Relevantly, Ms Harbilas said in her testimony before the Commission: "I was told [by the plaintiff] to put David's name there because he was the other EO2" (T.60T.31). The defendant's Report did not address this evidence. In those circumstances, the defendant could not logically prefer the inference that the plaintiff directed Ms Harbilas to falsely fill out the form. The evidence left too much room for a different and less sinister conclusion, namely that the plaintiff misunderstood what the form was asking for.
Evidence that emails containing the Tribunal determination and the policy and administrative practices document were opened from the plaintiff's email account did not admit of a "preferred inference" - as opposed to a possible inference - that the plaintiff had actually read the attached documents. The possible inference that the plaintiff read the documents did not rise to a preferred inference merely by virtue of the plaintiff's general interest in industrial matters, her knowledge that a submission for extra staff had been made to the Tribunal, and her desire for an additional staff member on sitting days.
It was irrational to prefer an inference that the plaintiff's comment to Ms Harbilas that "it was a mistake" evidenced the plaintiff's knowledge that the conditions of the sitting day relief entitlement had not been met when the plaintiff signed the form or instructed Ms Harbilas in its completion (Report at 15). An equally or more likely inference was that the plaintiff was acknowledging, with the benefit of hindsight, an innocent mistake in the signing of the forms and the giving of the instruction.

[8]

The defendant's submissions 52The defendant submitted that the sections of the Act relied upon by the plaintiff do not create a jurisdictional fact the existence of which can be considered afresh by this Court. The defendant submitted that ss 13(3A) and 9(5) are "constraints" on the defendant's power to make findings of corrupt conduct, as distinct from preconditions to the exercise of jurisdiction. According to the defendant, the no evidence ground is the only relevant ground of review in these proceedings. The Court's sole task is to consider, as a question of law, whether there was evidence to support the factual findings made by the defendant: Kostas v HIA Insurance Services at [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ). So long as the material available to the defendant provided some basis for the conclusions reached, there was no jurisdictional error, even if the defendant's reasoning process was illogical or otherwise flawed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [89] (Mason CJ); L & B Linings Pty Ltd v Workcover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA). 53The defendant submitted that s 13(3A) merely reinforced the approach to findings of corrupt conduct under s 9(1)(a) that was set out in Greiner. In that case, Gleeson CJ said at 136C: [I]n determining whether conduct could constitute or involve a criminal offence, the Commissioner would be required to go through the following process of reasoning. First, he would be required to make his findings of fact. Then, he would be required to ask himself whether, if there were evidence of those facts before a properly instructed jury, such a jury could reasonably conclude that a criminal offence had been committed. 54According to the defendant, this statement of the effect of s 9(1)(a) is still good law, with s 13(3A) supplementing that section "by way of emphasis". The defendant submitted that the defendant's findings of fact unquestionably passed the second stage of the test in Greiner; that is, assuming the plaintiff had knowledge of the conditions of the sitting day relief entitlement at the time she signed the claim forms, a properly instructed jury could reasonably conclude that she had committed the criminal offence of misconduct in public office. It follows, said the defendant, that the only available ground of review in relation to the anterior finding of fact (the plaintiff's knowledge) is the no evidence ground. 55The defendant's submissions assume that ss 13(3A) and 9(5) do not import jurisdictional facts, which, according to the recent High Court decisions, might expose to judicial review the logic of the decision-maker's process of reasoning towards the conclusion that the facts constituting the offence existed. Rather, said the defendant, the states of satisfaction to which ss 13(3A) and 9(5) refer are formed by the Commission within its already existing jurisdiction to investigate corrupt conduct. 56The defendant acknowledged that the High Court migration cases on which the plaintiff relied appeared to treat a decision-maker's state of satisfaction as a jurisdictional fact. However, the defendant submitted that those cases arose in a different statutory context to the one now under consideration. According to the defendant, the concern underlying the Migration Act 1958 (Cth) is to ensure that the responsible Minister's decision to grant or refuse a visa is made on a logical and rational basis, in compliance with Australia's international legal obligations. The ICAC, on the other hand, does not directly grant, confer or alter rights; rather, its function is "to be an investigative body, finding facts and applying standards to them, to expose those findings to Parliament and the public for scrutiny, debate and action". The defendant submitted that given the difference of context, the use of the term "satisfaction" in ss 13(3A) and 9(5) of the Act is more confined than its use in the context of the Migration Act, and was not intended to create a jurisdictional fact. 57Notwithstanding the defendant's position on the jurisdictional fact issue, the defendant was prepared to meet the plaintiff's case at its highest and assume that illogicality is a ground of review under the Act. The defendant submitted, however, that this was a case where the plaintiff relied on the irrationality ground of review as a guise for "emphatic disagreement" with the conclusions drawn by the defendant: Applicant S20/2002 at [5], [9] (Gleeson CJ); Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J). The defendant submitted that the Commission had reasoned in a logical way towards the conclusions that the plaintiff knew the claim forms were inaccurately filled out when she signed them, and that the plaintiff had instructed Ms Harbilas and Ms La Manna to make representations on the forms that the plaintiff knew to be false. 58Counsel for the defendant emphasised the importance the defendant had attributed to circumstantial evidence tending to establish the plaintiff's knowledge of the conditions of the sitting day relief entitlement. Central to the defendant's reasoning was the evidence in relation to Ms Elaine Schofield's email dated 18 August 2006, which was sent to all members of Parliament and to which was attached the Legislative Assembly's policy and administrative practices document relating to sitting day relief. The defendant noted that the email had been accessed from the plaintiff's email account at 11.08 am on 19 August 2006. On 21 August, the Monday after Ms Schofield's email was accessed from the plaintiff's email account, the plaintiff telephoned Ms Schofield to discuss funding for the purchase of a computer for use in her parliamentary office. Ms Schofield's contemporaneous note of the conversation reads: Computers - the biggest question is access. If the person is coming to Parliament. Purchase LSA [Logistic Support Allocation] - computer. Wants to know whether can purchase another computer from LSA. Needs to have network connectivity. Needs to know ASAP so they can set it up and organize purchase. Does not have laptop - has desk PC that she uses herself. Laptops provided were useless. This is an issue that members want resolved, otherwise "ruckus" and reps to Speaker. If "you people" don't realise and resolve the issue. 59Relevantly, the penultimate paragraph of the policy and administrative practices document reads: Equipment at Parliament House - Members must utilise the existing computer and printer equipment. Members are provided with a desktop computer for use at Parliament House and a laptop computer. The Legislative Assembly has no funding for additional computer equipment in the short term. 60Counsel for the defendant submitted that the defendant reasoned, quite logically, that the concern the plaintiff raised in her discussion with Ms Schofield bore a significant enough relationship to the subject matter of the penultimate paragraph of the policy and administrative practices document to give rise to a preferred inference that the plaintiff had read that document. That the plaintiff raised the concern about computers so shortly after the email had been received into her account only bolstered the inference that the plaintiff was motivated to call Ms Schofield after reading the attached policy and administrative practices document. In this regard, the defendant noted that Ms Schofield was listed in the email as the person to whom feedback should be directed. Counsel for the defendant submitted that it was but a short step for the defendant to conclude that if the plaintiff had read the penultimate paragraph of the policy and administrative practices document, she had also read the parts of the document that addressed the sitting day relief entitlement. This was particularly so in light of the plaintiff's known interest in additional staffing, together with evidence from the plaintiff and Ms Schofield that the conversation between them "was in the context of sitting day relief". 61The defendant also drew the Court's attention to the claim forms themselves, which were said to have provided further reasons for the defendant to infer that the plaintiff was aware of the conditions of the sitting day relief entitlement when she signed the forms. Relevantly, in the bottom-left corner where the plaintiff was required to name, sign and date the form, the form reads: Member's Declaration: The electorate officer nominated above worked at Parliament House and temporary staff worked at my electorate office on the sitting days the relief staff entitlement has been claimed. 62In addition, the Commission considered that the box headed "Name of electorate officer working at Parliament House", being more or less in the centre of the form, and bearing Mr Nicoletti's name at multiple points in large block letters, would have been difficult not to notice (Report at 22). Counsel for the defendant submitted that the inferences arising from the forms were "so powerful in themselves" that the defendant was entitled to reject the plaintiff's denial that she had read them, without that rejection amounting to a reversal of the onus of proof. 63The defendant also submitted that it was not illogical for the defendant to have dwelled on the conflicting accounts of Ms Harbilas and the plaintiff, even though the ultimate fact in issue was the plaintiff's knowledge. The defendant said that the resolution of the conflict between the evidence of the two women was relevant to the allegations made against the plaintiff, one of which was that the plaintiff "instructed or authorised Ms Harbilas and Ms La Manna to falsely represent on the claim forms that Mr Nicoletti was at Parliament House". The plaintiff's position all along was that the conversation with Ms Harbilas, in which the plaintiff instructed her to fill out the forms a certain way, never took place. Ms Harbilas' position was that the plaintiff had instructed her to nominate Mr Nicoletti as the electoral officer present at Parliament House. Only by resolving the conflict could the defendant decide whether the plaintiff had so instructed Ms Harbilas - a question squarely within the defendant's remit. 64Further, the defendant submitted that it was not irrational for the defendant to be satisfied of the plaintiff's guilty knowledge in circumstances where there was evidence to suggest that the plaintiff thought the form was asking for the identity of the EO2, rather than the electoral officer at Parliament House. Counsel for the defendant submitted that it was open to the defendant to reject this "innocent explanation" because it could not be reconciled with the forms themselves, with the plaintiff's own insistence that the conversation with Ms Harbilas never took place, or with the other evidence tending to suggest that the plaintiff was aware of the conditions of the sitting day relief entitlement. 65Finally, the defendant submitted that it was not illogical or irrational for the defendant to take into account the evidence relating to whether the plaintiff had read Ms Schofield's email dated 19 September 2007. The defendant said that although the email was sent well after the plaintiff signed the claim forms, the plaintiff's implausible denial that she had read the brief email reflected poorly on her credit.

[9]

Jurisdictional facts: conclusion 66A jurisdictional fact is a fact that serves as a condition precedent to the decision-maker's exercise of jurisdiction. As the fact goes to jurisdiction, jurisdictional fact review is de novo review, in which the court determines for itself whether the fact exists: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [48] (Gleeson CJ, Gummow, Kirby and Hayne JJ), [60] (Gaudron J). The issue is whether the states of satisfaction to which ss 13(3A) and 9(5) of the Act refer are, as the plaintiff contends, jurisdictional facts. 67The term "jurisdictional fact" has received considerable judicial attention. It is a concept that is not without difficulty. As Spigelman CJ observed in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [39]: "The appellation 'jurisdictional fact' is a convenient way of expressing a conclusion - the result of a process of statutory construction". Perhaps because the term is shorthand for an interpretive conclusion, it is often used to refer to jurisdictional requirements of all kinds, be they objective or subjective: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at 243-244. In Timbarra, it was accepted that a "true" jurisdictional fact is objective, in the sense that its existence does not depend on the decision-maker's opinion or belief. The Chief Justice said at [42]: Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact (citations omitted). 68Some cases have applied the label "jurisdictional fact" to statutory formulations containing words involving the mental state of the primary decision-maker. In Eshetu, Gummow J said at [130]: "The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term". His Honour acknowledged that the precondition might consist of elements of opinion or belief. Gummow J noted that although use of the term jurisdictional fact is "an awkward one in such circumstances", it is not necessarily incorrect. Other cases in which a decision-maker's state of satisfaction has been referred to as a jurisdictional fact include Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [183] (Gummow and Hayne JJ); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]-[38] (Gummow and Hayne JJ); Commissioner of Police v Ryan [2007] NSWCA 196; (2007) 70 NSWLR 73 at [47] (Basten JA); and SZMDS at [20] (Gummow ACJ and Kiefel J), [102] (Crennan and Bell JJ). The description of decisions as to "satisfaction" as jurisdictional facts is consistent with the view that these decisions are not immune from judicial review, although their subjective nature will often limit the scope of review: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 (Dixon J); see also Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHC 6; [1977] AC 1014. 69A jurisdictional fact involving a state of mind will often involve an element of "evaluative judgment". French CJ referred to Eshetu and Graham Barclay Oysters with approval in M70, where the Chief Justice said at [57]: Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. 70The Chief Justice noted at [58] that the provision at issue in that case, s 198A(3)(a) of the Migration Act 1958 (Cth), is framed in language that indicates the need for "ministerial evaluative judgment". French CJ accepted at [59] that the section required the decision-maker "to form, in good faith, an evaluative judgment based upon the matters set out in s 198A(3)(a), properly construed". Gummow, Hayne, Crennan, Bell and Kiefel JJ also accepted that the matters set out in s 198A(3)(a) are jurisdictional facts requiring a good faith evaluative judgment that the matters set out in the section, properly construed, are true: at [109], [255]. It should be noted that although s 198A(3)(a) is not expressly conditioned on the Minister's "satisfaction" of the matters concerned, the section was interpreted by the High Court as impliedly requiring the formation of that mental state. 71In Ryan, Basten JA noted the evaluative nature of jurisdictional facts that are expressed in terms of a state of satisfaction. He observed that the element of evaluation involved will often present an obstacle to judicial review. His Honour said at [68]: The preconditions to the making of an order were formulated in terms of the satisfaction of the authorised justice which, although not unreviewable, involved the formulation of a view based upon an evaluative judgment of the circumstances as they appeared from the material before her which, in the absence of reasons demonstrating failure to apply correct legal principles, cannot readily be challenged. 72The present case differs in that the reasons of the primary decision-maker are before the Court. However, as will become apparent, ss 13(3A) and 9(5) of the ICAC Act also require the Commission to form an "evaluative judgment" that cannot easily be challenged on administrative law grounds. 73The Commission's power under s 13(3A) to make a finding that a person has engaged in or is engaging in corrupt conduct of a kind described in s 9(1)(a) is conditioned on its satisfaction that the conduct of the person under investigation constitutes or involves an offence. The Commission's power under s 9(5) to include a finding in its report that a Crown Minister or member of Parliament has engaged in corrupt conduct is conditioned on its satisfaction that the conduct, in addition to breaching an applicable code of conduct, constitutes a breach of an identified law. As the powers conferred by each of these sections are "expressly conditioned upon the formation of a state of mind by the decision-maker" (M70 at [57]), it may be accepted that the state of satisfaction referred to in each section is a jurisdictional fact of the kind described in Eshetu and M70. I do not accept the defendant's submission that the states of satisfaction referred to in ss 13(3A) and 9(5) are reached by the Commission within its already existing jurisdiction to investigate conduct falling within ss 8 and 9 of the Act. 74The question then becomes what is sufficient to enliven the power to make a finding of corrupt conduct or to include a finding of corrupt conduct in the Commission's report. Like s 198A(3)(a) of the Migration Act, the factual criteria set out in ss 13(3A) and 9(5) of the ICAC Act involve a "complex of elements": M70 at [57] (French CJ), quoting Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ). There is an element of fact-finding involved in assessing what the person under investigation actually did. There is an element of legal analysis involved in ascertaining the relevant criminal offences or law that was breached. There is also an element of evaluation involved in deciding whether the facts as found satisfy the elements of the criminal offence, or in deciding whether the facts as found are in breach of an identified law. Reasonable minds might reach different conclusions, particularly in the carrying out of the evaluative task. 75In those circumstances, the jurisdictional facts created by ss 13(3A) and 9(5) will be found to exist where the Commission forms, in good faith, an evaluative judgment that the person under investigation has committed an offence or breached an identified law, provided the Commission has properly construed relevant criteria such as the elements of the offence or the requirements of the identified law. The Commission will have failed to form the requisite state of satisfaction if it identifies a wrong issue, asks a wrong question, or ignores relevant material or relies on irrelevant material in a way that affects the exercise of power: M70 at [59] (French CJ), quoting Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). What ss 13(3A) and 9(5) do not permit by way of judicial review is for the court to substitute its own evaluative judgment as to whether an offence was committed, or a law was breached, for that of the Commission: M70 at [58] (French CJ). 76The state of satisfaction required by the legislation cannot be formed if there is no evidence to support it: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 118, 120. The defendant's decision as to its satisfaction is therefore open to review on the no evidence ground, and so much was accepted by counsel for the defendant. A more difficult question is whether the requisite state of satisfaction can be formed as the result of an irrational or illogical reasoning process.

[10]

Availability of review for irrationality in jurisdictional fact-finding under the ICAC Act: conclusion 77It has long been accepted that lapses of logic in the fact-finding process are not judicially reviewable if they occur within the decision-maker's jurisdiction. This is because decision-makers enjoy the latitude to "go wrong" within their jurisdiction. In Bond, Mason CJ said at [89]: Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place (emphasis in original). 78However, a line of High Court authority in the area of federal migration law has suggested that irrationality in jurisdictional fact-finding may amount to jurisdictional error: Applicant S20 at [54] (Gummow and McHugh JJ); SGLB at [37]-[38] (Gummow and Hayne JJ); SZMDS at [130]-[132] (Crennan and Bell JJ). In SZMDS, Gummow ACJ and Kiefel J (dissenting in the result only) referred to Mason CJ's statement in Bond and said at [38]: The apprehensions respecting "merits review" assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed (emphasis added). 79Their Honours continued at [39]: Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review, will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. 80Gummow ACJ and Kiefel J concluded that a decision will be infected with jurisdictional error where a condition precedent to the exercise of jurisdiction is expressed as a state of satisfaction and that state of satisfaction is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: SZMDS at [40]. If a decision displays these defects, "it will be no answer that the determination was reached in good faith": SZMDS at [40], quoting SGLB at [37]-[38] (Gummow and Hayne JJ). Crennan and Bell JJ also accepted at [132] that "illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding". 81Accordingly, after SZMDS, irrationality or illogicality in the finding of a jurisdictional fact may constitute jurisdictional error. The High Court has not decided whether irrational fact-finding more generally is an independent ground of review: SZMDS at [31] (Gummow ACJ and Kiefel J), [124] (Crennan and Bell JJ). It is unnecessary to decide that question in the present case, as the states of satisfaction required by ss 13(3A) and 9(5) of the Act are, as I have explained above, in the relevant sense jurisdictional facts. 82It must be kept in mind that SZMDS, like the other cases suggesting that irrationality in jurisdictional fact-finding constitutes jurisdictional error, arose in a federal context. The doctrine of jurisdictional error has constitutionally entrenched significance in that context because the constitutional writs of mandamus and prohibition, for which s 75(v) of the Constitution provides, are available only for jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Hayne and Kirby JJ). The centrality of jurisdictional error to federal judicial review was influential in the Court's reasoning in SZMDS: at [42] (Gummow ACJ and Kiefel J), [123] (Crennan and Bell JJ). 83Even so, the reasoning in SZMDS applies with equal force to an Act of the New South Wales Parliament. As the High Court observed in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [98]-[99], s 73(ii) of the Constitution, which requires that there be a body fitting the description "Supreme Court of a State", entrenches a minimum provision of judicial review at the State level. The plurality said at [55]: A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and ... also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error. 84It follows, for reasons analogous to those expressed in SZMDS, that irrationality or illogicality in jurisdictional fact-finding under a State statute may constitute jurisdictional error warranting the intervention of this Court. This conclusion makes it necessary to consider both of the grounds on which the plaintiff challenges the defendant's decision. It is appropriate to determine first whether the defendant's finding of jurisdictional fact was irrational or illogical, as the answer to that question will naturally supply an answer to the no evidence ground of review.

[11]

The irrationality ground: conclusion 85Notwithstanding the availability of irrationality as a ground of review in these proceedings, the authorities stress that a court should not lightly reach the conclusion that a decision-maker has irrationally made a finding of jurisdictional fact: SZMDS at [40] (Gummow ACJ and Kiefel J). In SZMDS, Crennan and Bell JJ observed at [131] that the test for irrationality is a narrow one: [T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another conclusion. 86Their Honours further observed at [135]: Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. 87A reviewing court must also bear in mind that the decision-maker's reasons "are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]. The concern is with the overall strength of the defendant's reasoning, not the adequacy or completeness of the defendant's expression of its reasons. 88Applying these principles, I am not persuaded that the defendant satisfied itself of the plaintiff's guilt by relying upon irrational or illogical reasoning. The defendant inferred from the circumstantial evidence, considered as a whole, that the plaintiff knew of the conditions of the sitting day relief entitlement when she signed the claim forms and instructed her staff in how the forms ought to be completed. The drawing of inferences from circumstantial evidence is a logical and familiar method of reasoning in forensic contexts: R v Hillier [2007] HCA 13; (2007) 228 CLR 618; Wood v R [2012] NSWCCA 21 at [51] (McClellan CJ at CL). The defendant positively satisfied itself of the plaintiff's guilty knowledge on the basis of the claim forms themselves, the emails relating to sitting day relief that were sent to the plaintiff and accessed from her account, the plaintiff's knowledge of and interest in industrial relations matters, and the statements the plaintiff made in her phone call to Ms Schofield. There was certainly a "logical connection" between these aspects of the evidence and the conclusions the defendant drew from them: SZMDS at [135] (Crennan and Bell JJ). It may have been irrational or illogical for the defendant to satisfy itself of the plaintiff's guilt on the basis of one of these circumstances taken on its own, but a rational person could conclude that the circumstances, taken together, demonstrated the plaintiff's knowledge of the conditions of the sitting day relief entitlement: see Hillier at [48]-[49] (Gummow, Hayne and Crennan JJ). 89To adapt what was said by Crennan and Bell JJ in SZMDS, logical or rational or reasonable minds might have disagreed, perhaps emphatically, with the defendant's ultimate inference. A logical or rational mind may have reached various conclusions favourable to the plaintiff: that a busy member of Parliament is unlikely to read emails relating to administrative matters unless directed to do so her by her staff; that a parliamentarian may not pay close attention to the pro forma documents she is routinely required to sign; and that the plaintiff called Ms Schofield on the Monday morning not because the plaintiff had read the email relating to sitting day relief, but because she had more general concerns about staffing and equipment. A rational person who reached these conclusions would probably not ultimately draw the inference that the plaintiff had committed the offence. But the fact that these conclusions may have been open on the evidence does not make the defendant's conclusion illogical or irrational or unreasonable. This was not a case where the decision-maker failed to reach the only conclusion properly open on the evidence. 90There is no force in the plaintiff's submission that the defendant acted irrationally in failing to take into account relevant considerations, namely the various distractions that were said to have prevented the plaintiff from learning about the conditions of the sitting day relief entitlement. As counsel for the plaintiff acknowledged, the defendant referred in its Report to the plaintiff's claim that she was "busy at the time she received the [sitting day relief] email". True it is that that was a reference in passing, without any detailed consideration of the various distractions cited by the plaintiff. "Simple advertence" does not qualify as genuine consideration: Weal v Bathurst City Council [2000] NSWCA 88 at [13] (Mason P). But it is clear from the Report as a whole, and the findings with respect to the plaintiff's credit in particular, that the defendant considered and rejected the plaintiff's explanation. The defendant's expressed reasons may have dealt with this aspect of the evidence inadequately, but as the High Court pointed out in Wu Shan Liang, that will not suffice to establish error. 91Nor is there any force in the plaintiff's submission that the defendant acted irrationally in inverting the "onus of proof", in the sense that it proceeded on the assumption the plaintiff was guilty of an offence and then put the plaintiff to proof. As noted above, the defendant formed the view on the basis of the claim forms and various other matters that the plaintiff had a case to answer. The defendant did not begin the inquiry with a preconceived view that the plaintiff was guilty of the offence of misconduct in public office. The most that can be said is that the defendant considered, by the time the plaintiff gave evidence, that the "evidential onus" had shifted to her. This was not unreasonable or irrational given the defendant's consideration of the circumstantial evidence. 92There is more substance in the plaintiff's complaint that the defendant does not appear to have considered the various statements made by Ms Harbilas which may have given the plaintiff the mistaken impression that the claim forms were asking for the name of the EO2, rather than the electoral officer present at Parliament House on the relevant sitting days. This evidence was clearly relevant to the extent that it supported an inference that the plaintiff's instruction was not fraudulent, but rather based on a misunderstanding. But even if it be assumed in the plaintiff's favour that the evidence was a mandatory relevant consideration, the absence of any reference to the evidence in the defendant's Report was not a failure to consider a relevant matter of an order that could have "materially affected" the outcome: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [15], [23] (Mason J). So much is clear from the adverse inferences the defendant drew from the forms themselves, the plaintiff's interest in obtaining an additional member of staff for sitting days, and the plaintiff's telephone conversation with Ms Schofield, none of which depended on Ms Harbilas' evidence. Moreover, as counsel for the defendant pointed out, the so-called "innocent explanation" did not tally with the plaintiff's evidence that she never had a conversation with Ms Harbilas about whose name should go on the form. These factors suggest that the defendant would not have reached a different decision if it expressly considered the "innocent explanation". Taking into account the defendant's reasoning process, which relied on the circumstances considered as a whole, it cannot be said that the defendant's oversight (if it be an oversight) deprived the plaintiff of the possibility of a successful outcome: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 at [64] (Sackville J). 93There remains the issue of whether the defendant illogically relied on Ms Schofield's email dated 19 September 2007 to support an inference that the plaintiff was guilty of the offence of misconduct in public office. Counsel for the defendant accepted that it would have been illogical for the defendant to treat the plaintiff's awareness of the 2007 email as making it any more or less likely that the plaintiff had knowledge of the conditions of the sitting day relief entitlement when she signed the claim forms. That concession was necessary: as a matter of logic, the likelihood that an event occurred cannot be affected by something that happens in the future. However, counsel for the defendant submitted that the defendant had considered the plaintiff's responses to questions about the 2007 email only to the extent that they reflected on her credit. That submission should be accepted. The following passage from page 21 of the Report shows that the defendant did not use the evidence relating to the 2007 email to support an illogical inference: Furthermore, in the Commission's view, Ms D'Amore's expressed indifference to the email and its content was a pretense. The Commission is satisfied that Ms D'Amore was reluctant to admit that she had read the email. This is because she realised it referred to the requirement in the 2006 Determination that the sitting day relief officer should be engaged to work at the electorate office and that she was anxious to avoid admitting knowledge of this issue. 94The reasoning used by the defendant to support a conclusion that the plaintiff instructed Ms La Manna to make a false representation on the claim forms was not illogical. The defendant noted, correctly, that "[t]his conclusion [was] consistent with the finding that Ms Harbilas was instructed by Ms D'Amore to write Mr Nicoletti's name on the first form". 95Accordingly, the defendant's decision as to its satisfaction of the matters set out in ss 13(3A) and 9(5) of the Act was not irrational or illogical.