Duncan v Ipp

The legislative background 31Prior to considering the primary judge's reasoning and the parties' submissions, it is convenient to set out the legislative background. 32The Commission is constituted by the Independent Commission Against Corruption Act 1988 (the Act). The principal objects of the Act are set out in s 2A in the following terms: "2A The principal objects of this Act are: (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body: (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption." 33It will be noted that the primary objects of the Act include both the investigation and prevention of corruption. 34Clause 1 of Schedule 1 of the Act provides that a person is not eligible to be appointed as a Commissioner unless the person is qualified to be appointed as a judge of the Supreme Court of the State or of any other State or Territory, a judge of the Federal Court, a justice of the High Court, or a former judge or justice of any of those Courts. 35Section 10 of the Act deals with complaints. It provides that any person may make a complaint to the Commission that concerns corrupt conduct and, further, that the Commission may investigate a complaint or decide that it need not be investigated. 36Part 4 of the Act deals with the functions of the Commission. Section 12 provides as follows: "12 In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns." It is to be noted that one of the paramount concerns of the Commission is a prevention of breaches of public trust. 37Section 13 sets out the principal functions of the Commission. Of particular relevance are subs (1) to (3) which provide as follows: "(1) The principal functions of the Commission are as follows: (a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that: (i) corrupt conduct, or (ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur, (b) to investigate any matter referred to the Commission by both Houses of Parliament, (c) to communicate to appropriate authorities the results of its investigations, (d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct, (e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated, (f) to advise public authorities or public officials of changes in practices or procedures compatible with the effective exercise of their functions which the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct, (g) to co-operate with public authorities and public officials in reviewing laws, practices and procedures with a view to reducing the likelihood of the occurrence of corrupt conduct, (h) to educate and advise public authorities, public officials and the community on strategies to combat corrupt conduct, (i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity of public administration, (j) to enlist and foster public support in combating corrupt conduct, (k) to develop, arrange, supervise, participate in or conduct such educational or advisory programs as may be described in a reference made to the Commission by both Houses of Parliament. (1A) Subsection (1) (d) and (f)-(h) do not extend to the conduct of police officers, Crime Commission officers or administrative officers within the meaning of the Police Integrity Commission Act 1996. (2) The Commission is to conduct its investigations with a view to determining: (a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and (b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and (c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct. (2A) Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur. (3) The principal functions of the Commission also include: (a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and (b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations." 38A number of matters may be noted. First, it is evident from s 13(1) that the Commission may carry out an investigation of its own volition. Second, the powers of the Commission are not limited to investigating and reporting corrupt conduct. They include advising public authorities in relation to the prevention and elimination of corrupt conduct (s 13(1)(d)-(h), s 13(2)(b)-(c)) and making recommendations as to action that should be taken in relation to the results of its investigations (s 13(3)(b)). The performance of such functions would inevitably involve ongoing contact with public officials. 39Subsections 17(1) and (2) of the Act provide as follows: "17(1) The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate. (2) The Commission shall exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission shall accept written submissions as far as is possible and compulsory examinations and public inquiries shall be conducted with as little emphasis on an adversarial approach as is possible." 40To the extent that it is not implied in s 17(1), s 20 of the Act expressly states that the Commission has power to conduct an investigation of its own volition. 41Section 30 of the Act empowers the Commission to hold compulsory examinations. Subsection 30(5) provides that a compulsory examination is to be conducted in private. 42Section 31 deals with public inquiries. So far as it is relevant, s 31 provides as follows: "31(1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry. (2) Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following: (a) the benefit of exposing to the public, and making it aware, of corrupt conduct, (b) the seriousness of the allegation or complaint being investigated, (c) any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an inquiry), (d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned. ... (8) A public inquiry is to be held in public. (9) Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest. (10) Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel." 43It is clear from these provisions that the Commission can conduct a great deal of its business in private, even in circumstances where the Commission has determined that it is in the public interest to hold a public inquiry. 44Part 8 of the Act deals with references by and reports to Parliament. Sections 73 and 74 provide as follows: "73(1) Both Houses of Parliament may, by resolution of each House, refer to the Commission any matter as referred to in section 13. (2) It is the duty of the Commission to fully investigate a matter so referred to it for investigation. (3) It is the duty of the Commission to comply as fully as possible with any directions contained in a reference of a matter referred to in section 13 (1) (k). (4) Both Houses of Parliament may, by resolution of each House, amend or revoke a reference made under this section. 74(1) The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation. (2) The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses. (3) The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry, unless the Houses of Parliament have given different directions under subsection (2). (4) The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament. (5), (6) (Repealed) (7) A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter. (8) The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament. (9) (Repealed)" 45Section 111 of the Act contains a secrecy provision. So far as it is relevant it provides as follows: "111(1) This section applies to: (a) a person who is or was an officer of the Commission, and (b) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner's functions as counsel to the Commission, and (c) (Repealed) (d) a person or body referred to in section 14 (3), 16 (4) or 53 (6), and (e) a person who is or was an officer of the Inspector. (2) A person to whom this section applies shall not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act: (a) make a record of any information, or (b) divulge or communicate to any person any information, being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. ... (4) Despite this section, a person to whom this section applies may divulge any such information: (a) for the purposes of and in accordance with this Act, or (b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or (c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or (d) to any prescribed authority or person." 46In relation to subs 111(1)(d), the persons referred to in s 14(3) of the Act are persons to whom information is furnished by the Commission on the understanding that the information is confidential. The persons referred to in s 16(4) of the Act are officers of other agencies with whom the Commission is required to co-operate, whilst the persons referred to in s 53(6) are any persons to whom information is provided under s 111 on a confidential basis. This once again emphasises the private nature of a great deal of the Commission's work.

The reasoning of the primary judge 47The primary judge accepted that the test for apprehended bias was that a fair-minded observer might reasonably apprehend that in his conduct of Operation Jasper, the Commissioner might have failed and might be failing to bring an impartial and unprejudiced mind to the matters under investigation. The primary judge noted that the applicant relied on five matters which were said to indicate that a reasonable onlooker might conclude that the Commissioner might have had a closed mind or had pre-judged the issue of whether the Mt Penny exploration licence was procured by corruption involving the then Minister and that the applicant and his associates benefited from such corrupt conduct. 48The five matters considered by the primary judge were: first, the contents of the Premier's letter and the circumstances in which it came to be written; second, the advice given to Mr Eccles on 31 January 2013; third, the circumstances in which the Commissioner called for submissions regarding his proposed response to the Premier's letter; fourth, the content of the letter of advice to the Premier of 20 February 2013; and finally, what was described by the applicant as the Commissioner's changing reliance on various sections of the Act in support of the activities he had undertaken and proposed to undertake.

A The Premier's letter 49The primary judge emphasised at par [85] that the fair-minded lay observer would have general knowledge of the contents of the Act and the functions performed by the Commissioner and, in particular, an awareness of the Commissioner's investigative and inquisitorial roles. He stated that at the time of the adjournment of the inquiry on 14 December 2012, it would have been open to the Commissioner to publicly extend the terms of reference to the matters the subject of the Premier's letter. In this context he concluded that there was no logical connection between the lack of transparency and the alleged apprehended bias, referring to the second limb of the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]. 50The primary judge also considered alternative reasons as to why the Commissioner might have adopted the approach that he took. The primary judge stated that he considered the most obvious explanation was that the public would better receive the extension of the inquiry if it came from the Government. He acknowledged this was speculation. 51Further, in concluding that there was "nothing sinister (in the apprehended bias sense)" in the contact between the Commissioner and the Director General, he noted at par [90] that it would be expected that such contact would occur in the normal course of events, pointing out that nothing put before the Court demonstrated that any fair-minded observer would expect all dealings to be revealed. He also stated that the Premier's letter and the Commissioner's response alerted the applicant and his associates that the evidence adduced might be taken into account by the Planning Minister. 52In concluding that the Premier's letter and the circumstances by which it came into existence did not give rise to the possibility of apprehended bias, the primary judge referred to both the statement made by the Commissioner at the public inquiry on 14 February 2013 and in his letter to Mr Eccles of 20 February 2013, that he had not reached any conclusion concerning the Mount Penny tenement.

B The events of 31 January 2013 53The primary judge concluded at par [95] that, contrary to the applicant's submissions, there was urgency in responding to the Premier's letter. He pointed out that the Planning Minister had received advice that he might be obliged to deal with the development application without taking into account the circumstances in which the exploration licence was granted and, further, pointed to the effect of s 75V(1)(c) of the EPA Act to which I have referred at par [12] above. He concluded that this was a matter of practical significance to the Commissioner, as any findings made as a result of the inquiry that were adverse to Cascade Coal would have little practical effect if the development application and mining lease were granted. The primary judge concluded at par [99] that, "As the Commissioner said on a number of occasions, he was doing no more than endeavouring to persuade the Planning Minister to wait until the outcome of the inquiry was known before granting project approval for the Mount Penny Mine". He concluded at par [103] that the evidence indicated the Commissioner had formed the view that project approval should not be issued prior to his report. The primary judge stated that it was reasonable for the Commissioner to recommend that the development application should not proceed until he had made findings of fact. 54In these circumstances, the primary judge took the view that there was nothing to suggest that a fair-minded observer might conclude that the Commissioner might have had a closed mind in relation to the matters in question.

C Invitation to the parties to provide submissions 55The primary judge concluded that it was not surprising that the Commissioner had a clear idea of the response he proposed to make to the Premier's letter. He stated that the Commissioner was not required to give the parties the opportunity to make submissions. He concluded at pars [106]-[107] that there was nothing to support apprehended bias of the nature suggested in the manner in which the submissions were called for.

D Letter of advice of 20 February 2013 56The primary judge stated at par [109] that the Commissioner, in setting out the relevant legal principles, adopted the advice of senior counsel and, in doing so, "expressed his own conclusion about how that principle would apply to the situation at hand (i.e., where there was an allegation under investigation that there was a nefarious connection between the then Minister for Mines and an applicant for an Exploration Licence)". The primary judge concluded that in so doing the Commissioner provided "an appropriate and orthodox translation of an abstract principle to a particular factual context". In those circumstances he held that it could not lead to a conclusion of apprehended bias.

E The Commissioner's changing reliance on sections of the Act 57The primary judge concluded that even if the Commissioner misdirected or misinterpreted the Act, it was irrelevant to the question of apprehended bias. He stated that a submission of this nature was expressly rejected in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67]. 58The primary judge also rejected what he described as a narrow interpretation of the Act which he stated was implicit in this submission, namely, that once an investigation was embarked upon the Commissioner could do no more than produce a final report. Referring to s 13(3) and s 14(2) of the Act, he concluded that there was no constraint on the Commissioner from providing recommendations before the release of a final report. 59In his concluding remarks the primary judge rejected the submission that the disclaimer of pre-judgment made by the Commissioner should be ignored. He stated that the fair-minded observer would need to have a rational basis for not accepting such disclaimers and none had been made out. 60In these circumstances he rejected the applicant's claim.

The submissions of the parties 61Both in their written submissions and at the hearing, each of the parties addressed the principles that should be applied generally in determining the issue and then made submissions under the specific headings to which I will refer in dealing with the reasoning of the primary judge. It is convenient to summarise the submissions by reference to that approach.

A The general principles 62Each party accepted that the test for determining the existence of apprehended bias was whether a fair-minded and informed observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question in issue. 63The parties also agreed that in determining whether or not a claim for apprehended bias was made out it was appropriate to consider the two questions posed by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner). In that case the plurality set out a two stage approach to the question in the following terms (at [8]): "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 64It was also common ground between the parties that the test would be applied on the assumption that the hypothetical fair-minded observer would have a general appreciation of the powers and the functions of the Commissioner and the Commission. They accepted as correct the comment by Spigelman CJ in McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [6]-[7] that the statute under which the decision-maker in question carries out his or her functions must be part of the assessment process from the outset and that the content of what the test requires will vary from one statutory context to another. 65The major difference between the parties on the issue of principle lay in the application of the second question posed in Ebner. The applicant emphasised that what was said in Ebner was an explanation of, not a substitution for, what senior counsel for the applicant described in argument as the "two mights" test, namely, whether a fair minded observer might apprehend that a decision maker might not bring an impartial and unprejudiced mind to the resolution of the issue in question. The applicant submitted that the second limb of the test did not shift the focus of the test from the realm of possibility, much less require an inevitable conclusion of apprehended bias to follow from the matter said to give rise to its apprehension. He submitted that the logical connection required in the present case was that it could be rationally inferred that pre-judgment may have occurred. 66Senior counsel for the applicant submitted that in these circumstances it was not appropriate to consider alternative inferences in the manner undertaken by the primary judge. 67The applicant also submitted that the fundamental flaw in the Attorney's case was that it treated the statement in Ebner of the need for a logical connection in isolation from the other elements of the test for apprehended bias, as well as from its purpose, namely, to secure the integrity of public decision-making in the eyes of the public. 68The Attorney emphasised the need to demonstrate the necessary logical connection between the circumstances that gave rise to the claim for bias and the apprehension of deviation from the course of deciding the issue before the decision-maker on its merits, in this case through pre-judgment. He emphasised that pre-judgment meant a closed mind in the relevant sense of not being open to persuasion. 69The Attorney further emphasised the fact that the informed and fair-minded observer must be taken to appreciate the functions performed by the decision maker, which in the present case included advising public officials of changes in practices or procedures compatible with the effective performance of their functions which the Commissioner thought necessary to reduce the likelihood of corrupt conduct. 70Senior counsel for the Attorney submitted in that context that even a judicial officer can legitimately form preliminary or provisional views on a question before him or her. He said that was even more so in the case of the Commission, which could choose topics of inquiry for itself, could hold private hearings and was under no obligation to disclose their contents to the public. He also emphasised that the proceedings were inquisitorial not adversarial and of a nature where the issues may alter from time to time. 71So far as the Ebner test was concerned, senior counsel for the Attorney submitted that the onus was on the applicant to demonstrate apprehended bias and it was not enough to simply assert that something was an unexcluded possibility. 72Each party accepted for the purpose of the proceedings that the relevant question was whether there was an apprehension, in the sense described in the authorities, that the Commissioner may have had a closed mind on the question of whether the licence was procured by corruption involving the then Minister for Mines and that the applicant and his associates were beneficiaries of that conduct. 73The Attorney accepted that it was appropriate to decide the case on the same basis as the primary judge, namely, that it was appropriate to look at material not publicly available prior to the commencement of the proceedings but produced during their course for the purpose of determining whether the applicant's claim was made out. He did not concede this was necessarily the correct approach in all circumstances.

B The Premier's letter (Grounds of appeal 1-2) 74The applicant's grounds of appeal so far as they related to the Premier's letter were as follows: "1 The primary judge erred in: (a) proceeding upon the incorrect premises that: (i) on the Appellant's case, the failure by the First Respondent (the Commissioner) to disclose publicly his contact with the Director-General of the Department of Premier and Cabinet (the DPC) was sufficient to establish apprehended bias [J86-87]; and (ii) Operation Jasper had been commenced by way of a referral by the New South Wales Parliament under s 73 of the Independent Commission Against Corruption Act 1988 (NSW); (b) finding, in effect, that by promoting the sending of the letter dated 30 January 2013 from the Premier (the Premier's Letter), the Commissioner was merely seeking to widen the scope of Operation Jasper; and (c) failing to find that a fair-minded and informed observer might reasonably apprehend that the Commissioner might have promoted the sending of the letter dated 30 January 2013 from the Premier (the Premier's Letter), which was of no legal significance, so that he would have political cover for the making of recommendations adverse to the interests of those associated with Cascade Coal Pty Ltd (Cascade Coal). 2 In rejecting the Appellant's submissions concerning the contact between the Commissioner and the Director-General of the DPC on the basis that 'there are a number of explanations why the Commissioner might follow such an approach, none of which are suggestive of apprehended bias' [J89], the primary judge erred by requiring the Appellant to show that a reasonable apprehension of bias was not merely a real possibility, but rather the only view that a fair-minded observer could form in relation to the Commissioner's conduct. 75The applicant submitted that the primary judge erred in dealing with this aspect of his case on the basis that what was contended was merely that the failure by the Commissioner to disclose his involvement in the sending of the Premier's letter itself founded an apprehension of bias. The applicant pointed out that his case below on this issue involved a number of matters arising from the circumstances surrounding the sending of the letter. First, if the Commission in fact found corrupt conduct it would have been within its power to recommend that the relevant consent be refused and that power could not be enlarged or altered by a request from the Premier. Second, making such a recommendation might be seen as encroaching on an area within the control of the Planning Minister and thus be of some sensitivity which might be capable of being overcome if the request for a recommendation came from the Government. Third, given those matters a fair-minded observer might reasonably apprehend that the Commissioner sought the letter because he had made up his mind to make an adverse recommendation, the letter being sought as "political cover". This, it was said, was reinforced by the fact that a fair-minded observer would have been aware that the allegations were vigorously contested and an unprejudiced Commissioner would have been slow to make any recommendation pending the conclusion of his inquiry. 76The applicant submitted that there was no evidence to support the finding by the primary judge that contacts of the nature of those between Mr Eccles and the Commissioner would be expected in the normal course of events. During the course of the hearing senior counsel for the applicant pointed to what he described as the absence of any statutory function supporting the request from the Premier and submitted that the Commissioner could not have been under any misconception on that issue. He described what occurred as aberrant to the process. 77The applicant further contended that the possible explanation for the Commissioner's conduct proffered by the primary judge, namely, that after "having heard much of the evidence [the Commissioner might have] considered the inquiry should be widened and that this would be better received by the public if it came from the Government" in fact supported the applicant's position. The applicant pointed out that the inquiry in question was not being conducted by the Commission by way of referral from Parliament and it was submitted that there was therefore no basis for concluding that the Commissioner's purpose in seeking the Premier's letter was to widen the scope of any referral. Further, the applicant pointed out that the Premier had no power to widen the inquiry. The applicant also pointed to the fact that the Department of Premier and Cabinet had no responsibility for approval of any development consent, that being within the power of the Planning Minister. 78The applicant also submitted that even if what he described as the errors of the primary judge (referred to in par [75] above) were discounted, it left open the question of why the Commissioner would consider the extension of the inquiry would be better received if it occurred as a result of a request from the Premier. He submitted that the Commissioner's sensitivity to public opinion, as inferred by the primary judge, was consistent with his submission that a fair-minded observer might consider that the reason for seeking the letter was to obtain political cover for a matter in respect of which he had already made up his mind. 79The Attorney submitted that the applicant's case was built around two propositions concerning the scope of the Commission's powers. First, it was open to the Commission at the conclusion of its investigation to recommend that approval to development consent be refused and, second, the Premier's request was unnecessary to expand the scope of the inquiry. The Attorney submitted that no logical inference of a closed mind could be drawn from the making of the request merely because it was unnecessary. He submitted that the applicant's submission that the Premier's letter was sought because of the political sensitivity of encroaching on an area within the control of the Planning Minister was contrary to what would be known to a fair-minded observer, namely, the Commission had the power to make such a recommendation. 80The Attorney also submitted that even if that was incorrect, it would not logically follow from the fact that "political cover was sought" that a fair-minded observer might consider the Commissioner might have had a closed mind on the issue. 81The Attorney submitted it was not enough to simply observe that the Premier's letter was neither necessary or efficacious. He submitted that it was not inappropriate for the Commissioner to seek clarification on the public record as to the scope of the matters being investigated. 82The Attorney submitted that the criticism of the primary judge's conclusion that such communications would take place in the ordinary course as lacking any evidentiary foundation was unwarranted. He pointed to the fact that the question of how a fair-minded observer might view the conduct necessarily involves speculation and submitted the primary judge was entitled to form the view he expressed. 83Finally the Attorney submitted that a fair reading of the judgment of the primary judge demonstrated he did not proceed on the basis that it was necessary for the applicant to establish there were not alternative possibilities open to a fair-minded observer other than the one for which the applicant contended. 84At the hearing senior counsel for the Attorney submitted there was nothing unusual in the Commissioner dealing with the Government privately. He pointed to par [3.4] of the Briefing Note from Mr Eccles to the Premier (see par [16] above) and stated there was nothing in the statements attributed to the Commissioner in that paragraph which would indicate a closed mind. 85Senior counsel for the Attorney also pointed to the terms of the Premier's letter. He pointed out there was no demand for any recommendations or any statement which would indicate an expectation of any particular recommendation. 86Senior counsel for the Attorney submitted that the letter was not lacking any meaning in law, as it was a "perfectly proper matter which has the infect in law of a communication" and which the Commission was empowered to take notice of. He further submitted however that whether the letter had juridical consequence was of no significance. He submitted that even if it could be classified as unusual there was nothing to indicate the possibility of bias in the Commissioner raising with the Premier the utility of the further inquiry suggested.

C The Commissioner's advice to Mr Eccles and the Premier (Grounds 3, 4 and 8(a)) 87The grounds of appeal relating to this issue were in the following terms: "3 The primary judge erred in: (a) finding that: (i) in his advice to the New South Wales Government, the Commissioner was doing no more than recommending the deferral of the project approval for the Mount Penny Mine so as to allow Operation Jasper to proceed to its conclusion on the basis that allegations of corruption relating to the grant of EL 7406 had been made, were subject to ongoing investigation and would most likely be the subject of findings by the Second Respondent (the ICAC) in the near future [J104]; (ii) the Commissioner did no more than seek to maintain the status quo until findings were made which it was anticipated would occur in July 2013 [J100]; and (iii) the analogy drawn by the Third Respondent between the conduct of the Commissioner and an application for an interlocutory injunction in adversarial litigation was quite apt [J104]; and (b) failing to find that the Commissioner had advised that the New South Wales Government could, prior to the publication of the ICAC's report on Operation Jasper, consider whether or not to approve the project application for the Mount Penny Mine (the Project Application), having regard to the evidence before the ICAC." "4 The primary judge erred in failing to find that a fair-minded and informed observer might, on the basis of: (a) the terms of the letter dated 31 January 2013 from the Commissioner to the Director-General of the DPC; and (b) the terms of the questions set by the Commissioner on 11 February 2013 for himself to answer in responding to the Premier's Letter and the answers thereto, reasonably infer that the Commissioner might have been seeking to encourage the New South Wales Government to make a decision on whether to reject the Project Application, having regard to the evidence before the ICAC, prior to the provision of the ICAC's report on Operation Jasper to Parliament." "8 In finding: (a) that there was nothing sinister in the contact between the First Respondent and the Director-General of the DPC [J90] .... the primary judge erred in misstating, and in failing correctly to apply, the test for apprehended bias on the basis of pre-judgment, namely, whether a fair-minded and informed observer might reasonably apprehend that the relevant decision-maker might be committed to a conclusion already formed which is incapable of alteration, whatever evidence or arguments may be presented." 88The applicant submitted that the provision of the advice to Mr Eccles of 31 January 2013, coupled with the fact that he did not disclose that he had given the advice at the subsequent public hearing, gave rise to the possibility in the mind of a fair-minded observer that the Commissioner might have a closed mind on the issue in question. 89The applicant submitted that the primary judge erred in concluding that a fair-minded observer would believe that the Commissioner, being aware of the advice received by Planning Minister (see par [13] above), and being aware of the possibility of a finding of corrupt conduct, sought to defer any decision to be made by the Planning Minister. He submitted that the evidence demonstrated that the project application was in a state of suspense and there was no suggestion there would be a departure from that position prior to the Commissioner's report. 90The applicant pointed out that although Mr Eccles's note of the conversation of 31 January 2013 makes reference to a statement by the Commissioner that development approval should not be given pending his report, no such statement was to be found in his confirmatory letter, which stated that the Planning Minister could take the evidence before the Commission into account in determining whether to grant or refuse the development application. 91The applicant submitted that it was significant in that context that the letter stated it was open to the Commission to make a recommendation that development consent not be granted but also stated that any such recommendation would not be available until the Commissioner's report in the middle of the year. The applicant suggested a fair-minded observer might take this as indicating the Government could refuse development consent based on the evidence before the Commission prior to the receipt of the Commissioner's report. It was suggested that this was inconsistent with what a fair-minded observer would expect an impartial Commissioner to do, namely, to seek that any decision be deferred pending provision of the report. 92The applicant also submitted that the discussion between the solicitor for the Commission and the Director General of the Department of Planning and Infrastructure referred to in the letter from the solicitor to Mr Eccles of 31 January 2013 (see par [20] above) as to whether or not s 79C of the EPA Act was broad enough to permit the Minister to take into account the evidence before the Commission in determining whether or not to grant development consent, might indicate to a fair-minded observer that the Commissioner was seeking to encourage the Planning Minister to refuse development consent prior to the issue of his report. 93The applicant also submitted that there was significance in the fact that the communication was with the Premier's Department. It pointed out that subsequent to that communication the Minister for Resources and Energy had described the granting of the licence as a rort and as a fraud on the people of the State. It was submitted that a fair-minded observer might conclude in those circumstances the Commission and the Commissioner were seeking to accommodate the Government's political position. 94The applicant submitted that at the time of the communication with Mr Eccles on 31 January 2013 nothing had occurred to make the matter urgent. In these circumstances it was submitted that a fair-minded observer might consider the Commissioner's actions on 31 January 2013 were motivated by the views he had formed as a result of the evidence given before the Commission. 95The applicant also submitted that the failure to suggest that deferral of any decision rather than a refusal of consent was the appropriate course might indicate to a fair-minded observer a lack of concern for any prejudice which might be suffered by the applicant or his associates as a result of refusal of consent. This in turn might indicate to a fair-minded observer that the Commissioner may have had a closed mind as to the outcome of the inquiry. 96Senior counsel for the applicant pointed out that the Commissioner did not advise in clear terms that any decision on the development consent should await the provision of the Commission's report. In these circumstances he submitted that what occurred was not analogous to seeking an interlocutory injunction that preserved the status quo, contrary to the conclusion of the primary judge. 97Senior counsel for the applicant emphasised that if merely the status quo was sought to be maintained the communication would be expected to be with the Planning Minister, not the Director General of the Department of Premier and Cabinet. He submitted the communication plainly envisaged the determination of the application in advance of the report and advocated that the materials before the Commission might be taken into account in determining whether or not consent should be refused as being against the public interest. 98So far as the letter of 31 January 2013 was concerned, the applicant acknowledged that a reasonable and fair-minded observer would read it in the context of the conversation which preceded it. 99The Attorney in his submissions noted that no issue was taken with the conclusion of the primary judge that development approval was a matter relevant to the ongoing investigation by the Commission. He pointed out the evidence established that the Commissioner was aware of the opinion of the Planning Minister set out in his statement to the Legislative Assembly (see par [13] above) and as a consequence knew that any recommendation he may make as to project approval could be foreclosed. 100The Attorney submitted that so far as the urgency of the matter was concerned, the Commissioner's advice was directed to the possibility of development approval occurring before his report was delivered. He submitted that as at 31 January 2013, there was no basis on which the Commissioner could be confident the application would not be determined before submission of his report to Parliament. The Attorney submitted that the Commissioner made clear in his conversation with Mr Eccles of 31 January 2013 (see par [18] above) that it was his belief that approval should be deferred. He submitted that in that context the analogy with an interlocutory injunction was appropriate. 101The Attorney submitted that the other matter addressed by the Commissioner in his letter to Mr Eccles was the possibility that the application would be determined prior to the provision of his report. 102In that context the Attorney accepted that a fair-minded observer might conclude from the contents of the advice provided by the Commissioner to Mr Eccles that the Commissioner considered it was legally open to the Planning Minister to take into account the evidence before the Commission in deciding whether or not to grant the approval. However, he submitted there was no justification for taking the further step that in writing the letter the Commissioner was urging the Minister to refuse the application thereby revealing the possibility of a closed mind to a fair-minded observer. 103The Attorney further submitted that if the Commissioner believed there was a prospect that the Planning Minister was proceeding on a legally erroneous understanding of his power to take the evidence before the Commission into account, he was entitled to address the position as a matter of urgency. He submitted that doing so did not indicate pre-determination of the issues. 104At the hearing senior counsel for the Attorney directed attention to the use by the Commissioner of the word "allegations" in his conversation with Mr Eccles of 31 January 2013 and submitted that this was not indicative of a closed mind. He pointed out the Commissioner had justifiable reasons to be concerned with allegations of ministerial fraud and corruption. He also emphasised the use of the words "should not issue a DA" until the report was delivered to Parliament, submitting that that expression was consistent with maintaining the status quo. 105Senior counsel for the Attorney also submitted that the letter of 31 January 2013 would be read by a reasonable and fair-minded observer as stating that any finding which the Commissioner may make in the investigation would be of relevance to the public interest, but that if a decision on the development application had to be made prior to that time the Planning Minister could take the evidence into account. He also emphasised that the letter, in stating that whether the then Minister for Mines acted corruptly or fraudulently was a relevant factor to be taken into account, was not indicative of a final decision having been made on that issue. He also submitted that the expression "any corrupt conduct findings" in the letter was indicative of the fact the Commissioner had not formed a closed mind.

D The Commissioner's statements of 6, 11 and 14 February 2013 (Grounds 5 and 6) 106The grounds of appeal relating to these issues were as follows: "5 The primary judge erred in: (a) finding that the reasons put forward by the Commissioner for the urgency of his response to the Premier's Letter were: (i) the pendency of the Project Application before the Minister for Planning and Infrastructure (the Planning Minister); (ii) the need to allow the allegations of corruption to be fully investigated before the Project Application was processed by the Planning Minister, if that were possible; and (iii) the need to conclude Operation Jasper within the specified time limit of July 2013 [J102]; and (b) failing to find that: (i) no cogent or clear reasons were provided by the Commissioner for the urgency of his response to the Premier's Letter and, in particular, the need for the response to be provided separately from and in advance of the furnishing of the ICAC's report on Operation Jasper to Parliament following the conclusion of the public inquiry for Operation Jasper; (ii) the Premier's Letter did not in terms seek an urgent or separate response in advance of the ICAC's report on Operation Jasper being provided to Parliament following the conclusion of the public inquiry for Operation Jasper; (iii) there was no evidence to establish that the Premier's Letter required an urgent or separate response in advance of the ICAC's report on Operation Jasper being provided to Parliament following the conclusion of the public inquiry for Operation Jasper; and (iv) a fair minded and informed observer might infer that in these circumstances the Commissioner might have been seeking to encourage the New South Wales Government to make a decision on whether to reject the Project Application, having regard to the evidence before the ICAC, prior to the ICAC's report on Operation Jasper being provided to Parliament. 6 The primary judge erred in failing to find that: (a) despite inviting submissions on 6 February 2013 as to his proposed response to the Premier's Letter from the parties to the public inquiry for Operation Jasper, the Commissioner had already provided the proposed advice to the Director-General of the DPC, both orally and in writing, on 31 January 2013, which he did not at any relevant point disclose; and (b) a fair-minded and informed observer might reasonably apprehend, on the basis of (a) above, that: (i) the opportunity to make submissions purportedly afforded by the Commissioner might not have been genuine; (ii) the Commissioner's response to the Premier's Letter might have been intended only for public consumption, given that the contents of that response had already been conveyed to the New South Wales Government; and (iii) in particular, that response might have been intended to provide political cover so that the New South Wales government could, if it chose to do so, take action against Cascade Coal or interests associated with it even before the ICAC's report on Operation Jasper had been delivered to Parliament." 107The applicant contrasted the Commissioner's statement on 6 February 2013 that he intended to provide urgent advice to the Premier with the fact that the letter did not call for urgent action. 108The applicant pointed to the statement by the Commissioner on 11 February 2013 (see par [24] above) that the Commissioner proposed to give advice on "whether whatever factual findings may be made in the future the evidence led so far and the media publicity that has arisen require the application of public interest criteria" to the grant or refusal of a licence. The applicant contended that the use of the present tense meant that a fair-minded observer might understand that the advice was to be directed to assisting the Government to make a decision whether or not to approve the development application, even before publication of the Commissioner's findings. 109The applicant further submitted that the Commission's explanation for the urgency of his advice, in his comments on 14 February 2013, was vague and unintelligible. He submitted that if all that was intended was to preserve the status quo, the Commissioner would have made that clear. 110The applicant pointed to the non-disclosure by the Commissioner of his previous advice to Mr Eccles. He submitted that the critical question was what a fair-minded observer would reasonably apprehend from such non-disclosure in the context of the Commissioner's conduct as a whole. The applicant submitted that a fair-minded observer might apprehend that the information was withheld to dispel the impression that the Commissioner himself wished to make a recommendation concerning the development consent, irrespective of solicitation from the Government. Further, he submitted that a fair-minded observer may have believed that the Commissioner did not disclose his previous advice because it would give rise to the impression that he had pre-judged the issue. 111The applicant submitted that the failure by the Commissioner to disclose his earlier letter would cast doubt in the mind of a fair-minded observer as to whether the Commissioner's invitation to make submissions on his proposed response to the Premier was genuine. He submitted a fair-minded observer might consider the Commissioner was trying to create the impression of fairness in respect of a matter which he had already decided adversely to Cascade Coal. 112The applicant submitted that what was involved was more than mere non-disclosure. He submitted that by raising the issue of transparency, coupled with his invitation to the parties to make submissions, the Commissioner might be understood as stating that the process of advising the Government was and would be conducted on the basis that all relevant information would be disclosed, which was not in fact the true position. 113Senior counsel for the applicant pointed to the fact that the Commissioner had already responded to Mr Eccles on the matter on which he sought submissions. He pointed to the fact that the letter from the applicant's solicitors to the Commission of 13 February 2013 raised the issue of apprehended bias and in his response the Commissioner neither disclosed his communications with Mr Eccles nor indicated that all he sought to do was to preserve the status quo. 114Senior counsel for the applicant submitted that the primary judge failed to deal with the disparity between the Commissioner's conduct in open Commission and his communications with the Department of Premier and Cabinet. He submitted a fair-minded observer at that point in time might apprehend that having heard evidence over a lengthy period, the Commissioner had approached the Executive to expand the scope of the inquiry and had determined to recommend to the Government that the evidence in the inquiry could be used in dealing with the question of whether it was in the public interest to grant the development application. He submitted that a fair-minded observer in those circumstances might consider that the Commissioner was loath to disclose these matters because they would indicate a closed mind. 115I have referred above to the Attorney's submissions concerning the analogy drawn by the primary judge between the conduct of the Commissioner and the grant of an interlocutory injunction. The Attorney submitted that the effect that non-disclosure of the conversations and letter to Mr Eccles would have on the mind of a fair-minded observer must be considered in the statutory context in which it arose. He submitted there was nothing in the legislative context which would create an expectation that all communications between the Government and the Commission would be disclosed. In those circumstances he submitted a fair-minded observer would not attach any significance to such non-disclosure. 116The Attorney submitted that the contention that the Commissioner was merely going through the motions in calling for submissions on the Premier's letter was unsustainable on the evidence. He pointed out that not only did the Commissioner seek submissions but he also sought the advice of senior counsel in respect of the issues about which the Commissioner proposed to provide advice to the Premier. 117The Attorney submitted that the statement by the Commissioner that everything in the public inquiry had been "undertaken in an open way" and that the disclosure of the Premier's letter had been made "in the interests of transparency" was not inconsistent with his non-disclosure of his earlier communications with the Department of Premier and Cabinet. He submitted the Commissioner's comments were directed to how persons before the inquiry, including the applicant's solicitors, should conduct themselves. 118Senior counsel for the Attorney emphasised that in his submission there was no obligation to disclose the earlier communications, but submitted that the contents of the non-disclosed material could not give rise to an apprehension of bias in the mind of a fair-minded observer. He submitted that the onus was on the applicant to show satisfaction of the Ebner test and it could not be satisfied by unexceptional dealings not being simultaneously disclosed. 119The Attorney submitted that the Commissioner's response to the letter from the solicitors for the applicant was justified by the tone of that letter. He submitted that the statement that everything had been done in an open way could not be taken to mean all communications had been disclosed. He submitted that, in any case, the only thing not disclosed was the fact that he had requested the Premier's letter, which would have had no effect on a fair-minded observer.

E The advice to the Premier (Ground 7) 120The ground of appeal on this issue was as follows: "7 Having found that the Commissioner, in his response to the Premier's Letter, had adopted the advice of senior counsel and expressed his own conclusion about how that principle would apply to 'the situation at hand' [J109], the primary judge erred in failing to find that this might give rise to a reasonable apprehension in a fair-minded observer that the Commissioner might be so committed to a conclusion concerning matters the subject of Operation Jasper as to be no longer open to persuasion. 8 In finding: (a) that there was nothing sinister in the contact between the First Respondent and the Director-General of the DPC [J90]; and (b) that there was no evidence that the Commissioner had made findings or that he might have made findings in the investigation styled 'Operation Jasper' [J119], the primary judge erred in misstating, and in failing correctly to apply, the test for apprehended bias on the basis of pre-judgment, namely, whether a fair-minded and informed observer might reasonably apprehend that the relevant decision-maker might be committed to a conclusion already formed which is incapable of alteration, whatever evidence or arguments may be presented." 121The applicant submitted that having regard to the advice which had been given previously to Mr Eccles, there was no particular reason to send the letter of advice at all. He suggested the possible reason for doing so was to make public what had previously been provided privately. 122The applicant particularly focused on that part of the Commissioner's letter which adopted pars [17]-[18] of Mr Walker's advice referring to matters such as "irregularities of a sinister kind" and any "nefarious connexion" between the then Minister for Mines and a proponent or person standing behind the proponent. He submitted that the adoption of what Mr Walker had described as an extreme example occurred in the context of the applicant having been accused by counsel assisting the Commission of improperly influencing the then Minister for Mines to reopen the expression of interest process in relation to the exploration license. He submitted that in those circumstances a fair-minded observer might conclude that the letter suggested that the evidence before the Commission was capable of establishing such a "nefarious connexion" and that this may justify the taking of action adverse to Cascade Coal. He stated that, critically, the letter did not suggest the Planning Minister refrain from taking action until the Commission made its factual findings on the issue. He submitted a fair-minded observer may have expected such a statement if there was a prospect that such a finding would not be made. 123Senior counsel referred to the opinion of the primary judge at par [109] of his judgment, to the effect that all the Commissioner had done was to adopt the advice of senior counsel and adapted it to the situation at hand and in so doing had provided an appropriate and orthodox translation of an abstract principle to the factual context. He submitted that the primary judge failed to consider the issue through the perspective of a fair-minded observer rather than a lawyer familiar with argument and rhetoric. He submitted a fair-minded observer might have considered the Commissioner had concluded that such a nefarious connexion existed and thus had a closed mind on the issue. 124The Attorney submitted that speculation as to the reason the Commissioner concluded it was necessary to write to the Premier in respect of matters on which he had previously advised Mr Eccles was irrelevant as it could not indicate the possibility of a closed mind. 125So far as the adoption of pars [17]-[18] of the opinion of Mr Walker was concerned, the Attorney submitted the letter was summarising the advice of Mr Walker. He submitted that one of the possibilities being alluded to in the letter was that the development application would be determined prior to the Commissioner's report. He submitted it was in that context that the Commissioner, with reference to the advice of senior counsel, expressed the view that evidence of a matter such as any "nefarious connexion" could be taken into account. He submitted the primary judge was correct in stating that what occurred was an appropriate and orthodox translation of an abstract principle to a particular factual context. He submitted that did not indicate a closed mind, but rather was a matter of commonsense that since such allegations had been made and canvassed in evidence, they were relevant in assessing the public interest. 126The Attorney submitted that there was nothing in the letter which would lead a fair-minded observer to conclude that the Commissioner was urging particular factual conclusions on other decision-makers because the Commission had a closed mind as to the findings he should make.

F The Commissioner's denial of having made factual findings (Grounds 8(b), 10 and 11) 127The following grounds of appeal were raised under this head: "8 In finding: .... (b) that there was no evidence that the Commissioner had made findings or that he might have made findings in the investigation styled "Operational Jasper" [J119], the primary judge erred in misstating, and in failing correctly to apply, the test for apprehended bias on the basis of pre-judgment, namely, whether a fair-minded and informed observer might reasonably apprehend that the relevant decision-maker might be committed to a conclusion already formed which is incapable of alteration, whatever evidence or arguments may be presented." "10 The primary judge erred in: (a) concluding, in effect, that: (i) there is a rebuttable presumption, in cases of alleged apprehended bias, that a fair-minded and informed observer would accept a disclaimer by a decision-maker that he or she has not made findings; and (ii) for a fair-minded and informed observer not to have accepted the Commissioner's disclaimers that he had made no findings, the Appellant was required to identify evidence that the Commissioner had made findings or that he might have made findings [J119]; and (b) failing to find: (i) that disclaimers of the sort made by the Commissioner are merely one of the circumstances to which a fair-minded observer is taken to have regard and are to be accorded no more weight than any other circumstance; or (ii) alternatively, if there is a presumption of the sort described in (a)(i) above, that the matters outlined at subparagraphs (a) to (e) of Ground 9 above constituted a rational basis upon which a fair-minded and informed observer might not accept the Commissioner's disclaimers. 11 The primary judge erred in failing to find that properly construed, the Commissioner's disclaimers that he had made no findings left open the possibility that he had, short of making any findings, nonetheless arrived at a concluded view concerning the allegations the subject of investigation in Operation Jasper." 128The applicant submitted that the primary judge gave almost determinative weight to the statements by the Commissioner that he had not made any factual findings. He submitted the primary judge was in error in adopting this approach. 129The applicant noted that the disclaimers were to the effect that the Commissioner had not made any factual findings and in their terms did not eliminate the possibility to a fair-minded observer that, although the Commissioner may not have made findings, he had a closed mind as to the findings that he would ultimately make. 130The applicant submitted that the notion that a disclaimer of bias is to be presumptively accepted elevates the decision-maker's own belief over the other material facts a fair-minded observer would be entitled to consider in determining the possibility of bias. He submitted that a decision-maker's own belief or state of mind is a matter relevant only to actual as distinct from apprehended bias. In that regard he relied on the dictum of Aickin J (in dissent) in R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 55. 131The applicant also submitted that the disclaimers of bias in their terms only related to the proposed response to the Premier's letter. He submitted that they were of limited scope and of limited weight in considering what may be inferred from the Commissioner's promotion of the Premier's letter, the fact the Commissioner had given advice before he called for submissions and his failure to disclose the extent and nature of his dealings with the Executive. 132The applicant went so far as to submit that the Commissioner by his public conduct might have been seeking to generate an impression of fairness and impartiality at odds with the reality of his conduct and his denials of pre-judgment were in furtherance of that objective. The applicant did emphasise that the submission was made in the context of what might be perceived by a fair-minded observer, not in the context of an allegation of actual bias. 133Senior counsel for the applicant said that the Commissioner's statements had to be weighed against the entirety of his conduct, including in particular his failure to disclose his private communications with Mr Eccles and the absence of a disclaimer of bias in those communications and, in relation to the Commissioner's statement of 14 February 2013, the fact that his remarks were made in the context of discussions concerning the transparency of the process he was undertaking. 134Senior counsel for the applicant also emphasised in this context that what was being considered was not a claim of actual bias but apprehended bias. He stated that notwithstanding the Commissioner's statements, a fair-minded observer might still consider that there was a possibility that the Commissioner had a closed mind on the issue. 135Senior counsel for the applicant also submitted that the primary judge erred at par [119] of his judgment in stating that an observer would need to have a rational basis for not accepting the Commissioner's disclaimers. He submitted that this reasoning represented a departure from the second limb of the Ebner test properly understood and involved the necessity of actually demonstrating bias. 136The Attorney submitted that the distinction between not making factual findings and pre-determining the matters to be determined was a distinction without a difference in the present context. He submitted the statements would be understood as an acknowledgement by the Commissioner that his investigations were ongoing and he had not reached a concluded view. 137The Attorney accepted that the disclaimers had to be considered in the context in which they were made. The Attorney submitted that unless there was some other aspect of the Commissioner's words or actions which might lead a fair-minded observer to apprehend that, notwithstanding the disclaimers given, the circumstances necessarily suggested pre-determination, then the reassurances would be accepted. 138The Attorney submitted that this approach did not involve a conflation of the concepts of actual and apprehended bias. He submitted the focus of an apprehended bias case remained on the state of mind of the decision-maker, viewed through the prism of a fair-minded observer, and fell to be considered by reference to all relevant circumstances, including the disclaimer. 139Senior counsel for the Attorney submitted that there was no misapplication of the Ebner test by the primary judge. He submitted the effect of the primary judge's conclusion was that there was nothing which had happened in fact which would reverse what would be the starting point for a reasonable observer, namely, that a person who says they have not reached a concluded view would be accepted in the absence of anything to contradict it.

G The impression that a fair-minded observer might form having regard to the totality of the facts (Grounds 9 and 12) 140The grounds of appeal which relate to this issue were as follows: "9 In applying the test for apprehended bias, and in particular the so-called 'second limb of the Ebner test', the primary judge erred by failing to have regard to what a fair-minded and informed observer might reasonably apprehend on the basis of the totality of: (a) the Commissioner's role in promoting the sending of the Premier's Letter; (b) the circumstance that upon learning of the advice received by the Planning Minister, the Commissioner then volunteered alternative advice to the Director-General of the DPC to ensure that the Government could, prior to the publication of the ICAC's report on Operation Jasper, consider the Project Application, having regard to the evidence before ICAC; (c) the Commissioner's multiple and shifting explanations for the legal basis of his interactions with the Executive Government of New South Wales; (d) his failure to disclose the full extent and the nature of those interactions, despite publicly addressing the Premier's Letter on three occasions; and (e) the transmogrification by the Commissioner of the hypothetical set out in paragraph 18 of Mr Walker's opinion into a comment upon the circumstances being investigated by the ICAC, as distinct from each of these matters, taken in isolation." "12 The primary judge erred in failing to find that a fair-minded and informed observer might reasonably apprehend that in his conduct of Operation Jasper, the Commissioner might be committed to a conclusion already formed which is incapable of alteration, whatever evidence or arguments may be presented." 141The applicant submitted that whilst the primary judge considered each of the grounds relied on in isolation, he failed to consider the impression that might be formed by a fair-minded observer looking at the facts holistically. He submitted that looking at the facts holistically, a fair-minded observer might first conclude that by 15 January 2013 the Commissioner had determined to make recommendations adverse to the applicant and his associates and sought the Government's imprimatur to do this. Second, the fair-minded observer might conclude that the Commissioner sought to facilitate the Government taking adverse action on the basis of evidence before the Commission even before the provision of the Commissioner's report. Third, that by not disclosing the full extent of his dealing with the Government whilst calling for submissions, the Commissioner might have been seeking to create the public impression of open-mindedness contrary to the reality of the situation. 142The applicant accepted that there was no doubt the Act permitted the Commission to interact with other authorities and to form views and opinions for that purpose. However, he submitted that there was nothing in the Commissioner's promotion of the Premier's letter or advice to the Government which involved an investigative function or pursuit of a line of inquiry. 143The applicant finally submitted that the expectation underlying s 17(2) and s 31(10) of the Act was that interested persons could make submissions at a public inquiry and that this necessarily involved the Commissioner keeping an open mind until its conclusion. He submitted that, in that context, any conduct which suggested an intention to make a recommendation or to encourage action adverse to the applicant and his associates might give rise to a reasonable apprehension of bias. 144The Attorney submitted that the primary judge noted the applicant's case was that there were five areas of concern which taken individually or together demonstrated apprehended bias, and that he then examined each of the matters. The Attorney suggested there was nothing to suggest that the logical connection required by Ebner, though missing when the circumstances were looked at individually, was present when they were considered together.

A The principles 145As I indicated, the parties accepted that the test for apprehended bias was whether a fair-minded observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issue in question: Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 300; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; Ebner at [6]; Michael Wilson & Partners v Nicholls supra at [31]. 146The manner in which the test is to be applied was set out by the High Court in Ebner at [8] in the passage which I have cited above (par [63]); see also Michael Wilson & Partners supra at [63]. Translated into the present case, this involves consideration of whether the matters raised by the applicant have a logical connection with the feared deviation by the Commissioner from the course of determining the issues raised in the inquiry on the merits, by virtue of pre-judgment. Pre-judgment in the present case means having a closed mind, in the sense of not being open to persuasion by any additional evidence or submissions from the parties, that the grant of the licence the subject of the inquiry was procured by corruption involving the then Minister for Mines and that the applicant and his associates were beneficiaries of that conduct (the corrupt conduct): McGovern v Ku-ring-gai Council supra at [15]; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72]. 147I agree with the submission of the applicant that the application of the second limb of the Ebner test does not require an inevitable conclusion to be drawn from the facts that a fair-minded observer would consider there was a possibility that the decision-maker had pre-judged the issue. The test to be applied is framed at all stages at the level of possibility. What is required is that a fair-minded observer might perceive a logical connection between the matters raised and the possibility of the decision-maker not bringing an impartial mind to the issue. 148That being said, it must be emphasised that the connection must be one capable of being drawn as a possibility by a reasonable and fair-minded observer. In R v Lusink; Ex parte Shaw supra at 50, Gibbs ACJ stated that it must be "firmly established" that such a suspicion may be reasonably engendered in the minds of the public or the parties. See also R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554. 149In this context it was submitted by the applicant that it was inappropriate to consider what might be described as alternative possibilities to that of apprehended bias in determining whether the second limb of the Ebner test was made out. I do not agree. A consideration of the possible reasons why the particular course may have been taken may be of assistance in determining whether the logical connection required by the second limb of the Ebner test is made out. For example, if it was clear that the reason for the action taken by the decision-maker said to give rise to the possibility of bias was unconnected with any pre-judgment of the issue, consideration of that reason would be appropriate in determining the issue of whether a reasonable and fair-minded observer might see a logical connection between the acts complained of and the possibility of bias. 150That does not mean that if there is an explanation of what occurred inconsistent with or not involving the possibility of bias, a claim of apprehended bias will necessarily fail. The fact that there are alternate possibilities that may exist does not mean that a fair-minded observer might not conclude that what occurred showed the possibility of bias. Ultimately the question is whether as a matter of possibility the matters complained of might lead a fair-minded observer to conclude that the decision-maker did not bring an impartial mind to the decision. 151It is also clear from the authorities that the fact the court or other decision-maker has formed or expressed tentative views on the issue in question, would not, at least of itself, give rise to the possibility of bias in the mind of a fair-minded observer: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, 576; Johnson v Johnson supra at [13]; Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [31]-[33]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [111]-[112]. Although the remarks in those cases were made in respect of allegations of bias in relation to judicial tribunals, they apply equally to bodies carrying out non-judicial functions. That was made clear in Ex parte Angliss Group supra in the following terms at 553: "It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the Commission does not sit to enforce existing private rights. Amongst other things it is its function to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights. It is not necessarily out of place and it might be expected that a member of the Commission from time to time in the course of discharging his duties should express more or less tentative views as to the desirability of change in some principle of wage fixation." 152As is apparent from the passage from Ex parte Angliss Group which I have just cited, the matters falls to be considered in the context in which the decision-maker exercises his or her powers: McGovern v Ku-ring-gai Council supra at [7]-[10], [75]; Minister for Immigration and Multicultural Affairs v Jia Legeng supra at [179]-[181]; Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [27], [66]-[67]. 153I have set out the relevant provisions of the Act and their effect above. The Commission is an investigatory body charged with investigating and reporting on corrupt conduct and advising on its prevention and elimination. Although it is required to act on a reference from both Houses of Parliament it can conduct inquiries of its own motion and in relation thereto hold both public and private inquiries. 154It would seem to me that although a fair-minded observer would not have detailed knowledge of the Act, he or she would at least have knowledge of the matters referred to in par [155]-[156] below. 155It would follow in my opinion that a fair-minded observer would be aware that in performing its functions the Commissioner and the Commission may from time to time form preliminary or tentative views as to the existence of corruption. It is inevitable that a body charged with investigations of the nature of those undertaken by the Commission will from time to time form such tentative views. Indeed, the formation of such views would in some circumstances be a necessary part of the Commissioner's functions in determining whether particular matters did or did not require further investigation. 156Further, the fair-minded observer in my opinion would have no expectation that all communications between the Commission and public officers or for that matter all facets of any investigation would be disclosed. In particular the fair-minded observer would not find it surprising that the advisory functions contained in s 13(1)(e) and (f) would be performed in private.

B Application of the principles to the present case 157It will be necessary to consider whether the particular matters referred to by the applicant either taken in isolation or together, might cause a fair-minded observer to believe that the Commissioner might have pre-judged the question of whether the corrupt conduct existed. 158It is important to bear in mind the context in which the matters complained of occurred. The Planning Minister had announced that he had received advice, first, that the manner in which an applicant for development approval came to be the proponent was not necessarily a relevant consideration in determining whether the application should be granted and, second, that a decision to terminate or defer assessment of the application would provide potential grounds for appeal to the Land and Environment Court. 159It follows in my opinion, that if the Commissioner took the view that the exploration licence might have been obtained as a result of corrupt conduct and that it was in the public interest that that be taken into account in assessing the development application, it would be appropriate to advise the Planning Minister or the Executive of that fact and suggest deferral of any decision pending receipt of the report. Such conduct in my view, would not give rise to a possibility in the mind of a fair-minded observer that the Commissioner might have had a closed mind on whether such conduct had occurred. It would be seen simply as advice not to make a decision until all relevant facts were found. 160Further, it would be known to the fair-minded observer that it was a matter for the Planning Minister, acting in accordance with his or her statutory obligations, to determine at what point in time a decision to grant or refuse the development application should be made. The fair-minded observer would also be aware that the Commissioner himself would be aware of that fact. 161In these circumstances it seems to me that if the Commissioner formed the view that there was a possibility that the Minister might make a decision before delivery of his report and that in those circumstances the evidence which had been led before the Commission was a matter the Planning Minister should take into account in reaching his decision, notification of that view to the Planning Minister would not lead to a reasonable possibility that a fair-minded observer with knowledge of the Commissioner's functions, to which I have referred, would conclude that the Commissioner might have a closed mind on the question of whether the corrupt conduct existed. Whilst the relevant test sets a low threshold, it does not seem to me that a fair-minded observer might reasonably conclude that the provision of such advice might indicate a closed mind on the issue. A fair-minded observer would appreciate, in my opinion, that it was a matter for the Planning Minister as to the manner in which the evidence should be taken into account and what if any conclusion should be drawn from it. It does not seem to me that notifying the Executive that the evidence before the Commission could or should be taken into account, without any expression of opinion as to what conclusion should be drawn from it, could indicate the possibility of a closed mind to a fair-minded observer. 162It is necessary, however, to consider whether the particular conduct by the Commissioner in this case might lead a fair-minded observer to consider that the Commissioner might have had a closed mind.

C The Premier's letter 163I have set out Mr Eccles's note of the meeting which took place between him and the Commissioner on or about 15 January 2013 in par [16] above. It is to be noted that what was suggested was in effect to include in a report in respect of Operation Jasper, which included the Mount Penny licences, similar recommendations as those which had been sought by the Parliament in its resolutions of 11 and 23 November 2011 in respect of Doyles Creek. On its face that would seem unremarkable. The Premier's letter sent on 30 January 2013 did no more than request recommendations in the terms suggested in the earlier conversation. 164The applicant's primary submission was that the primary judge failed to appreciate that the Premier or the Executive had no power to enlarge any inquiry that the Commission had sought to embark upon and that it was within the power of the Commission and the Commissioner to enlarge the inquiry and make the recommendations of its own accord. In those circumstances it was submitted that any request from the Premier to enlarge the inquiry had no legal effect and was aberrant to the process. 165Although the primary judge did not expressly refer to these matters, it does not seem to me that he proceeded on a misunderstanding of the powers of the Commission or the Commissioner or for that matter the lack of power in the Executive to enlarge the inquiry. He pointed out in pars [87]-[88] of his judgment that the Commissioner could have widened the inquiry of his own volition but chose not to do so. He did not suggest the Commission was bound to act on a request from the Premier. Further, to the extent that what had occurred was said to be aberrant to the process, it must be remembered that the Act in s 13(1)(e) envisaged requests from public officials for advice or recommendation on ways in which corrupt conduct may be eliminated. 166However, even accepting that the Commissioner could have enlarged the inquiry himself and that the Premier's letter had no legally binding effect, there does not seem to me to be any logical connection between these matters and a reasonable possibility in the mind of a fair-minded observer that the Commissioner might have had a closed mind on whether the corrupt conduct had occurred. 167The applicant submitted that such a closed mind could have been seen as a possibility by a fair-minded observer as a result of the process of reasoning to which I have referred in par [75] above. However, even assuming a fair-minded observer might consider that the Commissioner believed a recommendation from him on the issue could be seen as encroaching on an area within the domain of the Planning Minister and sought the letter as "political cover", that could not logically lead to a reasonable apprehension that the Commissioner might have concluded there was corrupt conduct, in the sense of having formed a view incapable of change regardless of the facts, evidence or submissions provided to him. At most, a fair-minded observer might have considered that the Commissioner perceived the possibility of making recommendations in relation to the licences and, in light of the Planning Minister's statement that the manner in which the licences were obtained was irrelevant to his decision, sought the support of the Premier to make recommendations if he ultimately considered it appropriate. 168The applicant criticised the primary judge for speculating that the reason for the request was that the Commissioner, having heard much of the evidence considered that the inquiry should be widened and it would be better served if it came from the Government, whilst on the other hand, stating that that hypothesis assisted the applicant's case. 169So far as the latter submission is concerned it suffers from the same problem as the hypothesis propounded by the applicant, namely, that even if it appeared that the Commissioner wanted the Government's support or political cover for any recommendation he may choose to make, that is not something from which a fair-minded observer might reasonably conclude that the Commissioner might have a closed mind as to what the recommendation should be. 170Ultimately speculation as to the motivation of the Commissioner in making the request for the Premier's letter is futile and tends to detract from the real issue, namely, whether there is a logical connection between the conduct of the Commissioner and the possibility of pre-judgment in the mind of a fair-minded observer. For the reasons I have given, the answer to that question is "No". 171Further, the applicant submitted that there was no evidence to support the finding of the primary judge that communications of this nature occurred in the normal course of events. Whether or not this is correct, the Act does envisage contact between the Commissioner and the Executive not necessarily of a public nature. Even if it is accepted that this was an unusual communication, it does not give rise to the possibility of a reasonable perception of possible pre-judgment. 172In those circumstances these grounds of appeal are not made out.

D The Commissioner's advice to Mr Eccles and the Premier 173I have set out Mr Eccles's note of the telephone conversation between him and the Commissioner on 31 January 2013 and the Commissioner's letter of advice to Mr Eccles of the same day in pars [18] and [19] above. 174A number of matters should be noted. First, in the conversation the Commissioner expressed his concern that on the view of the Planning Minister, matters before the Commission could not be taken into account when considering whether or not to grant a development application. Second, he suggested a legislative pathway by which public interest matters could be considered. Third, the Commissioner expressed the view that allegations of ministerial fraud were relevant to the public interest. Fourth, he suggested development approval should not be issued until he reported to Parliament. 175The subsequent letter to the Premier, after referring to the legislative pathway by which the public interest could be taken into account, stated that the issue of whether the then Minister for Mines acted fraudulently or corruptly was one that should be taken into account in determining whether it was in the public interest to grant the development application. The letter went on to state that the Commission's final recommendations would only be available in the middle of the year. It stated, however, that evidence before the Commission could be taken into account in considering the public interest. 176It should be noted that neither in the conversation nor in the letter did the Commissioner suggest that he had formed a final or even tentative view on the issue of whether the corrupt conduct had occurred. In the conversation he referred to allegations of ministerial fraud and corruption being relevant. The letter was silent except to say that factual and any corrupt conduct findings made by the Commission would be relevant to the public interest question and that such findings would not be available until the middle of the year. 177I have set out the applicant's submissions in pars [88]-[98] above. He submitted that the primary judge erred in finding that a fair-minded observer would believe that the Commissioner, being aware of the advice received by the Planning Minister and being aware of the possibility of a finding of corrupt conduct, sought to defer the decision on the development application. However, that was precisely what was suggested in the conversation. Whilst it is true the letter did not suggest deferral, it was written in the context of the conversation and made it clear that the Commission's findings would not be available until the middle of the year. 178The applicant submitted that the Commissioner knew that the application for development approval was in a state of suspense. It does not seem to me that it could be inferred that the Commissioner was aware of this at least at the time he wrote the letter to Mr Eccles. Although it is correct that Mr Haddad of the Department of Planning and Infrastructure informed the solicitor for the Commission that the application for development approval could not proceed until a fresh environmental assessment had been lodged, the letter from the solicitor for the Commission to Mr Eccles of 31 January 2013 stated that that conversation occurred after the Commissioner had written his letter of that date to Mr Eccles. 179Even if it could be inferred that, at the time he wrote his letter, the Commissioner was aware that the application could not proceed until a fresh environmental assessment was required, there was no evidence to suggest that the Commissioner knew one way or another when such an assessment was likely to be provided. Further, the advice the solicitor had received from Mr Haddad was that the application for development approval must proceed once the environmental assessment was received. Thus, to state the application was in a state of suspense obscures the fact that it could be reactivated at any time. In these circumstances, contrary to the applicant's submission, the Commissioner was justified in treating the matter as one of urgency. 180The applicant suggested that the statement in the Commissioner's letter of 31 January 2013 that it was open to the Commission to make a recommendation that development consent not be granted, coupled with a statement that any recommendation would not be available until the middle of the year, may have been taken by a fair-minded observer as indicating the Government could refuse development consent prior to the receipt of the Commission's report based on evidence before the Commission. 181I do not agree. The Commissioner was stating that any corrupt conduct findings and any recommendations would not be available until the middle of the year. This, in my opinion, could not suggest to a fair-minded observer that the Commissioner might have already made findings or formulated his recommendations. A fair-minded observer would read these statements as indicating the possibility of such findings or recommendations and encouraging deferral until the report was produced. This is consistent with what was said in the conversations which immediately preceded the letter. Further, it does not seem to me that a fair-minded observer might read these paragraphs as encouraging the Government to pre-empt his report by refusing the development application. 182Nor do I think that the statement in the letter to the effect that the evidence could be taken into account in considering the public interest question could indicate to a fair-minded observer that the Commissioner had pre-judged the issue of corrupt conduct. It seems to me that a fair-minded observer could conclude from this statement that the Commissioner held a view that there was a possibility of corrupt conduct and that if the Planning Minister was required to make a decision prior to the publication of the Commission's report, he should take the evidence before the Commission into account. It does not seem to me that it could logically be concluded from these matters that the Commissioner might have formed a closed mind on the issue of corrupt conduct. 183The letter from the solicitor for the Commission to Mr Eccles of 31 January 2013, which refers to discussions between the solicitor and Mr Haddad as to whether evidence before the Commission or the Commission's findings or recommendations could be taken into account in the development process does not advance the issue further. 184The applicant submitted that it was significant that the communications took place between the Department of Premier and Cabinet rather than the Planning Minister and that if all that was sought was to defer the decision, the communications would have been with the latter Minister. There are a number of answers to this submission. First, it does not seem to me surprising or unusual that the Commissioner chose to communicate with the most senior public servant of the State on a matter of some significance. Second, the letter from the solicitor for the Commission to Mr Eccles indicated there had been similar discussions with the Director General of the Department of Planning and Infrastructure concerning these issues. In these circumstances, the fact that the Commissioner's communication was with the Department of Premier and Cabinet could not indicate the possibility of pre-judgment to a fair-minded observer if the contents of the communications themselves did not indicate the possibility of pre-judgment. As I have indicated, they do not. 185It may be, as the applicant submitted, that the analogy between what occurred and an interlocutory injunction was inapt. However, reading the Commissioner's letter in the context of the conversation which preceded it, a fair-minded observer could well conclude, in my opinion, that the Commission was encouraging the Government to defer any decision on the development application until such time as the Commission produced a report, or if that was not possible, to take the evidence before the Commission into account. No doubt a fair-minded observer could also conclude that the Commissioner's motivation in doing so might be to ensure that any corrupt conduct which existed was taken into account as part of the planning approval process. In that context a fair-minded observer could also conclude that the Commissioner had reached a tentative view that the evidence before him may have revealed corrupt conduct. However, it does not follow in my opinion that a fair-minded observer might reasonably consider that that the Commissioner might have had a closed mind on this issue. There is nothing in the letter or in the conversation which preceded it to indicate that possibility to a fair-minded observer. 186It follows that the primary judge neither misstated nor failed to correctly apply the Ebner test and that the grounds of appeal raised under this head are not made out.

E The Commissioner's statements of 6, 11 and 14 February 2013 187The grounds of appeal under this head primarily relate to the contention that the statements made by the Commissioner on those days, his response to the letter from the solicitors for the applicant of 13 February 2013 and his failure to disclose his prior advice to Mr Eccles, in particular that failure in the context of stating that everything in the public inquiry had been undertaken in an open fashion, might demonstrate to a fair-minded observer that the Commissioner might have a closed mind on the question of the existence of the corrupt conduct. 188The first matter relied upon may be disposed of shortly. The applicant submitted that there was no justification for the Commissioner treating the matter as one of urgency when urgency was not called for by the Premier's letter. However, as I have pointed out, the Commissioner did not know when the Planning Minister would be required to consider the development application. In these circumstances he was justified in treating the matter as one of urgency. No possibility of a closed mind could arise in the mind of a fair-minded observer by reason of him adopting that course. 189Further, these considerations indicate why the Commissioner stated on 14 February 2013 that the urgency arose because, in his view it was in the public interest, in light of the nature of the evidence and the attendant media publicity, that the options open to the Government be made plain to it. Contrary to the applicant's submissions, viewed in the context of the possibility of the need for development approval to be considered prior to his findings, the explanation is not unintelligible. Much less could it disclose the possibility of a closed mind to a fair-minded observer. 190The applicant submitted that the use of the present tense by the Commissioner in his comments on 11 February 2013 for the need for the application of public interest criteria regardless of "whatever factual findings may be made in the future" (see par [108] above) meant that a fair-minded observer might understand the advice was directed to assist the Government to make a decision whether or not to approve the application prior to receipt of the Commissioner's findings. I do not agree. The Commissioner was saying that in his advice to the Premier he proposed to state that in relation to the events which were alleged to have occurred and having regard to the evidence, it was appropriate that public interest criteria be considered in the approval process. The use of the expression "whatever factual findings may be made" merely emphasised that public interest criteria was required to be adopted whenever consideration was given to the development application. A fair-minded observer would not consider that it was possible that the Commissioner was encouraging an early decision as distinct from stating that whenever the decision was made, public interest criteria should apply. Further, a fair-minded observer could not reasonably consider that these comments raised the possibility that the Commissioner had pre-judged the issue of corrupt conduct. 191The primary thrust of the applicant's submissions under this head related to the Commissioner's failure to disclose his previous conversation and correspondence with Mr Eccles, particularly in the context of his remarks concerning transparency. The submission effectively amounted to two propositions. First, because the Commissioner had already given advice a fair-minded observer might consider his calls for submissions were not genuine. Second, in these circumstances, a fair-minded observer might conclude that the reason for calling for submissions was to give the impression of fairness in respect of a matter which he had pre-judged. Added to this was the submission that a fair-minded observer might believe that it was possible that the Commissioner was loath to disclose his previous advice because it would give rise to the impression that he had pre-judged the issue of corrupt conduct. 192It is important to first consider the context in which the Commissioner's comments concerning transparency were made. The solicitors for the applicant had sent a letter suggesting that the course adopted by the Premier in communicating with the Commissioner was inappropriate and asserting that the Commissioner's statements of 6 and 11 February 2013 indicated he held the view that before publication of his report the Government should "consider whether it should refuse development consent for a mining lease in respect of the Mount Penny tenement". The letter also suggested that it was difficult to see how the Commissioner "can possibly avoid the impression that he might have come to a concluded view concerning, among other things allegations of corrupt conduct". The letter included in par [10] what could be described colloquially as a request for further and better particulars. 193The first thing that should be noted is that the Commissioner did not, on either 6 of 11 February 2013, make any statement to the effect that the Government should consider whether it should refuse consent to the development application. He simply stated that all matters of public interest should be taken into account in the approval process. 194The second matter to be noted is that the Commissioner's first comment on 14 February 2013 concerning transparency was made in the context of the Commissioner criticising the solicitors for the applicant for writing a letter complaining about his conduct rather than raising it at the public inquiry. That is clear from the context in which the comment was made. It is clear the Commissioner was only referring to the public inquiry. That comment does not contain any implication that the Commissioner had not had private communications outside the public inquiry. 195The Commissioner's second comment "[a]gain in the interests of transparency and in the interests of giving everyone a chance to make submissions that letter was made an exhibit in this inquiry" related to the reason the Premier's letter was tendered. A fair-minded observer might conclude that the Premier's letter was the only communication between the Commissioner and the Executive on this issue. The fact that this was revealed to be incorrect and the content of the other communications later disclosed, in my opinion might lead a fair-minded observer to consider that the Commissioner might have formed a strong or even final view as to the advice to be given to the Premier. Indeed, the Commissioner had already indicated the advice he thought appropriate in his statement of 11 February 2013 consistent with the terms of the letter which had been previously sent to Mr Eccles. 196However, unless the undisclosed material itself revealed material from which a fair-minded observer might conclude that it was possible the Commissioner had formed a closed mind on the issue of corrupt conduct, its discovery would not lead to a possibility in the mind of such a fair-minded observer that the Commissioner might have had a closed mind on that issue, as distinct from the issue of the appropriate advice to be given to the Premier. For the reasons I have given, the earlier communications do not give rise to that possibility. 197The applicant also submitted that a fair-minded observer might have considered the Commissioner had not disclosed the material because he believed it would give the impression that the Commissioner had pre-judged the issue. However, for the reasons I have given, as the earlier material would not have given rise to such an apprehension, there is no basis for concluding that a fair-minded observer might consider the reason for non-disclosure was to avoid that apprehension. 198Finally, the applicant submitted that the disclosure of the Premier's letter would cast doubt upon whether the invitation to make submissions was genuine which in turn might indicate that the Commissioner was attempting to create the impression of fairness on a matter already decided adversely to the applicant and his associates. 199There are two answers to this submission. First, notwithstanding the views expressed by the Commissioner to Mr Eccles, on 6 February 2013 when the Commissioner called for submissions at the inquiry as to the manner in which he should respond to the Premier's letter, the Commissioner had sought advice from Mr Walker on two questions directly relating to the proposed response (see par [22] above). The fact that the Commissioner was continuing to seek advice on the question would suggest to a fair-minded observer that the Commissioner had not finally determined how to respond to the Premier's letter. In those circumstances a fair-minded observer could not reasonably conclude that the call for submissions was not genuine. 200Second, even if this is incorrect, the most a fair-minded observer might conclude from such non-disclosure was that the Commissioner had a closed mind on the appropriate means of responding to the Premier's letter. Such a fair-minded observer might conclude the Commissioner intended to respond in the manner he had already responded to Mr Eccles, regardless of the submissions he received. However, if it is accepted that the latter could not raise the possibility of pre-judgment in the mind of a fair-minded observer, there is no logical connection between the failure to disclose the letter and reasonable apprehension of pre-judgment on the issue of corrupt conduct. 201It follows the grounds of appeal under this head fail.

F The advice to the Premier 202The first submission made by the applicant was that there was no reason at all to send the letter to the Premier as advice had already been given to Mr Eccles. However, if the earlier advice and the response to the Premier's letter do not themselves exhibit pre-judgment then there is no logical connection between duplication of the advice and that issue. I have already stated why the letter to Mr Eccles could not indicate the possibility of pre-judgment to a fair-minded observer. 203The primary complaint concerning the Premier's letter was the incorporation into the letter of the references by Mr Walker in his opinion to "nefarious conduct" and "irregularities of a sinister kind" coupled with the Commissioner's failure to state that any decision should be deferred pending receipt of his report. 204It must be remembered that a copy of Mr Walker's advice and the instructions which he was given to prepare that advice were enclosed with the response to the Premier. The Commissioner was adopting the words used by Mr Walker in par [17]-[18] of his advice. Those were the words Mr Walker chose to use for what I have described as corrupt conduct. The fact that the Commissioner adopted those words, referring expressly to their source, could not in my opinion lead to the possibility of a fair-minded observer concluding that the Commissioner might have had a closed mind on the issue of whether such conduct in fact existed. 205The Commissioner made it clear in writing the letter that his advice was not dependent on his having made findings. Thus in relation to issue (a) in the letter he stated that the public interest criteria should be applied irrespective of any factual findings or legal challenges to any findings of corrupt conduct he might make. Further in relation to issue (e) the Commissioner stated in effect that if the Planning Minister took the view that the grant of the mining licences was tainted by corrupt conduct, he could take this into account in determining whether to either grant or refuse the licence. The Commissioner himself did not express a view one way or the other whether such corrupt conduct existed or whether it should lead to a refusal of the licence. 206Having regard to the advisory function performed by the Commission, it was appropriate in my opinion for the Commissioner to express the view that public interest considerations could be taken into account in determining the fate of the development application and that if the Planning Minister was of the view that the grant of the licence was tainted by corrupt conduct, that was a matter to be taken into account in determining whether or not to grant the development application. The letter in my opinion did not encourage the Minister to deal with the application prior to the publication of the Commission's report but merely stated what should be taken into account when the Minister in fact came to deal with it. In these circumstances and in circumstances where the letter gave no indication as to the findings the Commission might make, it does not seem to me that the adoption of Mr Walker's expressions could give rise to the possibility in the mind of a fair-minded observer that the Commissioner might have had a closed mind on the issue of corrupt conduct. 207The grounds under this head also fail.

G The Commissioner's denial of having made factual findings 208Because of the conclusions which I have reached on the other grounds of appeal, it is unnecessary to deal with this ground in any detail. 209However, I do not agree that the primary judge gave "almost determinative" weight to the Commissioner's denial. His statement at par [119] that no basis had been identified for rejection of these denials, is simply a reflection of his earlier findings as to the absence of apprehended bias. 210Nor do I agree that such denials are only relevant to questions of actual bias as distinct from apprehended bias. A fair-minded observer would take into account statements by a decision-maker as to his or her state of mind in determining whether the decision-maker might not be able to fairly adjudicate on the issue before him. Such statements may not be determinative but they are certainly a relevant factor. 211In these circumstances the primary judge did not err in his treatment of these denials, or fail to correctly apply the test for apprehended bias.

H The impression that a fair-minded observer might form from the totality of the facts 212The applicant criticised the primary judge for failing to look at all matters complained of holistically as well as individually. It is not clear that in fact he adopted this approach. At par [76] he appeared to accept the applicant's submission that matters had to be looked at individually and together although he did not expressly adopt this course in his judgment. 213The nub of the applicant's case on this issue is that a fair-minded observer might form the view that the Commissioner, having determined it was appropriate that the Planning Minister take either his findings or the evidence before the Commission into account in deciding on the fate of the development application, sought the Premier's letter as political cover and having received the letter made it public and called for submissions without disclosing that in fact he had sought the letter and already given such advice. It was said that a fair-minded observer might consider in those circumstances that what was done was to create an impression of fairness which would be contradicted if communications which had taken place prior to his announcement of the receipt of the Premier's letter had been disclosed. Finally it was submitted that in addition, the letter to the Premier might be construed by a fair-minded observer as encouraging the Planning Minister to reject the development application. From these matters in combination it was submitted that a fair-minded observer might have considered that the Commissioner might have had a closed mind on the issue of corrupt conduct. 214I have dealt with all these matters individually and found that none of them might demonstrate the possibility of a closed mind to a fair-minded observer. In my opinion, taken in totality they also could not reasonably give rise to the possibility of a fair-minded observer considering that the Commissioner might have had a closed mind. At most in my opinion, they would demonstrate to a fair-minded observer that in January 2013 the Commissioner formed a view as to what should be taken into account in dealing with the development application, communicated that view but decided to withhold it until he received political cover. In this context a fair-minded observer might at most consider that the Commissioner had formed a view on what the Planning Minister should take into account in considering the development application. However, for the reasons I have given it does not follow that a fair-minded observer could reasonably conclude that the Commissioner had or might have had a closed mind on whether corrupt conduct existed. 215In these circumstances this ground of appeal also fails.

Conclusion 216In the result, the appeal should be dismissed with costs. 217BARRETT JA: I agree. The inquiry upon which the Commission is engaged is not some form of legal proceeding in which the State and elements of the executive are pitted against persons summoned for examination or the interests that those persons represent. The process is quite different. In the course of an inquiry, hypotheses are formed and subjected to continuous assessment. As evidence accumulates, suspicions and inferences are tested and refined. Some are confirmed, others are not. Hypotheses are likewise re-evaluated and re-shaped as the process continues. A series of possibilities may be considered and discarded during the course of a particular inquiry. 218Given that context, the Commissioner's action in communicating as he did with the Minister for Planning was not such as to engender in the mind of a reasonable fair-minded observer an apprehension of predisposition towards any particular outcome of the Commission's inquiry. It was (and would have been seen to be) a step taken legitimately in the public interest to acquaint the Minister with the fact that future findings on matters under consideration by the Commission might be relevant to the exercise of the Minister's statutory functions. The Commissioner flagged no more than a possibility indicated by the then state of the inquiry's evolution. 219Likewise, a reasonable fair-minded observer would not have inferred any such predisposition from the Commissioner's solicitation from the Premier of a request to extend the scope of the inquiry in a way that the Commissioner could himself have achieved in any event. The extension was no doubt made so that developing possibilities might be brought within the terms of reference. Whatever may have been the motivation for seeking the request, the desire of the Commissioner to have in advance some measure of government support or political cover for a course that he proposed taking did not imply anything but an open and inquiring mind in relation to the expanded subject matter of the investigation. 220WARD JA: For the reasons articulated by the Chief Justice, I am not persuaded that Hoeben JA erred in holding that the test for apprehended bias set out in Ebner, and applied more recently in Michael Wilson Partners v Nicholls, was not satisfied in this case, whether that test be applied individually (to each of the matters by reference to which apprehended bias was alleged) or holistically (to the overall conduct of which complaint was made). 221It is not disputed that what was required was that the applicant firmly establish that a fair-minded lay observer, having regard to the conduct identified by the applicant, might reasonably apprehend that the Commissioner might have a closed mind or might not be open to persuasion on the relevant issue or issues for determination by the Commissioner. 222While the "double might" test for apprehended bias does not require that prejudgment (or a closed mind) be the inevitable conclusion that a fair-minded lay observer might reasonably reach, it does require that there be a logical or rational connection between the matter that is said might reasonably give rise to an apprehension of bias in the mind of such an observer and the matter in respect of which it is apprehended that the decision-maker might be biased. 223In the present case, the relevant "matter" identified for the purpose of considering whether there was the requisite logical connection was as to the circumstances surrounding the issue of the exploration licence in question (namely, whether it was procured by corruption involving the relevant Minister and whether the applicant and his associates were to have been object of benefit of any such corrupt conduct). 224The context in which the relevant events occurred has been set out in Bathurst CJ's reasons. As to the question whether the possibility of a perception of bias was one that was rationally open on the evidence, emphasis was placed by the applicant on matters such as the contrast between the Commissioner's public statements (including as to the transparency of his conduct in relation to the request for advice) and the lack of disclosure or "apparent lack of frankness" in relation to the communications between the Commissioner and members of the executive, as indicating that it might reasonably be perceived that the Commissioner might have a closed mind or might have pre-judged the relevant matter (i.e., whether there had been corrupt conduct in the grant of the licence to the benefit of the applicant or his associates). 225Mr Hutley SC submits that the statements that were made publicly by the Commissioner must be weighed against the entirety of his conduct, including: that there was no public disclosure of the initial communications that led to the (apparently unsolicited) request by the executive to expand the scope of the Commissioner's investigation; the non-disclosure of the circumstances in which the request for advice as to planning matters was received (namely that certain advice had already been given by the Commissioner in that regard); and the statement as to the transparency of the process without disclosure of all of the communications that had taken place. 226Mr Walker SC, appearing for the Attorney, emphasised the distinction between the investigation being carried out by the Commissioner and what might or might not be decided by the relevant Minister in relation to the application for development consent. In other words, whether or not the Commissioner had formed a view as to whether a decision should be made (or should be deferred) on the application for development consent pending the conclusion of his enquiry into the circumstances in which the mining licence had been granted, is not to the point. The relevant matter about which the possibility of a closed mind (and the reasonableness of an apprehension of bias) is to be tested is whether the award of a exploration licence to a company associated with the applicant was tainted by corrupt conduct of which the applicant may obtain a benefit. 227I am not persuaded that there is a logical connection between the question as to what matters could be taken into account as an administrative matter on the application for development consent and the decision before the Commissioner such as to permit the conclusion that a fair-minded lay observer might reasonably conclude, from the Commissioner's conduct (taken individually or collectively) that the Commissioner might not have an open mind as to the latter. 228The formation of a preliminary or provisional view as to the possibility that the evidence might sustain a finding that could be of relevance to a subsequent decision whether to grant development consent is not a sufficiently cogent basis for a fair minded observer rationally to consider that the Commissioner might not have an open mind as to the issues being investigated in relation to corrupt conduct in the grant of the exploration licence. Nor does the fact that the Commissioner appears to have taken the initiative in suggesting that the investigation be expanded or in suggesting that advice might be obtained as to the avenues available to defer the making of particular administrative decisions until after the conclusion of the enquiry provide such a basis. 229As to the inconsistency perceived in the statements by the Commissioner as to transparency of process and the non-disclosure of other steps that were taken in relation to the issues about which the Commissioner was inviting submissions, and the non-disclosure of the fact that the suggestion for an expansion of the enquiry emanated from the Commissioner and not the government, again those matters do not in my view have a sufficient rational connection to the decision that the Commissioner must make in relation to the circumstances in which the exploration licence was granted to satisfy the onus on the applicant firmly to establish the apprehension of bias. Speculation as to the reasons for the approach adopted by the Commissioner in this regard is unhelpful. 230I agree with the reasons of Bathurst CJ and the orders proposed by his Honour.

Amendments 27 June 2013 - typographical error Amended paragraphs: 130 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2013