Consideration
23Mr Kazal's principal proposition is that the Commission acted without jurisdiction, or exceeded its jurisdiction, having regard to the terms of the enabling Act. It is plain that the ICAC Act confers powers upon the Commission with respect to the making of findings of corrupt conduct. It is no part of the Commission's role or function to determine the guilt or innocence of any person with respect to any criminal charges or to make final, conclusive or indeed any findings concerning the commission of any criminal offence in accordance with the criminal standard.
24The principal objects of the ICAC Act describe the Commission as "an independent and accountable body" with functions, among others, to "investigate, expose and prevent corruption involving or affecting public authorities and public officials". The importance of the Commission's investigative role is reflected in the terms of s 13 of the Act. In that setting, the Act confers "far-reaching" powers on the Commission: Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 629. They include the power compulsorily to obtain information and documents and the power to enter premises. It has the power to conduct compulsory examinations of witnesses in public or in private and to summon witnesses to appear and give evidence and produce documents.
25Even though some of the Commission's powers are analogous to those exercised by courts, the Commission is possessed of an investigative role with fewer constraints than ordinarily attend the conduct of court proceedings. For example, the Commission is not bound by the rules or practice of evidence and can inform itself in such manner as it considers appropriate: compare Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [15]. The Commission shall exercise its functions with as little formality and technicality as possible, with compulsory examinations and public inquiries de-emphasising the adversarial approach. The Act contains a statutory abrogation of the privilege against self-incrimination and other grounds of privilege that might otherwise be claimed by witnesses giving evidence to the Commission.
26The existence and scope of these extra powers demonstrate that the legislature did not intend to constrain the Commission by reference to the rules and procedures that apply in courts. The absence of those constraints is consistent with the Commission's role as "primarily an investigative body and not a body the purpose of which is to make determinations...as part of the criminal process": Balog at 633. It is also consistent with that role that the Act makes provision to ensure that the conduct or outcome of its investigations should not bind or otherwise prejudice subsequent legal proceedings. See in this respect ss 13(3) and (5)(c), 74A(1) and 74B(1)(a) and (b).
27Importantly, in considering the matters covered by s 74A(2), the Commission must bear in mind the directive in s 37(3) that any answer made or document produced to the Commission in the context of a compulsory examination or public inquiry is not admissible in evidence against the person "in any civil or criminal proceedings or in any disciplinary proceedings", subject to s 37(4). Section 37(3) of the ICAC Act, is in these terms:
"37 Privilege as regards answers, documents etc
(1)...
(3) An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A) is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings."
28Moreover, s 74B(2) provides that a finding or opinion that a person has engaged in corrupt conduct "is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence." Section 74B(3) confirms that "criminal offence" has the same meaning as in s 9. Section 74B is as follows:
"74B Report not to include findings etc of guilt or recommending prosecution
(1) The Commission is not authorised to include in a report under section 74 a statement as to:
(a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
(2) A finding or opinion that a person has engaged, is engaging or is about to engage:
(a) in corrupt conduct (whether or not specified corrupt conduct), or
(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),
is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.
(3) In this section and section 74A, 'criminal offence' and 'disciplinary offence' have the same meanings as in section 9."
29The Commission's task is to make findings in respect of allegations of corrupt conduct, as defined in s 7, on the balance of probabilities and subject to its satisfaction of the matters in s 13(3A). The Commission takes into account the seriousness of a finding of corrupt conduct when considering whether the standard of proof has been met in any given case. The Commission is not required to make and cannot make a finding of criminal guilt in respect of offences or breaches of legislative provisions that may form the basis of a finding of corrupt conduct. That function is expressly reserved to the courts dealing with prosecutions that may be mounted by others.
30Consistently with the decision in Greiner, s 9(1)(a) requires an objective determination as to whether, on the primary findings of fact, if there were evidence of those facts before a properly instructed jury, it could reasonably find that a criminal offence had been committed. Gleeson CJ in Greiner at 136 said this:
"It was common ground in these proceedings that, in determining whether conduct could constitute or involve a criminal offence, the Commissioner would be required to go through the following process of reasoning. First, he would be required to make his findings of fact. Then, he would be required to ask himself whether, if there were evidence of those facts before a properly instructed jury, such a jury could reasonably conclude that a criminal offence had been committed. (It is not necessary for present purposes to examine what happens in a case where the Commissioner's findings depend in a significant degree upon evidence that would be inadmissible at a criminal trial.)"
31That formulation does not, however, import into the Commission's fact-finding process the principles of fact finding that are inherent in a criminal trial. The Commission is instead required to consider the question posed above upon the facts it has found, not as they would have to be found before there could be a successful criminal prosecution. Priestley JA said this at 186-7:
"Despite section 8, conduct does not amount to corrupt conduct unless, in the case of a criminal charge which could be tried before a jury, the facts found by the Commission as constituting corrupt conduct, would if the jury were to accept them as proved beyond reasonable doubt, constitute the offence charged, and unless, in the case of a criminal offence which would be decided by a judicial officer sitting alone, the facts found by the Commission as constituting corrupt conduct would, if the judicial officer were to accept them as proved beyond reasonable doubt, constitute the offence charged."
32Mr Kazal's submission that s 9(1)(a) of the ICAC Act required the Commission to consider whether its findings were capable on admissible evidence of being made to the criminal standard is based upon a misreading of the section and the decision in Greiner. Section 9(1)(a) does not require the Commission to point to an identifiable basis for saying that a charge under s 249B(2)(b) would successfully be made out or established in a criminal trial if prosecuted. The reference in s 9(1)(a) to criminal conduct is in my opinion merely descriptive, not determinative or adjudicative. Far from only placing emphasis upon the word "could" as it appears in s 9(1), it seems to me to be equally instructive and also necessary to emphasise the words "constitute or involve", which complete the phrase.
33The parliament has adopted a series of formulations in s 9(1), one of which incorporates the words "a criminal offence", partly by reference to which the availability of a finding of corrupt conduct is to be assessed. This formulation describes the possible or hypothetical ("could") nature of the conduct ("a criminal offence") without the need to make any determination or adjudication upon whether it has been committed or will in the execution of the criminal process be found to have been committed. The section makes it clear that the Commission is not empowered to make a finding of corrupt conduct unless, whatever else it may have determined, one at least of the s 9(1) qualifications also applies. The Commission has a discrete role in this respect, relevantly to make or decline to make a finding of corrupt conduct in accordance with the formula for which ss 7, 8 and 9 of the ICAC Act provide. As a matter of construction, the words "unless it could constitute or involve...a criminal offence" are wholly different from words such as "unless a criminal offence has thereby been successfully prosecuted", or some equivalent formulation. Mr Kazal's argument depends upon some such construction being accepted. In my view, such a construction is not available.
34Mr Kazal's submissions include the contention that the phrase "could constitute...a criminal offence" in s 9(1)(a) means, "would, if proved". That submission has to be treated with some caution. It is instructive in this regard to recall the words of Gleeson CJ in Greiner at 129-30 as follows:
"...the Commission is not a court, but an administrative body that performs investigative functions and, in certain circumstances, makes reports. Clearly, its determinations can have devastating consequences for individuals... Yet there is no right of appeal against, or procedure for any general review of the merits of, such a finding. Indeed, a determination of corrupt conduct might be based upon the commission of an alleged crime, and might be followed by a trial of the individual involved, and an acquittal. That could happen for any one of a number of reasons. It could be simply because a jury believed a witness whom the Commission disbelieved, or vice-versa. Even so, the finding of corruption would stand."
35Mahoney JA said this at 168:
"Therefore s 9 may be satisfied, not merely by what is the fact, but according to what, in the sense to which I have referred, 'could' be the fact. On the literal reading of the Act, this gives an extraordinary width to the operation of s 9 and accordingly to the conduct which may fall within it. The facts as found by the Commission may be such that the Commission is of opinion that, judged according to the balance of probabilities, it would not be satisfied that the conduct would be reasonable grounds for dismissal or the like. But if, despite this, the conduct 'could' be such, then the Commission (special cases apart) must report that the conduct is 'corrupt conduct'."
36This also accords with the manner in which Priestley JA dealt with the expression in Greiner at 186 as follows:
"The meaning of 'could', at least in its relation to par (a) of s 9(1), must be sought in light of the relevance of this example. It seems to me that by far the most likely meaning of 'could', so far as this example is concerned, is 'would, if the facts were found proved at a trial'. If that is right, then the same meaning would fit the other possibilities equally well...".
37The expression "would, if proved" does not therefore mean "would when proved" or "would if and only if capable of proof". It seems clear from the words used by their Honours in Greiner at least that the relevant provision contemplates the outcome of purely hypothetical or notional, but not actual, criminal proceedings. Such proceedings may or may not be taken in the events as they ultimately occur. Whether or not such proceedings are taken, or the result of such proceedings if they are, is wholly beside the point. So much is clear, if it is not otherwise, from what was also said in Greiner by Priestley JA at 185:
"If the report contains a statement that the Commission is of the opinion that consideration should be given to prosecution or action as the case may be, then either the prosecution will be begun or action taken (by some authority or person other than the Commissioner) or not. If the opinion is that no consideration should be given to prosecution or action, prosecution or action may nevertheless still be begun or taken by an appropriate person."
38As appears from what I have set forth earlier, the Commission in this case was of the opinion that there was insufficient admissible evidence to make out the elements of the s 249B(2)(b) offence. Upon that basis Mr Kazal also reasoned that there was therefore an internal tension or contradiction in the Commission's report that invalidated the finding of corrupt conduct. He submitted that the s 74A(2) statement was irreconcilable with the Commission's finding of corrupt conduct and that the two could not continue to stand together.
39That contention is wrong in my opinion. To start with it is not in accordance with what was said in Greiner in the passages to which I have referred. Moreover, it fails to take account of s 37(3).
40It is not beyond contemplation, by way of example, that the Commission might in a particular case conduct an investigation into allegations of corrupt conduct upon the basis of evidence that would be completely inadmissible in criminal proceedings. There is no provision in the ICAC Act, nor is there any obvious inference available from the scheme of the Act, that in such a case the Commission would be obliged or required immediately to abandon any further examination of the corrupt conduct equation contemplated by ss 7, 8 and 9. The validity of the Commission's finding of corrupt conduct based on s 9(1)(a) is not tied to the certainty of a criminal conviction. The effect of Mr Kazal's submission would appear to be that in proceeding to a finding of corrupt conduct in this case the Commission was not entitled to rely upon evidence that would be inadmissible in a criminal trial. The authorities do not support that proposition and I am unable to accept the burden of Mr Kazal's submission that they do. As I have attempted to demonstrate, s 9(1)(a) is concerned with the description or characterisation of particular conduct as conduct possibly constituting or involving a criminal offence, not with the different question of whether or not that conduct ultimately will or might lead to the successful prosecution of someone for that offence.
41One final matter should be mentioned. Although not covered by Mr Kazal's written submissions, Mr Sutherland SC sought at the hearing to advance an argument based on s 9(2) of the ICAC Act. His contention was to the effect that s 9(2) contained the only limitation upon his principal argument, that the prospect of a successful prosecution of the criminal offence nominated by the Commission for the purposes of s 9(1)(a) was a necessary precondition to the finding of corrupt conduct. Because the parliament expressly discounted any impediment based upon the fact that the relevant proceedings could no longer be brought or continued, it had impliedly affirmed the continued significance and relevance of anything else that it had not specifically mentioned.
42The expression of one thing may well operate in some cases to the exclusion of another or others. In the context of the interpretation of a statute, as here, the approach is arguably often helpful in circumstances where the statute is ambiguous or vague. The difficulty as I see it in the present case however is that the statute is neither. The force of the reasons that led me to the conclusions I have otherwise reached does not easily yield to the inference that Mr Kazal seeks to draw from the specific matters referred to in s 9(2). The countervailing inferences flowing from the scheme of the Act, and the particular provisions of it to which I have referred, are such that Mr Kazal's argument based on s 9(2) cannot succeed.
43In relying upon the material before it and applying the civil standard to its findings, the Commission made no error and did not exceed its jurisdiction. I should observe that Mr Kazal quite properly recognised and accepted that this Court cannot revisit the findings of fact made by the Commission and did not ask me to do so.