New South Wales Crime Commission v Police Integrity Commission; Giorgiutti v Police Integrity Commission

Supreme Court of NSW|2011-05-17|Before: Rothman J

Background 3In 2008, the PIC investigated an allegation of misconduct by an officer of the Crime Commission, not being one of the plaintiffs, relating to the handling of proceedings under CARA. Originally the investigation was given the name "Operation Winjana". 4In order to understand the allegation and/or suspicion, it is necessary to have an understanding, albeit cursory, of CARA. As the name suggests, CARA is concerned with the recovery of assets of criminals or derived from criminal activity. Under CARA, the Crime Commission may apply to the Supreme Court for a restraining order which has the effect that a person bound by it may not dispose or attempt to dispose of the property to which the order relates. Such an order may be made, ex parte, at least initially, with a right given to the party bound by the order to make application to review the restraining order and/or set it aside on particular grounds. 5Orders may be made affecting all the interests in property of a person who is suspected of having engaged in a serious crime related activity. "Serious crime related activity" is a defined term. Further, orders may be made in relation to specified interests or a specified class of interests, even if the holder of that interest is not suspected of being engaged in serious crime related activity, where the interests are serious crime derived property, being, as the name suggests, property derived from serious crime. 6For obvious reasons, the foregoing is intended as an extremely general, and somewhat simplistic, description of orders that may be made, without seeking to be precise as to the nature of the order and without dealing with the conditions of which the Supreme Court needs to be satisfied before any such order would be made. 7Once property is the subject of a restraining order it is impermissible for any person to deal or to attempt to deal with that property. At the time of making such restraining orders, ancillary orders are generally made for the examination on oath of suspected persons and/or their spouse or de facto partners and some orders may be made releasing property for certain purposes. Relevantly, pursuant to the terms of s 10B(3) of CARA, the Supreme Court may, as a term of the restraining order it makes, provide for certain expenses to be met out of the property that has been restrained, including reasonable living expenses and, subject to s 16A of CARA, "the reasonable legal expenses of any person whose interests in property are subject to the restraining order, being expenses incurred in connection with the application for the restraining order or an application for a confiscation order, or incurred in defending a criminal charge". 8Section 16A confines the jurisdiction to allow for reasonable legal expenses and has a number of relevant provisions. First, in order to make such an exemption from the restraining order, the Supreme Court must be satisfied that the owner of the property cannot meet the expenses concerned out of other property. Secondly, no expenses are allowed if the expenses were to be paid from illegally acquired property. There are other provisions which, for present purposes, need not be recited or summarised. 9Over and above the power to make a restraining order in relation to property, the Court, on application by the Crime Commission, can issue an order that a person engaged in serious crime related activity forfeit assets. Such an order is made under s 22 of CARA. A restraining order is not a condition precedent to a forfeiture order. There are obvious conditions, relating to the satisfaction of the Supreme Court of certain matters, before any such orders may be made. Again, the forfeiture orders may be made forfeiting all or any interest in property of a person suspected (at the requisite standard) of having engaged in serious crime related activity and also forfeiting any person's interest in property, which is suspected (again to the requisite standard) of being serious crime derived property. 10There is no provision in CARA allowing for exemptions from a forfeiture order to meet certain expenses. However, there is no mandatory requirement that the Crime Commission seek a forfeiture order for all of the property of a person suspected of being involved in the relevant kind of criminal activity or all of the suspected crime derived property that comes to the attention of the Crime Commission. 11I will return to the details of CARA and the powers reposed in the Crime Commission (and to a lesser extent the Court) later in these reasons. It is sufficient, for the purposes of this general background, to note that it has long been accepted that the Crime Commission and a person holding property could consent to orders, and the practice, if such consent were to be effected, was that consent orders would be filed in the Registry of the Court and an order issue without a judge of the Court overseeing or approving the orders made. 12The issue that initially excited the attention of the PIC was that in the course of the settlement of consent orders relating either to a restraining order or a forfeiture order (or perhaps both), an investigator attached to the Crime Commission negotiated with his spouse or partner, who was a legal representative of the defendant, to reach an agreement whereby a significant amount of money was provided for the legal expenses of the Crime Commission, a further amount of some significance was allowed for the legal expenses of the defendant and the remainder (or part of the remainder) was the subject of the order. 13I have been deliberately vague in recounting the circumstances that gave rise to the original investigation. There were obvious aspects relating to conflict of interest and possible misconduct which related thereto and which occasioned the commencement of an investigation. I have been vague because it is unnecessary to repeat the details of complaints that may or may not withstand scrutiny. Nevertheless, in the course of the investigation, the practice of the Crime Commission in settling claims under CARA with suspected criminals and/or persons holding suspected criminally obtained property caused the PIC, and officers attached to it, concern. 14Essentially the concern related to the suspected failure to have regard to the alleged restrictions on the payment of legal expenses out of the proceeds of illegally acquired property and whether there had been corruption involved in that course. Alternatively, or further, concerns arose as to whether the processes facilitated, or did not prevent, corruption or misconduct from occurring. 15The PIC took the view that the conduct of the Crime Commission in reaching the settlements, including the usual terms of those settlements, was inconsistent with the restrictions imposed by CARA itself. In particular, consent orders were made purportedly under the then equivalent of s 10B(3), in circumstances where no restraining order had in fact been made, and orders were made under s 22 of CARA which did not deal with what was suspected were all of the proceeds of the crime related activity. 16During the course of submissions of counsel assisting the PIC (hereinafter "counsel assisting") in the first stage of the investigative process, a submission was made that the evidence already adduced was to the effect that certain officers of the Crime Commission (and/or the Crime Commission itself) had participated in settlements of applications for asset forfeiture orders, which: (a) achieved an outcome not expressly permitted by CARA, being, the allocation of some of the assets that were subject to a forfeiture order in favour of the Crime Commission for its costs; (b) made excessive provision for the payment of legal expenses out of the assets that were subject of the order where those payments would be directed to a particular solicitor; and (c) the payments directed to the solicitor on behalf of the defendant to the forfeiture/restraining order failed to adhere to the requirements of s 16A of CARA and the restrictions on the making of such orders. 17As a consequence of the suspicions of the PIC, based on the evidence before it, the PIC announced an additional limb to the scope of the current investigation (Operation Winjana) which additional limb (hereinafter "the second limb") was expressed as: "To examine the practices and procedures of the New South Wales Crime Commission in the conduct of actions under the Criminal Assets Recovery Act 1990." 18The Crime Commission and the plaintiff officers challenge the capacity of the PIC to undertake an investigation in the terms of the second limb. One other fact should be noted. Since the occasion that was the catalyst for the commencement of the initial inquiry, the practice of allocating an amount for the legal costs/expenses of the Crime Commission in consent arrangements under CARA has ceased.

The New South Wales Crime Commission 19The Crime Commission is established under the New South Wales Crime Commission Act 1985 (hereinafter "the Crime Commission Act"), the principal object of which is to reduce the incidence of illegal drug trafficking and the secondary object of which is to reduce the incidence of organised crime and other crime: s 3A of the Crime Commission Act. The Crime Commission is established as a body corporate with a Commissioner and Assistant Commissioners appointed by the Governor. The principal functions of the Crime Commission are to investigate matters relating to a relevant criminal activity, assemble evidence that would be admissible in the prosecution of persons, review a police inquiry into matters relating to criminal activity, furnish reports relating to illegal drug trafficking and organised crime and the provision of certain kinds of expertise to appropriate bodies. By s 6(1A) of the Crime Commission Act, the Crime Commission is empowered to exercise a function conferred on it by CARA and, by s 8 of the Crime Commission Act, the Crime Commission has incidental powers relating to the exercise of its functions otherwise conferred. The Crime Commission is entitled to recommend to the Attorney General that persons be granted an indemnity from prosecution or that answers or documents produced by a person not be disclosed or used in evidence against that person. 20The Crime Commission is constituted by a management committee which consists of the Minister for Police, the Commissioner of Police, the Chair of the Board of the Australian Crime Commission and the Commissioner (appointed by the Governor) of the Crime Commission itself. It is the management committee's function to review and monitor generally the work of the Crime Commission. It has other functions. 21Members of the Crime Commission and staff of the Crime Commission or any police officer assisting the Crime Commission or, effectively, any person to whom information comes in their capacity as a person acting for or on behalf of the Crime Commission, is not entitled to record any information that comes to them or divulge or communicate any information that comes to them other than for the purposes of the Crime Commission Act. Further, s 29 of the Crime Commission Act exempts any such person from any requirement to produce in any court any document or information of that kind. There are exceptions relating to proceedings where the Crime Commission is a party (either directly or indirectly) to the proceedings or where it is necessary to divulge the information or be required to produce the documents for the purpose of carrying into effect the provisions of the Crime Commission Act or of a prosecution instituted as a result of a Crime Commission investigation. 22Section 32 of the Crime Commission Act identifies the staff of the Crime Commission as those staff employed in the Government Service to enable the Crime Commission to exercise its functions, consultants engaged by the Crime Commission, staff seconded from Government or public authority employment and police officers of the State, another State, a Territory or the Commonwealth, seconded for the purposes of the Crime Commission. 23Lastly, it should be noted that eligibility for appointment as Commissioner or Assistant Commissioner (or to act in any of those offices) requires special legal qualifications, namely, the person must be or must have been a judge, or a legal practitioner of at least 7 years' standing.

Police Integrity Commission Act 1996 24The principal objects of the Police Integrity Commission Act 1996 (hereinafter "the PIC Act") are the establishment of an independent, accountable body, the principal function of which is to detect, investigate and prevent police corruption. The principal objects of the PIC Act are also described as the provision of special mechanisms for the detection, investigation and prevention of serious police misconduct. The other objects also relate to aspects of the police. It should be noted, in that regard, that the principal objects were not amended when the PIC Act was extended to include, inter alia, aspects of the misconduct of officers of the Crime Commission, and that otherwise the legislative provisions relating to police are in the same or similar terms applicable to officers of the Crime Commission. 25Officers of the Crime Commission are defined in the PIC Act as the Commissioner, an Assistant Commissioner and any member of staff (as to which, I will return). There are two other relevant definitions to which I should refer. The PIC Act has an inclusive definition of the word "investigate" as including "examine". Ordinarily, forms of a word that is defined take on the same meaning as the definition (albeit in the different form thereof). The PIC Act also defines the term "investigation" as meaning "an investigation under this Act and (without limitation) includes a preliminary investigation referred to in s 24". Section 5B of the PIC Act defines misconduct, in relation to an officer of the Crime Commission as meaning: "(1) ... any misconduct (by way of action or inaction or alleged action or inaction) of a Crime Commission officer: (a) whether or not it also involves participants who are not Crime Commission officers, and (b) whether or not it occurs while the Crime Commission officer is officially on duty, and (c) whether or not it occurred before the commencement of this subsection, and (d) whether or not it occurred outside the State or outside Australia." 26The PIC, itself, is constituted by the PIC Act as a corporation, with the functions conferred on it under the Act and those functions are exercisable by the Commissioner of the PIC: s 6 of the PIC Act. 27There are some provisions which it is necessary to recite. Those include ss 13B, 16, 18, 22, 23, 32, 33, 52, 77(1), 96(2), 99(2) and 99(2A) of the PIC Act. Only parts of those provisions are recited: " 13B Other functions of PIC in relation to Crime Commission officers (1) Other functions of the PIC include the following: (a) to prevent misconduct of Crime Commission officers, (b) to detect or investigate, or oversee other agencies in the detection or investigation of, misconduct of Crime Commission officers. (2) The PIC is, as far as practicable, required to turn its attention principally to serious misconduct of Crime Commission officers. (3) The reference in this section to 'overseeing' other agencies in the detection or investigation of misconduct of Crime Commission officers is a reference to the provision by the PIC of guidance that relies on a system of guidelines prepared by it and progress reports and final reports furnished to it rather than the provision of detailed guidance in the planning and execution of such detection and investigation. (4) In overseeing other agencies for the purposes of this section, the PIC does not have a power of control or direction, and any such oversight is to be achieved by agreement. However, it is the duty of Crime Commission officers to co-operate with the PIC in the exercise of its oversight functions. (5) However, nothing in subsection (2), (3) or (4): (a) affects the capacity of the PIC to exercise any of the functions as referred to in subsection (1), or (b) provides a ground for any appeal or other legal or administrative challenge to the exercise by the PIC of any of those functions." " 16 Provisions regarding assessments, opinions and recommendations (1) The Commission may: (a) make assessments and form opinions, on the basis of its investigations or those of the Police Royal Commission or of agencies of which it has management or oversight under this Act, as to whether police misconduct or other misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer: · has or may have occurred, or · is or may be occurring, or · is or may be about to occur, or · is likely to occur, and ... (c) make recommendations for the taking of other action that the Commission considers should be taken in relation to the subject-matter of its assessments or opinions or the results of any such investigations." " 18 Co-operation with other agencies (1) In exercising its investigative functions, the Commission may work in co-operation with investigative agencies and such other persons and bodies as the Commission thinks appropriate (whether or not they are in or of the State). (2) In exercising its other functions, the Commission may work in co-operation with the educational institutions and such other persons and bodies as the Commission thinks appropriate (whether or not they are in or of the State). (3) The Commission may consult with and disseminate intelligence and information to investigative agencies and such other persons and bodies (including any task force and any member of a task force) as the Commission thinks appropriate (whether or not they are in or of the State). ... (5) In this section: 'investigative agency' means: (a) the Ombudsman, or (b) the New South Wales Crime Commission, or (c) the Independent Commission Against Corruption, or (d) the Auditor-General, or (e) the NSW Police Force (or any unit or other part of it), or (f) a police force of another State or Territory (or any unit or other part of it), or (g) the Australian Federal Police (or any unit or other part of it), or (h) the Australian Crime Commission, or (i) the Australian Bureau of Crime Intelligence, or (j) any other authority or person responsible for the enforcement of laws of the Commonwealth or of the State, another State or a Territory or charged under any such laws with investigating or detecting police or other misconduct." " 22 Incidental powers (1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions. Any specific powers conferred on the Commission by this Act are not taken to limit by implication the generality of this section. (2) However, the Commission cannot employ any staff. Note: Staff to enable the Commission to exercise its functions may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service. However, the Commission may still, under section 10, arrange for the use of services of staff or facilities of other agencies and for police officers to perform services for the Commission, as well as engage consultants. " " 23 Investigations generally (1) The Commission may conduct an investigation: (a) on its own initiative, or (b) on a police complaint made or referred to it or on a police complaint of which it becomes aware, or (c) on an administrative officer complaint made to it, or (c1) on a Crime Commission officer complaint made to it, or (d) on a report made to it. (2) The Commission may conduct an investigation even though no particular police officer, administrative officer, Crime Commission officer or other person has been implicated and even though no police misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer is suspected. (3) The Commission may, in considering whether or not to conduct, continue or discontinue an investigation, have regard to such matters as it thinks fit, including whether or not (in the Commission's opinion): (a) the subject-matter of the investigation is trivial, or (b) the conduct or matter concerned occurred at too remote a time to justify investigation, or (c) if the investigation was initiated as a result of a police complaint, Crime Commission officer complaint or administrative officer complaint-the complaint was frivolous, vexatious or not in good faith." " 32 Hearings (1) For the purposes of an investigation, the Commission may hold hearings. ... (3) At each hearing, the person presiding must announce the general scope and purpose of the hearing. (4) A person appearing before the Commission at a hearing is entitled to be informed of the general scope and purpose of the hearing, unless the Commissioner is of the opinion that this would seriously prejudice the investigation concerned." " 33 Public and private hearings (1) A hearing may be held in public or in private, or partly in public and partly in private, as decided by the Commission. (2) Without limiting the above, the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or by 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. (3) In reaching these decisions, the Commission is obliged to have regard to any matters that it considers to be related to the public interest. (4) The Commission may give directions as to the persons who may be present at a hearing when it is being held in private. A person must not be present at a hearing in contravention of any such direction." " 52 Restriction on publication of evidence (1) Direction regarding publication The Commission may direct that: (a) any evidence given before the Commission, or (b) the contents of any document, or a description of any thing, produced to the Commission, or seized under a search warrant issued under this Act, or (c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or (d) the fact that any person has given or may be about to give evidence before the Commission, must not be published except in such manner, and to such persons, as the Commission specifies. (2) Public interest The Commission is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest. (3) Offence A person must not make a publication in contravention of a direction given under this section. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. " " 77 Referral of matter (1) The Commission may, before or after investigating a matter (whether or not the investigation is completed), refer the matter for investigation or action: (a) to a police authority, or (b) if the matter relates to a Crime Commission officer-to the Crime Commission. ..." " 96 Reports on investigations ... (2) Report where public hearing The Commission must prepare reports in relation to matters as to which the Commission has conducted a public hearing." " 99 Annual reports ... (2) A report by the Commission under this section must include the following: (a) a description of the types of matters that were referred to the Commission, (b) a description of the types of matters investigated by the Commission, (c) an evaluation of the response of the Commissioner of Police, relevant members of the NSW Police Force Senior Executive Service and other relevant authorities to the findings and recommendations of the Commission, (d) any recommendations for changes in the laws of the State, or for administrative action, that the Commission considers should be made as a result of the exercise of its functions, (e) the general nature and extent of any information furnished under this Act by the Commission during the year to a law enforcement agency, (f) the extent to which its investigations have resulted in prosecutions, disciplinary action or the making of an order under section 173 or 181D of the Police Act 1990 in that year, (g) the number of search warrants issued by authorised officers and the Commissioner respectively under this Act in that year, (h) a description of its activities during that year in relation to its educating and advising functions. (2A) Any such information that relates to investigations or other matters involving Crime Commission officers must be kept separate from other matters in the report." 28The terms of s 13B, recited above, are repeated in s 13A, save that s 13A of the PIC Act refers to "administrative officers", rather than officers of the Crime Commission. While the terms are expressed slightly differently, those functions are also applicable in relation to police. In relation to police (s 13 of the PIC Act), the functions are described as the "principal functions", which may reflect that the failure to amend the principal objects of the PIC Act to reflect other bodies or officers of bodies capable of being subject to PIC activities may not have been unintentional. 29Central to the issues before the Court is the width of the function of investigation into the Crime Commission (and the plaintiff officers of the Crime Commission) and that, it is said, is beyond the PIC's powers of investigation. I have earlier remarked as to the inclusive definition of the term "investigate" and the separate definition of the term "investigation". I will return to this aspect and the detailed submissions.

The submissions of the Crime Commission 30The Crime Commission relies on an amended summons filed 8 April 2011, which seeks a declaration that conduct of an investigation for the purpose of the second limb, namely, examining the practices and procedures of the Crime Commission in the conduct of actions under CARA, is beyond power. As a consequence thereof it seeks a declaration that all steps in furtherance of such an investigation were invalid, an order restraining further investigation of the second limb and an order setting aside the decision to hold public hearings, and consequential orders, including an order restraining the PIC from publishing information obtained in the course of its investigation so far. 31The grounds upon which the Crime Commission relies are:

Ground 1: that the PIC only has power to conduct an investigation on a matter that involves or may involve misconduct of officers of the Crime Commission and not matters only concerned with the prevention of such misconduct;
Ground 2: at least in relation to its investigation of the second limb, the public hearing decision was invalid, in effect, for the same reasons as stated in Ground 1, namely, because the investigation identified by the second limb was and is invalid. The decision to conduct a public hearing involving the first limb took into account an irrelevant consideration, i.e. the second limb;
Ground 3: that the basis of the public hearing decision, insofar as it concerned the practices of the Crime Commission: of including a payment of an amount in respect of costs of the Crime Commission, which practice has already ceased; concerning the re-engagement of persons who had previously retired from the public service for the purpose of performing work for the Crime Commission; or, of drafting a purportedly misleading statement in a letter from the Minister for Police to the Treasurer, relating to Crime Commission costs being part of the consent order under CARA; were in excess of power, or took into account irrelevant considerations, or were so unreasonable that no reasonable decision-maker could have made the decision.

Expanded factual basis for the investigation 32To understand fully the submissions put in support of the foregoing, it is necessary to expand, a little, the factual basis for the purported investigation. 33Plainly, the original complaint or suspicion involving a particular member of the staff of the Crime Commission related to his conduct in obtaining consent orders under the provisions of CARA. It involved the officer of the Crime Commission reaching agreement as to an order that specified an amount to be paid to the legal representatives of the person suspected of criminal activity and an amount to be paid to the Crime Commission by way of its legal expenses. Further, it involved a suggestion that there was significant conflict occasioned by the fact that the Crime Commission officer against whom the complaint was made was a person who had a domestic relationship with the legal representative of the person suspected of criminal activity. 34Thus, the initial scope and purpose of the investigation was the investigation of that particular Crime Commission officer and any person associated with him and whether such persons, or any of them, had been involved in criminal activity or serious misconduct. During the hearing, or perhaps better called the first round of hearings, which occurred between 25 and 29 October 2010, that Crime Commission officer and his domestic partner were examined by the PIC, as were others, including the two plaintiff officers. The evidence adduced in those hearings examined the proceedings in which the Crime Commission officer's partner had been involved on behalf of suspected persons (for the purposes of CARA) and examined orders made providing for the suspected person's legal expenses. As earlier stated, that occurred between 25 and 29 October 2010. 35On 5 November 2010, the Operational Advisory Group of the PIC determined to add a further limb to the previously stated scope and purpose of the investigation, which addition, in these reasons, has been termed "the second limb". 36That decision was implemented by an announcement as to the general scope and purposes of the proceedings on 13 December 2010, in which that second limb was added to the previously announced scope and purpose. Further hearings occurred thereafter. The Crime Commission, itself, was denied the ability to be represented at the hearings. No submission is made in these proceedings relying on a denial of procedural fairness or natural justice to the Crime Commission, as such. 37On 21 January 2011, the interim submissions of counsel assisting the investigation were provided to certain witnesses who gave evidence at those hearings. Those interim submissions recommended findings of misconduct against certain-named individuals. The covering letter also gave notice that the PIC was considering whether to hold public hearings, and if it made that decision it would revoke all non-publication orders made in the private hearings and all of the material, hitherto treated as private, would be tendered in the public hearing. The Crime Commission made submissions on that proposal, after having been given access to it and the submissions. So too did other persons. 38On 17 February 2011, the PIC informed the Crime Commission that it was to hold further hearings, that those hearings would be in public but that the previously made non-publication orders would remain in force. The Crime Commission commenced these proceedings, obtained interim relief preventing the conduct of the public hearings and, shortly thereafter, namely 25 February 2011, the Assistant Commissioner of the PIC gave reasons for the decision to hold public hearings (Exhibit 1, Tab 67). 39None of the plaintiffs accept the validity or veracity of the allegations made by counsel assisting the PIC inquiry, but, for obvious reasons, in these proceedings those allegations are accepted as the allegations which form the basis from which the Court can determine the direction and scope of the inquiry being held, or to be held.

The interim submissions of counsel assisting 40It is necessary to consider the interim submissions, to which reference has already been made, in some detail. The submissions are undated but, as earlier stated, were provided to witnesses that had been examined and accompanied a Letter dated 21 January 2011 (see, for example, Letter in Exhibit 1, Tab 30, p 109). The submissions set out the already mentioned scope and purpose and an introduction which refers to a system "apparently informal in nature" by which the Crime Commission receives reports of serious criminal activity from other Government bodies for the purpose of considering confiscation under CARA. 41The documents that were before the PIC included investigation and recommendation files in respect of applications for restraining orders leading to forfeiture, court documents relating to settlements by consent, and documents involving correspondence between the Crime Commission and other Government entities showing a history of Crime Commission funding arrangements relating to costs orders in CARA proceedings. The report then lists 11 witnesses, eight of whom are officers of the Crime Commission, one of whom is a former Australian Crime Commission officer and two of whom are legal practitioners (1 barrister and 1 solicitor) in private practice. 42The submissions of counsel assisting (hereinafter "the interim submissions") then deal with the operation of CARA and recite that the investigation into possible procedural irregularity considered whether s 16A of CARA had been "breached" (which, for obvious reasons, I understand to include not complied with) and "related issues" as to lump sums taken by the Crime Commission from restrained funds for its costs. 43The interim submissions then detail what occurred in relation to certain suspected persons from whom, or in relation to whom, a confiscation order was in place. Those aspects of the interim submissions concentrated on the process by which the Crime Commission reached and implemented agreement for confiscation orders and effected consent orders in this Court. 44During the course of that process, the evidence of one of the senior officers of the Crime Commission was recited, to the effect that he had understood that the provisions of s 16A of CARA were for the purpose of defeating serious claims for legal expenses and did not apply to the settlement of orders between the Crime Commission and a suspected person. Moreover, that officer purports to express the view that he had never considered the provisions of s 16A of CARA in relation to a settlement. Another officer is quoted as suggesting that the Crime Commission's view is that if a confiscation matter were to settle, the Crime Commission has power to settle it on what the Crime Commission considers are appropriate bases "regardless of what the section [a reference to s 16A] says". 45Thus, the misconduct to which the PIC was pointing fell into two categories: a suspicion of misconduct relating to the activities of a particular investigator and his relationship with a legal representative of a suspected person; and alleged systemic misconduct arising from the Crime Commission's attitude to, and alleged disregard of, what the PIC considered were statutory restrictions in the conduct of CARA matters. The two issues were related. 46In relation to the first issue, the particular investigator, the PIC alleged, should have taken action to ensure that there was no inappropriate exposure in his workplace; should have reported to his superiors by way of disclosure and have sought to have management take steps to avoid a perception of conflict of interests or breach of confidence; and, should have ensured, in his personal relationship, that he remain unconnected with the professional activities of his partner in circumstances where there could be an apprehension of conflict of interest. In the second aspect, the perceived disregard to that which the PIC considered were statutory restrictions, including the necessity to obtain the approval/imprimatur of a judge of the Court, gave rise to situations in which there was the opportunity for misconduct and/or corruption (even if none had yet occurred) and was itself conduct by the Crime Commission (and its officers) that was otherwise than in compliance with the requirements of the law. In relation to the latter matter, the alleged "misconduct" was more concerned with the management of the conduct of more junior officers, than the conduct of the officers themselves. 47Corroborating the concern of the PIC, was that, ultimately, the arrangement made between the individual officer and his domestic partner was not any different, or appreciably different, from the arrangements that had been made in other confiscation disputes. There are suggestions, in the interim submissions of counsel assisting that more favoured treatment in relation to legal expenses was occasioned, but it is unnecessary, for present purposes, to descend into those issues. It is sufficient, for present purposes, to note that it is not suggested that such treatment, if favourable, was occasioned by her partner on account of their relationship, either deliberately or inadvertently. Further, any more favourable treatment or different treatment was not "of great moment", on the submission of counsel assisting. 48In the process of the investigation into the particular allegations relating to particular individual officers, and issues associated with the conduct of other officers in relation to CARA matters, counsel assisting took the view that the Crime Commission, and its officers, were failing to comply with unambiguous and express requirements of CARA. That failure specified four particular matters:

the failure to obtain Court approval of the matters set out in s 16A(1)(a)-(c) of CARA;
the absence of power enabling the Crime Commission's costs to be deducted from confiscated monies, but the practice, nevertheless, of deducting such monies or allowing for the deduction of same in consent orders;
the failure to file a Statement of Affairs (which, in fact, is a requirement of s 16A, to which reference has already been made); and
the lack of scrutiny of suspected persons' legal costs claims. 49The investigation into these matters also led to the discovery of a letter from the Minister of Police, drafted, it seems, by an officer of the Crime Commission, to Treasury, which, according to counsel assisting, was misleading in that it implied there was a power to allow a deduction for the Crime Commission's costs from confiscated material and asserted that the Court had been willing to make consent orders that included such a provision, in circumstances where the Court had not overseen the process. However, as conceded by counsel assisting, the practice of deducting costs for the Crime Commission from confiscated monies occurred between 1997 and 2008 and had ceased thereafter. 50Counsel assisting, in interim submissions, concluded that there were arguable bases for finding misconduct in relation to the professional conduct of a number of senior officers of the Crime Commission and, pursuant to s 97 of the PIC Act, submitted that there would be no basis for consideration for a specified criminal offence but there would be a basis for consideration of specified disciplinary offences under the Public Sector Employment and Management Act 2002 in relation to such officers. 51Further, counsel assisting submitted, leaving aside considerations under s 97 of the PIC Act, that arising from the investigation it would be necessary to make recommendations concerning administrative and procedural aspects of the Crime Commission's CARA work, which have the potential to allow misconduct among Crime Commission officers. It was submitted that there was a failure of senior officers to take responsibility for functions that appear to fall within their work. It was submitted that senior officers, including those in the management team, went to some effort to say that they were not responsible for aspects of work that appeared to be within their area of responsibility and referred to more senior officers who, in each case, asserted, not unreasonably, that they could not be and were not aware of all matters of detail, the result being that no individual is definably accountable for actions or work within the Crime Commission. 52The submission also asserted that the evidence provided a basis upon which the PIC could find that the Crime Commission had a culture of "can do" and an avoidance of record-keeping, apparent in the procedures adopted by the Crime Commission in its confiscation work. There was, it was submitted, an impatience with statutory procedures and a position adopted of getting things done without formality, where workability and effectiveness were put above the requirements of CARA. 53As a consequence of the foregoing, counsel assisting suggested that there were a number of recommendations that may be made to overcome the problems associated with the conduct that his submissions suggested were misconduct.

Ground 1: The power of the PIC to conduct the investigation 54The foregoing gives the relevant context to the submission of the Crime Commission that the second limb is directed to prevention only and that an investigation under the provisions of s 13B of the PIC Act cannot be conducted for a purpose confined to prevention. 55The investigation power, the Crime Commission submits, is contained within s 23 of the PIC Act and may be utilised, for relevant purposes, only for those functions described as functions "to detect or investigate ... misconduct of Commission officers". As I understand the Crime Commission submission, the investigation power in s 23 may not be used even for that part of the functions in s 13B(1)(b) which require the oversight of other agencies in the detection or investigation of misconduct. In that regard, the Crime Commission submits that the obiter dicta of Basten JA in Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446 at [103], to the effect that the powers of the PIC to conduct an investigation extend to the function of prevention, ought not be followed. 56The Crime Commission's submission in essence relies on the proposition that the word "investigate" in s 13B(1)(b) of the PIC Act would be otiose if an investigation under s 23 could occur confined to the prevention function. Moreover, the Crime Commission submits that the extension of the scope and purpose as announced on 5 November 2010, makes clear that the PIC intend to extend the investigation for a purpose confined to prevention. The Crime Commission relies upon the record of determination dated 22 October 2010, the memorandum dated 4 November 2010 and the interim submissions of counsel assisting. 57The plaintiff officers put submissions to similar effect. Further, in relation to the issue of the power of the PIC to conduct a hearing within the scope and purpose of the second limb, the submission of the plaintiff officers also asserts that the PIC has no power "to examine" as distinct from "investigate". Moreover, those officers submit that the Crime Commission, being a statutory body, by definition, cannot engage in misconduct; only its officers can. 58The PIC submits that the function to prevent corruption prescribed by s 13B(1)(a) entitles the PIC to conduct an investigation under s 23 of the PIC Act and does not submit that s 13B(1)(b) of the PIC Act, without more, is a source of power in relation to the second limb. 59In some respects, the submissions of the parties do not engage each other and, on one view, all parties may be correct. Alternatively, all parties may, at least in some significant respects, be incorrect. 60The parties have submitted that the basis of the investigation described by "the second limb" is the prevention function prescribed by s 13B(1)(a) of the PIC Act. The scope and purpose of the investigation is that described in and by the announcement of 13 December 2010. There is only one investigation. 61The parties have conflated purpose and basis, on the one hand, and proposed outcome, on the other. The intention of the PIC, in conducting this investigation (or, more accurately, in extending it) is to prevent corruption (or misconduct) in the future. That much may (or perhaps must) be accepted. That outcome is achieved by investigating current and past practices that are suspected of being misconduct in order to expose that conduct and to devise means to prevent that conduct from recurring in the future. The reliance on the prevention function, in isolation, misses the point. The Court is required to determine validity on the basis of what is, in fact, occurring. The parties' perception, or label, is a factor to be considered; but only one factor. 62I deal firstly with the submission of the plaintiff officers that because the word "examine" is used it is an investigation that is beyond power. The simple and obvious answer to that submission is the terms of the definition of "investigate" in the PIC Act. As previously recited, the term "investigate" includes "examine", as a consequence of which for statutory purposes the PIC have as much jurisdiction "to examine" as they do "to investigate". 63As earlier stated, ordinarily a different form of a word that is defined will take on the defined meaning in its different form. As a consequence, if, for example, a statute defined the word "investigate" to include "examine", then the word "investigating" would include "examining". Likewise, ordinarily, in that circumstance, the word "investigation" would include "examination". In the PIC Act, the word "investigation" has a defined meaning separate from the word "investigate". Moreover, the term "investigation" is defined by reference to s 23 of the PIC Act and, where used in s 23, the term "investigation" does not readily allow for the extended meaning to include "examination". On the other hand, the terms of s 77(1) of the PIC Act, and the following statutory provisions, tend to suggest a broad power to investigate (and conduct an investigation), rather than a narrow one. 64Under s 77 of the PIC Act, the PIC may refer a matter for investigation or action by, amongst others, the Crime Commission, and in doing so recommend what action should be taken by the Crime Commission and the timeframe in which it should be taken. Further, the Crime Commission is then required to report to the PIC as to compliance with the directions given, and if the Crime Commission is not satisfied (as a result of the report, or a failure to report or to complete a report in the appropriate timeframe) the PIC is entitled to require the Commissioner of the Crime Commission to explain and to report same to the Minister for Police. Even more importantly, by operation of s 80 of the PIC Act, the Crime Commission is required to comply with any requirement or direction of the PIC under s 77, and the PIC is entitled to revoke a referral or vary a recommendation, requirement or direction (s 81 of the PIC Act). 65Each of these powers is not dependent upon the holding of an investigation under s 23 of the Act. Section 77(1) of the PIC Act makes clear that such a referral, with such directions as are thought appropriate, may be made before investigating a matter. For completeness, I would add that the term "investigation" where last used in s 77(1) of the PIC Act, plainly does not refer to an investigation under s 23 of the PIC Act, since it is to be conducted otherwise than by the PIC. 66I return then to the provisions of s 23 of the PIC Act and its relationship with s 13B of the PIC Act. Those provisions are recited above. The PIC has the function of preventing misconduct of Crime Commission officers and, relevantly, of detecting and investigating misconduct of Crime Commission officers. It has a further function of overseeing other agencies in the detection or investigation of misconduct. The last-mentioned function is constrained by the provisions of s 13B(3) and s 13B(4) of the PIC Act. Since, expressly, the PIC does not have a power of control or direction in relation to the function of overseeing other agencies, s 77(1) of the PIC Act must be a reference to a function other than overseeing other agencies in the detection or investigation of misconduct. 67Further, the statutory regime expressly limits the powers of the PIC in overseeing other agencies and there is no limitation on the powers or capacity of the PIC in carrying out the other functions ascribed to it under s 13B(1) of the PIC Act. 68There is a tension between the provisions of s 13B(5) and the express provisions of s 13B(4) of the PIC Act. Since no party suggests that any issue arises under s 13B(2), s 13B(3) or s 13B(4) of the PIC Act, the constitutional validity of the restraint on judicial review seemingly contained in s 13B(5)(b) need not be the subject of consideration: see Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531. Nevertheless, s 13B(5) makes clear that there exists a statutory intention that there should be as little as possible restriction on the capacity of the PIC to investigate and to prevent. 69Section 13B of the PIC Act is contained within Division 1 of Part 3 of the PIC Act. Part 3 of the PIC Act deals with functions of the PIC and Division 1 refers to functions generally. As earlier stated, s 13B of the PIC Act has equivalents (ss 13 and 13A) relating to police and other administrative officers, as defined. Sections 13, 13A and 13B are in a slightly different category than the other provisions of Division 1 of Part 3 of the PIC Act. Sections 13, 13A and 13B (and to a lesser extent s 14) deal with the jurisdiction of the PIC. The other provisions of Part 1 deal either with a restriction on the jurisdiction otherwise conferred or the powers of the PIC in exercising its jurisdiction. 70By operation of s 16 of the PIC Act, the PIC is empowered to make assessments and form opinions "on the basis of its investigations" as to whether misconduct is likely to occur. Lastly, s 22 of the PIC Act gives the PIC power to do all things necessary or reasonably incidental to the exercise of its other functions, other than employ staff. (The staff of the PIC is on secondment from other Government Service.) 71Section 23 of the PIC Act is in Division 2, which deals specifically with investigations. Division 3 deals with the obtaining of information, documents and other things "for the purposes of an investigation": see PIC Act, ss 23, 26, 27 (by reference back to 25 or 26), 28 (similarly by reference back), 29 and 31. Section 30 of the PIC Act deals with the capacity to obtain injunctions in the Supreme Court. 72Likewise Division 4, which deals with hearings, is predicated on conducting hearings "for the purposes of an investigation". The remaining provisions deal with the conduct of those hearings. Division 5 deals with attendance before the PIC; Division 6 with search warrants; Division 7 with surveillance device warrants; Division 8 with the protection of witnesses, including restrictions on publications of evidence; and Division 9 deals with secrecy and disclosure generally. The other parts (other than the sections to which reference has already been made) are not directly relevant to the current discussion. 73The structure of the PIC Act makes clear that other than the general incidental powers in s 22, no powers or functions deal directly with the prevention power. On the other hand, the PIC may form an opinion that misconduct is likely on the basis of an investigation. Inherent in the PIC's power to prevent misconduct is that the prevention usually targets misconduct that has occurred, is occurring or is likely to occur. 74If the PIC is unable to ascertain whether misconduct has occurred, is occurring or is likely to occur, it would be significantly constrained in its capacity to achieve its first-mentioned function, namely the prevention of misconduct. It seems, therefore, that the preferable construction to achieve the purpose of the statute is that the function of prevention may occur after an investigation into alleged misconduct and findings in relation to that misconduct. 75In relation to the power of the PIC to undertake an investigation based solely on prevention, each of the parties has referred the Court to the Police Integrity Commission v Shaw , supra. The PIC relies upon a passage from the judgment of Basten JA at [103] and [104], in which his Honour says: "[103] In whatever form the Respondent's argument is presented, it requires that an investigation under s 23 of the PIC Act be directed primarily to the existence of police misconduct. However that assumption is false. Not only does s 23(2) permit an investigation even though no police misconduct is suspected, but it is clear from the functions of the Commission that an investigation may be held for other purposes. For example, one of the principle functions of the Commission is to investigate other agencies in the detection of serious police misconduct. Another agency could be the NSW Police, in accordance with the definition of 'agency' in s 4(1) of the PIC Act. One function of the Commission is to make recommendations concerning 'police corruption prevention programs', pursuant to s 14(c). An investigation with public hearings could be held in exercise of that function. So long as the investigation is directed to, or is reasonably incidental to, the exercise of a function, it would not matter that the investigation was not directly or primarily concerned with police misconduct. Equally, it cannot follow that an investigation which is directed towards police misconduct at the outset will exceed the powers of the Commission if it were continued after the Commissioner became satisfied that there was in fact no police misconduct. [104] Importantly, the existence or otherwise of police misconduct does not constitute a jurisdictional fact upon which the powers of the Commission depend for their valid exercise. That being so, it does not matter whether the existence or suspicion of police misconduct was an objective fact to be determined by a court (although that would be quite unlikely) or whether it depended upon the opinion of the Commissioner. To succeed in the present case the Respondent had to establish that the Commission would be exceeding its powers if it expressed opinions of the kind referred to in s 97(2) with respect to the Respondent. Subject to consideration of the particular terms of s 130, no relevant jurisdictional limit on power has been established." 76The reference to police misconduct is a reference to the factual basis for the investigation that occurred and with which the Court was dealing in that matter. The same analysis may be applied to Crime Commission misconduct, the necessary changes being made. 77The reasons for judgment of Giles JA, with whom Hodgson JA agreed, in Police Integrity Commission v Shaw , supra, do not deal with this issue, which, on proper analysis, would be obiter. The reasons for judgment of Giles JA does refer to s 23 of the PIC Act, and after reciting the subsections relevant for the purposes then before the Court, Giles JA says: "[16] This refers to 'an investigation', without qualification as to the subject-matter of the investigation. It was common ground that some link with police misconduct was necessary, and that the Commission could not conduct an investigation unconnected with police misconduct. It is not necessary to attempt to describe the scope of the investigatory power, since in the present case it plainly extended to the respondent's conduct. [17] It is sufficient that the subject matter of the investigation is police misconduct and the conduct of other persons, whether or not misconduct, is relevant to the investigation of police misconduct. The investigation extends to the relevant conduct of the other persons. That was the case here." 78As earlier stated, it is difficult to envisage circumstances in which prevention would be unconnected with misconduct (past, current or likely future), but it may be possible. This investigation, and the circumstances giving rise to it, is not one that is unconnected with misconduct. 79The parties have treated the proceedings before the Supreme Court and the validity of the investigation in a manner that separates the first and second limbs. That approach, in my view, is impermissible. 80On the facts in this case, the PIC conducted an inquiry into alleged misconduct of a particular Crime Commission officer. That inquiry and that investigation led to allegations of misconduct in relation to other Crime Commission officers. It also led to allegations of misconduct associated with the administration, by officers of the Crime Commission, of the Crime Commission's functions under CARA. 81As a consequence of that evidence and those allegations, the PIC took the view that it was appropriate to extend the stated scope and purpose of the investigation to include the manner in which the Crime Commission has performed its functions under CARA, not for the purpose of proceeding to findings of criminal conduct, nor to criminal prosecution, but in order to ascertain precisely how those functions were performed and to take steps to prevent either the kind of misconduct originally investigated and/or the alleged misconduct relating to the operation of CARA from recurring. 82The foregoing necessarily raises the issue of whether, on its face, the second limb goes beyond that which is "not unconnected with" misconduct of Crime Commission officers, to paraphrase Giles JA in Police Integrity Commission v Shaw , supra. For the foregoing reasons, namely the manner in which the issues arose and the allegation that the operation of the Crime Commission in performing its functions under CARA is or evidences misconduct, the second limb, as part of an investigation dealing with both limbs, is connected with misconduct of Crime Commission officers and is within the jurisdiction and functions of the PIC. 83It is also appropriate, at this stage, to deal with the submission of the plaintiff officers that because the investigation is examining the practices and procedures "of the Crime Commission", rather than of officers of the Crime Commission, it is beyond power. There are two answers to that submission. First, as determined in Police Integrity Commission v Shaw , supra, (by all of the judges) misconduct of a Crime Commission officer remains misconduct whether or not it also involves participants who are not officers of the Crime Commission: see s 5B of the PIC Act and Police Integrity Commission v Shaw , supra, at [25]. Further, as made clear by Giles JA at [26], it is not the identity of the person investigated that determines the power or jurisdiction of the PIC; it is whether that investigation is, relevantly, not unconnected with Crime Commission misconduct. 84The second answer to the submission of the plaintiff officers on this aspect is that the infelicity of expression in crafting the second limb does not determine the jurisdiction or power of the PIC. That jurisdiction and power is determined by the substance of the investigation and its subject matter, not the manner in which it is expressed, except to the extent that the manner of expression plainly takes the investigation out of the PIC's remit. It would have been more accurate to have expressed the second limb by referring to a scope that was "to examine the procedures of officers of the New South Wales Crime Commission", rather than of the Crime Commission itself. But there is no substantial difference in fact. It may be accurate (although I doubt it given the terms, inter alia, of s 118 and s 119 of the Occupational Health and Safety Act 2000 and other provisions allowing criminal prosecution of the Crown and its agencies) to assert, as did the plaintiff officers, that the Crime Commission, as a corporate body and emanation of the Crown, is incapable of engaging in misconduct. But a corporation has neither a soul to be dammed, nor a body to be kicked. The Crime Commission acts only through its officers and an examination of the practice and procedures of the Crime Commission is, in fact, an examination of the conduct of officers in carrying out what purports to be the functions of the Crime Commission. 85The foregoing discussion on the nature of the investigation being conducted and its connection with alleged Crime Commission misconduct is predicated on an understanding of the subject matter of the investigation. That understanding is gained from the evidence before the Court. It includes the memoranda between officers of the PIC, including the Operations Advisory Group. 86That evidence, which, for reasons associated with inappropriate publicity, I will not repeat, deals with the purpose and basis of the extension of the investigation to include what, in these reasons, has been called the second limb. That correspondence makes clear, as has already been stated, that the examination of procedures under CARA arises from the initial examination of the officer against whom an initial complaint was made and subsequent evidence relating to the procedures that had been adopted by officers of the Crime Commission in the conduct of CARA matters. The inquiry, on that evidence, is aimed at investigating the precise basis and the criteria utilised for the settlement of CARA confiscation of assets matters and whether those criteria accord with the statutory intent and requirements of CARA. 87The preliminary view of counsel assisting is that, on the evidence, to some of which I have referred, before the PIC, officers of the Crime Commission have not had any, or appropriate, regard to the criteria in the statute. The purpose of the investigation is: firstly, to understand the context in which the potential misconduct initially investigated arose; secondly, to investigate the criteria used for agreement as to the payment of legal expenses both of the Crime Commission and of suspected persons; and thirdly, to have a sufficient understanding of the misconduct (if it were to have occurred) to allow procedures to be implemented which would overcome or prevent any future misconduct. 88On one view of the wording of the second limb, the investigation could go beyond the foregoing description. On an expansive view, it could go to all conduct of all officers of the Crime Commission in the conduct of CARA matters and not be confined to confiscation and restraining orders under that Act and the making of consent orders that do not have regard or proper regard to the criteria in the statute. However, the correspondence, submissions of counsel assisting and other material clarify that the investigation is intended to be so confined and, being so confined, it is concerned with alleged misconduct. 89In order for certiorari or prohibition to issue to restrain the PIC from conducting the inquiry, the Crime Commission and/or the plaintiff officers would have to show that there was no basis for the exercise of the power sought to be undertaken or that an error of law (or erroneous test) was utilised in establishing the investigation: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 117, per Dixon CJ, Williams, Webb and Fullagar JJ; and see Police Integrity Commission v Shaw , supra, at [61], per Basten JA. 90If, contrary to the evidence now before the Court, the PIC were to embark upon an investigation that went beyond those matters related to the misconduct, or alleged misconduct, then the plaintiff officers and the Crime Commission could approach the Court and, as has happened here, obtain interim restraining orders urgently and ultimately final orders. 91For the foregoing reasons, the investigation announced by the PIC on 25 October 2010, as amended on 13 December 2010, is not, in my view, beyond the jurisdiction, powers or functions conferred on the PIC by the PIC Act.

Ground 2: The decision to conduct a public hearing in relation to the second limb 92For all the reasons outlined in relation to Ground 1, namely, that the extension of the investigation into officers of the Crime Commission insofar as they are engaged in making consent orders for restraining persons from dealing with assets and/or confiscating those assets is not beyond the remit of the PIC, this ground, insofar as it relies upon that allegation of jurisdictional error, must fail. 93The determination that the hearing be a public hearing is a determination under s 33 of the PIC Act and involves the Commissioner of the PIC having regard, as a matter of obligation, to those matters that it considers to be related to the public interest. It is noteworthy, that the provisions of the Act define that which is in the public interest to be that which the PIC considers to be in the public interest. The determination to hold a public hearing was made on 26 February 2011 and had regard to the fact that the PIC had already conducted an investigation, which, on the basis of the material before it, and on its opinion, had: "reached the stage where serious issues have been identified regarding possible misconduct by one or more officers of the ... Commission. There is a public interest in the processes of public bodies being accountable. Matters where misconduct may arise require a balance to be struck between possible damage to reputation and accountability of matters of public administration, such as the conduct of officers of the ... Commission in actions under [CARA]. Parliament has given a discretion to the [PIC] to strike the balance between the relevant private interests and the public interest and the [PIC] has determined that the balance lies in favour of public exposure of the issues, including the taking of further evidence." 94The foregoing confirms the view expressed in relation to Ground 1 as to the relationship between the investigation that had already proceeded, the allegations of misconduct and the conduct sought to be examined being the conduct of officers of the Crime Commission under CARA. 95Further, the foregoing statement of reasons also makes clear that, while the second limb of the scope and purpose refers to activities of the Crime Commission, it is the conduct of officers of the Crime Commission that is being investigated. 96Lastly, and most relevantly for present purposes, the determination as to what is in the public interest, bearing in mind the scope and purposes of the legislation, is a matter for the PIC and could be subject to successful judicial review only on a basis which involved the non-consideration of a mandatory criterion or the consideration of an irrelevant one: see Re Coldham Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40, per Mason J. No submission is made, in this case, that the decision, absent want of jurisdiction, was manifestly unreasonable: Peko-Wallsend , supra, at 41, per Mason J.

Ground 3: The temporal connection 97Broadly categorised, the first issue raised under the portmanteau of Ground 3, on which the Crime Commission relies, is based upon the need for a temporal connection between the misconduct and the investigation. There are other aspects with which I will deal shortly. 98To the extent that the submissions in support of Ground 3 rely upon the proposition that the PIC is incapable of investigating misconduct that had already ceased, Ground 3 must be rejected. Almost by definition, misconduct would have been in the past. The fact, if it be the fact, that there was misconduct and that it had ceased does not prevent the PIC from investigating the misconduct. There is no restriction in the PIC Act, nor is there a basis for arguing a restriction in the PIC Act, confining the investigative powers of the PIC to conduct that is subsisting. 99Indeed, even when one is considering "continuing misconduct", in truth, the investigation is into conduct that has occurred in the past and similar conduct that may be occurring at present and, possibly, similar conduct that may be likely to occur in the future. The express terms of s 16(1) of the PIC Act make clear that the PIC is entitled to make assessments and form opinions as to past, present and future misconduct or corrupt conduct and it is entitled to hold investigations for that purpose. 100However, Ground 3 contains two arguments of a different kind. The first relates to the proposition that a letter, relating to the process by which the Crime Commission obtained amounts for its costs in consent orders for the confiscation of assets, was communicated to the relevant Minister. The PIC submits that that letter was misleading and/or deceptive, as a consequence of which, the officer or officers involved in its compilation was or were engaged in misconduct. 101It is extremely difficult to imagine that the statement made to the Minister, and relayed by the Minister to Treasury, was a statement that was knowingly misleading and, even if it were, would, on that account, be misconduct. 102Moreover, if it were misconduct, it would not be misconduct in the functions of the Crime Commission under CARA. It would be misconduct in obtaining acquiescence or approval by government of the different budgetary provision. In other words, such an investigation would not be an investigation into the activities of the Crime Commission (or officers of the Crime Commission) "under CARA" and therefore would be outside the scope and purpose of the investigation as announced by the PIC. 103The other aspect of the Crime Commission's Ground 3 is an allegation that officers of the Crime Commission inappropriately or dishonestly circumvented the rules on the payment of superannuation by conspiring to a sham arrangement in which a person "retired" and received retirement benefits in circumstances where that person had previously already committed to being re-employed by the Crime Commission. Such an allegation, in some circumstances, if proved, may be misconduct. But it is not misconduct that involves the practices and procedures of the Crime Commission (or its officers) in the conduct of actions under CARA. Again, such an allegation would be outside the scope and purpose of the investigation as announced. 104Arising from the immediately foregoing paragraphs, the issue necessarily arises as to the orders that ought be made in relation to those two discrete matters and the proper framing of any such order.

Further grounds of plaintiff officers 105The grounds relied upon by the plaintiff officers are, to some degree, subsumed within the grounds with which the Court has already dealt. The additional grounds are: that the conduct of officers of the Crime Commission is incapable of constituting misconduct because they were following the prevailing practices and procedures of the Crime Commission; a failure to consider the effect of International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 and International Finance Trust Company Ltd v New South Wales Crime Commission (No 2) [2010] NSWCA 46 on the operation of CARA; a failure to consider, properly or at all, the operation of CARA and the nature of settlements for forfeiture applications; misapprehensions of law as to the operation of CARA; a failure to consider the existence and operation of Part 3 of the Crime Commission Act; and that the decision to investigate was made for an improper purpose. These grounds overlap and will be dealt with briefly. 106Before dealing with the grounds, some further background is required. The issues raised by the plaintiff officers, in part, relate to a view that the settlement of a restraining order application and/or forfeiture application under CARA is, relevantly, unrestrained. The Crime Commission received an advice, the privilege on which has been waived, which is before the Court. That advice from senior counsel concludes with the following paragraph: "My view is that s 16A of the Act [a reference to CARA] does not constrain the Commission in negotiating consent orders for the payment of legal expenses out of property the subject of a restraining order made under s 10 of the Act. It is however desirable, in order to reduce the prospects of a successful application to set aside such an order, that a Statement of Affairs be filed. Of course in expressing these views I assume that the Commission always negotiates in good faith, and has regard to the matters contained in s 16A(1). This is a comment as to how Commission solicitors should conduct themselves. It does not relate to the validity of a consent order made under s 10(5)(b)." 107The references to some of the section numbers are references to CARA before recent amendments, but the current provisions of CARA mirror (in some instances in a different section) the provisions to which senior counsel was there referring. The foregoing puts in context some of the grounds upon which the plaintiff officers rely and the concerns of the PIC. 108It is not to the point to suggest that consent orders are valid. They may or may not be. But the validity of the consent orders is not the focus of the investigation by the PIC. The focus of the investigation is whether officers of the Crime Commission have, in fact, negotiated in good faith and have had regard to the matters contained in s 16A of CARA. On some of the evidence, which I have recited, there is open a view that the officers of the Crime Commission have not had regard to such matters and have, arguably, negotiated otherwise than in good faith. 109Plainly, one of the purposes of CARA is to ensure that suspected persons are not able to use illegally obtained assets for their own purposes, including legal expenses. To the extent that officers of the Crime Commission have countenanced a practice which knowingly allowed such illegally acquired property to be used for those purposes, the officers of the Crime Commission, in so doing, may be exercising a discretion beyond the scope and purpose of CARA, under which they are purportedly acting, and, in so doing, acting beyond the scope of their power. 110It is not to the point that s 16A does not regulate or confine the making of an assets forfeiture order. The issue goes to the consideration and criteria that inform the decision of the officers of the Crime Commission in reaching such an agreement and whether a failure to consider the provisions of s 16A of CARA, and the scope and purposes of CARA, amounts to misconduct. 111Further, the fact that these practices are systemic or long-standing does not prevent them from being misconduct, capable of being investigated by the PIC. It may well be that a particular officer directed to engage in particular practices, or to take into account certain criteria, is not engaged in the kind of misconduct for which that officer would be in breach of his employment contract. However, that is a different issue. 112Systemic misconduct and/or practices that are endemic in the organisation may become, reasonably, the conduct of a particular officer and not allow that particular officer to be subject to employment disciplinary procedures. But that is because such an activity, although misconduct, has been countenanced by the employer and is not, as a consequence thereof, a breach of the employment arrangement. There may be other issues that qualify that possibility, such as the particular expertise or seniority of the officer, that would allow employment disciplinary procedures to be taken in any event. 113Contrary to the submission of the plaintiff officers, if conduct be misconduct and it is long-standing and an accepted practice, there is more (not less) reason for an investigation, for findings and for recommendations that would have the effect of restraining that misconduct and implementing processes that would prevent it occurring in the future. 114The ground that relies upon a failure to consider the effect of International Finance Trust , supra, (either at the High Court or at the Court of Appeal) is essentially a ground that relies upon the proposition that the conduct of the Crime Commission under s 10 is irrelevant for the purposes of determining any misconduct, because s 10 was invalid. The investigation therefore is purely academic. First, that s 10, in its unamended form, was invalid, is beyond doubt. The mere fact that s 10 of CARA was invalid does not mean that conduct of officers of the Crime Commission in the manner in which they dealt with applications under s 10 could not be misconduct. 115Secondly, the conduct of officers under the invalid s 10 is conduct that, at least in part, has been repeated under the newly promulgated provisions. This ground of challenge does not withstand scrutiny. 116It may be that the conduct of the officers of the Crime Commission was not misconduct. It may be, as a matter of law, the constraints and purposes of s 16A of CARA do not inform the exercise of the discretion of an officer of the Crime Commission in reaching an agreement as to a restraining order or as to a forfeiture order. I doubt that to be the case. Nevertheless, it is possible. But even if it were so, that would not make an investigation into such conduct impermissible. The Court has already referred to the judgment of the High Court in Melbourne Stevedoring , supra, and it would be necessary for the plaintiff officers to show there is no arguable basis for any allegation of misconduct in relation to that activity. Given that the allegations of misconduct include allegations of improper purpose, this ground, too, does not withstand scrutiny. 117There is no evidence upon which it could be suggested that the PIC had an improper purpose in extending the investigation by the addition of the second limb, unless it can be said that an inquiry into the Crime Commission's conduct of CARA matters is, itself, an improper purpose, with which the Court has already dealt. 118The declarations that are sought, as to the operation of s 16A of CARA not acting as a fetter on the power of the Crime Commission to settle forfeiture applications under s 22 and making allowance for the payment of legal expenses of the Crime Commission, miss the point. As already explained, one of the purposes to which s 16A (and s 22) of CARA goes is the proposition that illegally acquired property should be confiscated to the State, not be available to the defendant in CARA proceedings, and not be available to the defendant in such proceedings for her or his purposes. The payment of legal expenses out of illegally acquired property is a use not countenanced by CARA. The payment of costs to the Crime Commission, which costs would be the responsibility of the defendant in those proceedings, out of illegally acquired property, essentially allows such a defendant to utilise illegally acquired property to satisfy debts that are required to be paid otherwise. These matters need not be decided finally. It is sufficient, for present purposes, to note that the failure to have regard to s 16A and/or the purposes and scope of CARA is arguably misconduct and is a matter that the PIC is entitled to investigate. The declarations will not be made. 119All other relief sought by the plaintiff officers is dependent upon grounds with which the Court has already dealt.

Conclusion 120For the reasons outlined, the Court has determined that the investigation described in the statement of the PIC is, when understood in the context in which it was made, an investigation that was within power. It is within power because it is an investigation that includes the second limb, which, as a matter of fact, is not unconnected with allegations of misconduct by officers of the Crime Commission. 121It is unnecessary to state the limits of the powers of the PIC to conduct an investigation under s 23 of the PIC Act. Such power extends, at least, to an outcome of prevention that is, in fact, sufficiently connected with allegations of past, present or likely future misconduct. This investigation has sufficient connection of that kind and is permissible under the legislation. 122The allegations relating to the abuse of superannuation rules and the purportedly misleading statement as to the oversight of the Court on consent orders are not matters that are caught by the description "practices and procedures of the New South Wales Crime Commission in the conduct of actions under the Criminal Assets Recovery Act 1990" and are therefore not matters that may be investigated in an investigation confined to the scope and purpose of the investigation announced by the PIC. These issues were not the major matters raised in these proceedings. 123My preliminary inclination is not to make any order as to costs. Nevertheless, I will allow any party to put a submission, in writing, as to the appropriate order on costs. Such a submission should be made within 14 days and may be answered by any party affected by it within a further 14 days. 124As a consequence of the foregoing, the Court makes the following orders: (i) The Police Integrity Commission shall not, in conducting the investigation, the scope and purpose of which was announced on 13 December 2010, investigate the practice or practices of re-engagement of persons previously retired from public service or the allegedly misleading statement contained in a letter from the Minister for Police to the Treasurer relating to the supervision of costs orders by the Supreme Court of New South Wales; (ii) The parties be granted liberty to apply in relation to the form of orders reflecting these reasons for judgment and any ancillary orders, including any order as to any stay in force or costs; (iii) Otherwise the proceedings are dismissed.

Amendments 01 June 2011 - Text changed. Amended paragraphs: Headnote and para 64 01 June 2011 - Text changed. Amended paragraphs: Headnote and para 64 01 June 2011 - Reference to "Crime Commission" should have been "PIC". Amended paragraphs: Headnote, 69 and 93 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: 01 June 2011

headnote This headnote is not part of the judgment in this matter and should not be relied upon as such. Facts By amended summons filed on 8 April 2011, the New South Wales Crime Commission (hereinafter "the Crime Commission") sought various orders the effect of which would prevent the Police Integrity Commission (hereinafter "PIC") from investigating the Crime Commission's practices and procedures under the Criminal Assets Recovery Act 1990 (hereinafter "CARA"). Two officers of the Crime Commission, Messrs Giorguitti and Spark (hereinafter "the plaintiff officers") also sought orders to similar effect. The PIC suspected misconduct arising from the activities of a particular Crime Commission investigator and his relationship with a legal representative of a suspected person. The investigation into those allegations led the PIC to the view that the conduct by Crime Commission officers of CARA matters involved misconduct because of an alleged disregard of what the PIC considered were statutory restrictions in the conduct of CARA matters, in particular the settlement of applications for asset restraining orders or forfeiture orders. The Crime Commission's conduct in failing to have regard to the restrictions on the payment of legal expenses out of illegally acquired property is of particular concern to the PIC. Its suspicions prompted the extension of the purported investigation. The scope and purpose of the investigation was extended to include a second limb, "to examine the practices and procedures of the New South Wales Crime Commission in the conduct of actions under the Criminal Assets Recovery Act 1990". Grounds The Crime Commission relied upon three grounds in its attempt to quash the investigation by the PIC. It alleged that the PIC did not have the power under the Police Integrity Commission Act 1996 ( hereinafter "the PIC Act") to conduct the extended investigation; that the prior decision to hold a public hearing in relation to its investigation under the second limb of s 13B(1) was invalid because the PIC had no power to conduct the investigation; and that the basis of the public hearing decision regarding the practices of the Crime Commission was invalid because it was in excess of power, took into account irrelevant considerations and/or was so unreasonable that no reasonable decision-maker could have made the decision. The plaintiff officers raised additional grounds including: that the PIC had no power "to examine" as distinct from "investigate" and that only the officers of the Crime Commission, and not the Crime Commission itself as a statutory body, can engage in misconduct; that there was no misconduct by the Crime Commission officers because they were following longstanding practices and procedures; that the PIC failed to consider relevant case law on the operation of CARA and the existence and operation of Part 3 of the New South Wales Crime Commission Act 1985; and that the PIC's decision to investigate was made for an improper purpose. The proceedings dissected the provisions of both CARA and the PIC Act. The scope of the terms "investigate" and "investigation", as contained in s 13B(1) and s 23 of the PIC Act respectively, were scrutinised in order to determine the scope of the PIC's power to investigate suspected misconduct. The applicable legislation The principal functions of the PIC, as described in s 13 of the PIC Act, include "to prevent police misconduct" and "to detect or investigate, or manage or oversee other agencies in the detection or investigation of, police misconduct". Section 13B of the PIC Act addresses the functions of the PIC in relation to Crime Commission officers apart from its principal functions as outlined in s 13 and its functions relating to administrative officers as outlined in s 13A. Those functions are: "(a) to prevent misconduct of Crime Commission officers, (b) to detect or investigate, or oversee other agencies in the detection or investigation of, misconduct of Crime Commission Officers". Section 13B(2) directs that the PIC should principally focus on serious misconduct of Crime Commission officers when carrying out the abovementioned functions. Section 13B(3) and (4) constrain such functions. Section 23 of the PIC Act regulates "investigations generally" and states that the PIC may conduct an investigation on its own initiative or upon receipt of a police complaint, a complaint from an administrative officer or Crime Commission officer or a report made to it. Section 77(1) of the PIC Act suggests, as does s 13(5), that the PIC has a broad power to investigate. The PIC has general incidental powers under s 22 of the PIC Act "... to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions". There are a number of activities the PIC may engage in at its own discretion. Held: (1) The scope and purpose of the PIC's extended investigation, i.e. including the second limb, was to investigate the manner in which the Crime Commission has performed its functions under CARA in order to ascertain precisely how those functions were performed and to take steps to prevent past misconduct from recurring or likely future misconduct from occurring. The investigation is sufficiently connected with misconduct of Crime Commission officers and is within the jurisdiction and functions of the PIC. ([82], [91], [120] - [121]) Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446 per Giles JA applied. (2) The PIC had the power to extend the investigation to officers of the Crime Commission insofar as they were involved in restraining orders or forfeiture orders under CARA and did not fall into jurisdictional error in doing so. ([92]) Police Integrity Commission v Shaw, supra. (3) The PIC's determination on 26 February 2011 to hold a public hearing pursuant to s 33 of the PIC Act was not invalid. It is the PIC's decision as to what is in the public interest. Such a determination can only be successfully challenged if it involved the non-consideration of a mandatory criterion or the consideration of an irrelevant one or if it was manifestly unreasonable. ([96]) Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 40 per Mason J applied. (4) The PIC Act does not confine the investigative powers of the PIC to conduct that is subsisting. ([98]) (5) The statement made to the Minister and Treasury by the Crime Commission regarding the amount for the Crime Commission's costs in relation to consent orders for the confiscation of assets as well as the action of officers of the Crime Commission in circumventing the rules on the payment of superannuation do not involve the functions of the Crime Commission (or its officers) under CARA and are therefore outside the scope and purpose of the investigation announced on 13 December 2010. ([100] - [104]) (6) The allegation that Crime Commission officers have not negotiated in good faith or had regard to matters in s 16A of CARA when dealing with the settlement of a restraining order application and/or a forfeiture order application under CARA, constitutes an allegation of misconduct which the PIC is entitled to investigate. The fact that the aforementioned practices are systemic and longstanding does not prevent them from being misconduct, capable of being investigated by the PIC. ([108] - [111]) (7) Activities pursuant to the unamended s 10 of CARA may still involve misconduct despite the fact that the unamended s 10 was considered to be invalid. ([114]) (8) There is no evidence that the PIC had an improper purpose in extending the investigation to include a second limb. ([117])

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