Police Integrity Commission & Anor v Shaw

Police Integrity Commission & Anor v Shaw - [2006] NSWCA 165 - NSWCA 2006 case summary — Zoe

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Friday 30 June 2006 POLICE INTEGRITY COMMISSION & ANOR v SHAW Judgment 1 GILES JA: The first appellant ("the Commission") is constituted as a corporation by the Police Integrity Commission Act 1996 ("the Act"). The Commission's functions are exercisable by the second appellant. Its functions will be described in more detail later in these reasons; it may be accepted that they focus on the prevention of police misconduct. 2 The Commission's powers include the conduct of investigations and preparation of reports in relation to matters the subject of investigations. Where for the purposes of an investigation the Commission has held a public hearing, it must prepare a report in relation to the matters as to which it has conducted the public hearing and furnish the report to Parliament. 3 The Commission conducted an investigation, under the name Operation Banff, described as - "To investigate the conduct of NSW Police officers and others involved in events arising from a motor vehicle accident at Louisa Road, Birchgrove, on 13 October 2004 at approximately 23.30 hours." 4 For the purposes of the investigation the Commission held a public hearing, at which the second appellant presided. 5 The respondent was the driver of the motor vehicle in the accident from which arose the events the subject of the investigation. He was injured, and was taken to Royal Prince Alfred Hospital in Sydney. As required by s 20 of the Road Transport (Safety and Traffic Management) Act 1999, a sample of his blood was taken for analysis. 6 According to the then procedure, one vial of blood should have been placed by the medical staff in a blood security box at the hospital, and then retrieved by a police officer and submitted to blood alcohol analysis; the other vial of blood should have been given to the respondent. The police vial should have been accompanied by three copies of a form completed when the blood sample was taken, and the respondent's vial should have been accompanied by a fourth copy of the form. 7 Both vials and their accompanying forms ended up in the possession of the respondent. The investigation was directed to the circumstances in which the police vial and its accompanying forms ended up in his possession. There could have been police misconduct, if conduct of a police officer or police officers caused or contributed to the incorrect destination of the police vial and its accompanying forms. Or the incorrect destination could have been occasioned by the conduct of the medical staff, the conduct of the respondent, or in some other way. 8 Police officers, the medical officer who took the blood sample, other medical staff, the respondent and some other persons gave evidence at the public hearing. Counsel assisting the Commission provided written submissions to the Commission. Counsel for the respondent provided responsive written submissions. 9 The respondent's submissions included that the Commission "does not have jurisdiction to express an opinion or make a statement concerning" the respondent. The respondent brought proceedings against the Commission and the second appellant seeking to establish that position. 10 Through an "Opinion on Jurisdiction", the Commission disagreed with the asserted lack of jurisdiction and said that it proposed to consider the evidence and submissions and "form its mind on relevant matters". 11 In the proceedings brought by the respondent, Young CJ in Eq made the declarations - "1. Declare that the Defendants would be exceeding their jurisdiction if they were to make a report to Parliament with respect to the Plaintiff's conduct, in which it [sic] made an assessment or expressed a conclusion or opinion that the Plaintiff has engaged in misconduct for the purposes of section 16(1)(a) of the Police Integrity Commission Act 1996 (NSW).

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(3) ... " 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. The investigation Operation Banff was into possible police misconduct. It extended to the conduct of the medical staff and the conduct of the respondent, whether or not the conduct might have warranted the description of misconduct, as part of ascertaining the circumstances in which the police vial and its accompanying forms ended up in the possession of the respondent. The conduct of all who might have caused or contributed to the incorrect destination of the police vial and its accompanying forms was properly part of the investigation, and it would have been an incomplete investigation if only the conduct of the police officers was addressed. 18 Sections 129 and 130 of the Act regulate division of investigatory and other powers between the Commission and the Independent Commission against Corruption. Section 130 provides that the Commission cannot investigate or otherwise deal with a matter involving the conduct of public officials if the matter does not also involve the conduct of police officers but may do so "provided this is done in the context of matters that also involve police officers". The respondent was a judge of the Supreme Court, and under the relevant definition was a public official for the purposes of s 130. Even if Operation Banff involved his conduct as a public official, it also involved the conduct of police officers and there was the context of it also involving police officers.

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(4) Subsection (2) does not limit the kind of statement that a report can contain concerning any such "affected" person and does not prevent a report from containing a statement described in that subsection in respect of any other person." 22 Section 16 is perhaps curiously worded, permitting and forbidding making assessments, forming opinions, making findings and (less curiously) making recommendations. Unless intended as a form of thought-control, the explanation may be that, quite apart from inclusion in a report under s 96, stating permissible and forbidden assessments etcetera also affects what the Commission can do under other provisions of the Act, of which ss 15, 18 and 83 are the most material. 23 By s 15(1)(a) and (c), the Commission's functions include assembling evidence that may be admissible in the prosecution of "a person" for a criminal offence against the law of the State and providing it to the Director of Public Prosecutions, and assembling evidence that may be admissible in the prosecution of "a person (other than a police officer)" for a disciplinary offence under the law of the State and furnishing it to "the appropriate authority" in the State. By s 15(1)(d), they include the furnishing of evidence obtained in the course of its investigations that may be admissible in the prosecution of "a person" for a criminal offence against or disciplinary offence under the law of the Commonwealth or other State or Territory to the Attorney General or the appropriate authority in the jurisdiction concerned. By s 15(4), if the Commission obtains information in the course of its investigations relating to the exercise of the functions of a public authority, it may furnish the information or a report of the information to the public authority or the Minister for the authority and make a recommendation to the authority or the Minister. 24 By s 18, in exercising its investigative functions the Commission may work in co-operation with "other investigative agencies and such other persons as [it] thinks appropriate", and may "disseminate intelligence and information" to them. By s 83, before or after investigating a matter it may refer the matter to any authority it considers appropriate in the circumstances, and may communicate to the authority "any information [that it] has obtained during the investigation of conduct connected with the matter". 25 Investigation and reporting are in fulfilment of the principal objects of the Act, set out in s 3 and in essence the detection, investigation and reporting of police misconduct, and the principal functions of the Commission, set out in s 13 of the Act and involving the prevention of police misconduct. But principal objects and functions connote other objects and functions within the terms of the Act, and the definition of police misconduct in s 5(1) includes misconduct of a police officer "whether or not it also involves non-police participants". Section 15 expressly states "other functions of the Commission". Section 22(1) provides - " 22 Incidental powers

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(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." 26 It can not be gainsaid, in my opinion, that assessments and opinions may be made and formed not only in relation to police misconduct but also in relation to the misconduct of other persons whose conduct was relevant to the investigation of police misconduct: although within the limitations of s 16(2). Section 16(1) expressly says "or other misconduct", and an assessment or opinion as to misconduct underpins what the Commission can do under ss 15, 18 and 83. Section 15 plainly extends to the conduct of persons other than police officers, and it is scarcely less obvious that the information properly acquired by the Commission which can be dealt with under ss 18 and 83 includes information as to the conduct of persons other than police officers. Further, the recommendations which may be made include the general "for the taking of other action … in relation to the subject-matter of [the Commission's] assessments or opinions or the results of any such investigations" (s 16(1)(c): although not a recommendation that a specified person should be prosecuted for a criminal offence or a disciplinary offence). 27 The assessments and opinions are not necessarily on the basis of investigations - other sources are stated in s 16(1)(a). Permissible assessments, opinions and recommendations may be expressed otherwise than in a report prepared as envisaged by s 96. But if there has been an investigation and there is a report to Parliament, s 97(1) authorises inclusion of statements as to assessments, opinions and recommendations which s 16 permits. Section 97(2) goes further, and requires statement in respect of an "affected" person as to whether or not the Commission is of the opinion that consideration should be given to prosecution for a specified criminal offence, taking action for a specified disciplinary offence, or taking the other action mentioned. 28 In a report to Parliament the criterion for the statement in s 97(2) is not that the person is a police officer, but by the definition of an "affected" person in s 97(3) is whether in the Commission's opinion substantial allegations have been made against the person in the course of or in connection with the investigation. An "affected" person may well not be a police officer. That the report may also include an assessment, opinion or recommendation as to a person not a police officer is made plain by s 97(4). It would be most odd if the mandatory reporting extended to the conduct of a person other than a police officer but the reporting otherwise could not do so. 29 A report need not, of course, detail misconduct, whether of police officers or otherwise. It may report upon conduct, simply because the conduct is relevant to the outcome of the investigation and even if the outcome is that there was no police misconduct. Within the provisions to which I have referred, if the conduct is conduct relevant to an investigation of police misconduct there is no proper basis to exclude from a report to Parliament information as to the conduct of persons other than police officers, acquired in the investigation because so relevant. Nor is there a proper basis to exclude from a report to Parliament permissible assessments, opinions and recommendations in relation to that conduct as to misconduct of or action against persons other than police officers. 30 In the present case, the Commission's report to Parliament can include the respondent's conduct relevant to the outcome of its investigation, reporting as to the conduct whether it be found favourably or unfavourably simply because of its relevance. If the Commission so concludes, it can make the assessment and form the opinion that misconduct of the respondent occurred or may have occurred, and may make a recommendation for the taking of action against him, within the limits of s 16(2), and can report accordingly. Further, the respondent was an "affected" person - it was so held by Young CJ in Eq, and his Honour's holding was not challenged by an application for leave to cross-appeal - and so it is mandatory to include in the report to Parliament the statement to which s 97(2) refers. 31 Young CJ in Eq was of the view that "other misconduct" in s 16(1) was limited to conduct with a "close nexus" or an "intimate connection" with possible police misconduct. His Honour contrasted "conduct peripheral to or innocently co-incidental with conduct said to amount to police misconduct"; this may leave some middle ground unaccounted for, or perhaps may reflect upon the closeness or intimacy. His Honour held that the respondent's conduct was entirely peripheral to the investigation of police misconduct because, in his Honour's view, the Commission had "eliminated the question of police misconduct" before it turned to resolution of whether (in my language) the incorrect destination of the police vial and its accompanying forms was occasioned by the conduct of the medical staff or the conduct of the respondent. 32 As appears from the foregoing, I respectfully take a different view as to "other misconduct". The link or connection with police misconduct arises in the investigation. If the conduct in question was properly within the investigation, subject to s 16(2) it can be the subject of an assessment or opinion that it was misconduct. The link or connection with police misconduct is not one of closeness or intimacy. 33 Nor do I agree that the Commission had eliminated the question of police misconduct. Counsel assisting the Commission had presumably been appointed pursuant to s 12 of the Act, enabling appointment of a legal practitioner "to assist the Commission as counsel". The submission of counsel assisting had included that the Commission should find that there was not police misconduct, but counsel assisting was not the Commission and counsel's submission was not a finding of the Commission. The judge had said that the way the police witnesses were questioned and counsel assisting's submission meant that it would be contrary to principles of natural justice to find police misconduct, and that he therefore concluded that such a finding would not be made, but I respectfully do not consider that the Commission's findings can be anticipated in that way. It is for the Commission to make its findings; if it contemplates finding police misconduct, it may or may not be that procedural fairness will be in question, but if necessary procedural fairness can still be afforded. 34 In this Court, although perhaps not before Young CJ in Eq, the respondent submitted that the Opinion on Jurisdiction conveyed the Commission's acceptance that there was not police misconduct. I do not so read it - indeed, in my opinion it made clear that the Commission was still to come to its view. 35 Although he found that the respondent was an "affected" person, Young CJ in Eq does not appear to have thought that relevant to his decision. It will be apparent that I respectfully consider that it is particularly relevant to the second declaration made by his Honour, which was concerned with the report to Parliament pursuant to s 97. For the statement to which it refers, s 97(2) requires the Commission to consider whether or not it is of the opinion that consideration should be given to any of the matters in paras (a) to (d). If the Commission reaches the opinion that consideration should be given to the prosecution of the respondent for a specified criminal offence, it must so state. This would be a conclusion or opinion with respect to the respondent's alleged misconduct, and the second declaration would controvert the statutory obligation. 36 Since writing the preceding reasons I have read the reasons of Basten JA in draft. The separate joinder of the second appellant was but touched upon in submissions, and other matters of the constitution of the proceedings, the active roles of the appellants and the nature and availability of prohibitory and declaratory relief were not the subject of any real argument. In the light of my conclusion that the declarations should not have been made, it is not necessary to express a view on these matters, and I respectfully prefer not to do so: save that, where the respondent made the Commission and the second appellant the defendants in his proceedings, and they defended the Commission's powers without protest from the respondent that they should have entered submitting appearances (and so left the field to the respondent), I see no reason why the appellants should not have their costs in the ordinary way.

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Parties 40 A question was raised by the Respondent (in the course of oral submissions) as to the propriety of the Commissioner being an appellant and thus an active party seeking to assert an expansive view of his powers. Counsel for the Respondent argued that the Commissioner had taken an appropriate course before the primary judge, where he had entered a submitting appearance. Counsel for the Respondent also argued that there was a significant distinction to be drawn between the position of the Commission and that of the Commissioner conducting the investigation. He pointed to the separate constitution of the Commission as a corporation and the appointment by the Governor of a Commissioner, pursuant to ss 6 and 7 respectively of the PIC Act. However, no such distinction is maintained in the Act. Thus, powers are conferred on the Commission by s 22, the Commission is the body empowered to conduct an investigation pursuant to s 23, and the various functions which, on the Respondent's own case are said to confine the scope of the investigation and the exercise of powers, are functions conferred on the Commission. Finally, that which is ultimately sought to be prevented in the present case is a report to Parliament containing certain matters, where the power of reporting is conferred on the Commission: see ss 96 and 97. 41 On their part, the Appellants said the Commissioner should not have been joined as a defendant below. However, for either Appellant to play an active role could be seen to be inconsistent with a proper approach of neutrality on the part of a decision-maker and especially one who has continuing functions which might be exercised adversely to the Respondent: see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. As the Court stated at p 35-36: "If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."

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The Commission's inquiry 44 The factual background to the proceedings can be briefly stated. On 13 October 2004 the Respondent, whilst driving his car, was involved in a collision with a stationary parked car. He was injured in the accident and was taken to Royal Prince Alfred Hospital in Sydney. In accordance with the statutory procedure provided in the Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 20, a blood sample was taken by a doctor at the hospital. The sample was divided into three parts, two being required for blood alcohol analysis. According to established procedures, one sample was to be placed in a collection box for the police to recover and the other was to be given to the patient. In fact the Respondent left the hospital with both samples. The primary purpose of the investigation by the Commission appears to have been directed at how that came about and whether police were involved. 45 It appears from the papers before the Court that the investigation was initiated by a Commissioner who signed a document entitled "Purpose of Investigation" on 4 November 2004, in the following terms: "To investigate the conduct of NSW Police officers and others involved in events arising from a motor vehicle accident at Louisa Road, Birchgrove, on 13 October 2004 at approximately 2330 hours." 46 The Commission conducted a public hearing as part of the investigation, commencing on 15 November 2004. At that hearing the Commission took evidence over a period of three days from police officers, staff at the hospital, the Respondent and other witnesses. In fact the Respondent was the first witness called, but counsel assisting indicated an intention to recall him on the third day of the hearing. At the commencement of that day, senior counsel appearing for the Respondent asked the Commissioner to discontinue the proceedings. He stated (Tcpt, 17.11.04, p 186): "It has now become apparent, particularly from the questions my friend [counsel assisting] put to the police officers yesterday, that not only is there no suspicion of police misconduct, but we know positively that there was no police misconduct. I'm assuming we will get the same sorts of answers from the remaining police officer." 47 Because there was at least one police officer yet to be called, that application was said to be premature. However, counsel assisting had apparently indicated an intention to recall the Respondent before calling the final police officer. At the conclusion of the argument the Commissioner indicated that he did not intend to adjourn the proceedings. Counsel for the Respondent then sought an opportunity to seek an interim injunction from the Supreme Court, and an adjournment for that purpose. When that application was refused, he sought leave to be excused and the Respondent was recalled to the witness box. The Commissioner asked to be informed of any interim injunction issued by the Supreme Court and indicated an intention to continue until that occurred. 48 In fact no injunction was obtained at that time and when the matter concluded on the afternoon of 17 November, a timetable was set for the preparation and exchange of written submissions. In a submission filed on 22 December 2004, counsel for the Respondent submitted that the Commission had no jurisdiction to express any opinion in relation to the conduct of the Respondent. Counsel assisting expressed the view that the power of the Commission was not so limited. 49 On 11 February 2005, the Commission issued a document entitled "Opinion on Jurisdiction" which noted, at paragraph 6: "On the afternoon of 24 December 2004 the Commission and the Commissioner for the Police Integrity Commission were served, without forewarning, with a Supreme Court summons and notice of motion filed by Mr Shaw seeking, inter alia, declaratory relief in relation to what then was and as yet remains a potential for adverse opinions to be reached by the Commission in relation to Mr Shaw. Upon their return on 30 December 2004 the proceedings were, by consent, stood out of the list with liberty to restore. This occurred at the suggestion of the Commission in order that it might have an opportunity to consider the submissions on behalf of Mr Shaw and, should it be satisfied of its jurisdiction, to determine whether it in fact proposes to make assessments or form opinions adverse to Mr Shaw." 50 Given the exchange which occurred on the morning of 17 November, it might be considered a little precious to describe the proceedings as being "without forewarning": in any event, on 21 February 2005 the Commission wrote to the solicitors for the Respondent indicating a view that, while the application for relief had previously been premature, once the "opinion on jurisdiction" had been issued, that was no longer the case and, in effect, it treated the Respondent as entitled to pursue his Supreme Court proceedings, should he so wish. It appears that the Commission has taken no further steps, or at least no further public steps, since issuing its opinion on 11 February 2005. 51 The reasoning underlying the Commission's opinion on jurisdiction will be considered below. It expressed its conclusions at paragraph 46 in the following terms: "The Commission's primary conclusions are as follows: (i) It has jurisdiction to examine the conduct of Mr Shaw in relation to the subject matter of its investigation and to make assessments and form and express opinions about that conduct, whether such assessments and opinions be adverse or favourable to Mr Shaw; (ii) Mr Shaw is an 'affected person' within the meaning of s 97(3) of the PIC Act; and (iii) No denial of procedural fairness has been involved in Mr Shaw's characterisation as an affected person."

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Judgment in Equity Division 52 The reasons for judgment of Young CJ in Eq set out in careful detail the submissions made by the parties: see Shaw v Police Integrity Commission [2005] NSWSC 782 at [34]-[58]. At the risk of over-simplification, the Respondent's argument in the Court below, and on appeal, was that the PIC Act created a Commission whose object was to investigate police misconduct and that the powers conferred on it should be read as limited by this controlling statutory purpose. Thus, its powers did not extend to identifying and characterising misconduct on the part of citizens other than police officers, in circumstances which involved no police misconduct, except to the extent necessary to justify or explain that conclusion. The only potential exception to that approach was to be found in s 130 of the PIC Act, which allowed the Commission to make findings in relation to "public officials", not being police officers. That section, it was contended, did not apply to the Respondent because he was not engaged in official duties at the time. 53 His Honour largely accepted the first argument and made the following declarations: (1) Declare that the Defendants would be exceeding their jurisdiction if they were to make a report to Parliament with respect to the Plaintiff's conduct, in which it [sic] made an assessment or expressed a conclusion or opinion that the Plaintiff has engaged in misconduct for the purposes of s 16(1)(a) of the Police Integrity Commission Act 1996 (NSW). (2) Declare that the Defendants would be exceeding their jurisdiction, if they were to make a report to Parliament in which they made an assessment or expressed a conclusion or opinion with respect to the Plaintiff's alleged misconduct pursuant to s 97 of the Police Integrity Commission Act 1996 (NSW). 54 In their notice of appeal in this Court, the Appellants asserted that the Court erred in making each of those declarations: grounds 1 and 2. To the same effect, they challenged the nature of the connection as explained by his Honour in his reasons for judgment, between police misconduct and other misconduct, necessary to engage the powers of the Commission: grounds 3 and 4. 55 Further, and to the extent that his Honour's reasoning depended upon it, the Appellants challenged the conclusion that the Commission had made any findings or reached any conclusion in relation to the existence or otherwise of police misconduct, or indeed other misconduct: ground 5. 56 One consequence of the declarations made below was that, quite apart from any misconduct of the Respondent on the night in question, the Commission was precluded from including in its report an opinion in relation to whether consideration should be given to prosecuting the Respondent because evidence given by him before the Commission was, to his knowledge, false or misleading in a material particular, contrary to s 107 of the PIC Act. That limitation was challenged in ground 6. 57 Finally, the Appellants challenged the reasoning of the primary judge to the extent that it accepted the proposition that, pursuant to s 130 of the PIC Act, the Commission could only investigate "public" as opposed to "private", misconduct of a public official: ground 7.

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Legal principles 58 There are several issues of principle to be considered in relation to an attempt to restrain a statutory tribunal, exercising powers in pursuit of public functions, from continuing on a course which may be beyond its powers. Here restraining orders were sought to prevent a tribunal, which has embarked upon a legitimate course of investigation, from taking a specific step which it is contended would be beyond power. Relief may be premature in those circumstances either because the tribunal may not ultimately decide it has the power to take the impugned step or because it thinks the step inappropriate for other reasons. Broadly speaking, these factors have been treated as going primarily to the discretionary grant of relief and not as precluding the exercise of the court's supervisory jurisdiction: see Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed, 2004) at pp 696-697. 59 Further, although the Respondent accepted that he must establish jurisdictional error, that term is sometimes used loosely as if it were a serious form of error of law. However, it need not be an error of law at all, except in the sense that a legal precondition to the exercise of power has not been met. Sometimes the precondition is a matter of objective fact; sometimes it is a matter of opinion of the repository of the power. Thus, in The Queen v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 214, Gibbs J expressed the principle in the following terms: "Prohibition lies where a court is proceeding without jurisdiction, but not to correct an erroneous decision made by a court in the exercise of a jurisdiction which it possesses. A legislature, in conferring jurisdiction upon a court, may make the existence of a state of facts a condition upon which the jurisdiction of the court depends, and in that case the court cannot give itself jurisdiction by erroneously deciding that the facts exist. On the other hand the legislature may entrust the court with power to determine whether such a state of facts exists, and if so the court has jurisdiction to determine all the facts, including the preliminary facts on the existence of which the jurisdiction depends."

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Similar statements were made by Barwick CJ at 202 and by Mason J at 225-226, each of their Honours qualifying the principle by reference to the fact that Parliament cannot remove from the jurisdiction of the High Court the objective determination of facts which constitute a constitutional precondition to the exercise of power. 60 Apart from constitutional facts, the likelihood that Parliament has conferred jurisdiction subject to the tribunal's opinion as to certain matters, rather than subject to their objective existence, is a presumption in relation to courts, but may be applied also in relation to tribunals: cf Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 (Dixon J). Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 provides an example of a case where a statutory condition was found to depend upon the view of the Heritage Commission, rather than an objective assessment of facts, where the Heritage Commission was required to undertake an assessment and exercise evaluative judgment in exercising its statutory powers. That is not to say that where the opinion is itself a jurisdictional fact, the formulation of the opinion cannot be challenged as, in effect, a nullity: where the opinion asserted is capricious, arbitrary or irrational in the sense identified in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[134] (Gummow J) citing R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and 432 (Latham CJ), the opinion so formed will not be legally effective. 61 In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 the High Court was invited to intervene by way of constitutional writ to prevent a delegate of the Board entering upon an investigation into the registration of a stevedoring company. The joint judgment (of Dixon CJ, Williams, Webb and Fullagar JJ) noted that the company had committed no offence and continued (p 117): "Accordingly the question upon which the liability of the company to cancellation or suspension of its registration depends is whether it is unfit to continue to be registered or has acted in a manner whereby the proper performance of stevedoring operations has been interfered with. But the power of the board or its delegate to cancel or suspend registration does not depend upon the fulfilment of one or other of these conditions as a matter of objective truth or reality. It depends upon the satisfaction of the board or its delegate that one or other of the conditions does exist."

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The joint judgment continued: "It is therefore evident that no prohibition could go to restrain the holding of an inquiry directed to any one or more of those issues. There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power … or that an erroneous test of the liability of the employer to the cancellation or suspension of his registration will be applied or that some abuse of authority is likely. … If on the facts no basis could exist for exercising the power it would be a proper exercise of this Court's jurisdiction to award a writ of prohibition … ." 62 At pp 118-119 the joint judgment dealt with the argument that the Court ought not to consider granting relief until an order had actually been made. That argument was rejected where "the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority" and where the threatened exercise in excess of power, if completed, would be protected from review. 63 Although the evidence in that case was less than perfect, the Court held the material upon which the delegate was proposing to act provided no "foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends": p 119. That, the Court was at pains to point out, did not merely mean that the Board was threatening to act on a basis which was erroneous in law, but that it was likely to act in circumstances where its power was not engaged. In that sense the threatened error was jurisdictional. 64 Where there is a concern that a tribunal may be about to exceed its jurisdiction, it may be appropriate to craft relief in a manner which does not prohibit the carrying out of the statutory powers, but merely imposes a limit to prevent jurisdiction being exceeded. The declarations made by the primary judge in the present case were designed to have that effect. Sometimes this course may not be appropriate, but where, as is arguably the case in this matter, no effective relief will be available if jurisdiction is exceeded and the Tribunal has indicated that it is considering acting in a manner which may exceed jurisdiction, such relief can be appropriate. 65 The occasion for granting relief in this form in the present case is that a report of the Commission is not subject to any form of appeal and, because it is not a precondition to any exercise of any power, will not be subject to quashing by certiorari, once made: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, applied by this Court in relation to a report of the Independent Commission Against Corruption ("the ICAC") in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. In the latter case, at p 148E, Gleeson CJ explained the unavailability of certiorari to quash a report of the Commission in the following terms: "That is because, technically, determinations of the Commission, although they may be extremely damaging to the reputations of individuals, do not have legal consequences. A determination of the Commission does not create or affect legal rights or obligations." 66 In Ainsworth, the High Court refused to quash the report or the impugned findings, but declared that the respondent Commission had failed to observe the requirements of procedural fairness. That approach has not gone without critical comment: thus Aronson, Dyer and Groves note that it is "difficult to understand why a court will refuse to quash that which it is prepared to condemn": at p 709. The authors consider it "most remarkable of all" that, as the High Court expressly recognised, prohibition would have been available had the prosecutor for the writ anticipated the adverse findings and reached the Court in time. But a case in which procedural fairness has not been accorded is likely to be the kind of case where the prosecutor will not have the opportunity to seek prohibition. 67 In Greiner, this Court declared that the impugned determination of the ICAC in its report "was made without or in excess of jurisdiction, and is a nullity". It might be thought that there was a tension between the form of declaration made in Greiner and the principle underlying Ainsworth. However, for present purposes it is sufficient to assume that if the Police Integrity Commission makes a report damaging to the Respondent's reputation, he will not be able to obtain certiorari after it has been made. For present purposes that assumption is favourable to the Respondent because it provides a powerful discretionary reason for granting prohibition if an excess of jurisdiction is threatened.

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Powers of Commission 68 The challenge brought by the Respondent went to the powers of the Commission. Any analysis of those powers must start with the section in the PIC Act which confers them, which is in the following terms: 22 Incidental powers 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. 69 The argument presented by the Respondent focused on the functions set out in Part 3 of the PIC Act. It was said that the functions, set out in s 13 of the PIC Act are focused squarely on "police misconduct". Thus the first of the principal functions identified in s 13(1) is "to prevent serious police misconduct and other police misconduct": s 13(1)(a). The point is emphasised in the following subsection which provides that the Commission is "as far as practicable, required to turn its attention principally to serious police misconduct": s 13(2). 70 The concept of "police misconduct" is clearly critical to the description of the functions of the Commission and is defined in s 5, so far as relevant, in the following terms: 5 Police misconduct (1) Definition For the purposes of this Act, police misconduct means misconduct (by way of action or inaction or alleged action or inaction) of a police officer: (a) whether or not it also involves non-police participants, and (b) whether or not it occurs while the police 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. (2) Examples Police misconduct can involve (but is not limited to) any of the following: (a) police corruption, (b) the commission of a criminal offence by a police officer, (b1) misconduct in respect of which the Commissioner of Police may take action under Part 9 of the Police Act 1990 , (c) corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988 involving a police officer, (d) any other matters about which a complaint can be made under the Police Act 1990 . 71 A "police complaint" is broadly defined as a complaint to which Part 8A of the Police Act 1990 (NSW) applies. That includes any complaint about the conduct of a police officer made by any person to an investigating authority, which includes the Police Commissioner, the Police Integrity Commission and the Ombudsman: Police Act, ss 126, 127(1) and 121 (definitions). 72 Although Part 3 is headed "Functions of Commission" it is clear that it extends to powers and functions generally. Thus, s 22, headed "Incidental powers" cannot strictly be described as conferring a "function" on the Commission (nor is it limited to "incidental powers"). The power to conduct an investigation is contained in s 23, also in Part 3, which provides as follows: 23 Investigations generally (1) The Commission may conduct an investigation on its own initiative, on a police complaint made or referred to it, on a police complaint of which it has become aware, or on a report made to it. (2) The Commission may conduct an investigation even though no particular police officer or other person has been implicated and even though no police misconduct 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 - the complaint was frivolous, vexatious or not in good faith. 73 Section 24 provides that an investigation "may be in the nature of a preliminary investigation": s 24(1). It identifies one purpose of such a "preliminary investigation" as being "to discover or identify conduct that might be made the subject of a more complete investigation under this Act": s 24(2)(a). 74 There are a number of provisions which the Appellants relied upon as demonstrating that the powers of the Commission could not be limited to forming views about the conduct of police officers. First, as reflected in the express terms of s 5(1)(a), police misconduct itself includes conduct which "also involves non-police participants". At one level that is a trite point: classic cases of corruption, such as bribery and blackmail will generally involve a police officer and another person. However, the definition does not suggest that the non-police participant is also guilty of police misconduct. Furthermore, there is a distinction to be drawn between a second person involved in police misconduct and a second person who is the sole person guilty of particular misconduct. The present case was proffered as an illustration of that distinction: assuming that there was no misconduct on the part of the police in relation to the relevant security arrangements, if the Respondent took both samples, that demonstrated particular conduct on his part which had nothing to do with any form of police misconduct. 75 Secondly, attention was drawn to s 16, and in particular the reference to the Commission forming opinions as to whether "police misconduct or other misconduct" may have occurred. Relevantly for present purposes, that section provides: 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: · 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 (b) make recommendations as to whether consideration should or should not be given to the prosecution of or the taking of action under Part 9 of the Police Act 1990 or other disciplinary action against particular persons, 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. (2) However, the Commission may not: (a) make a finding or form an opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (wether or not a specified criminal offence or disciplinary offence), or (b) make a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence). (3) An opinion that a person has engaged, is engaging or is about the engage: (a) in police misconduct (whether or not specified conduct), or (b) in specified conduct (being conduct that constitutes or involves or could constitute or involve police misconduct), is not a finding or opinion that the person is guilty of or has committed, or is committing or is about to commit a criminal offence or disciplinary offence. 76 There was debate as to the scope of the phrase "or other misconduct" in s 16(1)(a). It is clearly intended to cover misconduct of a kind which is not police misconduct and hence is not misconduct of a police officer. There is a separate but related question as to the meaning of "misconduct". On one view, that term could extend to any form of conduct which, in accordance with the ordinary meaning of the word, would include misbehaviour or improper or unprofessional behaviour. In accordance with the Australian Concise Oxford Dictionary, it might extend to "bad management". However, read as a whole, s 16 suggests that misconduct is confined to conduct which could constitute a criminal offence or a disciplinary offence. The latter phrase, "disciplinary offence", is expressly defined in s 4 of the PIC Act to include "any misconduct, irregularity, neglect of duty, breach of discipline or other matter that constitutes or may constitute grounds for disciplinary action under any law". Given the breadth of that definition, there is no reason to think that misconduct extends beyond conduct which is rendered subject to criminal or disciplinary sanctions under a law and is in that sense 'unlawful'. Police and public servants may be subject to disciplinary action; the public at large is not. Thus, if the powers conferred on the Commission by s 16 extend to the public at large, they must be limited to assessments and opinions involving criminal offences, whereas, if they extend to public servants (not being police) the Commission may have a broader mandate to deal with conduct subject to disciplinary action. 77 It may seem surprising that the Commission would have differential powers depending upon whether the other person is a public official, subject to disciplinary action or not, but the result would be consistent with the jurisdiction conferred under the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act") on the ICAC established under that Act: see ICAC Act, s 9(1) and (3). However, a marked difference between the ICAC Act and the PIC Act lies in the express provision in the ICAC Act that "corrupt conduct" which can be investigated under that Act, is not limited to the conduct of a public official but extends, in particular respects to the conduct of any person, whether a public official or not: ICAC Act, s 8. There is no equivalent provision in the PIC Act. 78 Thirdly, both parties sought to obtain support for their construction arguments by reference to s 130 of the PIC Act which provides as follows: 130 Functions of PIC where other public officials involved (1) The PIC cannot investigate or otherwise deal with a matter involving the conduct of public officials if the matter does not also involve the conduct of police officers. (2) The PIC may investigate and otherwise deal with a matter involving the conduct of public officials, provided this is done in the context of matters that also involve police officers.

[55]

Provision is then made for the section to have effect subject to arrangements between the PIC and ICAC: ss 130(3) and s 131. 79 Because s 130 falls within Part 12 of the PIC Act, which is headed "Relationship of Commission with Other Agencies", it should properly be read as a provision allowing for the demarcation of boundaries, in cases of overlapping jurisdiction. The effect of the provision is to prohibit the PIC from investigating the conduct of public officials if the "matter" which involves that conduct does not also involve the conduct of police officers and, further, where the PIC does so investigate, the investigation of public officials must be done "in the context of" matters that also involve police officers. 80 Section 130 should not be understood as the conferral of some broader function than those conferred by Part 3: further, it should be understood, according to its express language, as contemplating a connection by way of "involvement" of both a police officer and a public official in a particular matter. However, neither the existence of the section, nor its language, helps with the critical issue raised by this case. Assuming that involvement connotes participation of some kind, it must permit investigation where involvement of either a public official or a police officer is suspected, even if both cannot be involved. Nor does it assist in answering the question whether the Commission can continue to exercise its functions in relation to a public official, once satisfied that no police officer is involved. 81 Fourthly, reliance was placed on the terms of ss 96 and 97 of the PIC Act, which provide for reports to Parliament by the Commission in relation to matters which have been the subject of an investigation. Section 96(2) requires the Commission to prepare a report in relation to "matters" as to which it has conducted a public hearing; sub-s (3) requires such a report to be furnished to the Parliament. 82 Section 97 makes provision for the contents of such reports and, so far as relevant, provides: 97 Content of reports to Parliament (1) The Commission is authorised to include in a report under section 96: (a) statements as to any of its assessments, opinions and recommendations, and (b) statements as to the Commission's reasons for any of its assessments, opinions and recommendations. (2) The report must include, in respect of each "affected" person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following: (a) the prosecution of a person for a specified criminal offence, (b) the taking of action against the person for a specified disciplinary offence, (c) the taking of action … against the person as a police officer on specified grounds …, (d) the taking of reviewable action … against the person as a police officer. (3) An "affected" person is a person against whom, in the Commission's opinion, substantial allegations have been made in the course of or in connection with the investigations concerned. (4) Subsection (2) does not limit the kind of statement that a report can contain concerning any such "affected" person and does not prevent a report from containing a statement described in that section in respect of any other person. 83 Two points may be made in respect of the language of s 97. First, the possible subjects of the "opinion that consideration should given" to disciplinary or prosecutorial action are not limited to police officers. Nor is it limited in its terms to circumstances where police misconduct has been identified. Secondly, the scope of the mandatory obligation in sub-s 97(2) is identified by reference to affected persons, being persons against whom substantial allegations have been made "in the course or in connection with" the investigation of the matter or matters. This last point has two consequences of potential significance in the present case. First, it provides support for the argument that an allegation of giving false or misleading evidence, which would not presumably be the matter being investigated at the commencement of an investigation, but might become the subject of a substantial allegation "in the course of" the investigation and is therefore within the scope of the opinions required to be included in the report under sub-s (2). Further, there is some awkwardness in thinking that a substantial allegation will necessarily fall away at some point in the inquiry, especially if the reason is not that the person is "exonerated" by the evidence, but rather that he is inculpated, but the police are exonerated. 84 In this context, it may be noted that counsel assisting questioned the police officers called before the Commission with some care. In each case he obtained a denial of any involvement in the removal of the police sample by the Respondent, but in seeking the denial on oath, formulated his question so as to state that no allegation in those terms was being made. 85 Fifthly, there was some discussion of a number of provisions which appeared to be neutral in their terms, including s 15 of the PIC Act, which confers on the Commission a function of assembling evidence that may be admissible in the prosecution of "a person" for a criminal offence. It is clear that s 15 extends to a person other than a police officer because paragraphs (b) and (c) of sub-s 15(1) make that distinction explicit. Again, such provisions go nowhere in identifying the extent of the Commission's powers in relation to persons other than police. All that can be said is that they contain no express limits, but that some limit must be implied.

[56]

Submissions in relation to powers of Commission 86 Neither party suggested that the powers of the Commission were entirely at large: the dispute focused on the kind of connection that must exist with police misconduct, as defined in the PIC Act, in order for the powers of the Commission to be engaged and to continue to operate. 87 Thus, the Appellants accepted, at a level of abstraction, that it "may be that there must be some bona fide connection to possible police misconduct" in order for the powers of the Commission to be engaged. Nevertheless, they noted the terms of s 23(2), permitting the Commission to conduct an investigation even though no police misconduct is suspected. In the present case, the possibility of police misconduct appears to have been conceded, because there was no challenge to the commencement of the investigation. 88 As to the next stage in the argument, the Appellants placed weight upon the proposition that, as a matter of fact, the Commission has stated that it has formed no final opinion as to whether there is any police involvement of a kind which could constitute misconduct and that to act on a different basis would involve error. 89 That contention may be accepted, but is not determinative. For reasons noted above, prohibition is not precluded because the Tribunal has not formed a final opinion of a kind which would be in excess of its jurisdiction or power. As suggested above, in an appropriate case a restraining order could be formulated in terms which limited, but did not prevent all future action. It is appropriate to assume for present purposes that the Commission may form a view that no police officer is involved in any form of misconduct and inquire whether, in those circumstances, the Respondent was entitled to the relief he obtained below, or any other form of relief. 90 The Respondent's argument that the powers of the Commission were exhausted once it accepted that there was no police misconduct, depended to a significant extent upon the general principle of statutory construction which requires that a conferral of compulsive powers which may, if exercised, diminish common law rights, privileges or freedoms, should be given no more expansive an operation than the express terms of their conferral require. 91 The primary judge invoking a similar principle noted that the PIC Act (and the ICAC Act) "establish rather extraordinary bodies with extraordinary powers for particular public purposes": at [24]. 92 In Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [27] McHugh J stated the principle in the following terms: "Courts have long held that a statute should not be construed as amending fundamental principles, infringing common law rights or departing from the general system of law unless it does so with 'irresistible clearness'. The legislative intention to do so, it is often said, must be 'unambiguously clear'."

[58]

At [30] his Honour suggested: "Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context - which will include other provisions of the enactment, its history and the state of the law - as well as the purpose which the enactment seeks to achieve." 94 In the present case, any adverse finding made by the Commission could have serious consequences for the Respondent's reputation and might lead indirectly to further steps being taken by other bodies. These are interests which, consistently with Ainsworth, the law will protect by way of prohibition, if an excess of jurisdiction is threatened. Nevertheless, the statute reveals a clear intention that, where substantial allegations have been made, they should generally be dealt with promptly by the Commission in a report which must be furnished to the Parliament. That course is conducive to values of transparency, which are absent from police or prosecutorial decision-making. 95 The PIC Act does in fact contain provisions which conflict more directly with fundamental common law rights. For example, s 40(2) prevents a witness before the Commission relying on the privilege against self-incrimination. Subject to an appropriate objection being taken and a declaration obtained under s 41, the Act provides a form of what is commonly called "use immunity" in relation to the evidence taken under objection. However, no complaint is made in these proceedings that evidence was taken from the Respondent unlawfully or otherwise inappropriately, nor that the proceedings were in any sense invalid at the time his evidence was taken. 96 It is, of course, true that there may be a direct connection between the exercise of compulsive powers and matters reported to the Parliament. For example, the Commission claims the entitlement in the present case to express an opinion that consideration be given to prosecution for an offence against the PIC Act, in relation to answers given to questions which might, but for the statutory removal of the privilege, have been questions which the Respondent could have refused to answer under the general law. In this respect it should be accepted that clear language is required before a citizen will be required to answer questions on oath which pose the dilemma that a truthful answer may lead to prosecution for a substantive offence and that an untruthful answer may lead to prosecution because the answer was false or misleading in a material particular. However, the intrusion on the common law privilege in this respect is unequivocal. Unless the investigation was being invalidly conducted at the time the question was asked, which is not suggested in the present case, a witness who gave an untruthful answer would be in danger of prosecution under the Act. It is difficult to see why one should presume a legislative intention that a person in jeopardy of prosecution, should not be at risk of a published opinion that prosecution be considered, contained in a s 96 report. 97 The same conclusion follows in relation to liability for prosecution for a substantive offence. If the substantial allegation was made in connection with or in the course of a valid investigation, it is difficult to impute an intention to Parliament to limit the reporting powers so as to exclude the obligation to deal with such an affected person, merely because the Commission ultimately concludes there has been no police misconduct. Indeed, the substantial allegation may have been raised without any relevant exercise of an extraordinary compulsory power. 98 Thus the Respondent's case may be tested in two ways. The first is to inquire what might have happened if, after hearing evidence from the police officers, the Commission had accepted the argument that it should take no further evidence and should cease its investigation. It may also be hypothesized that the Commission had formed an opinion by that stage that consideration should be given to prosecuting the Respondent for his part in the removal of the blood sample from the hospital. 99 Because a hearing had been held, as a result of a decision which was not challenged, the Commission was required to prepare a report in relation to the matters as to which it had conducted the hearing, and furnish the report to Parliament: s 96(2) and (3). The contents of its report would depend upon, relevantly for present purposes, whether or not the Commission had then formed an opinion as to whether the Respondent was an affected person. If it had formed such an opinion (and a challenge to its ability to form such an opinion in relation to the Respondent was dismissed by the primary judge and not reagitated separately on appeal) then it would have been required to include in its report a statement that consideration should be given to his prosecution for a specified criminal offence, if it were of that opinion. 100 This conclusion could only be avoided if, on forming the view that no police misconduct was involved, the Commission was required to terminate its investigation forthwith and not "otherwise deal with" the matter. Such a prohibition is contained in s 130, in the circumstances noted above at [78]-[80]. Leaving that provision aside, there is no other provision which would require the Commission to terminate its activities in this circumstance. The power to discontinue an investigation is contained in s 23(3) (in the terms set out at [72] above); it is clearly not in mandatory terms, but rather requires the Commission to act "as it thinks fit" in considering whether to discontinue an investigation. 101 The second way of testing the Respondent's contention concerns the proposed limitation that the powers of the Commission with respect to members of the public cease in circumstances where all police officers have been exonerated or perhaps more broadly, no suspicion of police misconduct remains. However, it is difficult to see why the legislature would have intended the Commission to have power to express an opinion adverse to an ordinary member of the public in the circumstance that it expressed similar opinions in relation to police officers, but not in circumstances where police misconduct was not established. For example, if it appeared in the course of an investigation that a citizen may have been involved in negligent driving, or driving an unlicensed motor vehicle, being conduct in which the police were not involved, why should the power of the Commission to express an adverse opinion in relation to that person depend upon whether there was unrelated police misconduct? 102 Ultimately, the logic of the Respondent's case would appear to depend not on the existence or otherwise of police misconduct, but on his involvement in it. Thus, the Commission must be found not to have the power to express opinions about any conduct other than that which constituted a form of police misconduct. According to the dichotomy referred to above, an opinion could be expressed that a person involved in police bribery should be considered for prosecution for such an offence, but in a case involving a suspected unlawful death, once it was established that no police officer had been involved in the death, the Commission would not be able to express an adverse opinion in relation to the individual believed to be responsible. That implication is not readily derived from the statutory language. 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.

[59]

Limitation with respect to public official 105 It may be recalled that s 130 was treated by the Respondent in the Court below as an expansion of the Commission's powers to deal with the conduct of public officials in the context of an investigation of police conduct. The Respondent said it did not apply to him because he was acting in a private capacity. Once the premise to the argument, namely that the Commission had no other source of power with respect to the Respondent is rejected, the potential role of s 130 changes. The question is then whether s 130 operates, despite the generality of the functions otherwise conferred on the Commission, so as to prevent the Commission investigating or otherwise dealing with the matter because it involves a public official. 106 The term "public official" is defined in s 4(1) of the PIC Act as having the same meaning as in the ICAC Act and is expressly extended to include a former public official. Under s 3(1) of the ICAC Act, a public official includes a judge, which the Respondent was at the time of the matters which gave rise to the investigation. It follows that the Commission could not have investigated his conduct, or dealt with a matter involving his conduct, if the matter did not also involve the conduct of police officers. In the case of an investigation, involvement must include possible or suspected involvement. Even if the matter did involve the conduct of police officers, as well as that of a public official, the power of the Commission to investigate and otherwise deal with the matter was also limited by the requirement that its investigation of the conduct of a public official must be done "in the context of" matters that also involve police officers. 107 The operation of this prohibition and conditional power will depend upon a number of considerations, including the scope of the "matter" or "matters" in question and the nature of the involvement of public officials and police officers respectively. An assessment of these matters will involve factors and circumstances which may vary over time, and will be largely within the control of the Commission. In its Opinion of 11 February 2005, it is clear that the Commission accepted that the Respondent was a "public official" (par 26) and that the conditional power conferred by s 130(2) was satisfied in the present case. The submissions put to the Commission on behalf of the Respondent, which appear also to have been put to the primary judge, were that s 130(2) did not empower the Commission to carry out its functions in relation to the Respondent because the conduct in question fell within the category of private conduct and not conduct in the exercise of an official function as a public official. The distinction was rejected by the Commission. The primary judge was inclined to uphold the submission, although his Honour expressed no final opinion on it because it did not affect the outcome of the matter before him: [2005] NSWSC 782 at [164]-[166]. 108 It is possible, although the point was not expressly raised, that at the relevant time the Respondent was no longer a judge and was therefore a 'former public official'. It is conceivable that the ICAC would have no interest in his conduct as such (although that may be doubtful on the present facts). Despite that, it can be assumed in the Respondent's favour that the Commission's power to deal with his conduct remains limited by the terms of s 130. Under that section the status of the person may be an objective fact, but it should be inferred that the identification of the relevant 'matter' and the involvement of police and the Respondent in it, depended on opinions formed by the Commission. 109 The answer to the Respondent's contention is that the definition of "public official" in the ICAC Act refers to the individual by his or her status and not by reference to the nature of conduct under investigation. (The limitation with respect to conduct is found in s 8 of the ICAC Act, which deals with the concept of "corrupt conduct".) The Commission was correct to treat him as a "public official". Further, it is clear that the Commission was of the view that the matter before it involved the conduct of both the Respondent and police officers and that it was investigating his conduct in the context of matters that also involved police officers. Unless that opinion could be attacked on the basis that it failed to comply with the legal limits on the existence of a valid opinion (as discussed at [60] above) the Commission was not threatening to exceed the limits of its power under s 130. The Respondent did not in terms mount an attack on the opinion of the Commission in this manner. Accordingly, the constraints imposed by s 130 provide no basis for identifying a potential excess of jurisdiction in the present case.

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Cases Cited (15)