MATTER : Application for a writ of prohibition against MALCOLM JAMES McCUSKER AO QC, THE PARLIAMENTARY INSPECTOR OF THE CORRUPTION AND CRIME COMMISSION

BETWEEN : EX PARTE CORRUPTION AND CRIME COMMISSION

Administrative law - Judicial power - Application for writ of prohibition against Parliamentary Inspector of the Corruption and Crime Commission - Applicant seeks to prevent tabling of report in Parliament - Whether justiciable question exists - Contempt of Parliament

Practice and procedure - Application for interlocutory injunction - Intervention in Parliamentary affairs as a factor relevant to weighing of the balance of convenience - Nature of ex parte applications - Nature of urgent applications

Parliamentary Inspector of the Corruption and Crime Commission - Extent of powers

Corruption and Crime Commission Act 2003 (WA), s 188, s 195, s 196, s 199, s 200, s 205, s 206

1 MARTIN CJ: The Corruption and Crime Commission (the Commission) moves the court on an urgent basis for the grant of interlocutory relief which would have the effect of restraining the Parliamentary Inspector of the Corruption and Crime Commission (the Inspector) from presenting to or tabling before Parliament a report which he proposes to table on matters raised by Mr Stephen Lee concerning a report previously published by the Commission entitled 'Report on the Investigation of Alleged Misconduct Concerning Mr Stephen Lee, Mayor of the City of Cockburn'.

2 The circumstances in which the application is brought are revealed by the affidavits which have been tendered in support of the application. The Commission published its report following an investigation of alleged misconduct concerning Mr Lee on 26 September 2008.

3 It seems that following publication of that report, Mr Lee or solicitors acting on his behalf drew certain matters to the attention of the Inspector, after which he conducted an investigation into those matters.

4 At about 4 pm on 15 December 2008, the Commission was advised that there was a document ready for collection from the offices of the Inspector. That document was collected and delivered to the Commission. The document enclosed within it a draft executive summary of a report that the Inspector indicated was his intention to publish by tabling before Parliament on Friday, 19 December 2008.

5 At about 12.45 pm on 17 December 2008, the Commission received another telephone call from the Inspector's office to advise that a document was ready for collection. It was collected shortly thereafter and that document enclosed a copy of the draft report prepared by the Inspector and which was entitled 'Report on the Corruption and Crime Commission's Report dated 26 September 2008 Concerning Mr Stephen Lee.'

6 Later that afternoon, the Commission wrote to the Inspector requiring further time within which to respond to the Inspector's report. The Inspector responded to that letter by a letter which was received at 12.42 pm on 18 December 2008; that is to say, earlier today.

7 In that letter the Inspector expressed the view that adequate time had been provided to the Commission to respond to the matters raised in the draft report. The letter concluded by observing that the Inspector was not prepared to delay the tabling of his report any later than 4 pm on Tuesday, 23 December 2008.

8 The interim injunction is sought in aid of an application for a writ of prohibition. The terms of the writ sought in the notice of originating motion would prohibit the Inspector 'from further progressing, dealing with, or providing to any person or authority, his proposed report, any part of his proposed report or any information regarding the content of his proposed report, on matters raised by Mr Stephen Lee concerning the Commission's Report on the Investigation of Alleged Misconduct Concerning Mr Stephen Lee, Mayor of the City of Cockburn'.

9 The notice of originating motion also seeks declaratory relief. It asks that the court declare that it would be unlawful and outside the powers of the Inspector to table a report in Parliament in terms of the proposed draft report forwarded to the Commission under cover of the Inspector's letter dated 17 December 2008. Another declaration is sought as to the terms in which the Inspector could report to Parliament in relation to the Commission's report in respect of Mr Lee.

10 The grounds upon which relief by way of prohibition or declaration is sought include jurisdictional error and error of law. The Commission alleges that the proposed report contains errors of law and fact and also contains conclusions that are manifestly unreasonable.

11 There is another ground which alleges that the Inspector has taken irrelevant considerations into account. There is a further ground which alleges that the Inspector, in preparing his draft report, has gone beyond his powers and in particular the functions imposed upon the Inspector by s 196 of the Corruption and Crime Commission Act 2003 (WA) (the Act) and the authority to report upon the exercise of those powers conferred by s 199 of the Act when read with s 205 of the Act. The latter section expressly excludes certain matters from a report prepared by the Inspector.

12 It is further asserted that the Inspector has denied the Commission procedural fairness because of failure to provide the Commission with a reasonable opportunity to make representations concerning matters within the report that are said to be adverse to it. This is said to contravene s 200 of the Act.

13 I will deal first with a number of procedural issues in relation to these proceedings. These proceedings have been brought without notice to the Inspector. I have said on previous occasions, and repeat, that the jurisdiction of the court to proceed without notice is an exceptional and extraordinary jurisdiction. It is exceptional and extraordinary because it is a fundamental requirement of procedural fairness, and therefore of the processes of the court, that a person who is to be affected by an order of the court is given a reasonable opportunity to place submissions and evidence before the court in order to meet the case which is put against that person before any order is made.

14 There are occasions in which the interests of justice necessitate a departure from that fundamental principle of procedural fairness, but they are very rare and very exceptional. They will only occur where it is essential, in the interests of justice, to depart from those fundamental principles of procedural fairness, and then only to the extent that it is impossible to reconcile the requirements of procedural fairness with the interests of justice in the particular circumstances of the case.

15 There is an important distinction between urgency and lack of notice. On the evidence that I have seen, there is every reason for the Commission to have taken the view that it needed to invoke the jurisdiction of the court on an urgent basis. That is fundamentally different to asking the court to act without notice to a person whose rights and interests would be affected by the remedy sought. There is nothing in the materials that I have seen that would provide any basis for any apprehension that if the Inspector had been given notice of these proceedings he would have done anything other than act responsibly in accordance with his duties as an officer of the court, to assist the court in resolving the issues presented to it.

16 There is therefore no basis for any apprehension that the Inspector, for example, would have defeated the Commission's attempt to obtain interlocutory relief by publishing his report before the court could make a determination in respect of that application for relief. I can therefore see no justification whatever for having proceeded without notice to the Inspector in this case. I accept that any notice he would have been given would necessarily have been brief in duration. That arises from the urgency to which I have already referred, but that is a very different thing to asking the court to make orders that would affect the rights and responsibilities of the Inspector without hearing from him. That would be an extraordinary step for the court to take and it is certainly not a step which is justified in these proceedings.

17 There is another matter that I should mention, and that concerns the interests of others who are affected by these proceedings. As I have mentioned, the matters in respect of which relief is sought go to a report which has been published by the Commission into the conduct of Mr Stephen Lee, the Mayor of Cockburn. The basis upon which the relief is sought is because the draft report of the Inspector would cast doubt upon the validity of the adverse opinions expressed by the Commission in its report relating to Mr Lee.

18 The relief sought by the Commission would therefore prevent publication of the Inspector's report - that report would go some way towards addressing and perhaps restoring to some extent the reputation of Mr Lee in the light of the previously published report of the Commission. The relief that is sought by the Commission would have an adverse impact upon Mr Lee. Mr Lee has not been served with notice of these proceedings, nor has he been given any opportunity to be heard in relation to them, nor is any undertaking as to damages proffered in order to protect Mr Lee from the adverse consequences of any order that the court might make. That seems to me to be another significant factor for me to take into account, and I will come back to that when I come to address the balance of convenience.

19 The basis upon which the quia timet jurisdiction of the court is sought to be invoked is prospective damage to the reputation of the Commission.

20 It is said that the basis upon which the court should intervene, as a matter or urgency, and without notice to the Inspector, is that if the report is published, damage will be caused to the reputation of the Commission which can never be restored. In that context it is, I think, significant to note that irrespective of whether the report is published, if the Commission has a good and justiciable claim to the effect that the Inspector is exceeding his jurisdiction by publishing his report, that claim will in due course be heard. If the Commission is correct in its contentions, the Commission will be vindicated by the decision of the court.

21 I accept that vindication in that means would not necessarily fully restore and recover the damage to the reputation of the Commission. But it is of some significance to note that the damage to the Commission may be partially redressed at some point in the future if the Commission is able to make good its claims for relief.

22 I will now address the first aspect of the issues that have to be addressed by the court when an application is made for relief of this kind. I take the principles that are to be applied by the court in cases of this kind to be those enunciated by the High Court in the decision of the Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.

23 The first question which the Court needs to address in accordance with those principles is whether the applicant for interlocutory relief has established an arguable case. There are, I think, fundamental questions raised by proceedings of this kind as to the jurisdiction of the court and the justiciability of the claim advanced. I will expand upon the reasons I have come to that view by referring to the role and function of the Inspector under the Act.

24 The office of Inspector is established by s 188 of the Act. By subsection (4) of that section, the Inspector is made an officer of the Parliament. He is said to be responsible 'for assisting the Standing Committee in the performance of its functions'. The Standing Committee is a particular standing committee also referred to elsewhere in the Act. Section 195 of the Act sets out the functions of the Inspector. They include the function of auditing the operation of the Act, auditing the operations of the Commission, dealing with the matters of misconduct on the part of the Commission, and so on.

25 The powers of the Inspector are set out in s 196 of the Act. They include the power to investigate any aspect of the Commission's operations or any conduct of its officers. By s 198 of the Act, it is expressly provided that the Inspector is not to interfere with the Commission's operations. Section 199 provides that the Inspector may at any time prepare a report as to any of the following matters, that is:

(a) any matters affecting the Commission, including the operational effectiveness and requirements of the Commission; and

(b) any administrative or general policy matter relating to the functions of the [Inspector].

26 Subsection (2) of s 199 of the Act provides that the Inspector may cause a report prepared under the section to be laid before each House of Parliament or dealt with under s 206. It is the exercise of that power which effectively the Commission seeks to restrain by this application.

27 Section 205 of the Act provides that reports by the Inspector must not include certain matters including information that may reveal the identity of a person who has been or is reasonably likely to be investigated by the Commission or information that may indicate that a particular investigation has been or is likely to be undertaken by the Commission. Of course, the operation of that section in these circumstances is to be assessed in the light of the fact that the Commission has itself published a report in relation to Mr Lee.

28 Section 206 of the Act provides that a copy of the report provided to Parliament under s 199 may be laid before each House of Parliament and if that House is not sitting, the Inspector may transmit a copy of the report to the Clerk of each House of Parliament.

29 In summary, the Inspector is an officer of Parliament. The power which he purports to exercise and which the Commission would seek to restrain him from exercising is a power to report to Parliament. That raises serious questions as to the justiciability of these proceedings and a serious question as to whether these proceedings are within the jurisdiction of the court, and, indeed, as to whether the commencement of these proceedings is, of itself, a contempt of Parliament.

30 The boundaries of the respective jurisdictions of the courts and the Parliaments have been in issue in this country and in England for centuries. This is not the occasion, on an urgent injunction application of this kind, to embark upon an assessment of those boundaries other than to observe that where relief is sought restraining an officer of Parliament from reporting to Parliament, it seems to me that a very serious question arises, firstly as to whether such a claim is within the jurisdiction of this court and secondly, whether the making of the application, and in particular the making of any order pursuant to the application, could itself constitute a contempt of Parliament. So when I come to consider the substantive grounds upon which relief is sought, I do so in the context in which it seems to me that there is a very serious question as to whether any relief of the kind sought could ever be granted by this Court.

31 Having made that observation, I turn to the grounds upon which relief is sought. But for the observations which I have made about justiciability, jurisdiction and the allied possibility of contempt of Parliament, I would conclude that the applicant for prerogative relief, the Commission, has made out an arguable case. For the reasons I have already given, however, I would not act upon that conclusion without first giving the Inspector the opportunity to be heard, but it does seem to me at least on the face of the papers I have seen, and subject to the important qualification that I have not heard from the Inspector, that there are arguable issues with respect to excess of jurisdiction, in terms of the functions of the Inspector, the nature of the report which he proposes to table, and possible contravention of s 205 of the Act.

32 Of course, in proceedings of this kind, it is inappropriate for the court to purport to determine anything other than the question of whether those issues are arguable, and accordingly I should not be taken to be expressing any view as to the strength or otherwise of those issues other than to say that but for the doubts that I have formed as to the jurisdiction of the court they would seem to be seriously arguable issues.

33 I turn then to the question of balance of convenience. I do not address these issues separately and apart from my assessment of the arguable issues because there is, of course, a relationship between the assessment of the strength of the arguable case and the nature of the relief sought. Put in rather more general terms and less eloquently than expressed by the High Court in ABC v O'Neill, where the interlocutory relief sought is of a kind which interferes very significantly with existing rights and interests, the court may require greater confidence in the strength of the arguable case than if the intervention sought is of a less significant nature.

34 Turning then to evaluate the balance of convenience, the Commission argues that its reputation justifies the restraint sought. I accept for the purposes of that argument that the functions of the Commission and the efficacy with which it performs those functions is affected by its reputation, and that its capacity to adequately perform its functions might be diminished if its reputation is diminished. However, I must also take into account that the Commission is a statutory body, not a natural person, and it is to be expected that its reputation will wax and wane in the public mind from time to time by reason of a variety of factors that are outside its control.

35 I also take into account that if the Commission is right in its contention that it has a good cause of action and will in due course be entitled to relief, perhaps by way of declaration after the publication of the report, that at least some measure of redress and vindication of its reputation will be available to the Commission. There are, as I have mentioned though, other reputations at stake, including in particular the reputation of Mr Lee. It seems to me significant that I should take into account his interests even though he has not been served or given the opportunity to be heard, nor is any undertaking proffered to compensate him for any damage he might suffer as a result of deferral of publication of the Inspector's report.

36 Another significant factor is that the appointment of Mr McCusker, the Inspector, expires on 31 December 2008. There is, of course, an Acting Inspector and it is to be expected that another permanent inspector will be appointed in due course following the expiry of Mr McCusker's term. However, the draft report has been prepared by Mr McCusker and it is reasonable to infer that either the Acting Inspector or any replacement for Mr McCusker would require some considerable time to get to the point where they could have the same degree of confidence in the draft report as Mr McCusker presently enjoys. So another factor that is relevant to the balance of convenience is that if the interlocutory relief were to proceed beyond 31 December 2008 - and it would have to if it were to be effective because there is no prospect of substantive resolution of these issues within that time - then there will inevitably be some period of delay while the Acting Inspector or replacement Inspector, becomes sufficiently familiar with the issues that are covered in the draft report to authorise its publication.

37 The other factors relating to balance of convenience that are significant and which seem to be of dominant and, indeed, overwhelming significance in this case are the nature of the restraints and the consequences of the restraints that are sought by the Commission. The Commission moves the court to restrain an officer of Parliament from reporting to Parliament. I have already observed that that raises serious questions about jurisdiction, but it is also a factor that is very relevant to the weighing of the balance of convenience because an intervention by the court in the relationship between an officer of Parliament and Parliament itself would be a very serious and significant intervention into existing rights and responsibilities.

38 If it can be done at all, as to which I say there is, I think, a significant question, it would only be done in an exceptional and extraordinary case. So the nature of the intervention that is sought is a very significant factor weighing against the grant of relief. Another significant factor is that the relief sought would restrain freedom of speech. The consequence of the tabling of the report in Parliament can be expected to be publication to the public and consequent debate by the public about the agencies that exist to protect the public, including the Commission itself and the Inspector.

39 The High Court has made clear in ABC v O'Neill that these are very important matters to be weighed in the balance when interlocutory relief is being considered. For those reasons, and although there are no predetermined fetters upon the power of the court to grant interlocutory relief, the weight of the importance of freedom of speech is such that it will be an exceptional case in which relief is granted having the effect of restraining freedom of speech. In this case, the publication which it is sought to restrain goes to issues concerning the efficacy of important public institutions, namely, the Commission and the Inspector, so the weight of this factor is unusually great.

40 So weighing all these considerations it seems to me that even if, and accepting as I do for the sake of argument, that there is an arguable case, the balance of convenience in this case is overwhelmingly against the grant of any interlocutory relief, whether on an ex parte basis or upon notice.

41 Because of the view that I take about proceeding in the absence of notice to the Inspector, I would not have made any orders at the behest of the Commission without giving the Inspector the opportunity to be heard. Because of the views to which I have come on the balance of convenience, it seems to me that there is no need for him to be heard because I would in any event dismiss this application for relief. For those reasons the application will be dismissed.