Sherrington v Independent Commissioner Against Corruption

Independent Commissioner Against Corruption Act 2017 (NT) s 50, s 55, s 155

Abdel-Hady v Freund [2007] NSWSC 1247; (2007) 177 A Crim R 517, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 75 NSWLR 503, Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089, Cannane v J Cannane Pty Ltd (1998) 192 CLR 557, Director of Public Prosecutions v Losurdo [1998] NSWSC 16; (1998) 44 NSWLR 618, George v Rockett [1990] HCA 26; (1990) 170 CLR 104, Glynn v Independent Commission Against Corruption (1990) 20 ALD 214, Mauro v Hooper [2008] SASC 159, Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290, Northern Territory of Australia v Mengel (1995) 185 CLR 307, Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234, Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258, Pharm-A-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361; 267 ALR 494, Plaintiff M83A v Morrison (No 2) [2020] FCA 1198, Prior v Mole [2017] HCA 10; (2017) 261 CLR 265, Public Service Board of New South Wales v Osmand (1986) 159 CLR 656, Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, Siano v Helvering (1936) 13 F Supp 776, Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, referred to.

Corruption (NT) & Ors [2022] NTSC 67

INDEPENDENT COMMISSIONER AGAINST CORRUPTION (NT)

• [1] On 9 December 2021, the applicant, Jennifer Sherrington, filed a Writ and Statement of Claim (SOC) in this Court seeking declaratory relief, damages, interest and costs against three named defendants. The applicant's claim is pleaded as misfeasance in public office. The first defendant is the Independent Commissioner Against Corruption (the ICAC), the second defendant is Kenneth Fleming QC (Mr Fleming), and the third defendant is the Northern Territory of Australia. In commencing these proceedings, the applicant failed to comply with the provisions of s 155(4) of the Independent Commissioner Against Corruption Act 2017 (NT) (ICAC Act). It is convenient at this point to set out s 155 in full:
  1. Protection from liability - acting in official capacity

(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith when acting, or purportedly acting, in an official capacity.

(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

(3) This section does not derogate from Part VIIA of the Police Administration Act 1978.

(4) If a person is alleged to have acted in bad faith when acting, or purportedly acting, in an official capacity, a civil or criminal proceeding for the act may only be brought by leave of the Supreme Court.

(5) The Supreme Court is not to grant leave unless satisfied there are substantial reasons for believing the person acted in bad faith.

• [2] The SOC pleads that the first defendant is the statutory office established under s 17 of the ICAC Act, and the second defendant is the person who held that office between approximately 1 July 2018 and 5 July 2021. There is some doubt as to whether the first defendant ("the ICAC") is a legal entity that may be sued separately from the natural person who, from time to time, is appointed to that office, but for the purposes of the present proceedings that issue may be passed by. The SOC pleads that the first and second defendants are jointly and severally liable to the extent of the second defendant's liability, and that the third defendant is vicariously liable for any liability found against the first or second defendants.
• [3] The present proceeding is an application by the applicant for leave pursuant to s 155(4) of the ICAC Act for the applicant to bring proceedings alleging that the second defendant acted in bad faith with regard to the preparation and publication of a Public Statement (PS) and Investigation Report (IR) concerning an investigation conducted by the ICAC into activities of the applicant whilst she was employed as a principal at a remote school. The respondents have not taken any issue with the fact that the Writ and SOC were filed prior to the present application being brought.

• [4] The following background information has been taken mainly from the written submissions filed by the parties.
• [5] Between October 2015 and January 2020 the applicant was the appointed principal of Milingimbi School (the School), which is a remote government-funded school on Milingimbi Island. The School caters to students from preschool to Year 12. Between 26 September 2019 and 13 December 2019 the ICAC received reports alleging improper conduct by the applicant. The reports generally alleged that, between 2015 and December 2019, the applicant had engaged in improper conduct and misapplied public resources through the inaccurate reporting of student data, nepotism and inappropriate (including personal) use of Department of Education (DOE) resources. As a consequence, the ICAC commenced an investigation into the allegations in January 2020. Pursuant to s 38 of the ICAC Act, that investigation was conducted jointly with the DOE.
• [6] On or about 17 January 2020, the Chief Executive of the DOE directed the applicant not to attend the School or to contact any staff member of the School and the applicant was involuntarily transferred to alternative duties in Darwin. On or about 22 January 2020, the ICAC gave the applicant notice of a joint investigation into the applicant's conduct. On 23 June 2020, Mr Fleming, as Independent Commissioner Against Corruption, issued a notice pursuant to s 34(1) of the ICAC Act requiring the applicant to appear before him for examination on 4 August 2020. The notice informed the applicant that she would be questioned in relation to her role in the financial management of the School during the period that she held the role of principal. On the same date, the ICAC, under the hand of Mr Fleming, issued a direction to the applicant pursuant to s 147 of the ICAC Act that she not disclose to any person the existence of the joint investigation, or any information given to her by the ICAC.
• [7] The examination did not proceed before Mr Fleming on 4 August 2020 as anticipated. On 3 August 2020, Mr Fleming delegated all of his investigative powers and functions under the ICAC Act to Mr Rex Wild QC (Mr Wild) as Deputy Commissioner. The same day, a revised notice was issued to the applicant requiring her to attend before Mr Wild for examination. The applicant was examined by Mr Wild on 4 August 2020 to 6 August 2020, and on 29 October 2020 to 30 October 2020 with the assistance of counsel assisting. As part of the investigation, Mr Wild received 73 exhibits and heard evidence from 12 witnesses.
• [8] On or about 31 October 2020, the applicant provided to the ICAC, through her lawyers, a number of documents addressing those areas of questioning that the applicant understood to be the key subjects of the investigation. These included a list of purchases made by the applicant using her personal credit card and the School debit card which she said were made for official School purposes, a document addressing allegations of nepotism in employment within the School and documents setting out the challenges which the applicant faced in her role as a principal of a remote school.
• [9] On 3 November 2020, the applicant's lawyers provided an interim response to the matters put to her during her examination. This interim response was addressed to Mr Wild as the Deputy Commissioner.
• [10] By letter dated 6 May 2021, the ICAC gave the applicant notice that he intended to prepare an investigation report (IR) pursuant to s 50 of the ICAC Act in which he was considering making adverse findings against her. The applicant was provided with a draft copy of the proposed IR and was invited to provide a response by 31 May 2021. That letter was signed by Mr Fleming.
• [11] On 12 May 2021, the applicant's lawyers wrote to the ICAC requesting the full transcript of the applicant's examination as well as copies of all exhibits. In response to that request, a list of 52 documents was provided to the applicant on 17 May 2021 and the applicant was invited to make arrangements to attend the office of the ICAC to inspect those documents. On 27 May 2021, the applicant's lawyers wrote to Mr Fleming requesting an extension of time of two weeks for the applicant to respond to the draft IR. By email dated 28 May 2021, Mr Fleming responded, refusing that application, but granting an extension of time for the applicant to respond to the draft IR by 9 June 2021.
• [12] On 4 June 2021, the applicant's lawyers sought access to certain exhibits that were tendered by the applicant during the examination. Those materials were provided the same day. On the same day, the Chief Executive of the DOE was provided with a copy of the draft IR.
• [13] On 9 June 2021, the applicant's lawyers provided a response to the draft IR consisting of a 5-page cover letter, a copy of the draft IR marked-up with the applicant's response to each allegation, and 13 appendices containing additional information. In total, the response comprised 241 pages.
• [14] On 2 July 2021, the ICAC provided the Chief Executive of the DOE with a copy of the final IR pursuant to s 50 of the ICAC Act. This section empowers the ICAC to provide an IR to a responsible authority for a public body or public officer whose conduct is the subject of the investigation. In summary, the IR concluded that the applicant had engaged in "corrupt conduct" within the meaning of s 10(2) of the ICAC Act through various aspects of her financial management of the School, manipulation of student attendance figures to inflate future funding, misuse of publicly funded travel, failure to comply with policies of the DOE about school governance, and failure to properly manage conflicts of interest when employing family members at the School.
• [15] On 5 July 2020, a PS about the investigation and its outcome was published on the ICAC's website. Section 55 of the ICAC Act permits the publication of a PS for one or more specified purposes, to which I will return later. The PS was not identical to the IR, but contained largely the same content.

• [16] The applicant claims that the publication and promotion of the PS to the general public caused her to suffer loss. The simple publication and promotion of the PS, without more, could not found a cause of action against any of the defendants and the SOC makes it clear that the applicant's cause of action against the second defendant, Mr Fleming, is in misfeasance in public office. The applicant's claim against Mr Fleming (which is the foundation stone for her claim against all of the defendants) may broadly be summarised as follows:

(a) The PS contains allegations against the applicant that are false or misleading, in particular:

1. The allegation that the applicant falsified student attendance records;
2. The allegation that the applicant diverted and misapplied school funds away from educational resources and towards personal use;
3. The allegation that the applicant undertook unjustified or improper travel at the School's expense;
4. The allegation that the applicant failed to provide leadership and exhibited controlling behaviour, in that the School Council failed to hold a number of required Council meetings in 2018 and 2019, and failed to maintain proper and accurate minutes; and
5. The allegation that the applicant employed four immediate family members under conditions or in circumstances that were unfavourable to the DOE or the School Council.

(b) Mr Fleming either knew these allegations were false or misleading, or was reckless as to that fact.

(c) The applicant was not provided with full and adequate particulars of the allegations sufficient for her to understand what was alleged against her and to provide a comprehensive response. The failure to provide these particulars "was made deliberately".

(d) The PS and the IR do not articulate any basis upon which it could be concluded that the applicant's denials of the allegations were unbelievable.

(e) Mr Fleming denied the applicant procedural fairness in:

1. Making a decision to publish the PS to the public at large without giving the applicant prior notice and an opportunity to be heard in relation to the publication of the PS;
2. Not giving the applicant a reasonable opportunity to respond to the draft IR; and
3. Not including a fair summary of the applicant's responses to the draft IR in either the final IR or the PS.

(f) By reason of the above matters the PS was unlawful.

(g) In addition, the PS was unlawful because:

1. It was not issued for a purpose authorised by s 55(2) of the ICAC Act;
2. It contained adverse findings against the applicant, which is not permitted by s 55(2) of the ICAC Act;
3. The making of the PS was an unreasonable exercise of power under s 55(2) of the ICAC Act; and
4. Mr Fleming failed to consider relevant material, namely the applicant's responses to the allegations made in the draft IR.

(h) The IR was unlawful because of the matters set out at (a), (b), (c) and (d) above, and because:

1. Mr Fleming failed to consider relevant material, namely the applicant's responses to the allegations made in the draft IR.

(i) By reason of the matters set out above, Mr Fleming engaged in the tort of misfeasance in public office in publishing and promoting the PS.

(j) Publication of the PS has caused the applicant harm.

(k) In publishing the PS, Mr Fleming intended to cause the applicant harm or was recklessly indifferent to causing her harm.

(l) In investigating the allegations made against the applicant, and in publishing and promoting the PS, Mr Fleming did not act in good faith as he made no real attempt to establish whether the allegations were true before publishing the PS, and he made no real attempt to comply with the applicable law, including the requirement for procedural fairness.

(m) The applicant also alleges that Mr Fleming had ulterior motives of "convenience and efficiency" in preparing the IR and PS, and in publishing the PS.

• [17] The applicant seeks to bring her claim against Mr Fleming, and not against Mr Wild. The respondents submitted that the evidence shows that most, if not all of the conduct about which the applicant complains was conduct of Mr Wild, to whom Mr Fleming delegated his powers on 3 August 2020. The respondents submitted that the case pleaded by the applicant is one in which it is alleged that Mr Fleming personally was responsible for the conduct of the investigation of the allegations made against the applicant, whereas the evidence demonstrates that the investigation was undertaken by Mr Wild. The respondents submitted that the evidence did not support the proposition that Mr Fleming was personally responsible for the conduct of the investigation and the making of findings against the applicant. Further, the applicant had not pleaded any case that Mr Fleming was somehow responsible for the investigation undertaken by Mr Wild. It follows, the respondents submitted, that Mr Fleming could not have predetermined the outcome of the investigation, because it was conducted by Mr Wild.
• [18] In response, the applicant pointed to evidence which suggested that the role of Mr Wild in the investigation was limited to taking evidence, and not making findings or conducting the investigation more generally. Indeed, the applicant went so far as to submit that the evidence permitted a finding that Mr Wild had done no more than take the evidence of the applicant.
• [19] In addition, the applicant submitted that there is considerable evidence of Mr Fleming's involvement and exercise of control throughout the investigation. There does not appear to be any dispute that Mr Fleming conducted the investigation from its commencement in January 2020 until 3 August 2020. In his letter dated 6 May 2021, Mr Fleming asserted, variously:

(a) "[I]t is my intention to prepare a Report pursuant to section 50 [of the ICAC Act] in respect of alleged corrupt conduct by you".

(b) "Before I finalise such a Report...I have an obligation to give you a reasonable opportunity to respond to any adverse material in such a Report."

(c) "I note that you attended an examination before Mr Rex Wild...over a number of days in 2020."

(d) "Please find attached the relevant parts of the draft report I have prepared in respect of the matter which I have been investigating involving corrupt conduct by you."

(e) "The statements in the draft report are tentative findings only on my part."

(f) "I will not make concluded findings in respect of your conduct until you have been given reasonable opportunity to respond..."

(g) "The adverse material consists of the matters I have recorded in the relevant part of the draft report."

(h) "In the event that I do not hear from you in that time, I will conclude my report."

• [20] Neither the IR nor the PS are signed by any person. Neither document makes reference to any delegation of power from Mr Fleming to Mr Wild, or the extent of any such delegation. The applicant submitted that, as her examination was recorded on video, any reference in the IR to the author of the report having observed the witnesses is not inconsistent with Mr Fleming having watched and listened to the recording of the applicant's examination, before making findings and publishing the IR and PS.
• [21] The evidence as to who was responsible for conducting the investigation, making the findings against the applicant, and publishing the IR and PS is unclear. There is, to my mind, sufficient evidence to justify a preliminary finding that the conduct complained of by the applicant is the conduct of Mr Fleming. I do not overlook the fact that applications for leave under s 155 of the ICAC Act will ordinarily be made before pleadings have been filed, such that any deficiency in the applicant's case against Mr Fleming as presently pleaded should not be considered fatal. Because of the uncertainty regarding the relative responsibilities of Mr Fleming and Mr Wild, I will, in the course of this judgment, refer to each such person by their own name where it is clear that they were the person responsible, but otherwise I will simply refer to "the ICAC".

• [22] My task in the present application is to determine whether there are "substantial reasons" for believing that Mr Fleming acted in bad faith in the manner alleged by the applicant.[1] It is useful, however, to initially consider a number of matters so as to put that enquiry into context.
• [23] The first of those matters are the requirements necessary to establish the tort of misfeasance in public office. It has been said that it is a tort whose precise limits have not been defined.[2] It is sufficient for present purposes to set out the description of the tort given by Mortimer J in the recent decision of Plaintiff M83A v Morrison (No 2)[3]:

The applicable principles concerning proof of the tort of misfeasance in public office were set out by Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; 267 ALR 494 at [57]- [70], and also by Kenny J in Polar Aviation (No 4) at [101]-[111]. Her Honour appeared to cite with approval Flick J's descriptions of the tort in Pharm-a-Care. Their Honours' careful and thorough exposition of the authorities relieves me of the need to do more than adopt, with respect, their Honours' respective articulation of the applicable principles. Both of their Honours' summaries return to the High Court's decision in Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 for first principles. I also accept the fundamental relevance to the issues on these applications of what was said by the House of Lords in Three Rivers. The following points are of significance in my reasoning on the present applications.

Misfeasance in public office is a "deliberate tort": Mengel at 345, 357, 370-371; Sanders v Snell [1998] HCA 64; 196 CLR 329 at [42]; Pharm-a-Care at [58]; Polar Aviation (No 4) at [102]; Obeid at [154], [171].

In Mengel, Brennan J explained what the state of mind required (at 357):

[T]he mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce.

In his reasons in Mengel, Deane J described three ways in which the mental state could be satisfied where the act was done (at 370-371):

(a) "with an actual intention to cause such injury": or

(b) "with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury"; or

(c) "with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury".

The connection between the unlawfulness relied upon and the state of mind of a respondent was explained by Brennan J in Mengel (at 357):

The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury.

In other words, it is the knowing abuse of public power which is the gravamen of the tort.

In Three Rivers at 191, Lord Steyn described the tort as involving "the unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith". Just prior to this, his Lordship had observed on the same page that there were two different forms of liability for misfeasance:

First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.

At 192, Lord Steyn explained why English law should adopt the same approach already taken by the High Court in Mengel, and by the New Zealand courts, and recognise reckless indifference to the illegality as a state of mind sufficient for the tort:

The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences.

In Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1, a case which involved misfeasance allegations based on an alleged unlawfulness by way of denial of procedural fairness, and therefore a situation with some similarities to the present set of allegations at least in MIPO 1, the Full Court said (at [130]):

A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister's reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant's case has been proved to the necessary standard. For the reasons which we have explained this is such a case.

• [24] It appears that the necessary elements which must be proved to establish a claim based on misfeasance in public office are:

(a) The defendant must be the holder of a "public office"; and

(b) In the matter relevant to the claim, the defendant must have purported to exercise a power attached to that public office; and

(c) The exercise of the power must have been unlawful; and

(d) The defendant must have exercised the power:

1. knowing that they were acting in excess of power and with the intention of causing harm to the claimant; or
2. with reckless indifference to whether they were acting in excess of power and being recklessly indifferent to harm being suffered by the claimant; and

(e) The claimant must have suffered harm as a consequence of the exercise of the power.[4]

The meaning of "substantial reasons for believing" in s 155(5) of the ICAC Act

• [25] The second matter which must be considered is the proper construction to be given to s 155 of the ICAC Act, and in particular to the requirement in s 155(5) that "substantial reasons" for believing that Mr Fleming acted in bad faith be demonstrated before leave is granted under that section.
• [26] The applicant submitted that "substantial" is "a word of evaluative concept".[5] It is "not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision".[6] She submitted that in the context of s 155 of the ICAC Act the word means "real or of substance as distinct from ephemeral or nominal".[7]
• [27] The applicant submitted that the legislative purpose underpinning s 155(4) and (5) is akin to that governing the power to summarily dismiss proceedings, that is, to preclude the institution of proceedings (or in the case of summary dismissal, to terminate proceedings) which are manifestly groundless or which cannot succeed. This was supported, the applicant argued, by reference to the threshold stage at which the section applied. Ordinarily, leave under s 155(4) would be sought in the absence of formal pleadings, before all necessary parties are joined, before discovery and before all trial evidence is identified. At that stage, the applicant submitted, any detailed assessment of the merits of the applicant's case would be speculative.
• [28] As part of this submission, the applicant referred to a number of decisions dealing with common law principles governing summary dismissal and applications for leave to bring appeals from interlocutory decisions. It is unnecessary to refer to those decisions in any detail. From those decisions, the applicant submitted that the following principles, applicable to the present application, emerge:

(a) The jurisdiction to terminate an action summarily is to be sparingly employed and only in clear cases, because a litigant ought not to be deprived of the opportunity to bring their case to trial in the ordinary manner unless the absence of merit is clearly demonstrated;

(b) In assessing whether to grant leave, the applicant's case should be taken at its highest;

(c) In assessing whether to grant leave, the Court should bear in mind that Mr Fleming will hold the onus of proving at trial that he acted in good faith and is entitled to the benefit of the defence under s 155 of the ICAC Act; and

(d) Where facts are peculiarly within a defendant's knowledge, a claim should not be summarily dismissed because of gaps in the claimant's case if the necessary evidence might be obtained as a result of discovery or interrogatories.

• [29] The respondents submitted that no comparison could be drawn between the requirements for granting leave under s 155 of the ICAC Act and the principles governing summary dismissal. This was, they said, because the principles governing summary dismissal reflect a fundamentally different set of policy considerations from those underpinning s 155. The policy reflected in the summary dismissal cases is that ordinarily, a litigant should not be deprived of the opportunity to run their case in the ordinary manner unless the absence of merit in that case is clearly demonstrated, with the ultimate outcome of the proceedings being predictable with a high degree of certainty.[8] This may be contrasted with the provisions of s 155 of the ICAC Act, where there is no initial assumption that proceedings against a person to whom the section applies in which it is alleged that the person acted in bad faith should be left to be determined in the ordinary way. The respondents submitted that if the intention in enacting s 155 had been simply to require that a claimant's case must be one that should not be summarily dismissed, there would be no need to enact the provision at all.
• [30] The respondents submitted that the meaning of the word "satisfied" in s 155(5) must take its meaning from the context in which it is found, particularly regarding "the nature and consequences" of the facts alleged, citing Briginshaw v Briginshaw (Briginshaw).[9] The seriousness of the allegations made and the inherent unlikelihood of an occurrence of a given description having occurred are considerations, the respondents said, which must affect whether an issue has been proven to the satisfaction of the Court.
• [31] Turning to the word "believe" in s 155(5), the respondents contended that belief requires more than a mere suspicion, citing Prior v Mole.[10] Belief, the respondents submitted, "requires an actual inclination of the mind" towards acceptance of the proposition that Mr Fleming acted in bad faith.[11]
• [32] The respondents submitted that the word "substantial" in s 155(5) is to be given its ordinary meaning in the context in which it appears.[12] The ordinary meaning of "substantial", the respondents submitted, is "of real worth or value...essential, material or important".[13] In Abdel-Hady v Freund,[14] Rothman J considered provisions of the Criminal Procedure Act 1986 (NSW) which permitted a Magistrate to direct that a witness attend committal proceedings to give oral evidence only if satisfied that there are "substantial reasons" why, in the interests of justice, the witness should attend and give evidence. In that context, his Honour said, at [31] to [34]:

...The term "substantial" has been the subject of judicial pronouncement in many contexts. It was the subject of comment by the Court of Appeal in Director of Public Prosecutions (NSW) v Losurdo [1998] NSWSC 16; (1998) 44 NSWLR 618; 103 A Crim R 189 and by the Court of Criminal Appeal in R v Kennedy (1997) 94 A Crim R 341.

The analysis of the use of the term "substantial" generally commences with the oft cited passage in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348:

The word "substantial" is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision ... [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size.

Usually it has two distinct meanings: either "of substance" or "in substance". As such it has two quite distinct effects. The first of them is to use the words "substantial" to qualify "existence at all" and is used in contra-distinction to the term "nominal" or "ephemeral" and can often mean "significant" (see for example Tillmanns Butcheries; O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd [1983] FCA 191; (1983) 77 FLR 441).

The second or later use of the term "substantial", meaning "in substance", is used to qualify "totality" and is used in the sense of essential, primary examples of which would be "substantial compliance" or "substantially all" (see Bonnard v London General Omnibus (1921) 38 RPC 1; Re: Bonny [1986] 2 Qd R 80; Re: Migliorini; Ex parte Silk Bros (Interstate Traders) Pty Ltd (1973) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd [1976] 2 NSWLR 124; Palser v Grinling [1948] AC 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665; Re Burford [1932] 2 Ch 122; AE Terry's Motors Ltd v Rinder [1948] SAStRp 19; [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404).[15]

• [33] The respondents submitted that in s 155(5) of the ICAC Act, "substantial" is used in the former of the two senses identified by Rothman J. It is used to qualify the word "reasons" in a way which makes clear that it is not any reasons that will justify leave being granted under the section, but rather substantial or significant reasons are required.
• [34] Finally, the respondents submitted that the legislature has chosen to require claimants to satisfy the Court that leave should be granted before any proceedings are commenced and any pleadings, either for the plaintiff or the defendant, have been filed. While no issue was taken by the respondents to the present application being heard after the applicant had commenced her proceedings, nothing could be drawn from the fact that a defence had not yet been filed.
• [35] In my opinion, little assistance in determining the proper approach to the operation of s 155(5) can be derived from the summary dismissal cases. As submitted by the respondents, the presumption underlying the summary dismissal cases is that ordinarily a litigant should be permitted to litigate their case in the ordinary manner. This may be contrasted with the presumption underlying s 155(5), which is that a litigant should not be permitted to even commence proceedings alleging bad faith unless they demonstrate that there are substantial reasons for believing that the proposed defendant has acted in bad faith.
• [36] As all parties accepted, the word "substantial" is a word that is susceptible to more than one meaning depending on the context in which it is found. In the context of s 155(5) of the ICAC Act, it means that the evidentiary basis advanced by a plaintiff for leave to be granted to commence proceedings alleging bad faith must be such as to satisfy the Court that there are real reasons (as distinct from ephemeral or insubstantial reasons) to believe that a proposed defendant has acted in bad faith. This inevitably requires the Court to form a judgment as to whether the evidence presented in support of the application satisfies this requirement. Equally inevitably, this is a matter on which minds may legitimately differ.
• [37] The determination of whether substantial reasons exist for believing that a person to whom s 155 applies has acted in bad faith must be based upon evidence which is placed before the Court. The mere fact that allegations are made in a SOC, as in the present case, or in some other form, cannot of itself establish that there are substantial reasons for forming the required belief. If a mere allegation were sufficient, the clear legislative intention found in s 155 would be rendered nugatory. The requirement that the Court achieve the necessary level of satisfaction based upon evidence obliges the Court, by necessary implication, to assess the evidence to determine whether it can support the level of satisfaction required. This also means that in making a determination whether the evidence adduced does support the level of satisfaction required, the Court will not take into account that further evidence may be uncovered as a result of discovery or interrogatories.
• [38] It is not to the point that if leave is granted to the applicant, the onus of proving that he is entitled to the benefit of the defence in s 155 will fall upon Mr Fleming. The fact that a legal onus may be held by one party or another in the substantive proceedings cannot logically affect the question whether the evidence before the Court on an application for leave under s 155(4) satisfies the test found in s 155(5).
• [39] By saying that a Court considering whether to grant leave under s 155(4) of the ICAC Act must assess the evidence led in support of the application, I should not be taken as suggesting that the Court must be satisfied that a proposed defendant has acted in bad faith. Such a finding can only be made, if appropriate, after a hearing of the merits of the substantive proceedings has occurred. Because the granting of leave operates as a "gateway" through which a prospective litigant must pass before commencing proceedings, where the proposed defendant calls no evidence directed to the issue of bad faith on the s 155 application it will ordinarily be appropriate to draw such inferences from the evidence in favour of an applicant as may reasonably be drawn. A different approach may be required where a proposed defendant does adduce evidence directly relevant to whether they engaged in acts in bad faith, but it is not necessary to decide that issue at this time.
• [40] While the present respondents did adduce affidavit evidence, it was directed towards the proposition that the conduct the applicant complains of was conduct of Mr Wild and not that of Mr Fleming. It is sufficient for present purposes to observe that in a case where no evidence addressing bad faith is adduced by a proposed defendant and the applicant's case is based on the drawing of inferences from the evidence adduced, the proper approach, in my view, is that such inferences as may reasonably be drawn in favour of the applicant should be drawn. To attempt to adjudicate between competing inferences, in those circumstances, would be to place a burden of proving the ultimate issue of bad faith on an applicant in the leave proceeding.
• [41] I do not accept the respondents' submission that the level of satisfaction required by s 155(5) will vary depending on the "nature and consequences" of the facts alleged. All applications for leave under s 155 of the ICAC Act will involve allegations that a person has acted in bad faith. Briginshaw was a case concerning the approach to be taken to proof of the ultimate issue in a matrimonial cause in which adultery was alleged as the basis of a petition for divorce. The issue in Briginshaw was the appropriate standard of proof in a case which required the Court to be satisfied that adultery had occurred. This was the ultimate issue in the petitioner's case. This may be contrasted with the present case where the question posed by s 155 is whether the Court is satisfied of a preliminary matter, being whether there are substantial reasons for believing that Mr Fleming acted in bad faith. The principles expressed in Briginshaw, and particularly those expressed by Dixon J at 362-363,[16] would presumably come to be applied in any ultimate hearing of the applicant's substantive claim, should that occur. Those principles, however, have no application to determining the present issue.
• [42] As submitted by the respondents, belief is different to suspicion. The meaning of the word "suspicion" was considered in Queensland Bacon Pty Ltd v Rees,[17] in the context of bankruptcy legislation which referred to a payee having reason to suspect that a debtor is unable to pay its debts as they became due. In that regard, Kitto J said, at 303:

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chamber's Dictionary expresses it.[18]

• [43] The above passage was quoted with evident approval by the High Court in George v Rockett.[19] The High Court went on to say:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence and proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[20]

The meaning of "bad faith" in s 155(5) of the ICAC Act

• [44] The final preliminary matter which I must consider is the meaning of "bad faith" in s 155(5) of the ICAC Act. The applicant submitted that the terms "bad faith" and "good faith', both of which are used in s 155 of the ICAC Act, do not bear any fixed or precise legal meaning. The applicant referred to the decision of White J in Campbell v Northern Territory of Australia (No 3)[21] in which the application of s 215(2) of the Youth Justice Act 2005 (NT) was considered in the context of a claim for damages brought by a former inmate of the Don Dale Youth Detention Centre and the Darwin Correctional Centre. The section provided that the holders of nominated offices or employment descriptions were not civilly or criminally liable for acts done in the exercise or purported exercise of a power, or in the performance or purported performance of functions, under the Youth Justice Act 2005 (NT).
• [45] By reference to a number of authorities, to some of which I will return shortly, White J said, at [821] to [822]:

In Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) also referred to the difficulty in defining the circumstances in which the immunity granted by a counterpart of s 215(2) may apply, at [50]:

[G]iven the range of advice, acts and omissions to which s 733(1) may apply, what is required for something to be done or omitted in good faith may vary from one case to the next. This makes it unwise, if not impossible, to place a definitive gloss upon the words of the statute.

However, some propositions emerge from the authorities:

(a) provisions such as s 215(2) are generally construed strictly: Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71, (1961) 109 CLR 105 at 116 (Kitto J); Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575 at [33]- [37];

(b) something more than the mere commission of a tort is necessary because, unless there be a tort, there would be no liability attracting the need for good faith defence for which the statute provides: Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94;

(c) depending on context, the term "good faith" may be a reference to an actual state of mind, irrespective of the quality or character of the causes which induce it, so that something will be done, or omitted to be done, in good faith if the party was honest, albeit careless. Alternatively, the term may be a reference to an objective standard ,i.e., requiring the exercise of the caution and diligence to be expected of an honest person of ordinary prudence: Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290 at 298; Cannane v J Cannane Pty Ltd [1998] HCA 26; (1998) 192 CLR 557 at 596 (Kirby J in dissent);

(d) a failure to attempt to discharge the function or duties conscientiously may amount to a lack of good faith, as may a conscious ignoring of the means by which a statutory duty or function may be discharged: Alamdo at [49];

(e) there may be a want of good faith even though the respondent has not acted dishonestly: Alamdo at [49];

(f) there will be an absence of good faith if the person had no intention of exercising the power for the purpose for which it was granted, or had no honest belief in the state of facts which would have excused the wrongful act: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 606;

(g) good faith may require a state of mind or knowledge other than personal honesty and absence of malice: Alamdo at [50]; Mid Density Developments at 299. As already noted, in the latter case it was said, at 300, that good faith requires more than "honest ineptitude". In Mid Density Developments, that "something more" was lacking because of the absence of a "real attempt" by the offices of the Council to provide accurate information in response to a request made to it - see also State of South Australia v Clark [1996] SASC 5499; (1996) 66 SASR 199 at 234; and

(h) the respondents have the onus of establishing the defence: Vines v Djordjevitch [1955] HCA 19, (1955) 91 CLR 512 at 519; Webster v Lampard at 606; and Alamdo at [54].[22]

• [46] White J went on to say, at [823], that the authorities also indicate the matters which may be relevant to the assessment of whether relevant acts or omissions were done or omitted to be done in good faith, which include the purpose or purposes for which the action is taken, any motive or motives with which the action was taken, the intention (or its absence) to conform with the statute, the extent to which the action did conform with the statute, and the absence of gross negligence or recklessness.[23]
• [47] A convenient starting point is the decision of the Full Court of the Federal Court of Australia in Mid Density Developments Pty Ltd v Rockdale Municipal Council (Mid Density Developments).[24] In that case the Council had issued three certificates under the Environmental Planning and Assessment Act 1979 (NSW) which each contained the incorrect statement that, based on Council records, the Council had no information that would indicate that the land was subject to flooding. The Council was aware of an earlier study which showed that the land was, in certain conditions, subject to flooding. The officer of the Council who issued the certificates did not conduct any search of the Council's records, but instead relied upon his own knowledge gained from about 13 years working with the Council.
• [48] The Council was aware at the time the certificates were issued that prospective purchasers of land would rely upon the content of the certificates. In a claim by Mid Density Developments for damages in negligence or under the Trade Practices Act 1974 (Cth) based on its purchase of the land in reliance on the certificates, the Council relied on statutory indemnities provided by the Local Government Act 1919 (NSW) and the Environmental Planning and Assessment Act 1979 (NSW) which relevantly provided that a Council did not incur any liability in respect of any advice furnished in good faith, or in respect of anything done or omitted to be done in good faith.
• [49] In its judgment, the Full Federal Court observed that the term "good faith" may, in some contexts, simply identify a state of mind to be determined by asking whether the relevant person was acting honestly. In other contexts, however, it may include an objective element such that to be acting in good faith "may require that exercise of caution and diligence to be expected of an honest person of ordinary prudence".[25] The Court went on to say:

In the present case, it will be wrong to assume that when used in the relevant legislation the phrase "anything done or omitted to be done in good faith" (in s 582A (1) of the Local Government Act) and "in respect of any advice provided in good faith" (in s 149(6) of the EPA Act) operate to leave the respondent liable only in respect of dishonesty.

These provisions, on their face, are designed to strike a balance between (i) the interests of the authority which is funded by public not private funds and which, pursuant to statute, provides the information, and (ii) the interests of the recipient of the information and others reasonably acting upon it where, in the ordinary course, those persons may be expected to incur substantial liability on the face of what is disclosed by the authority. It is the individual interest to yield to what might be called the wider public interest unless the conduct of the authority may be stigmatised as dishonest? In our view, the statutes do not bring about that result.[26]

The statutory concept of "good faith" with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority. In this case there was a failure to meet that standard.[27]

• [51] The determination of the breadth of the meaning to be attributed to the words "good faith" in the context of the relevant legislation in Mid Density Developments was based on the following considerations:

(a) the Council, as the issuing authority was a publicly funded body;

(b) the Council was aware that third parties relied on the contents of the certificates it issued in making decisions which could result in those parties incurring substantial liabilities; and

(c) the legislature had evinced in the relevant legislation a desire to balance the need to protect public funds and the legitimate interests of those who relied on the representations made by the Council.

• [52] In the context of Mid Density Developments, an interpretation of "good faith" that is restricted to a consideration of whether the information provided or act done was provided or done honestly would effectively remove any protection provided to third parties in the vast majority of cases, such that it could not be said that there was any balancing of the relevant interests at all.
• [53] Both the Full Court in Mid Density Developments and Kirby J in Cannane v J Cannane Pty Ltd,[28] cited with approval the judgment of Clark J in Siano v Helvering.[29] By reference to that judgement, Kirby J said:

The words "good faith" and "acted in good faith" appear in many statutes in virtually all countries of the common law. It would be erroneous to suggest that a single meaning could be adopted, indifferent to the particular statutory context. It has been remarked that, putting it broadly, the words "good faith", or their Latin equivalents, have received "two divergent meanings". The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it. The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence. The particular interpretation apt to the use of the words in a given legislative context will depend on the decision-maker's elucidation of the purpose of the legislature. Thus, a phrase in a taxing statute excusing "failure in good faith to observe and comply with the requirements of" specified laws has been held to involve something more than the state of mind of the taxpayer...[30]

• [54] In Bankstown City Council v Alamdo Holdings Pty Ltd,[31] the respondent company owned two blocks of low-lying land on which industrial buildings were erected in the district of the appellant Council. The Council owned drainage works beside the land, including an unlined channel into which two large stormwater pipes discharged. Between 1960, before the buildings were constructed, and 1998, there was a significant increase in the frequency with which the land was inundated by flooding. The respondent brought proceedings in the Supreme Court of New South Wales in nuisance. A single judge of the Court granted the respondent a mandatory injunction requiring the Council to undertake certain abatement works. An issue at the trial was whether the Council was entitled to the benefit of a statutory indemnity found in s 733(1)(b) of the Local Government Act 1993 (NSW) which provided that a Council does not incur any liability in respect of anything done or omitted to be done in good faith by the Council insofar as it relates to the likelihood of land being flooded or the nature or extent of any such flooding. At trial, the primary Judge held that the relief granted was not in respect of liability from which the Council was protected by s 733(1)(b). An appeal by the Council and a cross-appeal by the respondent were both dismissed, but the Court of Appeal reversed the primary Judge's holding with regard to the application of s 733(1)(b), while also upholding an alternative finding that the Council's failure to act had not been in good faith.
• [55] On appeal to the High Court, the plurality of the Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) said:

Something first must be said respecting the sense in which the phrase "in good faith" is used in s 733(1)(b). Mid Density Developments Pty Ltd v Rockdale Municipal Council concerned the absence of any adequate system for the council to respond, when issuing certificates under s 149 of the EPA Act, to questions by the vendor and later the purchaser respecting the flooding of the particular land under contract. In that setting, it was held that, whilst not dishonest, the council had not acted in good faith. There had been no attempt to supply information by recourse to the council's records and there was no system in operation for doing so. Indeed, the council officer whose responsibility it was to deal with the requests for information had consciously ignored the very records which would have supplied it.

Reference was made in Mid Density to various examples in the law where "good faith" is used as a criterion requiring some state of mind or knowledge other than the personal honesty and absence of malice of the relevant actor. Moreover, given the range of advice, acts and omissions to which s 733(1) may apply, what is required for something to be done or omitted in good faith may vary from one case to the next. This makes it unwise, if not impossible, to place a definitive gloss upon the words of the statute.

In Mid Density, the standard of conduct against which the Council's conduct in issuing the s 149 certificates was to be assessed was apparent from the importance of the information sought for the routine processes of conveyancing.[32]

• [56] It will be clear from the above cases that the meaning to be given to the words "bad faith" (and their counterpart "good faith") in a statutory immunity provision such as s 155 of the ICAC Act will depend on the nature of the act or omission alleged and the "elucidation of the purpose of the statute", particularly as pertains to the alleged acts or omissions.[33] It must follow from this that the requirements of "good faith" may differ for the purposes of a provision such as s 155 depending on the nature of the alleged act or omission. In some cases, a provision such as s 155 may require only that the relevant person acted honestly; in other cases, the same provision may require more. It is therefore impossible to attempt to succinctly define the concepts of "good faith" or "bad faith" in s 155 without recourse to an analysis of the ICAC Act and the acts or omissions alleged by the applicant. It is only after this exercise is undertaken that a determination of the availability of the statutory immunity can be determined.
• [57] This has implications for the exercise required by s 155(5) of the ICAC Act. It is not possible to determine whether there are reasonable grounds to believe that an act alleged to have been performed by Mr Fleming was performed in bad faith unless the content of the obligation to act in good faith with regard to that particular act is identified. Does "good faith" only require the relevant person to act honestly, or is something more required? The requirement to identify the content of "good faith" for any particular act does not mean that the Court is limited to considering each alleged act in isolation. There may be cases, drawing an analogy with circumstantial evidence, where consideration of the actions of a relevant person as a whole leads to a determination that one or more acts were performed in bad faith, in the relevant sense. That is simply the obvious distinction between the test to be applied and the evidence available to satisfy the test. As the meaning of the words "bad faith", and their converse, "good faith", depend on their legislative context, it is necessary to consider the provisions of the ICAC Act.

• [58] What follows is a brief summary of the provisions of the ICAC Act, to the extent that they may assist in elucidating the intended meaning of the phrases "good faith" and "bad faith" in s 155 of the ICAC Act.
• [59] The object of the ICAC Act is found in s 3 of that Act:
  1. Object of Act

The object of this Act is to address wrongdoing in, or connected with, public administration by:

(a) preventing or minimising the occurrence of improper conduct; and

(b) improving public confidence that improper conduct will be detected and dealt with appropriately; and

(c) providing incentives and reducing disincentives to persons to assist in the detection, reporting, investigation, prosecution and prevention of improper conduct; and

(d) protecting persons who put themselves at risk of harm by exposing or reporting improper conduct; and

(e) augmenting the Territory's existing framework for responding to improper conduct by establishing an Independent Commissioner Against Corruption intended to:

(i) investigate the most serious, systemic and sensitive improper conduct; and

(ii) ensure that other improper conduct is dealt with, either by an appropriate existing entity or, if the ICAC considers it appropriate, by the ICAC; and

(iii) coordinate a response to improper conduct when multiple entities have jurisdiction in relation to the matter; and

(iv) facilitate the prosecution of offences involving improper conduct.

• [60] The functions of the ICAC are set out in s 18:
  1. Functions

(a) to identify and investigate improper conduct;

(b) to protect persons who have assisted or may assist in detecting, preventing, investigating or otherwise responding to improper conduct;

(c) to prevent, detect and respond to improper conduct by:

(i) developing and delivering education and training; and

(ii) auditing or reviewing practices, policies and procedures of public bodies and public officers; and

(iii) developing and delivering advice, reports, information and recommendations; and

(iv) referring matters to a referral entity for investigation or further investigation, disciplinary action or prosecution; and

(v) making public comment;

(d) to oversee and direct, as required, how referral entities deal with matters referred to them by the ICAC;

(e) to perform other functions conferred on the ICAC under this or another Act.

(2) The ICAC may perform functions under this Act in relation to any matter that may involve improper conduct.

(3) Without limiting subsection (2), the ICAC is to:

(a) give priority to dealing with matters that, in the ICAC's opinion, may involve corrupt conduct or serious anti‑democratic conduct; and

(b) refer other matters that may involve improper conduct to a referral entity, unless there is a good reason for the ICAC not to refer the matter.

(4) Without limiting subsection (3)(b), it is a good reason for the ICAC not to refer a matter to a referral entity if referring the matter:

(a) may adversely affect the performance or future performance of the ICAC's functions; or

(b) may reveal the identity of a protected person.

(5) Subject to this Act, the ICAC may perform the ICAC's functions in any manner the ICAC considers appropriate.

• [61] The ICAC has the power to do all things necessary or convenient to be done for, or in relation to, the performance of its functions.[34] Where the ICAC has a discretion in performing a function under the ICAC Act, he or she is to act in the public interest, taking into account the matters set out in Schedule 1 to the ICAC Act that the ICAC considers relevant and appropriate in any particular case.[35] Schedule 1 to the ICAC Act prescribes the following matters:

Schedule 1 Matters ICAC to take into account in performing functions

1. The object of this Act.
2. The public interest in the following:

(a) acting and being seen to act fairly and impartially

(b) not interfering with an individual's rights, privileges or privacy, beyond what is reasonably necessary to carry out ICAC's functions effectively;

(c) upholding the rule of law;

(d) the separation of powers, including the independence of the judiciary and the Legislative Assembly's right to control its own affairs;

(e) cultural sensitivity and the reasonable accommodation of persons with special needs;

(f) persons in positions of seniority or power in the public sector exhibiting appropriate behaviour commensurate with those positions;

(g) public officers and public bodies taking responsibility for ensuring improper conduct is detected and dealt with appropriately;

(h) ensuring offences involving improper conduct are investigated and prosecuted;

(i) the general deterrence of improper conduct;

(j) the ICAC obtaining, and continuing to be able to obtain, information about improper conduct;

(k) minimising the risk of retaliation;

(l) the proper functioning of democratic processes;

(m) avoiding prejudice to current and possible future prosecutions.

1. The impact of the ICAC's activities on the following:

(a) the ability and capacity of public officers and public bodies to perform their functions, especially if those functions involve critical or front-line services;

(b) investigations by law enforcement agencies;

(c) current and possible future legal proceedings.

1. The need for the ICAC to target public resources most effectively, including by the following:

(a) considering alternatives to carrying out an investigation in order to prevent or minimise improper conduct;

(b) prioritising the most serious, systemic and sensitive matters;

(c) prioritising matters with present relevance;

(d) considering relevant statutory timeframes for related prosecution or disciplinary action;

(e) considering the extent to which a matter has already been investigated;

(f) considering the extent to which relevant and reliable evidence of improper conduct is available;

(g) referring matters to a referral entity;

(h) giving directions and guidance to a referral entity;

(i) taking back a matter from a referral entity;

(j) declining to investigate matters as appropriate;

(k) generally altering a course of action according to information received in order to meet changing circumstances.

1. Matters should be dealt with by the ICAC in private, unless it is in the public interest to do otherwise, taking into account the following:

(a) the desirability of the public sector being open and accountable to the public;

(b) the benefit of exposing improper conduct to public scrutiny;

(c) the extent to which allegations of improper conduct are already in the public domain;

(d) the extent to which allegations of improper conduct raise issues of continuing public interest;

(e) the risk that a person may suffer undue hardship, including undue prejudice to the person's reputation;

(f) the needs of persons who have assisted in identifying or investigating improper conduct and particularly the need to protect information that may identify those persons;

(g) any views expressed by persons who would be affected by a decision whether to handle a matter in private or public;

(h) the educational value and benefit to research and policy development of sharing details of matters about which the ICAC has particular knowledge.

1. Any other circumstances the ICAC considers relevant.

• [62] The ICAC is not subject to direction by any person about the way he or she performs their functions or the priority they give to any particular matter.[36]
• [63] The ICAC may commence an investigation if the ICAC has, or is aware of, information that, if true, would tend to show that improper conduct has occurred, is occurring or is at risk of occurring.[37] Such an investigation may be commenced despite a provision of another law of the Territory providing that the subject matter is final or cannot be appealed against, challenged or called into question.[38] An investigation may also be commenced even if the subject matter is the subject of an investigation under another law of the Territory or legal proceedings.[39]
• [64] For an investigation, the ICAC may inspect financial records[40] and it may require a person to provide specified information or items.[41] The ICAC may also require a person to attend the ICAC for examination.[42]
• [65] The ICAC may hold a public inquiry for an investigation.[43] Such an inquiry is to be open to the public unless the ICAC directs otherwise.[44]
• [66] The ICAC may make a report on an investigation (an IR) to a responsible authority for a public body or public officer whose conduct is the subject of the investigation.[45] For present purposes, a responsible authority is an entity having authority to deal with improper conduct referred to in the report or an entity whose functions include making future decisions in the public interest that may be better informed by receipt of the report.[46]
• [67] An IR may contain a finding that a person has engaged in, is engaging in or is about to engage in, improper conduct.[47] Such a report cannot, however, contain a finding that a person has committed, is committing or is about to commit, an offence or a breach of discipline.[48] A PS must not contain any material that would not be admissible in civil, criminal or disciplinary proceedings by reason of the provisions of s 82 of the ICAC Act.[49] The effect of s 82 of the ICAC Act is that a representation made by a witness in evidence given to the ICAC is not admissible against the witness in civil, criminal or disciplinary proceedings unless the witness was appropriately warned prior to giving evidence that they are not obliged to give evidence, and if they do give evidence it may be used against them in civil, criminal or disciplinary proceedings.
• [68] There are limited instances where the ICAC Act requires the ICAC, in the course of exercising his or her functions and powers, to take into account the interests of a person who is under investigation. For example, in Schedule 1 to the ICAC Act (see [61] above) the ICAC is required to take into account in determining whether to hold public hearings, inter alia, the "risk that a person may suffer undue hardship, including undue prejudice to the person's reputation".[50] Similarly, in determining how to exercise a discretion the ICAC must take into account the public interest in not interfering with an individual's rights, privileges or privacy, beyond what is reasonably necessary to carry out ICAC's functions effectively.[51]
• [69] The ICAC also provides for procedural fairness to be accorded to a person under investigation. For example, where the ICAC is conducting an investigation, the ICAC may require a person to answer specified questions or provide specified information, or to produce specified items, or items of a specified kind, in the person's possession or control.[52] When making such a requirement, the ICAC must state the nature of the matters about which the person is to be questioned, or to which the information or items relate, except to the extent that the ICAC considers on reasonable grounds that doing so would be likely to prejudice the conduct of the investigation or be contrary to the public interest.[53] Another example is found in the requirement for the ICAC to give a copy of his or her draft IR to a person about whom the ICAC intends to make an adverse finding.[54] The ICAC must give the person a reasonable opportunity to respond to the adverse material and include a fair representation of the response in the final report.[55]

• [70] The ICAC Act gives the ICAC extensive powers to identify, investigate and report upon alleged misconduct by public officials and bodies. The ICAC Act has a single purpose, as set out in s 3 of the ICAC Act: to address wrongdoing in, or connected with, public administration. In performing his or her functions the ICAC is given broad discretion as to how he or she achieves the object of the ICAC Act. The ICAC is not subject to Ministerial direction, or indeed direction by anyone, in carrying out his or her functions. In contrast to the legislation considered in Mid Density Developments, the ICAC Act does not seek to strike a balance between the interests of those subject to investigation and the public interest in addressing wrongdoing in public administration; or, at least to the extent that it does do so, the balance falls heavily on the side of the public interest.
• [71] It would be inconsistent with this statutory framework to hold that, in order for the ICAC to be performing his or her functions in good faith, he or she must conduct their investigation in a certain way or to a certain judicially determined standard. This speaks strongly against adopting a broad interpretation of the terms "good faith" and "bad faith" and incorporating an objective element such as that which was held to apply in Mid Density Developments. In addition, the incorporation of an objective standard, the content of which is judicially formulated with the benefit of hindsight, into these terms would be likely to have a dampening effect on the ICAC's efficacy in achieving its statutory object.
• [72] It would be artificial to attempt to draw a distinction between the function of the ICAC in investigating alleged misconduct by public officials and bodies, and that of reporting upon his or her investigation, for the purpose of determining the meaning of "good faith" and "bad faith" in s 155 for those separate functions. While the two functions are separate, they are also closely connected. The content of any IR will be determined by the investigation undertaken, including decisions made by the ICAC in the course of the investigation. Similarly, the decision to publish a PS, and the content of the PS, will be heavily influenced by the investigation and its outcome. To require the ICAC to report on an investigation, whether by IR or PS, in a particular way by reference to an objective standard, in order for the ICAC to be subject to the indemnity provided by s 155, would be equally inconsistent with the statutory framework. To imply an objective standard into the terms "good faith" and "bad faith" in s 155 as they apply to the reporting function of the ICAC would permit a Court to retrospectively determine what evidence was or was not significant and what conclusions should have been reached. This is inconsistent with the clear intentions of the legislature as expressed in the ICAC Act.
• [73] In reaching these conclusions I have taken into account that the functions performed by the ICAC are not purely administrative. They cannot be compared to the function of the Council officer in Mid Density Developments who was simply required to search Council records before issuing a certificate. The functions of the ICAC are immeasurably more complicated, requiring the exercise of judgment and discretion.
• [74] I am satisfied that the terms "good faith" and "bad faith", as they apply to the investigative and reporting functions of the ICAC relevant to the present application, refer to a purely subjective state of mind on the part of the ICAC. The ICAC, in performing those functions, will be acting in good faith where he or she honestly believes that they are acting in accordance with the terms of the ICAC Act. Conversely, he or she will be acting in bad faith where they do not hold such an honest belief. A demonstrated failure to conscientiously perform his or her functions as the ICAC may evidence that the ICAC does not honestly believe that they are acting in accordance with the terms of the ICAC Act, but such a failure does not, of itself, establish bad faith.
• [75] The question posed in the present application then becomes: are there real reasons (as opposed to ephemeral or insubstantial reasons) for believing that Mr Fleming did not honestly believe that he was acting in accordance with the ICAC Act at the time he did those things of which the applicant complains?

• [76] The applicant submitted that there were three ways in which Mr Fleming was guilty of acting in bad faith:

(a) By making no real attempt to determine the truth of the allegations against the applicant before publication of the reports.

(b) By making no real attempt to comply with the provisions of the ICAC Act or to afford procedural fairness.

(c) By prejudging the outcome of the investigation and being motivated to publish the reports by irrelevant considerations.

• [77] For the reasons I have given, I reject the applicant's submission that in addressing the test for leave under s 155(5) of the ICAC Act, an objective element is to be imported into the meaning of "bad faith". Any analysis of the applicant's suggested evidence of bad faith must be conducted in the light of the meaning of that term which I have determined is applicable to the applicant's complaints. In conducting such an analysis it is no part of my function to make findings upon, or to comment upon the correctness of the conclusions reached by the ICAC. Nor is it any part of my function to assess the applicant's prospects for success in her claim

No real attempt to determine the truth of the allegations before publication of the reports

• [78] The applicant's complaint is one regarding the sufficiency of the investigation undertaken by the ICAC. While the ICAC is given broad discretion in the way that he or she conducts an investigation, that does not mean that a finding that there are substantial reasons for believing that the ICAC has acted in bad faith with regard to the sufficiency of an investigation could never be substantiated. It is possible to contemplate a case, hypothetically at least, where the supposed investigation was so inadequate as to effectively not amount to an investigation at all. The existence of such an inadequate investigation would be evidence capable of raising an inference that the ICAC did not hold an honest belief that he or she was acting in accordance with the terms of the ICAC Act in conducting the supposed investigation. This would not be inconsistent with the object of the ICAC Act. It need hardly be said that the ICAC would not be acting consistently with the object of the ICAC Act by purporting to make findings of wrongdoing without conducting any, or any real, investigation.
• [79] The applicant's complaint is that the ICAC either knew that the allegations were false or was recklessly indifferent to the truth or falsity of the allegations. I accept that if the applicant shows that there are substantial reasons for believing that the ICAC had one of those states of mind at the relevant time, then leave under s 155(5) should be granted. I would, however, add the caveat that proof that the ICAC could (or even, in my estimation, should) have arrived at a different conclusion regarding the allegations against the applicant does not, of itself, demonstrate bad faith on the part of the ICAC. The present application is not a form of merits review of the ICAC's decision. It must be accepted, however, that if all the evidence was one way, in favour of the innocence of the applicant, and the ICAC nevertheless determined that the applicant was guilty of misconduct, this may be relevant to drawing an inference that the ICAC had acted in bad faith.
• [80] The allegations to which the applicant refers are, of course, those made against her and about which adverse findings were made against her in the IR and PS. These allegations are set out at paragraph (a) at [16] above. The applicant submitted the following "critical circumstances" demonstrate that there are substantial reasons to believe that the ICAC held one of the required states of mind:

(a) the nature and extent of the false and misleading content in the IR and PS;

(b) the irrational or incomplete reasoning contained in the IR and PS in support of the allegations;

(c) the general and conclusory way in which the allegations are expressed in the IR and PS without reference to specific incidents or factual allegations;

(d) the ease with which the respondents could have checked the truth and accuracy of the content of the IR and PS by reference to the extensive investigative powers of the respondents, and the persons and records identified by the applicant as relevant;

(e) the steps taken within the investigation which prevented the applicant from being able to effectively respond to the allegations including:

1. providing the applicant only limited and misleading information about the subject-matter of the investigation in advance of her examination;
2. prohibiting the applicant from speaking to Milingimbi School staff or others about the allegations;
3. removing the applicant from Milingimbi School and with it her ability to access to relevant records;
4. expressing the allegations in general and conclusory terms in the IR and PS without reference to specific incidents of facts, and failing to identify the material facts underlying the allegations;
5. restricting the applicant's access to evidence relied upon by the ICAC; and
6. limiting the applicant's time to respond;

(f) the simplistic engagement of the IR and PS with complex issues;

(g) the failure of the IR and PS to identify and meaningfully grapple with the applicant's response to the allegations given during her examination and in response to the draft proposed IR and PS;

(h) the failure of the IR and PS to offer any serious explanation for why evidence of the applicant (including documentary evidence) was rejected save asserting in general and impenetrable terms that her explanations (not identified in the IR or PS) were against the "weight of the evidence" (also not identified in the IR or PS) and could not be believed; and

(i) the failure to obtain evidence from relevant staff at Milingimbi School involved in the financial decision-making and other conduct the subject of the investigation.

• [81] At the outset it must be observed that any analysis of the importance of the "critical circumstances" identified by the applicant is greatly hampered by the breadth of the description of some of those circumstances and lack of particulars. For example, the submission that "the nature and extent of the false and misleading content in the report" is relevant to drawing an inference as to the ICAC's state of mind is unhelpful without identification of the particular content of the report that is said to be false and misleading, and an analysis of why that is said to be so. This observation applies to "critical circumstances" (a), (b), (c), (e)(i), (e)(iv), (f), (g), and (i). In order to found an inference of bad faith, a failure on the part of the ICAC to interview persons or refer to documents must be shown to be a relevant failure, that is, a failure to interview persons who could provide relevant information or to refer to a document containing relevant information. The failure of the applicant to provide particulars of those allegations makes it impossible to form a judgment about whether any such failure on the part of the ICAC may found a reasonable belief that the ICAC acted in bad faith.
• [82] This broad-brush approach to identification of the precise content of the IR and PS to which the applicant refers, and her similar approach to demonstrating that the material can found an inference that the ICAC acted in bad faith, is probably a function of the applicant's error in identifying the approach required for the Court to grant leave under s 155(5) of the ICAC Act as being akin to that required in determining an application for summary dismissal of proceedings: see [27] and [35] above. In written submissions, the applicant stated that a number of the "critical circumstances" would "only be explored fully at trial", an approach which ignores the fact that the onus falls upon her in the present application, in order for her to be allowed to proceed to trial against Mr Fleming, to demonstrate that there are substantial reasons to believe that Mr Fleming acted in bad faith. It is no answer to the onus imposed on the applicant by the legislature to say "we will explore it at trial", just as it is no answer to say that the matter may be explored through discovery and interrogatories.
• [83] The applicant identified three "reports" prepared by the ICAC, being the draft IR, the final IR and the PS. While the publication and promotion of the PS were said to have been the cause of the applicant's alleged loss, her complaints were directed towards the reports generally on the basis that there was minimal difference between the content of the reports. Before the form or content of a report made by the ICAC can be said to give weight to the proposition that bad faith can be inferred on the part of the ICAC in the making of the report, or the conduct of the investigation upon which the report is based, it is necessary to know what the law requires of the ICAC in preparing the report. It can hardly be argued that a failure of the ICAC to go further than the law requires in providing information in the report is evidence of bad faith on the part of the ICAC, no matter how useful further information may be to a party adversely mentioned in the report. Different reports may be subject to different requirements governing the degree of information they are required to provide.
• [84] The applicant cited no authority for the proposition that the ICAC was under a legal duty to provide more information in the reports, including setting out reasons why the applicant's evidence was not accepted, than was provided by the ICAC in this case. The starting point in determining what was required of the ICAC in preparation of the reports are those provisions of the ICAC Act relating to the ICAC's reporting function.
• [85] With regard to an IR, s 50 of the ICAC Act provides that the only mandatory requirement is that it must contain a fair representation of the response of a person about whom the ICAC intends to make adverse findings. The same section provides that an IR may also include a finding as to whether a person has engaged in improper conduct, and information as to whether an allegation of improper conduct has been referred to a referral entity.[56] Beyond these matters, the ICAC Act simply provides that an IR may "contain as much information as the ICAC considers appropriate in relation to the subject matter of the investigation".[57]
• [86] The statutory requirements for a PS are found in s 55 of the ICAC Act. Section 55(2) sets out the purposes for which the ICAC may publish a PS. These purposes include providing information about action taken by the ICAC in relation to the matter, and to provide information about a referral.[58] The ICAC is empowered to make a PS to the public at large, a section of the public or to a particular person or body.[59] As noted at [67] above, a PS must not contain any material that would not be admissible in civil, criminal or disciplinary proceedings because of s 82 of the ICAC Act.
• [87] While the ICAC may make a finding that a person has engaged in improper conduct, the ICAC is not a judicial body and does not exercise judicial power. The ICAC is not empowered to make a binding declaration of rights between a person whose conduct is the subject of investigation and the Territory or any other body or person. The ICAC has no power to enforce any finding that it makes. There is no right of appeal from the findings of the ICAC. The role of the ICAC is to investigate alleged improper conduct and to refer its findings to others to take action, should they consider it appropriate to do so. The role of the ICAC may properly be defined as administrative/investigative. It is well established that there is no general common law obligation in Australia for an administrative decision maker to provide reasons for their decision.[60]
• [88] There have been cases in which the quasi-judicial nature of a decision has resulted in courts determining that the decision maker was under a duty to provide reasons for their decision. For example, in Mauro v Hooper[61] Vanstone J found an obligation on the part of the Medical Board of South Australia to provide reasons for a finding that a medical practitioner had engaged in professional misconduct based upon the quasi-judicial role of the Board and the existence of a statutory right of appeal from the decision of the Board. The Board was empowered by s 51(6) of the Medical Practice Act 2004 (SA) to impose sanctions on a medical practitioner if, after conducting an inquiry, it was satisfied that there was proper cause for taking disciplinary action. As I observed earlier, there is no right of appeal from the findings of the ICAC. In addition, the role of the ICAC cannot be equated to that of the Medical Board. The Medical Board was empowered not only to investigate complaints of professional misconduct but also to make a binding finding of such misconduct. Based upon such a finding, the Board was empowered to impose sanctions on the practitioner. As noted above, the ICAC has no power to impose sanctions based on a finding that a person has engaged in corrupt conduct. The ICAC is empowered to make findings of improper conduct, but nothing immediately flows from such a finding.
• [89] The terms of the ICAC Act do not support the proposition that the ICAC was obliged to frame either the IR or the PS so as to, within either report, expose the ICAC's reasoning processes and how it may have dealt with conflicting evidence. The absence of any obligation to address these matters in either an IR or a PS is a function of the limited role of the ICAC. Any "responsible authority" receiving an IR would have to satisfy itself of the factual matters referred to in the IR before it could act upon those matters to the detriment of the person the subject of the investigation. The fact that the ICAC is prohibited from including in an IR any finding that the person under investigation has committed an offence or a breach of discipline[62] demonstrates that it is the responsibility of others, not the ICAC, to assess the evidence and determine whether to make such findings.
• [90] In this regard the function of the ICAC may be contrasted with that of a court, which typically hears evidence, determines issues of fact, and makes binding and enforceable determinations of rights. For this reason, the expectations of the content of an IR or a PS should not be equated to those of a judgment of a court.
• [91] The fact that, in the present case the IR and PS do not expose the reasoning of the ICAC as to why he preferred some evidence over other evidence, or why he came to make findings against the applicant cannot support an inference of bad faith on the part of the ICAC when he was under no obligation to include any such material in those documents. Similarly, any perception that the terms of the IR or PS are expressed in a "general and conclusory way", without reference to specific incidents, cannot (even if that perception is correct) support an inference of bad faith on the part of the ICAC.
• [92] The fact that the ICAC did not accept the evidence of the applicant and made findings of fact contrary to those asserted by the applicant does not establish that the contents of either the IR or the PS were "false or misleading", much less that they were so to the knowledge of the ICAC. It is not sufficient to simply assert that the IR or PS contains such material. This is not a case where all of the evidence was one way, supporting the applicant's assertion of innocence. It is not possible for me to find that the report does contain false or misleading material, which is a pre-condition to my using the presence of such material in the IR and PS as the basis for drawing an inference that the ICAC acted in bad faith.
• [93] To the extent that the "critical circumstances" identified by the applicant raise the allegation that the conduct of the investigation conducted by the ICAC was inadequate, the evidence is insufficient to support the inference that the ICAC acted in bad faith based on the breadth of the investigation. The evidence establishes that the ICAC's investigation was conducted jointly with the DOE and was conducted over about one and a half years. In the course of the investigation, the ICAC examined 12 individuals, received 73 exhibits and received several hundred pages of submissions and material from the applicant. This is not a case where the evidence establishes that the investigation was so deficient as to not amount to an investigation at all.
• [94] The applicant submitted that the ICAC spoke to "a limited number" of witnesses and accessed "limited documentary evidence". In the affidavit of William Francis Piper made on 9 December 2021, the deponent states that information provided to him by the ICAC suggests that evidence was taken from 12 people during the course of the investigation concerning the applicant. Only one of those persons was identifiable as being on the School council. The deponent goes on to state that none of the applicant's family members named in the IR were interviewed or spoken to during the investigation. The deponent further states that he has been advised by Ian McCulloch, the applicant's husband, that it is "very unlikely" that Mr Fleming or anyone within the office of the ICAC would have been able to access data on part of the School's information technology which he created without his assistance. Similarly, a list of documents to which the ICAC had regard in his investigation was provided to the applicant. The list consisted of 52 documents including statements made by individuals, Northern Territory Government documents, DOE documents, emails, financial statements, travel documents and other material.
• [95] In some circumstances, the failure by an investigative body to undertake particular investigations could be a circumstance from which an inference could be drawn that the investigator has predetermined the outcome of the investigation. A failure to interview an obviously relevant, important and apparently credible witness could be evidence that the outcome of the investigation has been predetermined, and that the investigator is not interested in arriving at the truth of the matters under investigation. It is not clear how it is said by the applicant that those people identified by her in particular as not having been interviewed by the ICAC could be said to be witnesses who fall within that description. In her written submissions, the applicant has not suggested that any of these persons could have directly refuted any critical factual finding made by the ICAC.
• [96] Amongst the matters which the applicant advances in support of the proposition that an inference of bad faith on the part of the ICAC can be drawn, are allegations that the ICAC prohibited the applicant from speaking to staff at the School and also removed her from the School, thereby limiting her access to relevant records. At the outset, I observe that there would be nothing surprising in a decision by a government body (power permitting) to remove a person under investigation for allegations of improper conduct from the physical location where it is alleged the conduct occurred to ensure that appropriate control over, and protection of, evidence occurs. This is in the interests of the ICAC, the government body and the person being investigated.
• [97] Of greater importance in the present case is the fact that the evidence does not support the allegation that the ICAC did the things of which the applicant complains. The DOE wrote to the applicant on 17 January 2020 advising her that an investigation was to be undertaken at the School and stated, "[t]o ensure the department provides the requisite duty of care to you, it is now considered appropriate that I advise you that you are not required to report for duty at Milingimbi School...unless otherwise notified". The letter went on to say that the applicant "should not make contact with any other staff member at Milingimbi School with regard to this matter". These directions from the applicant's employer were apparently still in force when Mr Fleming, on 23 June 2020, signed a direction to the applicant, amongst other things, not to disclose that an investigation was being conducted by the ICAC into the applicant's role in the financial management of the School. The terms of that direction did not prohibit the applicant from attending the School or accessing records. The ICAC direction only operated to restrict the applicant's ability to speak to School staff to the extent that she could not tell them of the fact that the ICAC was conducting an investigation. That direction could, of course, have been made for a malicious purpose; anything is possible, but there are no substantial reasons in the present case for believing that it was.
• [98] The applicant complains, as part of the identified "critical circumstances", of a denial to her of the opportunity to properly respond to the allegations against her. There are elements in common between this submission and the applicant's submission, to which I will return, that she was not afforded procedural fairness by the ICAC. It is important to consider what the ICAC was required to do in the circumstances to afford procedural fairness to the applicant. This depends on the nature of the function being performed by the ICAC and the relevant provisions of the ICAC Act.
• [99] In Obeid v Ipp,[63] Hammerschlag J stated: "[t]he content of an obligation to afford procedural fairness depends on the requirements of each case: Glynn v Independent Commission Against Corruption (1990) 20 ALD 214". In that case, as in the present, the obligation to afford procedural fairness arose out of the exercise of powers under an enactment. The scope of the obligation must therefore accommodate the provisions of the enactment.[64] At [87] to [89], Hammerschlag J said:

The Commission's function in a public enquiry is investigative. It bears no relation to a civil or criminal trial before a court with jurisdiction to resolve factual and legal issues in a dispute between contending parties: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [690].

There is no right to cross-examine at a public enquiry. This may only occur with the leave, and the area of questioning is restricted to any matter that the Commission considers relevant (s 34). The obligation does not extend to giving all of the procedural and evidentiary protections of adversarial proceedings. There is no right for affected persons to call further evidence and there is no obligation on the Commission, akin to the prosecutorial duty, to call all material witnesses.

To satisfy the condition of procedural fairness, ICAC was obliged to adopt a procedure which conformed to that procedure which a reasonable and fair repository of the power to be exercised would adopt in the circumstances: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 627; WZARH v Minister for Immigration and Border Protection (2015) 90 ALJR 25 at [53].[65]

• [100] In Glynn v Independent Commission Against Corruption,[66] Wood J said:

Inevitably such an Inquiry will expand and moved into new or different areas, within its terms of reference, as it progresses. What is necessary is that by the end of the hearing, a party potentially affected by an adverse finding have the opportunity to meet it by submission, and if necessary, by evidence.[67]

• [101] In the present case, the evidence demonstrates that the applicant was notified of the nature of the matters about which she would be examined by the ICAC. The applicant was given the opportunity to inspect the material upon which the ICAC proposed making adverse findings against her, and she availed herself of the opportunity. The applicant was also given an opportunity to respond to the draft IR prepared by the ICAC, and she also availed herself of this opportunity. The ICAC was obliged to do no more under the provisions of the ICAC Act.
• [102] The approach taken by the applicant to this issue is similar to that taken by her with regard to other aspects of the application: "we will explore it at trial". In her written submissions, the applicant said with regard to the allegation that the ICAC had not attempted to determine the truth of the allegations before publishing the reports:

Whether or not...the content of the report can be justified as a real attempt to determine the truth of the matters with which it deals is a complex question of mixed fact and law to be determined at trial by reference to the explanations given at trial for deficiencies in the report. The Defendants have elected on the application for leave not to adduce any evidence providing a factual foundation for the serious allegations made in the report.

• [103] As I observed above, this approach ignores the onus cast on the applicant by s 155(5) to demonstrate substantial reasons for believing that the ICAC acted in bad faith before she may commence proceedings against the ICAC. The submission also fails to consider what the law requires of the ICAC regarding the preparation and content of an IR or PS.
• [104] There is simply no evidence to support the proposition that the ICAC made no real attempt to ascertain the truth of the allegations made against the applicant before he published the IR and the PS. The applicant clearly disagrees with the conclusions reached by the ICAC, and believes that different conclusions should have been reached on the evidence. She is, of course, entitled to take that view. The fact that she takes that view does not mean, however, that the investigation undertaken by the ICAC was so deficient as to permit an inference to be drawn that the ICAC was acting in bad faith at the time that he published the IR and the PS.

No real attempt by the ICAC to comply with the provisions of the ICAC Act or to afford procedural fairness

• [105] The applicant submitted that the requirements imposed upon the ICAC by s 50 of the ICAC Act are twofold: a duty to afford a reasonable opportunity to a person about whom the ICAC proposes to make an adverse finding to respond, and a duty to include a fair representation of any response by such a person to the adverse material in the final IR.
• [106] As to the first of these obligations, the applicant submitted that a person who is not provided with a rational foundation for an adverse conclusion or the adverse material itself is not given a reasonable opportunity to respond to it. The applicant submitted that "[p]roviding only conclusory statements of corrupt conduct in the report, failing to draw to the Plaintiff's attention or provide the adverse material on which those conclusions were purportedly based, and limiting the Plaintiff's access to the evidentiary material before the investigation by way of arbitrary and unnecessary restraints on time and means of access, was clearly unreasonable in the context of the serious allegations made in the report".
• [107] As noted above, the evidence in the present application is that the applicant was provided with a letter from the DOE dated 17 January 2020 informing her that a "highly confidential" investigation was to be undertaken at the School and foreshadowing an intention to transfer the applicant at level to perform other duties. This was followed by a letter signed by Mr Fleming dated 20 January 2020 informing the applicant that reports had been made of the applicant engaging in conduct in public office which may amount to corrupt conduct. The applicant was examined by the ICAC for about five days, at the end of which she and her lawyers submitted to the ICAC material directed towards what they understood to be the main issues upon which the applicant had been examined. The applicant was then provided with a copy of the draft IR and she was invited to respond. The applicant provided a lengthy and apparently comprehensive response to the draft IR. On its face, this procedural history is not consistent with such a disregard for the procedural requirements of the ICAC Act as would reasonably found an inference that the ICAC was acting in bad faith in the conduct of the investigation or in preparation and publication of the reports.
• [108] The second obligation identified by the applicant was the obligation on the part of the ICAC to include a fair representation in the final IR of the applicant's response to the draft IR. There is no doubt that the ICAC did include in the final IR what purports to be a summary of the applicant's response to the draft IR. Whether that summary is a "fair representation" of the applicant's response to the draft IR requires an evaluative judgment. It is a matter on which minds may legitimately differ. It is no part of my function to determine whether the summary included by the ICAC in the final report is a fair representation of the applicant's response. I will, for the purposes of the present application, proceed on the basis that it is arguable that the summary of the applicant's response is not a fair representation of her response to the draft IR. This would establish a failure on the part of the ICAC to comply with the terms of the ICAC Act in publishing the final IR. Critically, proof of that fact is not sufficient to justify a grant of leave pursuant to s 155 of the ICAC Act. Proof of such a failure on the part of the ICAC to comply with the requirements of the ICAC Act will not, of itself, allow an inference to be drawn that the ICAC acted in bad faith in failing to include a fair representation of the applicant's response in the final IR.
• [109] The applicant submitted that the period of time which elapsed between the ICAC receiving the applicant's response to the draft IR on 9 June 2021 and the delivery of the final IR on 2 July 2021 was insufficient for the ICAC to consider and evaluate the applicant's response. I am not satisfied that an inference can be drawn from the timing of these events that the ICAC did not consider and evaluate the applicant's response or that the ICAC had predetermined the form in which the IR was to be delivered. By 9 June 2021, the ICAC had conducted a reasonably lengthy investigation so that the evidence gathered by the ICAC relevant to the matters under investigation would have been reasonably fresh in the memory of the ICAC. It would not be surprising that the ICAC would be familiar with the issues and able to quickly assess the applicant's response. The period of time which elapsed was not such as to reasonably found an inference that the ICAC was acting in bad faith by predetermining the outcome of the investigation or the form that any reports would take.
• [110] It was further submitted by the applicant that at the time the ICAC was considering the applicant's response he was finalising reports in at least three other "substantial investigations", and dealing with "internal scandals". In support of that submission, numerous press clippings were provided with a view to demonstrating that Mr Fleming was subject to considerable criticism in his performance as ICAC in the first half of 2021. No inference can reasonably be drawn from the fact that Mr Fleming's performance as ICAC was subject to criticism that a significant proportion of his time and the resources of his organisation were directed towards addressing those criticisms. There is simply no evidence on this issue. In addition, there is no evidence as to the stage that other investigations in which Mr Fleming had an interest had reached in June 2021, so that no inference can reasonably be drawn to the effect that Mr Fleming had inadequate time to consider the applicant's response before publishing his reports.
• [111] A further complaint made by the applicant is that the ICAC breached his obligations under the ICAC Act by including in the PS adverse findings made against the applicant and contained in the IR. The applicant's submission on this issue relies primarily upon consideration of the text of s 55 of the ICAC Act (governing the publication of a PS) and a comparison between the text of that section and that of s 50 of the ICAC Act (governing the production of an IR). The two provisions are set out below:
  1. Investigation report

(1) The ICAC may make a report (an investigation report) on an investigation to a responsible authority for a public body or public officer whose conduct is the subject of the investigation.

(2) If the ICAC proposes to make an adverse finding about a person or body in an investigation report, the ICAC must give the person or body a reasonable opportunity to respond to the adverse material and include a fair representation of the response in the report.

(a) contain as much information as the ICAC considers appropriate in relation to the subject matter of the investigation to which the inquiry relates; and

(b) include a finding as to whether a person has engaged in, is engaging in or is about to engage in, improper conduct; and

(c) include information as to whether an allegation of improper conduct has been referred to, or in the ICAC's opinion warrants referral to, a referral entity.

An investigation report may contain recommendations - see section 56.

(4) However, an investigation report must not include a finding:

(a) as to whether a person has committed, is committing or is about to commit, an offence or a breach of discipline; or

(b) as to the prospects of success of any current or future prosecution or disciplinary action.

(5) For subsection (4), a finding that a person has engaged, is engaging or is about to engage in improper conduct is not a finding that the person is guilty of or has committed, is committing or is about to commit an offence or a breach of discipline.

(6) For an investigation report made to the Speaker or Deputy Speaker, the Speaker or Deputy Speaker must table a copy of the report in the Legislative Assembly on the next sitting day after the Speaker or Deputy Speaker receives the report.

(a) for a public body or public officer other than a minister or an MLA:

(i) an entity having authority to deal with one or more matters relating to improper conduct the subject of the investigation to which the report relates; or

(ii) an entity whose functions include making future decisions in the public interest that may be better informed by receipt of the investigation report; or

(b) for a minister or an MLA other than the Speaker - the Speaker; or

(c) for the Speaker - the Deputy Speaker.

(1) This section applies in relation to a particular matter that the ICAC is dealing with or has dealt with, including a matter the ICAC has referred to a referral entity.

(2) The ICAC may make a statement in relation to the matter for any of the following purposes:

(a) to provide information about action taken or that may be taken by the ICAC in relation to the matter;

(b) to indicate that it would be inappropriate for the ICAC to comment on the matter;

(c) to refuse to confirm or deny anything in relation to the matter;

(d) to seek evidence in relation to the matter in the course of preliminary inquiries into, or an investigation of, the matter;

(e) to provide information about a referral, including the outcome of the referral;

(f) to address public misconception about a person or issue of which the ICAC has particular knowledge;

(g) to request the Legislative Assembly to authorise the publication, or disclosure to the ICAC, of information or an item that is or may be the subject of parliamentary privilege.

(3) The ICAC may make a public statement, in a manner determined by the ICAC, to:

(a) the public at large; or

(b) a section of the public; or

(c) a particular person or body.

• [112] The starting point in understanding the applicant's submission on this issue is that material obtained by the ICAC in the course of an investigation is generally confidential. Section 145 of the ICAC Act creates an offence of disclosing information obtained in the course of performing functions connected with the administration of the ICAC Act. There are a number of circumstances specified in the ICAC Act in which that offence is not committed.[68] Publication of the IR to the responsible authority is specifically permitted by the terms of s 50(1). The terms of s 55(2) permit the making of a PS for defined purposes. The publication of confidential information obtained in the course of an ICAC investigation in a PS for a purpose other than that permitted by s 55(2), the applicant submitted, would ordinarily involve a contravention of the provisions of the ICAC Act. The applicant pointed to the fact that s 55 does not contain a provision the equivalent of s 50(2), requiring the ICAC to give procedural fairness to a person about whom adverse material was to be included in a PS. She submitted that the reason for this is that "on no sensible view of the statutory purposes set out in s 55(2), would there be occasion to make an otherwise unpublished adverse finding about a person". The point made by the applicant is that s 55 does not permit the ICAC to include in a PS material that would be otherwise confidential under the provisions of the ICAC Act, and in particular to reveal that the ICAC has made adverse findings against an individual.
• [113] The respondents submitted that there is no express prohibition found in the ICAC Act on the ICAC making public statements containing adverse findings. On the contrary, they submitted, the publication of the PS was expressly authorised by s 55, and the manner, form and content of the PS are not dictated by the section. To the extent that the section deals with the form or content of a PS, the respondents submitted, it provides that the ICAC may make a PS "in a manner determined by the ICAC".[69] It might also be argued that the ICAC Act anticipates that the content of a PS will be determined by the findings made in the course of an investigation, and set out in an IR, in which case the person about whom the findings have been made will already have had the opportunity to be heard in response to any adverse findings.
• [114] It is not necessary for me to finally determine whether the ICAC was permitted by the terms of the ICAC Act to make the PS in the form in which he did. The interpretation of s 55 urged by the applicant is one which is open on the text of the provision, but the submissions raised by the respondents are also weighty. The fact that the question of statutory interpretation raised by the applicant has arguments supporting both the position taken by the applicant and that taken by the respondents makes it difficult to draw any inference of bad faith on the part of the ICAC from any finding that the position taken by the applicant is correct. The interpretation taken by the respondents is not so untenable (if it were determined to be incorrect) as to permit an inference to be reasonably drawn that the ICAC was acting in bad faith in adopting that interpretation. In addition, there is evidence that the form and content of the PS in the present case conformed to that of other public statements made by the ICAC in other cases. The fact that the form and content of the PS in the applicant's investigation conformed to that made by the ICAC in other investigations strongly suggests that the ICAC's interpretation of the relevant provisions of the ICAC Act was one which permitted him to publish a PS in that form and with that content. A belief by the ICAC that he was acting in accordance with the provisions of the ICAC Act in publishing the PS relating to the investigation into the applicant's conduct is inconsistent with the ICAC having acted in bad faith.
• [115] One submission made by the applicant under this head of her submissions does appear to have substance as a complaint that the ICAC denied her procedural fairness in the publication of the PS. In the PS published on 5 July 2021, the ICAC stated that the applicant had misapplied school funding for "motor vehicle hire for personal shopping" and "quality dining and fast food purchases for herself, family members and friends". No such findings were specifically referred to in the draft IR on which the applicant was given an opportunity to comment. As such, this would appear to be a breach of the ICAC's obligation to provide procedural fairness to the applicant. That being the case, the question remains: can it reasonably be inferred from this failure that Mr Fleming was acting in bad faith? In my opinion it cannot. The applicant was well aware that the draft IR contained criticism of her use of School funds, and that some of the transactions criticised in the draft IR related to the hiring of motor vehicles and the use of School funds on "Food/Drink/Hospitality". The applicant was also subjected to questioning by counsel assisting Mr Wild about her use of school funding for motor vehicle hire, accommodation and food purchases, so that the applicant was aware that the ICAC was interested in those issues. That fact, of course, did not relieve the ICAC of the necessity to identify those findings in the draft IR and to give the applicant an opportunity to respond. In isolation, the failure of the ICAC to afford the applicant procedural fairness on this issue does not support a reasonable inference that the ICAC was acting in bad faith.

• [116] The third way in which the applicant alleged that bad faith on the part of the ICAC was demonstrated is that publication of the PS "was motivated by extraneous personal and institutional reasons including irrelevant time-measures, and pre-judgment of the outcome of the investigation".
• [117] The applicant referred to evidence that on 31 January 2021 Mr Fleming publicly promised the release of five reports that "will garner a lot of public interest" before he left office in July 2021. At that point in time, the ICAC had not yet given the applicant notice of his intention to make adverse findings against her or given her any opportunity to respond to any adverse material. The applicant referred to the following circumstances as, in combination with the above statement, raising an inference that as at 31 January 2021, Mr Fleming had determined to make adverse findings against her:

(a) after 31 January 2021, the ICAC released five public statements before Mr Fleming left office;

(b) it was the practice of Mr Fleming to release public statements where adverse findings were to be made, but not otherwise.

• [118] The same evidence was relied upon by the applicant as demonstrating that Mr Fleming had adopted, at least by 31 January 2021, inflexible timeframes for the completion of his investigation relating to the conduct of the applicant. The applicant submitted that further support for the submission that Mr Fleming had adopted an inflexible timetable for the completion of the investigation and publications of reports is found in the following material:

(a) the refusal by Mr Fleming on 28 May 2021 to grant the applicant an extension of time in which to provide a response to the draft IR;

(b) the timing of the release of the PS on 5 July 2021, being Mr Fleming's last day in office; and

(c) the "unsatisfactory way" in which the PS addressed the applicant's response and the lack of any evidence of investigation of the matters raised in that response.

• [119] The evidence of Mr Fleming's public statement on 31 January 2021 was contained within a press article from the NT News dated 31 January 2021. Caution must be exercised in determining what statements contained within that article were made by Mr Fleming, and what statements are the reporter's summary or understanding of things said by Mr Fleming in the course of the interview. Some statements attributed to Mr Fleming in the article are in inverted commas, presumably to identify those statements as a verbatim representation of statements made by Mr Fleming. The statement that there are five reports that "he will hand down" does not purport to be a verbatim representation made by Mr Fleming. The statements said to be a verbatim account of what was said by Mr Fleming (relevant for present purposes) are:

(a) "There are five reports that we should hand down before I leave, and there are another three matters that may be coming close to completion before I leave as well"; and

(b) "The five matters will garner a lot of public interest".

• [120] As the respondents correctly observe, the verbatim statement attributed to Mr Fleming did not commit to providing any reports. In any event, and perhaps more importantly, the applicant cannot demonstrate that the investigation into her conduct was one of the matters to which Mr Fleming referred. The statements attributed to Mr Fleming in the news article cannot reasonably raise an inference that Mr Fleming had pre-judged the outcome of the investigation into the applicant's conduct.
• [121] In addition, a premise of the reasoning in this submission is that it was the practice of Mr Fleming to make a public statement where findings of improper conduct were made and not otherwise. The basis for this premise is found in the affidavit of Thomas Hutton affirmed on 3 March 2022, in which Mr Hutton said:

I am informed by the Deputy Chief Executive Officer of the Office of the Independent Commissioner Against Corruption of the Northern Territory and believe that it was a practice of the former Independent Commissioner Against Corruption to make a public statement where findings of improper conduct were made.

• [122] There is no reason linguistically or logically why this statement of a practice of Mr Fleming in cases where findings of improper conduct were made should be read as excluding the possibility of Mr Fleming making a public statement where no findings of improper conduct were made. For example, to say "I always go to the shop on Tuesday" cannot reasonably be understood as asserting that I only go to the shop on Tuesday.
• [123] The applicant submitted that the fact the PS makes no reference to any investigation or enquiry undertaken by the ICAC to verify or disprove any of the matters set out by her in her response to the draft IR, together with the failure of the respondents to adduce any evidence of such investigations in the present application, support the inference that the investigation against her was prejudged and that Mr Fleming had adopted an inflexible timetable to conclude the investigation. As noted above, there was no obligation cast on the ICAC by the provisions of the ICAC Act or otherwise to set out his reasoning for reaching his conclusions in the PS (or in the IR). This submission also overlooks the fact that the applicant has the obligation to satisfy me that there are substantial reasons for believing that Mr Fleming acted in bad faith.
• [124] The final matter raised by the applicant under this head of her application is that the "publication of the public statement was intended...to cause a sensation". The applicant submitted that Mr Fleming had resigned from his office amid criticism of his performance and that the publication of a "sensationalist report making serious allegations against a named individual" could be seen as part of a strategy to divert the media away from internal scandals within his office and from the personal criticisms made against him, and to demonstrate positive performance outcomes by him in his office. In my opinion, this reasoning is based upon speculation rather than a logical process. It could not reasonably be inferred from the material put before this Court that Mr Fleming engaged in a deliberate process of attempting to divert criticism of his performance in the office of the ICAC by designedly publishing reports falsely finding the applicant had engaged in misconduct for the purpose of deflecting criticism of himself in his office.

• [125] Considering all the evidence together, I am not satisfied that there are substantial reasons to believe that Mr Fleming acted in bad faith in the conduct of the investigation into the applicant or in the preparation or publication of the IR or the PS. The application for leave under s 155(4) of the ICAC Act is refused.
• [126] I will hear the parties on whether further or ancillary orders should be made.

[2] Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 345; Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258 at [225].

[3] [2020] FCA 1198 at 306 [58]- [66].

[4] See generally, Pharm-A-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361; 267 ALR 494 at [57]- [70] and the cases cited therein.

[5] Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 75 NSWLR 503 at [82].

[6] Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348.

[7] Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348.

[8] See generally, Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.

[9] [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J.

[10] [2017] HCA 10; (2017) 261 CLR 265 at [24] per Gaegler J.

[11] Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 at [4] per Kiefel and Bell JJ, at [24] per Gaegler J and at [100] per Gordon J.

[12] Director of Public Prosecutions v Losurdo [1998] NSWSC 16; (1998) 44 NSWLR 618 at 622G.

[13] Macquarie Dictionary Eighth Edition (2020).

[14] [2007] NSWSC 1247; (2007) 177 A Crim R 517.

[15] Abdel-Hady v Freund [2007] NSWSC 1247; (2007) 177 A Crim R 517 at [31]- [34] per Rotham J.

[16] Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-363 per Dixon J.

[17] [1966] HCA 21; (1966) 115 CLR 266.

[18] Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303 per Kitto J.

[19] [1990] HCA 26; (1990) 170 CLR 104 at 115-116.

[20] [1990] HCA 26; (1990) 170 CLR 104 at 116.

[21] [2021] FCA 1089.

[22] Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 at [821]- [822] per White J.

[23] Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 at [823].

[24] [1993] FCA 408; (1993) 44 FCR 290.

[25] Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290 at 298.

[26] Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290 at 299.

[27] [1993] FCA 408; (1993) 44 FCR 290 at 300.

[28] (1998) 192 CLR 557.

[29] (1936) 13 F Supp 776 at 780.

[30] Cannane v J Cannane Pty Ltd (1998) 192 CLR 557 at 596 per Kirby J.

[31] [2005] HCA 46; (2005) 223 CLR 660.

[32] Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 at 674 [49]- [51].

[33] Cannane v J Cannane Pty Ltd (1998) 192 CLR 557 at 596 per Kirby J.

[60] Public Service Board of New South Wales v Osmand (1986) 159 CLR 656; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.

[61] [2008] SASC 159.

[63] [2016] NSWSC 1376; (2016) 338 ALR 234 at [84] per Hammerschlag J.

[64] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 93.

[65] Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 at [87]- [89] per Hammerschlag J.

[66] (1990) 20 ALD 214.

[67] (1990) 20 ALD 214 at 218-219.