Criminal Justice Commission, Re [1998] QSC 234 [2000] 1 Qd R 581

346bl IN THE SUPREME COURT OF QUEENSLAND O.S. No. 8438 of 1998 Brisbane Before Mr Justice Muir [In the Matter of Julie Maree Dick] IN THE MATTER OF The Criminal Justice Act 1989 and IN THE MATTER OF An Application by the Criminal Justice Commission and IN THE MATTER OF Julie Maree Dick, the Parliamentary Criminal Justice Commissioner REASONS FOR JUDGMENT - MUIR J. Judgment delivered 2 November 1998 CATCHWORDS: STATUTORY INTERPRETATION - powers of Parliamentary Criminal Justice Commissioner under s.118U(5) of Criminal Justice Act 1989 (Qld) - whether that section prevails over more general s.118R - construction of s.118U(5) Criminal Justice Act - extent of Parliamentary Criminal Justice Commissioner's powers of investigation in relation to records of Criminal Justice Commission enquiry - whether Commissioner entitled to exclude public from hearings conducted under Commission of Enqiry Act 1950 (Qld) - Commission of Enquiry Act s.16A, Criminal Justice Act ss.118W, 118Y and 118Z. Counsel: Mr W. Sofronoff QC and with him Mr G. Newton for the applicant Solicitors: Hearing date: Mr R.R. Douglas QC for the respondent Parliamentary Criminal Justice Committee Mr Parrott for the respondent Parliamentary Criminal Justice Commissioner McCullough Robertson for the applicant Crown Solicitor for the respondent Parliamentary Criminal Justice Committee 8 October 1998 -- 1 of 22 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 8438 of 1998 Brisbane Before Mr Justice Muir [In the Matter of Julie Maree Dick] IN THE MATTER OF The Criminal Justice Act 1989 and IN THE MATTER OF An Application by the Criminal Justice Commission and IN THE MATTER OF Julie Maree Dick, the Parliamentary Criminal Justice Commissioner REASONS FOR JUDGMENT - MUIR J. Judgment delivered 2 November 1998 The Criminal Justice Commission (the "CJC"), in an application commenced by originating summons, seeks the following relief - 1. a declaration that the Parliamentary Criminal Justice Commissioner ("the Commissioner") is not empowered to investigate the matters referred to her by the letter from the Parliamentary Criminal Justice Committee ("the Committee") dated 5 May 1998; 2, a declaration that the Commissioner's only power with respect to the records of the CJC inquiry, as defined in s.118U( 5) of the Criminal Justice Act 1989 ("the Act"), is to review them with a view to determining whether they disclose an investigation matter that should be investigated by an appropriate agency within the meaning of s.118U(3); -- 2 of 22 -- 2 3 2 3. a declaration that the Commissioner is not entitled to exclude the public from hearings conducted by her under the Commissions of Enquiry Act 1950 for the purpose of investigation by her under s.118R of the Act otherwise than in accordance with s.16A of the Commissions of Enquiry Act 1950. Preliminary matters At the commencement of the hearing of the application Mr Parrott, who appeared for the Commissioner, informed me that his instructions were that the Commissioner would abide the order of the court. He sought leave to withdraw and to be heard only on the question of costs. Mr Douglas Q.c., who appeared for the Committee, informed me that his client had no particular interest in arguing the third question raised on the summons. He pointed out that that was a matter which was of particular concern to the Commissioner. In the course of the hearing I intimated that it was undesirable that such a point be determined by me without the benefit of argument by a contradictor. I requested that the Attorney-General be informed that I would entertain further submissions on this point should he wish to make any. I received written submissions from the Commissioner on 9 October 1998. No submissions were made on behalf of the Attorney-General. Whether or not is appropriate to make the declarations sought in paragraphs 1 and 2 of the summons depends on the construction of s.118U(5) of the Act. However, before going to the provisions of the Act it is useful to discuss the background against which the declarations are sought. By Order in Council dated 7 October 1996, a copy of which is appendix one to these reasons, the Honourable Peter Connolly QC and the Honourable Kevin Ryan QC were appointed commissioners to inquire into matters which included - "1. To examine and make recommendations in relation to the future role, structure, powers and operations of the Criminal Justice Commission established under the Criminal Justice Act 1989; -- 3 of 22 -- 5 3 2. Without limiting in any manner the generality of paragraph 1:- (a) To examine and review whether the functions and responsibilities of the Criminal Justice Commission set out in the Criminal Justice Act 1989 remain appropriate and provide a proper legislative framework for the future operations of the Criminal Justice Commission having regard to:- (i) the original purpose for which the Criminal Justice Commission was established; (ii) the extent to which such original purpose has been fulfilled; (d) To examine and review whether the Parliamentary Criminal Justice Committee established under Part 4 of the Criminal Justice Act 1989 is the most appropriate model for monitoring and reviewing the operations of the Criminal Justice Commission, or whether there are other or additional accountability measures that should be put in place; ( e) To examine and review when a periodic review or audit of the operations of the Criminal Justice Commission should be undertaken; (i) To examine all the events, facts and circumstances involved and surrounding, or relevant to the allegations which are contained in the Hansard Reports of Proceedings for the Legislative Assembly of Queensland of 13 September 1996 at pages 2915-2918." The allegations referred to in para.2(i) of the Order in Council became known as "the Grice allegations". In essence, they are that on a date in 1994 at the Parkroyal Motel in Brisbane Mr Le Grand, the Director of the Official Misconduct Division of the Criminal Justice Commission, communicated confidential information from a CJC operation known as "Operation Wallah" to Mr Nicholls, knowingly set up an inquiry by Mr Hampson QC into the leak for which he himself was responsible and perjured himself before Mr Hampson. The inquiry which, for convenience, I will call the "CJC inquiry", commenced sittings in October 1996. On 5 August 1997 Mr Justice Thomas enjoined Messrs Connolly and Ryan from proceeding further with the inquiry. By 30 June 1997 the cost of the inquiry was $5,375,900. -- 4 of 22 -- 6 7 8 9 4 Act No. 161 of 1997 inserted in the Criminal Justice Act 1989 Part 4A which made provision for the office of Parliamentary Criminal Justice Commissioner. The most significant power and obligation of the Commissioner for present purposes was that provided for in s.118U. It required the Commissioner to take possession of the records of the CJC inquiry and to review them with a view to determining if they disclosed any matter that should be investigated by an "appropriate agency". On 5 May 1998 the Committee requested of the Commissioner, in writing, pursuant to: s.ll'8R(2)(b) of the Criminal Justice Act that "you investigate the complaint made against Mr Le Grand or the concerns expressed about his conduct; and the conduct or activities of the CJC in relation to the matter, including: {there was then a list of particular matters which the Commissioner was requested to investigate ]" s.1l8R(2)(c) of the Act, "you investigate the allegations against Mr Le Grand that he made an unauthorised disclosure of information or other material that under the Act is to be treated as confidential." In a letter dated 24 July 1998 Messrs McCullough Robertson, the CJC's solicitors, wrote to the Commissioner contending, in effect, that the Commissioner's powers in relation to matters the subject of the CJC inquiry were limited to the matters expressly provided for in s.118U The Commissioner rejected that contention. The relevant statutory provisions Section 118R- ~<Functions of parliamentary commissioner 118R.(1) The parliamentary commissioner has the functions given to him or her under this or another Act. -- 5 of 22 -- 5 (2) The parliamentary commissioner has the functions, as required by the parliamentary committee, to do the following - (a) conduct audits of records kept by the commission and operational files and accompanying documentary material held by the commission, including current sensitive operations, including for the purpose of deciding the following - (i) whether the way the cormrusslOn has exercised power is appropriate; (ii) whether matters under investigation are appropriate for investigation by the commission or are more appropriately the responsibility of another law enforcement agency; (iii) whether registers are up to date and complete and all required documentation is on the file and correctly noted on the register; (b) investigate, including by access to operational files of the commission to which the parliamentary committee is denied access, complaints made against, or concerns expressed about, the conduct or activities of- (i) the commission; or (ii) a commissioner; or (iii) an officer of the commission; or (iv) a person engaged by the commission under section 66; ( c) independently investigate allegations of possible unauthorised disclosure of information or other material that, under this Act, is to be treated as confidential; (h) perform other functions the parliamentary committee considers necessary or desirable." Section IISU "Parliamentary commissioner to have custody of and deal with records of the CJC inquiry 118U.(1) Possession, custody and control of all records of the CJC inquiry vest in the parliamentary commissioner. (2) The parliamentary commissioner must secure the records in the parliamentary commissioner's possession, custody or control so that only persons who satisfY the parliamentary commissioner that they have a legitimate need of access to the data and the records are able to have access to them. (3) The parliamentary commissioner must review the records with a view -- 6 of 22 -- 11 12 6 to deciding if the records disclose any matter that should be investigated by an appropriate agency (an 'investigation matter'). (4) If the parliamentary commissioner considers the records disclose an investigation matter, the parliamentary commissioner must refer the matter, and give access to records about the matter, to the appropriate agency for investigation. (5) In this section- 'appropriate agency' means the parliamentary committee, the commission, the Queensland police service, another law enforcement agency, the parliamentary commissioner for administrative investigations, the Auditor-General or other agency the parliamentary commissioner considers appropriate. 'CJC inquiry' means the commission within the meaning of the Commissions of Inquiry Act 1950 constituted by Order in Council of 7 October 1996 published in the gazette of that date at pages 475 and 476." Section 118W. "Parliamentary commissioner has powers under Commissions of Inquiry Act 1950 118W. For an investigation under this part- (a) the parliamentary commissioner has and may exercise all the powers, rights and privileges under the Commissions of Inquiry Act 1950, of a commission and the chairperson of a commission within the meaning of the Act; and (b) the Commissions of Inquiry Act 1950 applies to the parliamentary commissioner, the investigation and the subject matter of the investigation as if the matter were one into which a commission constituted by the parliamentary commissioner was appointed to make an inquiry under that Act." Section 118Z. "Investigations closed to the public unless authorised by parliamentary committee 118Z.(1) An investigation by the parliamentary commissioner is to be closed to the public unless the parliamentary committee authorises the investigation to be open to the pUblic. (2) In considering whether the investigation should be open to the public, the committee must have regard to- -- 7 of 22 -- 13 15 16 18 7 (a) the subject matter of the investigation; and (b) the nature of the information expected to be disclosed. (3) A decision of the parliamentary committee to authorise the investigation to be open to the public must be supported by all or a majority of the committee, being a majority other than one consisting wholly of members of the political party or parties in government in the Legislative Assembly." The CJC's submission on the construction of s.11SU Section 11SU is a specific expression of the requirements of the Parliament in relation to the CJC inquiry. As such, it excludes the operation of the more general provisions of s.llSR. The effect of s.llSU is to entrust the task of determining whether an investigation is warranted to an independent person, the Commissioner. The consequence of the Committee's action is that instead, an investigation had been dictated by a political body. There is a critical distinction between s.llSU and s.llSR. Under s.llSU the Commissioner is independently required by statute to conduct and exercise a judgment and to act in accordance with that judgment. Under s.llSR she can only act "as required" by the Committee. Her judgment may be that no investigation is warranted. The requirement of the Committee has been to prevent the Commissioner ever giving effect to such a judgment. An investigation under s.llSR involves the use of powers of a commissioner of inquiry. However, none of the "appropriate agencies" defined in s.llSU includes persons possessing such powers. This is consistent with the intention of Parliament expressed in the debates not to re- enliven a commission of inquiry. The effect of the Committee's requirement is forever to preclude the Commissioner from conducting a review which, had it been conducted, might have determined that there was no matter to be investigated. That is to say, she has been required to investigate in circumstances where, had the statute been followed, she might have determined that there was no investigation matter disclosed. -- 8 of 22 -- 19 20 21 22 8 !fit were possible for the Committee to require an immediate investigation of the matter arising out the CJC inquiry, that would render s.llSU nugatory. There would be no purpose whatsoever in the Legislature's requirement for the Commissioner to review the records to determine whether a third party should investigate any matter arising therefrom. Section 14B of the Acts Interpretation Act 1954 (Qld) permits consideration to be given to extrinsic material capable of assisting in the interpretation of the legislation, including the votes, proceedings and debates in the Legislative Assembly. The debate on the Criminal Justice Legislation Amendment Bill is of particular significance. The purpose of s.llSU was revealed by the Attorney-General, who introduced the Bill, and it is his remarks which are directly relevant. However, in order to place the words of the Attorney-General into context, it is necessary to consider the remarks of the then Shadow Attorney-General, the Hon M Foley MLA, (to whose statements the Attorney-General's statements were directed) who said, inter alia: "This is the ultimate 'get square' clause. We are seeing something that has been slipped in by the Minister, not involved in the public consultation, and it is a device in order to reincarnate ConnollylRyan and to continue the vendetta. It provides that the parliamentary commissioner will trawl through all the records. Members should keep this in mind: in doing this, the Government will effectively be overriding the finding of the Supreme Court, which found that that material was tainted with bias. That is what the Government is doing. It is using the blunt instrument of legislation to override the finding of the Supreme Court to reincarnate ConnollylRyan and to maintain a desperate vendetta. This Government is making the CJC pay a very high price for its audacity in investigating Premier Borbidge and Police Minister Cooper over that secret memorandum of understanding with the Police Union. This is not about the politics of fighting corruption, this is about the politics of fighting the CJc. It is a disgrace. It is an attempt to use the parliamentary commissioner, which was set up originally as a watchdog, and turn it into a reincarnation of the ConnollylRyan commission. The Opposition will be doing all within its power to oppose this provision. " The Attorney-General, the Hon Denver Beanland MLA, responded: -- 9 of 22 -- 9 "Clause 11SU(4) states very clearly- 'If the parliamentary commissioner considers the records disclose an investigation matter, the parliamentary commissioner must refer the matter, and give access to records about the matter, to the appropriate agency for investigation. ' It does not say that we can go out and start having royal commissions or anything else. It sets that out very clearly. I think that the Government has been most careful in this, despite the Opposition's attempt to whip up this issue. The clause states that the parliamentary commissioner has to go through the records ... Ifthe member read that clause carefully and the sections that he is endeavouring to delete by his amendment, he would see that this Government is not trying to bring back the ConnollylRyan commission of inquiry no such thing. However, I certainly want to ensure that the material that has been submitted in good faith is processed and someone has a look at that to see whether there are issues of complaint that need to be followed up and whether there are legitimate issues that need to be followed through ... For the record, I want to make it very clear that the Government is not proposing anything of the sort to reincarnate, or to use any other terminology, the ConnollylRyan commission. Far from it! We want to deal with the complaints of honest Queenslanders. The clause states that if the parliamentary commissioner considers the records disclose any matter that should be investigated, then he or she is then to refer it to an appropriate agency for investigation. The parliamentary commissioner is not to investigate it: he or she is to refer it to an appropriate agency. So I think that there are appropriate checks and balances in place." (at 4029). (emphasis added) This position is reinforced when one looks at the statements of Mrs Cunningham, the Independent Member for Gladstone whose support was vital to the enactment of the clause. She said, inter alia: "Fundamental to the credibility of the process will be the person who is appointed. I hasten to acknowledge that that person will be appointed by the majority of a bipartisan group. Again, given the accusations of bias and the accusations about people being inappropriately appointed to positions of such power, the validity and the value of the process will be reflected in the calibre of the person who is appointed to the position. The only way that a valid result will occur is if the parliamentary commissioner deals appropriately and objectively with the evidence and passes on issues of concern without political malice or political bias to the appropriate bodies, again for objective investigation. The people who gave evidence want that; it is the reason that they came forward. The bulk of the people who attended the ConnollylRyan inquiry were after justice. -- 10 of 22 -- 24 25 26 27 10 I will be supporting these clauses, not because all of my concerns have been answered but because I believe that there are sufficient numbers of people in the community who would like to see the evidence that was given to the ConnollylRyan inquiry reviewed, particularly if it involves incidents of paedophilia or other serious activity that should be referred to an appropriate agency. I make those commitments to the Minister in all genuineness. On the findings of the Supreme Court, a commissioner of one commission of inquiry was declared to be biased. It would be a tragedy for democracy in this State if that were to occur a second time." (at 4030). Submissions on behalf of the Committee on the construction of s.l1SU The generalia specialibus non derogant canon of construction applies only where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation. A legislative instrument must be construed, prima facie, on the basis that its provisions are intended to give effect to harmonious goals and with a view to giving meaning to every word of a provision. There is no real con:t1ict between sS.llSR and 11SU. The role of the Commissioner under the former is to investigate matters referred to her by the Committee. Under the latter, she is to review the records of the CJC inquiry and make a decision pursuant to the section. Section 11SR is "the leading provision". There is no reason why the Committee cannot reach its own independent decision to refer a matter to the Commissioner even though some aspect of that referred includes matters the subject of her review under section 11SU Section 2(b )(iii) of the Act provides, inter alia- "The objects of this Act are - (b) to provide for the establishment of - (iii) a parliamentary commissioner to exercise certain powers at the request of the parliamentary committee." That is the overriding object of the Act and the actions of the Committee in making their request -- 11 of 22 -- 28 29 11 of 5 May 1998 fits clearly within that object. Applicable principles of construction The submissions on behalf of the CJC rely heavily on the following statement of principle by Gavin DuffY CJ and Dixon J and Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1, at 7 - "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restricts which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power." That passage was cited with approval by Gummow J, with whose reasons the other members of the Court agreed, in David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1994-1995) 184 CLR 265. The passage was also cited with approval by McHugh J in Saraswati v The Queen (1990-1991) 172 CLR 1 at 23 -24. After setting out the above passage, McHugh J's judgment continues- "Their Honours went on to say [(1932) 47 CLR at p. 8]: 'An affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision. ' The principle that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specified power has been recognised in this Court on other occasions: see R. v. Wallis (1949) 78 CLR 529, at pp. 550-551; Leon Fink Holdings Pty. Ltd v. Australian Film Commission (1979) 141 CLR 672, at p. 678. In Leon Fink Mason J. said: 'It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. '" In Downey v Trans Waste Pty Limited (1990-1991) 172 CLR 167 the Court considered the relationship between the specific provisions of sub-ss. (5), (6) and (7) of s.34 of the Industrial -- 12 of 22 -- 30 12 Relations Act 1979 (Vict.) on the one hand and the more general provisions ofs.37(8) on the other. Mason CJ, Deane, Gaudron and McHugh JJ concluded that sub-ss. (5), (6) and (7) of s.34 of the Industrial Relations Act constituted a code which exclusively vested in a relevant conciliation and arbitration board the primary jurisdiction under the Act to entertain proceedings of the kind contemplated by those subsections. It was observed in the j oint judgment at 171-172 - "The provisions of sub-ss.(5), (6) and (7) of s.34 manifest, in our view, a legislative intent that they should constitute an exhaustive definition of the primary jurisdiction under the Act to grant relief to an employee against his or her actual or threatened dismissal. It is, for example, plain that it would not have been the legislative intent that the express limitation (in sub-s.(6)) on the amount of pecuniary compensation which can be awarded by way of such relief should be rendered nugatory by the existence of a general unlimited power in the Commission or a Board to grant relief in such a case. It is equally plain that it would not have been the legislative intent that the express requirement (in sub- s.(7)) that an application for relief be brought by or on behalf of a dismissed employee 'within 4 business days after the day on which his employment is terminated' could be avoided by resort to some general primary jurisdiction conferred by some other provision of the Act. In these circumstances, the operation of any general provision of the Act is repugnant to the special scheme established by sub-ss. (5), (6) and (7) to the extent to which that general provision would confer primary jurisdiction upon the Commission or upon a Board to grant relief to an employee against his or her actual or threatened dismissal on the ground that that dismissal was or would be harsh, unjust or unreasonable. To that extent, the operation of any such general provision is excluded by those sub- sections. " Dawson J reached the same result by a different route. He said at 180-181 - "In my view, the specific provision in s.44(4) for the reference of an industrial dispute excludes, in relation to an industrial dispute, the more general provision contained in s.37(8) for the referral of an industrial matter. 'While an industrial matter includes an industrial dispute, the more specific provisions relating to the referral of an industrial dispute, which are contained in s.44, must, as a matter of statutory construction, prevail. Where there is a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter, as a matter of general construction the latter must prevail. As Deane J. pointed out in Refrigerated Express Lines (AJasia) Pty. Ltd v. Australian Meat and Livestock Corporation [No.2] (1980) 44 F.L.R. 455, at p. 469; 29 A.L.R. 333, at p. 347: 'Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special -- 13 of 22 -- 31 13 provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. ' In Statutory Interpretation in Australia (4th ed) the learned authors state in para. 4.24- "The generalia specialibus approach should only be called in aid 'where there are two inconsistent provisions which cannot be reconciled as. a matter of ordinary interpretation': Purcell v Electricity Comm of New South Wales (1985) 60 ALR 652 at 657: where 'contrarety is manifest': Reseck v. FCT (1975) 133 CLR 45 at 53." In Project Blue Inc v Australian Broadcasting Authority (1998) 72 ALJR 851 it was said in the majority judgment - "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, 'in the context of the legislation read as a whole'. In Commissioner for Railways (NSW) v Agalianos, (1955) 92 CLR 390 at 397. Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is con$tructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Ross v The Queen (1979) 141 CLR432 at 440, per Gibbs J. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. See Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135 at 161, per Cooper CJ;Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574, per Gummow 1. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and -- 14 of 22 -- 33 34 35 36 37 14 which must give way to the other' . Institute of Patent Agents v Lockwood [lS94] AC 347 at 360, per Lord Herschell LC. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme." Conclusions on the construction of s.118 U Although I acknowledge the force of many of the submissions made on behalf of the CJC I am unable to accept them, at least in any unqualified way. In my view, s.llSU is a provision directed more to the disposition and use of the records of the CJC Inquiry than to confining the ability of the Committee or the Commissioner to enquire into the matters the subject of the inquiry. An analysis of the sub-sections of s.llSU reveals the following - subs. (1) is concerned with possession, custody and control ofCJC inquiry records; subs. (2) is concerned with the security of such records; subs. (3) requires the Commissioner to review such records with a view to deciding if "the records disclose" a matter which should be investigated; subs. (4) requires the referral by the Commissioner to the appropriate agency of any matter disclosed and the giving of access to the records by the Commissioner to the appropriate agency. "Investigation matters" are not limited to those within the terms of reference of the CJC Inquiry. It is implicit in subs(2) that the records may be used for purposes other than the Commissioner's review under subs(3). Section 11SV requires the delivery up to the Commissioner of all CJC inquiry records not already in her possession. Clearly, s.11SU does not limit, expressly, the powers of either the Commissioner or the Committee in respect of matters within the terms of reference of the CJC inquiry. If it is to have that result it must be because it manifests an intention that any of the matters within the terms of -- 15 of 22 -- 38 39 15 reference of the CJC inquiry be further investigated, if at all, only by the mechanism established by s.118U. In other words, s.118U must manifest a legislative intent that its provisions constitute an exhaustive statement of the powers ofthe Commissioner and the Committee in relation to the matters within the CJC inquiry terms of reference. I am unable to discern any such legislative intention in the text of the section. As appears from the above analysis, the primary concern of the section is with the records of the CJC inquiry. There are two distinct elements of that concern. One is to ensure that the Commissioner obtains possession of the records and secures them. The other is to ensure that the benefit of the information gathered or brought into existence by the CJC inquiry Commissioners and their staff not be lost to the community. To this end, the Commissioner is directed to review the records and make references to "the appropriate agency for investigation" . It is true that the section contemplates that the Commissioner's investigative role is to be of a preliminary and limited nature but that role is in respect of the CJC's inquiry's records, not its terms of reference. Support for this conclusion is to be found in the fact that "investigation matters" are not restricted to matters within the CJC inquiry's terms of reference. There are other considerations which point in the same direction. One is, what seems to me to be, the improbability of the legislature'S intending to restrict the power of the Committee under s.188R (in relation to matters within the terms of reference) by a statutory provision (s.118U) which requires the Commissioner to deal with the records of the CJC inquiry in a particular manner but which makes no reference to the inquiry's terms of reference. Another such consideration is the scope of the terms of reference of the CJC inquiry. Sub-paragraph 2(i) which relates to the Grice allegations, is but one of the matters referred to in paragraph 2 of the Order in Council. Paragraph 2 commences- "Without limiting in any manner the generality of paragraph 1." -- 16 of 22 -- 41 42 43 16 Paragraph 1 provides - "To examine and make recommendations in relation to the future role, structure, powers and operations of the Criminal Justice Commission established under the Criminal Justice Act 1989;". The applicant's case would be stronger if the terms of reference were more limited. It would then be easier to find a legislative intention to exclude the Committee, through its Commissioner, from re-enlivening the inquiry in whole or in part. But having regard to the terms of reference, can it be supposed that the legislature intended, by enacting s.llSU, to forever prevent the committee from requiring the Commissioner; for example, to "exercise and make recommendations in relation to the future role" ... of the CJC or in respect of its "structure, powers and operations", or to "examine and review" the provisions of the Act referred to in the Order in Council? The parliamentary debate, extracts from which are set out above, provides support for the CJC's argument. However, the parts of the debate on which the CJC relies were directed to the obligations and powers being conferred on the Commissioner by s.llSU. The focus of the debate was not on the powers of the Committee under s.llSR and the extent to which obligations imposed on the Commissioner by operation of that section might impinge on the obligations directly imposed by s.llSU. It was submitted on behalf of the CJC, in effect, that if the Committee retained the power to require immediate investigation by the Commissioner of any matter within the CJC inquiry's terms of reference, s.llSU would be rendered nugatory. It is submitted also that the Commissioner might be precluded from conducting a review which, "had it been conducted, might have determined that there was no matter to be investigated." A related consideration is the possibility that, if the Commissioner is required by the Committee to investigate a matter which might include an "investigation matter" before the Commissioner has fulfilled her obligations -- 17 of 22 -- 45 46 47 17 under s.llSU, it may become more difficult for the Commissioner to determine the existence of "an investigation matter". I regard these as points of substance which give rise to a real question of whether the Commissioner's powers in relation to the records of the CJC inquiry are limited to the matters expressed in s.llSU. On balance, I have concluded that there is no fundamental conflict between s.llSU and the exercise of more general powers in relation to CJC inquiry matters under s.llSR even though the exercise of such powers may involve recourse to the CJC inquiry records by the Commissioner. As I earlier observed, s.11SU does not manifest an intention that the records be used by the Commissioner only for the purposes of a review under s.11SU(3). No direction to or requirement of the Commissioner by the Committee can override the statutory obligations, imposed by s.11SU on the Commissioner, to decide if the records disclose "an investigation matter" and to refer any "investigation matter" so disclosed to "the appropriate agency for investigation". The Commissioner herself is not an "appropriate agency" within the definition of that term. It was submitted by Mr Douglas Q. C. that the Commissioner could conduct an inquiry into an investigation matter by the stratagem of referring a matter to the Committee as the "appropriate agency" which could then require the Commissioner pursuant to s.llSR to carry out the investigation. I consider such a conclusion rather unlikely having regard to the role given the Commissioner by s.11SU(4) of determining the appropriate agency (which cannot be the Commissioner) to which to refer an "investigation matter". The point raised by Mr Douglas' argument is hypothetical for present purposes. The Commissioner has made no relevant determination or referral under s.llSU( 4). However, the conclusion that the legislature did not contemplate that it would be the role of the Commissioner to conduct an investigation into an "investigation matter" does lend support to the CJC's contention. It may be thought incongruous that the Committee have the right under -- 18 of 22 -- 48 49 18 a general provision of the Act to require the Commissioner to conduct an inquiry into a matter which the Commissioner is required under a specific provision of the Act to refer to another agency for investigation. This problem is resolved, to a degree, by recognising the limited role of s.llSU. That role requires specific action to be taken in relation to the CJC records. It does not seek to pose any general restrictions on the powers of the Committee or the Commissioner. It does not follow though that s. 11SU imposes no constraints on the powers of the Committee or the Commissioner. In my view, s.llSU is a specific provision under which the legislature has conferred a power on the Commissioner and in which it has prescribed the mode in which and conditions under which the power is to be exercised. It follows that the Commissioner cannot be given a right or obligation under s.llSR to conduct an investigation of any matter which the Commissioner, acting under s.llSU, would be required to refer to an appropriate agency for investigation c.f Anthony Harden & Sons (supra) at 7, Saraswati (supra) at 23-24 and Downey (supra) at 171-2. If contrary to my understanding, the Commissioner has fulfilled her duty under s.llSU, and has not referred an "investigation matter" which coincides in whole or in part with the matters referred to her by the Committee, there would seem to be no impediment to her proceeding with the reference. If she has identified an "investigation matter" which falls within the scope of the Committee's referral, she has no power to proceed with the referral to the extent that it coincides with the "investigation matter". On the other hand, if she has not fulfilled her duty under s.llSU and it is possible that she may in the future determine that there is "an investigation matter", which matter coincides in whole or in part with a matter referred to her by the Committee, there is no general legal impediment to her proceeding with the Committee's reference. If she has recourse to records of the CJC inquiry for the purposes of performing her duties under the reference and -- 19 of 22 -- 51 53 19 if those records disclose "an investigation matter" she will be obliged to refer the matter to "an appropriate agency". She would also be prevented from pursuing the reference to the extent that the reference encompassed the "investigation matter". The delay and waste of public moneys which may arise from any such overlap of duties is an argument against my conclusion. However, it may be thought that the legislature would not be overly reluctant to place reliance on the judgment of a Parliamentary committee with the composition of the Committee. Private or Public Hearings The CJC contends that, notwithstanding the provisions of s.118Z(I) of the Act which requires an investigation by the Commissioner to be closed to the public unless the Committee authorises to the contrary, the Commissioner must conduct in public "sittings" of any investigation conducted by her. That result is said to follow "because the source of her power to hold sittings" is the Commissions of Inquiry Act and that Act only contains a power to hold sittings limited to sittings conducted in accordance with s.16A." Section 118R(2) gives the Commissioner, when required by the Committee, the power to investigate described in sub-paragraph (2)(b) and (c). There is also the broad power contained in s.118R(2)(h). Section 16A of the Commissions of Inquiry Act 1950 provides - "A Commission shall not refuse to allow the public or any portion of the public to be present at any of the sittings of the Commission unless in the opinion of the Commission it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. " The CJC's contention, as noted earlier, is that s.16A of the Commissions of Inquiry Act necessarily applies to an investigation by operation of s.l18W(b). That is because the Commissions of Inquiry Act applies to an investigation by the Commissioner as if "the matter were one into which a Commission constituted by the ... Commissioner was appointed to make -- 20 of 22 -- 54 20 an inquiry under" the Commissions of Inquiry Act. The CJC's submission continues - "It is important to distinguish between a Commissioner's 'inquiry' on the one hand and 'sittings of the Commission' held for the purposes of the inquiry on the other. Much of the inquiry might be conducted in private; interviews with prospective witnesses, perusal of documents and other preparation are not conducted in public. But by virtue of s.16A the public is not to be excluded from 'sittings' at which witnesses are compelled to attend and at which they are obliged to answer questions relevant to the inquiry." A difficulty with this submission is that the expression "investigation" in ss. 118R, 118W, 118 Y and 118Z encompasses all of the activity entrusted to the Commissioner as a result of a requirement by the Committee under s.118R(2). Section 118Z contemplates that "an investigation" will be closed to the public unless the Committee otherwise so authorizes. The section does not contemplate an investigation which is part open and part closed although it is possible that it is within the power of the Committee to give a partial authorization. It would also seem curious that the legislature was concerned to ensure that parts of an investigation by the Commissioner, which were inherently closed to the public, were expressed to be closed and that a decision authorizing that they be open to the public be supported by the majority referred to in s.118Z(3). In my view the Act makes it plain that the decision as to whether an inquiry by the Commissioner is to be closed to the public rests with the Committee under s. 118Z rather than with the Commissioner under s.16A. Section 118Z is a specific provision which prescribes the circumstances in which an investigation by the Commissioner is to be open to the public. In my view, it contains an exhaustive statement on the topic covered by it and overrides the general provision of s.16A. Summary of conclusions (1) Section 118U of the Act is a provision directed to securing the records of the CJC inquiry and to ensuring that the public does not lose the benefit of the work done by the CJC inquiry. To that end they are to be considered by the Commissioner -- 21 of 22 -- 55 21 with a view to her nominating some other appropriate authority or authorities to conduct any investigation of a matter which the Commissioner concludes ought be investigated. (2) Section 118U does not expressly or implicitly operate to restrict the powers of the Committee under s.118R (under which the Committee can require the Commissioner to perform specified functions) in relation to matters with the terms of reference of the CJC inquiry, except as mentioned below. (3) Section 118U is a specific statutory provision in relation to a particular subject matter conferring power and prescribing the mode in which and conditions under which the power is to be exercised. (4) Under s.118U, if the Commissioner's mandatory review of the CJC inquiry records reveals an "investigation matter", she must refer that matter to "the appropriate agency" for investigation. Section 118U does not prevent the Commissioner from having access to the records for purposes other than such a review, but if a review of the records discloses an "investigation matter" or matters, she is unable to investigate that matter herself but must refer it for investigation by others. (5) The Commissioner must exclude members of the public from hearings conducted by her under the Commissions oj Inquiry Act unless the Committee authorises the hearings to be open to the public. For the above reasons I dismiss the CJC's summons. -- 22 of 22 --