Carruthers v Connolly [1997] QSC 132 [1998] 1 Qd R 339

I • 3to IN THE SUPREME COURT OF QUEENSLAND No. 4924 of 1997 [Re Carruthers v Connolly, Ryan & A-G.] BETWEEN: KENNETH JOHN CARRUTHERS Plaintiff AND: PETER DAVID CONNOLLY First Defendant AND: KEVIN WILLIAM RYAN Second Defendant AND: THE ATTORNEY-GENERAL OF QUEENSLAND Third Defendant No. 5236 of 1997 [Re CJC and Le Grand v Connolly, Ryan & A-G.] BETWEEN: AND: AND: AND: AND: Delivered: CATCHWORDS: CRIMINAL JUSTICE C011MISSION First Plaintiff PIERRE MARK LE GRAND Second Plaintiff PETER DAVID CONNOLLY First Defendant KEVIN WILLIAM RYAN Second Defendant THE ATTORNEY-GENERAL OF QUEENSLAND Third Defendant JUDGMENT - THOMAS 1. 5 August 1997 ADMINISTRATIVE LAW - Bias - Actual or apparent bias - Whether either or both Commissioners of Commission of Inquiry disqualified on grounds of actual or apparent bias - Politically sensitive inquiry - Legal opinion on matters touching Inquiry previously given by Commissioner - Public statements ~r:iticaJof .~ "M~,","" ~ ,-" [ r- ~ I '. '. L. -- 1 of 100 -- Counsel: Solicitors: Hearing dates: person involved - Political affiliation - Bias in conduct of Inquiry - Refusal to hear witnesses - Uneven treatment of parties - Prejudgment - Whether apprehension of bias extended to both Commissioners. COMMISSIONS OF INQUIRY - Immunity Commission of Inquiry subject to judicial review. Whether COMMISSIONS OF INQUIRY - Ultra vires - Whether Order in Council authorised investigation of ongoing CJC inquiry - Whether Order in Council and regulation permitted one Commissioner to complete Inquiry alone. ADMINISTRATIVE LAW - Waiver - Objection before Inquiry - Delay in seeking judicial review. ADMINISTRATIVE LAW-Standing - Whether statement by Commissioner of Inquiry that there was no evidence on which to make finding adverse to plaintiff destroyed standing of plaintiff to seek judicial review. WORDS & PHRASES - "Quorum" - "Protection and immunity". Commissions of Inquiry Act 1950, s.20 Commissions of Inquiry Regulation (No.2) 1996 Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564; Calvin v Carr & Ors [1977] 2 NSWLR 308; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Mahon v Air New Zealand Ltd [1984] 1 AC 808; R v. Maurice & Ors e..\: parte Attorney-General (Northern Territory) (1987) 73 ALR 123; R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256; Re Finance Sector Union of Australia ex parte Illaton Pty Ltd (1992) 66 ALJR 583; Stollery v The Greyhound Racing Control Board (1972-1973) 128 CLR 509; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106; Vakauta v Kelly (1989) 167 CLR 568. Mr W. Sofronoff QC with him Mr G. Newton and Mr L. Kelly for the Plaintiffs Mr T.E. Hughes QC with him Mr S. Couper QC and Mr lG. Gormley for the Third Defendant. Clayton Utz for the Plaintiff in 5236/97 McCullough Robertson for the Plaintiff in 4924/97 Corrs Chambers Westgarth for the First and Second Defendants Crown Solicitor for the Third Defendant 21 to 25 July 1997 -- 2 of 100 -- IN THE SUPRElvIE COURT OF QUEENSLAND No. 4924 of 1997 [Re Carruthers v Connolly, Ryan & A-G.] BETWEEN: KENNETH JOHN CARRUTHERS Plaintiff AND: PETER DAVID CONNOLLY First Defendant AND: KEVIN WILLIAM RYAN Second Defendant AND: THE ATTORNEY -GENERAL OF QUEENSLAND Third Defendant No. 5236 of 1997 [Re CJC and Le Grand v Connolly, Ryan & A-G.] BETWEEN: CRIMINAL JUSTICE COMMISSION First Plaintiff AND: PIERRE MARK LE GRAND --- Second Plaintiff AND: PETER DAVID CONNOLLY First Defendant AND: KEVIN WILLIAM RYAN Second Defendant AND: THE ATTORNEY-GENERAL OF QUEENSLAND Third Defendant JUDGMENT - THOMAS J Judgment delivered 5 August 1997 t>~:':2"";:~'!'~X;""'J~,i. _~~ -J._ •. ------.. to copied for the purpose of research and privata ~t be resold or used for republication in any other Y8/ without permission. -- 3 of 100 -- INDEX 1. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 2. Issues . .......................................................... 2 3. The Criminal Justice Commission: Investigation of its role . ............... 3 4. Narrative of principal events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6 5. Partisan Political Bias ............................................. 26 6. Bias in Conduct of the Inquiry .................... . . . . . . . . . . . . . . . . .. 30 7. Conclusions on Bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 53 8. Waiver . ........................................................ 59 9. Immunity ....................................................... 65 10. Terms of Reference: Ultra Vires . .................................... 72 11. Statement of 17 July: Locus standi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 76 12.· Can Dr Ryan continue alone? ....................................... 81 13. Short summary: some principal findings and conclusions . . . . . . . . . . . . . . . .. 93 14. Relief . .......................................................... 95 -- 4 of 100 -- The primary facts are not in contention. They consist of matters of public record, transcripts of actual proceedings, correspondence and matters in the public domain. The principal contention in these proceedings concerns the inferences that are to be drawn from the known facts and circumstances. 1. Parties The respective plaintiffs are the Criminal Justice Commission (a corporation whose functions will shortly be described), the Honourable K.J. Carruthers QC (who for some months during 1996 conducted a CJC investigation) and Mr Le Grand who is the director of the Official Misconduct Division of the CJc. The defend!ints are the Honourable Mr Connolly QC and the Honourable Dr Ryan QC, who have since October 1996 conducted a Commission of Inquiry under the Commissions oj Inquiry Act 1950. Their terms of reference require them to examine and make recommendations in relation to the future role, structure, powers and operations of the CJC and various other matters. Mr Carruthers, Mr Connolly and Dr Ryan are (~!}d were at all material times) retired judges, Mr Carruthers having formerly been a member of the Supreme Court of New S,outh Wales and Mr Connolly and Dr Ryan having formerly been members of the Supreme Court of Queensland. The procedure suggested in R v. Australian Broadcasting Tribunal; ex parte Hardiman l was not invoked until very shortly before the hearing. Up to that point, the defendants retained solicitors and presumably gave the necessary instructions for preparation for trial. However on 15 July 1997, the Attorney-General applied to be (1979-1980) 144 CLR 13, 35-36. When the conduct or decisions of such a body is challenged, it or its members should not become protagonists other than in exceptional circumstances. It is preferable that the adversarial role be assumed by some other party. -- 5 of 100 -- 2 joined and was added as a party. Thereafter the adversarial response to the claims has been taken over by the Attorney-General, and the defendants indicated that they would abide the order of the Court. In the course of the hearing the defendants (through their solicitor) appeared in a limited respect as protagonists, in my view quite properly, in order to present a short submission defending their own interpretation of the terms of reference of their Inquiry. This was no doubt provoked by the submission of counsel for the Attorney-General that Mr Connolly and Dr Ryan had stepped outside their terms of reference. 2. Issues The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters upon which they are required to investigate and report. Each is said to have shown apparent bias, and Mr Connolly is alleged to have shown actual bias against both Mr Carruthers and the CJC and in respect of matters that arise under their Inquiry. There is a further question whether the Commissioners acted and threatened to act outside the terms of their reference in undertaking an investigation of the conduct of Mr Carruthers, and if so, what relief should be granted. If bias or excess or jurisdiction is found against either Commissioner, consequential issues arise, including (i) whether the plaintiffs have waived their right to complain of such bias or excess of jurisdiction; (ii) whether the Commissioners are in any event immune from review by any Court by reason of s. 20 of the Commissions oj Inquiry Act. -- 6 of 100 -- Further questions anse as to the effect of a statement made by the Commissioners on 17 July 1997, and its effect (if any) upon the plaintiffs' entitlement to relief Finally there is the question, if adverse findings are made against Mr Connolly, whether Dr Ryan may continue to investigate and report alone. 3. The Criminal Justice Commission: Investigation of its role The Criminal Justice Commission (the CJC) is a corporation established in 1989 by the Criminal JlIstice Act 1989. It was set up with support from both sides of politics following recommendations by the Fitzgerald Commission of Inquiry.2 The evidence and recommendations in that Inquiry exposed cause for deep community concern in relation to police corruption and other matters of public administration. Consequential legislation has produced significant changes to the public law and institutions of Queensland. It may be noted in passing that since 1922 Queensland has had a unicameral legislature. Changes included the sett~~ up of two commissions, the CJC and the Electoral and Administrative Review Commission (EARC). The supervisory mechanisms of the CJC are the Supreme Court (in limited respects), and, more generally, a parliamentary committee called the Criminal Justice Committee, known as "the PCJC". The objects of the Criminal JlIstice Act are to establish and maintain a permanent body 2 Established by Orders-in-Council of 26 May 1987,24 June 1987,25 August 1988 and 29 June 1989; Report presented on 3 July 1989. -- 7 of 100 -- 4 "(i) to advise on the administration of the criminal justice system in Queensland with a view to ensuring its efficiency and impartiality; (ii) to continue investigations commenced by the commISSIon of inquiry;3 (iii) to investigate the incidence of organised or major crime; (iv) to take measures to combat organised or major crime for an interim period; (v) to investigate complaints of official misconduct referred to the body and to secure the taking of appropriate action in respect of official misconduct; (vi) to hear and determine disciplinary charges of official misconduct in prescribed circumstances; (vii) to discharge such functions and responsibilities as are incidental to or in aid of discharge of the activities mentioned in subparagraphs (i) to (vi);"4 Its functions include the obligation to "(a) continually monitor, review, coordinate and, if the commission considers it necessary, initiate reform of the administration of criminal justice; (b) discharge such functions in the administration of criminal justice as, in the commission's opinion, are not appropriate to be discharged, or cannot be effectively discharged, by the Police Service or other agencies of the State. ,,5 The CJC has an "official misconduct" division 6 which investigates instances of official misconduct not only within the Police Service, but also within any "unit of 3 i.e. the Fitzgerald Commission ofInquiry. Criminal Justice Act 1989 s.2(a). Section 21.(1). Its extensive responsibilities are further described in s.23. 6 The term "official misconduct" is widely defined in s.32. -- 8 of 100 -- 5 public administration" which term expressly includes the Legislative Assembly, the Executive Council and the Courts of the State. The matters upon which the CJC has the power to investigate and report include many matters upon which different perceptions ~ght be held by persons of different political persuasions. Questions such as the desirability of a body such as the CJC, and the powers and functions that should be entrusted to it, have arisen from time to time. Such questions are of considerable importance to the State, and it would be perfectly proper for any government to investigate them, if necessary by the appointment of a commission of inquiry. Such topics might be regarded as falling within the subject matter of political science or constitutional theory. In theory at least, the answers to such questions would not necessarily invoke party political issues or induce partisan political responses. That however was not to be the case. Political controversy surrounded the commission to which the defendants were appointed both before and after its creation. In the circumstances which are about to be described, it was particularly important that those appointed to conduct this particular commission of inquiry could be seen to be impartial, and not as serving the interests of one side or the other of politics. 7 7 The reasons for this conclusion appear particularly in parts 4 and 5 of these reasons. -- 9 of 100 -- 6 4. Narrative of principal events The commission to which Mr Connolly QC and Dr Ryan QC were appointed on 7 October 1996 was preceded by an investigation, still at that time current, presided over by Mr Carruthers QC. He had been appointed by the Chairman of the CJC under the Criminal Justice Act. The event directly leading up to his investigation was a request from Mr Cooper, a Minister of the newly appointed Coalition Government, on 27 February 1996, that the CJC consider whether any impropriety existed in relation to the signing of a document described as a Memorandum of Understanding ("MOD"). The Chairman of the CJC, Mr Clair, replied two days later that the circumstances deserved investigation. On 26 March 1996 the CJC made a formal decision to conduct such an investigation and appointed Mr Carruthers to constitute the Commission under s.25(2) of the Act. Mr Carruthers commenced hearings, mainly in public 8, in April 1996. Over the following months considerable publicity 9, potentially embarrassing to Mr Cooper, to the Premier and to others who were involved with the memorandum of understanding, ensued from extensive reporting of the work of Mr Carruthers' Inquiry. The Premier (Mr Borbidge), the Police Minister (Mr Cooper) and other members of the government gave evidence and were cross-examined by counsel assisting (Mr Hampson QC) and were questioned by Mr Carruthers. The hearings attracted intense pUblicity. The CJC resolution effecting Mr Carruthers' appointment on 21 March 1996 was in the following terms: Under power conferred by s.90 of the Criminal Justice Act. 9 Such publicity was proved by evidence given in the present proceedings. -- 10 of 100 -- 7 "THE COM:tvIISSION RESOLVED ... (1) To conduct an investigation into the circumstances surrounding the creation and execution of the said MOU with a view to determining whether any member of the QPS IO or any other person should be charged with a disciplinary offence of official misconduct or misconduct or any other offence, criminal or disciplinary. (2) As part of the investigation referred to in paragraph (1) hereof, to consider generally such circumstances, and to make such recommendations as may seem appropriate in light of the Commission's responsibilities under s.23 of the Act and otherwise having regard to the statutory duty of the Commission imposed by s.93 of the Act. (3) To engage the services of an independent qualified person pursuant to sections 25(2)(d) and 66 of the Act, that person being The Honourable Kenneth Carruthers QC, to conduct the investigation, to hold such public or private hearings as may be appropriate and to report thereon to the Commission, to enable the Commission the Commissioners and the officers of the Commission to discharge the functions and responsibilities imposed upon them by the Act." The investigation required a determination whether any member of the Police Service "or any other person" should be charged with official misconduct or any other offence. By August 1996 there was a live question whether Mr Cooper's participation could lead to a charge under s.155 of the Electoral Act 1992. Mr Cooper had by this time obtained an opinion from Mr Connolly QC. This opinion exonerated Mr Cooper from any suggestion of wrong-doing. It was supplied to Mr Gallagher QC (Mr Cooper's counsel before Mr Carruthers) and was tendered by him to the Commission on 29 August 1996 in an attempt to counter written submissions and other opinions which had already be tendered in support of the view 10 Queensland Police Service. -- 11 of 100 -- 8 that certain police officers were guilty of official misconduct and that Mr Cooper may have committed an offence against s.155 of the Electoral Act. Mr Connolly'S opinion touched matters factual, legal and political. It was in all respects favourable to Mr Cooper. It included the following statements ~ I am clearly of the opinion that neither wholly nor in any part do these documents evidence the formation of a contract. That conclusion [in the Fitzgerald Report that the Union ought not influence the selection of Police Commissioner] 11 was reached some seven years ago. The actors whose conduct led to this recommendation have departed, and much water has flowed under the bridges. In any case, with all respect, such conclusions do not have binding force and it is a matter for the decision-makers, including the Parliament, whether they adopt them. Nothing could have been more open and regular than the procedure whereby the contents of the MOU were decided upon it being clearly understood that that document would be forwarded to the Union. There is no conceivable damage which querist or the National Party could sustain by the revelation that he had reached agreement on certain matters of policy affecting the conduct of the Police Service with the Union. [This is expressed in the context of rebutting any suggestion that -Mr Cooper should have disclosed publicly the existence of the memorandum.] The documents read as a list of the Union's concerns and wishes on the one hand and, on the other, the policy of th~ Coalition in relation to these matters. In one form or another this is a commonplace of the election period. The opinion relied on certain instructions that Mr Connolly had apparently been given, including that 11 ~ Mr Wilkinson, the President of the Police Union, did not see the MOU as a binding document Words in square brackets are interpolated. -- 12 of 100 -- 9 so far as querist is concerned the answers [to proposals in the MOU] represented policy for which he was responsible as Shadow Minister and there was no secrecy about the furnishing of the MOD. The accuracy· of these instructions was disputed by counsel assisting Mr Carruthers' inquiry. Mr Connolly's opinion and its use on Mr Cooper's behalf was the subject of extensive media publicity on and after 31 August. The inference was open that if Mr Connolly's opinion was correct, the long- running Carruthers Inquiry was a waste of time and money, and that it would be very difficult for Mr Connolly ever to see it as anything else. As will be seen, there are subsequent statements suggesting that Mr Connolly strongly retained that opinion. The retention of that opinion would also make it very difficult for him ever to accept that the CIC had any justification for setting up that inquiry. On 2 September 1996 the Attorney-General announced that an inquiry into the CIC would be held, and that "a retired Supreme Court-Judge" would conduct it. No details were given of timing or subject matter. Then on 13 September 1996, Mr Grice, a National Party MLA, made serious allegations against ivIr Le Grand, a director of the CIC's Official Misconduct Division, in the Legislative Assembly. They were to the effect that Mr Le Grand had unlawfully disclosed confidential CIC documents and had later knowingly set up an inquiry by Mr R Hanson QC into the "leakage" of those documents. It was alleged that he had perjured himself before Mr Hanson. Mr Grice claimed that his allegations should be investigated by the recently foreshadowed commission of inquiry into the CIC, and that "in view of the seriousness of the matters raised today" Mr Le Grand should be removed from his position. -- 13 of 100 -- 10 The Government quickly made a decision to establish the relevant commission of inquiry before the conclusion of the Carruthers Inquiry. The reason publicly given for this was that the allegations against Mr Le Grand necessitated an early investigation. On 7 October 1996 the subject Commission ofInquiry was established by Order in Council and Mr Connolly was. commissioned to. chair it with Dr Ryan as a co- commissioner. Mr Connolly had not by this time been paid his fee ($4000) by his client Mr Cooper. That was attended to on 10 October. With commendable speed, Parliament then enacted the Criminal Justice Legislatioll Amendment Act, which was passed and assented to by 15 October, declaring that the Commissions of Inquiry Act prevailed over the Criminal Justice Act, and ensuring that all persons associated by the CJC would be compellable to give evidence and supply documents to the Connolly-Ryan Inquiry. The explanatory notes 1 :! asserted that the Act implemented recommendations by the Solicitor-General and by senior counsel appointed to assist the Connolly-Ryan Commission. The Commissioners at a very early stage reached the view that part of their task was to investigate the conduct by Mr Carruthers in the carrying out of his inquiry. Whether that was a correct conclusion will be later considered. 13 Mr Carruthers of course had not by then completed his inquiry and among other issues was considering the position of Mr Cooper. 12 13 Q1Ieensiand Acts, Explanat01Y Notes, 1996, p 277. See part 10, pp 72-76 below. I I -- 14 of 100 -- 11 On 24 October, consistently with the intention of Mr Connolly and Dr Ryan as publicly expressed on a number of occasions 14 to include Mr Carruthers' conduct of his Inquiry as a matter within their authority to investigate, Mr Hanger QC (counsel assisting the Connolly-Ryan Inquiry) sought an undertaking from Mr Carruthers "not to destroy any document which comes into or has come into your or their possession or .has been produced in the course of the inquiries conducted by you for the preparation of your reports. I include drafts of your reports in the category of documents which should not be destroyed. " His letter alleged "There exists the distinct possibility that the conduct of your inquiries will be a matter to be considered by this Commission of Inquiry." Mr Carruthers declined to give such an undertaking. On 25 October Mr Hanger repeated this request, asking additionally whether Mr Carruthers was prepared to permit staff of the Connolly-Ryan Inquiry to inspect and copy documents of the kind referred to in his previous letter. He added "It would be regrettable if this Commission ofInquiry was compelled to exercise its coercive powers to achieve an object·which could readily be achieved by cooperation." The extent (if any) to which Mr Connolly and Dr Ryan initially instructed Mr Hanger to proceed in this way is not the subject of any direct evidence. However subsequent statements by Mr Connolly and Dr Ryan did not retreat in the least from the demands that had been made, and I infer that they were supportive of it. Mr Connolly, in a radio interview soon to be mentioned, referred to Mr Hanger's letter as "perfectly sensible". On the same day, 25 October, Mr Hanger told Mr Carruthers' solicitor that he was indeed serious, that while he did not want to do so, he would "get an order" if 14 Including their joint statement of 30 October 1996, described below, pp 14-15. -- 15 of 100 -- 12 there was no agreement about it. He also told Mr Carruthers' solicitor that he should "see him (Mr Carruthers) and tell him to do what he is told". Anyone who has prepared a report requiring the expression of personal opinion, let alone a judgment, would know how oppressive and unfair these demands were. In my opinion they were outrageous. On 29 October Mr Carruthers convened a public sittings of his inquiry and, having read a prepared statement, resigned. His reasons for this included the establishment of the Connolly-Ryan Inquiry, the chairmanship of Mr Connolly, and the demands made to him in correspondence by counsel assisting the Connolly-Ryan Commission. On the following day Mr Connolly attended the Toowong Studios of the ABC and gave a live radio interview broadcast. Speaking of the prospect of his Commission looking into the conduct ofMr Carruthers' Inquiry, he observed "The only way this can happen, in my book, is if people come and complain about the way they were treated in the Carruthers Inquiry. I don't know whether any are going to, although I am told - this is only anecdotal at this stage - that there are such complaints in the pipeline. 15 Nowwe can't refuse to look at them if they come before us." Speaking ofMr Carruthers' resignation, he stated 15 "Well, I can't speak for the Queensland taxpayer - at least not for more than one of them - but I don't think it is a very happy end to it and I think it is childish .. " Now, if he chooses to take his bat home, that really has nothing to do with us but we have in no sense have we interfered in the least in his Inquiry .. Question: Would you see now your Inquiry looking specifically at the documents, the evidence, that was presented before the Carruthers Inquiry and perhaps having a finding of your own? Such complaints did in fact eventuate, including a particularly strong one from Mr Cooper. -- 16 of 100 -- 13 Mr Connolly: I certainly don't see that as a top priority. We might ultimately have to look at something there, but I don't think that the facts in the Carruthers Inquiry, with all due respect to Mr Carruthers, and I only know what I was furnished with - I gave an opinion as everybody knows to Mr Cooper's solicitors as to whether section 155 of the Criminal Code - I think that's the right number - covers this sort of situation, and I point out that if it does, there are lots of criminals wandering around Queensland. Every time you fellows - anybody - says to a Minister or prospective Minister, What's your policy on so and so?, he says, 'Oh fellows, you can rely on us' - right, got him! A bribe!" In response to the question whether having given advice to Mr Cooper with regard to the Carruthers Inquiry, there might be a question mark over his participation in the current review he responded "I am now just a barrister, and barristers give opinions, and then they are asked to do other things, and you've just got to see if there is any conflict of interest. I can't see it ... " He referred to an opinion obtained from Victoria confirming that mens rea was necessary and continued "it is not enough, as it happens, you know you help an old lady across the road the polling booth. - Good, we've gotcha! You bribed her! She's got an advantage from resting on your arm. And this, I don't feel embarrassed in this. I gave my best opinion, people are at liberty to disagree with me, but I think its got nothing ro- do with whether for example the CJC is - the people of Queensland are getting value for money, that is really .. that's the bottom line." Mr Connolly gave a further interview outside the studio during which he made the following comments "Mr Connolly: If you call that interfering in the conduct of his affairs, well, its a matter of opinion. Question: If you call that political interference, why is he reading it that way? Mr Connolly: Ahh I would rather not answer that. I think things have worked themselves up. Has stated that is paranoia but it is nothing to do with us. Question: Was he being paranoid? -- 17 of 100 -- 14 Mr Connolly: I don't know. You would have to ask him. That or you would have to ask his medical advisers, but I don't know. Question: How do you describe his behaviour over the last couple of days? Mr Connolly: Childish. Very childish. He didn't ring me, he got this direction, he gave us a two-line response. 'I will not give the undertaking that I am asked for' ... Question: Should he come back and finish it up? Mr Connolly: That's entirely up to him. It has got nothing to do with me. I don't offer or express opinions on how the rest of the world should act, unless it becomes by direct responsibility to do so. Has he gone? I don't know if he is still in Brisbane. I don't know either. I would think, honestly I would think that, let's put it this way, he seems to have been paid a lot of money and Queensland doesn't seem to have very much for it. I think decency might suggest to him that he reconsider his situation and see, and not start crying until he is actually hurt. In other words, until he gets some direction from us. What sort of direction it might be which interferes with the conduct of this, and after all, by the way, the conduct of it is over. All he has got to do is write his report. " Among other things it is apparent from these interviews that Mr Connolly roundly and publicly insulted Mr Carruthers. It woUld also seem that he actively promoted to the public the validity of the opinion he had given in favour of Mr Cooper. If the opinion was valid, one would be inclined to think that the Carruthers Inquiry exercise had been a waste of time. On the same day (30 October) Mr Connolly and Dr Ryan convened their commission and publicly affirmed that they would investigate how Mr Carruthers conducted his Inquiry. The joint statement indicated their view that they were required to examine how proceedings instituted by the CJC had been conducted. They considered that their obligation was in general terms and encompassed all proceedings including the Carruthers Inquiry. , , -- 18 of 100 -- 15 They asserted that Mr Connolly's opinion given to Mr Cooper was "irrelevant". It may be mentioned in passing however, that much time was subsequently spent at the present Inquiry debating whether the ClC was justified in investigating a possible breach of section 155 of the Electoral Act, and it remains an issue upon which both Commissioners must eventually report. The joint statement of Mr Connolly and Dr Ryan did not advert to the contribution that the conduct of their own Inquiry may have had upon Mr Carruthers' resignation, other than to assert that they failed to see how a request for the undertaking could infringe his independence. There then ensued correspondence between the solicitors for Mr Carruthers, the ClC, and the Connolly-Ryan Inquiry with allegation and counter-allegation concerning the terms of reference, the relevance if any of Mr Connolly'S opinion and subsequent conduct, and the question whether Mr Connolly ought to continue as a Commissioner. In a letter of 1 November 1996 Mr Hanger intimated that Mr Connolly considered that his opinion was of no relevance, and that he proposed to continue the Inquiry. On 5 November 1996 Mr Cooper made a public statement that his political enemies, some within the ClC, were "hell-bent" on targeting him "to bring down the Government. " On 14 November 1996, by means of a private member's bill, the Carruthers Inquily Enabling Act was passed. It, perhaps belatedly, forbade the Connolly-Ryan -- 19 of 100 -- 16 Inquiry from taking" any action that has the effect of hindering the deliberations of the Carruthers Inquiry, including the completion of a report for the Carruthers Inquiry". On 14 November a further radio interview was given by Mr Connolly. The point of the question was "Now that you can't get to the documents because of the Private Members Bill, doesn't that concern you?". His response was, "Not in the slightest because ... for example let's suppose that there is something there that in the future we might want to see, its almost certainly going to be a copy of something that the CJC has anyway. So you know I think its a lot of - if I may say so without any disrespect - political kerfuffie". On 18 November 1996, the first day of hearings scheduled by the Connolly- Ryan Inquiry, there was a private session in which the question of Mr Connolly's bias was raised by Mr Hampson on behalf of the CJC. The transcript, which was later made public, shows that Mr Hampson took objection on the ground of bias of Mr Connolly in relation to "the Carruthers Inquiry". He defined this as involving investigation of "the rights and wrongs of whether it was correctly appointed; the way it was conducted by Mr Carruthers; Mr Carruthers' failure to finish his report." This seems to have been taken by the Commissioners as a mere starting point, and Mr Connolly added to that list "What about such things as why it took such a long time . . why certain matters are the subject of public inquiries, others are the subject of private inquiries? We can't really avoid looking at that sort of thing. " Mr Hampson sought to "make it clear that we don't want to waIve this" [complaint in relation to bias]. Mr Hanger stated "I've got no problem with Mr Hampson keeping it up his sleeve which is, I think, the way that he's approaching this, with a right to - and I made that point in time - argue about this if that's -should be l , -- 20 of 100 -- 17 necessary." Mr Connolly raised the question whether he could properly stand aside from any part of the investigation. "Am I allowed to [do] this? Is it lawful for me to do it? Is it lawful for my colleague to conduct any part of this investigation without me?" Mr Hampson stated that he "would see no difficulty .. in your relying upon what Mr Ryan had found in relation to those issues". Without reaching any decision on the issue Mr Connolly indicated that he might at some future stage say "All right. My views about Mr Carruthers' behaviour are not unknown and it might be better ifI didn't sit on this point". One week later (25 November) Mr Connolly made a further statement on the question of the objection on the ground of bias. He commenced with a statement concerning the terms of reference and the extent to which his Commission might be concerned with the conduct of the Carruthers Inquiry. On the question of bias, he maintained an entitlement to sit in relation to such matters. However he considered that "to do what I was inclined to do may well lead to costly litigation and occasion unjustifiable delay in the completion ofour task. I am minded, therefore, to accede to Mr Hampson's submission if it. can be lawfully achieved. This is a real problem. It is our opinion that in the present state of the law, neither of us can take evidence without the participation of the other. Moreover, our ultimate decision and report should desirably be a joint one. If a workable solution to this problem can be found I am prepared, in the public interest, and against my own inclination to stand aside when any Inquiry into the Carruthers Inquiry, as defined by Mr Hampson, occurs." The definition to which Mr Connolly referred was to say the least loose and unsatisfactory. Mr Connolly adopted it as referring to "an inquiry into the correctness of (1) Mr Carruthers' appointment, (2) the way it was conducted by Mr Carruthers, (3) that gentleman's failure to finish his report, -- 21 of 100 -- , , 18 (4) why his inquiry took so long, (5) why it was in public rather than in private, and (6) generally the way he went about his work."16 The first mentioned matter would involve scrutiny of the conduct of the CJC, but all the others would involve only potential fault in the part ofMr Carruthers. The terms of reference in any event concerned the conduct and performance of the CJC, and Mr Carruthers' conduct could only be an incidental matter for the Inquiry to consider. The above definition would not preclude Mr Connolly from hearing evidence and participating in the determination of the CJC's fault with respect to items (2) to (6), if fault were shown on its part. But of course if there was a possible combination offault by both Mr Carruthers and the CJC how could be determine one without the other? And even if he left it to Dr Ryan to sit alone when hearing anything that might reflect upon Mr Carruthers, how could he eventually consider the propriety or otherwise of the CJC's conduct in these respects without reading the transcript and getting the whole picture? These problems asserted themselves in due course, as will soon be mentioned. Three days later, on 28 November, the Governor-in-Council promulgated the Commissions of Inqllily Regulation (No.2) 1996. It provided, with respect to the Connolly-Ryan Inquiry, "Either Commissioner of the CJC Inquiry may constitute a quorum of the CJC Inquiry." 16 Transcript p 7; I have interpolated the numbers. -- 22 of 100 -- 19 The full regulation, and in particular the effect of these words will be later considered. 17 For convenience I will refer to it as "the Quorum Regulation". Mr Connolly indicated that he would accept whatever findings Dr Ryan might make concerning the Carruthers Inquiry. Thereafter on most (though not all) occasions when evidence has been led concerning "the Carruthers Inquiry" Mr Connolly has absented himself, in apparent reliance upon the above Regulation as justifying such a course. He has, however, continued to issue summonses under s.5 of the Commissions of Inquiry Act, even in matters that might be thought to involve the investigation into matters in which Mr Carruthers was involved. This merely highlights a difficulty in the division of subject matter to be investigated by a single commission which consists of two persons. Only the chairman has the authority under s.5 to issue necessary compulsory process,18 and such a function cannot be described as purely formal or a rubber-stamp process. It involves the exercise of a discretion. Other difficulties have also highlighted what is submitted to be the impracticability of the proposed arrangement of splitting off "the Carruthers Inquiry" from other subjects of investigation. In the course of difficulties that later arose in this respect Mr Connolly has commented 17 18 "Shows you how unrealistic the whole business has been." "I don't think it's realistic to suggest that every time the magic word 'Carruthers' floats across the atmosphere I have to suddenly vanish out through the wall. That's just not on. " "It's absurd." In part 12, pp 82-83. It is arguable however that under the Quorum Regulation Dr Ryan could act as chairperson with respect to the limited functions he would perform without Mr Connolly being present. See cl 3(2) of that regulation. -- 23 of 100 -- and 20 "Well I was trying not to listen." "Well, I've always thought this whole business was childish but I engaged to do something of the sort when the matter was first raised. Otherwise I was told, you will recall, that an objection on the ground of perception of bias would be made on the ground that I had given an opinion on a point of law. I couldn't see the sense in it." The following incident instances the difficulty faced by the Commission in performing its task by means of the artificial attempt to fence offMr Connolly from this area of the Inquiry. Mr Davies complained that a CJC Inquiry which had exonerated the ALP from impropriety concerning an alleged bribe made to Mr Davies to persuade him not to stand as an independent, had been determined with great speed and superficiality. Not surprisingly a contrast was drawn with the length and depth of the Carruthers Inquiry. Mr Connolly (rightly with respect) considered it a relevant exercise to make a comparison between the results and conduct of the two inquiries. He observed ''I'm going to take no part in the finding of the primary facts in relation to the Carruthers matter, but when they're found I'll certainly have to try and make up my mind what I think about the comparison between the two." He later added "When facts have been found, if inferences are to be drawn from the results, and . . . there's a contention that there is a tendency in a particular direction, I must be involved in looking at that. "19 It is fair to say that the attempted arrangement has caused problems, and could yet cause further problems. 19 Transcript 3068-3069. " . -- 24 of 100 -- , I 21 On 22 January 1997, one of the part-time commissioners of the CJC, Professor Homel, attended the premises of the Connolly-Ryan Commission to give evidence in private session before the Commissioners. He was met in the reception area by Mr Connolly. The men had not previously met. Outside the room in which Professor Homel was to give evidence Mr Connolly said words to the effect "N ow that our side of politics is back in power we can do a proper critique of the Fitzgerald experiment." Prior to the Mundingburra election In 1995, Professor Homel had been a member of an association called The Coalition for Crime Prevention which had prepared an "action plan" relating to the prevention of crime. This had been given to Mr Beanland who is now the Attorney-General, and it had been adopted by the Coalition as part of its "Law and Order" policy prior to that election. However in fact Professor Homel had no political affiliations. Professor Homel was very surprised by the remark but put the comment to one side. He had taken the stance with Mr Hanger, and others, that he wanted to see some constructive things come out of the Inquiry, and he comforted himself with the thought "I guess Mr Connolly will exercise his legal training and be objective". It will be necessary to mention the manner in which the CJC became aware of this piece of information, as one of the issues in this case is whether the CJC and Mr Carruthers have waived the right to complain of bias or apparerit bias on the part of the Commissioners. During meetings of the CJC which he attended, the Chairman Mr Clair usually made mention of how matters were progressing at the Connolly-Ryan Inquiry, but matters of that kind were not recorded as formal business in the minutes. There had -- 25 of 100 -- 22 always been some concern, so far as Professor Homel could tell, about the appointment of the two Commissioners, particularly Mr Connolly. The level of concern had grown as the Commission progressed and it became "more of an issue in our meetings". It is probable that the remarkS of Mr .Connolly on the radio had been raised at an earlier meeting. At the meeting of 22 April, or possibly a later meeting, the Chairman Mr Clair expressed concern over what he saw as biased conduct on the part of Mr Connolly. The increased concern by April probably arose from Mr Clair's perception of the way in which some witnesses were being treated by the Commissioner. The Chairman's concern on 22 April [ or later] prompted Professor Homel for the first time to disclose to others at the meeting the conversation that Mr Connolly had had with him on 22 January. I accept that Mr Clair and those responsible for making decisions on behalf of the CJC, had no knowledge or notice of any concern that might arise from the statement that had been made to Professor Homel until at least 22 April 1997 and possibly later. On 10 March 1997 Dr Ryan sat alone to hear objections taken on behalf of counsel for Mr Carruthers on the ground of both Commissioners' bias. The objection included a submission that the "quorum regulation" and separate sittings by members of the Commission was ineffective to avoid the consequences of that bias. It was further submitted that Mr Connolly should hear his client's objection because it concerned him also. Dr Ryan adjourned to notifY Mr Connolly, who Dr Ryan believed was available to hear the objection. However he returned later without Mr Connolly and proceeded to hear the objection without explaining Mr Connolly'S absence. , . -- 26 of 100 -- Dr Ryan considered it unnecessary at that stage to give any formal ruling, because " [ A] s I have explained to you already and I repeat it - if there was any question arising even in this week, let alone at a later stage of any matter which may reflect upon the reputation or position of Mr Carruthers in any way, then you would be notified and further submission could then be addressed." In the days following, Dr Ryan seems to have encountered some difficulty in giving effect to this intended exclusion of evidence affecting Mr Carruthers. Cross- examination adduced matters touching and concerning Mr Carruthers' conduct, but no notice was given to Mr Carruthers. A number of examples have been mentioned in submissions, and it will suffice to instance one only. "Question: By 2 April had anybody from the Commission or indeed Mr Carruthers, identified or articulated one potential fact which might be found which would make a skerrick of difference to Mr Hampson's view that there was no breach of section 1557 Answer: I can't recall any specific individual articulating specific facts. I think from what you've referred me to yesterday about Mr Carruthers' comments on 2 April and a note that I have of 1 March - 1 April rather, a conference on that date, it was something in his consideration. ,,20 The examples serve to emphasise the impracticability of tidily cutting off the investigation touching and concerning Mr Carruthers' conduct with the object of fencing off Mr Connolly from it. On 30 April 1996 Mr Cooper made a formal complaint to the Inquiry concerning his treatment by the CJC, including at the hands of the Carruthers Inquiry. He incorporated into his complaint the text. of a speech he had given on 17 April, with the request that that speech be regarded as a "formal submission". He complained that 20 Transcript, p 3301. -- 27 of 100 -- 24 "my own side of politics paid dearly" and accused the CJC of spending most of 1996 to ensure his personal and political destruction. The complaint continued that "literally hundreds of other Queenslanders had their rights trampled upon; their privacy invaded, their homes bugged, their telephone records seized and analysed as the CJC embarked upon its crusade to bring down the newly-elected Coalition Government. " He also referred to "the Carruthers tumbril as it careered across the landscape in what we now know was always an exercise doomed to failure", and alleged that "the Carruthers Inquiry was allowed to take over and distort the political landscape of our State ... when all along the CJC knew there was no case to answer; no charge to bring. " On 27 May Mr Hanger gave written notice to Mr Carruthers' counsel that "The hearing before Dr Ryan QC in relation to the Inquiry by Mr Carruthers QC into the Memorandum of Understanding resumes next week. It is possible that evidence will be given which will reflect adversely on his conduct of the Inquiry." What had until then only seemed a possibility to Mr Carruthers was converted into a reality. Mr Carruthers responded quickly. On 2 June his counsel appeared before· Dr Ryan, who was sitting alone, and reasserted his objections that both Commissioners were biased and that the device of separating the Commissioners on matters concerning Mr Carruthers was ineffective to cure the objection. Again it was submitted thatMr Connolly should hear the objection, but again Mr Connolly declined to participate in the hearing of those submissions. Dr Ryan then rejected the submissions on the ground that no reason had been shown why he should not continue to hear "evidence in relation to the Carruthers Inquiry", observing that such evidence was not limited to evidence concerning the initiation of that Inquiry. Three days later he gave formal reasons for dismissing the , , -- 28 of 100 -- 25 objection. He rejected the notion of bias or apparent bias on either his own part or of Mr Connolly, stating that fair-minded people could not reasonably apprehend or suspect that Mr Connolly had "pre-judged or might pre-judge the issue of the manner in which Nlr Carruthers had conducted his Inquiry" .21 On 3 June Mr Carruthers commenced the present action against Mr Connolly and Dr Ryan, and on 12 June the CJC did likewise. Mr Connolly and Dr Ryan have continued to conduct their Inquiry, which has since then ranged in considerable detail into the activities and responses of Mr Carruthers during his Inquiry. There are more than 700 pages of transcript bearing upon this aspect of the Inquiry. It contains many searching questions concerning Mr Carruthers' actions and responses in the course of conducting his Inquiry. Inter alia it ascertained whether the CJC was funding the present action of N1r Carruthers. In the meantime directions were given to expedite the present hearings and by 18 June the present trial had been set to commence on 21 July. On 17 July, the penultimate working day before the trial was to commence, the Commission convened in public, and the following statements were made 21 "DR RYAN: Before we begin this morning's proceedings I wish to make a brief statement. All the evidence in relation to what has been referred to as the Carruthers Inquiry has now been heard. Submissions will be called for in relation to that matter at an appropriate time. I consider that I should make now this statement having regard to the provisions of the Criminal Justice Act and the Order in Council of 7 October 1996. First, it is clear, as the resolution of the Criminal Justice Commission of 21 March 1996 records, that Mr Carruthers was engaged pursuant to sections 25(2)(d) and 66 of the Criminal Justice Act to conduct an investigative hearing which the Commission had resolved should be conducted. While criticism has been made of the Commission for having adopted paragraph 1 of that resolution, no Transcript p 6929. -- 29 of 100 -- 26 criticism can be made ofMr Carruthers for having complied with the terms of his engagement. Secondly, no criticism can properly be made of Mr Carruthers in relation to the use by the Commission of its coercive powers during the course of his investigation, including the search warrant and listening device powers, since the responsibility for invoking the exercise of such powers is cast by the Criminal Justice Act upon the Chairperson of the CJC. And, thirdly, there is no evidence before this Inquiry upon which a finding adverse to Mr Carruthers personally could be made concerning his conduct of his Inquiry. :MR CONNOLLY: I agree." The present trial then commenced on21 July. 5. Partisan Political Bias It is not to be expected that Commissioners who are appointed to examine and make recommendations on the matters such as those entrusted to these Commissioners should be devoid of a sense of social, political, moral or economic direction. 22 The main question in the end will be whether a Commissioner is reasonably open to persuasion and seen to be so. In the circumstances which have been shown to exist in relation to the appointment of this particular Commission and the performance of its work, political prejudice or favouritism, if shown to be harboured by a Commissioner, would be a matter for considerable concern. In determining the ultimate question of ostensible bias on the part of a Commissioner, the Court must attempt to form some view whether the conduct in the circumstances would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Commissioner will not discharge his task impartially. 23 22 23 c[ Aronson and Dyer, Judicial Review of Administrative Action (1996) P 601, 616. See R v Watson; ex parte A1711strong (1976) 136 CLR 248; Livesey v NSW Bar Association (1982-1983) 151 CLR288; ReJRL; exparteCJL(1986) 161 CLR342; Laws v Australian Broadcasting Tribzmal (1990) 170 CLR 70; and Webb v The Queen (1993-1994) 181 CLR 4l. The principles are further discussed in part 7. , , -- 30 of 100 -- 27 Such a citizen would be likely to be concerned if a Commissioner entrusted with the powers of this particular Commission were thought to harbour political prejudice. This follows from the circumstance that influential members of the Coalition had expressed hostility towards the CJC, including their view that the CJC had engineered considerable embarrassment for the Government. The narrative of principal events provides sufficient basis for this conclusion but it is as well to amplity it. On 27 August 1996, at an advanced stage of the Carruthers investigation, counsel assisting it (Mr Hampson QC) expressed the view that there was "enough evidence" against Mr Cooper to support a charge. Mr Connolly'S opinion was tendered by Mr Cooper's counsel, strongly refuting any such suggestion. For a.number of days Mr Cooper suffered wide publicity and speculation about his jeopardy, at local, statewide and national levels. This was quickly followed by Mr Beanland's statement of 2 September foreshadowing an inquiry into the CJc. From a public viewpoint, it was already obviously important that the appointees in any such inquiry should be seen to be impartial, and not as persons who might be thought to have preconceptions anti pathetical to the CJC or views that coincided with those on one side of politics or the other. In short it was important that anyone appointed to the Inquiry be seen to be a commissioner, not an executioner. Mr Grice's statement in Parliament then accelerated the commencement of the inquiry. His informant was his employee Mr Nicholls and there is evidence suggesting that he had known of these allegations for some time. On 17 September 1996 the Premier announced that the Inquiry was now to be "brought forward" and suggested particular terms of reference which would investigate not only Mr Grice's allegations, -- 31 of 100 -- 28 but some other issues as well which plainly .were of a political nature, and capable of leading to a judgment concerning which side of politics had behaved properly or improperly on such issues. The particular issues were ones in which CJC investigations had produced results apparently helpful to the Labor side of politics. In early November, between 2 and 4 November, both the Premier and Mr Cooper made public statements which left little doubt where they stood in relation to the CJc. They accused it of a political vendetta against Mr Cooper. Counsel for the CJC, before me, submitted that Mr Cooper's allegations were of a matter of public importance, and that the public deserved to know whether they were correct. The point that he makes is that whether they were right or wrong the allegations deserved scrupulously impartial scrutiny. I accept that submission. It is consistent with observations in Mahon v Air New Zealand24 and Kioa v West. 25 Counsel for the CJC submitted that the requirement of political impartiality grew even more acute as time passed, particularly upon a reference by Mr Beanland to the Inquiry of the complaint of one Mrs Mack in relation to her treatment by the CJc. Her complaint had formerly been espoused by Mr Beanland when in opposition. There is also the circumstance that on 30 April 1997 Mr Cooper's formal complaint was entrusted to Messrs Connolly and Ryan. This produced the consequence that Mr Cooper moved from a complainant outside the Inquiry to one within it, and he would be seen to be bringing a complaint to his former barrister. Part of his complaint in fact quotes from Mr Connolly's opinion. 24 [1984] lAC 808. 25 e1984-1985) 159 CLR 550 at 615-616 per Brennan 1. -- 32 of 100 -- 29 A complaint (concerning conduct of the CJC) was lodged by the Liberal Party in a letter of 15 May 1997. Mr Connolly, as Chairman, issued a summons to the CJC requiring it to make response to the Liberal Party's complaint. There was also one from the National Party dated 30 October 1996. The need to deal with such matters reinforces the submission that a substantial part of the Commission's work involved consideration of matters where scrupulous political even-handedness was necessary. Indeed, 80 out of 122 sitting days were devoted to matters described as the Heery, Mack, Davies, Grice and Heiner matters, all of which are politically flammable. 26 Most of these issues involved allegations of political favouritism on the part of the CJC allegedly calculated to harm the Coalition side of politics or to assist the anti-Coalition side of politics. The cross-examination of some counsel makes it a foregone conclusion that submissions to this effect will eventually be made before the Commissioners. To give one example only, Mr Beanland, when shadow Attorney-General, had made a complaint to the CJC alleging that the ALP had tried to bribe Mr Davies into not contesting a seat as an independent candidate, and that the CJC had rejected that complaint extremely quickly, privately and unsatisfactorily. The Commissioners decided to review the CJC's treatment of it. On this matter, during cross-examination of Mr Clair, Mr Connolly put the following question, with unmistakable sarcasm "Mr Davies was in the fortunate position of being the recipient of much kindness in all this business, wasn't he? Kindness from the ALP and then kindness from the CJC; it's a heartening story? ... ,,27 To the witness's response that it was an attempt to be fair he commented , "Well ... fairness and kindness both, very good." 26 Grice allegations 44 days; Davies 18; Carruthers 11; Mack 3; Heery 2; Heiner 2. 27 Transcript 3142. -- 33 of 100 -- 30 There is no doubt that the alleged political partisanship of the CJC is a central question that has been examined and is still being examined by these Commissioners. Looking at all the circumstances, including those described by Professor Homel, I think that the fair-minded observer would indeed be seriously troubled by any inference of continuing political allegiance on Mr Connolly's part. Mr Hughes QC, for the Attorney-General, submitted that the reference to "our side" was hardly shocking, and that the dominant effect of the statement is that he wanted to do good a job of review. However I think it would naturally be interpreted as indicative of a continuing favourable alignment with one side of politics. As in most circumstantial cases, particular pieces of evidence, standing alone, may seem trivial, and sometimes neutral, but in combination they may overwhelmingly point in a particular direction. I shall defer conclusions on this question until after consideration of the next section, which deals with actual conduct of the Commissioners during the work of the Inquiry. 6. Bias in Conduct of the Inquiry In each instance of conduct that is said to be indicative of bias it will be necessary to try to understand the Commissioners' responses in a wider context. It must be remembered that the cut and thrust of forensic work may produce tensions, and that denigratory comments to counsel, sarcasm and hard words from time to time may not be amiss. It is also to be remembered that although there are the trappings of court procedure, the investigation is essentially inquisitorial, and that the Commissioners are to be expected to play a far more active role in ascertaining the -- 34 of 100 -- 31 facts than occurs in a court. A wide range of expression and conduct must be permitted for a commissioner, and one should not interpret robust conduct as a badge of bias. There are very many instances of conduct by Mr Connolly during his chairmanship of the Commission that are relied on by counsel on behalf of the CJC. These he submits, when collectively considered, show a consistent pattern of hostility to the CJC and to what it has achieved, and an unwillingness to bring an objective mind to the assessment of its conduct. In short it was submitted that his conduct shows a continuing predisposition against the CJc. Some of these instances are said to reveal pre-judgment of the allegation brought by Mr Grice against Mr Le Grand. There are also some instances cited concerning Dr Ryan's conduct. It is not feasible to deal here at length with all of the very many occasions that are the subject of complaint. It will suffice to mention a few illustrative instances, including some relatively trivial and some more worrying instances. (a) One of the major instances relied on against Dr Ryan is his statement on 20 January 1997 publicly accusing the CJC of a lack of cooperation. He alleged that not only had staff members of the Commission failed to present a single submission, but that the Commission "has not received any submission on any of the matters to which I have referred on behalf of the CJC itself or its Chairman and senior officers. We have not been informed what views, if any, are held by them in respect of any of the matters which we have been charged to examine and review." He continued "There has, however, been no indication to us that it intends to put in any submission to us and the course it has followed so far in this Inquiry gives no reason to suppose that it intends to do -- 35 of 100 -- (b) and so. That course is one which I can only characterise as manifesting almost total non-cooperation. " "The principal officers of that body appear to be bent upon a course of hindering our Inquiry in every way within their power." The statement was somewhat surprising in that it was in at least some respects incorrect. The CJC had in fact delivered a lengthy submission (125 pages) in November and its Intelligence Division had delivered another extensive submission on 2 December. Beyond this it is impossible for me to tell whether the CJC's cooperation with the Inquiry was more of a pretence than a reality, but I am prepared to infer that there was some basis for the Commissioners to be concerned at the level of cooperation they were receiving. The Commissioner's allegation was immediately contradicted by Mr Hampson who outlined the history of arrangements between the Commission and the CJC and the material which it had supplied. A press release of the Commissioner's comments was however permitted to be released. The incident is suggestive of an "us and them" attitude that seems to have existed between the CJC and the Commission, and it evidences a lack of trust on both sides. On numerous occaSIOns Mr Connolly has expressed a degree of disapproval of the CJC's conduct in claiming legal professional privilege with respect to a number of documents gathered for its own protection and for the protection of Mr Le Grand in an attempt to defend themselves against the Grice allegations. Such resentment can be seen at a fairly early stage in transcript -- 36 of 100 -- 28 29 references. 28 For example when a part-time commissioner of the CJC was being examined the following remarks were made "Question by Mr Connolly: Do you like the idea of being a part- time commissioner of the CJC whose counsel, your counsel, is denying us access to documents which may be very helpful? Do you like that idea? Answer: Well I'm not sure that - I mean, I don't know that he is denying it. Mr Connolly: He's doing his best." This was to be a recurring theme displaying frustration if not outrage at the CJC for daring to assert such a right. The Commissioners ruled against the privilege claim, but the CJC and Mr Le Grand appealed to the Supreme Court where the matter came on before me. I upheld the substance of their claim to privilege. One consequence of this was that when the Commission later came to examine the alleged improper conduct of Mr Le Grand, counsel for the CJC and Mr Le Grand had some documents which the Commission did not. 29 Mr Connolly's disapproval seems to have intensified after the adverse court decision. His comments included that the suggestion that Mr Pearce (a barrister) was bound by legal professional privilege was "extraordinary" and that the claim was "a technical device", that the insistence upon a claim of privilege was "just a game that's being played" and that "you'd think that (the CJC was) from the Soviet Union or something you people". He added that the Commission of Inquiry was "being frustrated at every tum" by the claim of privilege. e.g. pp 726, 807. See for example pages 726,807 and 893. -- 37 of 100 -- , \ 34 He later asserted, while respecting the Court's decision "that the evidence was changed when it came before that learned Judge". Certainly no suggestion to that effect had been made in the proceedings before me. In an attempt to demonstrate that such a view could be reasonably entertained by the Commissioner, counsel for the Attorney-General during final address invited me to make a comparison between certain pages of the private transcript when the matter was originally raised before the Commission, and the affidavits which were filed in the proceedings before me (in particular, to compare private transcript pages 84,90, 102-103, 126-127 and 135-137 with paragraphs 7, 8 and 26 of Mr Clair's affidavit and paragraphs 29-31 of Mr Pearce's affidavit). Having done so I consider that the essential basis of the claim did not vary although some confusion was exposed in the minds of those witnesses under lengthy questioning. There always was a difficulty in separating out the new defensive task (to defend Mr Le Grand and the CJC in relation to the Grice allegations) entrusted to Mr Pearce, and other official CJC functions such as retrieving material concerning the "Wallah" investigation and a preliminary collection of what might become relevant to any official inquiry the CJC might make into the Grice allegations. The issue both before the Commission and before me was the same - whether those things could be regarded as separate tasks or whether privilege was lost by reason of dual purpose. The matter had been simplified to some extent by the time it came to the Supreme Court, because in the meantime the CJC had conceded that some of the documents in respect of which they originally sought to claim privilege were not so entitled and these had already been supplied to the Commission. -- 38 of 100 -- 35 In those respects some elements capable of producing confusion had been removed by the time the case was presented in the Supreme Court. However I do not think that it was fair to allege that the evidence had changed or that there was any reasonable basis for Mr Connolly to make that allegation, as he repeatedly did, against the CJC and its officers. Mr Connolly conceded that he had not read the evidence in the Supreme Court proceeding. On succeeding days Mr Connolly returned to the same theme, stating to Mr Nicholls' counsel with respect to a privileged document "We've been facing this sort of business for months" and again some days later to Mr Nicholls' counsel when a document was put to him "and all the matter of legal professional privilege you must remember. That gives it a special weight I suppose." Upon Mr Hampson submitting that "we're all bound by the way it's been determined" by the Supreme Court, Mr Connolly replied "You're perfectly correct. We're perfectly bound by it but we're also entitled to be conscious of the fact that the evidence was changed". Mr Hampson protested observing "It seems a case of bad losers, but its kept being re-ventilated the whole time". Mr Connolly however subsequently responded that the CJC witness had relied on "chapter 2, on the amended statement of evidence". As recently as 24 June 1997, Mr Connolly repeated his belief that the evidence was changed. I am conscious of presenting extensive quotations and discussing at some length a series of incidents on a theme that might be regarded as relatively unimportant. However it is necessary to do so in order to place it into some kind of context and in order to characterise it. It does not seem to have been merely playful banter with counselor part of the cut and thrust of contentious -- 39 of 100 -- (c) (d) 30 36 proceeding. It can be seen as a part of a wider pattern of denigration of and apparent hostility towards the CJC. The CJC was the body he was appointed to investigate and its future would be affected by his report, according to whether he saw it in a positive or a negative light. The examples in this subparagraph expose resentment against the CJC which is difficult to justify, and they were in my view unfair. On 20 January 1997, having expressed his concern at Mr Hampson and his instructing solicitors having the authority to act not only on behalf of the CJC, its Chairman, its Commissioners and members of staff of the CJC, Mr Connolly stated "1 have seen a document which was a statement made by a fairly recent witness with parts of the document struck out apparently by your instructing solicitor. ,,30 The insinuation was that the CJC's solicitor was taking a proactive role In maintaining a consistency of interest between those persons, to the extent of striking out part of a statement. Mr Hampson referred to the document in question and reminded Mr Connolly that its maker had already given evidence that he had made the alterations to it himself There was no retraction. This is of itself perhaps a minor matter, but it tends to support the submission that there was a propensity to attribute impropriety to those acting for the CJc. On 11 February 1997 in questioning by Mr Connolly ofMr K.H. Davies (the former Chairman of the PCJC) Mr Connolly stated " ... I'd like to be corrected on this if I've got it wrong, but that seems to be the view that they take, that means that they're not Transcript page 1095. -- 40 of 100 -- f , • I (e) (f) 31 32 37 obliged to give any reasons to anybody for anything that they dO." 3l The witness responded by suggesting that "they" (no doubt the ClC personnel) "get hung up on this word 'independence'" and went on to quote what Mr Fitzgerald had to say about balancing accountability and independence. This example shows no more than a concern about a perceived attitude of the ClC, and it may well have been a justified perception. Its only relevance is that it is another of many negative perceptions. During the giving of evidence by Mr Strange, an officer of the ClC, counsel for the CJC (Mr Martin) objected to the continued cross-examination of Mr Strange after he had stated that he could only make the comparison he had been requested to make if he had the necessary material to do SO,32 and submitted that it was impossible for Mr Strange to answer those questions unprepared without documentation relative to one of those matters. Mr Connolly responded "He wouldn't accept that if he were' slttmg ill the CJC; unprepared is the way they like them, surely." A little later on the same day Mr Morris QC, counsel for Mr Davies, cross-examined Mr Strange on the meaning of the word "substantiated". The witness's answer was "proven". The following exchange ensued "Question: Proven. What, you're judge and jury now are you? Answer: No. Transcript p 2006. p 2460. -- 41 of 100 -- (g) 38 Question: You decide whether something's proven. I think 'proved' is actually the word but you decide guilt or innocence, do you? Answer: No we didn't decide that at all. Question: This Gestapo Headquarters at Toowong is now the organisation which decides who's guilty or innocent in our community. Answer: No, we don't, and I've explained our role before." '\ " This was inflammatory and unacceptable, and there was no intervention on the part of the commissioners. It must be said however that neither was there any objection taken by Mr Hampson. It might be noted that a similar sentiment was subsequently echoed by Mr Connolly on 12 June 1997 (transcript page 7252) in the course of consideration of Mrs Mack's complaint. Mr Martin referred to the fact that allegations were made against a number of police officers and others in the course of the investigation. Mr Connolly responded "A sort of Gestapo raid, a horde of people descended upon these people, I don't know, but that's not of any great interest to anybody is it? I wouldn't know." Counsel for the Attorney-General sought to explain the comment on the footing that it was a heavy execution of a search warrant, and that it would have been preferable to have served a notice to produce under s. 69 of the Criminal Justice Act. It still seems however to be an intemperate way to describe the incident. There are a number of respects in which it was submitted that unfairness IS evident in approaches taken by Mr Connolly in relation to the Grice allegations made against Mr Le Grand. These allegations are founded entirely upon the evidence of one Mr C. Nicholls, who during a former inquiry into the -- 42 of 100 -- 39 very question of who was responsible for the loss of relevant CJ documents had assured the inquiry that it was not Mr Le Grand. The submissions include the following (i) a lack of even-handedness in the treatment of Mr Nicholls on the one hand and Mr Le Grand on the other. The suggestion is that there was some cosseting by Mr Connolly of Mr Nicholls and some indication of pre-judgment against Mr Le Grand. For example, during cross- examination of Mr Nicholls Mr Hampson commented that he had already "told us all that" and that there was no need to repeat it all. Mr Connolly commented "It's an immense story that he's telling. It covers a long period. Then you asked him how long did it take, he tells you, and you say 'Don't be repetitive'." A little later ( 35 pages later) Mr Hampson made submissions that Senator Chapman should be called to give evidence which would assist Mr Le Grand's case. The following comments were then made "Mr Connolly: But there's got to be an end to the evidence and counter-evidence and we just have to be satisfied at the end whether something happened or didn't. Mr Hampson: You have been told a long elaborate story by this witness. Mr Connolly: I wouldn't have thought so." (ii) At page 4586 the following exchange occurred III relation to Mr Nicholls" s evidence "Mr Connolly: Well you ask the sort of question that requires a long explanation, you'll get a long explanation. -- 43 of 100 -- 33 40 Mr Hampson: This, with the greatest respect, is a witness who gIves long explanations for every question. Mr Connolly: Well because he doesn't feel he's amongst friends. Perhaps, Mr Hampson, he feels he should cover it as best he can. He's not a 'yes' and 'no' witness and you're not going to make him into one." I \ I I In cross-examining Mr Nicholls Mr Hampson drew to his attention that if his story was correct he was criminally liable for having induced someone to break the law. Mr Connolly'S response was "That's kind of you Mr Hampson. Could you get on with the cross-examination. Don't threaten the witness." In contrast to these instances (4586 and 5096) is the approach taken towards Mr Le Grand when he gave evidence (page 5322-5325). The passage is too long for quotation here, but there was an insistence that the witness answer responsively and an occasion when after apparently having answered a question responsively Mr Connolly asked "Are we approaching an answer to the question yet?". (iii) Mr Nicholls produced a note allegedly made by himself when he claimed that Mr Le Grand disclosed confidential information to him. It was tendered. In upholding the application of counsel assisting for a suppression order in relation to it, Mr Connolly stated Transcript p 5116. "The fact that Mr Le Grand told Mr Nicholls doesn't mean that it should be let free into the community. ,,33 -- 44 of 100 -- 41 Taken literally, that statement indicates a serious pre~udgment at a time before Mr Le Grand had given any evidence. It was submitted by counsel for the Attorney-General that this was merely a clumsy use of words, and that Mr Connolly would have intended the words "assuming it to be a fact" to be included. Counsel for the plaintiffs submitted that it was an unguarded comment indicating his actual attitude. That submission would gain strength if there happens to be other substantial evidence of errors being made against Mr Le Grand, discretions being exercised against him or of questionable decisions being made contrary to his interests. (iv) Mr Pearce, who made inquires concerning Mr Nicholls on behalf of the CJC and Mr Le Grand, was required to provide counsel for Mr Nicholls with a list of the persons to whom he had spoken about Mr Nicholls during his investigation. A request on behalf ofMr Le Grand for similar information was denied. His advisers however were given access to documents provided by Mr Nicholls to the Inquiry before they were required to cross-examine him. (v) There are instances of Mr Hampson being denied further cross- examination of Mr Nicholls after receiving a denial to an answer going to his credit. A Commission such as this is of course not bound by the rules of evidence. Not uncommonly however a Commission may find it conveni.ent to follow familiar rules of evidence including the application of the collateral evidence rule. There are instances where further cross- -- 45 of 100 -- 35 42 examination could have been permitted,34 but I find it difficult to see that these particular refusals show anything amiss. (vi) Mr Hampson put to Mr Nicholls a conversation in which Mr Grice allegedly mentioned that certain people doubted his (Nichollsl) veracity. Mr Connolly interrupted the cross-examination to advise the press not to regard denials as a form of evidence of the truth of the content of the questions. Counsel for the plaintiffs simply point to the fact that no similar statement or protection was volunteered during the evidence of Mr Le Grand, to whom propositions alleging disgraceful conduct were repeatedly put and not accepted. (vii) Mr Nicholls denied Mr Hampsonls proposition that he (Mr Nicholls) had prepared a personal reference that the Senator had signed in his favour. 35 Mr Hampson produced a copy of a letter (which had been obtained by Mr Pearce) from Mr Nichollsl father which had been sent to Mr Nicholls care of Senator Chapman shortly before the reference was obtained, suggesting that he get a reference from the Senator. It was in my view perfectly proper to produce that letter to the witness. Mr Nichollsl counsel objected that the letter was llstolen ll and suggested impropriety on the part of the CJC in having possession of it. The copy letter, produced on Senator Chapmanls fax machine, had been left in the Senatorls possession. I can see nothing objectionable in the obtaining of a copy of the fax from Senator Chapman who was wilIing to supply it to See for example pp 4586, 4599, 4604, 4615, 4616. Transcript 4664. -- 46 of 100 -- (g) 36 37 the CJC, or in counsel's use of it to jog Mr Nicholls' memory on the circumstances in which the reference came to be prepared. Mr Connolly's response appears in the following exchange "Mr Connolly: Well it may not be theft but it leaves a rather nasty taste, doesn't it? Mr Hampson: No, with respect and I don't see anything at all in that ... Mr Connolly: Anything the CJC wants they should have and that doesn't leave any nasty taste anyway?" This then led to further statements by Mr Connolly accusing the CJC of having changed the evidence when it succeeded in having its claim to privilege of such documents upheld. (viii) A substantial issue concerning the exclusion of allegedly relevant evidence from 10 witnesses which would tend to support Mr Le Grand's case and weaken that of Mr Nicholls (wrongful exclusion) will be separately dealt with. 36 On 14 March 1997 37 the following exchange occurred between Mr Martin (counsel for the CJC) and Mr Connolly. "Mr Martin: '" There is no foundation, on the face of the document, to suggest how he could be giving these opinions. In my respectful submission evidence - and I use the term very loosely - evidence of this type simply lowers the standing of this Inquiry. Mr Connolly: I thought that was what you were rather anxious to achieve but anyway. Mr Martin: Of what Your Honour? See sub-para (h) below pp 45-52. Transcript 3486. -- 47 of 100 -- 44 Mr Connolly: Lower the standing of the Inquiry. Mr Martin: What, are you accusing me of doing that, Mr Chairman? Mr Connolly: Well your system. Mr Martin: I beg your pardon? Mr Connolly: Your system . . Mr Martin: My system? Mr Connolly: Yes, the people for whom you appear. But anyway you say it lowers the standard of the Inquiry. Well that's our province not yours." , tI It may be noted that this occurred on 14 March 1997, four days after objection had been taken on the ground of bias. Coincidentally it was also four days after the delivery of judgment in favour of the CJC on the question of privilege. Counsel for the Attorney-General submitted that Mr Connolly might reasonably at that time have been of the impression that the CJC was trying to lower the standard of the Inquiry. He relied firstly on the fact that Mr Clair had been very critical of the setting up of the Inquiry in the first place, citing The Courier Mail report of 17 September 1996. That was six months earlier and at least some level of cooperation had since been forthcoming. Secondly counsel referred to the somewhat aggressive statements made by Ms Hamilton (general counsel for the CJC) when she gave evidence on 11 December 1996. She had said "I have great concerns about the way these allegations were made under privilege; the way they were used by certain politicians as a justification for bringing this inquiry on sooner rather than later; about the whole political climate surrounding the allegations. I have concerns about the way counsel assisting this Inquiry have conducted themselves; the attitude they've taken; the assumptions that have been made; the fact that -- 48 of 100 -- 45 people within the Commission have been treated as though they are criminals; all of this concerns me greatly. I'm not a criminal. " That of course was critical of certain matters concernmg the Commission though not of the Commissioners. The question is whether it might reasonably have been seen by the Chairman as an attempt to lower the standing of the Inquiry. It does not seem so to me. It was a spirited statement of her concerns, and she was surely entitled to express them. Thirdly, reference was made to Mr Hampson's objection to the provision of records concerning about 700,000 telephone calls in which he suggested that the risk of compromising informants' secrecy was increased if the information was handed over. Reference was also made to a statement in The Courier Mail of7 February 1997, but I do not think that either of those last mentioned matters supports the formation of such a belief. On the whole I think that this exchange is to be seen as a revelation of hostility in circumstances where it is difficult to justify a clear ground for the making of the accusation. (h) Witnesses denied This complaint IS that the Commissioners unfairly refused to hear evidence from 10 witnesses who could assist Mr Le Grand's defence against allegations of serious misconduct. The allegation against Mr Le Grand was that on a certain date in 1994 at the Park Royal Motel he had given Mr Nicholls confidential information from CJC "operation Wallah". The evidence against Mr Le Grand comes from -- 49 of 100 -- 38 ! \ I J 46 Mr Nicholls, who undoubtedly obtained the documents from somebody. A special inquiry by NIr Hanson QC in 1996 to discover the source of the "leak" failed to determine its source, although it narrowed the possibilities. During that inquiry NIr Nicholls gave an unqualified statement to NIr Hanson that he had not obtained the documents from NIr Le Grand and that NIr Le Grand was not his source. Now before the Connolly-Ryan Inquiry he said otherwise. He was extensively cross-examined by NIr Hampson on behalf of the CJC and NIr Le Grand. This issue is specifically mentioned in the terms of reference in clause 2(i) which calls on the Commissioners "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 issue appears to have been taken very seriously by all concerned, and to be seen as a possible litmus test of the propriety and trustworthiness of the CJC as an institution. The "in chief' evidence led from NIr Nicholls alleged a pattern of similar misconduct between himself and Nlr Le Grand, over a number of years, commencing when NIr Le Grand had been an officer of the National Crime Authority. Such a relationship involving a series of unlawful disclosures between them particularised by a number of instances would tend to support the truth of the principal allegation. I have little doubt that it would be admissible in a court oflaw. 38 In any event it was certainly appropriate that it be received See Harriman v The Queen (1989) 167 CLR 590, 595-596 (per Brennan 1), 597, 600 (per Dawson J), 609 (per Toohey J), 624, 627, 631-634 (per McHugh J); cf. R v Hasler, ex parte Attorney-General [1987] 1 Qd R 239,242 per Connolly J. -- 50 of 100 -- 47 by the Commission of Inquiry which is not bound by the rules of evidence, and which had the express duty, quoted above, to examine the events, facts and circumstances surrounding the allegations. The pre-existing relationship between the two men certainly seems relevant. Among other grounds, without this evidence a spontaneous volunteering of a document by Mr Le Grand in 1994 might be difficult to credit. Whether they formed a relationship of this kind was certainly in issue. If such evidence was received against Mr Le Grand it is elementary that he should be given the opportunity of calling evidence that would help to disprove it. Mr Nicholls alleged and was permitted to give evidence that confidential information had been provided to him by Mr Le Grand in 1990, firstly during a telephone conversation in January and secondly during a visit by Mr Nicholls to Mr Le Grand's residence in March. The first information was said to be "the Ark report", and a copy of it is later alleged to have been sent by Mr Le Grand to Mr Nicholls. Mr Nicholls also alleged that during his visit to Mr Le Grand's residence in March 1990, Mr Le Grand informed him of an NCA investigation concerning persons named D and C and affecting an important person named F. He also alleged that later Mr Le Grand read over the phone to him an Inter- Governmental Committee (IGC) report on the same subject. Mr Le Grand's response was to deny those allegations. In particular he said he had no knowledge of matters involving Messrs D, C and F at the time of Mr Nicholls' alleged visit and could not have told him of such matters. He had -- 51 of 100 -- , " 48 first been told something about it by the Hon. D.G. Stewart, in the context of another inquiry, in 1994. In due course counsel for Mr Le Grand sought to call the Hon D. G. Stewart who had been the Commissioner who had conducted the relevant investigation concerning Messrs D, C and F. The evidence to be given by him would show that the relevant investigation was conducted without Mr Le Grand's knowledge and that Mr Le Grand had first been informed of the investigation in 1994-1995. The Commissioners refused to allow Mr Stewart to be called. Mr Stewart could also have informed the Commission that Mr Nicholls, then a journalist in South Australia, telephoned him a number of times seeking his comments on these particular issues but that he had refused to make comments. Subsequently Mr Nicholls made further attempts to obtain information by using false names and claiming to represent other bodies. On one such occasion he was put through to Mr Stewart who identified him. He then told Mr Stewart that giving false details was the only way he could get to speak to him about NCA matters. I In my view Mr Stewart should have been called if Mr Le Grand's position was to be properly considered. The evidence that the matter of D, C and F had been conducted without Mr Le Grand's knowledge at the material time was relevant, and depending upon closer inquiry from Mr Stewart in relation to the security of his system, could have been highly relevant. The reasons for its rejection are not clearly articulated, beyond statements that it was not relevant. -- 52 of 100 -- 49 Before me, counsel for the Attorney-General submitted that Mr Stewart's evidence was rightly excluded because there would always be a possibility of Mr Le Grand's having obtained the information without Mr Stewart's knowledge. That however would surely be a "jury" question. Evidence does not need to be conclusive before it can be received. On the face of the proposed statement, Mr Stewart's evidence could have been very useful to Mr Le Grand on a relevant question. Further, Mr Stewart's evidence would also indicate that Mr Nicholls was still pestering him for comment on the Ark report as late as September 1990, at a time when, according to Mr Nicholls, Mr Le Grand had long since identified the report and provided a copy of it to him. The evidence about Mr Nicholls' use of false identities might also have been received, although on that point it would be within the province of an objective commissioner to have declined to receive it. Further evidence was tendered on Mr Le Grand's behalf, and agam refused to be heard by the Commission, from Mr A. Male, a journalist. This also concerned the allegation that Mr Le Grand had provided Mr Nicholls with a copy of the NCA's Ark report in early 1990. Mr Male could give evidence that Mr Nicholls started publicising and appeared to be in possession of an NCA Ark report in November 1990. At that time Mr Nicholls was busy arranging broadcasts in relation to it. Ther~ is an arguable inference of recent possession. More importantly, Mr Male published an article about the Ark report under his own name at about the same time, and made mention of Mr Nicholls in the last two paragraphs of it. Soon after that publication, a staff -- 53 of 100 -- 50 member in the South Australian Parliament telephoned Mr Male in the belief that he and Mr Nicholls were in joint possession of the leaked report and were jointly publicising it. On the erroneous assumption that this was so, that person then gave a copy of the document to Mr Male. This evidence might tend to support an inference that Mr Nicholls' source was that staff member and that the document had been leaked through a source other than Mr Le Grand. The Chairman's ruling reveals perhaps some misunderstanding of the effect of the evidence. He interpreted the evidence as suggesting "that Nicholls represented himself to bea collaborator with Male and that this was false. If this is discreditable it goes wholly and solely to the credit of Nicholls and has no bearing on our Inquiry." Whilst the inferences that were sought to be drawn from Mr Male's evidence may be tenuous, the evidence had a bearing upon the relationship of the parties, and it tended to disprove Mr Nicholls' story. It was evidence that should reasonably have been entertained. The next matter upon which evidence-was rejected arIses from the evidence of four witnesses, Kirsty Johnston, John Johnston, Susanne Darrington and Gillian McKay. Suffice it to say that the combined effect of the events that could be described by these witnesses would show Mr Nicholls in a very discreditable light. They show improper and deceitful approaches to a teenage pupil in order to interview her about her father who was an NCA officer. This led to proceedings against Mr Nicholls by the Australian Journalists Association and to further deceit on his part in relation to those proceedings. Counsel for the plaintiffs submitted that the evidence went to his , . , -- 54 of 100 -- 51 character, to his moral propensity to lie and reveals something in the nature of a psychological illness. In my view it was .open to the Commissioners to decline to receive this evidence, as it was essentially a collateral issue that went to credit. On the other hand it would have been perfectly open to the Commissioners to receive such evidence, especially in relation to a key issue in the Inquiry where its resolution depended upon their assessment of the respective credibility of Mr Nicholls on the one hand and Mr Le Grand on the other. However there has to be a point at which inquiries may decline to go further, and it was open to the Commissioners to rule as they did concerning that batch of evidence. The next complaint relates to the evidence of four other witnesses, N.J. MacDonald, J.D. Longdon, J.R. Palmer and W.A. Palmer. This evidence would demonstrate Mr Nicholls' extraordinary and ongoing efforts to cultivate NCA sources in mid-1990, at a time when he claims Mr Le Grand was a constant source of NCA information. It also suggests his propensity to resort to the use of lies, false identities and false allegations to secure his ends. Once again I cannot say that it was not open to the Commissioners to rule as they did and decline to hear the evidence. The most that can be said is that it would also have been a proper exercise of discretion to have received the evidence. However no inference should be drawn from the fact that this particular evidence was excluded. In summary, there was some potentially very relevant and useful evidence wrongfully excluded which could have assisted on Mr Le Grand on this important issue. There was also substantial other evidence which was -- 55 of 100 -- , " 52 within the Commissioners' discretion to receive, reflecting very adversely upon the credibility ofMr Nicholls, but the Commissioners acted within the discretion open to them in refusing to hear that evidence. (i) Commissioners' Statement of 17 July 1997 39 -10 This statement has been earlier mentioned. 39 For reasons mentioned later-lO the making of this statement at the time and in the circumstances in which it was made might be regarded primarily as a tactical ploy, though no doubt a desire to relieve anxiety on the part of Mr Carruthers may also have played a part in its presentation. Standing alone, it would be impossible to uphold either the plaintiffs' submission that this statement was a clear indicator of bias or the Attorney- General's submission that it was merely the reasonable foreshadowing of a report. In my assessment however, it has too many extraordinary features to be viewed in a neutral light. I think that in the assessment of the fair-minded observer, it tends to present a late about-face, to display a tactical manoeuvre, and overall to diminish the perceived objectivity of the Commissioners. At the suggestion of the court, and in an attempt to counter the effect of the extensive instances when Mr Connolly displayed apparent disapproval of the CJC or of those associated with it, counsel for the Attorney-General produced what he submitted were countervailing examples of even-handedness or of a demonstration of Mr Connolly's willingness to be fair to the CJC. Only seven passages were cited. Three of these are instances where Mr Connolly made See above, pp 25-26. In Part 6 at pp 76-78. -- 56 of 100 -- 41 -l2 53 acerbic comments to persons other than those associated with the CJc. One was his concession that he had found a commentary prepared by the research division "helpful":u Another was a qualified rejection of an opinion critical of the CJC, by the comment "You know if there's any substance in this, it's parallel to practically every large organisation".-l2 One was of the Commissions agreeing to grant an adjournment to counsel for the CJC (Mr Martin) when he received late notice of a 75-page document. It seems to me that it would have been rather unfair if they had not done so. The last instance was a preliminary indication (on 8 July 1997) suggesting that it would be difficult to blame the CJC for the Heiner document shredding incident.-l 3 Given that the last and best example occurred after the commencement of the present proceedings, the above instances in my view do little to change the overall picture which is one of recurring hostility towards the CJc. The concatenation of instances referred to in this part points fairly steadily in the same direction. The erroneous refusals to receive evidence are of particular concern. Standing alone these may simply be errors of law, but they denied natural justice and once again they were acts that militated against the interests of the CJC and Mr Le Grand. Transcript, 1342. Transcript, 1846-1847. Transcript, 8225-8233. -- 57 of 100 -- , '. 54 7. Conclusions on Bias "It is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. ,,44 The relevant test for bias, compendiously stated, is whether the circumstances are such as would give rise, in the mind of a party or in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a prejudiced mind or a lack of impartiality on the part of the decision-maker. 45 This objective is applicable not only in the proceedings of courts but also in various quasi judicial tribunals, administrative tribunals, and commissions of inquiry. The application of such principles to commissions of inquiry may be seen in such cases as Mahon v Air New Zealand Ltd;46 Ainsworth v Criminal Justice Commission;47 Re Royal Commission 011 Thomas Case;48 R v Carter and The Attorney-Genera?' Bradshaw v Kyle? and Gaisford v Hunt and the CommolTHI ealth. 51 In applying the principles different expectations of conduct will exist according to the function being performed by the person or e~~ity who exercises the relevant public power. For example a degree of intervention that is unacceptable in a judge may 45 46 47 48 49 50 51 WebbvR(1994) 181 CLR41,50-52,68. Livesey v NSW Bar ;J.ssociation (1983) 151 CLR 283, 293-294; Laws v Australian Broadcasting Tribl/nal (1990) 170 CLR 70; Re Polites ex parte Hoyrs COIporation Pty Ltd (1991-1992) 173 CLR 78,85. [1984] lAC 808. (1991-1992) 175 CLR 564. (1980) I NZLR 602. Full Court of Supreme Court of Tasmania, 23 October 1991. Steytler J (W A) 9 February 1996. Full Court of the Federal Court, Beaumont, O'Loughlin and Lehane JJ, Sydney 6 December 1996. -- 58 of 100 -- 55 be acceptable in a commissioner. The commissioner has an inquisitorial function while the role of a judge is essentially to adjudge an adversarial contest. But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless. The practical implications of applying the Livesey principle to a different type of body were recognised by Deane, Toohey and Gaudron JJ in a case concerned with the conduct of a deputy president of the Industrial Relations Commission. "The precise practical requirements of that principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal. Thus, the operation of the principle in a case such as the present where it is sought to prevent a member of the Commission from participating in the determination of particular proceedings is governed by a number of considerations relating to the nature and functions of the Commission, the prescribed or desirable formal qualifications and practical experience of those appointed to discharge those functions, the nature of the contests involved, and the Australian industrial environment."s2 In R v. Maurice & aI's ex parte Attorney-General (Northern TerritOly/3, the Full Court of the Federal Court (Bowen CJ, Lockhart and Sheppard JJ) recognised that 52 53 "The principle in question has been applied in the past to commissions or tribunals which were not courts: see, for example, R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 and Murphy v Lush (1986) 65 ALR 651. In the case of commissions of inquiry, however, the application of the principle will of course depend upon somewhat different considerations from those which apply in legal proceedings with definite parties and defined issues. In R v Commonwealth Re Finance Sector Union of Australia ex parte Illaton Pry Ltd (1992) 66 ALJR at 583 per Deane, Toohey and Gaudron JJ, having first reierred to the Livesey principle. (1987) 73 ALR 123,140. -- 59 of 100 -- 56 Conciliation and Arbitration Commissioner; ex parte Angliss Group it was said (at 533): 'It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. "' , " In the present case the relevant Commission of Inquiry was an executive body entrusted with the duty of making "full and careful inquiry" with respect to designated matters and "to make full and faithful report and recommendations touching the aforesaid subject matter". 5~ There is nothing objectionable in the formation of a preliminary view on a particular question. That however is to be distinguished from pre-judgment and prejudice. "When suspected pre-judgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. ,,55 It was submitted on behalf of the Attorney-General that many ofMr Connolly's statements might be characterised as the mere "formation of a preliminary view" which any member of a court or public body is entitled to form as matters proceed. The question of course is whether the evidence justifies a reasonable apprehension of something more than that. It was submitted that Mr Connolly's media statements, for example, did not demonstrate an immutable view on a matter relevant to the terms of 54 55 The rules of natural justice apply to commissions of inquiry. '\fahon v Air New Zealand [1984]1 AC 808, 820; NCSC v News Corporation Ltd (1984) 156 CLR 296, 313-315; Ainsworth v CriminalJustice Commission (1992) 175 CLR 564. Laws v Australian Broadcasting Tribunal above, per Gaudron and McHugh JJ at 100. -- 60 of 100 -- 57 reference. The fair-minded observer however might think that they revealed a fairly clear view about Mr Carruthers and his Inquiry. It was further submitted that the many adverse comments referred to above should be characterised merely as the conduct of a robust commissioner. In many instances, in my view, the given examples go beyond this. It was submitted that the statement made to Professor Homel should be construed as a statement of intention to act properly, but in my view it carries a considerably wider meaning than that. I do not propose to repeat at any length the matters that have already been set out and discussed in parts 4, 5 and 6 of these reasons. When all the relevant factors are brought into account I venture to think that there is overwhelming evidence of ostensible bias against Mr Connolly with respect to matters that his Commission had to consider. The picture would include all of the following perceptions in the mind of a fair-minded and informed member of the public: that shortly before the Commission was set up, Mr Connolly had given an opinion to Mr Cooper concerning the Memorandum of Understanding such that Mr Connolly's view might be thought to be that the Carruthers Inquiry (still running) was a waste of time and money; his acceptance of the Commission to investigate the conduct of the CJC in circumstances where his former client Mr Cooper was sorely aggrieved by the CJC's conduct; his publicly insulting Mr Carruthers; his public reinforcement of his opinions; his expression of political alignment while the Commission was current; his participation in hearing, with a view to making final recommendations based thereon, numerous politically driven and politically sensitive complaints that the CJC was favouring one side of politics; his difficulty in effectively fencing himself off from what was called the "Inquiry into the Carruthers Inquiry"; his conduct of hearings in a manner apparently -- 61 of 100 -- 58 more supportive of witnesses adverse to the CJC than those favourable to it; his frequent display of rancour, without apparent cause, against the CJC and those representing it; his willingness to participate in determining the validity of complaints such as the two complaints of Mr Beanland and at least to some extent the wide ranging complaints of his former client Mr Cooper and other politically contentious issues; his uneven conduct in relation to the important issue of alleged impropriety by Mr Le Grand including a refusal to receive evidence that would support Mr Le Grand's defence; and finally, the consistency of the above pattern and of the direction in whiGh all these matters point. As pointed out recently by Lockhart J56 it is a rare case where actual findings of bias are made, mainly, it would seem, because it is always difficult to explore the actual state of mind of a person said to be biased. In the present matter there is evidence capable of consideration that could lead to a finding of actual bias, but it is not necessary for the disposition of this case to make a formal determination of that question. The finding which I make of ostensible bias is sufficient for the purposes of the present case. There was no allegation of actual bias against Dr Ryan. The case against him was limited to the question of apprehended bias. There was no evidence of political interest or inclination on his part. Moreover, an extensive reading of many parts of the transcript of proceedings fails to show convincing evidence of preconception, or animus against a particular person or entity. There are a number of instances, already set out above, where criticisms are possible. However leaving aside for later consideration the difficulty occasioned by his necessary association with Mr Connolly, 56 Singh v Minister for immigration & Ethnic Affairs, Federal Court, 18 October 1996. -- 62 of 100 -- 59 his failure to disassociate himself from certain acts and words of Mr Connolly, and the consequences of association with a disqualified person recognised in StollelY v The Greyhound Racing Control Board,57 the evidence would not justifY a finding of apprehended personal bias on Dr Ryan's part. The evidence does show however, quite naturally, a teamwork approach, and it cannot be gainsaid that Dr Ryan has joined with Mr Connolly in the decisions that have so far been taken, including those with respect to the exclusion of evidence relating to Mr Le Grand. It is also to be inferred that he has been in very regular, usually daily contact with Mr Connolly discussing the matters with which the Commission was involved, and endeavouring to form preliminary views over which they could both agree. These matters will therefore have to be considered in due course in answering the question whether the Commission can continue with Dr Ryan alone. 58 8. \Vaiver The relevant sequence of events is described in PJl[t 4 of these reasons. In his final address Mr Hughes QC for the Attorney-General submitted that each of the plaintiffs had unduly delayed in bringing proceedings and that their dilatoriness "disentitles them to the exercise of the Court's discretion". This is posited on the discretionary nature of injunctive and declaratory relief. The factors most heavily relied on to support this submission may be summarised as follows 57 58 (1972-1973) 128 CLR 509. See below, part 12. -- 63 of 100 -- 60 (1) After some "preliminary huffing and puffing" in November nothing was done, and there has been the progressive incurrence of heavy expense by the State as the Commission has proceeded. The evidence shows that the present Commission apparently runs at a high level of expenditure, and the evidence from Mr Boiston is that the cost of the Inquiry up till 18 November 1996 was $1,205,558; by 20 February 1997, $1,425,308; by 2 June 1997, $4,781,400; and by 30 June 1997, $5,375,900. The average weekly cost of the Inquiry over the period mentioned seems to have been approximately $130,000, with the rate having increased somewhat~ since the present legal proceedings began. (2) The CJC, in correspondence in November, showed that it was aware of some ground for possible challenge on the grounds of excess of the terms of reference and of bias on Mr Connolly'S part. On 15 November a letter written on behalf of the CJC stated that if Mr Connolly did not step aside it intended making an application to the Supreme Court. What happened instead were "inconclusive colloquys" between counsel and the Commission. Objection however was taken before the Commission, but did not find favour with its members. On 25 November Mr Connolly rejected the application that he disqualify himself Statements were made at that time both by Mr Hampson and Mr Hanger which, as I understand the submissions, are not said bind their clients to any particular course. (3) The next development was the attempt to "fence off' any part of the inquiry relating to Mr Carruthers from Mr Connolly. In the event it was not an entirely successful experiment. -- 64 of 100 -- 61 (4) On 10 March 1997 application was made for the disqualification of both Commissioners by counsel on behalf of Mr Carruthers. Again it was refused. Eventually an application was made on behalf of the CJC also for disqualification of the Commissioners, and they refused this on 5 June, two days after the issue of Mr Carruthers' writ. (5) There was what Mr Hughes called an apparent lack of any corporate expression of concern in the minutes of meetings of the CJC. That I think is explained by the evidence of Professor Homel who describes a picture of initial concern mixed with hope. The former seems to have grown while the latter receded; and as Mr Clair's concerns were not formally raised as business they were not minuted. (6) Some reliance was also placed upon the statement issued by the Commissioners on 17 July 1997 "clearing" Mr Carruthers, but I have difficulty in understanding how that strengthens any inference of waiver against the plaintiffs. Perhaps it is included as a factor that is said to reduce or eliminate any need for relief on the part of Mr Carruthers, and on that footing is said to strengthen an argument urging the Court to withhold its discretionary remedy. The principal case relied on to support a finding of waiver was Vakauta v Kelly. 59 Further reference was also made to the earlier judgment of McHugh J in the Court of Appeal in Vakauta v Kelly.60 59 (1989) 167 CLR 568. 60 (1988) 13 NSWLR 502, 528. -- 65 of 100 -- , '. 62 Vakauta was a damages claim in which the trial judge made disparaging comments about the defendant's medical experts before they were called. The decision makes it plain that when bias is manifest a party is not entitled to stand by until the final judgment is known, and then if its contents are unpalatable, attack it on the ground that because of earlier comments there was an appearance of bias. It upheld the view that the defendant had waived the right to rely on the earlier biased remarks, but went on to hold that that right had been revived by further indications in the judgment of ostensible bias. There are several points of relevant distinction between that case and the present. In the first place that was a contest involving a money claim between private litigants. In other words it did not have the public aspect that the present matter has. In the second place the court took cognisance of a tactical or manipulative element of standing by and waiting for final judgment, while storing up a ground of appeal in case the result was unsatisfactory. In the present case the proceedings have been brought well before the completion of the Commission's proceedings and before the preparation and delivery of its eventual report of the Commission. This is not to say that parties involved in such commissions have the right to delay as long as they like irrespective of the consequences. Questions of fact and degree are involved. Vakauta supports the proposition that the courts may deprive a party of a remedy notwithstanding that an adverse determination has been made against that party by an apparently biased tribunal. In this respect, Toohey. J noted that the community has an interest in knowing that cases are decided impartially, but considered that "that -- 66 of 100 -- 63 interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. ,,61 There is however a distinction between party and party litigation, such as that in Vakauta, and a public inquiry that is likely to affect not only those concerned in it, but also future legislation concerning public institutions. It may be noted that the expenditure which has continued during the period before the actions were commenced has not led to the loss of personal funds by the Commissioners. The wastage of public money is of course an important matter but this needs to some extent to be balanced against the need to retain public confidence in the integrity of inquiries. That is something upon which it is of course impossible to put a monetary value, but it is a matter of very great value to the community. Further, by allowing the continuation of an inquiry which, according to my findings, is perceived to be tainted by bias, a considerable amount of additional public money will be expended in exchange for a product which would be likely to be of doubtful value. As I see the matter, Professor Homel's evidence is indicative of a gradually increasing concern in relation to the conduct of the Inquiry of those responsible for the decisions of the CJc. It is. true that the CJC vacillated after March 1997, by which time Mr Carruthers was anxious to commence proceedings and during which he, ultimately with some difficulty, obtained from the CJCthe indemnity.that he desired for costs. However those involved in the CJC were not aware of the important evidence of Dr Homel until 22 April 1997 or possibly later, and its delay does not suggest any manipulative purpose. 61 Vakauta, above at p 588. -- 67 of 100 -- . " 64 I do not think that it can seriously be suggested that Mr Carruthers stood by at any material time. In the light of the earlier intimations of Dr Ryan on 10 March 1997 that . "if there was any suggestion whatsoever of any possible finding which might be adverse to Mr Carruthers' reputation he would be notified of that and given ample opportunity to intervene", it might be thought that had he commenced proceedings at that stage he would have been met with a defence of absence of locus standi in that any jeopardy at that time was purely hypothetical. It was not until 27 May 1997 that he was given any notice that such jeopardy was "possible". He acted promptly thereafter. The CJC was less prompt, but in the circumstances described, it was only an accumulation of instances that destroyed their confidence in the Commissioners and in Mr Connolly in particular. It is not possible to identify a "last straw", but it may be noted that it was during April-May 1997 that the Inquiry was investigating the NichollslLe Grand issue, and that the ruling that rejected the calling of witnesses on Mr Le Grand's behalf was made on 29 May 1997. There are also indications in the transcript of an increasing level of concern at the attitude of Mr Connolly from others involved on behalf of the CJC, including their counsel, as the Inquiry progressed. It is not entirely surprising that the difficult decision to make such a challenge as the present one took a substantial time to crystallise. While there was a degree of indecisiveness there is no element of manipulative conduct on the CJC's part that can be seen as contributing to the delay. In the circumstances I do not consider that either plaintiff is disentitled from making their complaints or maintaining the present proceedings on the ground of . . waIver or acqUIescence. -- 68 of 100 -- 65 9. Immunity Section 20 of the Commissions oj Inquiry Act 1950 states: "20.(1) Every commissioner shall, in the exercise of duty as commissioner and every deputy to a commissioner shall, whilst exercising the authority of a deputy to .the commission, have the same protection and immunity as a judge of the Supreme Court. (2) Without limiting the protection and immunity given a commissioner by subsection (1), a commissioner, deputy to a commission or any lawyer or other person appointed, engaged or seconded to assist a commission shall not incur any liability on account of any act or thing that the person does or purports in good faith to do - (a) in pursuance of the commission of inquiry issued by the Governor in Council; or , (b) in or in relation to the inquiry or in respect of any matter arising in or out of the inquiry; or (c) in or in relation to any report or recommendation made by or to the commission; or (d) in or in connection with the efficient conduct of the commission's inquiry." The submission of Mr Hughes QC on behalf of the Attorney-General is that this section immunises Mr Connolly and Dr Ryan against any review by the courts. If they are shewn to be biased, or otherwise to have breached the rules of natural justice in the conduct of their Inquiry he submits that the courts are powerless to intervene on behalf of someone adversely affected. It is a bold submission, particularly as there exist many cases where courts have actually intervened to correct excesses of power or denials of natural justice on the part of such commissions of inquiry.62 Mr Hughes suggests however that in none of those decisions was the present point taken. 62 See for example the cases mentioned on p 54 above. -- 69 of 100 -- , " 66 It is true that the Commissioners' Report will of itself have no direct legal effect upon any person. However the performance of a recommendatory function has not been regarded by the courts as activity of so mean a character that it should not be the subject of judicial review. Indeed, the functions that have been entrusted to this particular Commission are of considerable importance and the investigation and report of the Commission is capable of having extensive consequences both of a public nature and upon reputations. Mr Hughes submitted that the combined effect of subsections (1) and (2) is to apply to a commissioner the principle that a judge of the Supreme Court who acts bona fide but mistakenly in the purported exercise of his jurisdiction is immune from civil liability of any kind in connection with such acts. Familiar examples recognising the nature of judicial immunity include Sin'os v. Moore. 63 To reinforce the ambit of judicial immunity Mr Hughes referred to a number of New South Wales decisions including Ex parte Groot, Re Myers,64 Stephens v Dehne}; Kotsis v Kotffs, Calvin v Carr & Ors,67 Barton v Walke7~ and Nioll v Butler. He submitted that the immunity is wider than that stated in Sirros v Moore and that it extends to immunity from any civil proceedings by way of prohibition, certiorari, injunction or declaration for anything done in the purported execution of office. The only review of misconduct by a Judge, 63 [1975] QB 118. 64 (1958) 75 WNNSW 496. 65 [1960] SRNSW 468. 66 (1969) 90 WNNSW 340. 67 [1977] 2 NSWLR 308, 338-340. 68 [1979] 2 NSWLR 740. 69 [1985-1986] 4 NSWLR 231. -- 70 of 100 -- 67 he submits, is that provided by statute, namely by way of appeal. There is of course no statutory appeal against findings or actions of commissioners or inquiry. The submission seems to be that because there is no remedy such as prohibition or certiorari enforceable against a biased judge, and because such matters are corrected by appeal in the actual proceedings, there cannot be any remedy at all against biased commissioners. It can be seen that such abuses by judges can readily be corrected by the appeal system. It would indeed be a surprising result if judges are subject to correction when they reveal bias whilst commissioners are not. Commissioners would on that footing have more protection than a Supreme Court Judge from review of the validity of their proceedings. Because of the difference of function and place in the legal system, there is an immediate difficulty in giving a precise meaning and application to the words "the same protection and immunity" as a judge. Mr Sofronoff QC for the plaintiffs submitted, correctly I think, that no authority exists for the proposition that Royal Commissioners, even if biased or acting outside the scope of their authority, are immune from judicial review. To the contrary, there are numerous instances where the courts have reviewed and set aside the effect of such excesses, including Mahon v Air New Zealand LlcI'° and Ainsworth v Criminal Justice Commission 7 \ and a number of other cases referred to earlier in part 1~ Mr Hughes' rejoinder is that this particular point was not expressly raised or decided in any of those cases. However it is fair to say that an immunity provision similar in form and content to s.20 of the Commissioners of Inquiry Act are included in every statute that 70 71 72 [1984] 1 AC 808. (1991-1992) 175 CLR 564. Re Royal Commission on Thomas Case; R v Carter and The Attol71ey-General; Bradshaw v Kyle; and Gaisford v Hunt and the Commonwealth referred to at p 154 above. -- 71 of 100 -- , " 68 authorises the setting up of such commissions, and that this has been so for a very long time. 73 These are not obscure provisions that lie outside the sight or consciousness of the courts. Such a clause was expressly referred to by Lord Diplock who delivered the opinion on behalf of the Privy Council in Mahon's case. Relief was there granted notwithstanding the existence of such a clause. Mr Hughes submitted that this can be explained because there was express statutory power for the Commissioner to award costs, and that the system of review in New Zealand permitted the court to review the exercise by any person of a statutory power. Even so, the fact remains that it was plainly held that the immunity given by the Commissions of Inquily Act did not protect the Commissioner from that action. The basis of that conclusion is not entirely clear, but it cannot confidently be suggested that the disallowance of immunity was based upon the overriding effect of the relevant review statute (Adjudicature Amendment Act 1972 s. 4). Mahon is at least an example of the courts intervening to correct a denial of natural justice when the immunity section was directly in focus. Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 is another example where relief was granted against an inquiry conducted by the Criminal Justice Commission, again on the ground that procedural fairness had not been observed in the Inquiry. A somewhat similar immunity provision existed. 74 That case holds that persons about whom a recommendation is made by such an Inquiry have a real interest in obtaining a declaration of failure to observe procedural fairness because of harm caused to their business reputation. The effect of the immunity provision was not argued, but it would be surprising to think that such relief was granted without 73 74 Hallett, Royal Commissions and Boards of Inquiry, 1982, pp 309, 317-318. Then s. 3.30, now s. 101 of the Criminal Justice Act. -- 72 of 100 -- 69 some awareness of the existence of such a provision. The case is at least a good example of the assumption that has prevailed for a considerable time that such errors may be corrected under the administrative jurisdiction of the superior courts. There is however one case in which the present argument has been put and ruled on, namely Calvin v Carr.75 This concerned a decision by stewards of the Australian Jockey Club and the dismissal ofMr Calvin's appeal by the committee of the club. Section 32 of The Australian Jockey Club Act 1973 provided immunity for the relevant committee providing that it "shall have the powers authorities protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner". Those immunities are similar to those of s.20 of the Queensland Act. It was expressly submitted that that immunity applied in favour of the committee so that its decision could not be challenged or set aside. 76 Rath J held that neither that provision nor the provision fOJ the finality of the decision of the committee excluded the supervisory jurisdiction of the court. His Honour drew attention to the words in the Royal Commissions Act "in the exercise of his duty as a commissioner" (which are the same words as exist in our s. 20(1)), holding that immunity could not extend to anything done by the committee after determining the appeal, as for example by exercising its powers of expulsion. But of course the powers of expulsion would be validly exercised unless the court was prepared to set aside the effect of the committee's determination. As I read His Honour's judgment, a declaration in proceedings against the committee or its members that the decision is void does not interfere with the "protection" which the committee is afforded by the section. His Honour said: 75 76 (1977) 2 NSWLR 308, a decision ofRath 1. Ibid P 338. -- 73 of 100 -- 70 " . it seems to me that s. 32(3)(a) should not be construed so as to convert the immunity of the Committee into the infallibility of its decision; in particular it should not be construed as excluding the jurisdiction of the court to correct an excess of jurisdiction by the Committee. Once the court has declared the decision of the Committee null and void, the affected person may then seek the court1s aid to restrain persons, including the Committee, from acting to his detriment in purported reliance upon the decision. Thus, in this case, the court may, at the instance of the plaintiff, declare that the decision of the Committee is void, and may do so in an action against any person who is acting, or threatening to act upon the decision. ,,77 The availability of the jurisdiction of a superior court to restrain Royal Commissioners was also considered to some extent in the ELF case. 78 Brennan J observed "The Parliament must be taken to have intended that the power conferred by the Royal Commissions Act should be exercised within the boundaries marked out by the common law. ,,79 That case was concerned with the power of the Crown to appoint a commission of inquiry when investigation of the subject matter of its inquiry might involve a contempt of court, and with the further question whether such a commission would be immune from proceedings for contempt of the Federal Court. It would seem that the High Court considered that the Federal Court had power to hear such a case, and if necessary to make a finding against the Commission, and that such power was not based upon s.75(v) of the Constitution or upon s. 39A of the Judiciary Act.sO A barrage of points was raised in that case aimed at denying the jurisdiction of the Court to review such actions as the Commission might take. In my view the reasoning in that 77 78 79 so Ibid P 341. State of Victoria v The Australian Building COllstruction Employees and Builders Labourers Federation (1982-1983) 152 CLR 25. Ibid P 161. Ibid pp 162, 165. -- 74 of 100 -- 71 decision goes against the existence of an immunity such as that suggested by Mr Hughes, as it was held that the conduct of the Royal Commission in question could be reviewed and that it would be open to the courts to find that a contempt of the Federal Court had been committed. It is true however, once again, that there was no express reference to the immunity section. In my view the rationale for judicial immunity is the need to ensure that a judge may perform his or her duty free from fear of personal consequences. It is not an immunity aimed at ensuring that a judge is free from fear of review of a wrong or biased decision. 81 The immunity is from personal liability such as from an action for damages or something that may threaten harm to the judge. The essential effect of a prerogative writ is the setting aside of the effect of an order, and although the decision- maker is named as a party, the relief is not in personam. Judicial immunity does not demand immunity against review of judges' decisions for excess of power or for bias. The fact that judges' decisions are corrected by means of a different curial procedure (i.e. by appeal rather than the administrative jurisdiction) is not in the end material. For these reasons I hold that s. 20(1) and s. 20(2) do not individually or in combination place the acts of commissioners of inquiry beyond the review of the courts. It may well be that under s. 21 (2) they are completely immune from any personal liability for costs, but that aside, I do not consider that their actions as commissioners are exempt from review, and if necessary from an order that the effect of their actions be set aside. Mention should also be made of a second limb to Mr Hughes' submission, namely that s. 20 is a privative clause. He submitted that it is open to the legislature to 81 Compare Wilson J's description of the immunity in Gallo v Dawson (1988) 63 ALJR 121, 122. -- 75 of 100 -- · " 72 exclude the operation of the principles of natural justice in relation a particular tribunal, referring to Twist v The Council of the Municipality of Ranmvick. 82 However as Barwick CJ observed in that case, the Court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. It was submitted that s. 20 is such a section, and that it is difficult to conclude that commissioners acting under this act are subject to a duty to apply principles of natural justice in the light of what Mr Hughes termed a "privative clause". I reject these submissions. The section is concerned with immunity. It is not an authorisation of the denial of natural justice. Finally it should be mentioned that a submission was made on behalf of Mr Carruthers that his Inquiry was, under s.100 of the Criminal Justice Act 1989, immune from any investigation of its conduct by the Connolly-Ryan Commission of Inquiry, or indeed by anyone. In view of my findings on other matters it is not strictly necessary to determine this particular issue. I should indicate, however, that although there are some aspects to the argument that go beyond those with which I have dealt under s.20 of the Commissions of InquilY Act, for substantially similar reasons I would reject this submission. 10. Terms of Reference: Ultra Vires The Order in Council of 7 October 1996 appointed the Commissioners "to make full and careful inquiry" with respect to a number of matters. Only those material to the present discussion will be included. 82 (1976) 136 CLR 106, 110. -- 76 of 100 -- 73 "l. 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; 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; (iii) whether there are any functions currently vested in the Criminal Justice Commission which should now be performed by aI10ther agency or entity; and (iv) the appropriateness of the operational pnontles previously determined by the Criminal Justice Commission and the relevance of these priorities to the proper objectives of the Criminal Justice Commission; [(b), (c), (d), and (e) not here reproduced] (f) To identify what legislative or other action should be taken by the Government of the State of Queensland in relation to the future role, structure, powers and operations of the Criminal Justice Commission; (g) to examine and review the past operations of the Criminal Justice Commission with a view to making recommendations concerning the performance, efficiency, effectiveness and accountability of the Criminal Justice Commission and its vanous organisational elements; (h) to examine and review the policies that have been adopted by the Criminal Justice Commission in relation to:- -- 77 of 100 -- 74 (i) the manner and form of any proceedings which have been instituted on behalf of the Criminal Justice Commission under the Criminal Justice Act 1989; [balance of terms of reference not here reproduced] " , " Counsel for the Attorney-General; Mr Hughes QC, submitted that the Order in Council should not be interpreted as authorising the Commissioners to investigate the conduct ofMr Carruthers' Inquiry while it was onfoot. This with respect seems correct. In the first place it would not be a "past" operation under para. 2(g); and in the second place to have done so would probably have amounted to a contempt while that Inquiry remained on foot. Reliance for that submission was placed upon ss. 1OO( 1) and 106U) of the Criminal Justice Act 1989. 83 On that basis the preferable construction would be to construe the terms of reference as not embracing activity the investigation of which would involve a contempt. The submission proceeds that even after Mr Carruthers' resignation on 29 October 1996 the scope of the Connolly-Ryan Commission was not enlarged. In this respect however the "contempt" argument is not so strong and the "protection" afforded by s. 100 of the Criminal Justice Act 1989 ofMr Carruthers does not in my view mean that his work in the course of his Inquiry could not be later investigated and reported upon by someone else. Mr Hughes went on to submit that Mr Connolly and Dr Ryan stepped outside their terms of reference in some of their utterances and in some of their inquiries. If they did so, he submitted that it mattered not, because each of them had "absolute 83 s.106(j) provides that a person who does anything that, if the commission were a court of law with authority to commit for contempt, would be a contempt of that court, is guilty of a contempt of the commission. -- 78 of 100 -- 75 protection". That particular submission however must be rejected for reasons given in part 9 of these reasons. He conceded that certain statements made and actions taken in the course of the Connolly-Ryan Inquiry, insofar as they related to Mr Carruthers' conduct were beyond the terms of reference. In particular it was outside their terms of reference to investigate or report upon the conduct by Mr Carruthers of his Inquiry. With respect to the CJC's conduct in relation to that Inquiry he submitted that it was an "open view" whether the whole of the conduct of the Carruthers' Inquiry was forbidden territory, as it may be difficult to determine the dividing line between the two concepts. That latter suggestion however should be rejected, as the CJe's conduct in relation to that Inquiry would plainly be relevant to terms of reference ell. 1, 2( a), 2(h)(i), and arguably other terms of reference as well. Plainly the Commissioners were given the power and duty to examine the CJC's conduct and to do so in a way which would allow proper recommendations to be made in relation to the way in which future investigations should be set up and conducted. There are a number of respects in which I think Mr Connolly and Dr Ryan were entitled, at least after the Carruthers Inquiry ended, to look at what had happened in and concerning it, at least in an incidental way. If for example evidence showed that the Carruthers Inquiry was something of a witch-hunt to damage Mr Cooper, the question would arise who was the hunter. Was it the CJC or Mr Carruthers or some combination of them? Leaving aside for the moment the question of disqualification for bias, it would be within their frame of reference to examine such questions, and to examine, at least incidentally, whether Mr Carruthers had turned it into an undesirable exercise. In my view therefore some incidental investigation of Mr Carruthers' conduct was a proper matter for consideration. If that investigation produced evidence that -- 79 of 100 -- , , 76 might impugn his character or reputation, he would have a right to be represented and informed of the evidence and allegations, even though it was only an incidental issue in the Inquiry. The statements made by the Commissioners in and out of the Commission did not always limit the intended subject matter of their investigation to an incidental object of this kind, but the matters touching Mr Carruthers' conduct that were examined (eventually through Dr Ryan) would appear to be essentially of this character. I would therefore not uphold the wide submissions of Mr Hughes that such subject matter was outside the Commissioners' terms of reference. There may have been some transgressions and threats to transgress beyond the limits that I have mentioned, but these are not sufficiently serious to ground relief on the basis that what they did was beyond power (ultra vires). Indeed, the point at which any commission of inquiry is bound to stop in relation to a particular term of reference will often be a point upon which different minds will reach different conclusions. It is a point upon which a court would need to see a very clear line of demarcation before holding that a commissioner has strayed into forbidden territory. Of course this conclusion says nothing about the question of disqualification for bias. 11. Statement of 17 July: Locus standi Statement of July 1997 The July 17 statement has been set out above at pages 25-26. The day after it was made, written submissions were sent on behalf of the Attorney-General to the court to the following effect - -- 80 of 100 -- 77 (1) A threat of adverse findings IS the necessary foundation of Mr Carruthers' action. (2) That foundation has now ceased to exist and Mr Carruthers has no basis for any. claim to declaratory or injunctive relief. (3) The CJC case is substantially based on allegations of bias or apprehended bias by the defendants against Mr Carruthers. (4) The CJC case therefore also ceases to have any arguable basis. The following observations may be made concerning the statement. (1) It was not a "finding". Mr Connolly and Dr Ryan were no longer Judges with the power to deliver a judgment determining rights. Their function was to inquire and report to the Government. The statement was therefore the expression of an opinion and presumably of an intention not to report adversely against Mr Carruthers. It is not however the end of proceedings that may yet touch and concern the conduct of Mr Carruthers. The statement acknowledges that "submissions will be called for in relation to that matter" (the Carruthers' Inquiry) "at an appropriate time". That will no doubt be after this trial. (2) The statement was extraordinary in that it was made without having heard contrary submissions from interested parties. It must therefore be vulnerable to challenge by those parties. In particular, the submissions foreshadowed by Mr Chesterman QC on behalf of the Police Union were quite adverse to Mr Carruthers' reputation. Similarly, the complaint made on behalf of Mr Cooper included adverse reflections upon Mr Carruthers and his counsel would no doubt have intended to make such submissions if given the opportunity. (3) The main point that was attempted to be made by the statement seems to have been founded upon an incorrect premise. The statement concludes -- 81 of 100 -- 78 "There is no evidence before this Inquiry upon which a finding adverse to Mr Carruthers personally could be made concerning his conduct of his Inquiry/' But there was such evidence, and cross;..exarnination had been directed to the matter. This included the evidence of Mr Davies 84 There was evidence of what had happened during ·theCarruthers Inquiry from which adverse inferences could be drawn. (4) Counsel for plaintiffs submitted that the making of such a statement at the time it was made was obviously a tactical manoeuvre aimed at defeating Mr Carruthers' action, and that it points persuasively to a lack of impartiality. It was also said to be a "powerful acknowledgement by them of a consciousness of their own bias or apprehension of bias". (5) The statement plainly gives Mr Carruthers some reassurance that should be regarded as of considerable practical value, but it gives him no legal right or legal protection. Some jeopardy from adverse comment still remains (see paragraphs (1), (2) and (3) above). This includes possible reflections upon his role. 8s (6) Plainly the CJC remains under jeopardy of adverse findings in relation to the 84 8S setting up of the Carruthers' Inquiry and conduct which occurred during its existence. Indeed, the 17 July statement expressly draws a distinction between For example "One was fast, slipshod and the other went on for a generation, just about, or it seemed like a generation. The contrast couldn't be more stark". Transcript p 1944. Evidence has been led from which criticisms could be made of Mr Carruthers concerning the undue length of the Carruthers Inquiry; Mr Carruthers' decision to obtain opinions on s. 155 from interstate counsel; his decision to hold public hearings; his approval of various investigative steps; and whether he was suitably qualified to act as an inquirer. , . -- 82 of 100 -- 86 87 79 Mr Carruthers' position and that of the CJC. 86 The stage may now have been set for adverse findings against the CJC respecting the whole exercise known as the Carruthers' Inquiry, and for all such adverse findings to be made against the CJC and its Chairman Mr Clair. Further, since the publication of the statement, counsel assisting has gIven notice to the CJC in relation to "evidence dealing with the Memorandum of Understanding and the Inquiry conducted by Mr Carruthers" and has listed seven areas of subject matter where "it would be open for the Commissioners to make findings adverse to the CJC". 87 His letter supports these with 146 transcript references. "While criticism has been made of the Commission (i.e. the CJC) for having adopted paragraph (1) of that resolution, no criticism can be made of Mr Carruthers ... " and "No criticism can properly be made of Mr Carruthers in relation to the use by the Commission of its coercive powers during the course of his investigation ... since the responsibility for invoking the exercise of such powers is cast by the Criminal Justice Act IIpon the chailperson of the CJC .. " The listed subject matter is: (1) whether the CJC acted within its investigative jurisdiction in adopting the resolution of 21 March 1996; (2) whether having regard to the provisions of ss.16 and 25 of the Criminal Justice Act the resolution of 21 March 1996 was properly adopted; (3) whether the opinion of Hampson QC or the substance thereof should have been publicly disclosed or at least disclosed to the legal representatives of the parties involved in the inquiry before Mr Carruthers; (4) whether the CJC was really acting on the advice of Mr Hampson QC in adopting the resolution of 21 March 1996; (5) whether the search of the Police Union premises was justified in all the circumstances; (6) whether the material placed before the Supreme Court in relation to the application for a search warrant of the Police Union's premises fulfilled the CJC's obligations of disclosure under s. 71 ; (7) whether the CJC acted properly within its investigative jurisdiction in investigating: (a) Bradshaw and Suter (b) Heery (c) the Concerned Citizens ofMundingburra (d) United Fire Fighters Union -- 83 of 100 -- , , 80 (7) The statement does not avoid the problems produced by bias or apparent bias. It is true that the possible future effects of such bias have now been considerably reduced if not entirely eliminated in relation to Mr Carruthers. However a late promise of exoneration of one of the plaintiffs at the same time reserving the right to make adverse findings against the CJC tends to enhance the possible consequences of bias against the latter body. Locus Standi Under the Judicial Review Act 1991 which expressly preserves the Court's jurisdiction to make "prerogative orders,,88 the necessary standing that enables a person to sue, whether for a remedy in the nature of a prerogative order or for administrative review, is the same. The test broadly speaking is whether that person's interests may be adversely affected by the decision, report or recommendation that the respondent might make. 89 In my view if a person reasonably fears that his or her interests may be adversely affected by further conduct of an Inquiry or by publication of its ultimate report, and can show that the conduct of the Inquiry is tainted by bias, that person has the necessary standing to obtain a prerogative order from the courts. 88 89 Sections 3, and 43(2). The more cumbersome procedures of writs of certiorari, mandamus and prohibition have been replaced by "prerogative orders" described as being "in the nature of' certiorari, mandamus or prohibition, with simpler procedural provisions. s. 7 (I) states: In this Act, a reference to a person aggrieved by a decision includes a reference - (a) to a person whose interests are adversely affected by the decision; or (b) in the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation." -- 84 of 100 -- 81 An interest in preserving personal reputation from harm may suffice (Annetts v McCann 90 ), though of course a mere emotional or intellectual. concern at what is being done is not sufficient. In my view the same result follows whether one applies the common law or the tests stated in the Judicial Review Act. My conclusions are (a) Mr Carruthers has at least the right to a declaration in relation to acts performed beyond the power of the Commission which affected him before his resignation. 91 There also remains some residual possibility of harm, although the risk of it occurring would seem to be quite slight since the making of the statement of 17 July. That statement however fails to give him complete protection and I do not think that his locus standi has been destroyed by the issue of this statement. (b) The CJC in my view retains its standing to sue. The statement of 17 July only fortifies the jeopardy of that body. 12. Can Dr Ryan continue alone? The Governor in Council saw fit to appoint two persons to constitute this Commission, inter alia "to make full and faithful report and recommendations". In the absence of some special binding provision to the contrary, the report which in the end comes from this Commission must be the report of both. Without some special dispensation, they would also sit together to conduct the relevant hearings of the 90 (1990) 170 CLR 596. 91 See above pp 10-12,72-76. -- 85 of 100 -- , j 82 Commission. If during the currency of the Inquiry one of those members were removed by death, disqualification or any other cause, the remaining member would not have the authority to discharge the duties of the Commission alone.92 In that respect the position is perhaps similar to that of a court sitting inbanc. If a certain number of persons is necessary to comprise the court, and one of its members is removed by any cause before the delivery of judgment, then in the absence of some special statutory provision the remaining members of the court cannot proceed to deliver judgment. The court must be reconstituted and the matter heard afresh. There may be some instances where consent of the parties may confer jurisdiction but no question could arise of the conferring of consent jurisdiction upon a statutory body such as a commission of mqUIry. Prima facie then, the disqualification of Mr Connolly means that Dr Ryan no longer has the authority or power to perform the functions of this Commission. Counsel for the Attorney-General submitted however that the "quorum regulation" overcomes this problem. The regulation would seem to have been made under s.33 which provides "( 1) The Governor in Council may make regulations under this Act. (2) A regulation may make provision about the conduct of commissions. " The regulation states: 92 "COMMISSIONS OF INQUIRY REGULATION (No.2) 1996 Short title 1. This regulation may be cited as the Commissions of Inquiry Regulation (No.2) 1996. Green v The Queen (1891) 17 VLR 329, 333; Sf Leonards lvfunicipality v Williams (1966) 15 LGRA 62, 68-70; Re Municipal Commission o/Tasmania (1968) 16 LGRA 211, 213-215. -- 86 of 100 -- j , 83 Definition 2. In this regulation - "CJC inquiry" means the commission established under the order in council published in the gazette on 7 October 1996 at pages 475 and 476. CJC inquiry quorum 3.(1) Either commissioner of the CJC inquiry may constitute a quorum of the CJC inquiry. (2) If the CJC inquiry is constituted by a quorum of the commissioner who is not the chairperson of the CJC inquiry, the commissioner is taken in that event to be acting as the chairperson." Section 3 of the Commissions oj Inquily Act defines "commission" as follows "commission" means any commission of inquiry issued by the Governor, by and with the advice of the Executive Council of this State, under the Governor's hand and the public seal of the State, and includes the members of the commission, or a quorum thereof, or the sole commissioner in cases where the commission is constituted of a sole commissioner, sitting for the purposes of the inquiry and, where by an instrument other than a commission of inquiry as aforesaid the Governor in Council appoints a person or persons to make an inquiry into or with respect to any matter or matters and declares in that instrument of appointment or in a separate instrument that this Act or specified provisions of this Act shall be applicable for the purposes of that inquiry, then for the purposes of so applying this Act or, as the case may be, the provisions of this Act specified as aforesaid, includes that instrument of appointment and the person, or persons, or a quorum of the persons thereby appointed sitting for the purposes of the inquiry thereunder." That somewhat perplexing definition defines a commission as the commission, and as including its members, or a quorum thereof sitting for the purposes of the inquiry, or the sole commissioner (where the commission is constituted of a sole commissioner); and it also includes in certain situations the actual instrument of appointment to an mqmry. -- 87 of 100 -- f I 84 The definition obviously pennits various alternative meanings to be given to the word "commission" so that when it is used in varying contexis throughout the Act, the appropriate meaning can be given. "Commissioner" is separately defined. The tenn "quorum" is not defined, and apart from being mentioned in the definition of "commission" it is not used anywhere in the Act. What then does "quorum" mean in the regulation? Mr Hughes submitted that the regulation should be construed in the light of the problems that had arisen in the Commission up to that point, and further that.it should be seen as a response by the executive that gave effect to the principle of "necessity" to the end that the work of the Commission should be saved. He submitted that it was legitimate to infer that the intent of the regulation-making authority was to preserve the Connolly-Ryan Commission of Inquiry by avoiding any problem that might possibly arise from Mr Connolly's conduct in giving the media interviews, and presumably from the uncertainty that then confronted the Inquiry in view of the objections that had been taken on 18 and 25 November 1996 .. The difficulty confronting this submission is that the problem that had arisen, and the solution suggested for it in the Commission, had been quite limited. The suggested solution was that Mr Connolly should not sit "on this point" (i.e. on the matters affecting Mr Carruthers' conduct of his Inquiry). It had been proposed that ifMr Connolly did not sit on those matters, he could in due course rely upon what Dr Ryan found in relation to those issues. The Commissioners stated (correctly in my respectful opinion)93 93 See the cases mentioned above in note 92. -- 88 of 100 -- 85 "It is our opinion that in the present state of the law; neither of us can take evidence without the participation of the other. Moreover, our ultimate decision and report should desirably be a joint one." The situation then was not one which contemplated the disappearance of Mr Connolly at any stage from further participation in the Inquiry; it was to make lawful a proposed arrangement that would permit Dr Ryan to sit without Mr Connolly being present when a particular subject was under consideration, and in due course to enable the Commissioners to present a joint report free from the possible taint of Mr Connolly's contribution respecting a particular question on which he was said to be biased. A question would always remain whether the Commissioners in fact attained that objective, but if they did, it would assist in insulating the Inquiry from any invalidity that might otherwise flow from Mr Connolly's participation in findings on that topic. The executive then responded with a simple regulation permitting one of the Commissioners to constitute a quorum of the Inquiry. That seems to have been appropriately responsive to the problem that had arisen and to the solution that had been at that time suggested. , Various dictionary definitions of quorum have been presented. Its most common meaning concerns the number of persons necessary to enable the business of a meeting to proceed, although it is also capable of relating to business other than that conducted at meetings. It is to be noted that the regulation did not state that either Commissioner might constitute the Commission. That would have been a considerably wider provision. If it had done so, it would, by means of the definition of "commission" in s.3 of the Act, arguably have permitted either appointee to sit alone, determine alone and report alone. I find it difficult to think however that this particular regulation, which confines its -- 89 of 100 -- 86 reference to a commissioner's power to constitute a quorum, refers to anything more than a quorum for the purpose of conducting sittings. The definition of "commission" in s.3 does not advance the argument for expanding the natural meaning of quorum. To do so would rely upon a conversion, namely that because the word "commission" can in an appropriate context mean a quorum of a commission, use of the word "quorum" should be taken.to be a reference to the Commission. I do not think that this follows. The meaning to be given to each expression should depend upon the particular context in which those expressions are respectively used. It may also be noted that the only reference to "quorum" in the whole Act is in s.3, and that that reference is to "a quorum thereof ... Sitting for the purposes of the Inquiry" (my italics). Mr Hughes went on to submit that the Court should impute to the executive an intention that if there was any disqualification afflicting Mr Connolly, Dr Ryan should complete the commission of inquiry alone, and that the regulation now operates to that effect if Mr Connolly is disqualified from further participation. He further submitted that the rule of necessity applies to a statutory administrative tribunal as it does to a court, to ensure that the tribunal is not disabled from performing its statutory functions, referring to Laws v Australian Broadcasting Tribunal. 94 Whilst accepting that it can so apply I do not think that doctrine of necessity has any application to the circumstances surrounding the making of this particular regulation, or that that doctrine calls for the wide construction of the regulation for which Mr Hughes contends. The submission fails at several levels. In the first place it might be thought that there was an adequate choice of alternative personnel if a difficulty were entertained with respect to 94 (1990) 170 CLR 70. -- 90 of 100 -- 87 a member or members of the Commission. There might be a wastage of work so far done, but the function of such a Commission could be entrusted to someone else. I am unable to read this particular regulation as subordinate legislation effecting a statutory requirement that one or other of the members of the Commission should perform the functions assigned to it free from the application of the rules of natural justice. I am unable to see the clear intention that would be necessary to achieve such a result. 95 The submission went on that the appointment of 7 October 1996 and the Quorum Regulation of 28 November 1996 invested the Commission "with an enormous measure of immunity and protection" leading to "a conclusion that in this case it would be inappropriate to frustrate the intention of the executive that this Commission ofInquiry go on, and having started, to complete its task." In my view the proper construction of the regulation is that it gave to the members of the Commission of Inquiry the opportunity of undertaking a procedure which would permit one of the Commissioners to sit alone for the purposes of taking evidence on discrete topics, but that it did not change t~! fundamental structure of the Commission or authorise the ultimate discharge of the duties of the Commission by one person only. Nor did it confer a licence to disregard the rules of natural justice. It follows that if this view of the regulation is correct, the disqualification of Mr Connolly means that Dr Ryan no longer has the right to perform the functions of the Commission alone and in particular that he cannot report and recommend on behalf of both. In short my primary conclusion is that once Mr Connolly is disqualified, Dr Ryan no longer has any power to complete the Inquiry. 95 Twist v RandwickMunieipal Couneil (1976) 136 CLR 106, 112, 118. -- 91 of 100 -- , I 88 If I am wrong in that conclusion, and if the correct position be that the regulation empowers Dr Ryan to prepare and deliver a report on behalf of the Commission, the question remains whether he is disqualified under principles such as those expressed in Stollery v The Greyhound Racing Control Boarc!6 by reason of his association with Mr Connolly. There has earlier17 been a qualified finding in favour of Dr Ryan which has reserved the question of the effect of his association with Mr Connolly and related matters. The law on this subject is very much concerned with appearances. The mere presence of an apparently biased person while a tribunal is engaging in deliberations is usually enough to require any decision to be set aside. StollelY's case 98 is instructive. There a member of the Greyhound Racing Control Board who had made the original complaint against Mr Stollery remained in the room with the board while it deliberated. He was present in the boardroom throughout the deliberations and decisions, but took no part in them. It was held that his presence during that time was inconsistent with the principles of natural justice even though he had not participated. Barwick CJ, having referred to a line of authorities, and in particular to R v Sussex Justices; ex parte McCarthy 9 observed loo 96 97 98 99 100 "As in that case, so in this the continued presence of a disqualified person is fatal to the validity of the decision taken as the result of deliberations in his presence." (1972) 128 CLR 509. In part 7, pp 58-59. Reference above. [1924] 1 KB 256. At page 519. -- 92 of 100 -- 89 He continued "The basic tenet that justice should not only be done but be seen to be done does not, of course, warrant fanciful and extravagant assertions and demands. What justice requires will ever depend on circumstances, and the degree to which it should be manifest that it is being done will likewise be related to the particular situation under examination by a supervising tribunal. But, in my opinion, dissatisfaction engendered in the mind of an observer aware of the facts, by the continued presence of Mr Smith in this board room, having regard to his personal connexion with the matter in hand, is not extravagant or far-fetched. As I have said, a reasonable man could very properly suspect that the clear opportunity which Mr Smith had for influencing the decision of the Board might well have been used." He concluded that this circumstance was inconsistent with the requirements of natural justice, and certiorari was granted. Menzies J101 stated " Authority further establishes that a person who has an interest adverse to, or in such proceedings, has been opposed to, the person on trial, is within the category of persons who in fairness ought not to be present at the deliberations of the tribunal." 102 Gibbs J103 considered that it was appropriate to review the Administrative Tribunal's actions as "it is making a decision which may have a serious effect on the rights and livelihood of the person whose conduct is called in question." He agreed that it was "clear" that it would not be in accordance with the principles of natural justice for a person who was in truth the accuser to be present as a member of the tribunal when the charge which he had promoted was heard, even if he took no actual part in the proceedings. He noted that the very presence of such a person, may, "even 101 102 103 At p 520-521. The authorities referred to by Menzies J are Dickason v Edwards (1910) 10 CLR 243; Allinson v General COllneil o/Medical Education [1894] 1 QB 750; and R v London COl/nty COllncil ex parte Akkerscryk [1892] 1 QB 190. --!\ p 526. -- 93 of 100 -- 90 unconsciously, inhibit the discussions and affect the deliberations of the other members of the tribunal". It is unnecessary for me to set out the celebrated statement of Lord Hewart LCJ in R v Sussex Justices ex parte McCarthyl°4 beyond noting my own view that it is important to maintain public confidence not only in the judicial system but also the exercise of quasi-judicial power and in the integrity of royal commissions. That was another case where the mere presence of an acting clerk, who had an interest adverse to that of the defendant, with the Justices when they retired was sufficient to require the conviction to be quashed. Again the evidence showed that the Justices had come to their conclusion without consulting the acting clerk who in fact had abstained from referring to the case. A brief mention may also be made of R v The Justices of Suffolk. 105 In that case the mere presence of a county magistrate (Mr Steward) who was interested in the case (he being a rated inhabitant of the appellant parish) during deliberations was enough to invalidate the decision. It is a strong case. Objection having been taken to Mr Steward taking partin the case, the chairman stated that Mr Steward would not do so. However Mr Steward remained on the bench while the chairman and the three other Justices heard it. The chairman and Mr Steward, believing that counsel was satisfied with that statement, continued. Mr Steward took no part, neither giving any opinion upon it nor having any conversation with the others about it. He did acknowledge that he might have spoken to the chairman and referred to some papers lying before him. It was argued that the parties had acquiesced in his presence. Lord Campbell CJ thought 104 Ibid. 105 [1852] 18 QB 416; 118 ER 156. -- 94 of 100 -- 91 that the proceedings were "much to be censured" and that if Mr Steward had done his duty he would have withdrawn from the court. Wightman J stated "It is very important that no magistrate who is interested in the case before the Court should interfere, while it is being heard, in any way that may create a suspicion that the decision is influenced by his presence or interference. Mr Steward's presence and interference was sufficient to create such a suspicion." Mr Sofronoff for· the plaintiffs submitted that no lower standard than that applicable to the Greyhound Racing Board is applicable to a commission of inquiry. He submits that the removal of Mr Connolly at this stage cannot save the Inquiry from the apprehension of bias which results from Mr Connolly's extensive participation in the hearings to date and in decisions and in discussions with Dr Ryan. Mr Hughes for the Attorney-General submitted that Stollery should be distinguished on the facts, pointing out that the commissioner in Stollery was an accuser and witness. Secondly he submitted that this Inquiry, unlike that in StollelY, cannot affect rights. That submission however would seem to conflict with the interest which the Court was prepared to protect in Ainsworth v Criminal Justice Criminal. \06 The potential public and private impact of the present Inquiry is very great. Thirdly he submitted that the executive has directed its mind to Mr Connolly's position and protected it by the regulation of 28 November 1996, but I have already rejected that submission as too wide. Fourthly he invoked the principle of necessity, as saving the Inquiry in the person of Dr Ryan if all else were to be found against the defendants. I have already stated why I do not think that the situation properly invokes that principle. \06 Reference above. -- 95 of 100 -- 92 Finally he submitted that if Mr Connolly is precluded from continuing with the Inquiry, there is no basis for an apprehension that the deliberating tribunal would be biased. On this important last matter, it is reasonable to think that extensive consultations and deliberations have been occurring throughout the nine months during which the Inquiry has been running. On most issues it is impossible to know what work has been done by each, or how much each may have influenced the other. This is not to imply a lack of independence on the part of Dr Ryan on a personal level, but rather to note ,that there has been a joint process occurring during which the two men concerned have had the opportunity of exercising their powers of persuasion upon one another. It would be natural that they should attempt to work as a team. Their conclusions may be provisional at this stage on many matters, but it is reasonable to think that many such conclusions would have been formulated with the benefit or burden of joint discussion. It would seem to be an almost impossible task at this stage for anyone to unscramble whatever provisional conclusions presently exist and start afresh. In addition to this !vir Sofronoff referred to a number of instances where Dr Ryan has been supportive of Mr Connolly's position. These include Dr Ryan's decision rejecting the notion of any apparent bias on N1r Connolly's part. He failed to disassociate himself from any of the statements or conduct of Mr Connolly indicating an apparent attitude of hostility toward the CJC. He joined in decisions and rulings including those which resulted in the apparent disadvantage of Mr Le Grand in the matters affecting him. He issued the statement of 17 July 1997 which contemplated that the two Commissioners would jointly continue to investigate and report on the -- 96 of 100 -- 93 propriety of the CJC's actions in relation to the setting up and the conduct of the Carruthers Inquiry. I do not find it necessary to pursue the other particulars stated by Mr Sofronoff. In my view the considerations mentioned above are sufficient to require the same result as that considered necessary in Stallery. The findings of fact which have been provisionally made in favour of Dr Ryan in part 7 of these reasons are narrowly expressed, and the present question has been expressly reserved for present consideration. It seems to me that this was necessary as Stal/elY may be seen as a special example of a finding of ostensible bias, though disqualification by association may also be regarded as a special category of case where it is recognised that disqualification must be virtually automatic without the need for any fine analysis of the question of what the reasonable observer would fear. In my view the circumstances are such as would give rise to an apprehension in the mind of a fair-minded and informed member of the public that whilst Dr Ryan is not personally predisposed to views that would disqualify him, his association over a substantial period with a co-commissioner on whose part there is a reasonable apprehension of bias produces an unacceptable risk that the result would not be that of an impartial decision-maker. Whichever way the test is posed, it is my view that the above mentioned circumstances make it necessary that the Inquiry come to an end and that Dr Ryan, essentially through association, is disqualified from now proceeding to complete the Inquiry. 13. Short summary: some principal findings and conclusions 1. In view of the political controversy surrounding the creation of this Commission and the issues which it examined, it was particularly important that the -- 97 of 100 -- 94 Commissioners be seen to be impartial and as not minded to serve the interests of one side or the other of politics. 2. There is a strongcase of ostensible bias on the part ofMr Connolly with respect to matters that the Commission had to consider. The facts (stated in parts 4, 5 and 6) largely speak for themselves. They include a perception of his continuing favour for one side of politics. A truncated summary is given at pages 57 to 58 listing some of the main areas of concern supporting this conclusion. I conclude that the circumstances are such as would give rise in the mind of a fair-minded and informed member of the public to a reasonable apprehension of a lack of impartiality on his part with respect to the subject matter of the Inquiry. A similar fear would also reasonably arise in the minds of the plaintiffs. 3. Mr Connolly is for those reasons disqualified from further participation in the Commission. 4. In the absence of Mr Connolly, Dr Ryan lacks the power and authority to complete the work of the Commission. It is !1_qt possible for one person to discharge the obligations of this two-person Commission. 5. If the conclusion in paragraph 4 is incorrect, that is, assuming that Dr Ryan does have the power and authority to complete the work of the Commission alone and to deliver a sole report, it is unacceptable that he do so in view of his extensive association with Mr Connolly in the work of the Commission so far. The association has been too great and so is the difficulty of unscrambling provisional conclusions and of undoing influence. Despite the perception of Dr Ryan as a person without personal predisposition to views that would disqualify him, his extensive association with Mr Connolly makes a reasonable -- 98 of 100 -- 95 apprehension of unfairness and lack of impartiality in the result inevitable in the circumstances. 6. Neither plaintiff has waived the right to bring the present claims. 7. Neither Mr Connolly nor Dr Ryan is immune from the jurisdiction of this Court to review the question whether in the conduct of the Inquiry they have observed the principles of natural justice. In particular they are not immune from court review of the question whether either of them is disqualified because of ostensible bias. 8. The Commissioners acted outside their terms of reference whilst Mr Carruthers' Inquiry was still current, in the enforcement of their process upon Mr Carruthers and in determining to proceed with an examination touching his conduct. However, after Mr Carruthers' resignation, it was within their terms of reference to investigate his conduct, at least incidentally to their duty to investigate the CJC's conduct. 9. Both Mr Carruthers and the CJC stand to be adversely affected by the conduct 14. Relief 107 of the Commission, and each of them has the necessary standing to bring this action. In a recent decision of the Full Court of the Federal Court l07 the Court observed ". . . we are, of course, aware that the orders which we shall make will have the result that an inquiry which has GaisJord v Hunt and The Commonwealth oj Australia (G 68 of 1996, 6 December 1996, per Beaumont, O'Loughlin and Lehane J1). It concerned an inquiry into alleged paedophile activity by officers of the Department of Foreign Affairs and Trade. The person conducting the inquiry unwisely chose to speak with a journalist and may be inferred to have expressed views suggestive of strong preconceptions. -- 99 of 100 -- 96 already proceeded some distance will be brought to a premature end so that considerable time and resources will have been wasted. It is perhaps to state the obvious, however, to say that a finding of a reasonable apprehension of bias can lead to no other result." I share that view in the circumstances of the present case. There will be a declaration ~hat the Commissioners are disqualified from further proceeding with the subject Inquiry and an injunction should be granted restraining them forthwith from so proceeding. Further submissions may be made on additional orders and on costs. -- 100 of 100 --