Bryant, Re; Re D'Allesandro; Re Ready [1993] QSC 4

IN THE SUPREME COURT OF QUEENSLAND Brisbane O.S. No. 758 of 1992 O.S. No. 770 of 1992 o.s. No. 894 of 1992 Before The Hon. Mr. Justice K.W. Ryan [Re: D'Alessandro, Bryant & Ready] IN THE MATTER of the Criminal Justice Act, 1989-1992, Section 2.25 and 5.2 -and - IN THE MATTER of an Application by TREVOR FREDERICK CRIPPS BRYANT - and - IN THE MATTER of an Application by DOMENICO D'ALESSANDRO - and - IN THE MATTER of an Application by MATTHEW JOHN READY REASONS FOR JUDGMENT - RYAN J. Judgment delivered on 06/01/1992 Counsel: Solicitors: Mr. P. Feeney with Mr. M. Plunkett for theApplicants Mr. R. Mulholland Q.C. with Mr. R. Devlin for the Respondents Maxwell, Mead & Young for the Applicants R.A. Marxson, Official Solicitor for the Criminal Justice Commission for the Respondent Hearing Date: 9 September 1992. -- 1 of 43 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 770 of 1992 Brisbane Before The Hon. Mr. Justice K.W. Ryan IN THE MATTER of the Criminal Justice Act, 1989-1992, Section 2.25 and 5.2 -and - IN THE MATTER of an Application by TREVOR FREDERICK CRIPPS BRYANT - and - IN THE MATTER of an Application by DOMENICO D'ALESSANDRO - and - IN THE MATTER of an Application by MATTHEW JOHN READY REASONS FOR JUDGMENT - RYAN J. Judgment delivered on 06/01/1992 Applications have been made by Domenico D' Alessandro, Trevor Frederick Cripps Bryant, and Matthew John Ready for orders that the Director of the Official Misconduct Division cease, or alternatively, not proceed with, an investigation numbered 24 of 1992, namely an investigative hearing of Operation Spot 11 purporting to be an investigation into the activities of persons and entities engaged in the Smash Repair and Tow Truck Industries; or such other order as the Court deems meet pursuant to s. 5.2 of the Criminal Justice Act 1989-1992. In the case of D'Alessandro, the application is made that the Director cease or not proceed with the investigation unless the applicant may appear by counsel or solicitor of his choice. -- 2 of 43 -- 2 The investigation is an investigation into the activities of persons and entities engaged in the smash repair and tow truck industries, with particular reference to, but not limited to:- (a) The payment to members of the Police Service and other persons, by persons and/or entities engaged in the smash repair and towing industries, of a valuable consideration ("spot fees") in return for information or advice as to the occurrence of . road traffic accidents in the greater Brisbane area, in contravention of the Tow Truck Act 1973. (b) The payment, by persons and/or entities engaged in the smash repair industry, to persons and/or entities engaged in the towing industry of a valuable consideration ("drop fees") in return for the persons or entities first mentioned obtaining the work of repairing damaged motor vehicles, in contravention of the Tow Truck Act 1973. (c) Improper approaches by persons and/or entities engaged in the towing industry to motor dealers to obtain towing business, such approaches being accompanied by threats that persons and/or entities engaged in the smash repair industry will withdraw their custom in spare parts from the motor dealers if they did not favour the persons or -- 3 of 43 -- 3 entities first mentioned when using towing services. (d) Possible official misconduct, in connection with the smash repair and towing industries, by persons employed in units of public administration. At the beginning of a hearing on 27 July, 1992, Mr. Bevan, the Acting Deputy Director of the Official Misconduct Division of the Criminal Justice Commission, stated that the hearing was being conducted by the Criminal Justice Commission for the purpose of discharging the functions and responsibilities allotted to the Official Misconduct Division pursuant to the provisions of s. 2.17 of the Criminal Justice Act, and that the Commission was constituted that day by him pursuant to authority by the Chairman, Sir Max Bingham Q.C. The authorisation by Sir Max Bingham Q.C., Chairman of the Criminal Justice Commission, states that "being of the opinion that this investigation is an investigation of organised crime which is not appropriate to be discharged or which cannot effectively be discharged by the Police Service or other agencies of the State of Queensland, directs . the Official Misconduct Division of the Criminal Justice Commission pursuant to s. 2.20(2)(i) of the Criminal Justice Act 1989 to undertake the investigation on behalf of the Commission." Mr. Bevan directed that the hearing of evidence be taken in a closed hearing, and made an order for non-publication of evidence to be given in the matter. -- 4 of 43 -- 4 Counsel assisting, Mr. Devlin, then asked that Mr. Bryant be called. Mr. Greenwood Q.C. objected to the witness being sworn. He asked the Commission to stay the inquiry on the basis that the description of the nature of the investigation was outside the jurisdiction of the Commission. He then stated another ground on which the investigation should be stayed. He said that he acted for Mr. Bryant, Mr. D'Alessandro and a number of other operators who had been summonsed before the Commission in the matter. He said that he had instructions also from Mr. Ready who had not been summonsed, but who was probably the largest operator in his calling in Brisbane. Mr. Ready, on being interviewed by an officer of the Commission, Mr. Bates, had told him that he and a number of named tow truck operators were in a position to substantiate allegations that certain members of the police force had received bribes in connection with the operation. He said that he would welcome investigation into these allegations but that the present investigation was misconceived, as it was one into individual citizens engaged in business activities, whereas it should be pursuing his allegations of positive public corruption. Mr. Bevan, after hearing submissions by Mr. Greenwood and Mr. Devlin, gave reasons for considering that it was within the Commissioner's jurisdiction to investigate the matters. Mr. Greenwood then sought a fourteen day stay to enable that decision to be reviewed in the Supreme Court. He stated that the only material he wished to place before the Commission was a submission that the structure of the inquiry was indicative of -- 5 of 43 -- 5 a continuing bias by the Criminal Justice Commission as an institution against Mr. Ready as an individual. Mr. Bevan stated his intention to adjourn the matter for one week to allow an application to be made. Following certain submissions by Mr. Devlin in relation to representation, Mr. Bevan said that it was his view at that time, unless Mr. Greenwood could persuade him otherwise, that it would be inappropriate that Mr. Greenwood appear or his instructing solicitor appear for any other witness who was summoned to that hearing or any future hearing of the Commission in the event that he continue to appear for Mr. Bryant. Mr. Greenwood then announced his appearance for Mr. D'Alessandro. Mr. Bevan stated that he would refuse to allow that appearance and also that of Mr. Greenwood's instructing solicitor. Mr. D'Alessandro has deposed that he has received a summons to appear before the Criminal Justice Commission and to produce documents before it. He stated that he wishes to be represented before the hearing by his solicitors, Messrs. Maxwell, Mead and Young and counsel briefed by them, namely Mr. R.F. Greenwood Q.C. and Mr. P.J. Feeney. On 7 August, 1992 orders were made by consent giving directions for the hearing of the applications by Bryant and D 'Alessandro and ordering that the summonses be certified as actions to be tried speedily. Pursuant to these directions, particulars of claim were delivered on behalf of Mr. Bryant. It is alleged that Mr. Bevan and other senior officers of the Criminal Justice Commission including its Chairman had so conducted themselves in relation -- 6 of 43 -- 6 to Matthew John Ready as to identify bias on behalf of Mr. Bevan and other senior officers of the Commission including its Chairman so as to preclude an inquiry by the Commission however constituted where any person concerned in such an inquiry was associated with Matthew John Ready. It is alleged also that Mr. Bryant was associated with Mr. Ready by reason of the operation of Combined Towing. It is further alleged that on or before 3 July 1990, Mr. D. J. Bevan as an officer of the Criminal Justice Commission assessed a complaint regarding the conduct of William John Huey and his charging of Matthew John Ready. The Chairman of the Criminal Justice Commission has publicly supported Huey in response to complaints made concerning Huey and the charging of Ready in 1981. In furtherance of the complaints concerning Huey and the prosecution of Ready, the Chairman of the Criminal Justice Commission caused an investigation to be made, which investigation was a sham. It had recommended the prosecution of a police officer who investigated the conduct of Huey in relation to Ready. Contrary to terms of settlement of an action in this Court, it has continued an investigation of a police officer who had investigated the conduct of Huey in relation to Ready. It is alleged that Mr. Bevan has exhibited a partiality favouring the conduct of the Commission as regards Ready or Huey. Mr. Bryant, a panel beater and smash repairer, whose business interests include the operation of tow trucks, deposes that he has no towing interests beyond his association with Combined Towing and that he is an active member of the Combined Towing Group. His only connection with the tow truck industry -- 7 of 43 -- 7 is through his association with Combined Towing. Through his business interests and in particular Combined Towing, he has a close business relationship with Mr. Ready. He states that he knows of no reason why he has been summonsed to appear before an investigative hearing conducted by the Criminal Justice Commission Official Misconduct Division other than his association with Combined Towing and thus Matthew John Ready. Mr. Ready has deposed that he is the Operations Manager of Combined Towing Service, which is the trading name of a partnership of two companies each of which trade as tow truck operators. He has been involved in the towing industry since 1975. Prior to that he was a police officer for 18 years. He states that he is aware of corrupt practices within that industry. He states that he is concerned that the investigative hearing being conducted by the Criminal Justice Commission code named "Operation Spot 11" into the activities of persons and entities engaged in the smash repair and tow truck industries, is an attempt to discredit him and the business known as Combined Towing. He states that he has no faith that the hearing will be conducted fairly because of a history of events which cause him to strongly doubt the impartiality of the Criminal Justice Commission. Mr. Ready deposes to a belief that the Criminal Justice Commission is not able to fairly investigate any matter in which he is involved, including Combined Towing. He deposes that he believes that the Criminal Justice Commission and some members of the Parliamentary Criminal Justice Committee wish to discredit him. In support of this belief, he refers to a number of -- 8 of 43 -- 8 matters. He states that in 1981 police named Huey and Farrah fabricated evidence against him and this fabrication was established because he had tape-recorded a discussion with them. Since the establishment of the Commission, every attempt to expose Huey in particular had been thwarted by the Commission. He states also that he fears improper methods may be used to discredit him as it is in the interests of the Commission to discredit him. He says this because he believes the Commission wishes to justify its continued protection of Huey and this is most efficiently done by discrediting him. Mr. Ready states that he has informed the Criminal Justice Commission of corrupt practices within the tow truck industry and of payments to police reported to him by drivers who now work for Combined Towing. He has provided the names of the drivers and their telephone numbers. He states that he has made several complaints to the Criminal Justice Commission regarding police harassment to the drivers of Combined Towing. Traffic tickets issued to these drivers have been withdrawn but he has not been advised as to the outcome of the Criminal Justice Commission's investigation into these harassment allegations. He states that he has never been involved in the payment or corruption of police officers or officials within units of public administration, and that his principal wish is to see a truly untainted and independent investigation into corruption within the towing industry. Mr. Ready has sworn an affidavit to which he annexes a letter signed on behalf of Mr. Bevan from the Criminal Justice Commission regarding a complaint by him said to have been -- 9 of 43 -- 9 received at the Commission on 21 March, 1991. The letter is dated 31 October, 1991. harassment by certain It states that his complaint alleging police officers was received at the Commission on 21 March, 1991. It adds that he was contacted on 30 April, 1991 by Mr. Butler of the Criminal Justice Commission with respect to his complaint. It asserts that Mr. Butler attempted to arrange a suitable appointment with him, but that Mr. Ready told him that he required time to prepare his allegations and that he would respond to him on 1 May, 1991. The letter stated that if the Commission was not informed within 1 4 days of his intentions concerning the complaint, it would consider that he had no further material to place before it and would determine the matter as finalised. Mr. Ready has also annexed a bundle of documents which are copies of material he gave to Mr. Butler concerning complaints made by him in 1991 regarding the conduct of police and other towing organisations. Mr. Harris, a Senior Constable of Police, has deposed that in June 1990 he was rostered to work with Detective Sergeant Reynolds. Reynolds received a complaint in his presence concerning the conduct of John William Huey who was then his senior officer in the Police Service. The conduct alleged related in part to the fabrication of evidence against Matthew John Ready by Huey and others. On 21 June, 1990, Harris was present when Ready was interviewed and he made allegations in support of the complaint. Subsequently, Reynolds took out summonses charging Huey with five offences arising from the Ready matter complaint. On 2 July, 1990, the same day as the summonses -- 10 of 43 -- 10 were taken out, pursuant to the Criminal Justice Act, a complaint was made to the Criminal Justice Commission concerning Huey. It is deposed that the Director of Prosecutions took over the prosecution of the Reynolds summonses and Mr. Harris deposes that he understands the summonses were purportedly withdrawn. Subsequently he continued the investigation of the Ready matter as further evidence came to his attention. Mr. Harris deposes that subsequently he has been a party to litigation with the Criminal Justice Commission. He was also charged with offences relating to his continued investigation of Huey. The Magistrate found a charge proved against him and discharged him under s. 657 of the Criminal Code. He has appealed against this finding and the complainant has appealed against the penalty and the Magistrate's refusal to order costs. Mr. Harris claims that material and exhibits already filed in this Court demonstrates a sustained refusal on the part of the Criminal Justice Commission to investigate the Ready matter and a sustained defence by the Criminal Justice Commission of its response to the Ready matter complaint. Section 2.25 of the Act authorises a person who claims (a) that an investigation by the Official Misconduct Division is being conducted unfairly; or (b) that the complaint or information on which an investigation by the Official Misconduct Division is being, or is about to be, conducted does not warrant an investigation, to make application to a Judge of the Supreme Court for an order in the nature of a mandatory or restrictive injunction addressed to the Director of the Official Misconduct Division. -- 11 of 43 -- 1 1 By s. 3.21(1) of the Act, the Commission is not bound by rules or the practice of any Court or tribunal as to evidence or procedure in the discharge of its functions and responsibilities, or the exercise of its powers or authorities, but may infirm itself on any matter and conduct its proceedings as it thinks proper. Section 3.21(2) provides that:- "The Commission shall, at all times - (a) act independently, impartially, fairly and in the public interest; (b) act openly, except where to do so would be unfair to any person or contrary to the public. interest." These provisions are to be found in Division 2 of Part III of the Act. By s. 3.19, the provisions of that Division apply to:- (a) all proceedings conducted in discharge of any of the functions and responsibilities of the Commission; (b) all proceedings conducted in discharge of any of the functions of any organisational unit of the Commission. The Official Misconduct Division is an investigative unit within the Commission: s. 2.20(1). It is claimed by the applicants that the investigation by the respondent is being conducted unfairly. They contend that this is so because:- (a) the investigative hearing primarily involves entities and individuals and activities already governed by -- 12 of 43 -- 12 statute with a "policing super-structure" effectively discharged by another agency of the State; (b) Mr. D'Alessandro was denied legal representation of his choice; (c) the proceedings were not stayed following the application of senior counsel for the applicants and others; (d) the investigative hearing is not apparently bona fide; (e) actual or imputed bias by:- (i) the presiding officer, Mr. Bevan; (ii) the Director of the Official Misconduct Division, Mr. Le Grand; (iii) (iv) the Chairman of the Commission; all Commissioners acting in concert with the Chairman; (v) the Commission and its personnel generally operating behind an institutional facade. (f) the occasion of the investigative hearing is tainted by the possibility of an existing motive to cover up criminal conduct by the Chairman and other officers of the Criminal Justice Commission. It is convenient to begin with the allegation that the investigation is being conducted unfairly because Mr. D'Alessandro was denied representation of his choice. In an affidavit sworn by Mr. Bevan, he refers to rulings he gave refusing Mr. Greenwood Q. C. leave to appear for Mr. D'Alessandro who had been summonsed to attend and give evidence before the Commission, and indicating that it would be -- 13 of 43 -- 13 inappropriate for Mr. Greenwood, or his instructing solicitor, to appear for any other witness summonsed to give evidence at the hearing in the event that Mr. Greenwood continued to appear for Mr. Bryant. He states:- "In making the said rulings I relied on information obtained by Detective Sergeant Dudley Keith Franklin Baker in the course of an investigation conducted by the Commission; a summary of this information is exhibited hereto and marked with the letter 'C'. For the reasons I gave at the hearing, I am concerned that, if Mr. Greenwood and Messrs. Maxwell Mead and Young (the applicants' solicitors) are granted leaveto represent different witnesses at the hearing, the integrity of the investigation will or may be prejudiced, in circumstances where they also act for Matthew John Ready. I object to any disclose to the applicant (Mr. Bryant) of the matters set forth in Ex. "C" to my affidavit, on the following grounds: (a) that the applicant is not entitled to be provided with particulars of the information, or complaint, or ofthe source thereof, pursuant to s. 5.2(2) of the Act; (b) that premature disclosure of this information will jeopardise the Commission's investigations in this matter." Exhibit C has not been disclosed to the applicants or their legal representatives. An order was made by Helman A. J. on 1 September, 1992 that Exhibit C be sealed in an envelope and placed with the file, to be opened only on the direction of a Judge of the Supreme Court. It was submitted for the applicants that the first ground relied upon by Mr. Bevan was inapplicable. Section 5.2(2) of the Act provides that in proceedings on an application under s. 2.25 of the Act, made on the ground that any information or complaint does not warrant an investigation, the applicant is not entitled to be provided by or on behalf of the Commission with particulars -- 14 of 43 -- 14 of the information or complaint or of the source thereof. It was said that the provision did not apply since the application was not made on the ground that an investigation was unwarranted but on the ground that the investigation was being conducted unfairly. That submission seems to me to be correct. It was then submitted that s. 5. 2 ( 2) does not apply to enable the Court to receive into evidence a document that is not disclosed to the applicants or to the public. It disentitled an applicant to be provided with particulars from the Commission, but it did not disentitle an applicant from being provided with evidence which may contain particulars that is put before the Court on an application under s. 2.25 of the Act. I find it unnecessary to decide whether this submission is correct, since I have ruled that s. 5.2(2) has no application in this case. The second ground relied upon by Mr. Bevan was that premature. enclosure of the information would jeopardise the Commission's investigations. This objection is supported and supplemented by grounds set out in the affidavit sworn on 7 August, 1992 by Mr. Le Grand, the Director of the Official Misconduct Division. He states that he wishes to object to the production to the applicant Bryant of any information held by the Commission relating to the proposed investigation on the ground that such production would be harmful to the integrity of the investigation and therefore injurious to the public interests, and gives reasons why this would be so. The issue before me is not whether information held by the Commission relating to the investigation may be withheld from the applicants. It is whether I am entitled to look at ex. C in -- 15 of 43 -- 15 order to determine whether Mr. Bevan was justified in refusing leave to Mr. Greenwood to appear for Mr. D'Alessandro without revealing its contents to the applicants. It was submitted for the applicants that the rules of natural justice precluded the respondent from putting into evidence, or otherwise having regard to a document, without the applicant being provided with a copy of the document, given an opportunity to read and examine its contents, and given an opportunity, if necessary, to object to its admissibility into evidence in these proceedings. The issue is not one where I am being invited by the respondent to inspect ex. C in order to determine whether I should order its production or refuse this on the ground that a valid claim for public interest immunity has been made. That was the issue in Air Canada v. Secretary of State No. 2 [1983] 1 All E.R. 910 to which counsel for the applicants referred. The respondent does not invite me to consider whether ex. C should be disclosed to the applicants. The basis upon which the respondent invites me to inspect ex. C is to determine whether Mr. Bevan was justified in refusing leave to counsel for one applicant to appear for another applicant. I consider that the respondent is entitled to place before me material to show that it has reasonable grounds for believing that to allow representation by one person for several witnesses summonsed to give evidence before it will be likely to prejudice the conduct of the investigation it is carrying out pursuant to its statutory functions. I am not however persuaded that it is right to ask me to examine and take account of that material without disclosing its contents to the applicants. In Kanda v. -- 16 of 43 -- 16 Government of Malaysia [1962] A.C. 322 at pp. 337-8, Lord Denning said:- "The judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing. " · In my view, it would be wrong for me to receive and act upon an ex parte communication from a respondent which may affect adversely any right to representation of its own choice that an applicant may have. See Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] 162 CLR 24 at pp. 58-60 (per Brennan J.). Though the cases cited there relate to tribunals conducting investigations, the principle audi alteram partem referred to applies equally to a court which exercises supervisory jurisdiction over a tribunal. Accordingly, I decline to have recourse to ex. C. In Re Whiting, O.S. No. 409 of 1992, an application was made for an order pursuant to s. 2.25 of the Act restraining the Commission from proceeding with an examination unless the applicant was permitted to appear in the course of that examination by the counsel or solicitor of his choice. Further or alternatively, he sought declarations as to the proper construction of s. 3.23 of the Act, contending that the Commission is not empowered by that section to exclude or restrict the entitlement of a person concerned in any proceeding of the Commission to appear therein, either in person or by the counsel or solicitor of that person's choice. In the further -- 17 of 43 -- 17 alternative, he sought an order that any power to exclude a particular counsel or solicitor from appearing for a witness in a proceeding may only be exercised where the officer of the Criminal Justice Commission exercising the discretion has reasonable grounds to believe or suspect that to permit a person concerned in a proceeding to appear in person or by a particular counsel or solicitor in that proceeding may frustrate the objects of the Act, and that the circumstances of the case did not support such an exercise of discretion. It was held (a) that s. 3.23 of the Act did not confer a right of audience on either counsel or solicitors with respect to a proceeding; (b) that the tribunal could have regard to whether the particular legal representation might prejudice the investigation; (c) the Commission had the power to decline to allow a particular lawyer to appear for the witness if it formed the bona fide belief on reasonable grounds that to allow such representation would prejudice the investigation; and (d) there were reasonable grounds on which a bona fide belief could be based that to allow the representation sought would be likely to prejudice the investigation being carried out pursuant to the requirements of the Act. Accordingly, the application was dismissed. I was informed that an appeal against this decision had been heard by the Court of Appeal which had reserved its decision. I considered it desirable to await the decision of the Court of Appeal, as the application by Mr. D'Alessandro in particular seemed to me to raise the same matters, and it had been submitted on his behalf that the decision was based on a wrong interpretation of s. 3.23 of the Act. Moreover, the submission -- 18 of 43 -- 18 had been made on behalf of all the applicants that the denial to Mr. D'Alessandro of legal representation of his choice amounted to an unfairness affecting all of the applicants. As the decision of the Court of Appeal had not been given before the long vacation, I had the matter mentioned before me. All parties agreed that I should give my judgment without further delay. I consider that I should follow the decision by Williams J in Re Whiting, which is supported by the reasoning in two decisions of the Full Court of the Federal Court, namely National Crime Authority v. A. B. and D (1988) 18 F.C.R. 439, and Bill v. Australian Securities Commission (1991) 30 F.C.R. 184. The question then is whether the Commission had a bona fide belief on reasonable grounds that to allow the representation of D'Alessandro by the same counsel and firm of solicitors as acted for Mr Bryant would prejudice the investigation. I have given reasons for concluding that I should not look at the information upon which Mr. Bevan has deposed that he relied in making his ruling on representation which is contained in ex. C. It appears that this information was obtained by a police officer in the course of an investigation conducted by the Commission. An affidavit was also filed by Mr. Le Grand, the Director of the Official Misconduct Division. This relates specifically to the matter of production to the applicant of information held by the Commission relating to the proposed investigation. It does not directly address the question whether the Commission had the bona fide belief on reasonable grounds to which I have referred. -- 19 of 43 -- 19 In the course of his remarks at the hearing on 27 July 1992, Mr. Bevan said in relation to the matter of representation that there were two matters for consideration:- "One is possible prejudice which could unwittinglyarise in relation to the Commission's investigation by legal representatives unconsciously communicatingevidence of one client to another, and also the Commission is in receipt of information which suggests that there have been widespread abuse of the Tow Truck Act and that the nature of these abuses suggests that it is on an organised basis, and therefore I think that the public perception would be that theinvestigation was not fair - being fairly conducted if the persons who were summoned who are possibly involved in such a practice are represented by the one representative. As Mr. Devlin says, this in no way cuts across the right of the person summoned generally to choose a legal representative he may seek to choose." In an affidavit filed on 28 August 1992, Mr. Bevan states that he is concerned that if leave was given to counsel and the solicitors to represent different witnesses at the hearing, the integrity of the investigation will or may be prejudiced, in circumstances where they also act for Mr. Ready. The question is whether these grounds justified the course taken of refusing to allow Mr. Greenwood and the solicitors to represent different witnesses at the hearing. In my opinion they do. The position is different in a number of respects from that examined in Australian Securities Commission v. Bell (1991) 32 F.C.R. 517 where a different conclusion was reached. In the instant case the observations by Mr. Bevan were made at the very beginning of the inquiry, after a non-publication order had been made. In A. S. C. v. Bell, the objection was made after the -,_ solicitor had appeared for a number of people over some weeks. There was in the instant case, and not in A.S.C. v. Bell, a clear -- 20 of 43 -- 20 statement of the ground upon which the objection was made. There is a statement that evidence exists to support that objection, there was no such statement in A.S.C. v. Bell. There are differences in the expression of the entitlement of a legal representative to be present; compares. 23{1) of the Australian Securities Commission Act with s. 3.23 of the Criminal Justice Act. The action of the Commission to which objection has been taken is, in my opinion, examinable by the Court to determine whether the exclusion is justified. It was, I consider, reasonable for the Commission to conclude that representation by the same legal practitioners of witnesses who were to be separately examined in a closed hearing about a matter which was claimed in the reference to involve organised crime could lead to a situation where information obtained from one witness may be disclosed to another and thereby interfere with the conduct of the investigation. I can see nothing to suggest that this decision was not made bona fide. I consider that the matter placed before me by the Commission, excluding ex. C, is sufficient to justify the exclusion. Accordingly, I consider that Mr. Bevan did not err in directing that Mr. D 1 Alessandro was not entitled to be represented by the same counsel and solicitors as appeared for Mr. Bryant. I turn now to the submission that an order should be made restraining the Director from proceeding with an investigation on the ground that "the investigative hearing primarily involves entities and individuals and activities already governed by statute with a 1 policing super structure 1 effectively discharged -- 21 of 43 -- 21 by another agency of the State. The Commission has embarked upon a trade practice investigation with a borderline jurisdictional basis". At the hearing conducted by Mr. Bevan on 27 July 1992, Mr. Greenwood asked the Commission to stay the inquiry on the basis that the description of the nature of the investigation contained in the Schedule to the summons of Mr. Bryant and the other applicants is of its nature, and in its description, outside the jurisdiction of the Commission. He submitted that the Commission could not make inquiries at large in respect to private citizens engaged in a certain industry unless it was performing one of its functions or responsibilities under the Act, as set out in s. 2.14 and 2.15 of the Act. By s. 2.14(b), the Commission is required to 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 Force or other agencies of the State. It was submitted by Mr. Greenwood that the Commission's opinion would properly be that breaches of the Tow Truck Act of 1973 could and should be able to be effectively discharged by the Department of Transport and the Crown Law Office, being the agency prescribed by law to assist in the policing of that Act. By s. 2.15, the responsibilities of the Commission include- (f) in discharge of such functions in the administration of criminal justice as, in the Commission's opinion, are not appropriate to be discharged, or cannot be -- 22 of 43 -- 22 effectively discharged, by the Police Service or other agencies of the State, undertaking - (ii) matters of witness protection; (iii) investigation of official misconduct in units of public administration; (iv) investigation of organized or major crime. It was pointed out by Mr. Greenwood that the schedule to the summons referred to possible official misconduct only in (d), which refers to "possible official misconduct, in connection with the smash repair and towing industries, by persons employed in units of public administration". He submitted that the Commission's primary jurisdiction was in what he termed "establishing positive propositions in connection with official misconduct by police officers, rather than the establishment of positive propositions by private individuals and entities engaged in smash repair and tow truck industries." I consider first the submission that the Commission should have formed the opinion that breaches of the Tow Truck Act could and should have been effectively dealt with by other agencies of the State. A person who contravenes or fails to comply with any provision of that Act commits an offence against the Act: s. 40(1), and is liable to a fine: (s. 40(3); which may be recovered by way of summary proceedings before a magistrates court: s. 40(4)). The Court may order that in default of such payment the person should be imprisoned: ss. 161, 163 and 163A of the Justices Act 1886. The offences are criminal in nature, since the Act authorises imprisonment for an offender against its provision as a punishment in the last resort. See R. v. White, -- 23 of 43 -- 23 ex. p. Sidney (1860) 1 Q.S.C.R. 9.11; Michel v. Medical Board of Queensland (1942) St.R.Qd. 1 at 33, 36; and Queensland Law Society Inc. v. A Solicitor (1989) 2 Qd.R. 331 at 336. But while the investigation of breaches of the Act is a matter which arises in the administration of criminal justice, it is a matter committed to the judgment of the Commission whether a function in the administration of criminal justice is not appropriate to be discharged, or cannot be effectively discharged, by the Police Force or other agencies of the State. The Act does not spell out any criteria to be taken into consideration by the Commission in forming its opinion; nor does it require the Commission to disclose the grounds upon which it formed its opinion. In the authorisation and direction given by Sir Max Bingham to the Official Misconduct Division to undertake the investigation, he states that he is "of the opinion that the investigation set forth in Schedule 1 hereof is an investigation of organised or major crime which is not appropriate to be discharged or which cannot effectively be discharged by the Police Service or other agencies of the State of Queensland." In Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at p. 67, Knox C.J. said:- "When the operation of a law is made conditional upon the opinion, as to certain matters, of some person named or desqribed, or on proof of certain matters to his satisfaction, the question whether his opinion is justified or whether he should have been satisfied on the materials before him, is not examinable by the courts. The only question which can be examined is whether, acting bona fide, he formed the opinion or was satisfied with the proof." That statement is now subject to qualification, as was pointed out by Windeyer J. in FCT v. Brian Hatch Timber eo. -- 24 of 43 -- 24 (Sales) Pty. Ltd. (1972) 128 CLR 28 at p. 51, where he quoted from certain observations by Dixon J. in Avon Downs Pty~ Ltd. v. FCI (1949) 78 CLR 353 at p. 360: "His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, or any of these grounds his conclusion is liable to review." Nothing has been put before me which would lead me to think that the opinion of the Commission should be questioned. It is not enough for the applicants simply to say that the investig-ation of offences against the Tow Truck Act may be carried out by the relevant departments. The submission that the Commission was engaged in an investigation into the conduct of private individuals and entities rather than official misconduct by public officers is not sustainable. The investigation is into the activities of persons and entities engaged in the tow truck industries. That investigation will fall within the responsibilities of the Commission if, in terms of s. 2.15 of the Criminal Justice Act, it is an investigation of official misconduct in units of public administration, or an investigation of organised or major crime. The Commission is not authorised by the Act to conduct investigations into the activities of persons and entities engaged in the tow truck industries except so far as the investigations are of the kind specified ins. 2.15 or s. 2.20. The latter provision makes it the function of the Official Misconduct Division, which is the investigative unit within the Commission, to investigate cases of - -- 25 of 43 -- 25 ( i) alleged or suspected misconduct by members of the police service; or (ii) alleged or suspected official misconduct by persons holding appointment in other units of public administration, that come to its notice from any source, including by complaints or information from an anonymous source. Subject to understanding the investigation as being limited to matters specified in s. 2.15 or 2.20, it is no ground for suggesting that it falls outside jurisdiction that it will investigate the activities of private individuals or entities. The remaining grounds upon which it is submitted that the investigation is being conducted unfairly are summarised in this way by the applicants:- "Mr. Bryant and Mr. D'Alessandro are concerned that if the investigation is allowed to continue their association with Mr. Ready renders them liable and/or perceptible to be tainted in similar fashion to the way the Commission would treat Mr. Ready. Mr. Ready says that the Commission is biased towards him. He has a reasonable apprehension this is so. He says the fact that the investigation is being cast in the way it is rather than to address his own complaints of corruption concerning police corruption in the tow truck industry demonstrates the apparent and immediate cause for his fear." The principal submission for the applicants was that the investigative hearing into the activities of persons and entities engaged in the Smash Repair and Tow Truck Industries conducted by the Director of the Official Misconduct Division of the Criminal Justice Commission was not independent, impartial and/or fair. Section 3.21 2(a) of the Act requires the Commission at all times to act independently, impartially, fairly and in the public -- 26 of 43 -- 26 interest. By. s. 3.17, the provisions of Division 2 (which includes s. 3.21 2(a)) apply to (a) all proceedings conducted in discharge of any of the functions and responsibilities of the Commission; (b) all proceedings conducted in discharge of any of the functions of any organizational unit of the Commission. In Ainsworth v. Criminal Justice Commission (1992) 66 ALJR 571, it has held that proceedings must be seen as referring to any step, no matter how informal, taken in the course of or in relation to its functions and responsibilities rather than to the formal or public steps which will sometimes attend the discharge of these functions and responsibilities. There can be no doubt, in my view, that an investigative hearing is a proceeding conducted in discharge of functions and responsibilities of the Commission and functions of its Official Misconduct Division, and hence the Commission is required in these proceedings to act independently, impartially, fairly and in the public interest. It was said in the joint judgment of Mason C.J., Dawson, Toohey and Gaudron JJ in the Ainsworth Case (at p. 276) that "it is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may destroy, defeat or prejudice a person's rights, interests or legitimate expectations." This was a repetition of a statement in Annetts v. McCann (1990) 170 CLR 596 at p. 598 by Mason C.J., Deane and McHugh JJ that "it can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise -- 27 of 43 -- 27 of that power unless they are excluded by plain words of necessary intendment." It is not made clear what rights, interests or legitimate expectations of the applicants may be destroyed, defeated or prejudiced if the investigative hearing proceeds, but I understand their apprehension to be that their business interests as tow-truck operators may be adversely affected. That seems to me to give them the standing to require that the rules of natural justice regulate the conduct of the investigation. It has been said that "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth": Russell v. Duke of Norfolk [1949] 1 All E.R. 109 at p. 118 per Tucker L.J. Commenting on this, Ki tto J. observed in Mobil Oil Australia Pty. Ltd. v. FCT (1963) 113 CLR 475 at p. 554, that what the law requires in the discharge of a quasi-judicial function is judicial fairness, and that what is fair in a given situation depends upon the circumstances. In R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Anqliss Group (1969) 122 CLR 546 at pp. 553-554, it was said that: "Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it has not formed any views or inclination of mind upon or with respect to it." -- 28 of 43 -- 28 In Livesey v. The New South Wales Bar Association (1983) 151 CLR 288 at p. 293, the High Court stated in a joint judgment:- "The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." The principle has most recently been repeated in Re Finance Sector, Ex parte Illaton Pty. Ltd. (1992) 66 ALJR 583, where it was said in a joint judgment of Deane, Toohey and Gaudron JJ.: "The central principle involved in the applications is well settled. It is that a judge or person obliged to act judicially in the discharge of the functions of a public tribunal should not sit to hear a matter if, in all the circumstances, a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it ... 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." The case for the applicants is that the Commission is biased towards Mr. Ready, and Mr. Bryant and Mr. D' Alessandro are concerned that if the investigation is allowed to continue, they will be prejudiced as a result of their association with Mr. Ready. In support of this allegation, the applicants have placed before me a considerable body of material. The applicants refer first, in their analysis of the factual material placed before me, to proceedings in 1983, when Ready and others were committed for trial before His Honour Judge Pratt of the District Court. They had been committed for trial as a result of evidence by police officers named Farrah and Huey. Mr. Ready has deposed that in 1981 Huey and Farrah fabricated evidence against him and this fabrication was established because he had tape recorded a discussion with them. The prosecution -- 29 of 43 -- 29 failed before Judge Pratt. Subsequently the matter was considered by the Police Complaints Tribunal and thereupon Huey and Farrah were charged. In October 1983 a Stipendiary Magistrate at Brisbane discharged Huey and Farrah following an examination of witnesses. against Huey or Farrah. The Crown did not further proceed In 1989, an ex-police officer named Rapp made complaints about Huey, but no action was taken against Huey. Subsequently, Rapp sought to commence a private prosecution of Huey, but in the result a letter settled by counsel was sent to the Attorney-General. The Attorney replied that his department did not have the resources to investigate the complaint. Rapp's solicitor then contacted the Office of the Director of Prosecutions but received no response. The matter was referred by the Attorney to the Minister for Police, who in turn referred the matter to the Criminal Justice Commission. By a letter dated 1 2 March 1990, Sir Max Bingham as Chairman of the Criminal Justice Commission wrote to the Minister for Police. He stated that the letter from the solicitors for Rapp reported allegations made to the Commission of Inquiry on a number of occasions. They concerned a charge of conspiracy to pervert the course of justice which had been brought against Huey a number of years previously, and which had been dismissed at committal on the ground that there was insufficient evidence to support it. The allegations had been investigated and shown to be totally without foundation. He expressed the view that there was no point in the Commission utilising resources to reconsider the same allegations. He advised that he considered it inappropriate for the Commission -- 30 of 43 -- 30 to investigate the allegations again, and stated his view as being that it was essential that any further investigation be conducted independently of the Commission. In June 1990, the solicitors for Rapp contacted police and two detectives, Reynolds and Harris, attended at their office and recorded details of the complaint. They commenced an investigation, which included receiving directly from Ready a formal complaint which they tape recorded. By late 1989, Huey had been appointed to the position of Detective Superintendent of the Brisbane Task Force, and had authority over Reynolds and Harris. At the time of his appointment, Sir Max Bingham Q.C. had made a public statement regarding the appointment, following criticisms of Huey in the report of the tribunal investigating conduct of His Honour Judge Pratt. Sir Max stated that he considered Huey was the best man for the job. On 2 July 1990, Reynolds swore out five complaints against Huey for fabrication of evidence against Ready. A senior officer, Comrie, directed Reynolds and Harris to stop the investigation. Harris, Reynolds and a solicitor, Mr. Butler, then attended at the offices of the Criminal Justice Commission and made their complaint to a Commander earl Mengler. They then attended upon Mr. Bevan, the Chief Complaints Officer of the Complaints Section of the Misconduct Division of the Criminal Justice Commission and made a complaint to him of misconduct of a police officer. Mr. Bevan advised that the material would be assessed by the Complaints Section and a report would eventually be made to the Director of the Division. -- 31 of 43 -- 31 On 6 July 1990, the return date of the summonses, a Crown Prosecutor appearing upon the instructions of the Director of Prosecutions withdrew the charges. On 12 July 1990, by transfer signed by Huey, Harris and Reynolds were transferred to the Police Service Reserve (Uniform). Subsequently, Harris was informed that the transfer was in fact a punitive transfer because of the charging of Huey. Harris and Reynolds were directed to provide a report to the Director of Prosecutions concerning the charges which had been withdrawn. The report was prepared. In it they set forth the reasons why these complaints and summonses were taken out. In a subsequent report prepared by the Director of Prosecutions, he stated that he thought it would be most unfair to impute improper motives to these officers and that any right-minded person should commend them for the persistence they had shown, but he thought that they had misconceived the law. Reynolds, who had been transferred to uniform section, was called before Deputy Commissioner Blizzard, who conducted a hearing of eight disciplinary matters brought against him in relation to his investigation of matters relating to Mr. Angelo Vasta Q. C. He was demoted by two ranks. This involved pecuniary penalty in terms of salary and entitlements in excess of $186,000. Harris had been rostered to duties such that he suffered significantly in terms of pay. On 13 November 1990, the Criminal Justice Commission wrote to Harris. The letter reads as follows: "Both you and Detective Sergeant J. P. Reynolds have made a complaint to this Commission concerning the conduct of former Superintendent J.W. Huey. -- 32 of 43 -- 32 For the purpose of this letter, there is no need to traverse the complaint or the background to it. In addition to your complaint against Mr. Huey, he has complained to the Commission concerning your conduct - and that of Detective Sergeant Reynolds - in taking out the five complaints and summonses against him earlier this year. Amongst other things, the Commission has received and considered certain advices given to the Attorney General by the Director of Prosecutions, Mr. R. N. Miller Q.C. Suffice to say that in the circumstances, the Commission will take no action against you (or Detective Sergeant Reynolds) regarding the complaint made by Mr. Huey nor, in the circumstances, will it take any action against Mr. Huey re la ti ve to your complaint (and that of Detective Sergeant Reynolds). In both matters the Commission has had due regard to the advice and recommendations given and made to the Attorney General by the Director of Prosecutions. The Commission also had regard to the age of the matters and the fact that Mr. Huey is no longer a member of the Queensland Police Service. As mentioned, no action will Commission against yourself, Reynolds or Mr. Huey." be takenDetective by the Sergeant Huey left the police force on 19 September 1990. Upon his retirement Harris, who had been rostered to a position in the Property Section, had access to Huey's diaries and notebook. After taking advice from counsel, Harris photocopied some diaries and handed them to Mr. Butler. Without instructions from Harris, Butler made some photocopied pages of the Huey diaries available to Channel 7, which telecast a series of reports relating to the events at that time, namely 11 March, 1991. The Criminal Justice Commission issued press releases and statements in response to the Channel 7 telecast which were critical of it. The Chairman then convened an investigative hearing of the Official Misconduct Division of the Criminal -- 33 of 43 -- 33 Justice Commission. He sat with four Commissioners pursuant to s. 2.17(2)(a) of the Criminal Justices Act. On 12 March 1991, a press release was issued by Sir Max Bingham. This stated, inter alia:- "The Commission concluded that aspects of Mr. Huey's conduct in the early 1980's could represent official misconduct as defined in the Act. However as Mr. Huey was then no longer a police officer it was doubtful that the Commission could ask the Police Commissioner to lay any disciplinary charges against Mr. Huey orthat the Misconduct Tribunals would have any jurisdiction in the matter. Even if Misconduct Tribunals did have jurisdiction they would not be ableto impose any effective punishment or sanction against Mr. Huey who was no longer a member of the policeservice. Such action, the Commission concluded, wouldbe an abuse of process." On 15 March 1991, Sir Max Bingham called a public hearing of the Commission to investigate the theft of Huey's diaries and to respond to the accusations against the CJC made by Channel 7 and Mr. Butler. On 27 March 1991, a written complaint into the conduct of the Criminal Justice Commission, together with supporting material was forwarded by Mr. Butler to the Chairman of the Parliamentary Criminal Justice Committee. The complaint was entitled "Official Complaints by Robert David Butler against the conduct of Sir Maxwell Bingham Q.C., Mr. Marshall Irwin, Mr. David Bevan, Commissioner of Police, Noel Newnham, Deputy Commissioner of Police, David Blizzard and Assistant Commissioner of Police Neil Comrie." On 8 April 1991, Mr. Le Grand constituted the misconduct hearing which was a continuation of the hearing by Sir Max Bingham, who had disqualified himself from further hearing the matters. -- 34 of 43 -- 34 On 11 April 1991, Christopher Charles Adams and Kay McGrath of Channel 7 submitted a written complaint together with supporting material concerning the conduct of the Criminal Justice Commission. On 10 May 1991, they and Mr. Butler were heard in a in cam~ra meeting of the Parliamentary Criminal Justice Committee. Sir Max Bingham had suggested to the Parliamentary Committee that they should conduct an independent investigation, and he arranged for assistance to be obtained in the form of New South Wales police officers working for the Committee. On 12 June, 1991, two New South Wales police officers arrived for the purpose of investigating the complaints made against the Criminal Justice Commission, and on 14 June they attended upon the Chairman of the Parliamentary Criminal Justice Committee. On 17 June they were supplied the terms of reference for their investigation. On 16 July, 1991, a report of the Parliamentary Criminal Justice Committee was laid on the table of the Legislative Assembly. It contains the investigation by the two New South Wales police officers into the allegations made by Mr. Butler and Channel 7 regarding Huey and the Queensland Criminal Justice Commission. In a forward to the Committee's report of 16 July 1991, the Chairman of the Parliamentary Criminal Justice Committee explained the circumstances in which the investigation was ordered:- "Former police Inspector John William Huey has been the subject of a number of allegations by Robert David Butler and these allegations were broadcast extensively by Channel 7 over a number of nights on its evening news. Simply put, these stories allege misconduct by John William Huey in 1981 and 1988/89. -- 35 of 43 -- 35 Channel 7 first ran these stories on 11 March 1991 claiming that new evidence against Huey existed and that the Criminal Justice Commission (CJC) had failed to consider this new evidence. Sir Max Bingham QC, Chairman of the CJC, called a public hearing on 15 March 1991 to investigate the theft of Huey's diaries from Queensland Police Service Headquarters and there publicly responded to the accusations against the CJC made by Channel 7 andRobert Butler. On 6 April 1991 the CJC at a public hearing questioned Robert Butler as to these new allegations. He refusedto lay a complaint at that forum, preferring to seekadvice from this Parliamentary Criminal Justice Committee. Butler had been called before the CJC hearing on that date to answer questions concerningthe misappropriation of Huey's diaries from the Queensland Police Service Headquarters. The Parliamentary Committee on 10 May 1991 had a private hearing with Channel 7 and Robert Butler to consider the allegations and the supposed new evidence that existed. Following a request by the Committee, Mr. Butler provided new material to the Committee to supportthese allegations against John Huey. Further, Mr. Butler gave an undertaking to provide additional material at a later date. No additional material was provided to the Committee. After hearing both Mr. Butler and Channel 7 and the claims of new evidence the Parliamentary Committee decided as follows 'that in light of the assertion by Robert Butler andChannel 7 that they were in possession of evidence which they have not previously provided to the Criminal Justice Commission (CJC), this Committee considers that an investigation by an independent investigatory authority other than the CJC, is justified. It should be noted that this resolution meets with the agreement of the other two parties, namely the Criminal Justice Commission and Channel 7/Butler.' It was thought that this independent and impartialinvestigation was necessary to make sure that whatever the outcome or the result it could clearly be seen -- 36 of 43 -- 36 that a proper independent investigation was undertaken which was not influenced by either Queensland police, the CJC or anyone else." During the course of the inquiry, Harris initiated a proceeding in this Court against the Criminal Justice Commission pursuant to s. 2.25 of the Criminal Justice Act, alleging that an investigation by the Official Misconduct Division was being conducted unfairly. Those proceedings were settled. Following that settlement, on 12 December 1991 Mr. Le Grand sat and stated that he was continuing the investigative hearing commenced by Sir Max and the four Commissioners. The hearing related only to the allegation of misappropriation of the Huey diaries. As objection was taken to Mr. Le Grand sitting, he adjourned further hearing of the matter to a date to be fixed. On 17 December 1991, the Commission commenced an investigative hearing into a complaint known as the Kruse complaint. This concerned the alleged misuse of a concealable firearm by Harris. The hearing commenced before Mr. Bevan. Following a ruling by Mr. Bevan pursuant to s. 2.17(4) of the Criminal Justice Act that it was preferable in the public interest to conduct a closed hearing, an adjournment was sought of the hearing pending a foreshadowed application for relief. On 24 December 1991 a summons was served on the Commission. Application was made for an order that the Director of the Official Misconduct Division cease, or alternatively not proceed with, the hearing of the complaint by Kruse, or alternatively that he proceed with the investigating hearing subject to certain directions, including that the hearing be conducted in public. -- 37 of 43 -- 37 As a consequence of this, no evidence has been called in the hearing initiated before Mr. Bevan. On 20 December 1991, Sir Max Bingham wrote to the Commissioner of Police, stating that the Commission had completed an investigation into the unauthorised disclosure of confidential information by Harris. It recommended that he be charged with seven breaches of s. 10.1 of the Police Service Administration Act 1990. The trial of Harris was preceded by an application to stay proceedings on the ground of abuse of process. This was refused. In the course of his reasons, the Stipendiary Magistrate expressed the view that the actions of the CJC in conducting the inquiry in secret with no notification to Harris constituted a clear breach at least of the spirit of the terms of settlement, and brought no credit to the CJC. The Magistrate decided that Harris had committed an offence under s. 10.1, but discharged him without recording a conviction or awarding costs against him. An order to review this decision was obtained by the complainant police officer Heffernan, and also by Harris on the ground that he was not guilty of the offence. On 26 November 1992, the Court of Appeal discharged both orders nisi. I should mention that the decision of the Court of Appeal refers to a number of the matters I have set out above. I consider now the submissions of the parties in relation to the extensive material which I have attempted to summarise. It was submitted for the applicants that the Chairman of the Criminal Justice Commission and other officers of the Criminal -- 38 of 43 -- 38 Justice Commission including the Commissioners apart from but acting in concert with the Chairman chose to protect a senior police officer Huey and thereafter engaged in a cover-up of their protection of him in breach of their statutory duty. It was said that three men in particular could of their own knowledge expose this alleged cover up, namely Reynolds, Harris and Ready. Reynolds and Harris had been prosecuted as a result of their activities, and it might be inferred that the Commission may now have begun to move against Ready. It is claimed that a relationship has been identified between Huey, Sir Max Bingham and the Commission by which Huey is protected, and that the applicants have identified the abuse of the investigative hearing process as a method of prosecuting those who have complained about Huey. It is then submitted that there never was an investigation that could not be effectively discharged by the Police force, as is shown by the reference of the diaries to the police and the reference of the Channel 7 matters to two New South Wales police officers. It is further submitted that substantial bias taints the conduct of the investigation throughout. I consider this last submission first. It is pointed out that the order by way of relief under s. 2. 25 is an order to the Director of the Official Misconduct Division, and it is submitted that the form of action under s. 2.25 indicates that an investigation by the Official Misconduct Division is an investigation of that division of the Commission and not an investigative hearing conducted by an -- 39 of 43 -- 39 independent person though authorised by the Chairman. It was in this regard, as I understand the submission, that reference was made to a passage in the judgment of Deane J. in Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70 at p. 92. He said:- "In most cases where a statutory tribunal can be validly constituted by some only of its members, the actuality or the appearance of disqualifying bias on the part of a particular member or particular members will affect those members only and will not taint the Tribunal as a whole. If, for example, the actuality or appearance of bias on the part of a particular member or particular members results from a relationship or activities unconnected with membership of the relevant tribunal, there is not, without more, any reason in fairness, reason or common sense why theother members of that tribunal or the tribunal itself should be affected or disqualified. Even where the actuality or the appearance of bias on the part of a particular member or particular members has resulted from the discharge of the relevant Tribunal's functions, it will ordinarily be possible to say that neither the parties nor a fair-minded, informed lay observer would entertain a reasonable apprehension that the tribunal as a whole was affected by the disqualifying bias of the particular member or members. The circumstances of a particular case may, however, be such as to give rise to a reasonable apprehension that the relevant tribunal as an institution is affected by disqualifying bias. One possible example of such a case is where the identity of the members of a tribunal who are involved in prejudgment of issues is effectively shielded by the institutional facade. Another possible example is where the circumstances are such as to give rise to a reasonable apprehension that all members of the tribunal are affected. Ultimately, the central question in the present appeal is whether theTribunal, as an entity, is itself affected by the actuality or appearance of disqualifying bias in the conduct of the proposed inquiry." One matter which might have been raised by the respondent in answer to this submission was the application of the principle of necessity. This was stated in the joint judgment of Mason C .J. and Brennan J. in Laws v. The Australian Broadcasting Tribunal in these terms:- -- 40 of 43 -- 40 "The rule of necessity gives expression to theprinciple that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace theapplication of the rules of natural justice." It was submitted for the respondent that resort to the principle of necessity is unnecessary where there is a complete absence of the kind of evidence necessary to make out a case of actual or apprehended bias. I agree that if no breach of the rules of natural justice appears, then no reason exists for considering whether the Tribunal must be prevented from performing its statutory functions. The critical initial question therefore must be whether such a breach does appear. Only if it does, will consideration be required of the principle of necessity. The starting point must be a consideration of the question whether the Commission or any of its members tried to protect Huey. The material placed before me shows that in 1983 Huey was discharged by a Magistrate at the committal stage, and that the Crown did not proceed further against him. That was many years before the establishment of the Criminal Justice Commission. Subsequently, when in 1989 Rapp sought to have proceedings taken against Huey, the Chairman of the Criminal Justice Commission expressed the view that as the allegations had been investigated and shown to be without foundation, the Commission's resources should not be expended in reconsidering them. I find nothing in this to indicate bias on the part of the Chairman or any member of the Commission. No reason is given for challenging Sir Max's -- 41 of 43 -- 41 stated view that Huey was the best man for the position in the Brisbane Task Force, unless it can properly be said that he should not have given the position to a person who had been charged with offences but in respect to whom investigations had concluded that action was not warranted. It is an action which may be questioned on grounds of prudence, but not on the basis of bias. In relation to the complaint made against Huey by Reynolds and supported by Harris, it appears that it was the Director of Prosecutions, and not the Criminal Justice Commission, who determined that no action should be taken against Huey. The letter from the Commission dated 13 November 1990 gives no reason to think that it had regard to any improper considerations in making the decisions it announced. I am unable to see anything in the action by Sir Max Bingham in relation to Channel 7 allegations and those of Mr. Butler which suggests bias on the part of the Commission or any of its members. Nor am I able to see anything which suggests that the Criminal Justice Commission was responsible for any punitive transfer of Harris or punitive demotion of Reynolds. I am unable also to see the relevance of the hearing of the Kruse complaint to any matter before me, apart from the fact that it involved Harris and led to a further application to this Court. The action of the Commission in investigating the disclosure of the Huey diaries by Harris and recommending that he be charged was claimed by the applicants to indicate an intention by the Commission to vilify Harris. The relevance of this is said to -- 42 of 43 -- 42 be the connection between Harris and Ready. I am not prepared to conclude that the investigation by the Commission of Harris's acts in disclosing the diaries was done for any improper reason. The Official Misconduct Division has the function of investigating alleged or suspected misconduct by members of the Police Service. At the time when the investigation was carried out, it had the function of investigating all cases of alleged or suspected misconduct by members of the Police force. I do not think that any inference can be drawn that the tow-truck investigation could have been effectively carried out by the Police Force because police were involved in their investigations, and in particular that police from another State were used to investigate allegations made by employees of a television station. I conclude that there is no evidence that Investigation No. 24 of 1992 is being conducted unfairly. I dismiss the applications, and order the applicants to pay the respondent's costs to be taxed. -- 43 of 43 --