All references in this manual to 'the Commission' are to the Corruption and Crime Commission unless otherwise specified. All statutory references are to the Corruption, Crime and Misconduct Act 2003 (CCM Act) unless otherwise specified.
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The Commission was established in 2004 as an independent anti-corruption agency to improve the integrity of the Western Australian public sector.
The Commission is a body corporate, s 8.
The functions and powers of the Commission are contained in the CCM Act.
The Commissioner carries out the functions of the Commission in the name of the Commission. The Hon. John McKechnie, QC, became Commissioner in April 2015. The Acting Commissioner, Mr Scott Ellis, was appointed in June 2016.
The Commission investigates allegations of serious misconduct against Western Australian public officers including WA Police, government departments, government instrumentalities, boards, public universities and local governments.
The Commission has exclusive jurisdiction over police misconduct in Western Australia and is empowered to investigate police reviewable action and any police misconduct.
The organised crime function enables the Commission to authorise the use of exceptional powers by Police to investigate organised crime.
The minor misconduct function is now within the exclusive jurisdiction of the Public Sector Commission.
The main purposes of the CCM Act are -
In order to combat and reduce the incidence of organised crime, the Commission is able to authorise the use of investigative powers not ordinarily available to WA Police to effectively investigate particular cases of organised crime (s 7B(2)).
To improve the integrity of the public sector, the Commission, in cooperation with the Public Sector Commission, assists public authorities to increase their capacity to prevent misconduct.
The Commission also uses investigative powers to identify and deal effectively with serious misconduct in the public sector.
The Commission may prepare a report on any matter in respect of serious misconduct, whether or not it has been the subject of an investigation, and cause that report to be laid before each House of Parliament or given directly to government departments or ministers (ss 84,89).
The Commission has the functions conferred or imposed by or under the CCM Act or any other written law (s 16).
Under the CCM Act the Commission has the following functions:
The Commission may hold an examination for the purposes of an investigation under the CCM Act or for the purposes of an investigation in respect of which an exceptional powers finding has been made related to organised crime and an organised crime summons has been issued. It is just one means by which the Commission conducts an investigation.
Commission examinations are not ‘judicial proceedings’; they are an exercise of executive and administrative power. They are part of an investigation. Nonetheless, in the course of an examination, the presiding Commissioner is ‘a person acting judicially’ within the meaning of s 3 of the Evidence Act 1906 (WA).
Examinations differ from proceedings in courts or tribunals, and the role of Counsel is different. See 'Information for Legal Representatives' for further information.
In a Commission examination, there is no issue to be decided. They are inquisitorial rather than adversarial. The examination is designed to discover facts that may lead to further action being taken. No person appearing at a Commission examination has a "case" to pursue.
The essential and immediate purpose of an investigation is to inform the Commission on matters of serious misconduct to enable the Commission to make assessments, form opinions, make recommendations and to communicate the results of the investigation to Parliament.
Examinations are to be conducted in private unless provided in s 140. The Commission may make an order as to who may be present during the whole or any part of an examination that is not open to the public (s 139).
A Public examination is allowed when, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so (s 140). The decision to open an examination to the public may be made at any time before or during the examination (s140(3)).
Forms one part of an investigation to ascertain facts. There are no issues to be decided.
To decide a 'matter' between parties (civil or criminal).
Inquiries are generally conducted in private unless it is in the public interest to open them to the public.
Court hearings are mostly held in public.
Rules of evidence and procedure
Not bound by rules of evidence or procedure but is confined to the scope and purpose of the investigation.
Must abide by rules of evidence and procedure.
Documents are not tendered. They are usually referred to as 'materials produced' and are barcoded.
Documents and other things produced are tendered as exhibits and given an exhibit reference number.
A witness may be the focus of an investigation but is always referred to as a witness. They may have legal representation.
Witnesses are not legally represented.
Any evidence in an examination is "restricted matter" and must not be disclosed except in accordance with the CCM Act.
In the absence of a suppression order, any evidence may be disclosed.
Examination of Witnesses
Counsel representing a witness or other person may be permitted to examine a witness if the Commission considers it relevant.
Counsel representing an accused is permitted to cross examine all witnesses.
The Commission may form an opinion which it will often report on.
A court will make findings which are legally binding.
The Commission may appoint a person to assist the Commission at an examination (s 143(1)). This person is referred to as Counsel Assisting.
If the examination is open to the public, Counsel Assisting may present an opening statement to introduce general topics or issues and to outline the facts as then known, thereby providing the context for examination of witnesses.
Counsel Assisting may examine witnesses on any matter that the Commission considers relevant (s 143(1)) but limited to the scope and purpose of the investigation.
Counsel Assisting must apply professional etiquette and are bound by ethical duties and obligations of the legal profession. The role of Counsel Assisting is not to 'prove' facts or to advocate a particular position, it is to seek out the truth and ascertain relevant facts and information to give
Lawrie v Lawler  NTCA 3 highlighted that it is important, at some stage during the examination process, to ensure parties are made aware of the relevant issues and possible criticisms of them, including any standards of conduct and departures from those standards.
Counsel Assisting will determine the order of witnesses to be called.
When adducing evidence, Counsel Assisting is not limited in the manner in which they conduct questioning. In an examination Counsel Assisting may have to examine, cross examine, challenge a witness's testimony or put forward other accounts to a witness for comment.
To facilitate procedural fairness during an examination, Counsel Assisting may:
Counsel Assisting will control the evidence produced at an examination.
Other counsel present are not entitled to produce documents or statements or to call for the production of documents.
Persons wishing to produce evidence to the Commission should provide a statement of the evidence or a copy of the document or thing to the Commission or Counsel Assisting. The Commission will then determine whether the evidence should be introduced as part of its inquiry.
A witness may be required to produce documents or other things to the Commission at an examination if summonsed to do so in accordance with s 96 CCM Act.
At the end of a public examination, Counsel Assisting may deliver a closing statement.
The closing statement will generally:
Preparation for examinations
Counsel Assisting has a role in relation to the coordination, management, administration, direction and control of Commission processes and operations to ensure that the examination proceeds in an accountable and appropriate way and that it is an appropriate exercise of statutory powers.
In this role, Counsel Assisting may assist in preparation of summons to the witnesses, advise or prepare examination guidelines and procedures and is obliged to ensure that the examination proceeds in a manner to achieve the purposes of an investigation.
A witness may be represented by counsel in their examination before the Commission (s 142(1)).
If a witness is not legally represented at an examination, and the Commission considers that it would be in the public interest for it to do so, the Commission may arrange for the person to be legally represented (s 142(2)).
Legal aid grants are available in certain circumstances for representation at Commission examinations. For more information see:
Witnesses appearing at examinations may be subject to restrictions regarding the disclosure of matters and information connected with their attendance at the Commission. You may be similarly restricted. Further details accompany the summons. See also Information for witnesses.
Counsel do not have an absolute right of appearance before the Commission. An application for leave to represent a witness is generally made as the witness is called. Leave to appear may be granted with conditions. The Commission may refuse to allow a witness to be represented by a person who is already involved in an examination, or is involved (or suspected to be involved) in a matter being investigated (s 142(4)). Leave to appear may also be revoked.
Leave will not ordinarily be granted for an 'in-house' lawyer employed by a public authority to represent other officers of the authority in a personal capacity.
Representation of more than one witness in Commission examinations (whether by the same counsel or by different counsel instructed by the same firm) presents particular difficulties for counsel due to the fact-finding nature of an examination. The Commission requires that applications for leave to represent more than one person at a Commission examination must be supported by written submissions addressing:
Please note that legal practitioners do not robe when appearing before the Commission. The Commissioner is to be addressed as "Commissioner".
The examination process
Examinations are very different to trials or proceedings in courts or tribunals. See Practical differences between a Commission inquiry and court proceedings.
Examination of witnesses is one aspect of a Commission investigation. Its purpose is to enable the Commission to find out facts and get to the truth of allegations of serious misconduct about public officers.
The Commission prefers to conduct examinations with minimal formality and technicality and is not bound by the rules of, or practice of, evidence. The Commission will regulate the conduct of examinations as it thinks fit (s 138(3)).
At the commencement of an examination, the Commission will usually outline the general scope and purpose of the investigation unless it would be undesirable to do so (s 138(1),(2)).
When Counsel Assisting concludes his or her examination, the Commissioner may ask their legal representative whether they wish to examine the witness. The Commission will only allow a witness to be examined if the evidence is relevant to the investigation and advances the investigation (s 143(2)).
A witness may also be examined by a person representing another witness (s 143(3)). This will only be allowed if the Commission considers there are special circumstances (s 142(5)).
If counsel makes an application to examine a witness the Commission requires the legal representative to identify the topics that he or she proposes to examine and how an examination of those topics will advance the Commission's inquiry. The proposed questions should bear directly on the factual issues or provide clarification of the evidence adduced in the Commission's examination of the witness.
In considering an application the Commissioner may invite Counsel Assisting to make submissions and will then determine whether the proposed questions may be asked. Counsel will confine themselves to those questions.
The Commission may allow any other examination that it considers relevant (s 143(3)), such as cross-examination and re-examination. Cross-examination may be deferred until the end of the examinations because affected persons may be unaware of the totality of the relevant evidence until that stage.
The Commission will endeavour to conduct examinations with procedural fairness principles in mind, see Procedural fairness.
The Commission will not tolerate behaviour at an examination that serves to frustrate its ability to conduct an examination as it sees fit. Counsel and witnesses should note the contempt provisions in Part 10 and other offences in Part 11 CCM Act. For further information see Contempt.
Transcripts of public examinations are available on the Commission's website at www.ccc.wa.gov.au. Transcripts of private examinations are not generally released to witnesses or their legal representative. Legal practitioners may apply to the Commission in writing for permission to inspect the transcript of private examinations.
See also: Evidentiary considerations.
If you are a witness in a Commission examination, you will have been served with a summons. The summons will require you to give evidence, or produce any record or other thing in your custody or control (as described in the summons), or to do both of these things.
You must report to the Commission on the date specified in the summons. You will need to attend until the Commission tells you that you are released.
Your summons may include a notation prohibiting disclosure of information. This may include information about the summons, your attendance as a witness, information referred to in the summons, information in documents, statements, evidence or anything relevant to a Commission examination. Please read the notation carefully and make sure you comply with it.
The existence of a summons or any information about it, and the existence of any official matter connected with a summons or any information about that official matter is 'restricted matter' (s167(1)).
You can disclose any 'restricted matter' in the circumstances provided for in the notation on your summons (if any). You can also disclose restricted matter in some circumstances set out in the CCM Act (s 167(4)), including:
You may obtain legal representation as a witness and in some circumstances the Commission may assist you to do so.
The WA Government has established a fund to provide legal assistance for serving and former public officers called as witnesses or served with notices or summonses by the Commission. Applications for legal aid may be made to Legal Aid WA. For more information see: http://www.legalaid.wa.gov.au/LegalAidServices/applyingforLegalAid/Pages/Corruption-and-Crime-Commission-fund.aspx ).
If you need an interpreter, please let the Commission know as soon as possible so that arrangements can be made for an interpreter to be present at the examination.
What to expect
Commission examinations may be held in private, or in public.
If the examination is a private examination, only your lawyer (if you appoint one), Commission Officers, and other people specified by the Commissioner will be present.
Public examinations may be attended by anyone and may be streamed live via the Commission's website.
Examination of witnesses is one aspect of a Commission investigation. Your evidence will help the Commission determine the facts and get to the truth of allegations of serious misconduct about public officers.
The Commission can inform itself on any matter in any way it thinks fit, and is not bound by the rules of, or practice of, evidence.
The Commission's examinations are conducted in a formal setting, similar to a court. Examinations are recorded. Transcripts from public hearings may be published on the Commission's website.
Giving evidence in an examination
When addressing the Commissioner, call him "Commissioner" or "Sir".
If you need a break at any time during the examination, you can ask the Commissioner for one.
You will be required to take an oath or make an affirmation before giving your evidence.
The Commission will tell you at the start about the general scope and purpose of the Commission's investigation.
During the examination, a lawyer appointed by the Commission (referred to as Counsel Assisting) may ask you questions on any matter that the Commission considers relevant to its investigation.
When Counsel Assisting finishes his or her examination, the Commissioner will, if appropriate, ask your lawyer whether they want to examine you. The Commission will only allow your lawyer to examine you if the evidence is relevant to the investigation and advances the investigation.
You may also be examined by a person representing another witness. This will only be allowed if the Commission considers there are special circumstances.
You may be reminded at the conclusion of a private examination that any evidence given before the Commission is 'restricted matter' and must not be disclosed except in accordance with the CCM Act (ss 151 and 167(4)). Disclosing any information about restricted matter is a criminal offence. The restrictions on disclosure to any person remain in place until the Commission advises you to the contrary.
In answering Counsel Assisting's questions:
Speak clearly so that your evidence can be understood. Make sure you say 'yes' instead of nodding, so that your answers can be recorded through the microphone in front of you.
If Counsel Assisting wants to ask you questions about any documents, these will be handed to you or displayed on a screen in front of you during the examination. You will be given time to read the document before you are asked questions about it.
You must answer any question put to you by the Commission, even if your answer may incriminate you. Please note that you may be in contempt of the Commission if you fail or refuse to answer any question relevant to the investigation that the Commission requires you to answer. It is an offence to give false or misleading testimony to the Commission.
Is my evidence admissible in court?
Anything you say in your evidence may be admissible in court if:
You are entitled to claim for reasonable expenses which you have incurred as a result of attending a Commission examination, however these are only nominal.
To make a claim for witness expenses complete the 'Application For Payment of Witness Expenses'. (insert link to form here)
If you make a claim, the Commission will review your claim and certify the amount considered reasonable for payment of witness expenses.
What happens if I don't attend when summonsed to do so?
Failure to obey a summons without reasonable excuse is a contempt of the Commission.
If you are unable to attend at the Commission as required by the summons for any medical or other reason, you should contact the Commission as soon as possible to discuss your circumstances.
If you are unable to attend an examination due to ill health, a medical certificate must be provided to the Commission as soon as practicable. The medical certificate must state:
You should note that the Commission has the power to issue a warrant for your arrest if you fail to attend an examination as required by the summons and the CCM Act (s 148). It is therefore very important that you contact the Commission before the examination date if there is a reason why you are unable to attend.
The Commission may also issue a pre-emptive arrest warrant if certain conditions are satisfied (ss 148(2),(3)). Essentially this allows the Commission to arrest a person where it is possible that they will not attend at an examination or they are making preparations to leave the State.
A pre-emptive arrest warrant may be issued without a summons being issued (s 148(4)). A pre-emptive warrant may also be issued after a summons has been issued and before the examination is due to take place (s 148(5)).
If you have attended, are attending or are due to attend before the Commission to give evidence or to produce a document or any other thing and, because of this, you have concerns for your safety or the safety of any other person, or you or another person is being subjected to intimidation or harassment, you should notify the Commission immediately. The Commission can make arrangements for your protection and the protection of other persons. In some circumstances, the Commission can also make orders to help facilitate these arrangements.
A person who:
because that other person mentioned in paragraph (a), (b) or (c) or someone else gave evidence to, or helped, the Commission or Parliamentary Inspector in the performance of its, his or her functions is guilty of an indictable offence.
Media outlets will receive a media release announcing details of a public examination before it starts. Instructions on how to access livestream viewing will also be provided. A Commission representative will conduct a media briefing immediately before an examination begins.
Media representatives can attend public examinations and have exclusive use of a media room where the proceedings can be viewed and listened to.
Mobile devices and cameras
Media cameras are not permitted on the floor of the examination room unless specifically authorised. For example, permission may be given to record the opening address of an examination.
Mobile phones must be switched to a silent mode in the examination room so they do not interrupt proceedings. The media are permitted to use mobile phones in the media room. This privilege may be withdrawn if photographs or audio recordings are taken by a mobile device on the Commission’s premises.
Transcripts and exhibits
Transcripts of the examinations will be made available on the Commission’s website as soon as practicable - subject to operational constraints.
Where practicable, public versions of telecommunications intercepts and material from surveillance devices will be made available to the media on request. However, under Commonwealth legislation they can only be used for the fair and accurate reporting of evidence given at Commission examinations. Any dealing with the information, including copying, may be regulated by the Telecommunications (Interception and Access) Act 1979.
Requests for transcript, vision or audio material can be made by completing a media exhibit form or by contacting Mills Wilson on (08) 9421 3600.
Media outlets are responsible for ensuring they comply with suppression orders and any changes made to them. Copies of suppression orders are available in the media room.
It is a breach of the Corruption, Crime and Misconduct Act 2003 to disclose any details of a private examination; including the witnesses who may have or are going to appear, what the hearing was about, or any evidence that may have been given.
Interviews with the Corruption and Crime Commissioner will not be granted during public examinations. Interviews with witnesses and counsel will also not be facilitated by the Commission and are not permitted on its premises.
During an examination, media enquiries can be made to Mills Wilson:
|Marie Mills||Louisa Mitchell|
|Ph: 0418 918 202||Ph: 0434 308 208|
|Email: email@example.com||Email: firstname.lastname@example.org|
Moving a public examination into a private examination
The Commission has the right to switch a public examination, or parts thereof, into a private examination. If this occurs, all people in the hearing room are required to vacate the examination till further notice.
The media cannot attend or report anything about private examinations held by the Commission. It is an offence to report that a private examination is to be held, or has been held, to name witnesses who appeared at a private examination, or any details of the evidence given.
At the commencement of an examination, the Commissioner and Associate will deliver directions:
The directions will generally address:
An example of directions delivered in a private examination is set out below.
In a public examination, Counsel Assisting and/or the Commissioner will also deliver opening remarks which are more detailed, going into the reasons why the Commission has decided to open the examination to the public. They may also contain background information specific to the investigation.
Before giving evidence in a Commission examination, a witness will be required to take an oath or affirmation.
The Commissioner may administer the oath or affirmation to the witness (s 141(2)). This is a function which cannot be delegated by the Commissioner to any other Commission officer. However, the term "administer" is not defined. As a matter of statutory construction it is to be given its ordinary meaning. The Australian Concise Oxford Dictionary defines "administer" in relation to an oath as '2c. to direct the taking of (an oath)'.
Pursuant to s 6(1)(b) of the Oaths, Affidavits and Statutory Declarations Act 2005, a person, such as the Commissioner's Associate, who is authorised by the Commissioner to administer the oath or affirmation, may do so. There are no formal requirements for such an authorisation.
Therefore, in a Commission examination it is the Associate who asks the witness to take the oath or affirmation in the presence of the Commissioner.
I swear by Almighty God, that I will speak the truth, the whole truth, and nothing but the truth, in answer to all questions that may be asked of me before the Corruption and Crime Commission.
I do solemnly and sincerely declare and affirm that I will speak the truth, the whole truth, and nothing but the truth, in answer to all questions that may be asked of me before the Corruption and Crime Commission.
Other forms of oath are available for alternative religions. Notifying the Associate of the religion practised by a witness prior to an examination will help facilitate administering the appropriate oath or affirmation. Where a witness is unable to read, the Associate will read the oath/affirmation and the witness will repeat the words.
The Commission may direct that any evidence given, or any information that might serve to identify or locate a person who has given or may be about to give evidence before the Commission, must not be published except in such manner, and to such persons, as might be specified by the Commission.
The power to make a suppression order is found in s 151(3) which provides:
Unless the Commission orders otherwise, a restricted matter may be disclosed if that matter has already been disclosed at a part of an examination that was open to the public.
Restricted matter is defined in s 151(1) and includes evidence given before the Commission, s 151(1)(a).
Application may be made for a direction by the Commission suppressing the publication of evidence. Alternatively the Commission may make a suppression order of its own motion. An application for a suppression order must be supported by relevant considerations.
The Commission has a discretion to open or close the examination in accordance with s 140 if it considers that a suppression order is not a sufficient remedy.
A suppression order will be exact in its terms and include the following matters:
Exercising the discretion
There are no express statutory criteria for granting suppression orders although s 140 and s 156 may provide some guidance. For example, the need to consider the potential for prejudice or privacy infringements (in the context of deciding whether to hold a public examination). There may be cases where, during a public examination, the potential for a person's interests to be prejudiced is so great as to require an order be made in the public interest. There may also be cases where the publication of evidence may infringe a person's privacy. If the safety of any person may be prejudiced by the publication of certain evidence, that may be sufficient grounds for a suppression order (see s 156). Likewise, if the publication of evidence at a public examination is likely to subject a person to intimidation or harassment, the Commission may choose to make a suppression order.
An example of a suppression order is below:
During an examination the Commissioner may make such procedural orders as are reasonably necessary for the exercise of the examination power (s 138(3)).
After the Commissioner makes an oral order, the Commissioner’s Associate will reduce that order to writing and the Commissioner will sign it. Once that is done the order is to be served on the parties. This will ensure that the parties are in no doubt as to what is required of them. The order should contain a warning that a failure to comply with the order is a contempt of the Commission.
It is important that orders are particularised and served on the parties.
An example of an order is below:
All Commission examinations are to be private unless otherwise directed by the Commission (s 139). The CCM Act s 140(2) sets out the considerations to be carried out by the Commission in determining whether it is in the public interest to conduct public examinations.
The Commission considers each proposed witness as a separate examination.
When the decision may be made
A decision to open an examination to the public may be made at any time before or during an examination (s 140(3)).
Both in the lead up to and during a public examination the Commission continuously reassesses the decision making process referred to in s 140(2) and may for a particular purpose decide to open or close it (s 140(4)).
'Weighing' the interests
The Commission may open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so (s 140(2)).
|Benefits of public exposure|
Potential privacy infringements
then … 'is it in the public interest?'
The 'benefits' are the furtherance of the Commission's functions under the CCM Act: A v Corruption and Crime Commissioner  WASCA 288 at  per McLure P. At  McLure P stated that the Commission may open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, “it considers that it is in the public interest to do so”.
The terms 'public exposure', 'public awareness', 'prejudice' and 'privacy infringement' are not defined in the CCM Act. They are to be given their ordinary meaning (the Interpretation Act 1984 s 19).
The CCM Act s 99, which deals with the power to prohibit disclosure of information about a notice or summons, provides three examples of where prejudice may arise. Those factors are:
The public interest
The CCM Act does not define 'the public interest'. The determination of the public interest for the purpose of conducting public examinations, is intended to be informed by the specific considerations on s 140(2) but is not limited by them.
The determination of what will advance the public interest is generally a discretionary judgment often confined only by the subject matter, scope and purpose of the Act conferring the power to make the assessment: O'Sullivan v Farrer (1989) 168 CLR 210, 216, A v Corruption and Crime Commissioner  WASCA 288 at .
Very often the ascertainment of the public interest will require the consideration of a number of competing factors or considerations, or differing features or facets of the public interest: Osland v Secretary to the Department of Justice  HCA 37 at .
Public examinations may serve the public interest by the fulfilment of the Commission's functions pursuant to s 18 CCM Act and the purposes of the CCM Act in s 7A. The following factors may be considered:
If the Commission determines that a public examination is in the public interest, where appropriate, the Commission may nonetheless make orders pursuant to s 138(3) concerning the conduct of those examinations so as to avoid prejudice or damage to reputations. Such orders might include the conduct of part of the examination in private (s 140(4)), not to adduce certain material or to adduce redacted material, or the use of pseudonyms or suppression orders.
An examination is inquisitorial, that is, it is an inquiry being conducted by the Commission to ascertain facts. It is not an adversarial contest between parties trying to prove (or disprove) a case. The purpose is to ascertain the truth, to find out the facts of the matter and expose them to scrutiny.
The Commission is not bound by the rules of evidence and can inform itself on any matter in such manner as it thinks fit (s 135). For these reasons the notion of 'cross-examination' by counsel representing witnesses is misconceived: it is the role of the Commission itself to test the evidence so as to discern the truth.
A witness may be examined on anything the Commission thinks is relevant (s 143(1)) and the Commission may look into what it bona fide believes will assist its inquiry, Ross v Costigan (No 2) (1982) 41 ALR 337 at 351. The concept of relevance or admissibility of evidence does not apply in the same way as it would in an adversarial proceeding.
It was held in Ross v Costigan (1982) 41 ALR 319 at 334:
…the Commission is not determining issues between parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It is not bound by rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may nevertheless fail to do so. But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken.
The Commission’s examination power may properly be exercised to gather facts for further inquiry, or prove/disprove facts of circumstances relevant to the matter under investigation.
An investigation by the Commission is not focussed solely on the gathering of evidence that may be admissible in a prosecution or disciplinary proceeding. The Commission does not have the power to make findings (s 43(6)) as to criminal conduct and may only make recommendations for consideration to be given to prosecutions (s 43(1)).
General scope and purpose
Before the Commission conducts an examination for the purposes of an investigation under the CCM Act, the Commission is to inform the witness of the general scope and purpose of the investigation (s 138(1)) unless the Commission considers that in the circumstances it would be undesirable to do (s 138(2)).
The general scope and purpose of an examination is not a form of pleadings. The Commission does not conduct its examinations according to strict terms of reference, in the manner of a Royal Commission or other ad hoc commissions of inquiry.
A person seeking to challenge the Commission's jurisdiction to explore a particular matter at an examination on the basis that it is outside the general scope and purpose of the investigation will have to establish that the questioning cannot, on any reasonable view, assist the Commission's investigation of the matter under investigation.
A line of questioning may be perceived to be irrelevant to the general scope and purpose of the investigation. However, as discussed above, the Commission is lawfully entitled to explore issues it bona fide considers may assist it, directly or indirectly, to form a view on a question of misconduct.
Legal practitioners should be judicious in their objections at an examination. Generally, the Commission will not be assisted by objections predicated on the rules or practice of evidence.
Greater assistance may usually be derived from a considered submission that the question put, or matter being explored, cannot serve to assist the Commission's inquiries or the formation of relevant opinions at its conclusion.
Where it is contended that the Commission is or would be acting beyond its jurisdiction in a particular way or matter, the person so contending should provide written submissions to the Commission.
Where practicable, the issue should be raised before or outside any relevant examination. The Commission will then be in a position to carefully consider the matter before determining whether it should proceed as planned, or make any necessary adjustments to its examination program.
Where the Commission rejects a challenge to its powers, it may provide written reasons for its decision.
This chapter discusses the principles of 'procedural fairness' as they may apply to the conduct of an examination under CCM Act.
What does 'procedural fairness' mean?
'Procedural fairness' refers to an implied common law principle which ensures the probity of decision-making processes in relation to the exercise of statutory and prerogative powers.
The principle of procedural fairness is implied as a condition of the exercise of a statutory power and is inferred in statute establishing a statutory power unless clearly displaced: Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI  HCA 29 at .
The requirements of procedural fairness depend upon the particular statute and particular circumstances of each case: Glynn v Independent Commission Against Corruption (1990) 20 ALD 214.
There is an established line of case authority confirming that the condition of procedural fairness applies to commissions of inquiry/ statutory investigative bodies (such as the Commission) in the exercise of their statutory powers: Annetts v McCann  HCA 57 Lawrie v Lawler  NTCA 3.
The common law principle applies where the exercise of statutory power affects an individual's 'interests'.
Personal, business or commercial interests attract the protection of the rules of procedural fairness: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
What does procedural fairness require overall?
Procedural fairness is concerned with procedure, rather than with outcomes: Edward Moses Obeid Snr v David Andrew Ipp  NSWSC 1376 at .
'What is required by procedural fairness is a fair hearing, not a fair outcome': SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at .
The overall question is whether, having regard to all the circumstances, the hearing was fair or whether, in a real sense, there had been some practical injustice to the appellant 'which is the gravamen of procedural fairness' (per Middleton J in Telstra Corporation Ltd v Smith (2008) 105 ALD 521 at  and )
The concern of procedural fairness is to avoid practical injustice - there is no denial of procedural fairness where no practical injustice is shown: Re Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 at 821.
The requirements of procedural fairness must depend on the circumstances of the case and do not require the inflexible application of a fixed body of rules but rather, specific fairness in all the circumstances: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 per Gibbs CJ at 312.
The obligation of procedural fairness on a commission of inquiry will likely include providing an opportunity to deal with adverse information that was credible, relevant and significant to its potential findings: Kioa v West (1985) 159 CLR 550 at 628–629.
The rules of procedural fairness may also vary from case to case although each may be conducted before the same tribunal or person: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 per Gibbs CJ at 312. See also: Independent Commission Against Corruption v Chaffey (1992) 30 NSWLR 21 per Gleeson CJ at 28.
The hearing rule
Procedural fairness usually involves two requirements: the fair hearing rule and the rule against bias: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at  per Gleeson CJ.
The hearing rule requires a fair opportunity to be heard: per Mahon v Air New Zealand  1 AC 808 (per Lord Diplock at 820) and applied in Annetts v McCann  HCA 57; 170 CLR 596. This applies to the party liable to be directly affected by the decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at  (the High Court approving Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591).
In the exercise of the power to conduct an inquiry the party liable to be affected will have notice of:
See Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI  HCA 29 at  and also Lawrie v Lawler at .
Fairness may also require disclosure of adverse material. Edward Moses Obeid Snr v David Andrew Ipp  NSWSC 1376 citing Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 at :
Inevitably such an inquiry will expand and move into new or different areas, within its terms of reference, as it progresses. What is necessary is that by the end of the hearing, a party potentially affected by an adverse finding have the opportunity to meet it by submission, and if necessary, by evidence…. (per Wood J at 218–219).
Procedural fairness at the Commission
The Commission recognises that there are reputational and other potential consequences to a published opinion of serious misconduct.
In using its examination powers under the CCM Act, the Commission seeks to afford procedural fairness in accordance with relevant provisions in the CCM Act and in recognition of the relevant legal principles as it considers may be required by the circumstances of each specific case.
Procedural fairness provisions in the CCM Act
The following provisions in the CCM Act relate to procedural fairness:
The Commission may also afford procedural fairness by any of the following:
There is no entitlement for a witness to be informed that evidence has been taken that is adverse to them. Section 86 requires the Commission to give persons who are adversely affected by evidence given in public or private hearings an opportunity to respond to that evidence or make submissions but does not have to give advance notice that such evidence may possibly be given.
The Commission is required by s 86 to provide a draft of relevant excerpts of its reports to persons who may be adversely affected. Provision of draft or tentative adverse findings is not a freestanding requirement of procedural fairness: Lawrie v Lawler  NTCA 3 at .
Further, a decision-maker does not have to reveal their thought processes: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2.
Whether or not procedural fairness has been afforded is ultimately a matter for the courts to determine: Kioa v West at 627.
The rule against bias
Procedural fairness also requires that a decision-maker should neither be biased (actual bias) nor appear to be biased (apprehended or ostensible bias). This is known as the 'rule against bias'.
Application in a Commission examination
The requirement for a decision-maker to bring an impartial mind to matters before them is relevant in the context of non-judicial administrative proceedings, including commissions of inquiry.
In judicial proceedings the rationale relates to fundamental and deep-rooted considerations of judicial independence and the need to maintain and promote public confidence in the courts. In administrative proceedings it is said that the apprehended bias principle is derived solely from natural justice or procedural fairness requirements Re: Refugee Review Tribunal Ex parte H (2001) 179 ALR 425.
The precise practical requirements of the rule against bias principle vary from case to case, and will be influenced by the nature, function and composition of the particular tribunal: Re Finance Sector Union; ex parte Illaton Pty Ltd (1992) 66 ALJR 583.
The statutory context of functions with respect to serious misconduct by public officers will be a prime consideration: see McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504.
A Commission examination is an inquisitorial environment. A greater degree of intervention will be permitted on the part of a presiding official in an inquisitorial hearing than might be the case in curial proceedings: see Re Carruthers v Connolly, Ryan & A-G  QSC 132 (unreported, Supreme Court of Queensland, 05/08/97) at 37.
It is expected that the Commissioner may directly, and through counsel assisting, question witnesses in the course of the examination. This conduct, of itself, will not demonstrate 'bias'.
The expression of tentative views in examinations will not demonstrate 'bias':
It must be stressed that the expression of tentative views, designed to elicit relevant submissions, does not constitute bias nor create a reasonable apprehension of bias. Indeed, this practice actually enhances procedural fairness by alerting the parties to the thoughts of the tribunal and providing them with an opportunity to persuade the tribunal to adopt a different course.
('Apprehension of Bias', a paper delivered by Justice Morris at the Australasian Conference of Planning and Environment Courts and Tribunals 14 September 2006)
The required 'tests' for bias in case law
A concern of bias will not be grounded unless it meets the tests for actual or apprehended bias. Actual bias concerns the actual state of mind of a person said to be biased. Its focus is on reality rather than perception.
The test for actual bias requires the applicant to 'distinctly and clearly' prove the bias: South Western Sydney Area Health Services v Edmonds  NSWCA 16 .
'Apprehended' bias is to be distinguished from 'actual' bias. Its focus is on a perception of bias rather than actual bias in fact.
In a judicial context, the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather that he (or she) will decide the case adversely to one party: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
The test for apprehended bias is concerned with the perception of bias by a hypothetical outsider - 'the fair-minded lay observer': Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd  WASC 79.
The general test for apprehended bias is whether a hypothetical fair-minded person who is properly informed as to:
might reasonably apprehend that the decision-maker might not bring an independent and impartial mind to the resolution of the decision he or she is required to make: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
In administrative proceedings it is likely that the onus is on the applicant alleging bias by a Commissioner to:
The onus is not satisfied by setting a low threshold. A reasonable apprehension of bias does not arise merely on the basis of 'fanciful claims' - the allegations must be 'firmly established' and not be 'reached lightly': Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, 519.
Where a witness has proper grounds for a concern as to actual or apprehended bias in a Commission examination, counsel appearing for the witness potentially affected should raise the concern in writing, in detail, to the Commissioner, prior to the day of examination.
It will be appropriate to allow the Commission a reasonable time to respond to the written concerns, before commencement of any proceedings in respect of the matter.
‘Privilege’ is a term describing a number of rules which operate to exclude evidence on the basis that it would be adverse to a fundamental principle or relationship if it were disclosed. Importantly, statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect
Examples include legal professional privilege, privilege against self-incrimination, marital privilege, parliamentary privilege and public interest immunity.
Legal professional privilege
Legal professional privilege (LPP) is upheld as a fundamental and basic common law right and not merely a rule of evidence. .
The case of Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 describes the core principles at 552:
It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.
LPP prevents disclosure where it involves:
The 'dominant purpose' test applies to the purpose of the communication at the time it was made.
Legal professional privilege extends to the compulsory disclosure of communications and extrajudicial proceedings: Baker v Campbell (1983) 153 CLR 52.
Legal professional privilege may be applied to resist giving information or producing documents within investigatory procedures pursuant to s 155 Trade Practices Act 1974 (Cth) (see Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552-553).
Legal professional privilege may also be used to refuse to produce documents that are the subject of a search warrant authorised by statute or other extra-curial process as well as a subpoena issued under or discovery required by rules of court (see Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 563).
LPP applies to investigative bodies such as a Commission exercising powers of compulsion, subject always to clear and unmistakable statutory language relating to LPP (see AWB Ltd v Cole  FCA 571 at ).
LPP and the CCM Act
Section 144 of the CCM Act provides that a person who is required by the CCM Act to answer questions, give evidence, produce records, things or information or make facilities available, is not prevented from claiming LPP as a reason for not complying with the requirement. However, under subsection (2) the privilege does not apply to “a public authority or public officer in that capacity”.
This means that when a witness is summoned to appear at, or produce a record or thing to the Commission in their capacity as a public officer, neither the public officer nor their agency can avail themselves of the immunity of legal professional privilege as a reason for refusing to comply with the Commission's request.
An exception may apply where the communication was for the purpose of providing or receiving legal advice in relation to a witness's appearance, or reasonably anticipated appearance, at an examination before the Commission.
Commission process for LPP claims
If a witness (other than a public authority or public officer in that capacity) claims LPP over a communication required to be produced to or in answer to the questions of the Commission, the presiding Commissioner will make a decision about the LPP claim.
Public Interest Immunity
'Public interest immunity' or 'public interest privilege' provides an exemption to giving evidence and/or producing documents or information where disclosure would be against the public interest and was historically known as 'Crown privilege'.
The principle of public interest immunity is a principle of law to be applied in respect of evidence, irrespective of any actual claim of privilege by a party.
A typical reason for a claim of PII is the need to safeguard the proper functioning of the executive arm of government and of the public service. For example, there is a high degree of public interest in the confidentiality of documents recording Cabinet deliberations, however, immunity in this context is not absolute.
Public interest immunity it is not confined to judicial or quasi-judicial proceedings and may apply to the execution of search warrants under s 10 of the Crimes Act 1914 (Cth) (See Jacobsen v Rogers (1995) 182 CLR 572, at 589).
Public interest immunity may be available in investigative hearings.
Issues of public interest immunity apply to documents and other forms of real evidence and to the oral evidence of witnesses (see Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 38; Halden v Marks (1995) 17 WAR 447 per Rowland, Murray and Anderson JJ at 465; R v Young (1999) 46 NSWLR 681 per Beazley JA at ).
The Commission may resolve questions of public interest immunity attaching to evidence in accordance with the principles laid down in the authorities, including determination of the 'highest public interest' (see Halden v Marks (1995) 17 WAR 447 at 464-5). The Commission must balance the public interest in non-disclosure against the public interest in ensuring that inquisitors have access to relevant evidence.
Public interest immunity and the CCM Act
Very clear statutory language is required to exclude a common law doctrine such as public interest immunity. Section 96 of the CCM Act allows the Commission, by summons, to require a person to attend an examination and give oral evidence and to produce any record or thing.
Division 2 of Part 7 of the CCM Act provides for 'claims of privilege and reasonable excuse' in Commission examinations. As referred to above in this chapter, s 144 expressly deals with another common law right, that of legal professional privilege. In contrast, Division 2 does not contain an express provision relating to public interest immunity.
Practical difficulties in giving effect to the immunity in the context of examinations are likely to be an inadequate reason for holding the doctrine to be inapplicable: Jacobsen v Rogers (1995) 182 CLR 572.
The circumstances in which a person may be in contempt of the Commission are detailed in Part 10 of the CCM Act.
Failure to comply with a notice or summons
A person who fails without reasonable excuse to comply with a notice served under s 94 or s 95, or a summons served under s 96, is in contempt of the Commission (s 158(a), s 159).
The expression 'reasonable excuse' excludes the failure to produce a document or other thing that might incriminate or tend to incriminate the person, render the person liable to a penalty or would be a breach of an obligation not to disclose information about the document or thing (s 157).
A person who, in purported compliance with a notice served on any person under s 94 or s 95, furnishes information knowing it to be false or misleading in a material particular, is in contempt of the Commission (s 158(b)).
A person required to comply with a notice served under s 94 or s 95, or a summons served under s 96, has the same protection, and is subject to the same liabilities in any civil or criminal proceedings, as a witness in any case tried in the Supreme Court (s 163(6)).
Failure to be sworn or give evidence
It is a contempt of the Commission to fail to be sworn or make an affirmation or answer any question relevant to the investigation that the Commission requires a person to answer. A person is not excused from the requirement to answer the question on the ground that the answer might incriminate or tend to incriminate the person or render the person liable to a penalty (s 160).
A statement made by a witness in answer to a question that the Commission requires the witness to answer is not admissible in evidence against the person making the statement in any criminal proceedings or proceedings for the imposition of a penalty (other than contempt proceedings, proceedings for an offence against the CCM Act or disciplinary action) (s 145). However, the witness may, in any civil or criminal proceedings, be asked about the statement in accordance with s 21 of the Evidence Act 1906, which permits cross-examination on and proof of prior inconsistent statements.
As the Court noted in Hammond v Aboudi; Hammond v Sorani  WASCA 204 at , a breach of s 160 is established if a person served with a summons under s 96:
Hindering the execution of search warrants
Hindering the execution of a search warrant, without reasonable excuse, is a contempt of the Commission (s 161).
Section 162 sets out a number of other contempts of the Commission:
is in contempt of the Commission.
Punishment of contempt
The Supreme Court has jurisdiction to deal with contempt as if it were a contempt of the Supreme Court (s 163).
Where a contempt of the Commission is alleged to have taken place the Commission may present to the Supreme Court a certificate setting out the details of the act or omission that the Commission considers constitutes the alleged contempt (s 163(1)). Such a certificate is prima facie evidence of the matters certified in it (s 163(2)). The question whether or not the acts or omissions the subject of a certificate constitute contempt is a matter for the Supreme Court: Hammond v Aboudi; Hammond v Sorani  WASCA 204 at .
An act may be punished as a contempt of the Commission even though it could be punished as an offence (s 164(1)).