The present proceedings
4 The proceedings before this Court invoke the Supreme Court's supervisory jurisdiction under Supreme Court Act 1970 (NSW), s 69. Under s 48(2) of that Act, proceedings invoking that jurisdiction in respect of any matter before a "specified tribunal" (as to which see s 48(1)(a)) are assigned to the Court of Appeal. ICAC is not such a tribunal. Nevertheless, the present proceedings were commenced in the Court of Appeal exercising that original jurisdiction, and as such were to be taken as "well commenced", and, subject to any order of the Court of Appeal remitting the proceedings for hearing by a judge in a Division of the Supreme Court, were able to be continued and disposed of in this Court (s 51(2)). Because of the public importance of the proceedings, when they were first before this Court for directions, no order was made for their remission to a Division, the result being that they should continue in, and be disposed of by, the Court of Appeal exercising the Supreme Court's supervisory jurisdiction.
5 That jurisdiction is confined to ensuring that the Commission carried out its investigative and reporting functions, including with respect to the making of findings of "serious corrupt conduct", in accordance with the statutory provisions which govern the performance of those functions and exercise of the relevant powers. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36; [1990] HCA 21, "[t]he duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power".
6 The consequence is that the present proceedings are not an opportunity for this Court to undertake a "merits" review of the Commission's findings, as it might do in its appellate jurisdiction in an appeal by way of rehearing. As Brennan J also said in Quin (at 36):
The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. (Emphasis added.)
7 In this context, it is important to note that the making of findings of fact where there is "no evidence" in support of the finding is an error of law going to the legality of the exercise of the Commission's fact-finding function (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]). Moreover, as Brennan J observed in Quin at 36, the extent or exercise of statutory powers conferred on a repository may be subject to "implied limitations". Such implications could support the application in judicial review proceedings of a "standard of legal reasonableness" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66] (Hayne, Kiefel and Bell JJ)) to the ultimate decision of the tribunal or fact-finder. The position is less clear in relation to the application of such a standard to a step in the reasoning to such a decision (see Public Service Association and Professional Officers' Association
