the "no evidence" ground, is said to relate to each of the Commission's above findings of "serious corrupt conduct". Grounds 3, 4, 5, 6 and 7 are directed (not necessarily exclusively) to the findings of a breach of "public trust". Grounds 6, 8, 9 and 10 relate to the findings as to a partial exercise of official functions; and grounds 9, 11, 12 and 13 to the finding as to a breach of the duty under s 11 of the Act.
40 These grounds of review are dealt with below in the order in which they arise.
Ground of review 1
41 In terms, this ground is:
The Report dated June 2023 was prepared by the Hon Ruth McColl AO SC beyond her authority under the ICAC Act, in circumstances where she was not authorised to exercise the function of preparing or making a report from 1 November 2022 onwards, as that function was exclusively exercisable by a Commissioner or (through a delegation under s 107(6) of the ICAC Act) an Assistant Commissioner. The Commission's purported "adopt[ion]" of Ms McColl AO SC's findings and opinions in the Report, including as to witness credibility assessments (R [2.37]), was not a valid means of curing Ms McColl AO SC's lack of authority, and those opinions and findings cannot amount to opinions and findings of the Commission.
42 The following provisions of the Act have particular relevance for this ground.
Relevant statutory provisions
43 The Commission is a corporation and consists of a Chief Commissioner and two other Commissioners (ss 4(1), 5(1)). With few exceptions, the functions of the Commission are exercisable by a Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by a Commissioner is taken to have been done by the Commission (s 6(1)). The exceptions include a decision to conduct a public inquiry under s 31, which must be authorised by the Chief Commissioner and at least one other Commissioner (s 6(2)). However, where a Commissioner considers there may be a conflict of interest in such a matter, the Commissioner may request an Assistant Commissioner to give that authorisation (s 6(4)).
44 With the concurrence of the Chief Commissioner, the Governor may appoint one or more Assistant Commissioners who may exercise the "functions conferred or imposed on an Assistant Commissioner by or under this or any other Act" (ss 6A(1), (2)). An Assistant Commissioner is "to assist the Commission, as the Chief Commissioner requires" (s 6A(3)). In addition, s 104B provides that the Commission "may engage any suitably qualified person to provide the Commission with services, information or advice".
45 As stated at [15] above, the principal functions of the Commission include to investigate allegations or complaints as to corrupt conduct, to investigate any matter referred to the Commission by both Houses of Parliament, and to communicate to appropriate authorities the results of those investigations (s 13(1)). Those functions also include the
