decision of the Commission under s 6(2). Each of these powers is subject to s 107(4), which relevantly precludes the delegation of "a power of delegation conferred by this section" and "a function of making a report" under the Act.
52 The prohibition on delegation in s 107(4) does not apply to a delegation to an "Assistant Commissioner (and to an Assistant Commissioner only) if the Chief Commissioner is of the opinion that there would or might be a conflict of interest or that there would or might be a conflict of interest, or that it would be in the interests of justice to do so" (s 107(6)). It follows that in the absence of such a conflict, the function of making a report must be exercised by a Commissioner, notwithstanding that a public inquiry relating to an investigation may be (or have been) conducted by an Assistant Commissioner (s 31(4)).
53 Section 104B confers a power on the Commission to engage "any suitably qualified person to provide the Commission with services, information or advice". A person appointed under s 104B may be delegated any function of the Chief Commissioner or a Commissioner except, relevantly, the functions of "making a report under [the] Act" (in any circumstances — cf s 107(6)) or the powers of the Commission or a Commissioner to conduct a compulsory examination or public inquiry under Div 3 of Pt 4 of the Act. A person engaged by the Commission under's 104B to provide the Commission with services, information or advice is an "officer of the Commission" (s 3(1)).
The Operation Keppel investigation and preparation of the Report
54 The investigation which became known as Operation Keppel was conducted on the Commission's own initiative arising from evidence obtained in another investigation (Operation Dasha). Initially, Operation Keppel concerned the conduct of Mr Maguire. On 1 September 2020, the Commission announced that it would hold a public inquiry as part of its investigation into allegations concerning Mr Maguire. Following the first public inquiry (which concluded on 16 October 2020), the Commission became aware of further allegations concerning grants of public moneys made to ACTA in 2016, and on two occasions to RCM in 2018. In each case, Mr Maguire had been an advocate for those grants, and the applicant had presided over or been a member of the ERC which had approved them. In addition, during its investigation of Mr Maguire, the Commission had become aware of the relationship between Mr Maguire and the applicant. On 30 September 2021, the Commission determined to conduct a further public inquiry for the purpose of investigating allegations involving the applicant. That second public inquiry commenced on 18 October 2021 and concluded on 1 November 2021.
55 Earlier, on 15 July 2020, Ms McColl had been appointed an Assistant Commissioner of ICAC on a part-time basis commencing on that day and until 28 February 2021. By an instrument dated 16 July 2020, the then Chief Commissioner, the Hon Peter Hall QC, delegated to Ms McColl certain powers and functions. Those powers and functions included the powers of the Commission and of a Commissioner under Div 2 of Pt 4 of the Act (Investigations); Div 3 of Pt 4 (Compulsory examinations and public inquiries)
