responses to those comments, a process resulting in the production of further drafts. Ms McColl had no further involvement after 6 April 2023. The Report then went through further review, editing and checking, and was finalised on 26 June 2023.
60 The two-volume Report was furnished to the Presiding Officer of each of the Legislative Council and Legislative Assembly on 29 June 2023. Page 3 of Volume 1 of the Report is a signed letter from the Chief Commissioner, the Hon John Hatzistergos AM, to the President of the Legislative Council and the Speaker of the Legislative Assembly, which stated:
In accordance with's 74 of [the Act] I am pleased to present the Commission's report on its investigation into the conduct of the then member of Parliament for Wagga Wagga and then Premier and others (Operation Keppel).
Assistant Commissioner, the Hon Ruth McColl AO SC, presided at the two public inquires held in aid of this investigation.
Disposition of ground 1
- The evolving arguments regarding ground 1
61 The formulation of ground 1 and the argument in support of it focus on Ms McColl's participation in the drafting and preparation of what became the Report at a time after she had ceased to be an Assistant Commissioner on 31 October 2022. As that argument evolved, it concentrated on Ms McColl's participation in the process of making of credit assessments of witnesses, and specifically Ms Berejiklian. Ultimately, it is contended that Ms McColl, who had conducted the public inquiries as an Assistant Commissioner, was the only person in a position to make such credit assessments of witnesses based on demeanour. As Ms McColl's participation in the preparation of draft reports extended beyond her appointment as Assistant Commissioner, questions arise as to whether she could assist in the making and communications of such observations and assessments for the benefit of the Chief Commissioner, and do so while a consultant rather than an Assistant Commissioner, and whether the Commission could in the Report adopt or take into account observations and assessments made or communicated by Ms McColl whilst a consultant to the Commission.
62 As Assistant Commissioner, Ms McColl had not been delegated the function of "making a report" under the Act. In that capacity, as an officer of the Commission, she was required to "assist the Commission, as the Chief Commissioner requires" (s 6A(3)). Where the Chief Commissioner had not conducted the public inquiries but had the function of "making a report" in relation to the Operation Keppel investigations, Ms McColl's role whilst an Assistant Commissioner included providing the Chief Commissioner with the benefit of her observations and assessments as to the credibility of witnesses.
63 Ms McColl made such assessments, and communicated them to the Commission's review panel in the form of a draft report or reports. In the Report at [2.37]–[2.38], the Commission described how it had adopted or taken into account assessments made by
