…
It is the person who is doing the statutory task who needs to hold the office to which that task appertains. The task is assisting, in this case with respect to witness assessments. You can't do that unless you're an Assistant Commissioner.
67 The following exchange occurred shortly before that submission:
BELL CJ: … The difference then is she'd ceased to be an Assistant Commissioner at a point in time we know and what we don't know is whether she had formed the assessments before or after that time and the question is whether it matters. Really, that's the question.
WALKER: And I accept that that is the analysis.
68 This argument is different from that made in the applicant's written submissions, both in chief and reply, which instead described the real question as being whether, following the expiration of her commission on 31 October 2022, Ms McColl herself undertook the function of "making a report" by proposing findings and assessments that were adopted by the Chief Commissioner. This argument directed attention to the scope of the function of "making a report", which was said to include the functions of preparing and furnishing a report. It also required consideration as to whether Ms McColl undertook the function of "making a report" so understood.
- The arguments as formulated in the written submissions
69 The applicant's written submissions contended that the function of "making a report" in s 107(4)(b) and the expression "making a report" in s 74(8) are each to be understood as a "compendious term encompassing the twin functions of 'prepar[ing]' and 'furnish[ing]' reports". In this context, "preparing" was said to include Ms McColl's producing and amending a draft report, and her participating in the review or editing process which resulted in the publication of the Report. On this construction of that expression, Ms McColl, as an Assistant Commissioner to whom the function of "making" the Report had not been delegated, would not have been authorised to participate in a drafting process that included her providing witness credibility assessments.
70 The expression "making a report" is used in ss 18(2)(c), 74(8) and 107(4)(b) of the Act, and is to be contrasted with the language "prepare reports" and "furnish reports" used in s 74(1)–(4). Statements that the Commission may or shall "prepare" reports describe a process and outcome likely to involve various officers and staff, as well as resources, of the Commission, and over a significant period of time. The function of "making a report" is much more specific. The report is directed to a particular body, in this case Parliament, and the function of making it is to be exercised by a Commissioner, that being the default position as stated in s 6(1), unless that function has been delegated to an Assistant Commissioner in the circumstances described in s 107(6). The exercise of that function includes, from the perspective of a Commissioner as ultimate decisionmaker, undertaking responsibility for the final form of a report, including its findings, opinions, recommendations and reasons. As the Commission submits, the "making" of
