a report describes the exercise of "presenting findings to Parliament [concerning the outcome of an investigation] to which some significance is then attached", and is not merely a reference to the logistical exercise of preparing or drafting a report.
71 That the expression "making a report" describes the exercise embodied in deciding upon the final form of a report containing the Commission's findings, opinions and recommendations, and communicating it to the Parliament, finds some support in the decision in Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 633–634; [1990] HCA 28. Section 18(2) of the Act permits the Commission to "defer making a report". The Court identified the purpose for which that discretion was conferred as being to protect criminal proceedings before a court from interference arising from the making public of a report containing the findings and observations of the Commission about the same or a related subject matter. The "dangers" which the Court identified the legislature sought to avoid would ordinarily only manifest upon the communication of the final form of a report, not in the preparation of any draft.
72 The applicant's argument as ultimately made does not contend that Ms McColl, acting either as an Assistant Commissioner or as a consultant, purported to exercise the function of "making" the Report, notwithstanding that in each capacity she had participated in the drafting process by suggesting findings, opinions and recommendations. It was accepted that in allowing Ms McColl to undertake that role in the drafting process as an Assistant Commissioner the Commission did not thereby delegate to her the task of "making" the Commission's findings in respect of witness credibility assessments, notwithstanding that the Chief Commissioner may ultimately have "adopted" those assessments as findings or assessments of the Commission. Nor is it controversial that this drafting process involved the Chief Commissioner bringing his judgment to bear in relation to any suggested findings, opinions and recommendations contained in a draft report, with a view to his determining the final content of the Commission's Report.
73 The applicant's written submissions also suggested that, in circumstances where the Commission was required to address substantial issues of credit in making findings, the principles of natural justice precluded the Chief Commissioner as decision-maker from merely adopting a consultant's assessment of the credibility of the relevant witnesses. In oral argument, it was made clear that the notion of procedural fairness was invoked in this context solely in support of the proposition that the only person who could provide such assistance to the Chief Commissioner was the person who presided at the inquiry, and only whilst he or she remained an Assistant Commissioner. It was said not to be sufficient that he or she was a consultant at the time such assistance was
