provided. Such a limitation is not apparent in s 6A(3), which simply says that "[a]n Assistant Commissioner is to assist the Commission, as the Chief Commissioner requires".
74 It is also important to note here that it was not contended by the applicant that she was denied procedural fairness by the adoption of a process in which the person making the Commission's findings and assessments was not the person who conducted the public inquiry and could directly make demeanour-based assessments. Whilst natural justice does not permit the implication of authority to delegate the hearing function with respect to the exercise of judicial power, the position is not necessarily the same in relation to an administrative body undertaking an investigative inquiry. See Local Government Board v Arlidge [1915] AC 120 at 132–134 (Viscount Haldane LC); Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208 at 221–222 (Mason J); [1976] HCA 36. See also South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 where Brennan J said at 409–410:
It is not a general rule of administrative procedure as it is of judicial procedure that the person who hears should decide. A need for a further hearing by a repository of a power after a hearing by an expert board may arise if, in the particular circumstances, the interests of a party are affected by some new fact or matter which the decision-maker proposes to take into account and which the party has had no opportunity to deal with.
…
If a statute provides for the facts relevant to a decision to be ascertained and evaluated by a board and for the board to report and make a recommendation to the decisionmaker, prima facie there is no room for an implication that the power to make the decision is conditioned on the giving of an opportunity for a further hearing. To impose such a condition without statutory warrant would be to force a judicial model on the administrative process. That is not the function of a court. (Citations omitted.)
- The arguments as ultimately made
75 As the terms of ground 1 show, the applicant initially contended that the Chief Commissioner's "adoption" of Ms McColl's findings and opinions, including as to witness credibility assessments, was not a valid means of curing her lack of authority to "make" such findings and opinions on behalf of the Commission. In effect, it was said that the Report merely recorded findings and opinions of Ms McColl, which had not been actually formed or made by someone authorised to do so on behalf of the Commission (s 6(1)). However, as finally put, the applicant's argument focused on the Commission's adoption of Ms McColl's assessments in the making of its findings as to credibility, rather than the proposition that Ms McColl had made those findings, and the fact that those assessments were made or communicated to the Chief Commissioner at a time when Ms McColl was a consultant. It was not argued that by agreeing to and participating in such a drafting process, both before and during Ms McColl's appointment as a consultant, the Commission had "in effect" delegated to her (contrary to's 107(4)) part of the function of "making" a report, namely that of making findings involving witness credibility assessments.
76 As put by counsel for the applicant, the following distinction was to be drawn between the character of Ms McColl's participation before and during her appointment as a consultant:
