… of course it's proper for drafts to be considered prepared by others, of course. It really does go without saying but there is the world of difference between drafting something where you are, however competent, an amanuensis and your opinion being taken by the decision maker as his her or its opinion, that is fine if you are a constitutive element and there is whatever collegial process follows with the Chief Commissioner, as we know, having the whip hand in terms of decision making by the Commission.
It's equally fine if there is a statutory function of assisting, but when there is neither, and that is this case, in our submission, what you have is somebody whose opinion is being adopted in a critical fashion, and I don't want to go back over why it's critical…
77 There is no factual controversy as to the process that generated the Report. In terms, it contains findings, opinions and recommendations of the Commission, as well as statements as to the Commission's reasons for those findings, opinions and recommendations (as the extracts at [63]–[64] above show). That process involved the provision of draft reports to the Commission's review panel, whose members included the Chief Commissioner. That panel considered the drafts, provided written and oral comments to Ms McColl, resulting in suggestions and recommendations which were then addressed before the final report was made by the Chief Commissioner in the name of the Commission.
78 The applicant's remaining argument, identified at [61] above, is that the Commission was not entitled to rely on and adopt Ms McColl's credibility assessments made or communicated after she had ceased to be an Assistant Commissioner. In the absence of evidence establishing that those assessments were only made and communicated while Ms McColl was an Assistant Commissioner, it must be assumed that this occurred after that appointment had ceased.
79 Until 31 October 2022, when Ms McColl's appointment as a part-time Assistant Commissioner concluded, the Chief Commissioner was able to require her assistance in that capacity (s 6A(3)) in relation to the drafting of the Report, which process would include her suggesting findings of fact and proposing assessments as to the credibility of witnesses. The applicant accepts that there would have been no want of authority or power in the Chief Commissioner so proceeding in making the Report.
80 In terms of function, authority and power, up to this time the Chief Commissioner was overseeing the preparation of a draft report. In doing so, he was putting himself in a position where he could discharge his function of "making" the final report (s 6(1)), a function he had not delegated to Ms McColl. His ultimate task included determining the findings, opinions, recommendations and reasons to be made or given in the report to Parliament. His power to make such findings (s 13(3), (3A)) was not expressly qualified as to the sources from which he might acquire information or advice to be taken into account.
81 At the same time, Ms McColl was assisting the Commission (and the Chief Commissioner) in that task by engaging in the drafting process. The Act provides for an Assistant Commissioner to conduct a public inquiry (s 31(4)), and expressly acknowledges that issues of witness credibility are likely to arise in the course of the investigation undertaken by that inquiry (s 31B(2)(c)). More significantly, in circumstances where the Act contemplates that a presiding officer (being an Assistant
