delivered in excess of jurisdiction. However, nothing ultimately turns on whether the applicant's oral submissions were so confined given the conclusion I have reached as to the aspect that was emphasised in the applicant's oral submissions on the lack of authority of the Hon Ruth McColl AO SC (once her appointment as Assistant Commissioner had expired and she was simply a consultant appointed pursuant to s 104B of the Independent Commission Against Corruption Act 1988 (NSW) (the Act) to provide services, information or advice to the Commission) to make witness credibility assessments which could then be 'adopted' by the Commission as the basis for the adverse findings it made against the applicant.
315 The constitution of the Commission has been explained in the majority judgment. Relevantly, as their Honours have noted, the Act refers variously to the "making" of a report (s 74(8)), the preparation of a report (see s 74(2)–(4)), and the furnishing of a report (see s 74(7)). The function of making a report under the Act is one that cannot be delegated (s 107(4)), other than to an Assistant Commissioner if the Chief Commissioner is of the opinion that there would or might be a conflict of interest or it would be in the interests of justice to do so (s 107(6)).
316 The applicant has submitted that the notion of "making a report" under s 74 encompasses the functions of both preparing and furnishing a report, referring to the extrinsic materials for the original Independent Commission Against Corruption Bill 1988 (No 2) (NSW); in particular, the reference in the Explanatory Note to cl 76 (which in terms framed the preparation of a report and furnishing of that report as a requirement to "make" reports). The applicant does not submit that "making" a report encompasses all administrative aspects of the preparation of the report along the way.
317 The applicant argues that the restriction on delegation of the function of making a report (as noted above) reflects a choice by Parliament to limit the pivotal functions of preparing and furnishing reports under the Act to Commissioners or, in some circumstances, Assistant Commissioners. The applicant submits that, by specifically providing that a function of making a report may be delegated "to an Assistant
