the ability of the Commission to enlist the assistance of officers as part of the preparation of its reports.
333 The Commission submits that the substantive requirement for making a report under the Act is that a Commissioner brings his or her own mind to the findings, opinions, recommendations and reasons in a report, and that the report comprises the Commissioner's own findings. The Commission says that it is not inconsistent with that responsibility for a Commissioner to have other officers (including a consultant) to assist with the drafting of a report.
334 As to this last proposition, as adverted to above, the applicant does not cavil with the submission that assistance may be provided in the preparation of a report. However, the above submission by the Commission does highlight the complaint here made. If (as the Report itself states) the Commission 'adopted' witness credibility assessments of Ms McColl, then on the face of the Report those assessments are not assessments of the Commission – they are assessments of someone to whom the function of making such assessments had not been delegated at the time the findings based on those assessments are made.
335 I accept that the task of the Chief Commissioner in making the final Report included the determination of the necessary findings, opinions and recommendations; and that (as the majority points out) in terms of the function, authority and power up to this time the Chief Commissioner was in a position to oversee the preparation of a draft of the Report. However, the evidence does not permit a conclusion as to what was done in that regard prior to submission of the draft Report; and the Commission's own statements in the media releases referred to above and the Report itself suggest that the function of preparing the draft Report was entrusted to Ms McColl and that it was only once that draft Report was received that the process of review by the review panel was to commence. In that regard, I accept that the Chief Commissioner (and the review panel of Commissioners) could draw on the evidence and submissions made to the Commission in the course of the enquiry; and could obtain assistance from services or advice provided by someone in the position of Ms McColl as officer of the Commission.
336 However, the difficulty as I see it is that the stated (and on the face of it unqualified) "adoption" by the Commission of witness credibility assessments made by Ms McColl (as presumably were included in her draft Report) amounts to her assessments being the relevant findings at least on aspects of the evidence given in the public hearings. It may be that those assessments could be (and perhaps were) tested by reference to objective evidence or the like but the Report does not indicate that (or how) this was done; nor how it is that the "adopted" credit assessments were relied upon in the ultimate conclusion (as opposed to assessments drawn from other objective evidence).
337 The conclusion as to a witness' responsiveness in answering questions, for example, is in practice something most likely to be drawn from observation of the evidence being given rather than by reference, say, to a transcript of that evidence. Similarly,
