conclusions as to whether a witness was "dissembling" (see [13.181]) must surely have been informed by observation of the witness giving evidence (something that only Ms McColl, not the Commissioners, was able to do).
338 There is nothing to indicate that the opinions expressed in the draft Report by Ms McColl, whatever they were, as to witnesses' credibility were simply treated by the Commission as submissions that the Commission tested against objective evidence; and observations in the Report suggesting that the applicant treated giving evidence as akin to being on the hustings reinforces, rather than dispels, the conclusion that they were not. The language of "adopt" in relation to the witness credibility assessments demonstrates that Ms McColl's assistance went beyond providing "services, information or advice" (as permitted by s 104B) and into the making of findings (which the Commission then chose to adopt) something that as a consultant Ms McColl did not have the power to do.
339 As the majority has noted at [83], s 104B does not limit the subject matter of the "service, information or advice" that a consultant appointed therein may provide. However, I do not accept that the assistance provided by Ms McColl (in conveying her assessments of witness credibility, which were "adopt[ed]" by the Commission) can accurately be described as no more than the provision of "services, information or advice". The communication of Ms McColl's findings as to witness credibility, in circumstances where those findings were explicitly adopted by the Commission, amounts in effect to a delegation of the Chief Commissioner's task of determining all necessary findings in the making of the Report. I do not agree that such a finding imposes any unwarranted limit on the Commission's ability to carry out its principal function and purpose; particularly where those responsibilities that may only be discharged by a Commissioner (or properly appointed Assistant Commissioner) are clearly defined in the Act.
340 I do not enter into the debate as to whether the non-disclosure by the Commission (when such information was sought by the applicant's legal representatives) as to the functions exercised by Ms McColl gives rise to any adverse inference. It is not necessary to do so in circumstances where the Commission has itself made clear (at [2.37]) that it adopted her witness credibility assessments. The Commission has thus as a practical matter delegated (impermissibly in my opinion) to a consultant the task of making credibility assessments of the witnesses (at least to the extent that this was based on the witnesses' evidence in the hearings before the consultant when she was Assistant Commissioner); an issue that the Commission correctly recognised was an important factor in the determination of its ultimate conclusions.
341 In those circumstances I respectfully cannot agree with the conclusion by the majority that the Commission in making its Report did not act beyond its authority or power. I consider that the Commission's own Report establishes that it did more than merely obtain services, information or advice from Ms McColl. It adopted Ms McColl's assessments. Indeed, the explanation in the Report as to the process by which
