information concerning its investigations. Section 104B of the Act in terms provides that a suitably qualified person may be engaged as a consultant (and, accordingly, an officer) to provide the Commission with "services, information or advice". Having presided over the two public inquiries, Ms McColl continued to be the person best placed to make assessments as to the credibility of witnesses and communicate them to the Chief Commissioner. The Commission did not act beyond its authority or power in obtaining such services from Ms McColl, and in taking the product of those services, and any information or advice, into account in making the findings, recommendations, reasons and opinions in the Report: Bell CJ and Meagher JA at [82]–[86].
(Ward P in dissent)
4. The Commission's "adoption" of witness credibility assessments made by Ms McColl in a draft report amounted to her assessments being the relevant findings of fact at least on aspects of evidence given in the public hearings. The language of "adopt" used in the Report at [2.37] demonstrates that Ms McColl's assistance went beyond the provision of "services, information or advice", and constituted the making of findings that Ms McColl as a consultant did not have power to make. The communication of those findings, in circumstances where they were explicitly adopted by the Commission, amounted in effect to an impermissible delegation of the Chief Commissioner's task of determining all necessary findings in the making of the Report. The Commission acted beyond its authority or power by in effect delegating to Ms McColl the responsibility for assessing witness credibility and making findings as to that subject: Ward P at [336]–[341].
As to (ii):
5. There was evidentiary material capable of supporting each of the challenged findings, as well as the underlying findings and inferences on which they were based: Bell CJ and Meagher JA at [113]–[143]; Ward P at [343].
As to (iii):
6. It was open to the Commission to find that the close personal relationship between the applicant and Mr Maguire was, from her perspective, a "private interest" that gave rise to a conflict of interest and duty. Under the general law, members of Parliament have a duty to "act according to good conscience, uninfluenced by other considerations, especially personal financial considerations". Such considerations could be pecuniary or non-pecuniary. The position under the Ministerial Code is not relevantly different: Bell CJ and Meagher JA at [151]–[161]; Ward P at [343].
- Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14; Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92, considered.
As to (iv):
