(xii) whether the Commission reached an illogical or irrational result in finding that the applicant failed to discharge her obligations under s 11(2) of the Act, despite also deciding not to make a statement that consideration be given to obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the applicant for misconduct in public office; and
(xiii) whether a finding that the exercise of official functions was "dishonest" for the purposes of s 8(1)(b) requires that the person the subject of investigation appreciated or realised that his or her conduct was dishonest according to the standards of ordinary people.
The Court (Bell CJ and Meagher JA, Ward P dissenting as to issue (i) and as to the consequential orders to be made) dismissed the application, holding:
As to (i):
(Bell CJ and Meagher JA)
1. The assistance provided by Ms McColl was not outside the limits of her authority, and in making the Report the Commission did not act beyond its authority or power in obtaining Ms McColl's assistance as a consultant. That assistance was to the Chief Commissioner in exercising his function of "making" the final report. That function had not been delegated to Ms McColl as an Assistant Commissioner. The Chief Commissioner's task was to determine the findings, opinions, recommendations and reasons to be made or given in the final report to Parliament. His powers were not expressly qualified as to the sources from which he might acquire information or advice to be taken into account in doing so: Bell CJ and Meagher JA at [79]-[80].
2. Ms McColl was assisting the Chief Commissioner in that task by engaging in the drafting process. She initially did so as an Assistant Commissioner who had presided over the public inquiries, but to whom the function of making a report had not been delegated. Although the Act contemplates such circumstances, it does not expressly provide for how, in those circumstances, the presiding officer's credibility assessments might be communicated to the Commissioner making the report. The applicant accepts that, as an Assistant Commissioner, Ms McColl could have done so by participating in the process of preparing a report, including through a drafting process by making findings of fact and proposing assessments as to the credibility of witnesses, and notwithstanding that Ms McColl had not been delegated the function of making the report: Bell CJ and Meagher JA at [79].
3. The question raised by the applicant's argument is whether that outcome could also be achieved by Ms McColl, who had presided at the public hearings, being appointed as a consultant to participate in the process of preparing a report after her appointment as an Assistant Commissioner had expired in circumstances where it could not be renewed. A principal function and power of the Commission is to make findings and form opinions "on the basis of the results of its investigations". There is no warrant to read down the Commission's powers to have ongoing access to assistance and
