Land and Environment Court New South Wales Medium Neutral Citation: Liverpool City Council v Minister for Local Government and Ors [2024] NSWLEC 94 Hearing dates: 8, 9 and 12 August 2024 Date of orders: 02 September 2024 Decision date: 02 September 2024 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [114] Catchwords: ADMINISTRATIVE LAW — Judicial review — Office of Local Government — Ministerial decision — Local government — Liverpool City Council — Procedural fairness — Bias or apprehended bias — Improper purpose — Jurisdictional error affecting later decisions under the Local Government Act 1993 (NSW) — Interim report — Public inquiry — Amended summons dismissed Legislation Cited: Local Government Act 1993 (NSW), Ch 13, Pt 5, Div 1, ss 21, 22, 23, 24, 318B, 429, 430, 431, 432, 433, 434, 438U, 438W, 438Y, 676, 745 Royal Commissions Act 1923 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: AB (Pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 98 ALJR 532 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 Armidale Regional Council v O'Connor [2020] NSWLEC 77; (2020) 245 LGERA 56 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 AYHT v Medical Board of South Australia (2000) 77 SASR 148; [2000] SASC 136 Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 Barton v R (1980) 147 CLR 75; [1980] HCA 48 Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1990) 169 CLR 648; [1990] HCA 22 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312, [2008] FCA 185 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Immigration and Multicultural Affairs v Jia Le Geng; Minister for Immigration and Multicultural Affairs v White (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546; [1969] HCA 10 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492; [1947] HCA 21 Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC 33 Texts Cited: HWR Wade and CF Forsyth, Administrative Law (11th ed, 2014, Oxford University Press) Category: Principal judgment Parties: Liverpool City Council (Applicant) Minister for Local Government (First Respondent) Brett Whitworth, in his capacity as delegate of the Departmental Chief Executive, Office of Local Government (Second Respondent) Ross Glover, in his capacity as Commissioner of a Public Inquiry into Liverpool City Council (Fourth Respondent) State of New South Wales (Fifth Respondent) Representation: Counsel: T F Robertson SC with H Grace (Applicant) N L Sharp SC with M Harker (First, Second and Fifth Respondents) Submitting appearance (Fourth Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Department of Planning, Housing and Infrastructure (First, Second and Fifth Respondents) MinterEllison (Fourth Respondent) File Number(s): 2024/00272372 Publication restriction: Nil Judgment Introduction and outcome 1. Liverpool City Council ('Council') commenced these Class 4 judicial review proceedings by summons filed 24 July 2024 as a matter of some urgency seeking declaratory and consequential injunctive relief in relation to various decisions made (and to be made) by the Minister for Local Government and a delegate of the Departmental Chief Executive, Office of Local Government, involving an investigation, the making and publishing of a report, and a public inquiry into the conduct of Council. 2. The first respondent is the Minister for Local Government; the second respondent is Brett Whitworth as delegate of the Departmental Chief Executive, Office of Local Government ('OLG'); the third respondent was, until removed by an amended summons filed 15 August 2024, a Departmental Chief Executive, Office of Local Government; the fourth respondent is Ross Glover as Commissioner of a Public Inquiry into Council (who entered a submitting appearance); and the fifth respondent is the State of New South Wales. The active respondents are the first, second and fifth respondents. 3. Although these proceedings involve a number of somewhat cascading questions, the essential issue concerns whether a report prepared by the second respondent during an investigation being undertaken pursuant to s 430 of the Local Government Act 1993 (NSW) ('Act') in circumstances involving an admitted denial of procedural fairness has affected the later decision of the first respondent to appoint a public inquiry under s 438U of the Act into the conduct of Council. 4. As will be seen, the issues raise for consideration the conduct of the first and second respondents relating to the statutory scheme under the Act concerning how councils are made accountable for their conduct. 5. For the reasons that follow, I find that while Council is entitled to some limited declaratory relief, the remaining claims in the amended summons filed 15 August 2024, should be dismissed, and costs of the proceedings should be reserved. Background 1. The following introductory narrative is largely uncontentious. Further facts will be noted in my consideration of the evidence and the parties' submissions. 2. On 6 May 2024, the second respondent, determined that "there should be an investigation under s.430 of the [Local Government Act 1993 (NSW)]" into certain "aspects" of Council's work and activities as set out in the "Terms of Reference" which, under the heading, "Recruitment and Selection Matters" ('s 430 Investigation') specifically raise, inter alia, whether Council has complied with the statutory obligations and its policies in relation to recruitment and selection for relevant employment positions; whether there were conflicts of interest which may have influenced recruitment for those positions; and whether Council's finances are being adversely affected as a result of staffing decisions. 3. The second respondent, under s 745(2) of the Act, delegated powers and functions under various sections of the Act for the purpose of conducting the s 430 Investigation to Brad Wade and two other "Principal Investigators" from the OLG (collectively, 'investigators') to conduct the s 430 Investigation. Between 10 May and 27 June 2024, various councillors, the Mayor, officers and employees of Council were interviewed by the investigators. 4. Between 19 May 2023 and 9 July 2024, the OLG received no less than 36 complaints in relation to certain conduct within Council and a number of those complaints were made directly to the first respondent. 5. Between 3 June and 28 June 2024, the first respondent received correspondence from various councillors (and a member of Parliament) expressing a number of concerns in relation to the conduct of Council including a request from three councillors to place Council into administration. 6. On 11 July 2024, before the completion of the s 430 Investigation, the second respondent prepared and signed the "Interim Report of the Section 430 Investigation into Liverpool City Council" ('Interim Report'). The Interim Report comprises 50 pages and contains serious allegations (styled "matters of concern") against Council, its councillors, the Mayor, and employees, some of whom are directly named and others who are identifiable by their position within Council. With the exception of one or two individuals, none of the individuals identified or identifiable in the Interim Report were notified of the allegations. 7. On 12 July 2024, a "briefing note" (also variously referred to as a "brief package") was provided to the first respondent. The briefing note stated that its purpose was to "provide recommendations to the Minister for Local Government to commence a public inquiry into Liverpool City Council (the Council) following initial findings presented to the Minister contained in the Interim Report and commence consideration of potential suspension of the Council". The briefing note (comprising 13 pages) had a number of attachments including the Interim Report and correspondence of 27 June 2024 from three councillors. 8. On 18 July 2024, the first and second respondents caused the Interim Report to be published on the website of the OLG and the first respondent issued a media release containing a hyperlink to the Interim Report on the website of the OLG. The Interim Report contained a recommendation that a public inquiry under s 438U of the Act be held. 9. On 18 July 2024, the first respondent, under s 438U of the Act, appointed the fourth respondent to hold a public inquiry into the conduct of Council in accordance with terms of reference including whether, Council, in exercising its functions under ss 21, 22, 23 and 24 of the Act: "1. …is meeting its obligations to provide strong and effective leadership in a manner consistent with the guiding principles set out in sections 8A, 8B and 8C of the Act… 2. …[is acting] as a responsible employer, providing a safe, consultative and supportive working environment for the general manager and other staff in a manner consistent with the guiding principles set out in section 8A(1)(i) of the Act… 3. …the governing body's Mayor and councillors' conduct and decision-making both collectively and/or individually demonstrate[s] an understanding of their role under sections 226 and 232 of the Act; 4. …the governing body command[s] the confidence of its community; … …" 1. On 18 July 2024, the first respondent also sent a "Notice of Intention to Issue a Suspension Order" to Council ('Notice of Intention'), stating that he had determined that "an urgent public inquiry be held under section 438U of the Local Government Act" and expressed an intention first, to "postpone [local government] elections under section 318B(1) of the Act"; second, to "suspend the Council under section 438W"; and, third, to "appoint an administrator to Council under section 438Y", on the basis of the Interim Report and invited Council to make submissions in respect of each of those steps by 26 July 2024. For convenience, as it is frequently referred to in the parties' submissions, a copy of the Notice of Intention is annexure "A" to this judgment. 2. These proceedings were commenced by Council on 24 July 2024 and in their response to summons filed 3 August 2024, the active respondents, being the first, second and fifth respondents (hereafter, 'respondents') admit that none of the allegations in the Interim Report (and the material on which they are based) had been notified to Council or those individuals identified or identifiable. The respondents also conceded that the investigation was made and published without first notifying any of the individuals of the adverse material or proposed findings and the individuals were not afforded an opportunity to address the allegations against them. The Court was informed that the Interim Report "was removed from the website almost the moment that this case commenced" and that "the respondents, regret any hurt or harm felt by those individuals who were capable of being identified in the interim report as a result of its publication": Tcpt, 9 August 2024, p 100(14-18). 3. These reasons for judgment are structured as follows. First, I will outline Council's present claims as provided in the amended summons filed 15 August 2024, and then outline the first, second and fifth respondents' response. I will then briefly summarise the statutory provisions relevant to Council's claims and the evidence before the Court, before considering the parties' detailed submissions. Present claims 1. Given certain admissions made by the respondents, and the differing positions of the parties in relation thereto, it is helpful to record that, in its amended summons filed 15 August 2024, Council seeks the following relief. 1. Declarations that: 1. The second respondent in conducting an investigation under s 430 of the Act had no power to make the Interim Report before the conclusion of the s 430 Investigation; 2. In reporting adversely about Council (and individuals), the second respondent failed to observe the requirements of procedural fairness and exhibited actual or apprehended bias; and 3. In publishing the Interim Report, the first and second respondents exhibited actual or apprehended bias. 1. Orders: 1. Setting aside the Interim Report; 2. Disqualifying the first and second respondents from taking any further steps in reporting on the results of the s 430 Investigation; and 3. Setting aside the first respondent's decision to appoint the fourth respondent as the Commissioner to hold a public inquiry into the conduct of Council under s 438U of the Act. 1. Injunctions restraining: 1. The second respondent from reporting on the s 430 Investigation; 2. The fourth respondent from conducting the public inquiry; 3. The first respondent from: 1. suspending Council under s 438W of the Act; 2. postponing Council elections under s 318B(1) of the Act; and 3. appointing an administrator to Council under s 438Y of the Act. 1. The first, second and fifth respondents from publishing the Interim Report (and any other matter to the same purport or effect thereof). 1. A mandatory injunction requiring the first, second and fifth respondents to delete the Interim Report from all relevant places and depositories within 24 hours of this order, and within 7 days to take down the Interim Report from all websites and servers on which it is displayed. 1. The amended summons lists the decisions to be reviewed as follows: 1. The decision of the first respondent to appoint the fourth respondent to hold a public inquiry into the conduct of Council under s 438U of the Act. 2. The proposed decisions of the first respondent: 1. To postpone the 2024 Council elections under s 318B(1) of the Act; 2. To suspend Council under s 438W of the Act; and 3. To appoint an administrator to Council under s 438Y of the Act. 1. The decision of the second respondent to make the Interim Report. 2. The proposed decision of the second respondent to report on the s 430 Investigation into Council. 3. The decisions of the first and second respondents to publish the Interim Report. 1. Under the heading "Grounds", Council pleads in 18 paragraphs various matters which, for concision, and given the background outlined above, can be summarised as follows: 1. On 6 May 2024, the second respondent instigated the s 430 Investigation; and on 11 July 2024, made the Interim Report (before the completion of the s 430 Investigation). 2. On 18 July 2024, the first respondent appointed the fourth respondent to hold a public inquiry into the conduct of Council; notified Council that he intended to first, postpone the 2024 Council elections under s 318B(1); second, suspend Council under s 438W; and third, appoint an administrator to Council under s 438Y, and invited Council to make any submissions to him by 26 July 2024. 3. Council pleads, first, that there was no power to report on the s 430 Investigation until its completion; second, that the Interim Report made serious allegations against Council and at least 16 individuals; and third, that none of the allegations had been notified to Council or those identified and identifiable individuals, and no opportunity was afforded to respond to the allegations against them. 4. In making the Interim Report, the second respondent unreasonably displayed partiality and bias against Council and the individuals, and alternatively, a reasonable observer might think that the second respondent might not act without bias against Council in making any final report and as such, the second respondent is disqualified from completing the s 430 Investigation and reporting its results under s 433 of the Act. 5. The first respondent has acted unreasonably, and further or alternatively, has taken into account an extraneous consideration, being the Interim Report, in his decision to appoint the public inquiry under s 438U of the Act. 6. The first respondent, in a threatened breach of the Act, has notified Council of his intended decisions to postpone Council elections and suspend Council. These decisions will be substantially or wholly based on the Interim Report. 7. In publishing the Interim Report and relying upon it for decision-making, the first respondent has acted with partiality and exhibited actual or apprehended bias and as such, is disqualified from exercising his powers first, to appoint the public inquiry; second, to postpone Council elections; and third, to suspend Council. Additionally, the particulars to this pleaded fact provide that the first respondent, being a barrister and experienced legal practitioner having occupied senior positions within local council, "must have known that the interim report was prepared in breach of the requirements of procedural fairness". 1. The respondents, in their response to summons filed 3 August 2024 (although responding to the original summons which was later amended on 15 August 2024) respond to the summary of grounds as follows: • Admit (1) and (2) and say that the first respondent had formed the preliminary view that those steps in (2) were necessary; • In response to (3) and (4), say that the Interim Report was prepared in the exercise of a non-statutory executive power on the part of members of the OLG to brief the first respondent and that the Interim Report recorded matters of concern, including allegations that had been reported to the investigators but did not make "findings", however admit the denial of procedural fairness in relation to the publication of the Interim Report on the OLG website and the issuing of the media release; and • Deny (5), (6) and (7) and maintain that the Interim Report provided a factual basis to appoint the public inquiry. Statutory provisions 1. As the issues in this matter raise the conduct of the first and second respondents as decision-makers pursuant to the Act, some understanding of the relevant provisions which are referred to in the parties' submissions, is appropriate. 2. Chapter 13 of the Act is headed "[h]ow are councils made accountable for their actions?", and relevantly provides as follows: Part 5 Inquiries, reviews and surcharging Division 1 Inquiries and reviews 429A Complaints about councils, councillors, delegates and staff (1) A public official within the meaning of the Public Interest Disclosures Act 2022 may complain to the Departmental Chief Executive about the conduct of any one or more of the following— (a) a council, (b) a delegate of a council, (c) a councillor, (d) a member of staff of a council. (2) A complaint may be made orally or in writing. (3) The Departmental Chief Executive may deal with a complaint made under this section— (a) by means of an investigation under this Division, or (b) in such other manner as the Departmental Chief Executive considers appropriate. 430 Departmental Chief Executive may investigate councils The Departmental Chief Executive may, at the request of the Minister or on the Departmental Chief Executive's own initiative, conduct an investigation into any aspect of a council or of its work and activities. 431 Powers in connection with investigation (1) For the purpose of conducting an investigation under this Division, the Departmental Chief Executive may direct a person to do any one or more of the following— (a) to appear personally before the Departmental Chief Executive at a time and place specified in the direction, (b) to give evidence (including evidence on oath), (c) to produce to the Departmental Chief Executive any document that is in that person's custody or under that person's control, (d) to grant to the Departmental Chief Executive such authorities as may be necessary to enable the Departmental Chief Executive to gain access to any document that is in the custody or under the control of any bank, building society, credit union or other person. … … 433 Report of investigation (1) The Departmental Chief Executive must report to the Minister on the results of an investigation under this Division and must send a copy of the report to the council concerned. (2) The report may comment on any matter that, in the Departmental Chief Executive's opinion, warrants special mention and may contain such recommendations as the Departmental Chief Executive considers appropriate. (3) A report furnished to the council under this section must be presented at the next meeting of the council after the report is received. (4) Section 14B of the Royal Commissions Act 1923 applies in relation to any report that the Minister wishes to lay before both Houses of Parliament in the same way as it applies to a report made by a commission under that Act. 434 Council's response to report (1) A council must, within 28 days after presentation to it of a report made by the Departmental Chief Executive following an investigation under this Division, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report. (2) The Minister may— (a) after receiving the council's notice, or (b) after the 28-day period, whichever is the earlier, order the council to do such things or to refrain from doing such things arising from the recommendations contained in the report as are specified in the order. (3) A council must comply with the Minister's order. (4) An order under this section may state that a failure to comply with the order may lead to legal proceedings being taken to enforce compliance. … Part 8 Public inquiries 438U Public inquiries (1) The Governor or the Minister may appoint a person as commissioner, or two or more persons as commissioners, to hold a public inquiry and to report to the Governor or the Minister with respect to— (a) any matter relating to the carrying out of the provisions of this Act or any other Act conferring or imposing functions on a council, and (b) any act or omission of a member of a council, any employee of a council or any person elected or appointed to any office or position under this or any other Act conferring or imposing functions on a council, being an act or omission relating to the carrying out of the provisions of the Act concerned, or to the office or position held by the member, employee or person under the Act concerned, or to the functions of that office or position. (2) For the purposes of any inquiry under this section, any person appointed to hold the inquiry has the powers, authorities, protections and immunities conferred on a commissioner, as well as the powers, authorities, protections and immunities conferred by Division 1 of Part 2 of the Royal Commissions Act 1923— (a) on a sole commissioner (if the person is the only person appointed to hold the inquiry), or (b) on a chairperson of a commission (if the person is one of two or more persons appointed to hold the inquiry and has been appointed as chairperson of the inquiry). (3) The provisions of section 24 of the Local Court Act 2007 apply to any witness or person summoned by or appearing before the person so appointed in the same way as it applies to witnesses and persons in proceedings under that Act. (4) The provisions of the Royal Commissions Act 1923 (section 13 and Division 2 of Part 2 excepted) apply, with any necessary adaptations, to and in respect of any inquiry under this section and to and in respect of any witness or person summoned by or appearing before the person or persons holding the inquiry. (5) The Minister is to cause the report of the person or persons who have held an inquiry under this section to be laid before both Houses of Parliament. If neither House of Parliament is sitting, section 14B of the Royal Commissions Act 1923 applies. … 438W Suspension of council during public inquiry (1) The Minister may, by order published in the Gazette, suspend a council if a public inquiry relating to the council is held or to be held and the Minister considers it in the public interest to suspend the council. … … 438Y Appointment of interim administrator (1) The Minister must, in an order suspending a council under this Part or by subsequent order published in the Gazette, appoint an administrator of a council that is suspended. … … Part 6A Postponement of elections 318B Postponement of elections (1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if— (a) the council is the subject of— (i) an investigation under section 430 or any other provision of this Act, or (ii) a public inquiry, or (iii) an investigation by an authority (as defined in the Dictionary at the end of this Act) under any Act, or … Evidence 1. The Court received extensive documentary evidence including tender bundles from both parties. The applicant's tender bundle included a copy of the Interim Report as well as various correspondence between employees of the OLG relating to the production and publication of the Interim Report. 2. Although not strictly relevant to the outstanding issues, Council read the affidavits of 13 people who were identified or identifiable in the Interim Report, being the affidavits of Tina Bono, Betty Boustani, Jason Breton, Melissa Marie Curran, Anthony Hadchiti, Lina Kakish, Ned Nader Khalil Mannoun, Fiona Michelle Macnaught, Lance Northey, Farooq Portelli, Julie Scott, Haris Strangas and Noelle Warwar all of which were sworn or affirmed on 25 July 2024. Council also relies on the affidavits of Megan Lesley Hawley affirmed 25 July 2024, Craig Knappick affirmed 30 July 2024, and Jason Breton affirmed 26 July 2024. 3. The respondents tender bundle contained correspondence to the first respondent from various Council officers and members of parliament between 2 May and 28 June 2024; briefing notes (and various drafts thereof) including the briefing note dated 6 May 2024 seeking the authority of the Deputy Secretary to conduct the s 430 Investigation; media articles regarding Council and various complaints addressed to, or received by, the Minister's Office or the OLG. 4. The respondents also relied upon correspondence dated 6 August 2024 between the parties' solicitors confirming that Council did not intend to amend their claim to include a specific allegation of "improper purpose", and a letter signed by the first respondent dated 16 July 2024 presenting the Interim Report to the Clerk of the Legislative Council for "tabling and release". 5. The Court also received a "Notice to Admit Facts" filed by Council and a "Notice Disputing Facts" filed by the respondents on 12 August 2024 and an agreed chronology containing background facts. Issues 1. Despite the concession of the respondents that there was a failure to afford procedural fairness when the Interim Report was published, the parties differ as to what issues remain. Council maintains that it is still necessary for the Court to consider the other bases on which the lawfulness of the Interim Report is challenged (including, whether the Interim Report was made and published without power, unreasonably, or affected by actual or apprehended bias and/or made for an improper purpose). 2. Council contends that these other bases remain relevant to, first, whether the first respondent breached the Act by appointing the Commissioner to hold a s 438U public inquiry into the conduct of Council in reliance on the Interim Report; second, whether the first and second respondents should be restrained from proceeding with the public inquiry and exercising further powers under ss 318B, 438W and 438Y of the Act; third, whether the publication of the Interim Report was an act of partiality that disqualified the respondents from exercising the investigative and decision-making powers under the Act; and finally, the nature, extent and seriousness of such breach which will bear upon the Court's discretion under s 676 of the Act. 3. The respondents maintain that given their concession, there is no utility considering the other jurisdictional challenges to the Interim Report and what remains is simply the challenge to the first respondent's decision to appoint the public inquiry (and it follows, the proposed "adjunct" decisions to suspend Council, postpone Council elections, and appoint an administrator to Council). As such, the outstanding issues are whether the decision of the first respondent to appoint the public inquiry into the conduct of Council under s 438U was wholly or substantially based on the Interim Report; and if so, does that render the appointment of the public inquiry invalid; and, further, whether the first respondent's decision to appoint the public inquiry was vitiated by actual or apprehended bias. 4. It is agreed between the parties that if the first respondent's decision to appoint the public inquiry falls on any of the challenges contended by Council, so do the challenges to the proposed "adjunct" decisions. Submissions Council's position 1. Council submits that the second respondent breached ss 430 to 434 of the Act by conducting an investigation and publishing the Interim Report because there was no power to produce the Interim Report (or any report prior to the completion of the s 430 Investigation). Further, that the carrying out of the investigation and the publishing of the Interim Report breached the requirements of procedural fairness, was unreasonable, or was affected by actual or apprehended bias. 2. Council submits that the Court would not accept the respondents' position that the Interim Report was prepared in the exercise of a "non-statutory executive power" on the part of members of the OLG to brief the Minister. This is because s 433(1) of the Act, although expressed as an obligation, should be properly construed as a grant of power because, first, there is no other statutory source of power to prepare a report "on the results of an investigation under this Division" in the Act; second, Parliament has clearly constrained the powers of a Departmental Chief Executive since s 433(2) of the Act prescribes the matters that the report may comment on; third, the obligation to report "on the results of an investigation" necessarily implies the grant of power; and fourth, s 433(2) limits the matters on which the report may comment (to those which "warrant(s) special mention"), such that these are important checks on the power to report. As such, the Court would be slow to accept the proposition that the Departmental Chief Executive (here, the second respondent) could invoke the broad investigative powers in ss 431 and 432 ostensibly for the purpose of reporting to the Minister under ss 433 and 434 of the Act, when in fact he was using the results of the investigation to exercise "non-statutory power". 3. In addition, Council submits that the Departmental Chief Executive's power to make a report is strictly subject to the provisions of Div 1 of Pt 5 of Ch 13 of the Act, which form part of an "interrelated and coordinated process" as follows. First, it comprises a limited power under s 429 of the Act to direct a council to provide documents or information; second, if the Departmental Chief Executive decides to conduct the investigation under s 430, the Act confers broad powers on the Departmental Chief Executive under ss 431 and 432 for the purpose of conducting the investigation; third, the powers to conduct an investigation are tied to the obligation to report to the Minister (and to provide a copy to the council concerned under s 433(1)), and the report "may comment on any matter … and may contain such recommendations as the Departmental Chief Executive considers appropriate"; fourth, s 434(1) requires the council concerned to "give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report"; fifth, s 434(2) empowers the Minister to order the council concerned "to do such things…arising from the recommendations contained in the report"; and sixth, s 433(4) authorises the Minister to lay the report before Parliament. Council contends that each of the above steps is "legally" dependent upon the step that precedes it. 4. Due to this "concatenated" process, Council submits that the Departmental Chief Executive cannot conduct an investigation or prepare a report based upon investigations under Div 1 of Pt 5 of Ch 13 of the Act for purposes unconnected with making recommendations to the Minister pursuant to s 434(1) and (2). Even if a non-statutory power to brief the Minister existed, that power would be subject to the express and implied requirements of the Act. As a result, Council contends that the Departmental Chief Executive or the Minister cannot circumvent the restrictions of the Act by invoking the coercive investigative powers under ss 430 to 432 and then claim that the powers have been used for some other purpose that sits outside the legislative framework for which they were granted (for example, to produce an interim report). 5. Council submits that having invoked the investigative powers under ss 430 to 432, the Departmental Chief Executive and the Deputy Secretary only had the power to report to the Minister in a manner that was consistent with the requirements of s 433 of the Act, which would, at least, require the investigation to be complete, and there was therefore no power to issue (and publish) an "interim" report. Council contends that the manner in which a power is exercised is relevant to its legality and, in the circumstances, the use of information obtained during the s 430 Investigation and the decision to publish the Interim Report "coloured" the manner in which the first respondent could subsequently exercise his powers. 6. Council submits that even if the Interim Report was published as an exercise of a non-statutory power (as contended by the respondents), the duty of procedural fairness still applies: Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 ('Annetts') at 598 (Mason CJ, Deane and McHugh JJ), and as the breach of the duty produces a jurisdictional error, the Interim Report is a nullity or no report at all, and is therefore incapable of instigating or forming the basis for the exercise of statutory powers: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [29] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 7. Council further submits that the second respondent failed to comply with the requirements for procedural fairness in two respects. First, the Interim Report makes serious allegations and findings against persons who are either identified by name or position and, in the present circumstances, those identified or identifiable by the Interim Report have lost the benefit of protections they otherwise would have enjoyed under the Act such as the right to be heard in opposition to any potential adverse findings and to maintain a good reputation: King v Ombudsman [2020] SASCFC 90; (2020) 137 SASR 18 ('King v Ombudsman') at [151] (Doyle J). Second, the Interim Report deals with matters that fall outside the terms of reference of the s 430 Investigation. This is evident as the Interim Report states that "[i]n addition to matters identified under the Terms of Reference for this investigation, investigators identified a significant number of matters of concern beyond those related to the Terms of Reference". By going beyond the terms of reference the investigators further deprived those who have been the subject of the s 430 Investigation any meaningful opportunity to respond to the matters adverse to their interests and reputation in the Interim Report. 8. Council further submits that the Interim Report is affected by unreasonableness and actual and/or apprehended bias because, first, it makes serious allegations and findings against identified persons where the investigators did not notify them of the substance of the proposed allegations within the Interim Report which was provided to the first respondent in contumacious disregard for the impact this may have; second, it is based on an incomplete investigation and was published even though the authors did not consider themselves to be in a position to make "final findings"; third, it was published in the knowledge of the preceding two matters; fourth, as soon as it was provided to the first respondent, it was published online on the OLG's website at the behest of the first respondent and promoted via a media release; and fifth, the respondents disingenuously suggest that the Interim Report does not actually contain findings when there are headings within the Interim Report styled "interim findings – matters of concern" and multiple findings. 9. Council repeats its submission (noted at [37] above) that the power to investigate under s 430 of the Act and to report to the Minister pursuant to s 433 of the Act must be exercised for the purpose of providing the Minister with the information necessary to decide whether or not to exercise the discretionary power given by s 434 of the Act and not for any other purpose. The Interim Report states it was presented to the first respondent "for the purpose of informing the Minister of a number of serious concerns…", and then expressly states that it has not been made for the purposes of s 434 of the Act and makes it clear that the Interim Report relates to "an ongoing investigation under s 430…". In these circumstances, the Court would be satisfied that because the Interim Report was not made for any purpose related to s 434, and therefore was made for (improper) purposes unconnected with Div 1 of Pt 5 of Ch 13 of the Act, it amounts to a breach of ss 430 and 433 of the Act. 10. Council submits that the Court may make an order under s 676 of the Act if it is satisfied that a breach of the Act has been or will be committed (unless restrained by an order of the Court). In relation to the first respondent's Notice of Intention given on 18 July 2024 to Council, the primary issues for the Court to determine are whether the first respondent's exercise (or proposed exercise) of the power under the Notice of Intention would constitute a breach of the Act. Council submits that any exercise by the first respondent of those powers would constitute a breach of the Act because, first, the decision(s) (within the Notice of Intention) have been based upon an extraneous/irrelevant consideration, being the Interim Report; and second, the first respondent's decision(s) is itself affected by actual or apprehended bias. 11. In relation to extraneous/irrelevant considerations, Council submits that the first respondent's decision to exercise the powers referred to above was based substantially, if not wholly, on the Interim Report. The Notice of Intention (for convenience, annexure "A" to this judgment) states that the first respondent has determined that an urgent public inquiry into the conduct of Council be held under s 438U "as a result" of, and with "regard to", the concerns raised in the Interim Report, and that "[t]he matters of concern identified and documented in the report are of such significance and gravity as to warrant holding an urgent public inquiry", which suggests that the Interim Report was an important, if not primary, catalyst for the first respondent's decision(s). The Notice of Intention also states that the first respondent has "formed the preliminary view that these actions… are necessary due to the serious concerns about governance and operational matters occurring with [Council]", which is further evidence that the first respondent's decisions and the proposed "adjunct" decisions are a response to matters raised in the Interim Report. 12. In relation to the first respondent's decision, Council, again, submits that Div 1 of Pt 5 of Ch 13 of the Act is an interrelated cluster of powers that can only be exercised in accordance with the constraints governing their exercise and only for the specific purpose for which they were granted. As such, the first respondent has used the investigative powers and the Interim Report for a collateral purpose of determining whether he should exercise his discretion under ss 318B, 438U, 438W or 438Y of the Act, which is not a legitimate purpose toward which the s 430 Investigation and the Interim Report may be directed. Council submits that although these constraints are not expressly stated by ss 318B, 438U, 438W or 438Y of the Act, they arise by implication: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 at [15] (Mason J) ('Peko-Wallsend'). 13. Further, the discretions under ss 318B, 438U, 438W or 438Y of the Act are themselves subject to a requirement to afford procedural fairness to persons who would be adversely affected by their exercise. Although the first respondent has invited submissions from Council on the issues of whether Council elections should be postponed; whether Council should be suspended; and an administrator appointed, the first respondent did not give Council notice before he "determined that an urgent public inquiry be held under section 438U" of the Act. 14. Additionally, the first respondent's reliance on the Interim Report compounds the earlier contravention because the Interim Report itself was prepared in breach of the requirements for procedural fairness. Council refers to "the theory of the second actor" whereby subsequent decisions have been made based on an initial decision that is admittedly invalid. Council submits that the Interim Report "infects" the first respondent's later decisions (made or proposed to be made in the Notice of Intention). Moreover, Council maintains that because the Interim Report is affected by jurisdictional error, it has no statutory force and cannot be relied upon in making decisions under a statute: Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 ('Balmain Association') at 635 (Kirby P, Priestley and Handley JJA). 15. It follows that if the Court is satisfied that the first respondent's determination to appoint the public inquiry into the conduct of Council was made in breach of the Act, the proposed "adjunct" decisions which depend on that determination (the postponement of Council elections; the suspension of Council; and the appointment of an administrator to Council), would also be "tainted". 16. Council further submits that the first respondent is affected by actual or apprehended bias that disqualifies him from being able to exercise the powers under ss 318B, 438U, 438W or 438Y of the Act on five bases. First, the first respondent having been a barrister and experienced legal practitioner since 1991 and having occupied senior positions within local council for many years, must have known that the Interim Report was prepared in breach of requirements for procedural fairness. 17. Second, the Interim Report states that it has been based on the incomplete s 430 Investigation and does not contain "final findings", and it does not extract or reference any primary evidence of the allegations it contains, and is, therefore, not a reliable source of information. Despite this, it appears to be the only information to which the first respondent had regard when deciding to appoint the public inquiry into the conduct of Council. 18. Third, where the Interim Report was not based on information from the individuals who are the subject of adverse comment in the Interim Report, the first respondent must have known that it is not based on all relevant information. 19. Fourth, the Notice of Intention demonstrates that the first respondent's mind is closed as to the question of the need to hold the public inquiry into the conduct of Council as it states that the Minister has "determined that an urgent public inquiry be held" where the use of the past tense demonstrates that the decision to appoint the Commissioner to hold the public inquiry has been irreversibly made. The failure to provide Council with an opportunity to be heard in respect of this proposal is demonstrative of partiality against Council. 20. Fifth, it is clear from the material and the Notice of Intention, that the first respondent has prejudged the issues particularly where, in his letter of 18 July 2024 to the Mayor, the first respondent states: "I must consider whether elections should be postponed and … Council be suspended while the inquiry and section 430 investigation progresses"; and thereafter gives notice of his intention to postpone Council elections under s 318B(1) of the Act; and suspend Council under s 438W of the Act. In effect, the first respondent has expressly stated that he has already formed a view regarding the very matters which he states are still to be decided. Respondents' position 1. The respondents submit that although the publishing of the Interim Report involved a denial of procedural fairness, the Interim Report never had any legal effect and was not a statutory precondition to the exercise of powers now challenged by Council and, as such, does not "infect" the first respondent's decision to appoint the public inquiry. 2. Prior to appointing the fourth respondent under s 438U of the Act to undertake an urgent public inquiry into Council and issuing the Notice of Intention, the first respondent had been briefed on concerns held by investigators as well as a number of councillors at the Department of Planning, Housing and Infrastructure about potential maladministration within Council. The respondents also point to other evidence in relation to serious concerns that had also been made known to the Minister and his department by Council employees, members of the community, councillors, and members of State and federal parliaments. 3. These concerns included allegations and complaints about bullying and sexual harassment; interference by elected officials in development assessment processes; breaches of the Work Health and Safety Act 2011 (NSW); employment of related persons otherwise than on the basis of merit; wasting of public money; destruction of records; sexual discrimination; bypassing of procurement processes; and pressure to determine development applications resulting in refusal of developmental applications that may otherwise have been approved. 4. The respondents emphasise that the Interim Report was provided as an attachment to a briefing note to the first respondent and although the respondents concede that procedural fairness should have been afforded to those identified or identifiable within the Interim Report, jurisdictional error in the making of the Interim Report does not mean that the first respondent's later decision to appoint the public inquiry, and the proposed "adjunct" decisions, are invalid. This is because, first, the receipt of a "valid" Interim Report is not a statutory precondition to the exercise of the power to hold a public inquiry; second, even if the Interim Report is invalid, the concerns disclosed to the first respondent are still disclosed in fact and could still be relied upon by the first respondent to appoint the public inquiry; third, the Interim Report was part of a briefing to the first respondent, and has no independent legal effect. As such, neither an order quashing the report, nor a declaration of invalidity is (or would have been) appropriate. 5. Further, in circumstances where the respondents concede that there was jurisdictional error in the making and the publication of the Interim Report, there is no utility in the Court considering other jurisdictional challenges to the Interim Report. Thus, the respondents submit that the only issues remaining are, first, whether the decision of the first respondent to appoint the public inquiry was wholly or substantially based on the Interim Report; second, if so, does that render the appointment of the public inquiry invalid; and third, whether the first respondent's decision to appoint the public inquiry was otherwise vitiated by actual or apprehended bias (on the basis that improper purpose is not pleaded). 6. The respondents submit that the power to appoint the Commissioner to hold the public inquiry under s 438U of the Act is one of a series of discretionary powers available to the first respondent to facilitate good governance within local government and, contrary to Council's contention, the powers under Ch 13 are not concatenated. As such, a decision to hold the public inquiry is not contingent on there being a prior completed investigation under s 430 of the Act. 7. Further, the decision to hold the public inquiry gives rise to a series of "adjunct" powers or decisions being, first, if the public inquiry is to be held, the first respondent may suspend Council if he considers suspension to be in the public interest (s 438W(1) of the Act); second, if he exercises that power, he must appoint an administrator (s 438Y(1)); and third, if Council is the subject of the public inquiry, the Minister may order the postponement of Council elections (s 318B). 8. The respondents submit that given their concession (in relation to failure to afford procedural fairness), the only remaining issue for the Court is the implication(s) of a report affected by jurisdictional error for the subsequent decision of the first respondent to appoint the public inquiry. Although the Interim Report (which was provided to the first respondent as an attachment to a briefing note) may have had an impact on the reputation of those identified or identifiable within the Interim Report, it did not have any effect on their legal rights. As such, even if certiorari was available, there is nothing to quash: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 ('Ainsworth') at 595 (Mason CJ, Dawson, Toohey and Gaudron JJ); Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159-160 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44. Moreover, the respondents repeat that the briefing note is not a statutory precondition to the exercise of any power, and the power to appoint an inquiry under s 438U of the Act is not expressly contingent on the receipt of any type of report (nor are the powers in s 438W, 438Y and 318B of the Act). Further, although the information in the briefing note will, as a matter of fact, be considered by the first respondent in making decisions and taking further action, that does not give the briefing note legal effect: Ainsworth at 580-581. 9. In relation to the power to provide an "interim" report to a minister (without there being a completed investigation under s 430 of the Act), as was the case here, the respondents submit that the power to do so is a non-statutory power which is a necessary incident of the system of responsible government. That is, a system which depends upon ministers being provided with information within the knowledge of their departments: Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 ('Apache') at [18]-[19] (Wheeler, Buss and Newnes JJA); Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [72] (Gageler J). 10. Further, it could not be unreasonable in the Wednesbury or Li sense for the department to inform the responsible Minister of serious concerns and, while the publication of the Interim Report may have resulted in a denial of procedural fairness, that does not mean that the Interim Report was without an evident and intelligible justification or was otherwise irrational: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ('Li') at [91]. 11. In addition to the above, and contrary to Council's submissions, the respondents submit that the Interim Report is not affected by actual or apprehended bias. Notably, Council does not disaggregate the allegations of actual and apprehended bias and appears to assert that the second respondent made and published the Interim Report in the knowledge that it contained serious allegations against certain individuals and was therefore biased against Council. However, a decision to publish allegations does not suggest partiality, conversely, it displays a commitment to transparency. The briefing note provided the reason for publication, being to ensure that the community is informed of the basis for appointing the public inquiry. As such, the fair-minded observer would be aware that the decision to publish was made in the context of a statute and a system of responsible government that promotes accountability through transparency. It follows that, consistent with the system of responsible government, the decision to make the Interim Report cannot be evidence of bias on the part of the second respondent in briefing the Minister. 12. The respondents further submit that Council has failed to discharge its onus of proving that the first respondent substantially or wholly relied upon the contents of the Interim Report when making his later decision to hold the public inquiry. The first respondent had a briefing note which not only attached the Interim Report but also included correspondence received from three councillors disclosing concerns including that "the decision-making processes of the elected Council have broken down…". Further, prior to the decision to appoint the public inquiry, between 19 May 2023 and 9 July 2024, the first respondent and his department received at least 36 complaints (including from councillors) about Council and representations asserting "dysfunction" and "ongoing deterioration of standards of good governance at [Council]". Therefore, it could be inferred that the Minister's decision to call for a public inquiry was based on the information within the Interim Report as well as broader information of the potential concerns relating to the work and operations of Council. 13. Further, the Court would not accept Council's submissions that because the Interim Report is infected by jurisdictional error, it has no "statutory force" and cannot be relied upon, and is therefore an "irrelevant consideration". While an invalid exercise of power does not exist in law, it remains a thing that has happened in fact. Where the factual existence of that exercise of power (such as the content of a report) leads to the taking of some other action, the subsequent action might then have consequences which do not depend on the legal force of the earlier invalid exercise: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 ('Kable') at [52]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19 at [20]. 14. The respondents submit that it is only when the legal validity of a prior action (here the Interim Report) is a statutory precondition to the subsequent action (here, the decision to appoint inquiry) will it result in the invalidity of the later decision: Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 at [38]. 15. Contrary to the situation in Balmain Association, s 438U does not have a statutory precondition and is only constrained by the scope and objects of the Act. Here, the power in s 438U to appoint a commissioner to hold a public inquiry is not contingent on there being a report. There is no statutory limitation nor pre-condition to the Minister's exercise of the power under s 438U: Barton v R (1980) 147 CLR 75 at 94; [1980] HCA 48 (Gibbs and Mason JJ); Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505; [1947] HCA 21 (Dixon J). Thus, the respondents contend that the Interim Report was not an irrelevant consideration in circumstances where, having regard to the subject matter, scope and purpose of the power being exercised under the Act, the first respondent was not prohibited from taking the Interim Report into account: Peko-Wallsend at 39. 16. The respondents submit that while Council contends that the first respondent must have known that the Interim Report was prepared in breach of the requirements of procedural fairness (on the basis that the first respondent was a barrister and experienced legal practitioner who would have been familiar with the requirements of procedural fairness), Council did not in any way explain how this contention (in ground (18) of the amended summons) proves actual bias. The respondents observe that the briefing note indicates that the publication of the Interim Report was so "the community understands some of the issues that are prompting the Minister to take the action to establish the Inquiry…", which clearly reflects a concern about transparency and accountability, not partiality against Council. As such, the Court would not accept, that the first respondent's mind was closed about the question of the need to hold the public inquiry simply because he determined that an urgent inquiry needed to be held. It is circular to argue that because the Minister exercised his power in one particular way, that therefore, his mind was closed at the time of that exercise. 17. Further, to the extent that Council submits that the Minister was required to afford procedural fairness in his decision to appoint the public inquiry (an allegation that is not pleaded), the appointment of an inquiry is one stage of a multistage process (the latter stage comprising the public inquiry) and procedural fairness will be afforded to individuals as part of the public inquiry. A decision to conduct an inquiry, like a decision to prosecute, does not give rise to an obligation to afford procedural fairness: AYHT v Medical Board of South Australia (2000) 77 SASR 148; [2000] SASC 136 (Doyle CJ, Debelle and Bleby JJ). And, the Notice of Intention is not suggestive of a closed mind simply because the Minister stated he had "formed the preliminary view". This cannot be regarded as giving rise to reasonable apprehension of bias let alone actual bias: Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 319 (Lockhart, Pincus and Gummow JJ); Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312, [2008] FCA 185 at [15] (Sundberg J). 18. While the standard may be lower than actual bias, apprehended bias needs to be firmly established: R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553; [1969] HCA 10 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ). Apprehended bias turns on "whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided": Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [57] (Kiefel, Bell, Gageler, Keane and Nettle JJ) ('Isbester'). In the current circumstances, the fair-minded observer would be aware that one of the purposes of the Act is to facilitate accountable local government and the purpose is advanced by transparency such that a decision to publish allegations does not in itself suggest partiality, rather, it demonstrates a commitment to transparency. That is borne out by the reasons given for publication of the Interim Report in the briefing note. 19. Moreover, where a minister has concerns regarding governance within a council, it is consistent with the functions under Ch 13 of the Act to take appropriate action, such as announcing a public inquiry. In such circumstances, this cannot be suggestive of an apprehension of bias: Armidale Regional Council v O'Connor [2020] NSWLEC 77; (2020) 245 LGERA 56 at [104] (Preston CJ of LEC). 20. In the above circumstances, the respondents' position is that, apart from their non-opposition to the making of a declaration partially in the form as expressed in prayer (2) of the amended summons in relation to the Interim Report, the balance of the amended summons should be dismissed. Consideration 1. Although it would appear, as the respondents contend, that their concession in relation to the denial of procedural fairness in the making and publication of the Interim Report (hereafter, the 'concession') narrows the remaining issues, Council maintains that the determination of the enduring (if any) status of the Interim Report (despite the concession) are matters which necessarily infect the later challenged decisions. 2. While I accept the respondents' submission that despite the concession there is little utility in considering other grounds of invalidity raised by Council in relation to the Interim Report (being absence of power, unreasonableness and actual and/or apprehended bias), given the manner in which Council developed its submissions, particularly in relation to the subsequent decision of the first respondent to appoint the public inquiry, and the proposed "adjunct" decisions, these grounds require consideration. 3. As such, despite the concession, Council maintains that there was no power to make the Interim Report, and that it was also affected by unreasonableness and actual and/or apprehended bias, and that it follows that the first respondent's decision to appoint the public inquiry is a breach of the Act because the first respondent's decision was, first, based on an extraneous and irrelevant consideration being the Interim Report; and second, the first respondent's decision is itself affected by unreasonableness and actual or apprehended bias. 4. Council further submits that the first respondent's discretions in relation to ss 318B, 438U, 438W and 438Y are also subject to a requirement to afford procedural fairness to individuals who may be affected by their exercise. In the circumstances, I will deal seriatim with Council's submissions summarised above at [33]-[52] which require the status of the Interim Report to be initially considered. 5. I do not accept Council's contention that the Interim Report was prepared "without power". The question is (irrespective of whether the report is styled "interim" or otherwise) whether the second respondent had the power to make (and use) the Interim Report as he has. To the extent that this issue remains relevant given the concession, about which I have some doubt, there is some strength in Council's submission that the statutory procedures in ss 430 to 433 provide for a process leading to a "report" of an investigation pursuant to s 433(1) and provide a code for the conduct and completion of an investigation and that it is only after those procedures have been completed that a report be properly made. 6. Although Council submits that, given that the specific investigative powers and procedures provided in ss 431 and 432 of the Act are for the purpose of reporting to the Minister under ss 433 and 434 and that those powers and procedures were "self-contained", which should prevent the preparation of a "report" that does not comply with the procedures providing for an investigation pursuant to s 430 of the Act, I do not consider this the correct position. 7. Even though there is no provision for the making of an "interim" report in the Act, I do not consider that the provision of the information otherwise contained in the Interim Report was unable to be (or otherwise prohibited to be) provided to the first respondent as part of the briefing note. I consider that an officer of the executive is able to exercise a "non-statutory executive power" to brief the first respondent using the information that was available from the commenced but not concluded s 430 Investigation (as well as other information that was before the first respondent). 8. I consider that the power to make a report (by way of providing a briefing to the Minister or otherwise) despite resulting from a partly conducted separate inquiry process, is a non-statutory power which is a necessary incident of the system of responsible government. While I accept that there has been (and was) a threat (by the publication of the Interim Report) to the reputation of certain individuals identified or identifiable (and therefore attracting procedural fairness), in circumstances where the State's constitutional structure necessarily entails communications between government departments and responsible ministers, and accepting that such advice may range from informal oral communications or detailed briefing notes or anything in between (as considered in Apache at [18]-[19]), the fact that the briefing note itself contains material adverse to the interests (including reputation) of some individuals does not necessarily mean the affected party must be given opportunity to be heard in respect of the use of that material, or part thereof, when it is being brought to the relevant minister's attention. 9. It is frequently noted and accepted that responsible government depends upon the assumption that ministers have access to and can freely request and be given information which is held by departmental officers. In this regard, I note the comment in Apache at [19] as follows: "…It would be odd, if a requirement to afford natural justice imposed upon those officers a duty to delay in giving information to their Minister, until such time as persons the subject of adverse information had been given an opportunity to be heard about it, since it seems to us that a Minster's responsibility would continue even where (for whatever reason) he or she had not been given information." 1. Although the decision in Apache concerned a report that was an "essentially internal" report and may have had a lesser reputational significance: King v Ombudsman at [151], I do not consider this detracts from the persuasiveness of the quoted comment in the present circumstances. 2. Apart from the above, I accept (as properly conceded by the respondents) that even considered as an exercise of a non-statutory executive power, the duty of procedural fairness otherwise applied to those individuals affected by the Interim Report. It is now well-accepted that, in the absence of a clear contrary legislative intent, the requirements of procedural fairness will be recognised as applying generally to governmental executive decision-making: Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1990) 169 CLR 648; [1990] HCA 22 at 653; Annetts at 598. 3. It follows that if the concession in relation to the denial of procedural fairness had not been made in relation to the publishing of the Interim Report, for the reasons submitted by Council, I would have held that there was a duty to afford procedural fairness in making the Interim Report and that the duty had been breached. Despite this, I do not consider that the Interim Report could not be made available to the first respondent for the reasons I have given above. The question then arises as to whether the validity of the Interim Report affects later decisions. 4. As summarised at [40] above, Council submits that a number of primary factors point to both unreasonableness and bias (both actual and apprehended) affecting the Interim Report, including, first, the Interim Report makes serious allegations against identified and identifiable individuals (without providing procedural fairness); second, the s 430 Investigation was not complete, with no "final" findings; third, the Interim Report was published in the knowledge of these two matters; and fourth, the Interim Report was provided to the first respondent and published online and on the OLG's website as well as promoted via a media release at the behest of the first respondent. Council also suggests the Interim Report was made for an improper purpose. 5. I do not consider that the Interim Report was affected by unreasonableness and/or actual or apprehended bias. In relation to unreasonableness, and conscious that the concept of unreasonableness concerns the lawful exercise of power and does not depend on definitional formulae, I find that the conduct of the s 430 Investigation and the preparation of the Interim Report (and I find later in this judgment, the decision of the first respondent to appoint the public inquiry) was not so devoid of plausible justification or "lacking rational foundation", or "plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power": Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11]; Li at [91]. 6. The fact that the Interim Report was based upon an incomplete s 430 Investigation and although the authors did not consider that they were in a position to make "final" findings, and while accepting that it contained a number of factual assertions which on any view are 'findings', I do not consider that, in the circumstances, this amounts to unreasonable conduct by the first respondent. Further, while I accept Council's submission (as I have noted above), that the power to investigate under s 430 of the Act (and to report to the Minister under s 433 of the Act) must be exercised for the purpose of providing the Minister with information to decide whether or not to exercise the discretionary power in s 434, it is clear, and I find, that the Interim Report, as it states, was presented to the first respondent "for the purpose of informing the Minister of a number of serious concerns…". This conduct was not indicative of unreasonable conduct on the part of the first or second respondents, and as noted above, I find that the Interim Report was provided as part of a detailed briefing note to the first respondent which itself was not made "without power". Similarly, the Interim Report cannot be said to be an irrelevant consideration. 7. As such, it was not unreasonable for the Minister to be informed by his department of matters relevant to his position and to act upon such information. This is despite the fact that the Interim Report involved a denial of procedural fairness. The fact that the Interim Report was not "complete" does not indicate unreasonableness on the part of the first respondent. The Interim Report and the briefing note made it clear that the s 430 Investigation was not complete. Further, the fact that it was the subject of a media release (and that the evidence shows that there had been a number of revisions to the text of the Interim Report before its release) does not, in my view, indicate unreasonableness, improper or biased conduct. 8. In making the findings above, I am careful to repeat that the ability (or power) to make reports to inform relevant ministers does not negate the need in certain circumstances for procedural fairness to be afforded. The question in the present case, again, is in light of the concession having been made by the respondents, whether the Interim Report itself (and to the extent that it has been relied upon by the first respondent) is redolent of jurisdictional error for reasons other than procedural fairness and whether it can be relied upon (that is, the Interim Report is not a nullity). 9. While 'jurisdiction' refers generally to the scope of the authority that is conferred on a repository and in its application to judicial review of administrative decisions, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision. A decision within jurisdiction is a decision which sufficiently complies with any statutory preconditions: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (Kiefel CJ, Gageler and Keane JJ) at [23]. Moreover, at [24] and [29], the plurality stated: "…To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a 'nullity', in that it remains a decision in fact which may yet have some status in law. … Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance." 1. Although Council submits that, given the concession, the Interim Report should be regarded as a "nullity", and "no decision at all", I do not accept this submission. Both parties made oral submissions in relation to the "theory of the second actor" being a theory concerning the status of decisions based upon (or related to) earlier invalid decisions as explained in Wade and Forsyth's Administrative Law (and considered in Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC 33 at [79]-[94]). 2. In Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 at [28] and [36], Le Miere J stated: "[28] In my opinion the effect of the authorities is as follows. First, an administrative decision which involves jurisdictional error is legally invalid. Secondly, an administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid. Thirdly, whether a legally invalid decision has any relevant legal effect before it is set aside or declared to be invalid depends upon the statutory framework under which and the context in which the decision is made." "[36] …An administrative decision affected by jurisdictional error is legally invalid but may have legal effect in certain circumstances. Professor Forsyth's theory of the second actor is a principled and practical approach to this conundrum. Professor Forsyth has described the nub of the theory as follows: '[U]nlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether the second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void. [Forsyth C, 'The Theory of the Second Actor Revisited' (2006) 1 Acta Juridica 209, 215.]'" 1. In Kable at [52], Gageler J (as the Chief Justice then was) stated: "…[A] thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined… The thing is, as is sometimes said, a "nullity" in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences [(100) Forsyth, "'The Metaphysic of Nullity': Invalidity, Conceptual Reasoning and the Rule of Law", in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (1998) p 141, esp at pp 147-148]. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself." 1. Given the above, I find that even if the Interim Report was "legally invalid", the concerns (otherwise contained therein) disclosed to the first respondent can still be relied upon (to appoint a public inquiry) as they raise matters generally relating to maladministration which are not irrelevant considerations. The question is whether the substantive validity of the Interim Report is a precondition for the validity of the further conduct in the decisions of the first respondent. I find it is not. As such, I find that the first respondent's decision to convene the public inquiry is not invalidated by the Interim Report because the validity of the Interim Report is not a statutory precondition to the exercise of power under s 438U of the Act. Even if the Interim Report could be described as a 'nullity', it continues to exist in fact. 2. Contrary to Council's submissions, I do not find that the evidence is sufficient to show that the second respondent was biased (either actual or apprehended) simply because he caused the Interim Report to be published. I have closely considered the various versions of the Interim Report and the briefing note (and the second respondent's suggestions for amendments in relation thereto, and the preparation of "talking points") to which I was referred to by Council. Adopting the principles recited later in this judgment, none are indicative of bias. Further, it is clear, as I have noted earlier, that the second respondent stated that the reason the Interim Report was published (as recorded in the briefing note) was to "ensure that the community understands some of the issues that had prompted the Minister to take action to establish the Inquiry…". I find that these reasons are quite inconsistent with any suggestion of actual or apprehended bias on the part of the second respondent. 3. I now deal with Council's further submission that the first respondent is affected by actual or apprehended bias that disqualifies him from being able to exercise the powers in ss 318B, 438U, 438W and 438Y of the Act. 4. Adopting the above analysis in relation to the second respondent, and considering the statutory regime including the scope, subject and purpose of Ch 13 of Pt 5 of Div 1 of the Act and in particular the process and preparation of a report pursuant to s 430 of the Act, for the following reasons, I find that the Interim Report is not affected by actual or apprehended bias. 5. The principles are well understood. A finding of actual bias is a grave matter, and an allegation of actual bias must be distinctly made and clearly proved such that cogent evidence is required. In the present case, where the issue is actual bias in the form of prejudgment, Council must establish that the first respondent was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Le Geng; Minister for Immigration and Multicultural Affairs v White (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow and Hayne JJ agreeing); Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [69]. 6. The evidence does not show that the first respondent "should have known better" (as Council submits) than to publish the Interim Report even noting that a concession in relation to procedural fairness was made. As noted above, the briefing note records that the publication of the Interim Report was so that the "community understands some of the issues that have prompted the Minister to take the action to establish the Inquiry…". 7. Although Council submits that the first respondent's mind is (now) "closed" in relation to the question of the need to hold the public inquiry (because the first respondent has determined that an inquiry be held), it is clear that the first respondent's decision under s 438U is not indicative that his mind was closed at the time of the exercise of that determination. Further, if it be the case (and despite there being no pleading to this precise effect) that the first respondent was required to afford procedural fairness in relation to his decision to appoint the public inquiry, I find that this is unpersuasive in circumstances where a public inquiry is one stage in a multi-stage process with the later stage comprising the public inquiry where procedural fairness will be afforded to concerned individuals as part of the public inquiry (pursuant to s 438U(4) of the Act which provides that the provisions of the Royal Commissions Act 1923 (NSW) permitting persons substantially and directly interested in the subject matter of the inquiry to appear and be heard, apply to any public inquiry under Pt 8 of the Act). 8. Further, to the extent that Council relies upon (or seeks to challenge) the proposed "adjunct" decisions in the Notice of Intention (annexure "A" to this judgment), it is clear that this provides an opportunity for Council to provide submissions in relation to the proposed postponement of Council elections, suspension of Council, and appointment of an administrator to Council, and is not suggestive of a closed mind. 9. Apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear upon the issues to be decided: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437; [2011] HCA 48 at [33]. As stated in Isbester at [57], it involves the question of whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that a decision-maker might not bring an impartial mind to the question. 10. I consider that the decision to publish the allegations contained in the Interim Report does not on its own suggest partiality on the part of the first respondent in circumstances where the briefing note provided the reasons for publication. As such, a fair-minded observer (armed with the knowledge that they are otherwise assumed to have) would be aware that the decision to publish the Interim Report was made in the context of the Act and a system of responsible government that promotes accountability through transparency. 11. With some risk of repetition, while I accept Council's submission that Div 1 of Pt 5 of Ch 13 of the Act provides an interactive "cluster" of powers, and that the first respondent has received information which resulted from the use of those investigative powers, to the extent that this could be seen to have been undertaken for a collateral purpose of determining whether the first respondent should exercise his discretion under ss 318B, 438U, 438W or 438Y of the Act, as opposed to the delivery of a report to the first respondent (and to Council) in accordance with s 433 of the Act, I do not consider that this amounts to an illegitimate (or improper) purpose as contended by Council. 12. It follows that in relation to the first respondent's decision to appoint the public inquiry under s 438U of the Act, I find that although the decision was based upon matters including the issues identified in the Interim Report, it does not vitiate the decision. I further accept the respondents' submissions at [64] above that the Court cannot exclude on the balance of probabilities that the first respondent had other considerations on his mind beyond the Interim Report. I accept the first respondent had material in the possession of his department including the various serious complaints from councillors and representations made to the department, and in some cases, to the first respondent – some of which were attached to the briefing note provided to him (including a number of media articles in relation to the conduct of Council in various prominent daily newspapers). 13. Further, I do not accept that the exercise of the first respondent's discretion relating to the proposed "adjunct" decisions under the other sections of the Act (cited above) require the first respondent to afford procedural fairness to individuals (if any) who would be adversely affected by the exercise. Again, a public inquiry will allow those concerned to be heard. In any event, in relation to those proposed "adjunct" decisions in the Notice of Intention, the first respondent notes that he has "formed the preliminary view…" and invited Council to make submissions on the issues of whether Council elections should be postponed, Council suspended, and an administrator appointed to Council. Put simply, as I have found above, I do not accept that, to the extent that the Interim Report was affected by jurisdictional error (being the failure to afford procedural fairness), it has no force, and its factual contents cannot be relied upon. 14. Further, I do not accept Council's submission that because the first respondent was a barrister and experienced legal practitioner having occupied senior positions within local council for many years (as it is pleaded and submitted by Council but not supported by evidence), he would (or should) have known that the Interim Report was prepared in breach of the requirements of procedural fairness. Although there may be an element of judicial notice about such matters, the evidence before the Court simply does not permit that finding. 15. I find the fact that the Interim Report states that it is based upon an "incomplete" s 430 Investigation and does not contain "final findings", is also not determinative of any unreasonableness or (apprehended or actual) bias (as submitted by Council) on its own or in combination with other matters raised by Council. Further, I do not consider that the Notice of Intention demonstrates that the first respondent's mind is closed (although he has made his mind up in relation to holding the public inquiry). In particular, again, I do not consider that there is any reason, on the present facts, that would require the first respondent to provide Council with an opportunity to be heard in respect of the proposal for the public inquiry particularly, as noted above, in circumstances where the public inquiry itself will, in accordance with the legislative regime under Pt 8 (in particular s 438U(2) and (4) of the Act), provide opportunity for those individuals otherwise affected to be heard. As such, I do not consider the failure to provide Council with an opportunity to be heard in respect of the appointment of the public inquiry is demonstrative of partiality. 16. Further, I repeat that where the first respondent has indicated that further submissions made by Council will be considered before deciding whether to postpone Council elections, issue a suspension order, and appoint an administrator to Council, is not redolent of bias – either actual or apprehended. Conclusion 1. My salient findings may be summarised as follows. The first respondent had the power to make and publish the Interim Report. The first and second respondents were neither actually biased nor acted so as to give rise to a reasonable apprehension of bias in relation to the decision to publish the Interim Report. As such, the publication of the Interim Report was not an act of partiality. It follows that I find that the first respondent's decision to appoint the Commissioner to hold the public inquiry is separate to the decision to publish the Interim Report such that any invalidity of the Interim Report does not render unlawful the first respondent's decision to later appoint the public inquiry because, first, I have found that the validity of the Interim Report is not a statutory precondition to the exercise of power under s 438U of the Act; and second, although the Interim Report is, from a legal perspective, a nullity, it continues to exist in fact, when the first respondent made the decision to appoint the public inquiry. 2. Additionally, I find that, first, Council has not discharged its onus to prove that the first respondent relied solely upon the contents of the Interim Report in appointing the public inquiry; second, that the first respondent did not consider any irrelevant considerations in making this decision; and third, that the first respondent's decision was not attended by legal unreasonableness. Further, I do not find that the first respondent was actually biased or acted in a manner to give a reasonable apprehension of bias on the part of the hypothetical reasonable observer. 3. In the circumstances, I consider that Council is entitled to limited relief confined to a declaration that the Interim Report was released without procedural fairness and that the other claims in the amended summons filed 15 August 2024 should be dismissed. Costs 1. The parties have not addressed the Court in relation to costs. The usual order in judicial review proceedings is that costs follow the event. Council has enjoyed limited success. If there is no agreement between the parties in relation to costs, I direct that the active parties file primary submissions in relation to any application for costs (limited to 5 pages) within 21 days of this judgment, and file, if necessary, any response to primary submissions (also limited to 5 pages) within 14 days thereafter, with the intention that any question of costs will be decided on the papers unless an application is made in submissions for an oral hearing. Orders 1. The Court makes the following orders: 1. Declares that in reporting adversely about Liverpool City Council in an Interim Report dated 11 July 2024, Brett Whitworth, as delegate of the Departmental Chief Executive, Office of Local Government, failed to observe the requirements of procedural fairness. 2. The amended summons filed 15 August 2024 is otherwise dismissed. 3. Costs are reserved. ********** Annexure A (1103323, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2024