Supreme Court New South Wales Medium Neutral Citation: Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption [2018] NSWSC 387 Hearing dates: 21 – 23 March 2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Common Law - Administrative Law Before: Fagan J Decision: 1. The summons filed on 21 March 2018 is dismissed. 2. The plaintiff is to pay the defendant's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption (ICAC) – decision to hold public inquiry – ICAC Act 1988 (NSW), s 31 – decision to investigate matters – ICAC Act 1988 (NSW), s 20 – no jurisdictional error – prerequisites for decision-making under ss 20 and 31 of the ICAC Act – whether matters proposed to be investigated must be serious and/or systemic corrupt conduct – relevant and irrelevant considerations – whether consideration of degree of seriousness of impugned conduct is mandatory – whether consideration of potential impact of decision upon pending civil proceedings is mandatory – whether decisions unreasonable – summons dismissed Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Crimes Act 1900 (NSW) Independent Commission Against Corruption 1988 (NSW) Cases Cited: Daniels Corporation International Pty Limited v ACCC (2002) 213 CLR 543 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Potter v Minehan (1908) 7 CLR 277 Category: Principal judgment Parties: Knightsbridge North Pty Limited (plaintiff) Independent Commission Against Corruption (defendant) Representation: Counsel: Ms Bridie Nolan (plaintiff) Mr Scott Robertson (defendant) Solicitors: Knightsbridge North Lawyers Crown Solicitors Office File Number(s): 2018/090116 Judgment (ex tempore, revised) 1. The plaintiff is a corporation which carries on a legal practice. One of its directors is Ms Despina Bakis. On about 6 March 2018 Ms Bakis was served with a summons issued by the Independent Commission Against Corruption ("ICAC") to appear and give evidence in a public inquiry to commence at 10:00 am on Monday 26 March 2018 ("the witness summons"). Five other persons, whom the plaintiff now represents, were also served with summonses in similar terms. 2. On 21 March 2018 the plaintiff filed the summons by which these proceedings were commenced, naming ICAC as defendant and seeking by way of final relief orders to the following effect: 1. A declaration that the decision of the defendant under s 20 of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act") to conduct an investigation into matters identified in the witness summons is infected by jurisdictional error and void and of no effect. 2. A declaration that ICAC's decision under s 31 of the Act to hold a public inquiry into the specified matters is infected by jurisdictional error and void and of no effect. 3. Orders restraining ICAC from continuing to investigate the subject matter and from conducting a public inquiry into it. 4. Interlocutory restraints upon ICAC, in these terms: (5) An order, until further order, restraining the Defendant from conducting an investigation into the allegations. (6) An order, until further order, restraining the Defendant from conducting a public inquiry into the allegations. 1. The summons was first before me in the Common Law duty list on 21 March 2018 and I then ordered that it proceed to final hearing the next day. That is what occurred and the hearing continued into Friday, 23 March 2018. The prayers for interlocutory injunctions have become irrelevant. The Commission takes no issue about the standing of the plaintiff to seek the relief it claims. 2. The subject matter of the investigation and of the public inquiry at which the witnesses are to give evidence is specified in the witness summons in the following terms: 1. Whether any public official, being a director of the Board of the Awabakal Local Aboriginal Land Council (the Land Council), acted dishonestly and/or in breach of his or her duty as a Board member in relation to a scheme involving proposals from 2014 - 2016 for the sale and development of properties ("the Sale and Development Scheme") owned by the Land Council. 2. Whether any director of the Board of the Land Council acted dishonestly and/or in breach of their duty as a Board member in agreeing to, or purporting to retain, or retaining, Knightsbridge North Lawyers or anyone else to act for the Land Council in respect of the Sale and Development Scheme. 3. Whether any director of the Board of the Land Council: (a) acted dishonestly and/or in breach of their duty as a Board member by participating in or aiding or assisting any person in relation to, the Sale and Development Scheme, including any dealings with: • Sunshine Property Investment Group Pty Ltd • Sunshine Warners Pty Ltd • Solstice Property Corporation Pty Ltd • Advantage Property Experts Syndications Pty Ltd and/or • Advantage Property Syndications Ltd; (b) received any financial or other benefits as a reward or payment for their involvement in or for their assistance or services rendered in relation to the Sale and Development Scheme or any matter connected therewith. 4. whether any person or persons: (a) encouraged or induced any director of the Board of the Land Council to dishonestly or partially exercise any of their official functions in respect of the Sale and Development Scheme and any other Land Council property, or (b) otherwise engaged in conduct connected with corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988. 1. The following are the grounds set out in the plaintiff's summons upon which it claims the declarations and injunctions: 1) The Defendant lacks the jurisdiction to investigate and hold a public inquiry in respect of the allegations because they cannot and do not amount to serious or systemic "corrupt conduct" for the purposes of ss 8 and 12A of the ICAC Act. Particulars a) The effect and operation of the Aboriginal Land Rights Act 1983 (ALRA), is such that the purported investigation into the allegations cannot amount to serious or systemic "corrupt conduct" for the purposes of ss 8 and 12A of the ICAC Act: i) By virtue of Division 4A of the ALRA unless approval has been given by the NSW Aboriginal Land Council (NSWALC) in relation to a "land dealing" by a Local Aboriginal Land Council any agreement is expressly void and unenforceable and no legal or equitable interests can be created, irrespective of any other law that could apply: ss 42C (1); 42E(4), (5) ALRA; ii) For a "land dealing" to obtain approval from NSWALC it must conform to the requirements of s 42G ALRA. iii) Accordingly: 1) a person cannot hypothetically affect adversely, directly or indirectly, any director of the Board of the Awabakal Local Aboriginal Land Council (ALALC) to approve a "land dealing"; 2) no hypothetical dishonesty or breach of a duties of a board member as understood in the context of s 176 ALRA, can amount to a systematic plan or arrangement for attaining the sale and development of properties owned by ALALC viz. a scheme, as any hypothetical dishonesty or breach of a duties of a board member are trivial, not serious, and inconsequential; and b) Part 10 of the ALRA provides a suitable procedure and mechanism by which the conduct the subject of the allegations can be investigated and prevented. c)There is no reason why it is impracticable for the Defendant not to abide by the statutory direction in s 12A ICAC Act. 2) Further and or in the alternative to Ground 1, in deciding to investigate and hold public inquiry in respect of the allegations, the Defendant fell into jurisdictional error by failing to take into account relevant considerations for the purposes of ss 8, 12A and 31 of the ICAC Act and/ or has acted unreasonably. 3) In purporting to investigate and hold a public inquiry in respect of conduct the subject of the allegations, the substratum of which constitutes the content of the proceedings of which the Supreme Court of New South Wales (proceedings 2017/92960 and 2017/168414) (NSWSC Proceedings) is seised, the Defendant has fallen into jurisdictional error by: a) misdirecting itself as to its nature and function and of its powers under the ICAC Act; b) failing to take into account a relevant consideration for the purposes of ss 8, 12A and 31 of the ICAC Act; and/ or c) acting unreasonably in so deciding. Particulars The inquisitorial and public nature of the Defendant's inquiry, the Defendant's power to make public findings as to witnesses' "testimony" and the subject matter of the NSWSC Proceedings has the tendency to interfere with or undermine the authority, performance or dignity of the court and those who are or will participate in the NSWSC Proceedings. 4) The Defendant has fallen into jurisdictional error in deciding, contrary to ss 31 (1) and (2) of the ICAC Act, to conduct a public inquiry, by failing to take into account: a) the triviality of the alleged conduct the subject of the allegations; b) the real risk of undue prejudice to the reputations of witnesses in the NSWSC Proceedings summoned to appear before the Defendant and the real requirement to preserving the privacy of these witnesses in the face of the curial process underway in the NSWSC Proceedings; and c) the breach of public confidence in the judicial process, which might arise by reason of judicial findings in the NSWSC Proceedings inconsistent with those of the Defendant in respect of the same conduct. The facts 1. The plaintiff acted for Awabakal Local Aboriginal Land Council ("the Awabakal Council") between about November 2014 and 9 September 2016. The Awabakal Council is constituted under s 50 of the Aboriginal Land Rights Act 1983 (NSW) as a Local Aboriginal Land Council. It is a body corporate by force of s 50(2). By s 51 its objects are to improve, protect and foster the best interests of all Aboriginal persons within its area. Under s 49 of the Aboriginal Land Rights Act the Minister administering the legislation may constitute Local Aboriginal Council areas. The area constituted under that section for which the Awabakal Council is responsible is in the vicinity of Warners Bay at the northern end of Lake Macquarie. 2. Section 51 of the Aboriginal Land Rights Act requires that a Local Aboriginal Land Council have a Board of five to ten members to direct and control its affairs. Section 52 of the Act confers on the Awabakal Council the function, amongst others, of acquiring, using, managing, disposing of and otherwise dealing with land. During the period in which the plaintiff acted for the Awabakal Council it owned land and it considered ten separate proposals for sale and development of its land holdings. 3. The plaintiff was retained to advise with respect to at least some of those proposals. They included proposals from privately owned land development companies under which those companies would prepare rezoning applications to permit subdivision of some of the Awabakal Council's land for residential use and would acquire in exchange options or other contingent rights to take title to subdivided blocks or other parcels. 4. For the purposes of determining this summons it is not necessary to describe in detail any of the proposals. It is sufficient to say that at least some of them would, if accepted, have involved the Council agreeing to transfer title to land within its statutory area and receiving monetary consideration for such transfer. 5. In April 2017 the plaintiff and a land development consultancy company commenced proceedings against the Awabakal Council. The plaintiff claimed legal fees of $26,000. The consultancy company claimed reimbursement of an expenditure of $300,000 which it said it had made at the behest of and in the interests of the Awabakal Council. The plaintiffs also claimed interests in and encumbrances over the Council's land as security for their alleged debts. 6. In June 2017, Sunshine Property Incorporated Group Pty Limited and another company filed an amended statement of claim in proceedings in this Court against the Awabakal Council claiming the return of a deposit for the purchase of land in the sum of $962,000. The companies also claimed a lien over certain of the Council's land to secure re-payment of that deposit and a constructive trust in favour of one of the plaintiffs in respect of a sum of $760,000 held by the Council. 7. In each of these two separate Supreme Court proceedings there are cross-claims but it is not necessary for present purposes to refer to the causes of action pleaded therein. The two proceedings are still pending in the lists of this Court. The ICAC Act provisions 1. ICAC is constituted under s 4 of the ICAC Act. Its decision to conduct an investigation into the matters identified in the witness summons was an exercise of power conferred by s 20: 20 Investigations generally (1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it. (2) The Commission may conduct an investigation even though no particular public official or other person has been implicated. (3) The Commission may, in considering whether or not to conduct, continue or discontinue an investigation (other than in relation to a matter referred by both Houses of Parliament), have regard to such matters as it thinks fit, including whether or not (in the Commission's opinion): (a) the subject-matter of the investigation is trivial, or (b) the conduct concerned occurred at too remote a time to justify investigation, or (c) if the investigation was initiated as a result of a complaint—the complaint was frivolous, vexatious or not in good faith. (4) (Repealed) (5) If the Commission decides to discontinue or not to commence an investigation of a complaint or report made to it, the Commission must inform the complainant or officer who made the report in writing of its decision and the reasons for it. 1. ICAC's decision to conduct a public inquiry for the purposes of this investigation was made under s 31 which, so far as is presently relevant, is in these terms: 31 Public inquiries (1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry. (2) Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following: (a) the benefit of exposing to the public, and making it aware, of corrupt conduct, (b) the seriousness of the allegation or complaint being investigated, (c) any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an inquiry), (d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned. … (5) At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry. … (8) A public inquiry is to be held in public. … 1. The purposes for which ICAC may decide to conduct an investigation, including by means of public inquiry, are limited by the prescription of its functions generally. That prescription is set out in Pt 4, Div 1 of the Act comprising ss 12 to 19. Each of ss 12 to 19 refers repeatedly to "corrupt conduct". Therefore the meaning of that expression should be noted before turning to Pt 4, Div 1 in detail. 2. "Corrupt conduct" is defined in s 3 as having the meaning given by Pt 3, in which ss 7 to 11 are found. For present purposes the relevant provisions are these: 7 Corrupt conduct (1) For the purposes of this Act, corrupt conduct is any conduct which falls within the description of corrupt conduct in section 8, but which is not excluded by section 9. (2) Conduct comprising a conspiracy or attempt to commit or engage in conduct that would be corrupt conduct under section 8 shall itself be regarded as corrupt conduct under section 8. … 8 General nature of corrupt conduct (1) Corrupt conduct is: (a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or (b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or … 9 Limitation on nature of corrupt conduct (1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve: (a) a criminal offence, or (b) a disciplinary offence, or (c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or … 1. Under s 9(3) the term "disciplinary offence" is defined as including "any misconduct, irregularity, including of duty, a breach of discipline or other matter that constitutes or may constitute grounds for dismissal given under any law." 1. By s 248 of the Aboriginal Land Rights Act it is provided that each Aboriginal Land Council is taken to be a public authority for the purposes of, amongst other things, the ICAC Act. In s 3 of the ICAC Act "public official" is defined to include an individual who constitutes or is a member of a public authority. By combination of these two sections it is clear that any member of the Board of the Awababal Council is a public official for the purposes of the ICAC Act. The plaintiff conceded that in these proceedings. 2. Prima facie the four matters of investigation set out in the witness summons (see [4]) are, in terms, within the description of corrupt conduct in s 8(1)(a) and (b) of the ICAC Act. For example, dishonest conduct by a Board member of the Awabakal Council in relation to a scheme involving proposals for sale and development of Council land (pars 1 and 2) would involve a dishonest exercise of his or her official functions within the meaning of s 8(1)(b). Prima facie, to enquire into whether or not this has occurred would be to enquire into whether or not corrupt conduct has taken place. Paragraph 3 of the subjects of investigation listed in the witness summons similarly engages s 8(1)(b). 3. Paragraph 4 of the matters for investigation listed in the witness summons refers to conduct of persons encouraging or inducing Board members to exercise their official functions dishonestly with respect to Council land. This potentially engages s 8(1)(a) and an investigation into whether any person has given such encouragement or inducement would be prima facie an investigation into corrupt conduct. 4. The dishonest exercise by a Board member of his or her functions with respect to Awabakal Council land would be a "disciplinary offence" within the meaning of s 9(3). It would be a breach of the statutory obligation of honesty which is stipulated in s 176 of the Aboriginal Land Rights Act. It would be grounds for disciplinary action under Pt 10, Div 3 of that Act. The Registrar of Aboriginal Land Claims appointed under s 164 of the Aboriginal Land Rights Act could receive an allegation or complaint in relation to such dishonesty under s 181B and could investigate the complaint under s 181E. The Registrar could take action against an offending Board member under s 181F because dishonest conduct of a Board member would be a disciplinary offence. Thus, such dishonest conduct is not excluded from being corrupt by the operation of s 9. 5. The action of any person encouraging or inducing a Board member to act dishonestly in breach of his duties could be an offence, for example, contrary to s 192E of the Crimes Act 1900 (NSW). Therefore, such accessory action would, also, not be excluded by s 9 from being corrupt conduct. Parameters of ICAC's functions generally 1. Turning to the provisions which govern what subjects ICAC may investigate and, as part of an investigation, what subjects may be dealt with in a public hearing, the following sections appear in Pt 4, Div 1 of the Act: 12 Public interest to be paramount In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. 12A Serious corrupt conduct and systemic corrupt conduct In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct. 13 Principal functions (1) The principal functions of the Commission are as follows: (a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that: (i) corrupt conduct, or (ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur, … (c) to communicate to appropriate authorities the results of its investigations, … (i) to educate and disseminate information to the public on the detrimental effects of corrupt conduct and on the importance of maintaining the integrity and good repute of public administration, … (2) The Commission is to conduct its investigations with a view to determining: (a) whether any corrupt conduct, or any other conduct referred to in subsection (1)(a), has occurred, is occurring or is about to occur, and (b) whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and (c) whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct. … (5) The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission's power to make findings and form opinions: … (b) opinions as to: … (ii) whether consideration should or should not be given to the taking of other action against particular persons, … Plaintiff's interpretation of s 12A 1. The plaintiff contends that the requirement under s 12A that "the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct" has the effect that only corrupt conduct which is both serious and systemic may be the subject of investigation. It submits that identification of a subject of investigation which is corrupt conduct with both these attributes, that is the attribute of being serious and that of being systemic, is a jurisdictional fact and that in the absence of identification of such a subject any decision to investigate or to conduct a public inquiry will be invalid for jurisdictional error. 2. I reject that proposition. First, I interpret s 12A as directing the Commission's attention to two things: serious corrupt conduct and systemic corrupt conduct. If it was intended to refer to a single thing with two qualities there would have been no need to repeat the words "corrupt conduct". To convey the suggested meaning, the natural phraseology would be "serious and systemic corrupt conduct" or, still more clearly, "corrupt conduct which is both serious and systemic." 3. Given the objectives of the Act set out in s 2A, the narrowing of ICAC's focus as suggested by the plaintiff is unlikely to have been intended. Section 2A is as follows: 2A Principal objects of Act The principal objects of this Act are: (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body: (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption. 1. These objectives would be frustrated by a directive to confine attention only to corrupt conduct which is both serious and systemic. The examples given by the defendant's counsel in argument illustrate the point. A single instance of a superior court judge accepting a bribe would be serious, having regard to the objects of the Act, but it would not be systemic. On the other hand, individual instances of stealing stationery items from government offices may not be serious but if such instances were systemic they might warrant investigation under the Act. On the plaintiff's argument, neither of these matters would satisfy the requirements of s 12A. 2. If Parliament intended to limit the achievement of the objects of the Act by confining the Commission's focus, in accordance with the interpretation of s 12A submitted by the plaintiff, it would have used clearer language to that effect than that which appears in 12A. In my view the natural and obvious meaning of the words in s 12A is to direct the Commission's attention to conduct which is either serious or systemic or both. 3. Secondly, however the qualifiers "serious" and "systemic" are interpreted, s 12A does not in my view nominate any jurisdictional fact to be found, nor even nominate any qualification to the opinion which ICAC must form under s 13(1), as a pre-requisite to the investigation of a matter or the holding of a public inquiry. Ground 1 – absence of a jurisdictional fact 1. The plaintiff's first ground in its summons depends upon the proposition that the matters which the Commission proposes to investigate under s 20 and to examine in a public inquiry under s 31 must be such as would constitute corrupt conduct if the facts under investigation should be proved and that this is a jurisdictional pre-requisite to the Commission's exercise of its powers. 2. I do not consider that s 13(1) operates in that way. It appears to me the jurisdictional pre-requisite is that ICAC should form the opinion that allegations, complaints or circumstances which have come to its attention "imply" that "corrupt conduct" or "conduct connected with corrupt conduct" "may" have occurred. The formation of an opinion to this effect is the pre‑requisite to the exercise of the power, not the fact of the matter to which the opinion is directed. 3. In the present case I am readily able to infer that ICAC did form the requisite opinion. This follows inexorably from its formulation of the matters which it proposes to investigate in the intended public inquiry, as set out in the witness summons. The plaintiff has adduced no evidence from which I could infer that ICAC has not formed the opinion. 4. For reasons given earlier (see [19] and [20]), the matters listed in the witness summons as being those which the Commission proposes to inquire into publicly are capable of being corrupt conduct, when seen against the background facts which I have summarised and which are not in dispute. 5. The plaintiff submits that the possible corrupt conduct about which ICAC must form the opinion in s 13(1) must be serious and systemic corrupt conduct, relying upon s 12A. I have already rejected the plaintiff's proposition about the conjunction of the qualities "serious and systemic". But more fundamentally I do not accept that s 12A constitutes either of those qualities as an additional criterion of the s 13(1) opinion required to be formed as a pre-requisite of jurisdiction. 6. Section 12A contains an important qualification to the instruction it embodies. Namely, the words "so far as practicable". The provision of that qualification is quite the opposite of setting a jurisdictional pre-condition to the exercise by ICAC of its functions of investigating. It is the antithesis of providing a stipulation that what follows these words, namely, the reference to serious corrupt conduct and/or systemic corrupt conduct, is a necessary pre-requisite to the exercise of the functions of investigating and conducting a public inquiry. 7. The phrase "as far as practicable" is inconsistent with there being an intention on the part of the legislature to prescribe a jurisdictional pre‑requisite. It is inconsistent with the qualities "serious" and "systemic" being any part of the opinion which ICAC must form under s 13(1). 8. The drafting of s 12A is much more consonant with the section having been intended to provide a general and flexible guide to the conduct of an investigation and/or public inquiry after it has commenced. The words "as far as practicable" are apposite on that interpretation. This reading of s 12A would accommodate ICAC embarking upon an investigation, acquiring information and then adjusting its focus towards the serious and/or systemic aspects of any corrupt conduct that may appear from the evidence. On that view, 12A would require that ICAC abandon an investigation if the results of it should reveal only trivial and/or isolated corrupt conduct. The pursuit of an investigation which led to that result would not, in my opinion, have been jurisdictionally flawed from the outset for failure of ICAC to have formed an opinion as a threshold matter that what it was looking into was serious and/or systemic. Rather, what such a sequence events would show is that ICAC would have strayed intro trivial or isolated misconduct because it was not reasonably practical to avoid doing so until it had embarked upon its investigation and/or public inquiry. 9. The plaintiff's particulars under ground 1 proceed on the assumption that its argument about s 12A qualifying the jurisdictional pre-requisite of s 13(1) is accepted. As I have not accepted that argument, I do not need to address the particulars. However, I make the following observations about those particulars as this has a relevance to other grounds developed in subsequent paragraphs of the summons. 10. The plaintiff contends that the four areas of investigation listed in the witness summonses are not serious or systemic corrupt conduct because the Awabakal Council is not able to dispose of any of the land it owns but would require approval of the New South Wales Aboriginal Land Council for a land sale. I do not accept that that circumstance would reduce any corrupt conduct of Awabakal Council Board members concerning negotiation, contracts or payments relating to disposal of Council land to the status of insignificance or triviality or irrelevance. Awabakal Council approval would be the first step and an essential step towards a land transaction. Without it, there would be nothing for the NSW Aboriginal Land Council to approve under s 42E of the Aboriginal Land Rights Act. Ground 2 – the plaintiff's relevant considerations, unreasonableness 1. Under the plaintiff's ground 2 it is argued that ICAC, making its decision to investigate and hold a public inquiry, failed to take into account relevant considerations. This can only succeed if it is supported by the identification of considerations that ICAC was bound to take into account. See Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited (1986) 162 CLR 24 at p 39 (Mason J, as his Honour then was). 2. The plaintiff says that by force of s 12A ICAC was bound to take into account whether the matter it would be investigating, including a public inquiry, is serious and/or systemic corrupt conduct. I have already stated my conclusions that s 12A does not set out matters for mandatory evaluation prior to commencing an inquiry or investigation at all. But, even if s 12A does contain mandatory considerations to which ICAC must have regard in forming its opinion under s 13(1) as a pre-requisite to an investigation or public inquiry, there is no direct evidence or any basis for inference that the seriousness of the possible corrupt conduct was not taken into account in the present case. 3. In contending the contrary, the plaintiff again relies upon the supposed impossibility of any transaction taking place in consequence of conduct by Awabakal Council's Board members with respect to Council land. I do not agree that their actions must always be so clearly inconsequential that it must follow that ICAC, by proceeding with its public inquiry, has disregarded this: see [39] above. 4. The plaintiff also submits that the "responsibility and role other public authorities and public officials have in the contravention of conduct" is, by s 12A, something the Commission was obliged to take into account. That argument is disposed of by the interpretation I place upon s 12A and its function. Again, even if this consideration is required by s 12A to be taken into account at the stage of ICAC forming its opinion about possible corrupt conduct as required under s 13(1)(a), there is no direct or circumstantial evidence to show that this fact was disregarded. 5. The conclusion that that consideration was disregarded would not follow, as the plaintiff suggests, from the fact that the Registrar under the Aboriginal Land Rights Act has the investigative and disciplinary powers under s 181D to 181F as earlier referred to. The purpose and outcome of an ICAC investigation and an ICAC public inquiry may be wider and more efficacious to the circumstances than anything the Registrar may do. For example, ICAC would usually make a report to Parliament under s 74 of the ICAC Act. This would have a public educative effect. ICAC may also recommend obtaining advice from the Director of Public Prosecutions with respect to laying charges. 6. The possibility of these supplementary outcomes, additional to anything that the Registrar may do under the Aboriginal Land Rights Act, precludes the purported inference that the Commission must have failed to take into account the role and powers of the Registrar. Consistently with giving full consideration to the position of the Registrar, ICAC could arrive at its decisions under ss 20 and 31. 7. The plaintiff has also submitted that in making its decision ICAC was required to have regard to matters stipulated in subss (1) and (2) of s 31. Subsection (1) requires that the Commission be satisfied that it is in the public interest to conduct a public inquiry. Subsection (2) requires a range of considerations to be borne in mind. In order to satisfy the Court that these mandatory considerations were not taken into account, the plaintiff would have to adduce evidence of the oversight. There is no such evidence either direct or circumstantial. 8. Under ground 2 the plaintiff also argues that the Commission's decision to conduct the investigation and public inquiry were unreasonable. As developed in oral argument, this is to be understood as a contention that the Commission's formation of the opinion which was required under s 13(1) fell within the concept of unreasonableness articulated by Hayne, Keifel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] as follows: …[A]n appellate court may infer that in some way there has been a failure properly to exercise discretion "if upon the facts [the result] is unreasonable, plainly unjust." The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless be impossible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." 1. I am not satisfied that ICAC's decision in the present case has been shown to have been unreasonable in this sense. There is no basis in the evidence upon which I could conclude that it was not reasonably open to ICAC, upon such background facts as have been put in evidence on the hearing of this summons, to conclude that what ICAC has learned of negotiations and consideration of land development proposals implies there may have been corrupt conduct as defined in ss 7, 8 and 9. Ground 3 – interference with civil proceedings 1. As formulated in the summons, ground 3 merely repeats in a more expansive form of expression the grounds of failure to take into account relevant considerations and of acting unreasonably as raised in ground 2. But in the particulars to ground 3 it is asserted that ICAC failed to take into account that a public inquiry would interfere with the civil proceedings pending in this Court, to which I have earlier referred. This argument is put as high as a submission that ICAC would be in contempt of this Court if it should conduct a public inquiry into subjects upon which evidence to be adduced before it could also bear upon the civil proceedings. 2. In my view this argument cannot be sustained in the face of s 18(1) and (3) of the ICAC Act as follows: 18 Court proceedings (1) The Commission may do any or all of the following: (a) commence, continue, discontinue or complete any investigation, (b) furnish reports in connection with any investigation, (c) do all such acts and things as are necessary or expedient for those purposes, despite any proceedings that may be in or before any court, tribunal, coroner, Magistrate or other person. … (3) This section has effect whether or not the proceedings commenced before or after the relevant investigation commenced and has effect whether or not the Commission or an officer of the Commission is a party to the proceedings. 1. This section appears to be a complete and simple answer to the suggestion of contempt or of any form of wrongdoing on the part of ICAC by the conduct of the public inquiry, notwithstanding that the civil proceedings are before this Court. Further, s 18 negates the proposition that the potential impact upon civil proceedings, including the possibility of contempt of those proceedings, is a mandatory consideration required to be taken into account by ICAC before deciding to hold a public inquiry. 2. Section 18 negates the plaintiff's argument that the possibility of collateral interference with civil proceedings indicates that the decision to hold a public inquiry is unreasonable in the sense of the Minister for Immigration and Citizenship v Li or that the decision necessarily involves ICAC having misdirected itself "as to its nature and function of its powers under the ICAC Act" (ground 3(a)). On the contrary, the decision to conduct a public inquiry is explicable without a conclusion of unreasonableness or misdirection because it is consistent with s 18. Ground 4 – failure to take into account relevant considerations 1. The first subparagraph of ground 4 is that ICAC failed, in deciding to conduct the public inquiry, to take into account the triviality of the alleged conduct the subject of the allegations. I have already dealt with that point. Seriousness or triviality of corrupt conduct is not a threshold criterion, either as a matter of objective fact or as a matter upon which ICAC must form an opinion. The only threshold is ICAC's formation of the opinion under s 13(1). Triviality is a matter to be considered in the course of the investigation "so far as practicable" by ICAC, following the guidance directed in s 12A with respect to the discharge of its functions generally. 2. Subparagraphs (b) and (c) of ground 4 effectively repeat the particulars given in ground 3 and raise the issue of whether ICAC should have taken into account the potential impact of a public inquiry on the civil proceedings and whether ICAC must be regarded as having acted unreasonably because it is embarking upon the public inquiry notwithstanding those proceedings. However, in oral argument a further proposition was developed, as I understand it. Namely, that the integrity of civil proceedings and the protection of them against interference by publicity or by the conduct of other proceedings is such an important matter that it would attract the principle in Potter v Minehan (1908) 7 CLR 277. 3. As summarised in Daniels Corporation International Pty Limited v ACCC (2002) 213 CLR 543 at [11] that principle is as follows: It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minehan was the basis of the decision in Baker v Campbell (1983) 153 CLR 52. 1. The principle has been applied on the basis that certain protections of the common law, such as legal professional privilege, the accusatorial nature of criminal proceedings and the right to silence, are so fundamental that the courts will not construe legislation as having abrogated or qualified those protections except by very clear language. No case has been cited to the Court on the hearing of this summons which would substantiate that the preservation of the integrity of civil proceedings against collateral impact by the publication of evidence given in a public inquiry is a matter so fundamental as to be equivalent to legal professional privilege, the right to silence or any other concept which has attracted the principle in Potter v Minehan. 2. Even if that principle were engaged in the circumstances of the present case, the question would be whether s 18 is in sufficiently clear language to indicate that the legislature intended the protection and integrity of civil proceedings to be qualified in favour of ICAC being empowered to conduct public inquiries. If that issue arose here it would be necessary to consider the sufficiency of s 18 as an expression of the legislature's intention to prefer progress of ICAC investigations, including by public inquiry, over the preservation of a fundamental right. In my view nothing could be clearer than s 18(1) to authorise ICAC to proceed with the present inquiry notwithstanding the pending civil proceedings. 3. For these reasons the orders of the Court will be: 1. The summons filed on 21 March 2018 is dismissed. 2. The plaintiff is to pay the defendant's costs of the proceedings. ********** 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: 27 March 2018