schedule of associated correspondence and legal opinions

Schedule of associated correspondence and legal opinions

1. Correspondence addressed to the Clerks from the Acting Commissioner, Police Integrity Commission, dated 14 September 2011.

2. Correspondence addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 19 September 2011.

3. Correspondence from the Presiding Officers addressed to the Inspector of the Police Integrity Commission, dated 19 September 2011.

4. Correspondence from the Clerks addressed to the Crown Solicitor dated 21 September 2011 seeking advice in respect of the making public and tabling of the Annual Report of the Inspector of the Police Integrity Commission for the year ended 30 June 2011.

5. Advice addressed to the Clerks from the Crown Solicitor dated 26 September 2011 in response to the request of 21 September 2011.

6. Correspondence addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 27 September 2011, in relation to PIC Inspector's 2011 Annual Report.

7. Correspondence addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 28 September, 2011 iii relation to PIC Inspector's 2011 Annual Report.

8. Correspondences addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 5 October 2011, in relation to PIC Inspector's 2011 Annual Report enclosing various correspondence.

9. Correspondence addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 7 October 2011, in relation to PIC Inspector's 2011 Annual Report.

10. Correspondence addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 7 October 2011, in relation to PIC Inspector's 2011 Annual Report: Opinion of Mr Bret Walker, sc.

11. Correspondence addressed to the Insp.ector of the Police Integrity Commission, from the Presiding Officers, dated 7 October 2011 enclosing correspondence.

12. Correspondence addressed to the Presiding Officers from the Inspector of the Police Integrity Commission, dated 11 October 2011, in relation to their letter, dated 7 October 2011.

13. Correspondence addressed to the Chair, Joint Committee on the Office of the Ombudsman and the Police Integrity Commission from the Acting Commissioner, Police Integrity Commission, dated 21 September 2011.

14. Correspondence addressed to the Director, Legislative Assembly Committees, from the Inspector of the Police Integrity Commission, dated 27 September 2011.

15. Copies of Media Statements released by the Presiding Officers dated 28 and 29 September 2011.

16. Copy of the Crown Solicitor's opinion addressed to the Clerk of the Legislative Assembly, dated 26 February 2009, in relation to the publication of a complaint report by the Inspector of the Police Integrity Commission.

ABN 22 870 745 340

1 4 September 201 1

Ms Lynn Lovelock Clerk of the Parliaments and Clerk of the Legislative Council NSW Legislative Council Parliament House NSW 2000

Dear Ms Lovelock and Mr Grove

Mr Russell D Grove PSM FIPAA Clerk of the Legislative Assembly NSW Legislative Assembly Parliament House NSW 2000

Re Inspector of the Police Integrity Commission, Annual Report for 2010-2011

On 26 August 201 1 I was advised by letter from The Hon. P J Moss QC, Inspector of the Police Integrity Commission ("the Inspector") , that he intended to present his Annual Report to Parliament in the next couple of weeks and that he would include in his Annual Report a separate report by him into a complaint against the Commission by former Inspector Timothy O'Neill.

Because of concerns regarding the content and manner of publication of complaint reports by the Inspector I approached the Department of Premier and Cabinet about the possibility of a Report being presented to Parliament by this Commission, to be read in conjunction with the Inspector's Annual Report, prior to a decision being made by the Parliament as to whether the Inspector's Annual Report should be made public.

I have been informed by Mr Eccles, Director General Department of Premier and Cabinet, that it would be appropriate for me to report to Parliament by way of Special Report pursuant to s98 of the Police Integrity Commission Act 1 996 and furthermore that his Department has spoken informally to you in this regard.

Accordingly the purpose of this letter is to confirm that an officer of this Commission will shortly be contacting your offices for the purpose of seeking an appointment to present a Special Report to you, to be considered concurrently with the Annual Report of the Inspector.

YO�ur,�'faithfUIlY p! , 0' ' ? I'dr-1. r{) �he Hon Jerrold Cripps QC

Acting Commissioner

�4 � ifll9(q/?orI. lEVEL 3 111 ELIZABETH STREET GPO BOX 3880 SYDNEY NSW 2001 AUSTRAliA

TElEPHONE (02) 9321 6700 FACSIMilE (02) 9321 6799 FREECAll 1 800 657 079 www.pic.nsw.gov.au

; ... : ,;�� o��;'?)l��;\ \\� 1 � fi��Y' 2011 J.f .' .. ::::!;:�,;��y��;!/

NEW SOUTH WALES

Inspector of the

Police Integrity Commission

Our Ref: CR-02 AH

1 9 September 201 1

, }

The Hon Don Harwin MLC President of the Legislative Council Parliament House

The Hon Shelley Hancock MP Speaker, Legislative Assembly Parliament House

Macquarie Street SYDNEY NSW 2000

Dear Mr President & Madam Speaker,

Re: PIC Inspector's 2011 Annual Report

Macquarie Street SYDNEY NSW 2000

1 ) My purpose in writing this letter is, first, simply to put o n record the events which occun-ed last Friday, when my Executive Assistant, Jane Cecilia, attended at the office of the Speaker, by arrangement, in order to present the Inspector's 201 1 Am1Ual RepOlt to the NSW Parliament.

2) TIns in fact was the fifth occasion during my term of office as Inspector on which such a procedure had been put in place to allow for the presentation of the Inspector's kU1Ual Report to Parliament.

3) On this occasion, as with each prior occasion, the covering letter accompanying the Annual Report recommended that the Report be made public fOlthwith in accordance with Section 103(2) of the Police Integrity Commission Act.

4) On these prior occasions that recommendation had been immediately accepted and such acceptance indicated by an appropriate note being made on the covering letter by the Parliamentary officers present. That procedure would appear to reflect the purpose and intent inherent in Section 103(2).

f� lJ3�,,-",r � C/<9/c:-h_

-----·-'�----=:z--�---·-·----":. -�·�_!1 .. - ·" - -L-.. ,L-t€-f-(-;--------GPO Box 5215. Sydney NSW 2001

T: (02) 9232-3350 1 F: (02) 8243-947 1 1 E: [email protected]

CR-02AH

5) However, on this particular occasion that procedure was not followed, and that recommendation was not endorsed. TIle result was that the Inspector's Annual RepOli did not become public.

6) In my opinion in the particular circumstances that is a matter which should receive some examination in that there was a public interest in the Report being made public forthwith. Instead, it was denied that status for an as yet unspecified period.

7) I had received no notice that there was any problem with the usual procedure being followed, or that on this occasion it was to be significantly departed from. I was thus taken completely by surprise when Jane informed me a short time later of the events that had taken place in the Speaker's office.

8) The explanation proffered by one or more of the officers present at the time was that a cOlmnunication had been received from the Police Integrity Conmlission to the effect that my Annual Report should not be made public despite my recommendation to that effect.

9) The result seems to be that my Annual Report cannot be distributed by me, not even to the Police Integrity Conmlission, and there can be no public discussion of its contents.

10) Whatever might have been the intention and motive behind the communication referred to above from the Police Integrity COlmnission to the Speaker, of which I was given no notice by the COl11111ission, it has effectively enabled the Commission to frustrate the intention of the Inspector as to the mamler in which the Inspector intended his Arumal Report to be presented to Parliament in accordance with the procedure ordained by the legislation.

11) There is no precedent for such conduct on the part of the COlmnission as far as I am aware.

12) Nor had the Conmlission any entitlement to engage in or any ground or justification for such conduct, especially without prior notice to the Inspector.

13) Such conduct by the Cormnission strikes at tlle very core of the role and independence of the Inspector, and may well shake public confidence in the effectiveness of the Inspector and his ability to present his Reports to the Parliament fi'ee fi'om any interference in tllat process by the Commission, and in a way that allows for public accountability and discussion.

14) Thus, my second purpose in writing this letter is to take this opportunity of placing these observations before you for your consideration, and in the light of tllem to request, respectfully, that you re-consider my reconmlendation that my AImual RepOli be made public forthwith.

2 f 3 fFilcname}

Inspector of the Police Integrity Commission GPO Box 5215, Sydney NSW 2001

T: (02) 9232-3350 I F: (02) 8243-9471 IE: [email protected]

15) I have no objection to this letter being dealt with as you see fit, including being incorporated in, so as to form part of, my Annual Report. In particular I have no objection to its being laid before the Parliament and its subject matter made available for public discussion. Indeed, I think the Commission's conduct merits public scrutiny. Nor do I have any objection to a copy of this letter being provided to the Police Integrity Commission.

Yours sincerely,

The Hon P J Moss, QC Inspector of the Police Integlity Commission

3!3

Inspector of the Police Integrity Commission GPO Box 5215. Sydney NSW 2001

T: (02) 9232-3350 I F: (02) 8243-9471 IE: [email protected]

: Filcnamc}

Shelley Hancock MP Speaker

19 September 2011

The Hon. P J Moss, QC Inspector of the Police Integrity Commission GPO Box 5215 Sl'DNEY NSW 2011

Dear Mr Moss,

Don Harwin MLC President

Inspector of the Police Integrity Commission 2011 Annual Report

We refer to your letter of 19 September 2011 concerning your 2011 Annual Report, copies of which were presented to us on Friday 16 September 2011. We have today received a report from the Police Integrity Commission regarding, "Publication of Complaint Reports by the Inspector of the Police Integrity Commission".

In view of the content of the Police Integrity Commission's report and also in view of the matters raised in your own correspondence, we are seeking the advice of the Crown Solicitor in relation to these matters.

We will further consider the publication of your annual report and the Police Integrity Commission's report once we have received and considered the Crown Solicitor's advice.

Yours sincerely

� II '� The Ho}t;:Shelley Hancock MP SpeakerU

Telephone (02) 9230 2201 Facsimile: (02) 9230 2846 [email protected]

Parliament House Macquarie Street SYDNEYNSW

AUSTRALIA

T!:::D� President

. Telephone: (02) 9230 2300 Facsimile: (02) 9230 3316

[email protected]

Russell D. Grove Clerk of the Legislative Assembly

21 September 2011

Mr Ian Knight

Crown Solicitor

GPO Box 25

Syd ney NSW 2001

Dear Mr Knight

Lynn Lovelock Clerk of the Legislative Council

Making public and tabling of the annual report of the Inspector of the Police Integrity

Commission for the year ended 30 June 2011

We refer to our telephone discussion in relation to this matter yesterday and provide the

following background information in relation to the matters on which we are now seeking

your advice.

On Friday 16 September 2011 the Executive Assistant to the Inspector of the Police Integrity

Commission (the Inspector) attended by prior appointment upon the Speaker to present the

Inspector's annual report for the year ended 30 June 2011. The report was received by the

Speaker, and by a senior officer of the Legislative Council on behalf of the President, who

was not available due to the sitting of the Council at that time.

The Inspector's annual report includes as schedules three reports, two upholding

complaints, each of which are described as reports pursuant to section 89(1)(b) of the Police Integrity Commission Act 1996 (the Act).

The Inspector's covering letter (see copy attached) included a recommendation that the

report be made public forthwith. We had already received correspondence from the Acting

Commissioner of the Police Integrity Commission (the Commission) concerning the

Commission's intention to shortly present a report to. be read in conjunction with the

Inspector's report prior to a decision being made about the making public of the Inspector's

report (see copy attached). In view of the Commission's correspondence,· the Speaker

exercised her discretion to not make the Inspector's report public forthwith. Later that day

the President concurred in that decision. The Inspector's report has therefore not yet been

made public or tabled in either House.

On Monday 19 September 2011 correspondence was received from the Inspector

expressing concern that his recommendation for his annual report to be made public

forthwith had not been agreed to and requesting that his recommendation be reconsidered

(see copy attached).

Telephone (02) 9230 2222 Facsimile: (.02) 9230 2333 [email protected]

Parliament House Macquarie Street

SYDNEY NSW 2000 AUSTRALIA

Telephone: (02) 9230 2321 Facsimile: (02) 9230 2761

[email protected]

Also on Monday 19 September 2001 officers of the Commission attended upon the

President by appointment to present a Special Report under section 98 of the Police Integrity Commission Act 1996 "Regarding Publication of Complaint reports by the Inspector

of the Police Integrity Commission" (see copy of tabling letter attached). The report was

received by the President and the Clerk of the Legislative Assembly, on behalf of the

Speaker.

The Presiding Officers have now written to the Inspector stating that they are seeking legal

advice on these matters and will further consider the recommendation to make public his

report once that legal advice has been received.

We note that, under section 103 of the Act, a report furnished to the Presiding Officer of a

House of Parliament is to be laid before that House within 15 sitting days. Both Houses are

next due to sit on Tuesday 11 October 2001.

There is clearly a dispute between the Inspector and the Commission as to the powers of

the inspector to pUblish "complaint reports", including by way of presentation of reports to

Parliament. We note that this matter has been the subject of previous recommendations by

the Parliamentary Joint Committee and advice from your office (ref 200900175 T8 Ellen

Knoblanche).

In the context of such a dispute, we are seeking your advice as to the options available to

the Presiding Officers in dealing with the annual report received from the Inspector,

including the schedules, inclusion of which in the report appears to be unlawful in the view

Commission. The specific matters on which your advice would be appreciated include:

1. To what extent should the Presiding Officers be expected to form a view as to the

lawfulness or otherwise of the inclusion of the "complaint reports" as schedules to

the Inspector's annual report, prior to either making the Inspector's report public or

tabling on 11 October 2011?

2. Would it be appropriate for the Presiding Officers to table the Inspector's annual

report including the schedules, together with the Commission's Special Report and

the associated correspondence on 11 October 2011, with a view to a motion being

moved upon tabling for the reports and correspondence to be made available to

members only, until such time as the powers of the Inspector concerning "complaint

reports" are clarified. (Perhaps a motion could be moved in each House to refer the

reports to the Parliamentary Joint Committee for inquiry and report.)

3. What is the meaning of "forthwith" under section 103(2) of the Act? Having declined

to make the Inspector's report public forthwith on 16 September, do the Presiding

Officers have the discretion to form a different view at some stage before the next

sitting day, or at least the expiration of 15 sitting days in which time the report must

be tabled?

We would also welcome· your advice on any other related matters which may assist the

Presiding Off icers in coming to a decision about how they may proceed in this matter.

Yours sincerely

he legislative Assembly

,�o� Iloef� lynn lovelock

Clerk of the Parliaments

NEW Soun-I WAl..ES

Inspector of the


The Hon Don Harwin MLC President of the Legislative Council Parliament House Macquarie Street SYDNEY NSW 2000


The Hon Shelley Hancock MP Speaker, Legislative Assembly Parliament House Macquarie Street SYDNEY NSW 2000

In accordance with section 102 of the Police Integrity Commission Act 1996, I hereby furnish to each of you for presentation to Parliament the Annual Report of the Inspector of the Police Integrity Commission for the year ended 30 June 2011.

The Report has been prepared in accordance with the requirements of the Police Integrity Commission Act 1996 ("the Act").

Pursuant to Section I 03(2) of the Act, I recommend that the Report be made public forthwith. .

Yours faithfully,

The Hon P J Moss, QC Inspector of the Police Integrity Commission

16 September 2011

«Q.�a·(·(' I O· . cC' c",v..,..

Cf\ h t(eLl I � Sr(I",-l. '2.0 1\

bd",", I � cf -K-Q.

. -.--.----;��ox ��·;��n��;;��·-----r='�I�J' � � T: (02) 9232-3350 I F: (02) 8243-9471 IE: pic_inspec([email protected]:gov.au

ABN 22 870 745 340

14 September 2011

Ms Lynn Lovelock Clerk of the Perliaments and Clerk of the Legislative Council

Mr Russell D Grove PSM FIPAA Clerk of the Legislative Assembly NSW Legislative Assembly Parliament House NSW 2000 NSW Legislative Council

Parliament House NSW 2000


Re Inspector ofthe Police Integrity Commission, Annual Report for 2010-2011

On 26 August 2011 r was advised by letter from The Han. P J Moss QC, Inspector of the Police Integrity Commission ("the Inspector"), that he intended to present his Annual Report to Parliament in the next couple of weeks and that he would include in his Annual Report a separate report by him into a complaint against the Commission by former Inspector Timothy O'Neill.

Because of concerns regarding the content and manner of publication of complaint reports by the Inspector I approached the Department of Premier and Cabinet about the possibility of a Report being presented to Parliament by this Commission, to be read in conjunction with the Inspector's Annual Report, prior to a decision being made by the Parliament as to whether the Inspector's Annual Report should be made public.

I have been informed by Mr Eccles, Director General Department of Premier and Cabinet, that it would be appropriate for me to report to Parliament by way of Special Report pursuant to s98 of the Police Integrity Commission Act 1996 and furthermore that his Department has spoken informally to you in this regard.

Accordingly the purpose of this letter is to confirm that an officer of this Commission will shortly be contacting your offices for the purpose of seeking an appointment to present a Special Report to you, to be considered concurrently wiih the Annual Report of the Inspector.

The Han Jerrold Cripps QC Acting Commissioner

"lEVEL 3 111 ELIZABETH STREET GPO BOX 3880 SYDNEY NSW 200T AUSTRALIA

TELEPHONE (02) 9321 6700 FACSIMILE {02, 9321 6799 F�EECALL 1 800 6S7 079 www.pic.nsw.go\'.au . . ' ....... ' . , .. . ' .. ,. .' ....... " .. -.". .. . ,., . ' ,

---_ ...... _----- --�----.�--

� �

NEW SOUTH WALes

Inspector o/the


Our Ref: CR -02 AH

19 Sept�mber 201 1

The Hon bon Harwin MLC President of the Legislative Council Parliament House Macquarie Street SYDNEY NSW 2000

Dear Mr Pt:esident & Madam Speaker,



1) My purpose in writing this letter is, first, simply to put on record the events which occui:red last Friday, when my Executive Assistant, Jane Cecilia, attended at the office of the Speaker, by arrangement, in order to present the Inspector's 2011 Annual Report to the NSW Parliament.

2) This in fact was the fifth occasion during my term of office as Inspector on which such a procedure had been put in place to allow for the presentation of the Inspect?r's Annual Report to Parlianlent.

3) On tlris occasion, as with each prior occasion, the covering letter accompanying the Annual Report recommended that the Report be made public forthwith in accordance with Section 103(2) of the Police Integrity Commission Act.

4) On these prior occasions that recommendation had been immediately accepted and such acceptance indicated by an appropriate note being made on the covering letter by the Parliamentary officers present. That procedure would appear to reflect the purpose and intent inherent in Section 103(2).

1/3 CR-02 AH

GPO Box 5215, SydneyNSW 2001

T: (02) 9232-3350 I P: (02) 8243-9471 IE: [email protected]

- _ ._--.. . .. --_.----

5) However, on this particular occasion that procedure was not followed, and t.hat recommendation was' not endorsed. The result was that the Inspector's Annual Report did not become public.

6) In my opinion in the particular circumstanCes that is a matter which should receive some examination in that there was a public interest in the Report being made public forthwith. 'Instead, it was denied that status for an as yet unspecified period ..

7) I had received no notice that there was any problem with the usual procedure being followed, or that on this occasion it was to be significantly departed from. I was thus taken completely by surprise when Jane informed me a short time later of the events that had taken place in the Speaker's office.

8) The explanation proffered by one or more of the officers present at the time was that a communication had been received from the Police Integrity Commission to the effect that my Annual Report should not be made public de.spite my recommendation to that effect.

9) The result seems to be that my Annual Report cannot be distributed by me, not even to the Police Integrity Commission, and there can be no public discussion of its contents.

10) Whatever might have been the intention and motive behind the communication referred to above from the Police Integrity Commission to the Speaker, of which I was given no notice by the Commission, it has effectively enabled the Commission to frustrate the intention of the Inspector as to the manner in which the Inspector intended his Annual Report to be presented to Parlianwnt in accordance with the procedure ordained by the legislation.

11) There is no precedent for such conduct on the part of the Commission as far as I am aware.

12) Nor had the Commission any entitlement to engage in or any ground or justification for such conduct, especially without prior notice to the Inspector.

13) Such conduct· by the Comm,ission strikes at the very core of the role and independence of the Inspector, and may well shake public confidence in the effectiveness of the Inspector and his ability to present his Reports to the P31·lia.1llent free from any interference in that process by the Commission, and in a way that allows for public accountability and discussion.

14) Thus, my second purpose in writing this letter is to take this opportunity of placing these observations before you for your consideration; and in the light of them to request, respectfully, that you re-consider my recommendation that my Annual Report be made public forthwith.

2/3 {Filoname}

Inspector of the Police Integrity Commission

GPO Box 5215, Sydney NSW 2001

T: (02) 9232-3350 1 F: (02) 8243-94711 E: [email protected]

•

- ----- - ---------------- - ---- ---- ---------

15) I have no objection to this letter being dealt with as you see fit, including being incorporated in, so as to form part of, my Annual Report. In particular I have no objection to its being laid before the Parliament and its subject matter made available for. public discussion. Indeed, I think the Commission's conduct merits public scrutiny. Nor do I have any objection to a copy of this letter being provided to the Police Integrity Commission.

Yours sincerely,


3/3


T: (02) 9232-335Q 1 F: (02) 8243-94711 E: [email protected]_gov_au

{Filename}

- ---- - --- -- - - -- -----.- _._-- _.- --- -------- -- _._ . . _-.--- .-----. . _- --_._--- - - _ . - - - - _ .. - . _ ._------ -- -_._---- ----------_._---

ASN 22 870 745 340

The Han Don Harwin MLC President Legislative Council Parliament House Sydney NSW 2000

Dear Mr President and Madam Speaker _

The Han Shelly Hancock MP Speaker Legislative Assembly Parliament House Sydney NSW 2000

In accordance with section 98 of the Police Integrity Commission Act 1996, the Commission hereby furnishes to you a Report regarding Publication of Complaint Reports by the I nspector of the Police Integrity Commission.

I particularly draw your attention to the Introduction on page 1 of the Report

Yours _faithfully

- .

he Hon Jerrold Cripps QC Acting Commissioner

September 2011

lEVEL 3 111 EUZABETH· STREET GPO BOX 38S{J SYDNEY NSW 2001 AUSTRALIA

TELEPHONE {02} 9321 6700 FACSIM.llE (02) 9321 6799 FReECALL 1 800 657079 w\Vw.pic.nsw.gov.au

NSW GOVERNMENT

Crown Solicitor's Office

26 September 201 1

Mr Russell Grove Clerk of the Legislative Assembly Legislative Assembly, Parliament of NSW Macquarie Street SYDNEY NSW 2000

Ms Lynn Lovelock Clerk of the Legislative Council Legislative Council, Parliament of NSW Macquarie Street SYDNEY NSW 2000

Dear Mr Grove & Ms Lovelock

Your Ref: My Ref: 201102729

TOB I V Knight Tel: (02) 9224-5238

Fax: (02) 9224-5244 Email: [email protected]

russell. [email protected]

[email protected]

Publication forthwith of annual report of Inspector to the PIC

I enclose my advice in relation to the above matter.

Should you have any queries in relation to the matter, or if you require any further assistance, please do not hesitate to contact me on tel: (02) 9224-5238.

Encl.

Ll � 4, Pfo(q!7R/. CROWN SOLICITOR'S OFFICE ABN 50 132005544 60-70 Elizabeth Street Sydney NSW 2000 GPO Box 25 Sydney 2001 DX 19 Sydney

Telephone 02 9224 5000 Fax 02 9224 5011 Email [email protected] www.cso.nsw.gov.au

201102729 0201 1/374958

CROWN SOLICITOR NEW SOUTH WALES

Advice Publication forthwith of annual report of Inspector to the PIC

Contents 1. Summary of advice ......................................................... ..............................•............... 2 2. Background .....•...............................................................................•............................. 2 3. Advice sought .............................. ................................................................................. 3 4. Advice as to question 1 ................................................................................................ 4 5. Advice as to question 2 . ..•.........................................•...................•........•..................... 7 6. Advice as to question 3 . ............................................................................................... 8

Prepared for: LGAOB7 Parliament of NSW

Date: Client ref:

CSO ref:

26 September 2011 Russell Grove and Lynn Lovelock

201102729 TOB I V Knight

© State of New South Wales (Crown Soficifor's Office) 201102729 Advice 1 02011/372004

CROWN SOLICITOR'S OFFICE NEW SOUTH WALES 2

1, Summary of advice

1 . 1 I n my opinion, it was open to the Presiding Officers to decide not to make public the

annual report of the Inspector of the Police Integrity Commission ("the Commission")

on the basis that they were aware of the possibility that the annual report contained

information ("the complaint reports") the inclusion of which was unlawful.

1 .2 The Presiding Officers were not expected, in exercising their discretion under s.

103(3) of the Police Integrity Commission Act 1996 ("the PIC Acr'), to form a view as

to the lawfulness or otherwise of the inclusion of the "complaint reports" as schedules

to the Inspector's annual report, prior to either making the Inspector's report public or

tabling on 1 1 October 201 1 . It was sufficient that unlawfulness'was a possibility.

1 .3 It would be appropriate for the Presiding Officers to take the course of action

proposed in question 2 in your instructions. I note there may also be an issue as to

whether the House should decide to publish the special report of the Commission,

having regard to the terms of s. 98 of the PIC Act.

1 .4 A recommendation pursuant to s. 102(2) of the PIC Act that a report be made public

"forthwith" is, I consider, a recommendation that the report be made public as soon as

can reasonably be expected, having regard to the fact that the Presiding Officer

needs to make a decision in the exercise of the discretion and has to arrange

publication where a decision is made to make it public.

1 .5 Having made a decision not to make the Inspector's annual report public, I do not

consider a Presiding Officer has the discretion to make a different decision at some

stage before the next Sitting day, or at least the expiration of 1 5 sitting days in which

time the report must be tabled.

1 .6 Please note this is a summary of the central issues and conclusions in my advice.

Other relevant or significant matters m,ay be contained in the advice, which should be

read in full.

2. Background

2.1 By email sent on 21 September 201 1 you advise:

"On Friday 1 6 September 201 1 the Executive Assistant to the Inspector of the Police Integrity Commission (the Inspector) attended by prior appointment upon the Speaker to present the Inspector's annual report for the year ended 30 June 201 1 . The report was received by the Speaker, and by a senior officer of the Legislative Council on behalf of the President, who was not available due to the Sitting of the Council at that time.

201102729 Advice 102011 1372004

CROWN SOLICITOR'S OFFICE NEW SOUTH WALES

The Inspector's annual report includes as schedules three reports, two upholding complaints, each of which are described as reports pursuant to section 89(1 )(b) of the Po/ice Integrity Commission Act 1996 (the Act).

The Inspector's covering letter (see copy attached) included a recommendation that the report be made public forthwith. We had already received correspondence from the Acting Commissioner of the Police Integrity Commission (the Commission) concerning the Commission's intention to shortly present a report to be read in conjunction with the Inspector's report prior to a decision being made about the making public of the Inspector's report (see copy attached). In view of the Commission's correspondence, the Speaker exercised her discretion to not make the Inspector's report public forthwith. Later that day the President concurred in that decision. The Inspector's report has therefore not yet been made public or tabled in either House.

On Monday 19 September 2011 correspondence was received from the Inspector expressing concern that his recommendation for his annual report to be made public forthwith had not been agreed to and requesting that his recommendation be reconsidered (see copy attached).

Also on Monday 19 September 2001 officers of the Commission attended upon the President by appointment to present a Special Report under section 98 of the Police Integrity Commission Act 1996 'Regarding Publication of Complaint reports by the Inspector of the Police Integrity Commission' (see copy of tabling letter attached). The report was received by the President and the Clerk of the Legislative Assembly, on behalf of the Speaker.

The Presiding Officers have now written to the Inspector stating that they are seeking legal advice on these matters and will further consider the recommendation to make public his report once that legal advice has been received.

We note that, under section 103 of the Act, a report furnished to the Presiding Officer of a House of Parliament is to be laid before that House within 15 sitting days. Both Houses are next due to sit on Tuesday 11 October 2001.

There is clearly a dispute between the Inspector and the Commission as to the powers of the inspector to publish 'complaint reports', including by way of presentation of reports to the Parliament. We note that this matter has been the subject of previous recommendations by the Parliamentary Joint Committee and advice from your office (ref 200900175 T8 Ellen Knoblanche )."

3. Advice sought

3

3.1 In the context of such a dispute, my advice is sought as to the options available to the

Presiding Officers in dealing with the annual report received from the Inspector

including the schedules, "inclusion of which appears to be unlawful in the view of the

Commission". Specific matters on which advice is sought include:

201102729 Advice 1 D2011/372004


" 1 . To what extent should the Presiding Officers be expected to form a view as to the lawfulness or otherwise of the inclusion of the 'complaint reports' as schedules to the Inspector's annual report, prior to either making the Inspector's report public or tabling on 11 October 2011?

2. Would it be appropriate for the Presiding Officers to table the Inspector's annual report including the schedules, together with the Commission's Special Report and the associated correspondence on 1 1 October 2011 , with a view to a motion being moved upon tabling for the reports and correspondence to be made available to members only. until such time as the powers of the Inspector concerning 'complaint reports' are clarified. (Perhaps a motion could be moved in each House to refer the reports to the Parliamentary Joint Committee for inquiry and report.)

3. What is the meaning of 'forthwith' under section 1 03(2) of the Act? Having declined to make the Inspector's report public forthwith on 16 September, do the Presiding Officers have the discretion to form a different view at some stage before the next sitting day, or at least the expiration of 1 5 sitting days in which time the report must be tabled?"

4. Advice as to question 1

4

4.1 Part 8 of the PIC Act deals with reports to Parliament. Division 2 deals with reports

by the Inspector, including, in s. 1 02, annual reports. Division 3 deals with reports

generally. Section 1 03, the only section in Division 3, provides:

"103 Provisions relating to reports

(cf ICAC Act s 78)

(1) A copy of a report furnished to the Presiding Officer of a House of Parliament is to be laid before that House within 1 5 sitting days of that House after it is received by the Presiding Officer.

(2) In the case of a report of the Commission, the Commission may include in it a recommendation that the report be made public forthwith. In the case of a report of the Inspector, the Inspector may include in it a recommendation that the report be made public forthwith.

(3) If a report includes a recommendation that the report be made public forthwith, a Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House.

(4) If such a report is made public by a Presiding Officer of a House of Parliament before it is laid before that House, it attracts the same privileges and immunities as if it had been laid before that House.

(5) A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied as regards a report

201102729 Advice 1 02011/372004


purporting to have been made and furnished in accordance with this Act."

5

4.2 Subsections 1 03 (3) and (4) recognise that a Presiding Officer has a discretion as to

whether to make public a report which includes a recommendation that it be made

public forthwith. A Presiding Officer cannot do so in the absence of such a

recommendation. Clearly, s. 103(4) contemplates that in some circumstances a

Presiding Officer may decide not to make such a report public despite a

recommendation to do so forthwith. There is no express guidance as to the

circumstances in which a Presiding Officer may decide not to make such a report

public.

4.3 When exercising the discretion conferred by s. 1 03(3), s. 1 03(5) makes clear, at least,

that a Presiding Officer need not inquire whether all or any conditions precedent have

been satisfied as regards a report purporting to have been made and furnished in

accordance with the PIC Act. The reference to "all or any conditions precedent" must

be taken to have been used deliberately. Presumably, such conditions precedent are

conditions required by the PIC Act to be satisfied in order for a report to be able to be

made and to be furnished and not conditions in relation to the report itself which must

be satisfied. If the latter had been intended it would have been an easy matter to

provide a Presiding Officer need not inquire into whether a report has been made and

furnished in accordance with the PIC Act. In the case of a particular type of report

there may, of course, be no conditions precedent to its making and furnishing. In the

case of the Inspector's annual report I doubt it can be argued that a condition

precedent is that the report be "prepared" (ie made) within a period of 4 months after

30 June, as required by s. 102. That is more a time limit in which it is expected the

report will be made than a condition precedent to be satisfied in order to be able to

make the report. It would be odd to say that the requirement in s. 102, that the

annual report itself must be on the Inspector's operations during the year, is a

condition precedent which must be satisfied in order to be able to make the report. In

my opinion, s. 103(5) does not provide that a Presiding Officer need not make

inquiries as to whether the inclusion of content in a report is contrary to statute. I

note, in any event, that s.1 03(5) does not, of course, preclude any inquiries; it only

provides for inquiries which a Presiding Officer need not make.

4.4 It seems to me that where a report includes a recommendation that it be made public

forthwith, a Presiding Officer is charged with the task of deciding whether the report

should be made public. Where it is apparent to a Presiding Officer that there is a

possibility that the report includes information which is precluded by statute, I

consider it is open to the Presiding Officer to decide the report should not be made

public. As a consequence the House will decide whether it should be published when

the report is laid before the House. I note that the Inspector did not state in the

recommendation the reason he recommended the annual report should be made

201102729 Advice 1 D2011/372004


public forthwith. In his letter of 19 September 2011 he says only that there was a

public interest in the report being made public forthwith.

4.5 While the Inspector is not subject to the Commission in any respect (s. 89(3», the

Acting PIC Commissioner in his letter of 14 September informed the Clerk that the

Inspector had advised him "he would include in his annual report a separate report by

him into a complaint against the Commission by a former Inspector Timothy O'Neill"

and that, because of "concerns regarding the contents and manner of publication of

complaint reports by the Inspector", the Commission would furnish a special report to

Presiding Officers pursuant to s. 98 of the PIC Act, which the Acting Commissioner

wanted read in conjunction with the Inspector's annual report prior to a decision being

made by the Parliament as to whether the Inspector's annual report should be made

public. The Inspector furnished his annual report on 16 September and each of the

Presiding Officers decided that day not to make it public. The Commission furnished

its special report on 19 September. That report did not contain a recommendation

that it be made public forthwith.

4.6 I have not seen the Commission's special report and so do not know the legal basis

for the concerns referred to in the letter of 14 September regarding "the content and

manner of publication of complaint reports". Presumably, because of the reference to

the manner of publication of complaint reports there was a concern, at least, that

complaint reports should not be published by way of inclusion in the annual report. In

your instructions you say the annual report' (which I have not seen) includes as

schedules three reports, two upholding complaints, each of which is described as

reports pursuant to s. 89(1)(b). You also say "inclusion of the schedules in the report

appears to be unlawful in the view of the Commission".

4.7 Section 102 does not specify what is to be included in the Inspector's annual report,

unlike s. 99(2) in the case of the Commission's annual report. Section 99(2) indicates

the operations of the Commission during the year are not intended to extend to

details in relation to particular complaints. That is not surprising as s. 96 provides

expressly for reports by the Commission to the Presiding Officers in relation to

matters investigated or as to which the Commission has conducted a public hearing.

Section 99(2) might suggest the Inspector's annual report is also not intended to

report on complaint matters. Reports by the Inspector in relation to complaints are

also dealt with expressly in a separate section (but only so as to authorize reports

which "deal with" the complaint - as to which, see my discussion of s. 89(1)(b) in [4.8]

following). On balance, if, as seems the case, the complaint reports are part of the

Inspector's annual report, I consider that is contrary to s. 102.

4.a It could also be, but I do not know, that the Commission was concerned the Inspector

has no power to make any complaint report regardless of its form, including pursuant

to s. a9( 1 )(b). to the Presiding Officers. In my advice of 26 February 2009, which

201102729 Advice 1 D2011/372004


the Presiding Officers had, I considered it was unlikely that a report by the Inspector

to the Presiding Officers in relation to a particular complaint would ever be a report

which "deals with" a complaint so as to be authorised by s. 89(1)(b) of the PIC Act.

That was on the basis to "deal with" a complaint by reports was about making reports

to relevant persons for the purpose of resolving the complaint, not about making

reports to the Presiding Officers containing information about a complaint and what

has occurred in relation to it. No other provision appeared to authorize complaint

reports to the Presiding Officers. I remain of that view for the same reasons.

4.9 Given that the Presiding Officers were aware of the possibility that the Inspector's

annual report may contain information in relation to particular complaints the inclusion

of which was unlawfUl, I consider it was open to each of them to decide not to make

the annual report public. I do not consider that the Presiding Officers were expected

to form a view as to whether the annual report did contain information the inclusion of

which was unlawful before deciding not to make it public and having it laid before the

House. It was sufficient, in my opinion, that there was a possibility that it did with the

result the information would be made public if the report were to be made public.

Presumably, further communication with the Inspector was not likely to have removed

that possibility. In such circumstances, I consider the expectation is that any

publication of the report should follow consideration by the House when the report is

laid before the House.

4. 1 0 It may be, but I do not know, that the Commission also had other concerns in relation

to the complaint reports. Reference was made to concerns regarding the "contents"

of complaint reports. I doubt that disputation by the Commission of factual matters in

the Inspector's annual report would be a sufficient basis for a Presiding Officer to

decide not to make the report public. Other matters could be sufficient. For example,

if a Presiding Officer is made aware it contains information the publication of which

could have serious consequences, such as a threat to human life. It might also be

sufficient if a Presiding Officer was made aware that it contains material which if

published would bear upon proceedings which are sub judice. Having regard to [4.9]

it is not necessary for present purposes that I try to identify every circumstance which

might be a basis for a Presiding Officer to decide not to make a report public in

accordance with a recommendation.

5. Advice as to question 2.

5.1 In my opinion, it would be appropriate for the Presiding Officers to table the

Inspector's annual report including the schedules, together with the Commission's

special report and the associated correspondence, on 1 1 October, with a view to a

motion being moved on tabling for the reports and correspondence to be made

available to members only, until such time as the powers of the Inspector concerning

201102729 Advice 1 D2011/372004


"complaint reports" are clarified. Presumably, a House could consider it appropriate

to refer the reports to the Parliamentary Joint Committee for inquiry and report.

5.2 Members would, I assume, need to have access to the reports in order to deal with

any motions in relation to them.

5.3 It seems to me, however, that there would also be an issue for a House in relation to

whether the special report of the Commission should be made public. That issue is

whether it is a report "on any administrative or general policy matter relating to the

functions of the Commission", as required by s. 98. To the extent that it purports to

report on the lawfulness of the Inspector's annual report by reason that it includes

complaint reports, I have some doubts as to whether the matter of such lawfulness is

an "administrative or general policy" matter relating to the functions of the

Commission. Rather, that seems to be a legal matter relating to the functions of the

Inspector. The fact that the matter may have some connection with or consequences

for the Commission does not necessarily bring it within s. 98 of the PIC Act. A House

may consider it needs to take legal advice on that issue.

6. Advice as to question 3.

6.1 A Presiding Officer may make public a report which includes a recommendation that

the report be made public "forthwith" (s. 1 03(3)). Section 1 03 does not expressly

state when a Presiding Officer may make it public.

6.2 Presumably, having regard to the words of the recommendation, the intention is that a

decision by a Presiding Officer to make a report public is to have the effect that the

report is made public "forthwith".

6.3 The Macquarie Dictionary gives to "forthwith" the primary meaning "immediately; at

once; without delay". Having regard to the context, I do not consider that can be the

intended meaning. Given that a Presiding Officer has a discretion to exercise on

receipt of such a recommendation, it cannot have been intended that the report be

made public immediately upon receipt of the recommendation. In recommending that

a report be made public "forthwith" I consider the Inspector is to be taken to

recommend that the report be made public "as soon as can reasonably be expected",

the second meaning given to "forthwith" by the Macquarie Dictionary.

6.4 Having regard to the nature of the discretionary power conferred on a Presiding

Officer by s. 1 03(3), I do not think that a Presiding Officer who has decided not to

make a report public is able to make a different decision at any time before the report

is in fact laid before the House. The purpose of the power is to enable a report to be

published "forthwith" on receipt of a recommendation to do so, not simply to make it

public at any time prior to it being laid before the house. Presumably, there is

201 1 02729 Advice 1 D2011/372004


something about such a report which the Inspector considered warranted it being

made public "forthwith" and not at some other time before being laid before the

House. If I am correct and "forthwith" means "as soon as can reasonably be

expected", the purpose is to enable the report to be published as soon as the

Presiding Officer can reasonably be expected to make a decision as to publication

and arrange for the publication of the report. That time does not extend to any

remaking of the decision up until such time as the report is in fact laid before the

House. Where a decision has been made, it seems to me that the opportunity to

thereafter make the report public "forthwith" pursuant to another decision has passed.

I do not consider that the power in s. 103(3) is a power of the type which s. 48( 1 ) of

the Interpretation Act permits to be exercised from time to time as occasion requires.

201102729 Advice 1 D2011/372004

of 1

RlIissell Grove - Emailmg: Crown Solicitor's advke

From: <Carolyn_ [email protected]> To: Date:

<[email protected]>, <[email protected]> 26109/201 1 4:36 PM

SlIibject: Emailing: Crown Solicitor's advice

Dear Mr Grove & Ms Lovelock, , ;�i!j:�t��·:·�;·��gt.1;):�� " � � � � '-' f" ' "r ); ; \ ('7 ;., \.. � i"-' t J· ! - i-

I refer to your instructions dated 21 September 201 1 , ' : :;,,/.' _ .

. -.z f .<��/.c:: '� -:_�n rO"-' o: .�. e:..f-\J�

I now enclose advice in relation to the matter. Please do not hesitate to contacfi�n.iqht (9�35238) or myself should you have any further inquiries.

Regards,

Carol

The message is ready to be sent with the following file or link attachments: 201 1 02729 Itr.pdf 201 1 02729 Advice 1 ,pdf

Note: To protect against computer viruses,' e-mail programs may prevent sending or receiving certain types of

file attachments. Check your e-mail security settings to determine how attachments are handled,

Carol Bernhardt

Personal Assistant to the Crown Solicitor/ Administrative Assistant Government Law

NSW CrowD SolicitOl" S Office I Level S, 60-70 Elizabeth Street, Sydney NSW 2000 GPO Box 25 SYDNEY 2001 I DX 1 9 SYDNEY I www.cso.nsw.gov.au Email: [email protected] I Tel: (02) 9224 5240 I Fax: (02) 9224 5244

Department of Attomey General and Justice - Promoting a Just and Safe Society Visit us at www.lawlink.nsw.gov.au

Please consider Oill" environment before printing tillS email.

This email and any attaclm1ents may be confidential and contain privileged information. If you are not the intended recipient you must not use, disclose, copy or distribute this COlllil1U1llcation. If you have received tIlls message in error please delete and notifY the sender. When communicating by email you consent to the monitoring and recording of that correspondence.

file:/!D:\Temp\XPGrp Wise\4E80AAOADOMCORPPOCORPI 00 1 6A6435 1278E71 \.. . 27/091201 1

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New SOU'll-l WALES

Inspector o/the


Our Ref: CR-02 AI

27 September 20 1 1





I) I acknowledge receipt of your letter dated 1 9 September 201 1 in respect of this matter.

2) I note from your letter the statement that on that same date you received a "report from the Police Integrity Commission regarding 'Publication of Complaint Reports by the Inspector ofthe Police Integrity Commission'."

3) My Annual Report was presented to Parliament on Friday 16 September 20 1 1 in the circumstances summarised in my letter dated 1 9 September 201 1 .

4) Your letter does not seek to add to or amend that summary, from which I would infer that that summary is accepted as adequate and accurate.

5) I have not been made aware by the PIC of the contents of the repOli to which you refer. Thus I have never been provided with an oppOltunity of responding to it. Nor does it appear that I will, at any stage, be provided with snch an opportunity.

6) That situation is in marked contrast to the fact that I gave the PIC ample oppOltunity to comment on Complaint Reports and other material contained

J 1 4 CR·02AI



T: (02) 9232-3350 I F: (02) 8243-9471 I E: [email protected]

in my Annual Report critical of certain practices and procedures of the PIC by providing them well in advance with Drafts of such Reports and other material.

7) At the time I presented my Annual Report, I was completely unaware that, apparently, it had been decided in advance of the presentation of my Annual Report, to reject my anticipated recommendation that the Annual RepOli be made public forthwith pursuant to Section 103(2) of the Police Integrity Commission Act.

8) The appointment to present my Annual Report at the office of Madam Speaker on that date had been the subject of an arrangement between Parliamentary officers and my office which had been agreed upon some days before the presentation of that Report on 16 September 201 1 .

9) Despite tile fact that, accordingly, it would have been anticipated that my Annual Report would be presented on that date, I was given no prior notice of that decision to reject my recommendation, or when, by whom, or on what grounds that decision was made.

1 0) It is the fact that that decision was apparently made in advance of the presentation of my Annual Report, and that I was given no prior notice of that decision, and thus denied tile opportunity to be heard before that decision was made, that lies at ilie heart of my objection to the situation with which I am thus presented.

1 1 ) Before proceeding fiuiher, I should like to make it clear that whether or not the PIC presents a repOli to Parliament, such as apparently has been presented, is entirely a matter for the PIC.

1 2) What I am objecting to, and deeply disturbed about, is what appears to be an attempt by the PIC to interfere with or influence, particularly in the maImer I have indicated above, the steps by which the Inspector's RepOlis are presented by ilie Inspector to Parliament, solely on the basis that the PIC does not accept the criticisms of the PIC's practices and procedures as identified in the Inspector's RepOli.

13) That the PIC can interfere with and influence the presentation of the Inspector's RepOlis in iliis way, and postpone the publication thereof for an unspecified time, contrary to the recommendation of the Inspector made pursuant to the statutory provision in question, seems to me to undermine the independent role of the Inspector and the force of the statutory provision (S. 89(3)) that ilie Inspector is not subject to ilie Commission in any respect.

14) Since writing my letter to you referred to above, I have been alerted, as a result of the circumstances referred to below, to some of the background facts which apparently resulted in the decision to reject in advance, and wiiliout waiting for my Annual Report to be presented, my then anticipated recommendation that that Report be made public forthwith.

2 / 4 CR-02 AI



T: (02) 9232-3350 1 F: (02) 8243-9471 1 E: [email protected]

15) On Wednesday, 2 1 September 201 1 , under cover of an email dated 1 9 September 20 I I , the Acting PIC Commissioner provided me with copies of certain documents which I regard as directly relevant to this matter, including, in particular, a copy of his letter dated 14 September 20 I I addressed to Ms Lovelock and Mr Grove, in their official capacities as Clerks of the Parliaments and of the Legislative Assembly, respectively (copy herewith).

1 6) That email also informed me that on 1 9 September 201 1 the Commission presented a Special Report to the Parliament. No indication was given as to the subject matter of the Special Report.

17) I was not previously aware of the existence of those documents provided by the Acting Commissioner or the nature of their contents. In palticular, I was not aware that the Acting Commissioner had written that letter to Ms Lovelock and Mr Grove.

1 8) It seems to me to be a matter for further concem that it appears that had I not been provided with that letter by the Acting Commissioner, the fact of its existence would not othelwise have been disclosed to me.

1 9) As that letter makes clear, the PIC had previously been advised by me that I intended to include in my Annual Report my Report dealing with the complaints made against the PIC by fonner NSW Police Inspector O'Neill arising out of what was published conceming him in the PIC's Whistler Report.

20) However, there is no reference in the Acting Commissioner's letter to the fact that I had provided him with a Draft of the O'Neill Report some six months prior to 16 September 201 I . It was thus open to the PIC to make a repOit to Parliament arising out of the content ofthe O'Neill Report at any time during that six month period, in the event the PIC decided there were sufficient grounds to make such a report.

2 I ) As the Acting Commissioner's letter also makes clear he had been informed by the Director General of the Depaltment of Premier and Cabinet, that an officer fi'om that Department, apparently on the latter's instructions, had, prior to 1 4 September 201 I , approached Ms Lovelock and Mr Grove about the anticipated presentation of the Inspector's Annual Report, the fact that it would contain within it the O'Neill Repolt, the fact that the PIC was desirous of bringing about the situation in which it would present a Special Report "to be read in conjunction with the Inspector's Annual Report", and had "spoken informally", with those Officers "in this regal·d."

22) In the light of that letter I would infer that the receipt of that letter by the recipients, and the prior approach to them by the Departmental Officer, had a direct bearing on the decision made prior to 16 September 201 I to reject my allticipated recommendation in respect of my Al111Ual Report.

3 / 4 CR·02 AI




23) Because I was thus excluded from this whole process, I was denied the opportunity of being heard in relation to, or being made aware of, those events and that decision.

24) Your letter infOlms me that you have now sought the advice of the Crown Solicitor "in view of the content of' the PIC's report, and "also in view of the matters raised" in my letter to you referred to above.

25) However, there is no indication of precisely what information you have provided to the Crown Solicitor or of the precise nature of the advice sought.

26) In my view each of the matters I have raised or adverted to in this letter is relevant to a proper consideration of why and how the cun·ent situation has arisen, what issues have accordingly arisen for examination and what conclusions and consequences should properly follow from a full and detailed examination of each ofthose matters.

27) It seems to me that central to the issues raised is the issue of whether, in the particular circumstances, the discretion implicit in Section 1 03(3) could have been properly, fairly and relevantly exercised by the Presiding Officer who purported to exercise that discretion.

28) I have no objection to a copy of this letter being made available to the Crown Solicitor, or the Acting Commissioner of the PIC.

Yours sincerely,

The Hon P J Moss, QC Inspector ofthe Police Integrity Commission

Ene - Letterfi·om PIC dated 14 September 2011

4 /4



T: (02) 9232-3350 I F: (02) 8243-9471 1 E: [email protected]

A B N 22 8 7 0 7 4 5 3 4 0

14 September 201 1

Ms Lynn Lovelock Clerk of the Parliaf]1ents and Clerk of the Legislative Council NSW Legislative Council Parliament House NSW 2000

Dear MS Lovelock and Mr Grove


Re Inspector of the Police Integrity Commission, Annual Report for 2010-2011

On 26 August 201 1 I was advised by letter from The Hon. P J Moss QC, Inspector of the Police Inte9r�y Commission ("the Inspector"), that he intended to present his Annual Report to Parliament in the next couple of weeks and that .he would include in his Annual Report a separate report by him into a complaint against the Commission by former Inspector Timothy O'Neill.

Because of concerns regarding the content and manner of publication of cornplaint reports by the Inspector I approached the Department of Premier and Cabinet about the possibility of a Report being presented to Parliament by this Commission, to be read in conjunction with the Inspector's Annual Report, prior to a decision being made by the P<lrli<lment as to whether the Inspector's Annual Report should be made public.

I have been infonmed by Mr Eccles, Director General Department of Premier and Cabinet, that it wOlJld be appropriate for me to report to Parflament by way of Special Report pursuant to s98 of the Police Integrity Comri1ission Act 1996 and furthermore that his Department has spoken infonmally to you in this regard.

Accordingly the purpose of this letter is to confirm that an officer of this Commission will shortly be contacting your offices for the purpose of seeking an appointment to present a Special Report to you, to be considered concurrently with the Annual Report of the Inspector.

The Hon Jerrold Cripps QC Acting Commissioner

L E V E L 3 1 1 1 E L I Z A B E T H S T R E E T G P O 8 0 X 3 8 8 0 S Y D N E Y N S W 2 0 0 1 A U S T R A L I A

T E l E P H O N E ( 0 2 ) 9 3 2 1 6 7 0 0 F A C S I M i l E "(02) 9 3 2 1 6 7 9 9 F R E E C A l L 1 8 0 0 6 5 7 0 7 9 w w w . p i c . nsw.gov.au

N..CW sounl WALES

Inspector of the


Our Ref: CR -02 AK

28 September 201 1





1 ) I refer to my letter dated 27 September 201 1 in respect of this matter.

2) My attention has been drawn to the repOlts in today's Daily Telegraph concerning relevant matters to do with the presentation of my 201 1 Atmual Report to Parliament.

3) In view of that development it seems to me that I should seek from you urgent confirmation as to whether or not you intend to forward my letter dated 27 September 201 1 to the Crown Solicitor so that the matters referred to in that letter can be covered in the advice you have sought from the Crown Solicitor.

4) In the event that you decide not to forward that letter to the Crown Solicitor and advise me of that decision, I would then feel bound to seek some independent legal advice myself as to the matters referred to in my letter.

1 12


GPO Box 5215, Syciney NSW 2001


5) Accordingly, would you please advise me as a matter of urgency whether you intend to forward my letter as requested by me to the Crown Solicitor.

6) I should be grateful if you would email me your response today.

Yours sincerely,


2 /2



T: (02) 9232,3350 I F: (02) 8243,9471 I E: [email protected]

CR·02AK

From: To: Date: Subject: cc:

Luke Sikora Russell Grove; Shelley Hancock 28/09/2011 12:54 pm Fwd : Letter from the Inspector

Manuela Sudic

. - �

» > "PIC_Executive PIC_Executive" <[email protected]> 9/28/2011 12:51 pm » > Dear Luke and William

Would you kindly forward the attached letter to the President and the Speaker respectively?

The original will be mailed today.

Thank you for your assistance.

Kind regards Jane

Jane A Cecilia Executive Assistant to Inspector-Police Integrity Commission NSW Department of Premier and Cabinet GPO Box 5215, Sydney NSW 2001 T: (02) 9232 3350 I F: (02) 8243 9471 I E: [email protected]

.&.u. �

." ., .. , ..... ,., .,,"

NEW SOl.f11-l WALES

Inspector o/the

,;,:-,�:, . .: :�: ,.�->.:.>:� .. ;:" .

_ __ _ " .. _:: ___ -r


Our Ref: CR-02 AL

5 October 201 1

The Hon Don Harwin MLC President of the Legislative Council NSW Parliament House Macquarie Street SYDNEY NSW 2000


Re: PIC Inspector's 2011 Annnal Report

The Hon Shelley Hancock MP Speaker, Legislative Assembly NSW Parliament House Macquarie Street SYDNEY NSW 2000

1) I refer to my letter to you dated 19 September 201 1 , your response thereto dated the same date, and my further letters to you dated 27 and 28 September 201 1 , respectively.

2) It is not my wish to prolong this correspondence fmther, but, regrettably, I think it is necessary to do so for the following reasons.

3) . First, in my letter dated 27 September 201 1 , I raised a number of significant issues, which, on the limited infol111ation available to me, may be involved in the events to which my correspondence referred. In my letter dated 28 September 201 1 I requested that you forward the letter of 27 September to the Crown Solicitor so that those issues would be covered in the advice you had apparently sought from the latter concerning the circumstances surrounding the presentation of my A1mual RepOlt. I also requested that you advise me that same day by email as to whether you would accede to that request.

4) To date, I have not had a response to either of my letters dated 27 and 28 September 201 1 .

1 / 3 CR-02 AL '



T: (02) 9232-3350 [ F: (02) 8243-9471 [ E: [email protected]

5) According to newspaper reports I have seen, which may or may not be accurate, you have in fact obtained advice from the Crown Solicitor, and, further, my Report is to be tabled on I I October 201 1 .

6) In my letter of 27 September, referred to above, I refen'ed to copies of documents provided to me by the Acting PIC Commissioner, which included his letter to the Clerks, a copy of which I provided to you with my letter. Those documents also included his letter to the Director General, Department of Premier and Cabinet dated 2 September 201 1 , and the latter's response dated 5 September 201 1 .

7) I enclose herewith a copy of the Acting Commissioner's letter to the Director General and the latter's response to the Acting Commissioner.

8) For completeness I also enclose copies of correspondence between myself and the Director General comprising my letters dated 23 September, the Director General's response dated 27 September, and my further letter dated 30 September 201 1 .

9) In order that the significance of the events, to which all of this correspondence refers, events of which I was completely unaware at the time, which apparently took place in relation to tlle anticipated presentation of my Annual Report, might be assessed, the following information seems to me to be necessary:

i) what was said by the Departmental officer, apparently on the instructions of the Director General, to the Clerk of the Legislative Assembly, when that officer spoke "infonnally" to the Clerk at a time prior to 5 September concerning the then anticipated presentation of my Annual RepOli;

ii) was the information in (i) conveyed by the Clerk to the Speaker, and, if so, when;

iii) what infonnation did the Speaker take into account in purpoliing to exercise the discretion, inherent in Section 1 03(3) of the Police Integrity Commission Act, not to accede to my recommendation that my Atmual report be made public fOlihwith; and

iv) on what date did the Speaker purport to exercise that discretion.

1 0) I should be grateful if you would provide me with that information at your earliest convenience.

I I ) So far as the "Special Report" presented by the PIC is concerned, I refer to paragraph 5 of my letter to you dated 27 September, and again bring to your attention the fact that I have not been made aware by the PIC of the contents of that "Special Report", and thus have had no opportunity to respond to the material in that "Special Report", which, presumably, will contain matter critical of my previous Complaint Reports upholding complaints against the Commission, including the O'Neill RepOli which forms part of my Annual Report.

2 / 3 CR-02 AL

Inspector of the Police Integrity Conunission


T: (02) 9232-3350 [ F: (02) 8243-9471 [ E: [email protected]

12) In my opinion, this is one of the undesirable consequences of the decision, apparently made in tile circumstances referred to above, not to accede to my recommendation in respect of my Annual Report, a decision taken without reference to myself, and tllUS denying me the opportunity to be heard in relation to the matter before that decision was made.

13) I should again make it clear that I have no objection to your providing a copy of this letter to the Acting Commissioner.

Yours sincerely,


Encl-1) 2)

Con'espondence (2) between PIC and DPC dated 2 & 5 September 2011 Ct;Jrrespondence (3) between IPIC and DPC dated 23, 27 & 30 September 2011

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CR-02 AL

2 September 2011

Mr Chris Eccles Director General Department Premier and Cabinet Governor Macquarie Tower Level 39, 1 Farrer Place SYDNEY NSW 2000

Dear Mr Eccles

ABN 2 2 B 7 0 7 4 5 3 4 0

Re: Inspector of the Police Integrity Commission

Our Ref: 24128/1

I refer to our recent discussions in which I raised concerns regarding the Inspector. On 26 August 201 1 the Inspector advised me by letter that he wi.1I in the next few weeks presenl his Annual Report to the NSW Parliament. The Inspector further advised that he intends to attach to that Annual Report a report written by him into a complaint against this Commission . by fonner NSWPF Inspector Mr TImothy O'NEILl. The complaint relates to an investigation and hearing conducted by the Commission in 2004/2005 (Operation Whistler).

Based on the contents of a draft report already provided to the Commission by the Inspector, the final report concerning former Inspector O'NEILL is expected to contain criticisms that, amongst other things, this Commission demonstrated bias towards Mr O'NEILL and denied

. him procedural fairness in the conduct of the Commission's investigation . .

Based on my raading of the draft report and a number of past complaint reports published by . . . -the-lnsp-e-ctor.lrlS- my vtew1hartlftHtfspectorljifs--tnistakertly appiied the doctrines of bias

and procedural fairness in many of his criticisms concerning this Commission. The posting of his reports on his website has in illY view resulted in the publication of opinions which are wrong in law and have caused serious and unwarranted damage to' the reputation of the Commission.

From my observation, attempts by the Commission to point out the Inspector's errors to him have resulted in no modification of his views. In two earlier complaints the Commission obtained ilnd furnished to .the Inspector indepeni;lent .opinions from a Queens Counsel experienced in the work of investigative inquiries (Mr Peter Hastings QC). Those advices confirmed that the actions of the Commission were appropriCjte for the circumstances in each case and complied With the relevant legal obligations applying to investigative Commissions.

I enclose a copy of a letter dated 1 1 March 201 1 which I sent to the Inspector following the' publication of the second of the abovementioned ' reports by the Inspector. In his reply the Inspector did not address the matters identified by me in the letter of 1 1 March 2011 beyond expressing dissatisfaction with what I had done. .

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F R E E C A L l 1 8 00 6 5 7 0 7 9 www.pic.nsw.gov.au

2

In addition to the opinions obtained by the Commission from Mr Hastings QC about certain reports of the Inspector, I am awaiting an opinion from Mr Walker SC concerning the draft report in the matter of O'NEILL. I will make Mr Walker's opinion available to the Parliament.

I recently obtained advice from Mr Walker SC concerning the Inspector's practice of uploading his complaint reports to his website without having presented Ihose reports to Parliament. Mr Walker has advised that the practice is unauthorised .and I enclose a copy of that advice. A co py has also been provided to the Inspector.

.

The Inspector's latest letler to me of 26 August 2011 indicates that he intends atlaching his most recent complaint report to his Annual Report (assuming it will be made public by the Speaker and the President).

I think it appropriate that the mafters I have raised be brought to the atlention of the Speaker and the President so that my concerns can be considered concurrently with the Inspector's Annual Report, As I haye said in broad those concerns ate as set out in rny letter of 1 1 March 201 1 . I have sought the opinions of Mr Walker SC about these 'matlers because, for reasons already made known to you, I am precluded from receiving independent advice from the Crown. As I indicated to you it is my intention to have a report prepared by the Commission for presentation to the Parliament in the hope that regard will be had to it before Parliament authorises publication of the Inspector's Annual Report. I will, of course, make available to the Parliament the opinions of Mr Walker SC that have not yet been received.

I thank you for your assistanCe in this matter and would be grateful if you could facilitate the presentation of the proposed report to the Speaker and the President of the Legislative Assembly and CounCil, respectively.

Yours sincerely

he Han Jerrold Cripps QC Acting Commissioner

enc ..

P O L I C E I N T E G R I T Y C O M M I S S I O N

NSW GOVERNMENT

Premier & Cabinet

The Hon. Jerrold Cripps QC Actin\j Commissioner Police Integrity Commission GPO Box 3880 Sydney NSW 2001

RECEIVED - 6 SEP 2011

POLICE INTEGRITY COMMISSION Dear Commissioner

5 SEP 2011

Thank you for your letter of 2 September 201 1 'conceming the-report that is shortly to be presented to Parliament by the Inspector of the Police Integrity Commission relating to an investigation and hearing conducted by the Commission in 2004/2005 (Operation Whistler).

I note your concems about the criticisms of the Commission that you anticipate will be contained in the Inspector's report, and your view that the report may contain errors and cause unwarranted damage to the reputation of the Commission.

Under section 98 of the Polioeintegrity Commission Aot 1996, the Commission may, at any time, make Ii special report to the Presiding Officer of each House of Parliament on any administrative or general policy matter relating to the functions of the Commission.

It is therefore open to you to present a report to the Parliament responding to the report of the Inspector.

Accordingly, you may wish to liaise with the Clerks' offices with a view to presenting a report to the Parliament concurrently with the Inspector's report to enable the two to be considered together before the Parliament authorises publicatiori.

Given that both the Inspector and the Commission are independent statutory offices that report directly to the Parliament, I consider that a direct approach by you to the Clerks for this purpose would be appropriate. My Department has spoken informally to the Clerks who have confirmed that they are able to facilitate this approach.

Yours sincerely

Director General

Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 • G�O Box 5341, Sydney NSW 2001 Tel: (02) 9228 5555 • F: (02) 9228 5249 • www.dpc.nsw.gov.au

• . .

" f ••• , ... � , .. .... .

NEW SOUTH WAlES

Inspector oithe


Our Ref: CR·03 AG

23 September 201 1

Mr Chris Eccles Director General NSW Department of Premier and Cabinet GPO Box 5341 SYDNEY NSW 2001

Dear Mr Eccles,

Re: Letter from Acting Commissioner Cripps, QC, to the Inspector, dated 19 September 2011

1 ) On Wednesday, 2 1 September 201 1 , under cover of an email dated 1 9 September 201 1 , the Acting PIC Commissioner provided me with a copy of his letter to you dated 2 September 201 1 , a copy of your letter to him dated 5 September 201 1 and a copy of his letter dated 14 September 20 1 1 to the Clerks of the NS W Parliament.

2) That email also informed me that on 1 9 September 201 1 the Commission presented a Special Report to the Parliament. No indication was given as to the subject matter of the Special Report.

3) I was not previously aware that the Acting Commissioner had had private conversations with you "regarding the Inspector" or that he had written that letter to you headed "Re: Inspector of the Police Integrity Commission". Nor was I aware of your letter to him or his letter to the Clerks of the Parliament.

4) Because I was thus excluded from this whole process, I was denied the opportunity to express my views on the claims and opinions critical of the

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T: (02) 9232·3350 I F: (02) 8243-9471 I E: [email protected]

Inspector. and the Inspector's Reports upholding complaints by Police Officers against the PIC, based on the selective material contained in the letter from the Acting Commissioner.

5) I was similarly excluded from being heard in relation to, or being made aware of, the arrangements, referred to below, apparently made between your Department and the Parliamentary Clerks, in advance of the presentation of my Annual Report to Parliament on 1 6 September 20 I I .

6) I do not know to whom you might have shown that letter or with whom you might have discussed its contents, or to what future use that letter might be put.

7) It is disappointing and, I must say, surprising, that you appear to have made no attempt to enquire of me whether I was aware of that approach to yourself by the Acting Commissioner and, in any event, whether I wished to be heard in relation to it.

8) The letter refers to "recent discussions" in which the Acting Commissioner "raised concerns regarding the Inspector." There is no indication in that letter as to what was said in those private discussions "regarding the Inspector". However, from the letter which followed it may be inferred that those discussions included criticisms of the Inspector similar to those contained in that letter.

9) The second paragraph of the Acting Commissioner's letter refers to the fact that I had earlier provided a Draft of the O'Neill Report to the Commission.

1 0) In fact I provided that Draft to the Commission on 9 March 20 I 1 , together . with a covering letter of that date. On the same date I provided a copy of that Draft RepOIt to the Complainant, Mr O'Neill, formerly a NSW Police Inspector.

1 1) At the request of the Acting Commissioner I agreed to defer taking steps to publish that Report on the basis, so I was infol1ned, that the Commission had briefed Counsel in relation to it and that I would be provided with a copy of Counsel's opinion. I advised Mr O'Neill of that arrangement.

12) It follows that that Draft RepOIt had been in the Commission's possession for some six months prior to the presentation of my 20 I 1 Annual RepOIt to the Parliament on 16 September 201 1 .

1 3) The Conunission made no attempt to present a Special RepOIt to Parliament during that six -month period.

1 4) The Complainant, rather than having his complaints dealt with expeditiously by the Inspector, has thus been subjected to a six-month delay solely to suit the convenience of the PIC.

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Inspector oftbe Police Integrity Commission



1 5) The Acting Commissioner's letter refers to my letter dated 26 August 20 1 1 advising him that I intended to include the O'Neill Report in my 201 1 Annual Report. I enclose herewith a copy of that letter . . Despite the passage of more than six months, I have still not been provided with the Counsel's opinion as foreshadowed by the PIC.

1 6) In the fourth paragraph of that letter there is a reference to two legal opinions from Senior Counsel relating to earlier RepOlis by me upholding serious complaints against the PIC. There is, however, no reference to the fact that in each case I wrote to the Commission identifYing what seemed to me significant deficiencies and inadequacies in each of those legal opinions, and pointing out that, accordingly, I was not able to accept the conclusions and opinions expressed in each of those opinions.

1 7) In the fifth paragraph of that letter there is a reference to a letter to myself from the Acting Commissioner dated 1 1 March 201 1 and a copy ofthat letter is said to be enclosed. However, that letter purports to respond to my letter dated 8 March 20 I I to which no reference is made. I therefore enclose a copy of that letter.

1 8) In the seventh paragraph of that letter there is a reference to an advice from Mr Walker SC., a copy of which is said to be enclosed, and to the fact that a copy of that advice was provided to the Inspector. However, by letter to the Acting Commissioner dated 6 September 201 1 , I conveyed my response in respect of to Mr Walker's advice. I enclose herewith a copy of my letter. I have not at this stage received a response to that letter from the Acting Commissioner.

1 9) The gist of the Acting Commissioner's letter refelTed to above, seems to be that the Commission has not accepted the validity of my earlier relevant Reports upholding complaints against the Commission, and takes the same position in relation to the 0 'Neill Report which, as mentioned above, has been in the Commission's possession for some six months, and that the Acting Commissioner "think(s) it appropriate" that his views about the Inspector "be brought to the attention of the Speaker and the President" and, in effect, that he wishes to prevent the publication of the h1spector's Almual Report, because it contains the O'Neill Report, until a Special Report is presented to Parliament by the PIC.

20) With respect, in my view it was quite inappropriate for the Acting Commissioner to have private conversations with you in which he apparently "raised concerns regarding the Inspector", and to write to you about the Inspector in the terms of his letter. Particularly was that so in the absence of any prior notice to the Inspector of his intention to do so.

21) Further, the fact that the Acting Commissioner apparently held those opinions about the Inspector set out in his letter to you provided no justification for such matters to be "brought to the attention of the Speaker and the President" for the purpose of dissuading them in advance to act contrary to the

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Inspector.s anticipated recommendation that, in accordance with Section 1 03(2) of the Police Integrity Commission Act, the Inspector's 201 1 Arumal Report be made public forthwith.

22) The Acting Commissioner's letter refers to his "intention to have a report prepared by the Commission for presentation to Parliament". It is, of course, a matter for the Commission to decide what circumstances justifY it in presenting a Report to Parliament about the Inspector. Apart from the expectation that considerations of fair play and decency would cause the Commission to first bring the subject matter to the Inspector's attention, such a decision is entirely a matter for the Commission.

23) However, it is quite a different matter for the Commission to seek, privately, advice and assistance from yourself with the aim of preventing the publication, until a time suitable to the Commission, and contrary to the Inspector's recommendation referred to above, of material in the Inspector's Annual Report critical of the Commission' s practices and procedures, solely on the basis that the Commission does not accept the Inspector's criticisms and opinions.

24) I think it regrettable that you apparently agreed to render that assistance, as is made clear in your letter to the Commission dated 5 September 20 I I , referred to above. I note, in particular, that you apparently instructed your Department to speak "informally" to the Parliamentary Clerks, and that the latter apparently "confirmed" their readiness to "facilitate" the ends sought to be achieved by the Acting Commissioner.

25) As is also made clear fr0111 the Acting Commissioner's letter to the Clerks dated 1 4 September 201 1 , referred to above, the Acting Commissioner then proceeded to act on your advice and wrote that letter to the Clerks in accordance with your advice, refening to your prior involvement in the matter and your advice t11at your "Department has spoken infOlIDally to [the Clerks 1 in this regard." The final paragraph in that letter appears to assume that the Clerks have already concU1Ted, in advance of the presentation of the Inspector's AIIDual Report, in the arrangement whereby the Commission's foreshadowed Special Report was to be "considered [by Parliament] concurrently with the Annual Report of the Inspector".

26) For completeness, I enclose a copy of my letter addressed to the President and Speaker dated 1 9 September 201 1 which records the events which, according to my Executive Assistant, occuned when my Annual Report was delivered by her on Friday 1 6 September 201 1 to the Speaker's office for presentation to Parliament, the infOlIDation provided to her on that occasion, and my observations on the effect of the Commission's conduct as referred to in that letter. Of course, when I wrote that letter I had not been made aware of the matters revealed in the cOITespondence included with the Acting Commissioner's letter to me received on 2 1 September 20 I I , referred to above.

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27) It will; of course, be obvious that I regard the events referred to above, particularly those disclosed to me by reason of the Acting Commissioner's letter to me, as constituting a serious and unjustified interference in the important function of the Inspector in presenting his Reports to the Parliament free from any interference or restraint by or at the behest of the Police Integrity Commission, the very institution that the Inspector oversees, and in respect of which the legislation (Section 89(3)) provides that "The Inspector is not subject to the Commission in any respect."

28) I therefore request that you cause a copy of this letter, and each of the documents referred to therein, to be laid before the Parliament at an appropriate time, so that the Parliament might, in the light of that material, fonTI its own opinions as to the relevance and significance of the events to which I have drawn attention in this letter.

29) I have no objection to a copy of this letter and the documents referred to therein being made available to the Acting Commissioner.

Yours sincerely,


Encl (4) 1. Letter to PIC, 26 August 2011 (Ref C07-10 BF) 2. Letter to PIC, 8 March 2011 (Ref C03-07 DC) 3. Letter to PIC, 6 September 2011 (Ref C07-10 BG) 4. Letter to President and Speaker, NSW Parliament, 19 September 2011 (Ref CR-02 AH)

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T: (02) 9232-3350 I F: (02) 8243p9471 I E: [email protected]

CR-03 AG

NSW GOVERNI"IEI"T

Premmer & Cab�net

The Hon. Peter Moss QC Inspector of the Police Integrity Commission GPO Box 521 5 Sydney NSW 2001

Dear Inspector

RECEIVED 2 S SEll 2[111

INSPECTOR. PIC

2 7 SEP 2011

I have received your letter of 23 September 201 1 concerning your Annual Report and a special report that has also been presented to Parliament by the Commissioner of the Police Integrity Commission (PIC).

You have raised concerns about a meeting that I had with the Commissioner of PIC.

As you will appreCiate, I speak and meet with heads of agencies to discuss various matters as occasion requires.

Whenever the head of one of the integrity agencies approaches my department indicating a need to meet with me I will of course agree to do so, as I would if you were to request such a meeting.

Given the nature of lhe agencies concemed, it is not uncommon that meetings will be held privately in my office.

It was in such circumstances that I met with the PIC Commissioner. The Commissioner raised a number of matters with me, including a question he had about whether the Department of Premier and Cabinet could arrange for a paper to be presented to the Parliament responding to aspects of a report he WaS expecting you to present to the Parliament

The PIC Commissioner did not explain in detail the nature of his concerns, and nor did I ask about them. Having not seen your report I would not have been in a position to comment and I would not have considered it appropriate to do so even if I had seen it.

I did. however, indicate to the PIC Commissioner that I understood that he COUld .• if he wished, raise his concerns directly with the Parliament through a special report, believing as I did that it may have been inappropriate for this to be done through my department.

Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 ,. GPO Box 5341, Sydney NSW 2001 Tel: (02) 9228 5555 .. F: (02) 9228 5249 '" www.dpc.nsw.gov.au

There followed the exchange of correspondence between the Commissioner and myself which you have seen.

Contrary to the allegation in paragraph 23 of your letter, at no stage did I or anyone in this department, privately or otherwise, render any advice or assistance with the aim of preventing or delaying the publication of your report.

The information I provided to the PIC Commissioner was solely for the purpose of informing him as to how he could, should he wish to do so, arrange for the presentation of a report by him.

Further, and contrary to the statement made in paragraph 5 of your letter, no arrangements were made between my department and the Clerks in relation to the presentation or publication of your Annual Report to Parliament.

Rather, for the purpose of responding to the PIC Commissioner, my department contacted the Clerk of the Legislative Assembly to confirm that the factual information contained in my proposed response (that is, that the Commissioner was able, if he wished, to provide a report to the Parliament at any time, including one that responded to matters that might be raised in a report of the Inspector) was accurate. The Clerk confirmed that it was.

The publication and timing of publication of reports presented to the Parliament by the Inspector and the Commissioner are matters entirely for the Parliament.

In relation to your request that I cause a copy of your letter to be laid before the Parliament, I can only provide the same response that I gave to the Commissioner of PIC when he requested me to cause material to be presented to the Parliament. Given that both the Inspector and the Commission are independent statutory offices that report d irectly to the Parliament, if you wish matters to be brought to the attention of the Parliament then a direct approach by you to the Clerks for that purpose would be appropriate.

Yours sincerely

Director General

NEVI: SOUTH WALES

Inspector of the


Our Ref: CR-03 AH

30 September 201 1

Mr Chris Eccles Director General NSW Department of Premier and Cabinet GPO Box 5341 SYDNEY NSW 2001


Dear Director General,

1) I acknowledge receipt of your letter dated 27 September 201 1 in respect of this matter.

2) I regret that I think it necessary to prolong this con'espondence which I am sure you find as unpleasant as I assure you I do.

3) Your letter reveals yet another fact of which I was not previously aware, namely, the factthat you "met" with the Acting Commissioner. You do not say how many times you met with the Acting Commissioner, or when. However I have noted in my previous letter to you that the Acting Commissioner's letter refers to "discussions" in which the latter "raised concems regarding the Inspector."

4) However, the principal difficulty I have with your letter is the suggestion that the nature of your advice to the Acting Commissioner was confined "solely" to informing him of the availability of Section 98 as enabl ing the Commission at any time to make a special report to Parliament.

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T: (02) 9232-3350 1 P: (02) 8243-9471 1 E: [email protected]

5) With respect, there could be no doubt, in my OpInIOn, that the Acting Commissioner would have been well aware of that provision prior to his contact with yourself.

6) In his letter to you he appears to indicate in the penultimate paragraph a matter apparently raised in your "discussions", namely, that it was his "intention to have a report prepared by the Commission for presentation to the Parliament in the hope that regard will be had to it before Parliament authorises pUblication of the Inspector's Annual Report."

7) Then follows his request that you "facilitate the presentation of the proposed report to the Speaker and·the President . . . "

8) The proposed PIC report could have been presented by the PIC, as it apparently was on 19 September 201 1 , by the PIC delivering the same to the Speaker's office, without any assistance being sought from or rendered by yon. That was a process which the Commission had often followed on previons occasions in presenting numerons reports to Parliament.

9) However, necessarily implicit in bringing to fruition the Acting Commissioner' s "intention" as expressed in the passage qnoted above, was that steps be taken to ensure that the Inspector's Annual Report was not made public forthwith on presentation in accordance with the then anticipated recommendation from the Inspector in that regard. (The Acting Commissioner's letter refers to the Inspector's assumption as being that "it will be made public by the Speaker and the President.") Otherwise the Acting Commissioner's stated intention that regard would be had to it "before" the publication of the Inspector's Annual Report was authorised could not have been "facilitated".

1 0) That this was the understanding between yourself and the Acting Commissioner seems to be clear from yonr letter to the latter.

1 1) In that letter you suggest to the Acting Commissioner that he "may wish to liaise with the Clerks' offices" "to enable the two to be considered together before the Parliament authorises publication." Once again necessarily implicit in that suggestion was that the Inspector's then anticipated recommendation should not be acceded to otherwise the two would not be considered together as you were suggesting.

1 2) You then advised that "a direct approach to the Clerks for this purpose would be appropriate." And that your Department had "spoken infom1ally to the Clerks who have confmned that they are able to facilitate this approach."

1 3) Although you do not specify when that approach was made and when confirmation of the proposal took place it is obvious that those events occurred on or before the date of your letter of 5 September 201 1 , some 1 1 days prior to the presentation of my Annual Report.

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T: (02) 9232-3350 I F: (02) 8243-9471 1 E: [email protected]

14) Thus your advice as it appears from your own letter to the Acting Commissioner supports the effect of it as described in paragraph 23 of my earlier letter.

1 5) Presumably you were not present and did not hear what your officer on your instructions said to the Clerk of the Legislative Assembly (I note your letter specifies this was the Clerk to whom the approach was made).

1 6) I assume therefore that you have obtained a statement from your officer as to what that officer said to the Clerk of the Legislative Assembly. However this information is not conveyed or referred to in your letter.

17) Once again, I should make it clear that I have no objection to a copy of this letter being provided to the Acting Commissioner.

Yours sincerely,


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CR-03 AH

• .. . " .... . ... � .. ... .. NEW SOUTH WALES

Inspector of the

19Jff:!��\ {( ? OCT 2011 )) U I

'�?:c�tf:,�;;:'�dr�:!c:o�fJ�/ Police Integrity Commission

Our Ref: CR-02 AM

7 October 20 I I

The Hon Don Hru-win MLC President of the Legislative Council NSW Parliament House Macquari e Street SYDNEY NSW 2000



The HOil Shelley Hancock MP Speaker, Legislative Assembly NSW Parliament House Macquarie Street SYDNEY NSW 2000

I) I refer to my letters to you dated 1 9 September 201 1 , your response thereto dated the same date and my fmiher letters to you dated 27 ruld 28 September 201 1 and 5 October 20 I I .

2) I note that I have not received any reply or other communication about my correspondence to you since 1 9 September 20 I I .

3) I note fi'0111 your letter to me dated 1 9 September that on that date you received a "repOli from the Police Integrity Commission regarding 'Publication of Complaint RepOlis by the Inspector of the Police Integrity Commission" (Special Report). As you have been infol111ed by me, I have not been made aware by the Police Integrity Commission (PIC) of the contents of the report which you received from PIC.

4) In my letter to you dated 5 October 201 1 , paragraph 5 , I refen'ed to newspaper repOlis which stated that my Annual Report is to be tabled in Parlirunent on I I October 201 1 . At the same time, the PIC Special Report, apparently, will also be tabled.



. T: (02) 9232-3350 1 F: (02) 8243-9471 1 E: [email protected]" ll

5) In the present circumstances, it would seem that a Special Report which will contain matter critical of my previous Complaint Reports upholding complaints against the Commission, including the 0 'Neill Report which forms part of my Arumal Report, will be tabled and published without the contents of the Special Report being, as a matter of fairness, made known to me, or my response sought by PIC, or by yourselves on behalf of the NSW Parliament.

6) I am therefore requesting by this letter that I have your assurance that there is nothing critical of the Inspector or the Inspector Reports in the PIC Special Report, or that you provide to me a copy of the Special Report for examination and response and that such advices, or a copy of the Special RepOli, be conveyed to me bv email prior to close of business (5 .00pm) today, 7 October 20 I 1 , in order that I might have a proper oppOliunity to further consider my position in relation to this matter.

7) I should further advise that if the abovementioned proposals are declined then, I must assume that the PIC Special Report has specific contents which are adverse to me and which will not be subject to any response by me prior to and at the time of the tabling of the Special Report on 1 1 October.

8) I have no objection to your providing a copy of this letter to the Acting Conunissioner.

Yours sincerely,


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CR-02 PJvf

NEW SOUTH WALES

Inspector of the


Oill' Ref: CR-02 AN

7 October 201 1



The Hon Shelley Hancock MP Speaker, Legislative Assembly NSW Parlianlent House Macquarie Street SYDNEY NSW 2000

Re: PIC Inspector's 201 1 Annual Report: Opinion of Mr Walker SC

1) I advise that I received a copy of this opinion from the PIC on 6 October 20 1 1 . According to the Acting PIC Commissioner's letter to the Director General dated 2 September 20 1 1 (a copy of which I have previously provided to you), it is the PIC's intention to finnish a copy of Mr Walker's Opinion to the Parliament.

2) Accordingly, I request that you ensure that my response to Mr Walker's Opinion, as · contained in tllis letter, is similarly made available to the Parliament.

3) The fact that that document has been so recently received plus the fact that Mr Walker refers to and appears to rely upon documents provided to him by the PIC (paragraphs 2, 3, and 8 of his Opinion), in particular, "Observations", which have not been provided to me,. mean that my response to Mr Walker's Opinion must be a prelimimllY response only, at this stage.

.

4) At the outset it should be noted that a number of Mr Walker's observations (see his paragraphs 1 5, 1 6, 24, 25 and 26) are apparently directed, not to the O'Neill Report, but to earlier Reports of mine upholding complaints by Police officers Pllilpott, Deissel and Jemlings, in which I found Mr O'Neill,

J !.d CR-02 AN

1nspector of the Police Integrity Commission GPO Box 5215, Sydney NSW 2001


although not one of the Complainants, had not been been accorded procedural fairness.

5) It appears that Mr Walker shares my opinions concerning PIC's treatment of Mr O'Neill expressed in those earlier Reports, but it is not clear to me the basis on wmch he has decided to make reference to those matters in his Opinion dealing with my O'Neill Report.

6) Nevertheless, it should not go unnoticed that Mr Walker's disparaging opinions of the PIC's Whistler Report, extend beyond the segment dealing with the arrest of WH-l , which is the subject matter of the O'Neill Report.

7) Although Mr Walker's Opinion disagrees with my conclusion that the PIC's conduct, as identified in my O'Neill Report, amounted· to procedural unfairness or apprehended bias, that view should be seen in the context of Mr Walker's statement (his paragraph 30) tllat his Opinion "largely supports the general tendency of the Draft Report" [that is, my O'Neill Report] .

8) Further Mr Walker's Opinion endorses my RepOli in respect of a number of significant criticisms of the PIC Whistler Report. I will specifically refer to these below.

9) Thus tlle disagreement between myself and Mr Walker as to whetller or not the PIC's conduct, which we are agreed was completely unacceptable, constituted procedural unfairness or apprehended bias, should be seen as rather academic, in view of the significant criticisms of the PIC's Report as to which we are in agreement.

1 0) Nor should the fact of the disagreement between myself and Mr Walker as to what conduct constitutes procedural unfairness or apprehended bias be given

. undue prominence, or be allowed to distract from the impOliance of the fact tllat we are in general agreement: it is not uncommon to find disagreement as to whether paIiicular conduct constitutes procedural unfairness or apprehended bias even at the highest judicial levels.

1 1) The Inspector is required to deal with complaints of "abuse of power. impropriety and other fOlms of misconduct" by tlle PIC and its officers (Section 89(1)(b) of the Police Integrity Commission Act). The abuse of power, impropriety aIld misconduct so described obviously is not confined to conduct comprising procedural unfairness or apprehended bias.

12) Mr Walker was at pains to state at the "outset" ofms Opinion that "there is a velY solid basis indeed for the disquiet so plainly expressed by the Inspector" in the O'Neill RepOli (see paragraph 6 of his Opinion).

13) Further, that both "the process that led to the [pIC' s Whistler Report] and the contents of the report itself, in relation to Mr O'Neill, fell below all appropriate standard."

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14) The breadth of the Inspector's jurisdiction is, in effect, acknowledged in Mr Walker's Opinion (at paragraph 14) where he says: " . . . the Inspector of the PIC may properly express an opinion on modes of handling matters by the PIC, even if the Complainant in question has not suffered an outcome in formal statutory tem1S of a kind that may be regarded as adverse."

15) Thus (paragraph 14): "There is no jurisdictional bar to the Inspector of the PIe proceeding as proposed in his [Draft] Report."

16) In other words there is no disagreement between myself and Mr Walker that the content my 0 'Neill Report, including the recommendations therein, the opinions expressed as to the deficiencies in the Whistler Report, and the presentation of that Report to Parliament, are well within the Inspector's jurisdiction.

1 7) As noted above, Mr Walker's Opinion expresses specific agreement with significant criticisms in the O'Neill Report of various of the PIC's practices and procedures.

1 8) For example (paragraph 1 7), in relation to the PIC's regular practice offailing to articulate serious allegations against persons identified as "affected persons" until the final written submissions of Counsel Assisting are served by PIC (usually many months after such persons have given tl1eir evidence), particularly where, as in the case of Mr O'Neill, the so-called substantial allegations are "made" by PIC itself, Mr Walker has described that practice as "deplorable."

1 9) He then COillinents: "The Inspector of PIC would be cOlTect, according to . canons of fair practice, to criticise PIC for tIns lack of timely fom1ality and clarity in the statement of allegations any person."

20) Apparently referring to one of my earlier Reporis, refen'ed to above, Mr Walker describes the pruiicular treatment of Mr O'Neill by PIC, identified ru1d criticised by me in that earlier RepOli, as "reprehensible."

21) Mr Walker's Opinion also states (pru'agraph 34) that he shares the Inspector's disapproval of PIC's conduct in relation to the Whistler Repori [generally] of " making plainly adverse COillinent in the most general terms about evidence, including Mr O'Neill's without those views producing any adverse outcome, eg, against Mr O'Neill." (Note tl1at criticism is not confined to Mr O'Neill's evidence.)

22) He adds that thus both PIC and Cowlsel Assisting failed to observe "this canon of decency."

23) Finally Mr Walker's Opinion (paragraph 37) expressed agreement with the Inspector's O'Neill RepOli in criticising the "wrong inclusion" in the Whistler RepOli "of excessively general aspersions on Mr O'Neill's evidence in the case of WH- ! . "

3 1 4 CR-02 AN



24) Having regard to these trenchant criticisms as contained in Mr Walker's Opinion, and notwithstanding the disagreement between us as to whether the PIC's "deplorable' and "reprehensible" practices and procedures, breaching canons of decency and fair practice, as identified in my O'N eilI Report, and so described in Mr Walker's Opinion, constitute procedural unfairness or apprehended bias, that Opinion would not appear to provide a proper basis for the serious step taken by the PIC of presenting a Special Report to Parliament containing criticisms of the Inspector's O'Neill Report.

25) The question seems to be: at what point does conduct on the part of the PIC as described in the preceding. paragraph amOlUlt to procedural unfairness or apprehended bias? Mr Walker has offered his opinion about that in his Opinion, and I have offered mine in the O'Neill Report.

26) In any event it is important to appreciate that the O'Neill RepOli was not based only on findings of procedural unfairness and bias towards Mr O'Neill, but also concluded that the PIC had otherwise seriously misconducted itself, and, as demonstrated above, there is no disagreement between myself and Mr Walker about that.

27) It is also important to .recognise that Mr Walker's Opinion as to the O'Neill RepOli, is confined to matters in respect of Mr O'Neill. However, the O'Neill Report also found that both officers Jackson and Duncan were treated by the PIC in a marmer that was procedurally unfair and that the PIC displayed bias towards them. Those findings remain quite separate from the matters adverted to in Mr Walker's Opinion.

Yours sincerely,


Inspector ofthe Police Integrity Commission GPO Box 5215. Sydney NSW 200]"

T: (02) 9232-3350 I.F: (02) 8243-9471 1 E: [email protected]

CR-02 AN

Hon. Shelley Hancock MP Speaker

7 October 2011

The Hon. P. J. Moss QC


GPO Box 5215 SYDNEY NSVV 2001

Dear Mr Moss

Han. Don Harwin MLC President

VVe acknowledge receipt of your recent correspondence dated 27 and 28 September 2011, 5 and 7 October 2011.

Advice from The Crown Solicitor was received before your request to forward your

correspondence to him and in light of that advice we did not consider it necessary to seek

any further advice on the matter.

As Presiding Officers we are satisfied that both we and the parliamentary officers have acted

a ppropriately and lawfully in relation to this matter. It is to be regretted that the Parliament

h a s become the vehicle for the pusuit of what is essentially a d ifference of legal opinion

between yourself a nd the Police Integrity Commission.

It is our intention to table both reports and all associated correspondence and legal opinions

. when the Parliament resumes sitting on 11 October 2011. Any further action will be a

matter for the Houses to decide.

Yours sincerely

C\4.AU�.J!1I�ci<.

f I Hon. Shelley Hancock MP

Speaker

Teiephone (02) 9230 2201 Facsimile: (02) 92302846 [email protected]

Parliament House Macquarie Street

SYDNEY NSW 2000 AUSTRALIA

ba� President

Telephone: (02) 9230 2300 Facsimile: (02) 9230 3700

[email protected]

• • •

. .

." ..... ..... .. . N� SOUTH WALES

Inspector of the


Our Ref: CR-02 AO

1 1 October 201 1



Re: Your letter dated 7 October 2011

The Hon Shelley Hancock MP Speaker, Legislative Assembly NSW Parliament House Macquarie Street SYDNEY NSW 2000

1) I acknowledge receipt of your letter dated 7 October 20 1 1 , the contents. of which have been noted, .in particular, your assertion "that the Parliament has become the vehicle for the pursuit of what is essentially a difference of legal opinion between yourself and the Police Integrity Commission."

2) If your assertion is correct, in my opinion that situation is not only "to be regretted"; it is to be deplored.

3) Unfortunately, you do not make it clear to whom you are attributing that conduct. However, I anl naturally concemed that you have made that assertion and included it in your letter.

4) Therefore I wish to make it clear that in my correspondence with you, to which you make reference, I have done no more than attempt to deal as best I could with the situation with which I was confronted on the occasion when my 201 1 Annual Report was presented to you on 1 6 September 201 1 .

5) Essentially, in that correspondence I sought your assistance in respect of two matters. I requested that you provide me with information as to the basis on

1 / 1 CR-02 AO



T: (02) 9232·3350 I F: (02) 8243-9471 I E: pic [email protected]

which the discretion was exercised not to accede to my recommendation that my Annual Report be published forthwith.

6) Without explanation, you have declined to provide me with that infonnation.

7) . Second, I sought your assistance in affording me, as a matter' of fairness, the opportunity to be made aware of, and to connnent upon, the contents of the Special Report presented by the PIC, prior to that document being tabled, or, alternatively, your assurance that it did not contain matelial critical of me in my capacity as PIC Inspector.

8) Again, without explanation, you have declined to provide me with either that opportunity to be heard, or that assurance sought.

9) Other than that, I have simply attempted to respond to a legal opinion that I understood, for reasons I made !mown to yourselves, would be forwarded by the Police Integrity. Commission for the purpose of being tabled ill Parliament.

1 0) Turning now to a different matter: I enclose herewith, for completeness of correspondence earlier furnished to you, a copy of a letter I received from the Director General dated 5 October 201 1 .

Yours sincerely,

The Hon P J Moss, QC Inspector of the Police IntegIity Commission

Enc - Letterji'om DPC Director General, 5 October 2011

2 / 2



T: (02) 9232-3350 I P: (02) 8243-9471 I.E: [email protected]

CR·02AO

NSW GOVERNMENT

Premier & Cabinet

RECEIVED

0 7 OCT 2011 The Han. Peter Moss QC INSPECTOR, PIC Inspector of the Police Integrity Commission GPO Box 52 1 5 sydney NSW 2001

Dear Inspector

I have received your further letter of 30 September 201 1 concerning your Annual Report and a special report that has been presented to the Parliament by the Acting Commissioner of the Police Integrity Commission (PIC).

I confirm that the only 'advice' given by my Department to the Acting Commissioner was to confirm that the Department was not in a position to arrange for the presentation of a report by him to the Parliament, but that he himself could make a special report to the Parliament directly at any time.

I also confirm that I met with the Acting Commissioner on one occasion during which this matter was discussed.

It is tM case that I was aware when the Acting Commissioner raised this matter with me that you had not yet presented your report to the Parliament. understood that the Acting Commissioner was considering presenting a report to the Parliament before or at the same time as yours.

The manner in which the Parliament chose to respond to the information provided in the two reports was, of course, a matter entirely for the Parliament.

I note that one approach would have been for the Parliament simply to publish both reports immediately to enable the public to see both and to judge for themselves any matters that might be in contention. That said, I am only aware in very general terms of the subject matter of the two reports.

In any case, however, this was entirely a matter for the Parliament. The Department did not, and did not attempt to, influence the Parliament in any way in this regard.

Governor Macquarie "rower. 1 Farrer Place, Sydney NSW 2000 Ii GPO Box 5341, Sydney NSW 2001 Te l: (02) 9228 5555 " F: (02) 9228 5249 .. www.dpc.nsw.gov.au

In relation to the conversation between my Department and the Parliament, I am advised that the General Counsel of my Department (Paul Miller) spoke briefly by telephone with the Clerk of the Legislative Assembly soon after my meeting with the Commissioner.

The General Counsel informed the Clerk that the Acting Commissioner had asked whether the Department could present a report by him to the

.

Parliament responding to matters raised in a report by the Inspector. The General Counsel stated that the Department did not wish to do this and that in any event.it was his understanding that the Acting Commissioner could present a report on any matter relevant to his functions to the Parliament at any time, and sought confirmation from the Clerk that this was correct. The Clerk confirmed this also to be his understanding, and that it was appropriate for the Acting Commissioner to contact him if he wished to arrange for that to be done.

I am advised that the Clerk later telephoned the General Counsel to inform him that the Parliament had received reports from the Inspector and the Acting Commissioner, and that the Clerk was going to discuss the matter with the Speaker. The General Counsel understood that this was being conveyed for information only. I am advised that the General Counsel expressed no view as to the manner in which the Parliament should respond to the reports.

I reject any suggestion that the Department has acted inappropriately in this matter. I otherwise have nothing to add to my previous correspondence.

Yours s incerely

Director General . • , 5 ocr 2011

2 1 September 201 1

The Hon Catherine Cusack MLC Chair

ABN 2 2 870 745 3 4 0

Committee on the Office of the Ombudsman and The Police Integrity Commission Parliament House Macquarie Street Sydney NSW 2000

Dear Chair

/p.??::"-",,�' ::""' " " '"�'''';"> " " ," " '

/:"

Our Ref: 24128/12

R E : The Inspector of the Police Integrity Commission's Annual Report for 2010-2011

I enclose for your information copies of the following correspondence:

• Letter from the Commission to the Department of Premier and Cabinet dated 2 September 201 1

• Letter from the Department of Premier and Cabinet to the Commission dated 5 September 201 1

• Letter from the Commission to the Clerks of the Parliament dated 14 September 201 1

A Special Report to Parliament was presented by the Commission at 3pm on 1 9 September 201 1 , The report did not include a recommendation pursuant to section 1 03(2) of the Police Integrity Commission Act 1996 that the report be made public forthwith" For that reason, the Commission has not provided a copy of the report to anyone"

Should you have any questions regarding this matter, please call the Commission's Executive Officer, Ms Pru Sheaves, on 9321 6777.

Yours sincerely


encl

l E V E l 3 111 E L I Z A B E T H STR E E T G P O BOX 3880 SYDNEY N S W 2 0 0 1 AUSTRALIA

TELEPHONE ( 0 2) 9321 6 7 0 0 F A C S I M i lE ( 0 2 ) 9321 6 7 99 F R E ECAll 1 8 0 0 657 079 www.pi c .nsw.gov.au

".\ ,

2 September 201 1

Mr Chris Eccles Director General Department Premier and Cabinet Governor Macquarie Tower Level 39, 1 Farrer Place SYDNEY NSW 2000

Dear Mr Eccles

A B N 22 8 7 0 7 4 5 3 4 D

Re: Inspector of the Police I ntegrity Commission

Our Ref: 241 28/1

I refer to our recent discussions in which I raised concerns regarding the Inspector. On 26 August 201 1 the Inspector advised me by letter that he will in the next few weeks present his Annual Report to the NSW Parliament. The Inspector further advised that he intends to attach to that Annual Report a report written by him into a complaint against this Commission by former NSWPF Inspector Mr Timothy O'NEILL. The complaint relates to an investigation and hearing conducted by the Commission in 2004/2005 (Operation Whistler).

Based on the contents of a draft report already provided to the Commission by the Inspector, the final report concerning former Inspector O'NEILL is expected to contain criticisms that,

. amongst other things, this Commission demonstrated bias towards Mr O'NEILL and denied him procedural faimess in the conduct of the Commission's investigation . .

Based on my reading of the draft report and a number of past complaint reports published by the lrrsvector,-inr my VieW1i1anh-e lrrspe-ctori1as mls1akenly appiie1:l the doctrines of bias and procedural fairness in many of his criticisms conceniing this Commission. The posting of his reports on his website has in IT!y view resulted in the publication of opinions which are wrong in law and have caused serious and unwarranted damage to the reputation of the Commission.

From my observation, attempts by the Commission to point out the Inspector's errors to him have resulted in no modification of his views. In two earlier complaints the Commission obtained and fUrnished to the Inspector independent opinions from a Queens Counsel experienced in the work of investigative inqUiries (Mr Peter Hastings QC). Those advices confirmed that the actions of the Commission were appropriate for the circumstances in each case and complied with the relevant legal obligations applying to investigative Commissions.

I enclose a copy of a letter dated 1 1 March 201 1 which I sent to the I nspector following the· publication of the second of the abovementioned reports by the Inspector. In his reply the Inspector did not address the matters identified by me in the letter of 1 1 March 201 1 beyond expressing dissatisfaction with what I had done.

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T e l E P H O N E ( 0 2 ) 9 3 2 1 6 7 0 0 F A C S I M I L E ( 0 2 ) 9 3 2 1 6 7 9 9 F R E E C A L L 1 B O O 6 5 7 0 7 9 www. p i c . nsw.gov.au

2

In addilion 10 the opinions obtained by the Commission from Mr Hastings QC about certain reports of the Inspector, I am awaiting an opinion from Mr Walker SC concerning the draft report in the matter of O'NEILL. I will make Mr Walker's opinion available to the Parliament.

I recently" obtained advice from Mr Walker SC concerning the Inspector's practice of uploading his complaint reports to his website without having presented those reports to Parliament. Mr Walker has advised that the practice is unauthorised and I enclose a copy of that advice. A copy has also been provided to the Inspector.

.

The Inspector's latest letter to me of 26 August 201 1 indicates that he intends attaching his most recent complaint report to his Annual Report (assuming it will be made public by the Speaker and the PreSident).

I think it appropriate that the matters I have raised be brought to the attention"of the Speaker and the President so that my concerns can be considered concurrently with the Inspector's Annual Report. As I haye said in broad those concerns are as set out in my letter of 1 1 March 201 1 . I have sought the opinions of Mr Walker SC about these matters because, for reasons already made known to you, I am precluded from receiving independent advice from the Crown. As I indicated to you it is my intention to have a report prepared by the Commission for presentation to the Parliament in the hope that regard will be had to it before Parliament authorises publication of the Inspector's Annual Report. I will, of course, make available to the Parliament the opinions of Mr Walker SC that have not yet been received.

I thank you for your assistance in this matter and would be grateful if you could facilitate the presentation of the proposed report to the Speaker and the President of the Legislative Assembly and Council, respectively.

Yours sincerely

he Hon Jerrold Cripps QC Acting Commissioner

enc.


A B N 2 2 8 7 0 7 4 5 3 4 0

1 1 March 201 1

The Hon P J Moss, OC Inspector of the Police Integrity Commission GPO Box 5215 SYDNEY NSW 2001

Dear Inspector,

Re: Complaint by Mr Bradley Hosemans

Our Ref: 20370167 Your Ref: C03-07 DC

I have been Acting Commissioner of the Police Integrity Commission since mid-January

201 1 . During that time a considerable amount of time has been directed to the many

criticisms you have made of the Commission when conducting hearings. I do not Claim to

have absorbed all the correspondence. I have, however, read the lengthy reports which have

been published on your website as well as the opinions of Senior Counsel to the effect that

in the Hosemans and Young matters your views were not legally correct.

I do not propose to respond paragraph by paragraph to your detailed letter dated 8 March

201 1 (some of which, for example paragraph 9, I do not uhderstand) beyond making it. clear

that I have read the opinion of Senior CounSel and agree with the gist of it, viz. that the

Commissioner has not denied natural justice (or if you prefer, procedural fairness) to those

.examined nor has it been guilty of apprehended biaS as those expressions must be

understood in the context of the relevant legislaUon regulating the activities of the

Commission.

The events .giving rise to your criticisms of the Commi$sion, including those in the reports

published by you and put on your website took place before I was at the Commission. I

played no part in those events. However I accept responsibility for the publication on the

l f V E.l .3 111 E l I Z A B E T H S T R E ET G P O· B O X 3 8 8 0 S Y D N E Y N S W 2 0 Q l A U S T R A L I A· TE"L E P H O N E (.02.> 9 3 2 1 6 7 0 0 FAC·S IMI L E ( 0·2) 9 3·2 1 6 7 9 9 fR.E E C A l l 1 8 0 0 6 5 7 0 7 9 w w w : p ic.n sw .g ov.i1J.

-,-60S !IS 5 website of the opinions of Senior Cotinsel to the effect that your assertions are legally

incorrect. I did so for the following reasons:

a) In your view, the Commission has abused its power, acted with impropriety, and

otherwise engaged in serious misconduct (see Hosemans Report p 43)_ This

conclusion proceeded from your view that the Commission has denied natural justice

to people who appeared before it and has acted in a way that a reasonably minded

perl'on would think it was biased. The Commission disputes the correctness of your opinions .

. In view of the correspondence passing between .the Commission and the

Inspectorate (including the opinions of independent Senior Counsel and your

rejection of them), I will not pursue further the details�Uhe-GFiliGism-t>eyoRd1'erhaps"

reminding you that, contrary to your expressed view in the conclusion of the

Hosemans report (see p 43), the Commission at all relevant times was not engaged

in 'the judicial process" but was exercising its investigatory powers.

b) You have made public on your website your conclusions as to abuse of power,

impropriety, or other serious misconduct. Your conclusions derive from your

understanding of the doctrine of "procedural fairness' and "apprehended bias" in the

context of the relevant legislation. These conclusions were published before and after

Senior Counsel reta,ined by the Commission had advised that your view conceming

the matters Was not correct, Whether you have ihe legal authority to do other than

make reports to Parliament (see section 101) may be a moot point but I would remind

you that, on the information available to me, earlier you believed you did not have the

authority and your request for it was not forihcoming.

Your devastating public criticism has damaged-the morale of tf\e orgahisation. More'Civer, it

has caused members of the Police Force (if the views of their Association are to be

accepted) to believe that they have been and wili in ·th .. future be exposed to, to use your

terms, 'unbalanced, bias and grosslY unfair conduct" by the Commission in the discharge of

its duties (see p 41 of Hosemans Report).

Although, of course, I have no power or control (nor would I seek any) over the exercise by

you Cif your fUnctions, it cannot be denied, I think, that your manner of expression including

words such as I have alreadY referred to, and the lise of italics and underlining to give effect

�o your apparent sense of outrage, has seriously damaged the standing of the Commission

and the confidence it should enjoy from members 9f the public - a confidence whiph it had,

·on my understanding, prior to your pUblications;


If your views and conclusions were unarguably correct, the Commission ·could do no other

than accept your censure and adjust its procedures to accommodale your view of how it

should conduct itself in the discharge of its functions. But, as I have said, although you may

think to the contrary, it is the Commission's view, buttressed by two opinions from Senior

Counsel and, for what it is worth, my opinion, that your understanding of the doctriries of

'procedural fairness' and 'apprehended bias' in the context of the relevant le[jislafion'is

seriously flawed.

Since I have been the Acting Commissioner, I have become. aware that Cabinet is presently

undertaking a review of the legislation. I propose to recommend that the reports of the

Inspector such as the ones under discussion are to remain in confidence until authorised to

be released by the Parliament. If accepted and when applied to the facts and circumstances

under discussion, the Parliament would decide whether or not to publishthe reports after, I

would hope, it had regard to competing views.

Although as I have said it is not part of my function·to dictate the duties of the Inspector and I

accept that the views expressed by you in the past concerning the matters under discussion

were views honestly held by you, it is my opinion that those views are wrong. Perhaps a

great deal of unpleasantness might have been averted had the competing views been

referred to the Crown Solicitor (as you were not, apparently, prepared to await the opinion of

Senior Counsel) before you made public your last devastating and damaging criticism of the

Commission.


P O L ICE I N T E G R I T Y COMM I S S I O N

OPERATION WHISTLER: AUTHORITY OF THE INSPECTOR UNDER THE POLICE INTEGRITY COMMISSION ACT 1996

OPINION

I am asked to advise the Police Integrity Commission about the apparent

intention of the Inspector of PIC to publish a report of an inquiry into aspects of PIC's

own dealing with certain complaints against police officers, known as Operation

Whistler. In particular, the question is raised as to the power or propriety of the

Inspector doing so by posting a copy of the report on his official website, before the \ \\ report has been given to the Presiding Officers of the Houses of Parliament and thus \ i , I' il before they have directed its publication.

2 In my opinion, this proposed course of conduct lacks lawful authority, at least

conveys disrespect for the Houses and unjustifiably departs from the orderly process

by Which (among other things) privilege is granted for the matters published in an

Inspector's report. It follows that the Inspector should not self-publish, so to speak,

and should await and abide by the superior authority of the Presiding Officers in this

regard.

3 The powers of the Inspector include those expressly provided by �ubsec 90(I) of

the Police Integrity Commission Act 1996 (NSW) (npICAn),which uo not extend to

any Such action. Those powers do include two means ,of disseminating outcomes of

inquiries, in, the' forms of references to other agencies in para (f) and recommendations

for discipline or prosecution under para(g). Their expression rather prevents than

assists any implication ofa general power ofpublicaiion.

2

4' Similarly, the express grant of Royal Commissioner equivalent powers by sec 9 1 does nothing to warrant those provisions being read as somehow interstitially

providing such a general and anticipatory power of publication. -----

---�-------- .��.--

5 FimiIly so far as statutory grants of power are concerned, apart from the specific

provisions noted below, there is the general if supererogatory grant by sec 93 of

incidental powers. They are stipulated to be powers to do all things necessary for the

Inspector's exercise of his functions. In my opinion, it cannot be seriously argued that

the kind of publication proposed by the Inspector falls within that class of actions.

This is especially so given the specific regulation of publication to which I next turn.

6 All reports by the Inspector must be given to the Presiding Officers . of the

Houses: secs J 0 I and 102 of PICA. Indeed, the obligation of the Inspector with

respect to his annual report is to "prepare" it lind to "furnish" it accordingly. This

statutory description leaves no room for intervening publication by the Inspector. Its

terms are mandatory, not optional.

7 The clincher in my opinion, against the availability of the course apparently

intended by the Inspector, is the prescriptive regulation by sec 103 of PICA in relation

to publication ofInspector's reports. Under subsec 103(1), a report must be laid before

each House. This can be done, of course, by direction of each Presiding Officer to

whom.the report had to be furnished under sec! 02.

8 Then, tellingly, the Inspector is given a role expressly with respect to

publication, ' in subs¢<: 103(2). That role is limited to making a recommendation ,

plainly, for. consideration and decision by the Houses of the their Presiding Officers.·

�

3

9 The provisions of subsecs 1 03(3) and (4) of PICA complete the scheme by

governing the manher and consequences of publication of an Inspector's report. They

do so unmistakably in terms appropriate to the publication of reports by Parliamentary

fiat and not to their publication by the prior and unilateral decision of the inspector.

1 0 The allocation of functions to the inspector, the Presiding Officers and the

Houses, and specific recognition of the prerogative of the Houses to control

publication of their own proceedings; including the contents of papers laid before

them, seen in these provisions are clear. They contradict any supposed. implication of

authority of the Inspector to take the matter of publication into his own hands.

1 1 Whether unlawfully anticipating the decisions of the Houses by publishing a

report on the Inspector's website might be treated by them as a contempt of

Parliament may be debatable - but by them. The better view.is that it could well be so.

On any view, decent respect for the place and responsibility of the Houses should

prevent the Inspector from proceeding as he apparently has proposed.

FIFTII FLOOR,

ST JAMES' HALL.

2'9th August 201 1 B'ret Walker

NSW Premier GOVERNMENT & Cabinet

The Hon. Jerrold Cripps QC Acting Commissioner Police Integrity Commission GPO Box 3880 Sydney NSVV 2001

R ECEIVED - 6 SEP 2011

POLICE INTEGRITY COMMISSION Dear Commissioner

5 SEP 2011

Thank you for your letter of 2 September 201 1 concerning the report that is shortly to be presented to Parliament by the Inspector of the Police Integrity Commission relating to an investigation and hearing conducted by the Commission in 2004/2005 (Operation Whistler).

I note your concerns about the criticisms of the Commission that you anticipate will be contained in the Inspector's report, and your view that the report may contain errors and cause unwarranted damage to the reputation of the Commission.

Under section 98 of the Police Integrity Commission Act 1996, the Commission may, at any time, make a special report to the Presiding Officer of each House of Parliament on any administrative or general policy matter relating to the functions of the Commission.

It is therefore open to you to present a report to the Parliament responding to the report of the Inspector.

Accordingly, you may wish to liaise with the Clerks' offices with a view to presenting a report to the Parliament concurrently with the Inspector's report to enable the two to be considered together before the Parliament authorises publication.

Given that both the Inspector and the Commission are independent statutory offices that report directly to the Parliament, I consider that a direct approach by you to the C lerks for this purpose would be appropriate. My Department has spoken informally to the Clerks who have confirmed that they are able to facilitate this approach.

Yours sincerely

Director General

Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 • GPO Box 5341, Sydney NSW 2001 Tel: (02) 9228 5555 • F: (02) 9228 5249 • www.dpc.nsw.gov.au

A B N 2 2 8 7 0 7 4 5 3 4 0

14 September 201 1

Ms Lynn Lovelock Clerk of the Parliaments and Clerk of the Legislative Council NSW Legislative Council Parliament House NSW 2000



Re Inspector ofthe Police Integrity Commission, Annual Report for 2010·2011

On 26 August 201 1 I was advised by letter from.The Hon. P J Moss QC, Inspector oi the Police Integrity Commission ("the Inspector"), that he intended to present his Annual Report to Parliament in the next couple of weeks and that .he would iriclude in his Annual Report a separate report by him into a complaint against the Commission by former Inspector Timothy O'Neill.

Because of concerns regarding the content and manner of publication of complaint reports by the I nspector I approached the Department of Premier and Cabinet about the possibility of a Report being presented to Parliament by this Commission, to be read in conjunction with the Inspector's Annual Report, prior to a decision being made by the Parliament as to whether the Inspector's Annual Report should be made public.

I have been informed by Mr Eccles, Director General Department of Premier and Cabinet, that it would be appropriate for me to report to Parliament by way of Special Report pursuant to s98 of the Police Integrity Commission Act 1 996 and furthermore that his Department has spoken informally to you in this regard.

Accordingly the purpose of this letter is to confirm that an officer of this Commission will shortly be contacting your offices for the purpose of seeking an apPointment to present a Special Report to you, to be considered concurrently with the Annual Report of the Inspector.


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&� . g,;j;li: . '

." ..... .... .... '"''

NaV SOUTH WALES

Inspector of the

Police Integrity Commission Our Ref: CR·02 AJ

27 September 201 1

Ms Vicki Buchbach Director Legislative Assembly Conmlittees NSW Parliament Parliament House Macquari e Street SYDNEY NSW 2000

Dear Ms Buchbach,


I) My purpose in writing to you at this stage is to request that you bling to the

notice of each member of the Joint Parlianlent81), Committee the following

matters for their urgent consideration.

2) I will attempt to be comparatively blief in this letter 811d provide fmther

details in subsequent cOlTespondence.

3) First, the overall position is that the publication of my 20 I I Annual RepOlt

which was presented to P81'liament on Friday, 1 6 September 20 I I has not

been made public as a result of the intervention of the Police Integrity

Commission.

4) For reasons which I will develop in this correspondence I reg81'd the

pmticular involvement of the PIC as inconsistent with the concept of the

Inspector's independence.

1 / 3




CR-02 AJ

5) As mentioned above, on 16 September 20 I I copies of my Report were

presented at the Speaker's office and carried the usual recommendation

pursuant to Section 103(2) of the Police Integrity Commission Act that the

Annual Report be made public forthwith.

6) That reconmlendation was not acceded to and the reason given by the

Speaker and one of the Parliamentary officers was that a conU1mnication had

been received from the Police mtegrity Commission that the Report not be

made public in accordance with the Inspector's recommendation.

7) Subsequently, I have been made aware .of some of the background facts

which apparently resulted in the decision being made, prior to the

presentation of my AIU1ual Report, not to accede to the recommendation that

it be made public forthwith.

8) Included in the Schedule to that Annual RepOlt is a RepOlt by me upholding

complaints against the PIC by Mr O'Neill, a retired Police Inspector in the

NSWP.

9) It is tIlat RepOlt, apparently, that the PIC wishes not to be made public in

accordrulce WitIl the Inspector's reCOl1l11lendation in tIlat regard.

10) However, the result is tImt tile Annual RepOlt crumot be distributed by me at . tIlis stage and none of it may be made public.

I I) I understruld tlle Parliament to be in recess at tlle moment ruld I have no idea

how long this situation will continue.

12) Central to my concems as to these events is the fact that tlle decision was

made in advrulce of the presentation of my Ammal RepOlt and that I was

given no prior notice of tllat decision ruld thus denied the oppOltunity to be

heard before tllat decision was made.

13) It also seems to me that central to tlle issues raised by tlle events which have

happened is the issue of whether, in tlle particulru· circumstances, the

discretion implicit in Section 103(3) could have been properly, fairly a11d

relevrullly exercised by tlle Presiding Officer who purported to exercise that

discretion.

1 4) Anotller matter of concem is iliat I have since been made aware that prior to

the presentation of my Annual Report tlle PIC wTOte a letter to tlle Clerk of

the Legislative COU1lcil a11d the Clerk of the Legislative Assembly,

2 d


GPO Box 5215. Sydney NSW 2001

T: (02) 9232-3350 I F: (02) 8243-947 1 ) E: [email protected]

respectively. which seems to have had a direct bearing on the decision to

reject my recommendation refelTed to above.

1 5) I should therefore be grateful if you would distribute copies of this letter to

the members of the Committee and, as mentioned above, I will provide

further relevant details in subsequent cOlTespondence.

Yours sincerely,


3 t 3

Inspector oflhe Police Integrity Commission


T: (02) 9232-3350 I F: (02) 8243-947 1 I E: [email protected]

The Hon. Don Harwin MLC President of the Legislative Council

The Hon. Shelley Hancock MP Speaker of the Legislative Assembly

MEDIA STATEMENT

Thursday 29 September 201 1

Following from the Media Statement issued by the Presiding Officers (copy attached) the Daily Telegraph has today reported at page 1 1 as follows:

"But yesterday it was revealed that advice from the Crown Solicitor's office was that the report was not unlawful and could be released to the public. "

This statement is incorrect and completely misrepresents the views contained in the Crown Solicitor's advice which will be tabled in both Houses on 1 1 October 201 1 .

It should be noted that no parliamentary authorities have expressed this view to any media source.

ENDS.

Media contact Shelley Hancock MP

Speaker of the Legislative Assembly (02) 4421 0222 .

The Hon. Don Harwin M LC President of the Legislative Council

The Hon. Shelley Hancock MP Speaker of the Leg islative Assembly

MEDIA STATEM ENT

Wednesday 28 September 201 1

The President and the Speaker received advice from the C rown Solicitor in relation the publication of the Annual Report of the Inspector of the Police Integrity Commission.

The Crown Solicitor's advice concluded that the Presiding Officers had acted appropriately in exercising their discretion to not make the I nspector's Report public forthwith when concerns had been raised as to the lawfulness of that Report.

The Presiding Officers are keen to ensure that the Inspector's Report is tabled at the earliest appropriate opportunity.

In accordance with the Crown Solicitor's advice it is intended that the I nspector's Report will be tabled on Tuesday 1 1 October 20 1 1 being the next Parliamentary s itting day. This would be consistent with the Presiding Officers statutory responsibilities pursuant to the Police Integrity Commission Act 1996 confirmed by the Crown Solicitor in his advice. On that day, we will also be tabling the Special Report of the Police Integrity Commission together with all relevant correspondence and advice.

ENDS.

Media contact Shelley Hancock MP

Speaker of the Legislative Assembly (02) 4421 0222

.........

C R OWN S O L I C I T O R ' S O Ff i C E

Your Ref: My Ref: 200900175

6!1

r2 & 4: ,.1:8 El�n Knoblanche '" G,",""dlilj !b�t:J

, February 2009 --� -y,=�.-.=""""",,,

Mr Russell Grove Clerk of the Legislative Assembly Legislative Assembly, NSW Parliament Parliament House Macquarie Street SYDNEY NSW 2000

. By email

Dear Mr Grove

Publication of complaint report by Inspector of PIC

I enclose my advice in relation to the above matter. In your letter of instructions you have queried whether I have any objection if "the thrust of the advising was also made available to the Chair of the Committee on the ICAC". I have no objection to you doing so.

Should you have any queries in relation to the matter, or if you require any further assistance, please do not hesitate to contact Ellen Knoblanche on tel: (02) 8224-5457.

Yours faithfully

'---fJJ--Ellen Knoblanche AlSenior Solicitor for Crown Solicitor

Encl.

� /J '1 ,>!.JIo�

rt!t:E - I . Sgeaker . . / \ /200f\

CROWN SOLICITOR'S OFFICE ABN 50 132 005 544 • 60-70 Elizabeth Street Sydney NSW 2000 • GPO 80x 25 Sydney 200! • DX !9 Sydney

Telephone 02 9224 5000 • Fax 02 9224 591 1 • Email [email protected] • w\'I:w.cso.nsw,gov.au . " . . -, "

200900175 02009/43134

CROWN SOLICITOR N E W SOUTH WAlES

Advice Publ ication of complaint report by Inspector of PIC

Contents 1 . Summary of advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Background and advice sought ..•....••........•.......................... ...........•............•....•.....•.•. 3

3 . Adyice a s t o question 1 - Whether s . 89(1)(b) enables the Inspector to use his discretion as to whom reports are furnished .......•.. ; ..•...........•......•....................•....•... 3

Can a s. 89(1 )(b) report be provided to the Presiding Officers? 5 Can a s. 89(1 )(b) report be provided to the Committee? 6

4. Advice as to question 2 - Whether explicit statutory authority is required to furnish s. 89(1 )(b) reports to interested parties and persons adversely mentioned ....•....•.•. 7

5. Advice as to question 3 - Whether the Inspector can use s.1 01 to furnish reports to Parliament on complaint investigations generally ..................................................... 8

6. Advice as to question 4 - Whether s. 90(1 )(e) implies a power ofthe Inspector to report as he sees fit on complaint reports ............................................... ......... .......... 8

7 . . Advice as to q uestion 5 - Whether s. 93 implies a power of the Inspector to report as he sees fit on complaint reports ..........•....•......•.........••...............•...•..............•....•.•. 8

8. Advice as to question 6 - Other comments ............ .. . . . . . ... . . . ........... . . . ............. . . . . . . . . .. . . 9

Previous advice regarding reports made by the Inspector 9 Provision of reports to Committee Divulging of information in a s. 89(1 )(b) report pursuant to s. 56(2) Making reports and information public

Legislative changes

Appendix: Relevant legislation

Prepared for:

Date:

Client ref:

csa ref:

LGA087 Legislative Assembly

26 February 2009

Russell Grove and Ian Thackeray

2009001 75 T8 Ellen Knoblanche

© State of New South Wales (Crown Solicitors Office)

9 9

10 11 12

200900175 Advice 1 D2oo9/31 18o


1 . S u m m a ry of advice

1 . 1 Section 89(1 )(b) of the Police Integrity Commission Act 1996 (the "PIC Acf') provides

that one of the principal functions of the Inspector of the Police Integrity Commission (the " Inspector" ) is to deal with (by reports and recommendations) certain complaints

about the Police Integrity Commission (the "Commission") and its officers. I consider

a report under s. 89(1)(b) can be provided to a person where to do so is to "deal with" the complaint in the sense that providing the report to that person is relevant to

resolving the complaint. If that view is correct, it is unlikely that providing a report to

the Presiding Officers of Parliament would be relevant to resolution of a complaint.

Further, having regard to the statutory functions of the Committee on the Office of the Ombudsman and the Police Integrity. Commission (the "Committee"), I do not see how

the Committee could have a role in resolving a complaint the subject of a s. 89(1 )(b) report. Accordingl)!, I doubt the Inspector could provide a report under s. 89(1 )(b) to

the Presiding Officers or the Committee. Whether or not "interested" parties and persons adversely mentioned in a s. 89(1)(b) report could be furnished with the report

depends upon whether those parties or persons have a role to play in the resolution of the complaint.

1 .2 Section 101 of the PIC Act does not authorise reports by the Inspector on complaint investigations generally. It is the relevant matter affecting the Commission or the administrative or policy matter relating to the functions of the Inspector revealed or highlighted which may be reported on. Section 90(1 lee) confers a power to carry out

an investigation and to assess the merits of a complaint; it is not concerned with the making of reports or the persons to whom reports should be made and no power to report can be implied from it. I do not think that s. 93 implies a power in the Inspector to report to persons other than those who have a role to play in the resolution of the complaint because such power is not "necessary" or "reasonably incidental" to the exercise of that function.

1 .3 . I have a doubt as to whether inforniation as reported in a report can be divulged

pursuant to s. 56(4). That is because I consider the provision of reports to persons is governed by s. 89 and that to divulge to a person information as reported in a report

is to provide part of the report to that person. As to whether a s. 89(1 ) (b) report can

be made public, if I am correct that such a report is intended to be provided to persons who have a role in assisting the resolution of a complaint, it is difficult to

conceive of a case where publication to the public would assist such resolution. I agree with the comments made by others that legislative amendments that clarify the

Inspector's power to provide complaint reports should be considered.

1 .4 Please note this is a summary of the central issues and conclusions in my advice. Other relevant or significant matters may be contained in the advice, which should be

read in full.

200900175 Advice 1 D2009/3 1 1 80

C ROWN SOLICITOR'S OFFICE NEW SOUTH WALES

2. Background and advice sought

3

2.1 I refer to the background set out in your letter dated 22 January 2009. Section 89(1 ) (b) of the PIC Act provides that one of the principal functions of the Inspector is

"to deal with (by reports and recommendations) complaints of abuse of power, impropriety and other forms of misconduct on part of the Commission or officers of the Commission".

2.2 You have sought my advice in relation to the capacity of the Inspector to make ihese reports public. In particular,. you have sought my advice in relation to the following

matters:

1 . Whether the current PIC Act enables the Inspector to use his discretion to

determine to whom he may furnish reports made pursuant to his function under s. 89(1)(b) of the PIC Act (including the Presiding Officers) and the level of confidentiality attaching to those reports.

2. Whether explicit statutory authority is required to enable the Inspector to furnish

reports on his investigation of a complaint to interested parties and persons adversely mentioned in the report.

3. Whether the Inspector can use s. 101 of the PIC Act to furnish reports to Parliament on complaint investigations generally.

4 . . The general scope of s. 90(1)(e) and whether it implies a power for the Inspector to report as he sees fit on complaint reports about the Commission.

5. The general scope of s. 93 and whether it implies a power for the Inspector to

report as he sees fit on complaint reports about the Commission.

6. Any oiher comments or matters i consider pertinent to be brought to your attention.

2.3 Please note that the text of relevant legislation is set out in the Appendix to this

advice.

3 . Advice a s to q uestion 1 - Whether s. 89(1 )(b) enables the Inspector to use h is discretion as to whom reports are furnished

3 . 1 The Inspector is a statutory officer and as such, the powers and functions of the

Inspector are limited to what is conferred by statute. Section 89(1)(b) provides that

one of the principal functions of the Inspector is "to deal with (by reports and

recommendations) complaints of abuse of power, impropriety and other forms of misconduct on the part of the Commission or officers of the Commission". Section

200900175 Advice 1 02009/3 1 1 80


90(1 lie) confers power on the Inspector to "investigate and assess complaints about

the Commission and officers of the Commission". Therefore, where the Inspector

receives a complaint about the Commission or its officers, he may investigate and

assess the complaint and may deal with it (by reports and recommendations).

3.2 Normally, statutes will provide for the persons to whom any report is to be made and

such provision is exhaustive as to such persons. The PIC Act does not provide

expressly for the persons to whom reports under s . 89(1)(b) may be provided. What

is clear is that reports and recommendations are the ways in which the Inspector is to "deal with" a complaint. While "deal with" can mean "to occupy one self with" it can also mean "to take action with respect to" (Macquarie Dictionary). The Australian

Concise Oxford Dictionary gives the lalter meaning as the usual meaning, in the following terms: "take measures concerning (a problem, person etc), esp. in order to

put something right". As noted earlier, a discrete power to "investigate and assess" complaints is conferred on the Inspector by s. 90(1)(e). That would suggest that dealing with a complaint by report and recommendations is not concerned with the investigation and assessment of complaints and is consistent with "dealing with" a

complaint being about taking measures to "put things right." i.e. it is about resolving the complaint. On that basis, a s. 89(1 )(b) report would contain the Inspector's findings and recommendations to "put things right". It is unlikely that to "deal with" in

s. 89(1 )(b) has a meaning such as to "occupy oneself with" if that means doing acts other than the resolution of the complaint.

3.3 I have derived no assistance from the extrinsic materials in ascertaining the ordinary

meaning of "deal with" in s. 89(1)(b) in context. Surprisingly, the Explanatory Memorandum for the Bill for the PIC Act, in referring to s. 89(1 )(b), fails to refer to the

qualifying words "(by reports and recommendations)" which follow "deal with".

3.4 If "deal with" in s. 89(1 )(b) does mean to resolve, that suggests that any report and recommendations are to be provided to persons who have a role to play in the

resolution of the complaint. I consider it would be unsafe to assume otherwise. Relevant persons will depend to some extent on the actions required to resolve the

particular complaint. Presumably, the complainant and the officer or the Commission

as the subject of the complaint have such a role. If, for example, the Inspector rnade

a recommendation in relation to a complaint that the initiation of a criminal prosecution be considered, resolution of the complaint would require that the report

and recommendations be provided to the person who gives that consideration i .e . the

Director of Public Prosecutions. This conclusion is consistent with an earlier advice I

provided to you on 1 0 February 1 999 (CSO ref: LGA087.201) in which I said:

"It is not clear to me whether the Inspector reported to the Committee as part of his function to deal with complaints against the Commission 'by reports and recommendations' (s.89(1)(b)). That subsection does

200900175 Advice 1 D2009/3 1 1 80


not say to whom such reports are to be made and presumably this would vary depending on the recommendations in the report."

In that advice I concluded by saying:

"The PIC Act appears to give the Inspector some discretion in how he performs his functions with relation to complaints. He might make a report with recommendations to the Minister. He might refer the matter to the Ombudsman (s90(1)(f) or recommend a criminal prosecution (s.90(1)(g), for example; however, such matters are within his discretion."

5

3.5 Determining to whom a report and recommendations under s. 89(1)(b) can be provided will be within the discretion of the Inspector, however, I think that this

discretion can only be exercised. to the extent that a person who would receive the report has a role to play in resolving the complaint.

Can a s. 89(1 )(b) report be provided to the Presiding Officers?

3.6 You have asked me to consider whether reports made pursuant to s. 89(1)(b) can be

provided to the Presiding Officer of each House of Parliament (the "Presiding Officers").

· 3.7 "Reports to Parliament" are provided for in Part 8 of the PIC Act. Division 1 of that Part relates to reports by the Commission and provides that:

• where the Commission prepares reports on matters the subject of an investigation

under s. 96(1), it is to furnish those reports to the Presiding Officers (s.96(3» ;

• the Commission may make a special report to the . Presiding Officers "on any

administrative or general policy matter relating to the functions of the Commission" (s. 98);

• the Commission is required to furnish annual reports to the Presiding Officers (s. 99); and

• the Commission may furnish reports relating to authorities to the Presiding Officers (s. 1 00).

Division 2 of Pt 8 relates to reports by the Inspector and provides that:

• the Inspector may make a special report to the Presiding Officers on "any matters

affecting the Commission, including for example, its operational effectiveness or

needs" and "any administrative or general policy matter relating to the functions of

the Inspector" (s. 1 01 ); and

• the Inspector is required to furnish annual reports to the Presiding Officers

(s. 1 02).

200900175 Advice 1 D2009/31180


Division 2 does not include reports under s. 89(1)(b) among those reports to be made

to Parliament. Contrast this with s. 93, which expressly provides that reports made by

the Commission in relation to its investigations are to be fumished to the Presiding Officers.

Division 3 of Pt.8 deals generally with reports furnished to the Presiding Officers and s. 1 03(2) provides that in the case of a report of the Inspector, the Inspector may

include in it a recommendation that the report be made public forthwith. Division 3

has no application to a report of the Inspector under s. 89(1)(b) because, as I have

said, Division 2 does not include reports under s. 89(1)(b).

3.8 I have said above that I consider a report under s. 89(1)(b) can be provided to a

person where to do so is to "deal with" the complaint in the sense that providing the report to·that person is relevant to resolving the complaint. If that view is correct, it is

unlikely that providing a report to the Presiding Officers would be relevant to

resolution of a complaint. While a report might, for example, recommend legislative

. change to "put right" an aspect of a complaint, I consider that the appropriate

recipient of the report and recommendations to effect such change would be the Minister administering the relevant legislation or portfolio, not the Presiding Officers.

However, I think that there is an argument against any s. 89(1 )(b) report being able to be provided to the Presiding Officers, on the basis of the statutory interpretation

. principle expressio unius est exclusio alterius. That is, an express reference to one matter indicates that other matters are excluded. From the provisions of Div 2 of Pt. 8

noted at [3.7], it is apparent that the PIC Act refers expressly to those types of reports that are to be provided by the Inspector to Parliament. As I have said, none of those provisions refer to reports made under s. 89(1)(b). According to the principle of expressio unius est exclusio alterius, "it is a reasonable assumption that where

legislation includes provisions relating to similar matters in different terms, there is a

deliberate intention to deal with them differently" (Pearce, D C & Geddes, R S,

Statutory Interpretation il1 Australia, 6th ed., 2006, Butterworths, Sydney, p. 1 39).

Applying this principle, I think that because the PIC Act contains express provisions regarding when reports are to be provided to the Parliament (by providing them to the

. Presiding Officers), there is a reasonable assumption that s. 89(1 )(b) reports are not

intended to be provided to Parliament (by providing them to the Presiding Officers).

On balance, I do not think that the Inspector could provide a report under s. 89(1 )(b)

to the Presiding Officers.

Can a s. 89(1 )(b) report be provided to the Committee?

3 . 9 Consistent with my advice i n [3. 1 ] - [3.5], I think that a s . 89(1 )(b) report could only be provided to the Committee if the Inspector i s of the view that to do so would be

"dealing with" the complaint (in the sense that the Committee has a role to play in resolving it). Considering the functions of the Committee, I doubt such a view could

be taken in relation to any com plaint.

200900175 Advice 1 02009/3 1 1 80


3. 1 0 As with the Inspector, the Committee's powers and functions are limited to what is

conferred by statute. The Committee has the functions conferred or imposed on it by

the PIC Act, the Ombudsman Act and any other Act (s. 31A(2) Ombudsman Act).

Section 95 of the PIC Act sets out the functions of the Committee under that Act.

Subsection 95(1) essentially provides ' that the Committee's functions are the monitoring of the Commission and the l(lspector in the exercise of their functions,

examining the annual reports of the Commission and the I nspector, examining trends

and changes in police corruption (and related practices and methods), inquiring into its own functions and reporting to Parliament on these issues. Subsection 95(2)

states that nothing in Pt 7 authorises the Committee:

" a) to investigate a matter relating to particular conduct, or

(b) to reconsider a decision to investigate, not to investigate or to discontinue investigation of a particular complaint, a particular matter or particular conduct, or

(c) to reconsider the findings, recommendations, determinations or other decisions of the Commission in relation to a particular investigation or a particular complaint."

3. 1 1 Given that the Committee's functions expressly do not involve investigating particular conduct and that its functions are otherwise broadly drafted to provide for the

monitoring and reviewing of the Inspector and Commission's functions, I do not see how the Committee could have a role in resolving a complaint the subject of a s. 89(1 )(b) report. Accordingly, I doubt the Inspector could provide a report under s. 89(1 )(b) to the Committee.

4. Advice as to question 2 - Whether ex;pl icit statutory a uthority is requ i red to furnish s. 89(1 )(b) reports to i nterested parties and persons adversely mentioned

4.1 From my answer to the question at 3, it is apparent that I think furnishing a s . 89(1 )(b)

report to persons who have a role to play in the resolution of a complaint is within the Inspector's function in s. 89(1 )(b) and that expliCit statutory authority to do so is not . required. Whether or not "interested" parties and persons adversely mentioned in a

report could be furnished with the report depends therefore upon whether those

parties or. persons have a role to play in the resolution of the complaint. The

Inspector would not be entitled to furnish the report to thern for the reason only that

they are "interested" parties or persons adversely mentioned. I consider express statutory authority would be necessary in order to do that.

200900175 Advice 1 02009/31180


5. Advice as to q uestion 3 .� Whether the Inspector can use s . 1 01 to furn ish reports to Parliament on com plaint investigations generally .

8

5 . 1 Section 101 does not authorise reports by the Inspector on complaint investigations generally. Special reports under that · section must be reports on any "matters affecting the Commission, including for example, its operational effectiveness or needs" (para (a)) or on "any administrative or general policy matter relating to the functions of the Inspector" (para (b)). It is only those matters that may be the subject

of a s.101 special report. It may be, of course, that one or more complaint

investigations reveal or highlight matters affecting the Commission or administrative or general policy matters relating to the functions of the Inspector. However, in reporting on those matters the Inspector could not, in effect, report on the substance

of an investigation or investigations. It is the relevant matter affecting the

Commission or the administrative or policy matter relating to the functions of the

Inspector revealed or h ighlighted which may be reported on.

6. Advice as t o q uestion 4 - Whether S . · 90(1 )(e) implies a power of the Inspector to report as he sees fit on complaint reports

6 . 1 Section 90(1 )(e) confers power on the Inspector to "investigate and assess

complaints about the Commission or officers of the Commission". This power is a power to carry out an investigation and to assess the merits of the complaint; it is not

concerned with the making of reports or the persons to whom reports should be rnade

and no power to report can be implied from it. Reports on complaints about the

Commission and its officers are expressly provided for in s. 89(1)(b) (and, in my opinion, this provision determines any limitations on that reporting function) and

reports to Pariiament are expressly provided for in Pt. 8.

7 . Advice a s to question 5 - Whether s. 9 3 implies a power of the I nspector to report as he sees fit on complaint reports

7 . 1 Section 93 is titled "incidental powers" and states:

"The Inspector has power to do all things necessary to be done for or in connection with , or reasonably incidental to, the exercise of the Inspector's functions. Any specific powers conferred on the Inspector by this Act are not taken to limit by implication the generality of this section . "

The question is whether a power for the Inspector to report to persons as he sees fit

. on complaints is "necessary" or "reasonably incidental" to the exercise of the function

of dealing with complaints by reports and recommendations under s. 89(1)(b).

200900175 Advice 1 02009/31 1 80


7.2 As discussed above, I think that the Inspector's function in s. 89(1)(b) is limited to

resolving a complaint by providing a report and recommendations to persons who

have a role to play in the resolution of the complaint. So understood, it could not be "necessary" for or in connection with, or "reasonably incidental" to, the exercise of

that function that the Inspector have the discretion to report to other persons.

Accordingly, I do not think that s. 93 implies a power in the I nspector to report to such

other persons.

8 . Advice a s to q uestion 6 - Other comments

Previous advice regarding reports made by the Inspector

8 . 1 I note that i n my advice of 10 February 1 999 I provided advice in relation to the power of the Committee to release information in a report prepared by a former Inspector

and furnished by him to the Committee. It appeared the Committee had merely

redirected a complaint it had received to the Inspector (rather than make a reference itself under s. 89(2)) and the Inspector had provided the Committee with a confidential interim report and

'a supplementary report on' the complaint. On both occasions, the

Inspector certified it was in the public interest that the information in the report be divulged to the complainant and the Ombudsman and left it to the Committee to do so.

Provision of reports to Committee

8.2 In considering whether the Inspector had power to report to the Committee, I stated in my earlier advice· that I did not have the necessary information as to why the

Inspector had reported to the Committee. I said it was not clear to me whether the Inspector had provided the reports to the Committee in accordance with his function under s. 89(1 )(b). It will be seen from my answer to question 1 above that I consider this could only be done if the Committee has a role to play in the resolution of the

relevant complaint. In my earlier advice I doubted that the Inspector had the power to report to a person who had merely redirected a complaint to him.

Divulging of information in a s. 89(1)(b) report pursuant to s. 56(2)

8.3 In my earlier advice I also considered whether the providing of the reports was

authorised by s . 56(4) as a divulging of information. I considered it arguable that to

report to an agency which had properly referred a matter on the progress of the matter would be something done "for the purposes of the Act" as allowed for by

s. 56(4)(a). In order to answer your questions as to the power of the Committee to release the reports, I assumed that the reports were made by the Inspector to the Committee for the purposes of the Act. I also advised that I thought a direction could

be given under s. 56(4)(c) enabling the' Inspector to divulge information in a report

where the disclosure was in the public interest.

200900175 Advice 1 D2009/31180


8.4 I now have some doubts about the application of s. 56(4) where the information that would be divulged consists of the entirety or part of a report under s. 89(1 )(b).

Section 56 deals with "secrecy" and provides that a person to whom that section

applies must not divulge or communicate any information that is acquired by them by

reason of or in the course of the exercise of their functions under the PIC Act

(s. 56(2)). There are a number of exceptions to this secrecy reqUirement, however, including where:

• the information is divulged by a person for the purposes of the PIC Act or otherwise in connection with their functions under that Act (s. 56(4» (a); and

• the information is divulged in accordance with a direction of the Commission or

the Inspector where they have certified that it is necessary to do so in the public

interest (s. 56(4)(c» .

8.5 In my earlier advice I supposed it would be possible for the Inspector to divulge the information in the report to the Committee under s. 56(4)(c); that is, in accordance

with a direction that it was necessary in the public interest, if that was the case. That supposition needs to be reconsidered and clarified. I assume a report under s. 89(1)(b) would normally repeat or refer to information (source information) which has been acquired by reason of or in the course of, the exercise of functions under the PIC Act i.e. information to which s. 56 applies. While it must be the case that source information . can be d ivulged pursuant to s. 56(4)(c), I have a doubt as to

whether information as reported in a report can be divulged pursuant to s. 56(4)(c). That is because I consider the provision of reports to persons is governed by s. 89

and that to divulge to a person information as reported in a report is to provide part of

the report to that person. In my answer to question 1 I have indicated the persons to whom I consider a report may be provided. I doubt s. 56(4) is intended to be a source

of authority for the provision to a person of a report that is made under s. 89(1)(b). A report will also contain information that does not refer to source information, such as the conclusions and recommendations of the Inspector. Again, regardless of whether

this information is information to which s. 56 applies (it is somewhat odd to speak of it

as information "acquired" in the exercise of functions under the PIC Act), the provision to persons of information consisting of part of a report is, I consider, governed by

s. 89(1 )(b).

Making reports and information public

8.6 Whereas s. 1 03(2) makes provision for the Inspector to recommend that a report in

Division 2 of PI. 8 be made public, no express provision is made in relation to making public reports under s. 89(1 ) (b). That might suggest a legislative intention that reports

under s. 89(1)(b) are not intended to be made public. If I am correct that a report

under s. 89(1)(b) is intended to be provided to persons who have a role in assisting

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the resolution of a complaint, it is difficult to conceive of a case where publication to

the public would assist such resolution.

8.7. As I have said, s. 56(4) authorises the divulging of information the subject of the

prohibition in s. 56(2), in the circumstances specified in s.56(4). Section 56(4) does

not refer expressly to divulging information to which s.56 applies to the public. I think

s. 56(4)(c), for example, could extend to divulging such information to the public

provided the Inspector is able to certify that it is necessary to do so in the public

interest. It is not, of course, sufficient that members of the public may be interested in

knowing the information in question. The public interest must make it necessary that

the information be divulged to the public.

Legislative changes

8.8 In researching this advice it became apparent that uncertainty as to the extent to

which reports under s. 89(1 )(b) can be furnished by the Inspector to other persons has existed for some time. Suggestions as to legislative change have been made and a number of different approaches have been taken with regard to the furnishing of

reports to date. Accordingly, I agree with the comments made by others that legislative amendments that clarify the Inspector's power to provide complaint reports should be considered. The nature and form of such amendments are matters that can be determined in consultation with the Parliamentary Counsel. As the provisions regarding the Inspector of the Independent Commission Against Corruption mirror those of the Inspector in the PIC Act, consideration should also be given to Similarly amending the Independent Commission Against Corruption Act 1998.

Signed:

cit Crown Solicitor

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Appendix: Relevant legislation Police Integrity Commission Act 1 996 56 Secrecy

( 1 ) This section applies to:

(a) a person who is or was an officer of the Commission, and

(b) a person who is or was an officer of the Inspector, and

12

(c) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal " practitioner's functions as counsel to the Commission, and

(d) a person or body referred to in section 1 5 (6), 1 8 (4), 77 (5) or 83 (6), and

(e) an authorised person referred to in section 1 8A.

(2) A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act:

"(a) make a record of any information, or

(b) divulge or communicate to any person any information,

being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(3) A person to whom this section applies cannot be required:

(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or

(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,

except for the purposes of a prosecution , disciplinary proceedings or proceedings under Division 1 A or 1 C of Part 9 of the Police Act 1 900, arising out of an investigation conducted by the Commission in the exercise of its functions.

(4) Despite this section, a person to whom this section applies may divulge any such information:

(a) for the purposes of and in accordance with this Act, or

(b) for the purposes of:

(i) a prosecution, or

(ii) disciplinary proceedings, or

(iii) the making bf an order under section 1 73 or 1 81 D of the Police Act 1 900, or

(iv) proceedings under Division 1A or 1 C of Part 9 of that Act,

arising out of an investigation conducted by the Commission in the exercise of its functions, or

(c) in accordance with a direction of the Commissioner or Inspector, if the Commissioner or Inspector certifies that it is necessary to do so in the public interest, or

(d) to any prescribed authority or person.

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(5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, is subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) in respect of that information as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.

(6) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

89 Principal functions of Inspector

( 1 ) The principal functions of the Inspector are:

(a) to audit the operations of the Commission for the purpose of monitoring compliance with the law of the State, and

(b) to deal with (by reports and recommendations) complaints of abuse of power, impropriety and othedorms of misconduct on the part of the Commission or officers of the Commission, and

(c) to assess the effectiveness and appropriateness of the procedures of the Com'mission Relating to the legality or propriety of its activities.

(2) The functions of the Inspector may be exercised on the Inspector's own initiative, at the request of the Minister, in response to a complaint made to the Inspector or in response to a reference by the Ombudsman, the ICAC, the New South Wales Crime Commission, the Joint Committee or any other agency.

(3) The Inspector is not subject to the Commission in any respect.

90 Powers Of Inspector

( 1 ) The Inspector:

(a) may investigate any aspect of the Commission's operations or any conduct of officers of the Commission, and

(b) is entitled to full access to the records of the Commission and to take or have copies made of allY of them, and

(c) may require officers of the Commission to supply information or produce documents or other things about any matter, or any class or kind of matters, relating to the Commission's operations or any conduct of officers of the Commission, and

(d) may require officers of the Commission to attend before the Inspector to answer questions or produce documents or other things relating to the Commission's operations or any conduct of officers of the Commission, and

(e) may investigate and assess complaints about the Commission or officers of the Commission, and

(f) may refer matters relating to the Commission or officers of the Commission to other agencies for consideration or action, and

(g) may recommend disciplinary action or criminal prosecution against officers of the Commission.

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< ,


93 Incidental powers

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The Inspector has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of the Inspector's functions. Any specific powers conferred on the Inspector by this Act are not taken to limit by implication the generality of this section.

95 Functions

(1 ) The Joint Committee has the following functions under this Act:

(a) to monitor and review the exercise by the Commission and the Inspector of their functions,

(b) to report to both Houses of Parliament, with such commenis as it thinks fit, on any matter appertaining to the Commission or the Inspector or connected with the exercise of their functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed,

(c) to examine each annual and other report of the Commission and of the Inspector and report to both Houses of Parliament on any matter appearing, or arising out of, any such report,

(d) to examine trends and changes in police corruption, and practices and methods relating to police corruption, and report to both Houses of Parliament any changes

. which the Joint Committee thinks desirable to the functions, structures and procedures of the Commission and the Inspector,

(e) to inquire into any question in connection with its functions which is referred to it by both Houses of Parliament, and report to both Houses on that question.

(2) Nothing in this Part authorises the Joint Committee:

(a) to investigate a matter relating to particular conduct, or

(b) to reconsider a decision to investigate, not to investigaie or to' discontinue investigation of a particular complaint, a particular matter or particular conduct, or

(c) to reconsider the findings, recommendations, determinations or other decisions of the Commission in relation to a particular investigation or a particular complaint.

(3) The provisions of Part 4A of the Ombudsman Act 1974 apply in relation to the Joint COlTlmittee's functions under this Act in ihe same way as ihey apply in relation io ihe Joint" Committee's functions under that Act.

Part 8 Reports to Parliament

Division 1 Reports by Commission

96 Reports on investigations

( 1 ) Report where investigation

The Commission may prepare reports in relation to any matter that has been or is ihe SUbject of an investigation.

(2) Report where public hearing

The Commission must prepare reports in relation to matters as to which the Commission has conducted a public hearing.

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(3) Report to be furnished to Presiding Officer

The Commission is to furnish reports prepared under this section to the Presiding Officer of each House of Parliament

(4) Timing of report

A report required under this section is to be furnished as soon as posSible after the Commission has concluded its involvement in the matter.

(5) Deferral

The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest.

97 Content of reports to Parliament

( 1 ) The Commission is authorised to include in a report under section 96:

(a) statements as to any of its assessments, opinions and recommendations, and

(b) statements as to the Commission's reasons for any of its assessments, opinions and recommendations.

(2) The report must include, in respect of each "affected" person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:

(a) the prosecution of a person for a specified criminal offence,

(b) the taking of action against the person for a specified disciplinary offence,

(c) the taking of action (including the making of an order under section 1810 of the Police Act 1990) against the person as a police officer on specified grounds, with a view to dismissing, dispensing with the services or otherwise terminating the services of the police officer,

(d) the taking of reviewable action within the meaning of section 1 73 of the Police Act 1990 against the person as a police officer.

(3) An "affected" person is a person against whom, in the Commission's opinion, substantial allegations have been made in the course of or in connection with the investigation concerned.

(4) Subsection (2) does not limit the kind of statement that a report can contain concerning any such "affected" person and does not prevent a report from containing a statement described in that subsection in respect of any other person.

98 Special reports

The Commission may, at any time, make a special report to the Presiding Officer of each House of Parliament on any administrative or general policy matter relating to the functions of the Commission.

99 Annual reports

( 1) The Commission is required to prepare, within the period of 4 months after each 30 June, a report of its operations during thEi year ended on that 30 June and furnish the report to the Presiding Officer of each House of Parliament.

100 Reports relating to authorities

( 1 ) The Commission may furnish to the Presiding Officer of each House of Parliament a report setting out a recommendation referred to in section 79 or·79A which it is of the opinion should be adopted and the reasons for its opinion.

(2) Such a report must not be furnished until after the period of 21 days referred to in section 79 (3) or 79A (3) (as the case requires) has passed.

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Division 2 Reports by Inspector

101 Special reports

1 6

The Inspector may, at any time, make a special report to the Presiding Officer of each House of Parliament on:

(a) any matters affecting the Commission, including, for example, its operational effectiveness or needs,

(b) any administrative or general policy matter relating to the functions of the Inspector.

102 Annual reports

The Inspector is required to prepare, within the period of 4 months after each 30 June, a report of the Inspector's operations during the year ended on that 30 June and furnish the report to the Presiding Officer of each House of Parliament.

Division 3 General

103 Provisions relating to reports

( 1 ) · A copy of a report furnished to the Presiding Officer of a House of Parliament is to be laid before that House within 15 sitting days of that House after it is received by the Presiding Officer.

(2) In the case of a report of the Commission, the Commission may include in it a recommendation that the report be made public forthwith. In the case of a report of the Inspector, the Inspector may include in it a recommendation that the report be made public forthwith.

(3) If a report includes a recommendation that the report be made public forthwith, a Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House.

(4) If such a report is made public by a Presiding Officer of a House of Parliament before it is laid before that House, it attracts the same privileges and immunities as if it had been laid before that House.

(5) A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied as regards a report purporting to have been made and furnished in accordance with this Act.

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schedule of associated correspondence and legal opinions

Documents