Commissioner only", Parliament manifested its intention that this was the only means of making a valid report (referring in this context to Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]–[93]).
318 Ms McColl was appointed as an Assistant Commissioner under s 6A(1) of the Act on 15 July 2020 on which date the Chief Commissioner executed an instrument under s 107(1)–(2) of the Act delegating specified functions to Ms McColl. Those functions did not include the function of "making a report" (as the Commission accepted in submissions in this Court – see AT 51.41).
319 After a number of extensions, Ms McColl's appointment as Assistant Commissioner expired. Ms McColl's engagement as a consultant (after the expiry of her term as Assistant Commissioner) in late October 2022, as announced by the Commission on about 28 October 2022, was "for the purposes of her finalising the [Report], including participating in the review and editing processes of that [Report]".
320 The Commission received the last of the written submissions in relation to the enquiry on 18 October 2022. There is no suggestion that prior to the expiry of her term as Assistant Commissioner Ms McColl had provided a draft Report to the Commission. Indeed, it is clear that, as at 11 January 2023, Ms McColl had not yet completed her draft of the Report. On that date, the Commission issued a media release stating that Ms McColl was working to complete a draft of the Report as soon as possible and that once the Report had been received it would need to be subjected to the Commission's "review, editing and production processes". The draft Report was not received until 8 February 2023; and was not finalised (through the process referred to at [59] of the majority judgment) until 26 June 2023 before being furnished to Parliament on 29 June 2023.
321 The significance of the above timeline of events is that whatever draft "findings" were recommended or included in the draft Report when it was submitted by Ms McColl on 8 February 2023, they must have been made by her at that time in her capacity as a consultant and not as Assistant Commissioner. This is of relevance because the applicant submits that, from 1 November 2022 onwards, the function of preparing a report required under s 74(3) could not be carried out by Ms McColl; that function could be delegated only to an Assistant Commissioner (assuming a perceived or potential conflict of interest subsisted or the interests of justice required).
322 The applicant submits that the media releases by the Commission referred to above provide a sound basis to conclude that Ms McColl was carrying out the function of preparing the Report after the expiration of her Commission on 31 October 2022. I agree. The applicant further submits that the Commission's role was limited to reviewing and deciding whether or not to adopt Ms McColl's draft Report. In this regard, the applicant points to the refusal of the Commission to provide disclosure of matters going to Ms McColl's functions after 31 October 2022, of which the Commission has peculiar knowledge, as providing a ready basis for the drawing of a negative inference
