Johns v Australian Securities Commission

(c) otherwise dismiss the appeal to the Full Curt of the Federal Court.

4. Liberty to each of the parties to file and serve on each of the other parties within 14 days written submissions as to the orders which should be made relating to

(a) the costs of the proceedings in the Federal Court;

(b) the costs of the application for special leave to appeal to this Court;

5. Liberty to each of the parties to file and serve submissions in reply, if any, within 7 days from service of the submission to which the reply relates or, in the case of the submissions already failed by the fourth, fifth and eighth respondents, within 21 days of this order.

I take the facts of this case substantially from the judgment of Black C.J. and von Doussa J. in the Full Court of the Federal Court from which this appeal is brought [1] . The appellant (Mr. Johns) was the managing director of twenty-two companies comprising the Tricontinental group ("Tricontinental") at the time of the group's collapse. On 7 September 1990 the Victorian Government secured the appointment by the Governor-in-Council of a Royal Commission to inquire into the affairs of Tricontinental. The fourth and fifth respondents, the Hon. Sir Edward Woodward O.B.E., Q.C. and Mr. D. G. Williamson R.F.D., Q.C., are the two Commissioners who remained in office at the time of the appeal in this matter to the Full Court of the Federal Court. The terms of reference of the Royal Commission were, in general, to inquire into and report upon the affairs of and transactions engaged in by Tricontinental. Particular topics for investigation were, in summary, (1) whether any person had committed any criminal offence or breach of statutory duties; (2) whether any officer of Tricontinental had acted illegally, improperly or in breach of duty; (3) what matters and events caused the collapse; (4) whether any auditor, valuer or adviser had acted in breach of duty to Tricontinental or had given false or misleading information; (5) whether the affairs of Tricontinental were properly supervised by its own directors and managers, and by other nominated people; (6) whether any person was liable to make restitution or pay compensation to Tricontinental or the State Bank of Victoria; and (7) whether any changes to the law are necessary.

On the same day that the Governor-in-Council appointed the Royal Commissioners, the Attorney-General for the State of Victoria, being the Minister for the time being responsible for the administration of the Companies (Application of Laws) Act 1981 Vic, gave a ministerial direction pursuant to s. 291(1) of the Companies (Victoria) Code ("the Code") to the National Companies and Securities Commission ("the N.C.S.C.") to arrange for an investigation into the affairs of Tricontinental by the three Royal Commissioners identified by name in the ministerial direction. The matter to be investigated was specified as "the affairs of and transactions engaged in by the corporations in the Tricontinental group". The topics in particular to be investigated were specified in the same terms as in the Letters Patent establishing the Royal Commission. On the same day the N.C.S.C., in compliance with s. 292(3) and (4) of the Code, appointed the Royal Commissioners as inspectors to carry out the investigation, and notification of the investigation was given under s. 292(6). The Commission also certified under s. 292(9) that an investigation under Pt VII of the Code into the affairs of Tricontinental was being carried out by the Royal Commissioners as inspectors.

However, on 1 January 1991, before the Royal Commissioners entered on their hearings, the provisions of the Australian Securities Commission Act 1989 Cth ("the Act") relevant to these proceedings came into force and the functions of the N.C.S.C. devolved on the first respondent, the Australian Securities Commission ("the A.S.C.") [2] . By s. 14A(2) of the Act, the ministerial direction under the Code was given the effect of a direction under s. 14(1) of the Act "with such other modifications (if any) as the circumstances require". The ministerial direction required the A.S.C. to investigate the matters which the Minister had specified [3] , but the A.S.C. did not delegate any of its powers under the Act to the Royal Commissioners. The Royal Commissioners exercised their powers under the Letters Patent appointing the Royal Commission. In 1991 the Royal Commission commenced substantial public hearings.

1. The Act, s. 11(1A). 2. See s. 14(1) and (3) of the Act.

The N.C.S.C. and subsequently the A.S.C. had agreed to make available to the Royal Commission the services of certain of their officers, including the third respondent, Ms. Megay. Ms. Megay became the Director of Investigations for the Royal Commission. Following an arrangement made on or about 11 February 1991 between the A.S.C. and the Royal Commission, the A.S.C. delegated to Ms. Megay and to some other A.S.C. officers attached to the Royal Commission the powers and functions of the A.S.C. under Pt 3 of the Act.

Section 19(2)(b) of the Act empowers the A.S.C. by written notice to require certain persons "to appear before a specified member or staff member for examination on oath and to answer questions". This power is available "where the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1" of Pt 3 of the Act. Mr. Johns was given a notice to appear for examination before Ms. Megay "in relation to an investigation of the activities of the Tricontinental group of companies". He appeared before Ms. Megay on 17 July 1991 and on a number of subsequent occasions. Ms. Megay, in exercise of the powers conferred by s. 21, required Mr. Johns to answer on oath or affirmation questions which she put to him "relevant to a matter that the Commission is investigating". The examinations were conducted in conformity with s. 22(1) which provides:

The examination shall take place in private and the inspector may give directions about who may be present during it, or during a part of it.

Transcripts were made of these examinations. The information in these transcripts was protected from disclosure by s. 127(1) of the Act subject to certain qualifications prescribed by s. 127(2), (3) and (4). Sub-section (1) reads as follows:

The Commission shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction. Sub-sections (2), (3) and (4) prescribe particular circumstances in which such information is authorized to be used or disclosed [4] . Pursuant to a delegation by the Chairperson of the A.S.C., Ms. Megay authorized the disclosure of certain transcripts to the Royal Commission under s. 127(4)(b) of the Act which provides: Where the Chairperson is satisfied that particular information:

(b) will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power; or

the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information. Ms. Megay at first released transcripts to the Royal Commission to be used " within the Royal Commission" and only "for the purpose of enabling or assisting the Royal Commission to perform or exercise one or more of its functions or powers, and for no other purpose". Ms. Megay's advice did not authorize the Royal Commission to publish the transcripts but only to use them internally. That was in accordance with a decision taken by the A.S.C. on 11 February 1991 and communicated to Ms. Megay in the following terms: The A.S.C. is concerned that, where information is provided to the Royal Commission pursuant to section 127(4), that information should be held by the Royal Commissioners as confidential information, unless the A.S.C. otherwise agrees. The Commission members take the view that all information obtained by the A.S.C. under compulsive procedures is prima facie subject to the confidentiality obligations in section 127(1). The A.S.C. believes that it would not be appropriate to disclose material to any person who may intend publication of that material, without a reconsideration of the information to be made public.

We understand that the Royal Commissioners would wish to hold as many hearings in public as possible, but trust that we can come to an appropriate arrangement to ensure that information disclosed to the Royal Commissioners by the A.S.C. is only made public where appropriate.

1. But s. 127(6)(b) contemplates the possibility of authorized use or disclosure of information in other circumstances.

It was understood that, when transcripts were released, the Royal Commission was not thereby authorized to publish them. At first the Royal Commission sought permission from the A.S.C. on each occasion when it desired to use publicly the transcripts released to it by Ms. Megay. In respect of three of these transcripts, Ms. Megay gave permission for their public release by the Royal Commission. But this practice presented some difficulties. The Royal Commission thought it desirable to hold as many hearings as possible in public and, on 17 September 1991, the second respondent, Mr. Hartnell, who was the Chairperson of the A.S.C., wrote to senior counsel assisting the Royal Commission setting out a new arrangement:

I believe that the existing delegation of powers under section 127(4) to your Director of Investigations is appropriate for the release of information for use within your Commission.

However, with respect to the public dissemination of any A.S.C. information to which section 127 relates, I believe that there must be a full and proper consideration of each particular item of information, prior to the exercise of the discretion conferred by section 127(4). Accordingly, because of possible difficulties which I may have in exercising a personal discretion in relation to all the material obtained by your Commission, in exercise of A.S.C. powers, I propose a new arrangement whereby Mrs. Megay will exercise a delegated power to consent to the public release of information provided by the A.S.C. to your Commission. That consent will operate to waive the confidentiality condition otherwise imposed upon all A.S.C. information provided to your Commission.

In the case of records of examinations conducted pursuant to A.S.C. powers, I propose that Mrs. Megay should exercise the powers contained in section 25 of the A.S.C. Law, but consistent with the Commission's policy in relation to any proposed release. Mrs. Megay is already delegated all powers contained in Part 3 of the A.S.C. Law, including section 25.

I will authorise Mrs. Megay to release certain records of examination, again with the consent of Mr. Stephen Menzies. In appropriate cases, it may be necessary to impose conditions to the disclosures pursuant to section 25, consistent with A.S.C. policy, but these conditions can be agreed between Mrs. Megay and Mr. Menzies. (Mr. Menzies was a senior officer of the A.S.C.)

(1) The Commission may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person's lawyer if the lawyer satisfies the Commission that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.

(2) If the Commission gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, shall not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding:

(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents.

Penalty: $1,000 or imprisonment for 3 months, or both.

(3) The Commission may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book.

Ms. Megay, purporting thereafter to act in exercise of her delegated powers under s. 25(3), gave transcripts of Mr. Johns' examinations to the Royal Commission and, in a majority of instances, gave written permission for the Royal Commission to use the transcripts in a public hearing.

When copies of transcripts of examinations of Mr. Johns conducted by Ms. Megay were tendered in evidence in public hearings by the Royal Commission, the Royal Commission made copies available to media representatives, including journalists from the sixth respondent, The Herald & Weekly Times Ltd. ("H.W.T.") and from the seventh respondent, the Australian Broadcasting Corporation ("the A.B.C."). Information contained in those transcripts has been published by the media.

Mr. Johns was called to give evidence before the Royal Commission. On 11 December 1991 he refused to answer certain questions. His claim of privilege against self-incrimination was upheld by the Supreme Court of Victoria. As s. 68 of the Act denied him that privilege in his examinations before Ms. Megay, the Royal Commission thought that "it would have been better if the Commission had confined the tender of the transcripts to the tender of extracts on a confidential basis, pending the actual giving of evidence to the Commission by Mr. Johns". On 14 February 1992 the Royal Commission ordered:

that no tender of further transcripts by Mr. Johns will be accepted, and that there be no further publication of those already tendered and distributed. It is also ordered that no further use be made before this Commission of the transcripts already tendered. H.W.T. and the A.B.C. brought proceedings in the Supreme Court of Victoria challenging the Royal Commission's non-publication order. Those proceedings were adjourned pending a determination of the present proceedings which Mr. Johns commenced in the Federal Court of Australia on 25 March 1992.

From the Federal Court Mr. Johns sought, inter alia, orders against H.W.T. and the A.B.C. restraining further publication of material from the transcripts of his examinations. Heerey J. dismissed Mr. Johns' action and the Full Court of the Federal Court by majority (Black C.J. and von Doussa J., Davies J. dissenting) dismissed his appeal. This Court granted special leave to appeal on limited grounds. The appellant was given special leave (1) to attack the validity of the decisions of Ms. Megay to release the transcripts to the Royal Commission in circumstances which allowed the information released to be published generally and (2) to argue the relief to which he was entitled if it should be held that Ms. Megay's decisions were, or any of them was, invalid.

Mr. Johns' argument is that neither s. 127(4) nor s. 25(3) of the Act authorized the release of the transcripts of his examinations to the Royal Commissioners in circumstances which authorized, allowed or permitted those transcripts to be published generally. It is submitted that the transcripts should not have been released without requiring that they not be published generally and maintaining that requirement. It is further submitted that by releasing the transcripts in those circumstances and without affording Mr. Johns an opportunity to be heard, he was denied natural justice. On the footing that, for these reasons, the release of his transcripts for general publication was invalid, Mr. Johns' argument is that he is entitled to an order setting aside each of the decisions to release the transcripts and to a further order that H.W.T. and the A.B.C. be restrained from publishing the transcripts or the information contained therein or any part thereof pursuant to s. 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 Cth ("the A.D.(J.R.) Act") or pursuant to his rights in law and/or in equity to protect the confidentiality of the transcripts.

Section 22 of the Act directs that an examination under s. 19 "shall take place in private", the inspector being given a discretion as to who may be present in addition to the inspector, the examinee's lawyer and any staff member approved by the A.S.C. (ss. 22(2), 23). The Act thus maintains the traditional privacy of examinations into the affairs of a company. Privacy has been observed in conducting such examinations out of consideration for the commercial reputation of the company and the protection of witnesses [5] .

1. Hearts of Oak Assurance Co Ltd v Attorney-General [1932] AC. 392, at pp. 397-398, 403; [1931] 2 Ch. 370, at pp. 392-393; In re Pergamon Press Ltd, [1971] Ch. 388, at pp. 399-400, 404; Finnane v Australian Consolidated Press Ltd [1978] 2 NS.W.L.R. 435, at pp. 443-445.

Section 24 provides for the making of a record of statements made at an examination - the transcripts in this case - and ss. 24(2)(b) and 25 provide for the distribution of such transcripts. Although ss. 22 and 23 insist on privacy in the conduct of an examination, s. 25(3) contains no express restriction on the giving of copies of transcripts. Section 26 makes it an offence for any person having possession, custody or control of a copy of a transcript to fail to comply with any condition imposed on the giving of a copy of that transcript under ss. 24(2) or 25(3). However, the general authority to give the transcript conferred by s. 25(3) is not expressly qualified. Yet that apparently unqualified authority is subject to the direction to the A.S.C. in s. 127(1) to take all reasonable measures to protect from unauthorized use or disclosure information given to the A.S.C. in confidence and other information acquired in the performance of its functions. In the absence of an express waiver by all affected parties, the information contained in the transcript of a private examination is given in confidence. And, of course, it is acquired by the A.S.C. in the performance of its functions. Unless the affected parties waive the confidentiality imposed by s. 127(1) or unless statutory authority be found for breaching that confidentiality, it would be contrary to s. 127(1) to disclose the information contained in a copy of the transcript. The terms of s. 25(3), relating to the distribution of transcripts, must be construed in the context of provisions affecting the confidentiality of the information contained therein.

Information is intangible. Once obtained, it can be disseminated or used without being impaired, though dissemination or use may reduce its value or the desire of those who do not have it to obtain it. Once disseminated, it can be disseminated more widely. A person to whom information is disclosed in response to an exercise of statutory power is thus in a position to disseminate or to use it in ways which are alien to the purpose for which the power was conferred. But when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used. In Marcel v Commissioner of Police of the Metropolis [6] Sir Nicolas Browne-Wilkinson V.-C. said, in reference to a statutory power conferred on police to seize documents:

Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorized the use and disclosure of seized documents for purposes other than police purposes. And in Morris v Director of the Serious Fraud Office [7] , Sir Donald Nicholls V.-C. said in reference to information acquired by exercise of statutory powers: The compulsory powers of investigation exist to facilitate the discharge by the S.F.O. of its statutory investigative functions. The powers conferred by s. 2 are exercisable only for the purposes of an investigation under s. 1. When information is obtained in exercise of those powers the S.F.O. may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorized by statute, but not otherwise. Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent. A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence. 1. [1992] Ch. 225, at p. 234. The Vice-Chancellor's view in this respect was affirmed on appeal: see [1992] Ch., esp. at pp. 261, 262. 2. [1993] Ch. 372, at p. 381.

A person who obtains information in exercise of the powers conferred by s. 19 of the Act comes under a statutory duty of confidence with respect to the information thus obtained. It is therefore important to ascertain the purposes for which such information can be legitimately used or disclosed. In the first place, the power conferred by s. 19 of the Act to require a person to appear for examination and to answer questions is conferred for the purpose of obtaining "information relevant to a matter that [the A.S.C.] is investigating, or is to investigate, under Division 1" of Pt 3 of the Act. So the information acquired by conducting a s. 19 examination may be used for the purposes of such an investigation. In addition, s. 127(3) authorizes disclosure of otherwise confidential information by, inter alia, the members and staff members of the A.S.C. for the purposes of performing the official functions of the person making the disclosure. As investigations are but some of the functions of the A.S.C. (most of which are prescribed by Pt 2 of the Act) the Act contemplates that information acquired on examinations under s. 19 may be used and disclosed for the purpose of the performance or exercise of any of the functions of the A.S.C. Then, certain purposes other than the performance of the functions of the A.S.C. are approved by sub-ss. (2) and (4) of s. 127. Information obtained in exercise of the powers conferred by s. 19 may therefore be used or disclosed for the purpose of the performance of any of the functions of the A.S.C. and for any of the purposes mentioned in sub-ss. (2) and (4) of s. 127. But for no other purpose.

The purposes for which information may legitimately be used or disclosed are one thing; the means by which information is used or disclosed are another. Section 127 of the Act relates to purposes; s. 25(3) relates to means. The two provisions must be read together. Section 25(3) cannot be read as conferring a broad discretionary power to disseminate information obtained in exercise of powers conferred by s. [8] . The power conferred by s. 25(3) must be exercised consistently with the provisions of s. 127 so that the giving to a person of "a copy of a written record of the examination together with a copy of any related book" under s. 25(3) is authorized only if it be for a purpose consistent with s. 127. Section 25(3) can be read as authorizing the A.S.C. to give copies of a transcript to another person in cases in which the disclosure of the information contained therein is authorized by s. 127(2), (3) or (4). Or s. 127(2), (3) or (4) can be read as themselves authorizing the employment of appropriate means (including the giving of transcripts) by which to disclose the information that can legitimately be disclosed in accordance with those sub-sections. It matters not whether those provisions be read in one way or the other. The extent of the authority to give a transcript is the same: it is a limited authority.

1. I am, with respect, unable to accept a view of s. 25(3) as broad as that embraced by the Full Court of the Supreme Court of Western Australia in interpreting s. 298(8) of the Companies (Western Australia) Code in Wardley Australia Ltd v Attorney-General (WA) (1991), 5 W.A.R. 453, at p. 468.

The Royal Commissioners were not exercising the powers of the A.S.C. nor can they be said to be performing A.S.C. functions. The investigation being carried on by the Royal Commission and the investigation being carried on by the A.S.C. pursuant to s. 14A of the Act were parallel but distinct investigations. Had the Code remained in force to give effect to the ministerial direction of 7 September 1990, the Royal Commissioners would have had a dual function to perform - as inspectors in an N.C.S.C. investigation as well as Royal Commissioners - but that situation changed on 1 January 1991. If, after that date, information contained in the transcripts of Mr. Johns' examinations was to be given to the Royal Commission by the A.S.C., specific statutory authority had to be found. It was found in s. 127(4)(b) of the Act. The Royal Commission was an agency of the State of Victoria, and there could be no doubt but that the Royal Commission, conducting an investigation parallel with the A.S.C. investigation, would be assisted by the disclosure of the information contained in Mr. Johns' transcripts. The requirements of s. 127(4)(b) were thus satisfied.

The A.S.C. and Ms. Megay evidently saw s. 25(3) and s. 127(4)(b) as alternative sources of authority to give copies of the transcripts to the Royal Commission. The better view may be that s. 25(3) was the source of the authority and s. 127(4)(b) was a limitation on its exercise. But if Ms. Megay or the A.S.C. were in error as to the source of the authority, the error was immaterial. If, as I would hold, it was lawful for the A.S.C. and its delegate Ms. Megay to disclose to the Royal Commission the information contained in the transcripts, it was lawful to disclose that information by giving copies of the transcripts to the Royal Commission. When a power is exercised, a mistake in the source of the power works no invalidity [9] . Validity depends simply on whether a relevant power existed.

1. Moore v Attorney-General ( Irish Free State ), [1935] A.C. 484, at p. 498; R v Bevan; Ex parte Elias and Gordon (1942), 66 C.L.R. 452, at p. 487; Brown v West (1990), 169 C.L.R. 195, at p. 203.

Prima facie, it is the privilege of any person who possesses information to keep the information confidential. That person may wish not to disclose it at all or may wish to disseminate it or to authorize its dissemination only for a limited purpose or to a limited class of persons. In Attorney-General v Guardian Newspapers [No 2] [10] - the Spycatcher case - Bingham L.J. said:

It is a well-settled principle of law that where one party ("the confidant") acquires confidential information from or during his service with, or by virtue of his relationship with, another ("the confider"), in circumstances importing a duty of confidence, the confidant is not ordinarily at liberty to divulge that information to a third party without the consent or against the wishes of the confider. The jurisdictional basis or bases of this principle may not have been finally determined [11] but there is certainly jurisdiction in equity to grant relief against actual or threatened abuse of confidential information. In Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [12] , Deane J. said: It is unnecessary, for the purposes of the present appeal, to attempt to define the precise scope of the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trade mark right. A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: see The Commonwealth v John Fairfax & Sons Ltd [13] . Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. 1. [1990] 1 A.C. 109, at p. 214. 2. [1990] 1 A.C., at p. 281, per Lord Goff of Chieveley. 3. (1984) 156 C.L.R. 414, at pp. 437-438. 4. (1980) 147 C.L.R. 39, at pp. 50-52.

Deane J. was speaking of the exclusive jurisdiction of equity to enforce a duty imposed by equity. The jurisdiction to restrain the repository of a statutory power from using or disclosing information obtained in exercise of the power cannot rest on the same basis. A duty not to use or to disclose information obtained in exercise of a statutory power except for a purpose authorized by the statute is a duty imposed by statute, not by equity. Yet the equitable remedy of injunction is available in appropriate cases to enforce a statutory duty against a public authority [14] . Jurisdiction to grant an injunction, like jurisdiction to make a declaration [15] , is well established - albeit the theoretical foundation of the jurisdiction has not been clearly defined [16] .

1. Bradley v The Commonwealth (1973), 128 C.L.R. 557, esp. at pp. 575, 581-582; Annetts v McCann (1990), 170 C.L.R. 596. 2. Dyson v Attorney-General [1911] 1 KB. 410; Balog v Independent Commission Against Corruption (1990), 169 C.L.R. 625. 3. See de Smith's Judicial Review of Administrative Action, 4th ed. (1980), ch. 9.

The confidentiality of the information contained in the Johns transcripts was thus amenable to protection by injunction in cases where its use or disclosure was not authorized by statute. But once the A.S.C., possessed of statutory authority to disclose the information to the Royal Commission, gave the transcripts to the Royal Commission, the confidentiality of the information could be protected by order against the Royal Commission only by enforcing an "obligation of conscience arising from the circumstances in or through which the information was communicated or obtained". However, there was no abuse of confidence on the part of the Royal Commissioners. They observed punctiliously the conditions which the A.S.C. or Ms. Megay imposed on the use which the Royal Commission might make of the transcripts. Before any transcript was used in public hearings, approval was given by the A.S.C. or by Ms. Megay. Although Mr. Johns attacks the validity of the decisions by the A.S.C. and Ms. Megay to approve the use of the transcripts in public hearings, he makes no case that the Royal Commissioners were knowingly privy to any wrongful approval. It cannot be said that the Royal Commissioners came under any obligation of conscience not to use the transcripts in public hearings once approval for that use had been given.

The question whether approval for use of the transcripts in public hearings was validly given depends on the scope and effect of s. 127(1) and (4)(b). Section 127(1) protects information from "unauthorised use or disclosure". It does not purport to protect information from publication when the publication occurs in the course of an authorized use or disclosure. For example, the Act contemplates that information contained in the transcript of a s. 19 examination may be published in the course of court proceedings: see ss. 25(1) and (2), 68 and 76 and generally Pt 3 Div 9. When information is disclosed under s. 127(4)(b) to an agency of a State to enable or assist it to perform its functions, the use or disclosure of that information by that agency is not governed by s. 127(1).

It is arguable that, where the A.S.C. discloses information to a State agency under s. 127(4)(b), the A.S.C. has no power to impose a condition on the agency's use or disclosure of that information. I do not accept that argument. No doubt the Royal Commission itself had a discretion as to the use which it chose to make of information disclosed to it by the A.S.C., but, statutory provisions apart, that discretion could be exercised only in a manner consistent with the terms upon which the Royal Commission had received the information from the A.S.C. The power conferred on the A.S.C. by s. 127(4)(b) is discretionary and there is no reason why the A.S.C. should not disclose information under that provision upon a condition governing the receiving agency's use or further disclosure of the information. An authority conferred by statute is construed as authorizing everything which can fairly be regarded as incidental to or consequential upon the authority itself [17] . Therefore it is within the competence of the A.S.C., as a condition of disclosing information to a State agency, to impose a restriction on the use or further disclosure which the agency may make of the information disclosed. When such a condition is imposed, it may be enforceable as a statutory duty if s. 26 applies but, in any event, it will be enforceable as an equitable obligation, the conscience of the State agency being affected by the terms on which it receives the information. The condition may be enforced by injunction or perhaps, in the event of breach, by damages in lieu of injunction under Lord Cairns' Act.

1. Attorney-General v Great Eastern Railway Co (1880), 5 App. Cas. 473, at p. 478; Reg v Gough; Ex parte Australasian Meat Industry Employees' Union (1965), 114 C.L.R. 394, at pp. 416, 422.

In this appeal, the decisions taken by the A.S.C. and Ms. Megay which Mr. Johns seeks to attack are not simply the decisions to disclose the information in the transcripts to the Royal Commission but the decisions to do so in circumstances which allowed the transcripts to be published generally. In substance this is an attack on the lifting of the condition that that information not be used in public hearings. The power to lift the condition, like the power to impose it, is conferred as an incident of the authority conferred by s. 127(4)(b) taken in conjunction with s. 25(3). It is therefore amenable to review under the A.D.(J.R.) Act.

Prima facie, the A.S.C. and Ms. Megay were obliged by s. 127(1) to keep the Johns transcripts confidential except to the extent to which disclosure was authorized for the purpose of the performance of a function of the A.S.C. Prima facie, Mr. Johns had a corresponding right to insist on the maintenance of that confidentiality [18] . But, as s. 127(4)(b) authorizes disclosure to State agencies, the confidentiality of the transcripts was vulnerable to destruction by exercise of that authority. The prima facie obligation imposed on the A.S.C. and Ms. Megay to keep the transcripts confidential affected the manner in which they could lawfully exercise the discretion under s. 127(4)(b) to lift the condition against use of the transcripts in public hearings. The exercise of a statutory power or authority may annihilate or modify an antecedent right or duty [19] , but that is not to say that the antecedent right or duty is irrelevant to the manner in which the statutory power or authority is to be exercised. The antecedent right or duty is a relevant factor affecting the discretionary exercise of the statutory power or authority. It will not ordinarily be a determinative factor, because statute will usually confer the power or authority for some public purpose embracing factors beyond the rights of, or duties owed to, an individual. Thus, in the present case, Mr. Johns' prima facie right to confidentiality of the transcripts was a relevant factor to be taken into account in deciding whether to disclose the information contained in the transcripts to a State agency, but it was not determinative of the question. It is clear, however, that the confidentiality of the transcripts was taken into account in the decisions to release the transcripts to the Royal Commission and to permit their use in public hearings. Those decisions are not open to attack on the ground that a material factor was not taken into account. Nor could an argument founded on unreasonableness impugn a decision to make the Johns transcripts available for use by the Royal Commission. The holding of public hearings was a proper function of the Royal Commission and a decision to permit the use of the transcripts for that purpose was within the bounds of reasonableness and was made for a purpose for which authority under s. 127(4)(b) was conferred.

1. See Marcel v Commissioner of Police of the Metropolis [1992] Ch, at pp. 237, 261, 262. 2. Smorgon v Australia & New Zealand Banking Group Ltd (1976), 134 C.L.R. 475, esp. at pp. 486-488.

However, it is another question whether the decision to make the transcripts available for use in public hearings ought to have been made without giving Mr. Johns an opportunity to be heard in opposition. The decisions to allow the use of the transcripts in public hearings were prejudicial to Mr. Johns' interests. Some indication of that prejudice is shown by the Royal Commission's observation that "it would have been better if the Commission had confined the tender of the transcripts to the tender of extracts on a confidential basis, pending the actual giving of evidence to the Commission by Mr. Johns".

An exercise of the authority conferred by s. 127(4)(b) is apt to affect adversely the interests of an examinee who is prima facie entitled to have the confidentiality of the transcript of the examination observed. Accordingly there is an obligation on a person proposing to exercise that authority to observe the rules of natural justice [20] . Of course, there would be some situations in which natural justice would not require notice to be given to an examinee of an intention to make transcripts of the examination available to a State agency: for example, where an investigation by a State law enforcement agency might be frustrated by informing the examinee that information disclosed in a s. 19 examination was in the hands of the agency. But where no such consideration countervails against a person's right to be heard before a decision prejudicial to his or her interests is taken, the A.S.C. should give that person an opportunity to oppose. In this case, the decisions to permit the Royal Commission to use the transcripts in public hearings were taken without reference to Mr. Johns. He was given no formal opportunity to oppose the decision to permit use of the transcripts in public hearings, though he must have known, after the decision to permit use in a public hearing of the first transcript, that a similar decision might be taken with respect to other transcripts. Yet there seems to have been no exigency which warranted a failure to give him a formal opportunity to object. That opportunity should have been given [21] . Had Mr. Johns opposed their public use, the A.S.C. and Ms. Megay may have formed the view, like the subsequent view of the Royal Commission, that it would be better that the transcripts not be used in public hearings. Had that decision been taken, the probabilities are that it would have been respected by the Royal Commission.

1. Kioa v West (1985), 159 C.L.R. 550, at p. 619; Annetts v McCann (1990), 170 C.L.R., at p. 598; Ainsworth v Criminal Justice Commission (1992), 175 C.L.R. 564, at pp. 591-592. 2. See Marcel v Commissioner of Police of the Metropolis [1992] Ch, at pp. 259, 261; Morris v Director of the Serious Fraud Office [1993] Ch372, at pp. 385.

However, the transcripts were used in the public hearings and it is too late now to recall the decisions which permitted them to be so used. The most that can be done is to declare that the decisions were invalidly taken for failure to accord Mr. Johns an opportunity to be heard in opposition [22] . But should such a declaration be made? In the Full Court of the Federal Court it was unnecessary for the majority to consider whether any discretionary relief should be granted but their Honours nevertheless indicated that Mr. Johns had left his challenge too late. This is a powerful consideration but, on balance, I would favour the making of a declaration. Yet it will be a pyrrhic victory for Mr. Johns.

1. Ainsworth v Criminal Justice Commission (1992), 175 C.L.R., at pp. 581-582, 595-597.

There remains the question of the relief against H.W.T. and the A.B.C. Counsel for Mr. Johns submits that, as the information contained in the transcripts has not been generally disseminated by the media and as the Royal Commission imposed a ban on further dissemination, the information is not in the public domain. In support of this submission, counsel cited passages from cases in which the courts have acknowledged that relief can be given to restrain a defendant from publishing confidential information after some limited publication has occurred [23] . A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. Here the transcripts were exhibits tendered before the Royal Commission sitting in public. H.W.T. and the A.B.C. obtained copies of the exhibits as documents already in the public domain. When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain [24] . Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not "imparted so as to import an obligation of confidence": The Commonwealth v John Fairfax & Sons Ltd [25] , per Mason J. In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain [26] . This case concerns information which was already in the public domain at the time when H.W.T. and the A.B.C. acquired it. In Marcel v Commissioner of Police of the Metropolis , Browne-Wilkinson V.-C. said [27] :

there can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared. In the case of the documents which have been read in open court, they have now lost their confidentiality by disclosure in open court. Accordingly, no obligation of confidence was imposed on H.W.T. or on the A.B.C. either by equity or by the Act. 1. The Commonwealth v John Fairfax & Sons Ltd (1980), 147 C.L.R. 39, at p. 54; Franchi v Franchi [1967] RP.C. 149, at pp. 152-153; and see Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987), 8 N.S.W.L.R. 341, at p. 374; David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NS.W.L.R. 294, at p. 299. 2. Home Office v Harman [1983] AC. 280, at pp. 303, 312. 3. (1980) 147 C.L.R., at p. 51. 4. Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987), 8 N.S.W.L.R., at p. 374; Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC., at pp. 271, 286-288, 293. 5. [1992] Ch., at p. 237; see also Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC., at pp. 215, 268, 282.

Nevertheless, Mr. Johns submits that he is entitled to a remedy against H.W.T. and the A.B.C. under the A.D.(J.R.) Act. That Act confers on the Federal Court jurisdiction to make orders "directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties": s. 16(1)(d). H.W.T. and the A.B.C. were joined as respondents to Mr. Johns' application to the Federal Court, but it does not follow that an injunction may issue restraining them from using the transcripts merely because they are made parties to the litigation. The relief which may be ordered under s. 16(1)(d) of the A.D.(J.R.) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer. Some observations in Park Oh Ho v Minister for Immigration and Ethnic Affairs [28] were relied on in support of an argument that the recipient of information was within the purview of that paragraph if the information was received in consequence of a reviewable and void decision. In that case, this Court said [29] :

The legislative purpose to be discerned in the conferral by s. 16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is "necessary to do justice between the parties" (s. 16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality. However, s. 16(1)(d) applies only when the making of an order is "necessary to do justice between the parties". That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence [30] . But H.W.T. and the A.B.C. received the transcripts from the Royal Commission, not from the A.S.C., and it does not appear that either of them had knowledge of any breach of duty on the part of the A.S.C. in permitting publication of the transcripts by the Royal Commission. 1. (1989) 167 C.L.R. 637, at pp. 644-645. 2. ibid., at p. 644. 3. The position in equity of a third party recipient of confidential information was discussed in Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC., at pp. 260, 272.

If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s. 16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the A.D.(J.R.) Act.

I am unable to ascertain any basis for the grant of relief under the A.D.(J.R.) Act against H.W.T. or the A.B.C. They received and were entitled to receive the transcripts free of any obligation of confidence when those transcripts were tendered in the public proceedings of the Royal Commission and were given to them by the authority of the Royal Commission. I note that in Marcel v Commissioner of Police of the Metropolis , Browne-Wilkinson V.-C. said [31] :

so far as I am aware the court in exercising its jurisdiction by way of judicial review would not have power to order third parties who have unlawfully received property from a public authority to return that property. Such right, if any, must be based on a private law cause of action. 1. [1992] Ch., at p. 235.

No order can be made under the A.D.(J.R.) Act against either the sixth or the seventh respondent.

I would therefore - (1) declare as against the Australian Securities Commission and Ms. Megay that the decisions by Ms. Megay to release the Johns transcripts in circumstances which allowed the material or information contained in the transcripts to be published generally were invalid on the ground that the decisions were made in breach of the rules of natural justice; (2) otherwise dismiss the appeal.

In accordance with the procedure discussed during the argument in this case, the making of the order for costs will stand over until the parties to these proceedings have had an opportunity, in the light of the reasons for judgment, to make submissions as to the orders which ought to be made.

In this matter I agree generally with Brennan J. The facts and relevant legislation are set out in his judgment and I shall not repeat them. I wish only to add the following comments.

It is, I think, apparent that information given by a person in the course of an examination under Pt 3 of the Australian Securities Commission Act 1989 Cth ("the Act") must be treated by the Australian Securities Commission ("the A.S.C.") as confidential information. That would probably be the case even apart from specific statutory provision [32] , but it also flows from the requirement that the examination take place in private (s. 22(1)), the restriction placed upon the provision of a transcript of the examination to a person's lawyer (s. 25(1)), the use of the transcript when so provided (s. 25(2)) and the conditions which may be imposed when any person is given a copy of the transcript (s. 25(3)). Most significantly it flows from the express provision in s. 127(1) that the A.S.C. shall take all reasonable measures to protect from unauthorized use or disclosure information given to it in confidence in or in connexion with the performance of its functions or the exercise of its powers under relevant legislation. However, the duty of confidence is not absolute, and statutory authority is given to disclose the information in circumstances set out in s. 127(2), (3) and (4). For present purposes the relevant provision is s. 127(4)(b), which permits disclosure where the information will, amongst other things, enable or assist an agency of a State to perform a function or exercise a power. Clearly, the Victorian Royal Commission to inquire into the affairs of Tricontinental was such an agency.

1. See Hearts of Oak Assurance Co v Attorney-General [1931] 2 Ch370, at pp. 392-393; [1932] A.C. 392, at pp. 397-398; In re Pergamon Press Ltd, [1971] Ch. 388, at pp. 399-400, 404; Finnane v Australian Consolidated Press Ltd [1978] 2 NS.W.L.R. 435, at pp. 443-445.

Whatever view may have been taken by the A.S.C., I agree with Brennan J. that s. 127(2), (3) and (4) deals with the purposes for which information may be disclosed, in contrast with s. 25(3) which deals with the means by which the transcript of an examination may be disclosed. Relevantly, s. 25(3) authorizes the A.S.C., subject to such conditions (if any) as it imposes, to give to a person a copy of the transcript of an examination. Thus, the Act prescribes not only the confidentiality of the transcript, but the means by which and the purpose for which the A.S.C. may disclose that transcript without breach of the duty imposed upon it. There is also a general rule that where a body has statutory powers to compel the provision of information to it, it should not disclose the information except for the purposes for which the powers were conferred [33] . Any other approach in relation to information gleaned under compulsion would encroach further than necessary upon the right of the individual to treat as confidential information in his or her possession. But in this case, the purposes for which disclosure may be made are specifically set out in the Act.

1. Marcel v Commissioner of Police of the Metropolis [1992] Ch225; Morris v Director of the Serious Fraud Office [1993] Ch272.

Although in this case the existence and extent of the duty of confidence resting upon the A.S.C. are to be found in the Act, the same may not be said of any duty of confidence on the part of the Royal Commission arising from receipt of the information imparted to it by the A.S.C. No doubt where information is provided on the condition that confidence be maintained, a duty of confidence might be said to arise from the requirement imposed by s. 26 of the Act that the recipient of a copy of a transcript given subject to conditions shall comply with the conditions. But, that section apart, it must be equity, rather than the statute, which imposed a duty of confidence upon the Royal Commission upon the basis that the information provided to it was confidential and was provided in circumstances which imported an obligation of confidence [34] .

1. See Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC. 109; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984), 156 C.L.R. 414, at pp. 437-438.

The conditions initially imposed upon the Royal Commission that the transcripts not be published were removed and the A.S.C. permitted the Royal Commission to use them publicly. The consent given by the A.S.C. removed the obligation of confidence previously resting upon the Royal Commission [35] and the Royal Commission was then free to publish the information for its own purposes. I agree with Brennan J. that the restriction upon use imposed by s. 127(1) applied to the A.S.C. but not to the Royal Commission. Once provided with the information pursuant to s. 127(4)(b), the Royal Commission was freed from any conditions and was at liberty to use the information to assist in the performance of its own functions. There was, therefore, no breach of confidence by the Royal Commission in using the transcripts in public hearings.

1. See Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC., at p. 214.

The grounds of appeal limit the appellant's complaint to the decision of the A.S.C. to release material or information to the Royal Commission "in circumstances which allowed the material or information released to be published generally". The decision to release the material to the Royal Commission subject to a condition of confidentiality was followed by the decision to consent to the use of the transcripts in public hearings. It would appear that the appellant complains of the later decision and he contends that it is invalid because the A.S.C. failed to hear him before it made this decision. It may be that in some circumstances it could be contended the rules of natural justice ought to be observed by granting a hearing before deciding to release material to another agency for internal use. I express no view upon that question, which would involve considerations of overriding public policy [36] . But in the circumstances of this case, the decision to remove the conditions and to consent to the use of the information publicly was clearly a decision which prejudiced the appellant's rights or interests. Procedural fairness therefore required the A.S.C. to afford the appellant a hearing before making that decision [37] . The appellant's personal reputation was a sufficient interest to require the A.S.C. to observe the rules of natural justice before making a decision which might adversely affect him [38] , but more than that, the publication of the information provided by the appellant under compulsion was a further encroachment upon the appellant's common law right to maintain his silence upon the matters which were the subject of investigation by the A.S.C.

1. See Morris v Director of Serious Fraud Office [1993] Ch, at p. 385. 2. See Annetts v McCann (1990), 170 C.L.R. 596, at p. 598. 3. See Ainsworth v Criminal Justice Commission (1992), 175 C.L.R. 564.

I agree with Brennan J. that the appellant is entitled to a declaration that the decision was invalid. I also agree that the appellant has not made out grounds for relief by way of an order under s. 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 Cth against the Australian Broadcasting Corporation and the Herald & Weekly Times Ltd.

The finding that the transcripts were invalidly released to the Royal Commission does not entitle the appellant to any other relief such as an injunction preventing further breach of confidence. The improper origin of that material cannot alter the fact that the material was introduced into the public domain when it was tendered at a public hearing. There is no breach of confidential information if the information does not have the "quality of confidence" [39] . Information which is on the public record cannot have that quality. It is unnecessary to decide whether the necessary quality of confidence was or could be reimposed upon the material when the Royal Commission made an order restraining its further publication. The validity of the Royal Commission's order has been challenged in the proceedings in the Supreme Court which were adjourned pending the outcome of these proceedings. If that order was invalid, the transcripts remained in the public domain and did not attract an obligation of confidence. If the order was valid, then it took effect of its own force, independently of any obligation of confidence.

1. Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984), 156 C.L.R., at p. 438, per Deane J. Toohey J.

The grant of special leave to appeal in this matter was limited to part of the judgment and order of the Full Court of the Federal Court of Australia from which special leave to appeal was sought. Correspondingly, the grant of special leave was confined to the following grounds:

1. That the decisions by the thirdnamed respondent in purported exercise of the powers delegated to her to release material acquired by the exercise of powers under Part 3 of the Australian Securities Commission Act 1989 or to release other information to the fourthnamed and fifthnamed respondents in circumstances which allowed the material or information released to be published generally were invalid either on the ground that the powers were exercised in breach of the rules of natural justice or otherwise in breach of the express or implied requirements of the Australian Securities Commission Act 1989.

2. If the decisions of the thirdnamed respondent to release material or information to the fourthnamed and fifthnamed respondents were invalid, what right to relief if any does the applicant have against any and which of the respondents?

The first step in these reasons must be to identify the parties before the Court. It is convenient to do so in an order different from that in which they appear in the title of the appeal. It is also convenient to adopt generally the abbreviations used in the judgments of the Federal Court.

On 7 September 1990 the Governor of Victoria, by and with the advice of the Executive Council, appointed a Royal Commission to inquire into and report upon the affairs of a number of companies referred to as "the Tricontinental Group". There were subsequently some changes in the composition of the members of the Royal Commission. In the end the fourth and fifth respondents, Albert Edward Woodward and Douglas Gilbert Williamson, constituted the Royal Commission. They took no part in this appeal, except to make a written submission in relation to the costs of the application for special leave to appeal. Likewise, the eighth respondent, the State of Victoria, took no part in this appeal, except to join in the written submission just mentioned.

The first, second and third respondents have a common interest in the appeal. The first respondent, the Australian Securities Commission ("the A.S.C."), is a body corporate established by the Australian Securities Commission Act 1989 Cth ("the A.S.C. Law"). Its functions and powers are spelt out in s. 11 of the A.S.C. Law by reference to such functions and powers as are conferred on it by the A.S.C. Law and by other identified statutes. The second respondent, Anthony Geoffrey Hartnell, is the Chairperson of the A.S.C. The third respondent, Noreen Claire Megay, is an officer of the A.S.C.; she was also appointed Director of Investigations of the Royal Commission. It is certain decisions made by Ms. Megay which constitute the subject of the appeal to this Court.

In accordance with an arrangement made on or about 11 February 1991 between the A.S.C. and the Royal Commission, the A.S.C. agreed to delegate to certain of its officers, including Ms. Megay, the functions and powers of the A.S.C. under Pt 3 of the A.S.C. Law, headed "Investigations and Information-Gathering". The A.S.C. also agreed to authorize those officers to disclose information gathered under Pt 3 to the Royal Commission.

The appellant, Ian Malcolm Johns, was general manager and later managing director of various operating companies in the Tricontinental Group until his position was terminated in May 1989. On 5 July 1991 Mr. Johns received a notice pursuant to s. 19(2)(b) of the A.S.C. Law requiring his appearance for examination in relation to the investigation of the Tricontinental Group and identifying the particular companies and areas to be investigated. A copy of the delegation by the A.S.C. to Ms. Megay accompanied the notice. On 17 July 1991 and later occasions he was examined on oath in private and documents were obtained from him relating to the matters the subject of the Royal Commission's inquiry. The transcripts of sixteen of those examinations ("the transcripts") and the documents obtained were made available to the Royal Commission. They were initially disclosed on the condition that they be used within the Royal Commission only. They were used internally in a number of ways, for instance as proofs of evidence of witnesses called in public hearings. Some were made available under s. 127(4) of the A.S.C. Law by Ms. Megay acting under a delegation of power made by Mr. Hartnell as Chairperson of the A.S.C. pursuant to s. 127(5) of the A.S.C. Law. Others were disclosed to the Royal Commission under s. 25(3) of the A.S.C. Law, again by Ms. Megay. Eight of the transcripts were later tendered at public hearings of the Royal Commission. In each case public tender was independently authorized by Ms. Megay. As with internal release, public release was authorized pursuant to s. 127(4) and then s. 25(3). It will be necessary to examine these provisions later in these reasons.

Immediately after being publicly tendered as evidence at the Royal Commission, the transcripts were made available to the public and to media representatives, including journalists from the sixth respondent, The Herald & Weekly Times Ltd. ("H.W.T."), and from the seventh respondent, the Australian Broadcasting Corporation ("the A.B.C."). It is not clear how much of the information contained in the transcripts has been published by the media. On 14 February 1992 the Royal Commission made an order that no further tender of the transcripts would be accepted and prohibiting the further publication of material from the transcripts already tendered. That order was challenged in the Supreme Court of Victoria by H.W.T. and the A.B.C. but the matter was adjourned pending a determination of the proceedings in the Federal Court which have culminated in the appeal to this Court. The application in the Supreme Court still stands adjourned.

Mr. Johns made application in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 Cth ("the A.D.(J.R.) Act") to review decisions made by the A.S.C. and Mr. Hartnell and for other relief against the respondents. The decisions impugned by the application included the decision by the A.S.C. to enter into the arrangement with the Royal Commission; the decision by the A.S.C. to delegate to Ms. Megay and others powers under Pt 3 of the A.S.C. Law and power to disclose documents; and the decisions of Ms. Megay, acting as the A.S.C.'s delegate, to issue summonses for private examinations, to conduct those examinations, to make available the transcripts of those examinations to the Royal Commission and to authorize their tender in public hearing. Each was challenged on the grounds that it was not authorized by the A.S.C. Law, was made for an improper purpose, was contrary to law, was made without jurisdiction and was in breach of the requirements of natural justice.

At first instance, Heerey J. [40] dealt with three major issues in turn. First, his Honour considered whether the arrangement between the A.S.C. and the Royal Commission was entered into for an improper purpose or was otherwise contrary to law. Secondly, his Honour considered whether the delegations of power to Ms. Megay and others were valid and continuing at the relevant times. Thirdly, his Honour considered whether disclosure of the transcripts was permissible either by the A.S.C. to the Royal Commission or by the Royal Commission in public hearing. Heerey J. found against Mr. Johns on each point, concluding that the arrangement was valid, the delegations effective and the disclosure permissible. His Honour's decision was affirmed on appeal [41] .

1. Johns v Australian Securities Commission (1992), 35 F.C.R. 16. 2. Johns v Australian Securities Commission (1992), 35 F.C.R. 146.

As is evident from the grant of special leave, the only decisions which remain in contention are the decisions of Ms. Megay to authorize the Royal Commission to release the transcripts publicly. The initial question before this Court, therefore, is whether those decisions were authorized by the A.S.C. Law. Other arguments advanced were that the decisions were made in breach of the rules of natural justice and that the transcripts contained confidential information which should attract equitable relief to prevent its use or publication. It is only if Mr. Johns succeeds on one of these grounds that the further question - to what relief is Mr. Johns entitled? - falls to be answered.

Co-operation between the A.S.C. and the Royal Commission

Reference has been made to an arrangement made on or about 11 February 1991 between the A.S.C. and the Royal Commission. The timing of this arrangement was not fortuitous. Provisions of the Evidence Act 1958 Vic empowered the Royal Commission to require witnesses to attend and be examined on oath [42] . Apart from those provisions and s. 291 of the Companies (Victoria) Code mentioned later in this judgment, the Royal Commission was dependent on the prerogative power which had brought it into existence. On the other hand the A.S.C. Law invested the A.S.C. with a myriad of far-reaching investigative powers.

1. See, in particular, ss. 17, 18, 19 of the Evidence Act.

The A.S.C. Law, the operation of which became effective on 1 January 1991, provided a basis for co-operation between the A.S.C. and the Royal Commission. On 11 February 1991 there was a meeting of the A.S.C. The minutes of that meeting include the following:

(iii) Relationship with the Royal Commission into the Tricontinental Group

The Commission considered a paper concerning the Victorian Royal Commission's investigation of the Tricontinental Group and the degree of overlap between its investigations and the investigations of the A.S.C. and co-operation between the two agencies.

The Commission discussed the relationship between its obligation to treat information in its possession in confidence and providing assistance to the Royal Commission. The Commission noted that the most important issue relates to whether the Chairman is satisfied as to the disclosure of the information under section 127(4) and the delegation of authority in the manner contemplated by the draft letter.

The Commission noted that the Chairman may authorise the disclosure of information where satisfied that the information may assist a Government agency in the performance of its duties. This power may be delegated to a staff member under Section 127(4).

The Chairman emphasised that staff of the A.S.C., including Ms. Megay, not appear before public hearings conducted by the Royal Commission and that staff not be subject to cross examination.

The Commission proceeded to make amendments to the draft letter attached to the paper addressed to Ms. Noreen Megay, Director of Investigations, Royal Commission into the Tricontinental Group of Companies (an officer of the A.S.C. on unpaid leave).

Resolved that the A.S.C. enter into an arrangement with the Royal Commission into the Tricontinental Group in the terms set out in the draft letter attached to the paper, amended to reflect the views of the Commission.

Agreed that the Chairman delegate authority to Mr. Ron Trevethan, Regional Commissioner, Victoria and to Noreen Claire Megay in respect of information gathered by her and her assistants under A.S.C. powers to disclose information under Section 127(4) in accordance with the arrangements proposed.

Further Resolved that the Commission delegate to Noreen Claire Megay, Donald James Christie and Kim Audrey Holmes powers of investigation under Part 3 of the Australian Securities Commission Act, subject to direction.

Also Resolved that the Commission execute the Instrument to give effect to the Commission's decision concerning the delegation of power to Megay, Christie and Holmes.

The minutes refer to a "draft letter attached to the paper addressed to Ms. Noreen Megay". The letter itself, which outlined the proposed arrangement, was amended in accordance with the resolutions of the A.S.C. meeting. The amendments were explained in a second letter to Ms. Megay dated 14 February 1991 and signed by Mr. Stephen Menzies who was the officer in charge of investigations for the A.S.C. The letter reads:

I refer to previous correspondence concerning arrangements to be entered into between the Royal Commission and the A.S.C.

The Commission member [sic] considered these arrangements in its meeting on 11th February. In general terms, the Commission approved the arrangements, with the following amendments:

(a) The A.S.C. is concerned that, where information is provided to the Royal Commission pursuant to section 127(4), that information should be held by the Royal Commissioners as confidential information, unless the A.S.C. otherwise agrees. The Commission members take the view that all information obtained by the A.S.C. under compulsive procedures is prima facie subject to the confidentiality obligations in section 127(1). The A.S.C. believes that it would not be appropriate to disclose material to any person who may intend publication of that material, without a reconsideration of the information to be made public.

We understand that the Royal Commissioners would wish to hold as many hearings in public as possible, but trust that we can come to an appropriate arrangement to ensure that information disclosed to the Royal Commissioners by the A.S.C. is only made public where appropriate.

(b) With respect to paragraph (6), the A.S.C. is concerned to know what documents the Royal Commission holds pursuant to powers exercised under the Australian Securities Commission Act. I understand that you have established a document register, which notes the source of any documents, and the powers under which the document was obtained. Accordingly, I would suggest that, in practice, a copy of that document register be made available on some regular basis (e.g. each quarter). Similarly, the Commission would like to obtain the transcript of any evidence given pursuant to an examination conducted under section 19 of the Australian Securities Commission Act. These procedures are suggested, in order to ensure that the A.S.C. is in a position to monitor its "staff" exercising powers under the Act.

(c) With respect to paragraph (8), Commission members were concerned that staff should not give evidence in public. Furthermore, the Commission requests that staff members not be subject to cross-examination. As I understand it, the purpose of your request that staff members be available to give evidence was to permit evidence to be formally led before the Royal Commissioners, in order to expedite proof of documents and other information held by Commission staff. I therefore assume that this will not cause any difficulty.

(d) At paragraph (9), the A.S.C. would prefer Mr. Ron Trevethan to coordinate any liaison with the Royal Commissioners. As Regional Commissioner, Mr. Trevathan will be in a better position to determine some of the policy issues which may arise.

I trust that these amendments are satisfactory to the Royal Commissioners. I enclose a revised draft of the letter. Would you please confirm whether these arrangements are now satisfactory.

I also enclose the delegations to yourself and Messrs Christie and Holmes, consistent with these arrangements.

As is apparent from par. (a) of Mr. Menzies' letter to Ms. Megay, the A.S.C. was concerned that information provided by it to the Royal Commission pursuant to s. 127(4) of the A.S.C. Law should be treated as confidential information in accordance with s. 127(1) unless and until that aspect had been given further consideration. Against that background the paragraph concluded with a recognition that the Royal Commission would generally involve public hearings; nevertheless it was the expectation of the A.S.C. that appropriate arrangements would be made "to ensure that information disclosed to the Royal Commission by the A.S.C. is only made public where appropriate".

In their formal answer to Mr. Johns' application, the A.S.C., Mr. Hartnell and Ms. Megay pleaded that, in addition to aiding the Royal Commission in its inquiry, the arrangement made on or about 11 February 1991 had other purposes, namely:

(a) for the expedient and due administration of a national scheme law within the meaning and for the purpose of the A.S.C. Law;

(b) to give effect to the objects set out in section 1 of the A.S.C. Law conformably with the terms of that section;

(c) to perform the duties imposed upon the A.S.C. by the A.S.C. Law;

(d) to facilitate (by co-operative arrangements) the performances by the A.S.C. to fulfil its duties and obligations to complete investigations under previous legislation as required by section 14A of the A.S.C. Law; and

(e) to facilitate (by co-operative arrangements) investigations under section 13 of the A.S.C. Law.

The pleading makes specific reference to ss. 13 and 14A of the A.S.C. Law. In argument the A.S.C., Mr. Hartnell and Ms. Megay gave primacy to s. 14A, relying upon s. 13 as a subsidiary source of power. It is necessary to set out the two sections so far as their contents are relevant:

(1) The Commission may make such investigation as it thinks expedient for the due administration of a national scheme law of this jurisdiction where it has reason to suspect that there may have been committed:

(b) a contravention of a law of the Commonwealth or of a State or Territory, being a contravention that:

(i) concerns the management or affairs of a body corporate; or

(ii) involves fraud or dishonesty and relates to a body corporate, securities or futures contracts.

(3) Where the Commission has reason to suspect that a contravention of a relevant previous law of this jurisdiction may have been committed, the Commission may make such investigation as it thinks appropriate.

(a) immediately before the commencement of this subsection, the N.C.S.C. was investigating a matter under a relevant previous law of this jurisdiction; and

(b) either or both of subsections (1) and (3) empower the Commission to investigate that matter; then:

(c) the Commission may continue the N.C.S.C.'s investigation as it thinks appropriate

(d) the investigation, as continued by the Commission, is taken to be an investigation under that subsection, or each of those subsections, as the case may be.

(1) This section applies where, immediately before the commencement of this section:

(i) subsection 290(4) or 291(1), (2) or (3) of the relevant previous law of this jurisdiction relating to the formation of companies; or

(ii) subsection 16(1), (2) or (3) of the relevant previous law of this jurisdiction relating to the securities industry; or

(iii) subsection 22(1), (2) or (3) of the relevant previous law of this jurisdiction relating to the futures industry; and

(b) no investigation pursuant to the direction had yet begun, or such an investigation had begun but had not yet been completed or terminated.

(a) with such modifications (if any) as are specified, in relation to the direction, in an application order; and

(b) with such other modifications (if any) as the circumstances require;

as if it were a direction to the Commission under subsection 14(1).

(3) If, immediately before that commencement, an investigation was being carried out pursuant to the direction:

(a) the Commission must comply with the direction, as it has effect because of subsection (2), by continuing the investigation in accordance with the direction as it so has effect; and

(b) the investigation, as continued by the Commission, is taken to be an investigation under section 14.

Section 14 of the A.S.C. Law provides that the Minister may order an investigation into specified matters including corporate management or suspected impropriety. Unlike previous comparable provisions, the section does not provide for the investigation to be carried out by appointed inspectors.

The reference in s. 14A to a direction in force includes a direction in force under s. 291 of the Companies (Victoria) Code. Such a direction had been given to the National Companies and Securities Commission ("the N.C.S.C.") by the Attorney-General of Victoria on 7 September 1990. It was a direction to arrange for an investigation into the affairs of the Tricontinental Group by the Royal Commissioners. The N.C.S.C. accordingly appointed the Royal Commissioners inspectors. Section 14A came into effect on 1 January 1991 and then operated to invest the A.S.C. with authority to conduct the investigation in its own right and not by inspectors. There was no delegation of authority by the A.S.C. to the Royal Commissioners at any time but the A.S.C. used its powers to assist the Royal Commission in its investigation.

Before the establishment of the Royal Commission Ms. Megay was a legal officer with the Corporate Affairs Commission in Victoria. She remained in continuous employment with that body until it was replaced by the A.S.C. on 1 January 1991. From 29 October 1990 she also occupied the position of Director of Investigations of the Royal Commission, a position to which she was appointed by the Chief Executive of the Attorney-General's Department of Victoria. That appointment required her to report directly to the Chairman of the Royal Commission. She accepted a position with the A.S.C. effective from 1 January 1991 on the condition that she be allowed leave of absence to continue her work with the Royal Commission. From January 1991 onwards the A.S.C. treated her as a member of its staff on unpaid leave, seconded to the Royal Commission.

Section 102 of the A.S.C. Law empowers the A.S.C. to delegate to a person "all or any of its functions and powers". The letter of 14 February 1991 written by Mr. Menzies to Ms. Megay concluded with a reference to enclosing delegations to Ms. Megay and two others. Those delegations were made pursuant to s. 102. In consequence Ms. Megay was performing two roles, one as a delegate of the A.S.C. and the other as an officer of the Royal Commission.

Part 7 of the A.S.C. Law is headed "Preventing Conflicts of Interest and Misuse of Information". Division 2 of Pt 7 is headed "Confidentiality". These headings form part of the legislation and may therefore be used in its interpretation [43] . Section 127(1), which is within Div 2, obliges the A.S.C. to "take all reasonable measures to protect from unauthorized use or disclosure information given to it in confidence in or in connexion with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction". The expression "national scheme law of this jurisdiction" is, by s. 5(1), given a meaning which includes the A.S.C. Law.

1. See s. 13(1) of the Acts Interpretation Act 1901 Cth.

By s. 127(3), the disclosure of information by a person for the purposes of performing that person's functions as a member of the A.S.C. or that person's functions as a person authorized to perform or exercise a function or power of, or on behalf of, the A.S.C., "shall be taken to be authorized use and disclosure of the information". Section 127(4) relevantly reads:

Where the Chairperson is satisfied that particular information:

(b) will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power; or

the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information.

(1) The Commission may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person's lawyer if the lawyer satisfies the Commission that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.

(2) If the Commission gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, shall not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding:

(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents.

Penalty: $1,000 or imprisonment for 3 months, or both.

(3) The Commission, may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book.

When a document was released to the Royal Commission by a delegate of the A.S.C. (in fact, it was Ms. Megay on each occasion) a two tiered process was observed. Initially, the document was released for use within the Royal Commission only. Separate notification was given if and when the public release of a document was authorized. Each of the transcripts released to the Royal Commission for internal use was accompanied by a memorandum from Ms. Megay. Three representative examples of these memoranda were before the Court exhibited to the affidavit of Lars Thomas Lidstrom, a solicitor in the employ of Clayton Utz, solicitors to the Royal Commission, sworn 7 April 1992. Two of the examples invoked s. 127(4) while the third relied on s. 25(3). The two s. 127(4) memoranda are very similar. The longer of the two reads:

I am a duly authorised delegate of the Chairman of the Australian Securities Commission pursuant to sub-section 127(5) of the A.S.C. Law (the "Law")

In that capacity I advise you that I am satisfied, in accordance with the provisions of sub-section 127(4) of the Law, that the disclosure of the particular information which is described in the Schedule to this letter (the "Information") will enable or assist the Royal Commission to perform or exercise one or more of the functions or powers of that agency.

Accordingly, and in my capacity as a duly authorised delegate under sub-section 127(5) of the Law, I hereby disclose the information for use within the Royal Commission.

You are reminded that the information, once disclosed, may only be used for the purpose of enabling or assisting the Royal Commission to perform or exercise one or more of its functions or powers, and for no other purpose.

I refer to the directive to me from the Australian Securities Commission on 14 February 1991 and note that the A.S.C. members consider that information obtained by the A.S.C. under compulsive proceedings is prima facie subject to the confidentiality obligations in section 127(1) of the A.S.C. Act.

I advise that if you intend to publish this material you should approach the Australian Securities Commission for its consideration prior to publication. (Emphasis in original.)

The other s. 127(4) memorandum differs mainly in that the last two paragraphs are omitted.

The two s. 127(4) memoranda were in each case headed "Release of Information Under sub-section 127(4) of the A.S.C. Law". Later Ms. Megay used a different form of memorandum which was headed "Release of Information Under sub-section 25(3) of the A.S.C. Law". It read:

I am a duly authorised delegate of the Australian Securities Commission having been delegated all the powers contained in Part 3 of the A.S.C. Law ("the Law").

In that capacity I advise you that, subject to the conditions set out herein and in accordance with the provisions of sub-section 25(3) of the Law, the written record identified in the schedule hereto is given to you.

I request that if you intend to publish this material by providing it to anyone other than Royal Commission personnel, you obtain A.S.C. confirmation prior to publication.

Each of the sixteen transcripts was disclosed to the Royal Commission under cover of a memorandum in one of these forms. Eight were released under s. 127(4) between 25 July 1991 and 18 September 1991 and eight pursuant to s. 25(3) between 20 September 1991 and 19 November 1991. Each of the memoranda provides for internal use only and anticipates (expressly in two cases) that A.S.C. approval would be required before the documents could be put to any further use such as tender in public hearing.

A further and much simpler memorandum was used to authorize public release of the transcripts already released to the Royal Commission for internal use. In his affidavit of 7 April 1992, Mr. Lidstrom deposed:

5. The documents in the Registry of the Royal Commission also show that whenever Megay made a decision to authorise the public use by the Royal Commission of A.S.C. documents previously released by her to the Royal Commission, she gave a memorandum to the Registry of the Royal Commission stating which documents could be tendered to the Royal Commission in public hearing.

The public release memorandum took the following form: Memo to: Registry

Please note I have approved the release of the following document/s contained in the supporting documents folder to be tendered to the Royal Commission in open hearing:

In addition an internal A.S.C. memorandum notifying consent to public release was prepared. Also, although not apparent on the face of the memorandum, public release was authorized under the section pursuant to which it had been internally released to the Royal Commission.

The difference in approach between the memoranda invoking s. 127(4) and those invoking s. 25(3) is explained in a letter written by Mr. Hartnell on 17 September 1991 to senior counsel assisting the Royal Commission. Relevantly, it reads:

Whilst the original agreement between us for the release of information and transcript seemed to offer a practical arrangement, with further consideration I believe that this arrangement will need to be altered to properly comply with the A.S.C.'s obligations pursuant to sections 25 and 127 of the A.S.C. Law and the policies of the A.S.C. in respect of the operation of those provisions.

I believe that the existing delegation of powers under section 127(4) to your Director of Investigations is appropriate for the release of information for use within your Commission.

However, with respect to the public dissemination of any A.S.C. information to which section 127 relates, I believe that there must be a full and proper consideration of each particular item of information, prior to the exercise of the discretion conferred by section 127(4). Accordingly, because of possible difficulties which I may have in exercising a personal discretion in relation to all the material obtained by your Commission, in exercise of A.S.C. powers, I propose a new arrangement whereby Mrs. Megay will exercise a delegated power to consent to the public release of information provided by the A.S.C. to your Commission. That consent will operate to waive the confidentiality condition otherwise imposed upon all A.S.C. information provided to your Commission.

Mrs. Megay will only be authorised to consent to any public disclosure of information when she has first obtained from Mr. Stephen Menzies of the A.S.C. an understanding that the release [of] the information will not in any way compromise, or adversely impact upon, an A.S.C. investigation or litigation arising therefrom.

In January 1992 Mr. Johns sought legal advice in regard to the public disclosure of the transcripts. Application was then made on his behalf to the Royal Commission to prevent the public dissemination of the transcripts. On 14 February 1992 the Royal Commission delivered rulings on that application. The import of the rulings may be found in the paragraph which follows:

22. It is ordered that no tender of further transcripts by Mr. Johns will be accepted, and that there be no further publication of those already tendered and distributed. It is also ordered that no further use be made before this Commission of the transcripts already tendered. The latter order does not preclude counsel from relying on evidence that was given by other witnesses after those witnesses had been referred to extracts from the transcripts. Further directions may need to be given to ensure the confidentiality of the extracts in question, during the course in final addresses of any submissions to the Commission based upon the evidence given by those witnesses.

Mr. Johns' argument was founded essentially on the scheme of the A.S.C. Law which, it was said, imposed an obligation of confidentiality in relation to examinations which the A.S.C. conducted. Most of the relevant provisions have been mentioned already. But, as well, it should be noted that the examinations which the A.S.C. is empowered to conduct "shall take place in private" (s. 22(1)). Also a person who is present at an examination, other than as authorized by the A.S.C. Law, is liable to a penalty (s. 22(2)).

It follows, so the argument continued, that any decision by the A.S.C. (relevantly, that means Ms. Megay) to permit the transcripts of Mr. Johns' examinations to be tendered to the Royal Commission in public was not authorized by the A.S.C. Law, hence that it was an improper and invalid exercise of power.

The forerunners of s. 25(1) and (2) are to be found in the uniform Companies Acts of 1961 (s. 176(5) and (6) as amended). There were similar provisions to s. 25(1), (2) and (3) in the Companies Act 1981 Cth and in the Companies Codes of the States (s. 298(6), (7) and (8)) and also in the Securities Industry Act 1980 Cth and the Securities Industries Codes (s. 21(6), (7) and (8)).

What then is the relationship between s. 25 and s. 127 of the A.S.C. Law? When the forerunner of s. 25 was enacted in 1961, there was no counterpart of s. 127. Something comparable to s. 127 appeared in the National Companies and Securities Commission Act 1979 Cth (s. 47). The obligation cast on the A.S.C. by s. 127(1) is "to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers". Heerey J. expressed the view that the examinations were not conducted in confidence [44] and this finding (which is discussed later in these reasons) would be enough to render s. 127(1) inapplicable to the transcripts. However, by invoking s. 127(4) as authority for release of the transcripts, the A.S.C. treated the transcripts as within the protection of s. 127(1). The A.S.C.'s letter to Ms. Megay of 14 February 1991 in fact expressed the A.S.C.'s view to be that "all information obtained by the A.S.C. under compulsive procedures is prima facie subject to the confidentiality obligations in section 127(1)". Without needing to reach a conclusion as to the status of the transcripts, for the purposes of the present analysis they can be assumed to have been given in confidence in connexion with the performance of A.S.C. functions.

Section 25(1) authorizes the A.S.C. to give a copy of a written record of an examination, together with a copy of any related book [45] , to a person's lawyer in the circumstances there mentioned [46] . Section 25(3), unlike s. 25(2), is not expressed to be related to s. 25(1) and appears to give the A.S.C. general authority to make material available "subject to such conditions (if any) as it imposes". Despite the broad language of s. 25(3), it would be odd if the sub-section was intended to give the A.S.C. carte blanche in regard to the dissemination of material, having regard to the limited scope of s. 25(1) and to the confidentiality provisions of s. 127. According to the ordinary rules of construction, a provision should be read within the context of the legislation and whenever possible given a meaning which accords with the operation of other provisions and is harmonious with the enactment as a whole [47] . Therefore s. 25(3) should be read as authorizing the release of material for the purposes of the legislation [48] and not as conferring some unbridled power on the A.S.C. It is, as Davies J. in the Full Court thought [49] :

a facultative provision which empowers the A.S.C. when it is appropriate to do so in the performance of its functions to supply a copy of a transcript to a person on such terms and conditions as the A.S.C. decides. 1. "[B]ooks" is defined inclusively in s. 5(1). 2. Section 298(6) of the Companies (Western Australia) Code, which is similar to s. 25(1) of the A.S.C. Law, was discussed at some length by Murray J. (with whom Malcolm C.J. and Franklyn J. agreed) in Wardley Australia Ltd v Attorney General (WA) (1991), 5 W.A.R. 453, at p. 469. 3. Attorney-General v Prince Ernest Augustus of Hanover [1957] AC. 436, at p. 461; Ross v The Queen (1979), 141 C.L.R. 432, at p. 440; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985), 157 C.L.R. 390, at p. 312; Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993), 178 C.L.R. 379, at pp. 386-387. 4. E.g., by reason of s. 76(1) of the A.S.C. Law, a statement made at an examination of that person is admissible against the person in a proceeding, subject to certain protection in the case of self-incrimination, legal professional privilege and otherwise as provided by the sub-section. 5. (1992) 35 F.C.R., at pp. 206-207.

At the very least s. 25(3) must be understood as requiring a condition against publication in making available to any person a copy of the written record of an examination where s. 127(4) itself does not apply. If that were not so, the detailed provisions of Div 2 of Pt 7 of the A.S.C. Law, including the secrecy provisions in s. 127A, would amount to nothing.

Against this somewhat lengthy background, it is necessary to resolve the competing contentions as to whether the decisions of Ms. Megay were beyond power. It is convenient to do this by looking first at the decisions authorizing public release of transcripts made under s. 127(4) before 18 September 1991 and then at the like decisions made under s. 25(3) after that date.

As to the first, s. 127(4) categorizes as authorized disclosure the disclosure of information that will enable or assist a governmental agency to perform its functions or exercise its powers. The release of the transcripts to the Royal Commission is clearly within the contemplation of s. 127, both for internal use of the Royal Commission and for the purpose of its public hearings. As Heerey J. observed [50] , Mr. Johns' argument to the contrary involves a conclusion that "parliament's intention, as it appears from the A.S.C. Law, would be that inaction or duplication were all right, but cooperation was not".

As to the later decisions, for the reasons already given in this judgment s. 25(3) does not operate as a grant of plenary power and cannot be used to defeat the operation of s. 127(4) and of the A.S.C. Law generally. But, at the least, s. 25(3) empowers the A.S.C. to release material, the release of which s. 127(4) itself would justify. There is no reason to give s. 25(3) a narrower operation than s. 127(4). The reason advanced by the A.S.C. for invoking s. 25(3) rather than s. 127(4), namely that the scrutiny required by the A.S.C. Chairperson of the material to be released was overly onerous, is not persuasive. Indeed, to the extent that it might be used to undermine the safeguards built into the A.S.C. Law, it should be rejected. Nevertheless, if, as here, the release of material under s. 25(3) can be supported by s. 127(4), a decision to release the material is not beyond power.

It is necessary to state once again that the question under present discussion is one of the power of the A.S.C. While Mr. Johns' contention in this regard must be rejected, it does not necessarily follow that the material contained in the transcripts warranted public release by the Royal Commission. But that is in part a matter of history. The challenge to the later ruling of the Royal Commission is before the Supreme Court of Victoria and will be determined in due course in that Court. It is not a matter involved in the present appeal.

Mr. Johns further argued that the information contained in the transcripts was in any event confidential information, that nothing had happened to destroy that confidentiality and that he was entitled in equity to an order restraining the use of the information by the Royal Commission and by the media, in particular H.W.T. and the A.B.C.

As has already been mentioned, the A.S.C. considered the transcripts to have been given in confidence such as to attract the protection of s. 127(1). But was the information contained in the transcripts, in truth, confidential information? Heerey J. commented [51] :

There is no suggestion in the evidence that when Mr. Johns was examined by Mrs. Megay he sought to impose any obligation of confidence in respect of the information he was giving her or that she gave him any assurance that the information would be treated as confidential. 1. (1992) 35 F.C.R., at p. 30.

His Honour found that in early August 1991 Mr. Johns knew that the transcript of his examination concerning one matter had been tendered as an exhibit at a public hearing of the Royal Commission and that transcripts of subsequent interviews were likely to be dealt with in the same way.

It is clear that in a proper case the courts will restrain the publication of confidential information [52] . But there is no absolute right to confidentiality. The extent of any right depends on the circumstances, in this case the operation of the A.S.C. Law. That law authorized compulsory examination of Mr. Johns. In the particular circumstances, as Heerey J. observed, confidentiality depends on the giving of an assurance of confidentiality and a reliance on that assurance. In this regard his Honour said, referring to the examinations conducted by Ms. Megay: "there is no trace of any such assurance". [53]

1. The Commonwealth v John Fairfax & Sons Ltd (1980), 147 C.L.R. 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984), 156 C.L.R. 414; Duchess of Argyll v Duke of Argyll [1967] Ch302; Coco v A N Clark (Engineers) Ltd [1969] RP.C. 41; Smith, Kline & French Laboratories (Australia) Ltd v Secretary Department of Community Services and Health (1991), 28 F.C.R. 291. 2. (1992) 35 F.C.R., at p. 33; cf. Bercove v Hermes [No 3] (1983), 74 F.L.R. 315; 51 A.L.R. 109 where a claim to confidentiality was rejected notwithstanding a limited assurance of confidentiality.

In any event, confidentiality must yield to the operation of the A.S.C. Law, in particular s. 127(4), which expressly authorizes disclosure of information in the circumstances there mentioned.

Finally, Mr. Johns argued that before there could be a lawful exercise of the powers conferred by ss. 127(4) and 25(3) of the A.S.C. Law the A.S.C. was obliged, by the rules of natural justice, to afford him an opportunity to be heard as to whether the Royal Commission should be authorized to accept a tender of the transcripts of examination in public hearing. It is common ground that Mr. Johns was not afforded such an opportunity; the issue is whether he should have been heard.

The argument takes as its starting point this passage from the judgment of Mason C.J., Deane and McHugh JJ. in Annetts v McCann [54] :

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. Applying this passage in Ainsworth v Criminal Justice Commission , Mason C.J., Dawson, Toohey and Gaudron JJ. said [55] : Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. 1. (1990) 170 C.L.R. 596, at p. 598. 2. (1992) 175 C.L.R. 564, at p. 576.

The A.S.C. responded to this argument by saying that the relevant power exercised by it excluded any right in Mr. Johns to be heard before its exercise and further that any decision to release the transcripts could not be said to destroy, defeat or prejudice any right, interest or legitimate expectation in Mr. Johns.

Black C.J. and von Doussa J. noted that the Federal Court had not seen the transcripts and therefore could not judge whether they might "destroy, defeat or prejudice Mr. Johns' rights, interests and legitimate expectations" [56] . However, they were prepared to assume that "this consequence is a real possibility" [56] . This is not a satisfactory footing on which to decide the question, particularly when regard is had to the findings made by Heerey J. regarding Mr. Johns' knowledge that one transcript had been tendered at a public hearing and that others were likely to be dealt with in the same way.

1. (1992) 35 F.C.R., at p. 183. 2. (1992) 35 F.C.R., at p. 183.

As Black C.J. and von Doussa J. noted, transcripts of examinations are in a quite different position to a report made following an investigation. In the first case the transcripts will contain information which the examinee, in this instance Mr. Johns, has sworn to be true. The opportunity to answer allegations presented itself when he was asked questions and, no doubt, when he was asked to read the record, make any corrections and sign it. In the second case there may be findings of fact at odds with the evidence of the person examined or with other evidence. The opportunity to be heard in that situation is an opportunity to comment on the report [57] . But in the case of the public disclosure of an examinee's evidence, what exactly is the opportunity to be afforded? As Black C.J. and von Doussa J. pointed out [58] , it can only be in relation to the disclosure itself and there may be good reasons for disclosure which the A.S.C. would not wish to reveal. The A.S.C. might decide, in compliance with the A.S.C. Law, to make transcripts available to a law enforcement agency investigating possible offences. To give an examinee an opportunity to be heard as to whether the transcripts should be made available might well destroy the investigation. While this is not the only circumstance to which s. 127(4) of the A.S.C. Law relates, it does point to the nature of the power with which the sub-section is concerned, that is, providing particular information to governments or governmental agencies to assist them in carrying out their functions. The power at issue here is the power to make transcripts available to the Royal Commission on a basis that does not preclude their publication. The question must be whether Mr. Johns was entitled to be heard as to the exercise of that power, there being no confidentiality attaching to the material independent of the operation of the A.S.C. Law. If, as a matter of construction of the A.S.C. Law, that power exists, there is nothing in its nature that required the A.S.C. to hear from Mr. Johns why the power should not be exercised. The A.S.C. Law imposes an obligation of confidentiality on the A.S.C. but it is an obligation the A.S.C. may shed, acting bona fide in the circumstances provided. Those circumstances are such as not to require that an opportunity to be heard be afforded before the power is exercised.

1. As in Ainsworth v Criminal Justice Commission . 2. (1992) 35 F.C.R., at pp. 183-184.

The decision in Morris v Director of the Serious Fraud Office [59] is clearly distinguishable. There the Serious Fraud Office was in possession of documents obtained from the auditors of an insolvent bank, the affairs of which were under investigation. The liquidators of the bank sought those documents from the Serious Fraud Office. There was no statutory provision, express or implied, authorizing the Serious Fraud Office voluntarily to disclose to the liquidators documents which it had obtained in the exercise of its compulsory powers or with the assistance of police acting under their statutory powers. Sir Donald Nicholls V.-C. held that, on an application by the liquidators to compel production of the documents, those from whom the documents were seized or their true owners were entitled in general to advance proper objections to the making of an order. In the present case the A.S.C. (Ms. Megay) had statutory authority to make the transcripts available to the Royal Commission. The transcripts were not the property of some third party; they came into existence as a result of examinations conducted by the A.S.C.

Whether the Royal Commission should have afforded Mr. Johns an opportunity to be heard before making the transcripts public is not a matter before the Court. But if an argument based on natural justice has force, it is at the point of public disclosure by the Royal Commission, which was authorized but not bound to make the transcripts public. The argument cannot succeed by reference only to the conferring of authority on the Royal Commission by the A.S.C. pursuant to the A.S.C. Law. The decisions of the A.S.C. are of course open to challenge under the provisions of the A.D.(J.R.) Act. But the appeal to this Court is on limited grounds and must be disposed of accordingly.

For reasons given in this judgment, the decisions made by Ms. Megay, acting as the A.S.C.'s delegate, to authorize public release of the transcripts were not invalid. On that footing, since the material published by H.W.T. and the A.B.C. was in the public domain at the time of publication, no relief can be granted against these respondents [60] . They received the material, with the authority of the Royal Commission, free from any obligation of confidence. The comments made in Park Oh Ho v Minister for Immigration and Ethnic Affairs [61] regarding the operation of s. 16(1)(d) of the A.D.(J.R.) Act cannot assist Mr. Johns in his application against H.W.T. and the A.B.C. where there is otherwise no right to relief against any of the respondents. The relief, if any, to which Mr. Johns would have been entitled had his submissions been accepted does not arise for consideration.

1. See Marcel v Commissioner of Police of the Metropolis [1992] Ch225, at p. 237. 2. (1989) 167 C.L.R. 637, at pp. 644-645.

The facts and the legislative provisions which bear on this matter are set out in the judgment of Brennan J. Except for the question of relief against The Herald & Weekly Times Ltd. and the Australian Broadcasting Corporation ("the sixth and seventh respondents"), I agree with his Honour's reasons for judgment. In particular, I agree that the Australian Securities Commission ("the A.S.C.") came under a statutory duty of confidence with respect to the information it obtained from examination of Mr. Johns ("the appellant"), by use of its coercive power under Pt 3, Div 2 of the Australian Securities Commission Act 1989 Cth ("the Act"). I agree also that the statutory duty involved is not absolute, it being qualified by the right of the A.S.C. to use and disclose information for the purposes of performing or exercising any of its functions and by the provisions of the Act authorizing disclosure for particular purposes [62] and by particular means [63] . I also agree with his Honour that, in the circumstances of this case, the A.S.C. was obliged to afford the appellant an opportunity to oppose permission (constituting "the A.S.C. decisions") for the use of the transcripts of his examination ("the transcripts") in the public hearings of The Royal Commission Into The Tricontinental Group of Companies ("the Royal Commission").

1. See, relevantly, s. 127(4) of the Act. 2. See, relevantly, s. 25(3) of the Act.

There is no doubt that the power of the Federal Court under s. 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 Cth ("the A.D.(J.R.) Act") to make "an order directing any of the parties to do, or to refrain from doing, any act or thing [as it] considers necessary to do justice between the parties" is to be construed widely. That is so, both by reason of the general principles applicable to the construction of provisions which confer power on a court [64] and by reason of the purposes which attend the A.D.(J.R.) Act [65] . But, as a matter of general principle, the purposes of the A.D.(J.R.) Act also mark out the boundaries of the power conferred by s. [66] . Having regard to those purposes [67] , that paragraph cannot, in my view, authorize relief which is not otherwise authorized by law against persons who, like the sixth and seventh respondents, were not in any way involved in the processes or procedures which led to the decision under review and who benefit from the decision, if at all, only indirectly. It may be that, on that account, s. 16(1)(d) has no bearing on the position of persons who are, in that sense, strangers to the decision under review, but that is not a matter that has to be decided in this case. The appellant also claimed equitable relief against the sixth and seventh respondents on the basis that the transcripts are confidential, and it is accepted that that claim was part of the entire matter which was before the Federal Court.

1. See, generally, Hyman v Rose [1912] AC. 623, at p. 631; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988), 165 C.L.R. 268, at pp. 283-284, 290; Knight v FP Special Assets Ltd (1992), 174 C.L.R. 178, at pp. 185, 205; Patton v Buchanan Borehole Collieries Pty Ltd (1993), 178 C.L.R. 14, at pp. 16-17, 23-25, 26-30. 2. See, for an exposition of those purposes and an instance of their application to the interpretation of s. 16(1)(c) and (d) of the A.D.(J.R.) Act, Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989), 167 C.L.R. 637, at pp. 644-645. 3. See, generally, Water Conservation and Irrigation Commission (NSW) v Browning (1947), 74 C.L.R. 492, at pp. 504-505; Murphyores Incorporated Pty Ltd v The Commonwealth (1976), 136 C.L.R. 1, at pp. 12-14, 24; Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979), 144 C.L.R. 45, at pp. 49, 50; Re Coldham; Ex parte Brideson (1989), 166 C.L.R. 338, at p. 347; O'Sullivan v Farrer (1989), 168 C.L.R. 210, at p. 216. 4. See fn. (94).

The jurisdiction to grant equitable relief with respect to confidential information is not in doubt. Nor is it in doubt that the basis for the jurisdiction lies in an obligation of conscience. The question whether there is an obligation of that kind ordinarily depends on the "circumstances in or through which the information was communicated or obtained" [68] . However, other circumstances may be relevant when it is claimed that persons who were not parties to the original confidence are bound by it or come under a duty with respect to the information involved.

1. Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984), 156 C.L.R. 414, at p. 438.

It has been held, both in Australia and in the United Kingdom, that a third person who comes by information innocently may be restrained from making use of it once he or she learns that it was obtained in circumstances involving a breach of confidence [69] . And it was conceded by counsel for the sixth and seventh respondents that the law in this regard is as stated by Lord Denning M.R. in Fraser v Evans [70] , namely, that "[e]ven if [a recipient of information] comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence." The law of confidence has not developed to the point of identifying in a definitive or comprehensive way the matters which determine whether a duty of confidence has devolved onto third parties [1] . However, the question whether there is or should be a duty on third parties must depend, at least in part, on the extent to which the information in question is generally known or available.

1. See, e.g., Fraser v Evans [1969] 1 QB. 349, at p. 361; Butler v Board of Trade [1971] Ch680, at p. 690; Foster v Mountford & Rigby Ltd (1976), 29 F.L.R. 233, at p. 238; 14 A.L.R. 71, at p. 75; G v Day [1982] 1 NS.W.L.R. 24, at p. 35; Wheatley v Bell [1982] 2 NS.W.L.R. 544, at p. 550. 2. [1969] 1 Q.B., at p. 361. 3. See Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), par. 4122.

There was no examination in this Court of the actual or presumed knowledge of the sixth and seventh respondents as to the confidentiality of the transcripts, or of the precise extent to which they were published or are now available outside the Royal Commission. Nor, it seems, were these matters explored in the Full Court of the Federal Court. Thus, unless it can be said that it would be futile, the matter must be returned to the Federal Court for consideration of the appellant's claim for equitable relief in the light of the outcome of this appeal as it concerns the A.S.C. decisions. The only matter which was advanced in support of the proposition that it would be futile for the claim for equitable relief to go back to the Federal Court was the fact that the transcripts were tendered in the public proceedings of the Royal Commission. It was put that, when tendered, they entered into the public domain.

The term "public domain", in relation to the law of confidence, is of comparatively recent origin [2] . It has come into common usage since the report of the Law Commission (U.K.), Breach of Confidence [3] . It is not an expression with a constant meaning. For present purposes, it is sufficient to note that the concept of "public domain" has two distinct aspects: the first is concerned with the question whether any duty of confidence arises; the second is concerned with whether a duty of confidence has come to an end.

1. It appears the term was first relevantly used in patent cases; see, e.g., Fomento (Sterling Area) Ltd v Selsdon Fountain Pen Co Ltd [1958] 1 WL.R. 45; [1958] 1 All E.R. 11; Seager v Copydex Ltd [1967] 1 WL.R. 923; [1967] 2 All E.R. 415; Coco v A N Clark (Engineers) Ltd [1969] RP.C. 41. 2. (1981), Cmnd. 8388; see particularly at pars 4.15-4.31 and 6.67.

The primary significance of the notion of "public domain" lies in the fact that no obligation of confidence and, hence, no right to confidence can come into existence unless the information involved has "the necessary quality of confidence" [4] . Thus, it has been said that no obligation attaches to "trivial tittle-tattle" [5] or to information "which is public property and public knowledge" [6] . Information which lacks "the necessary quality of confidence" because it is "public property and public knowledge" [6] or "common knowledge" [7] is often said to be in the public domain. In that context, the question whether information is in the public domain is largely one of fact. That is not to say that questions of law may not arise because, for example, the material has been used in a particular way or in a particular forum.

1. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948), 65 R.P.C. 203, at p. 215. See also The Commonwealth v John Fairfax & Sons Ltd (1980), 147 C.L.R. 39, at p. 51; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984), 156 C.L.R., at p. 438. 2. Coco v A N Clark (Engineers) Ltd [1969] RP.C., at p. 48. 3. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948), 65 R.P.C., at p. 215. 4. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948), 65 R.P.C., at p. 215. 5. Mustad & Son v Dosen [1964] 1 WL.R. 109, at p. 111; [1963] 3 All E.R. 416, at p. 418. Note, although reported in 1964, this case was decided in 1928.

It may be that information has ceased to be confidential, in the sense that a duty of confidence has come to an end. When that happens it is sometimes said that the information has passed into the public domain. This may happen if, for example, the information is published "by or with the consent of the person to whom the obligation is owed", in which event the person who was previously under a duty of confidence "is released from that duty" and, thus, has "the same rights as every other member of the public" [8] . In this context, the question whether information is in the public domain is a question of law, although, necessarily, that question involves a consideration of factual matters.

1. Speed Seal Products v Paddington [1986] 1 All ER. 91, at p. 94.

There is a question whether an obligation of confidence is extinguished because of subsequent publication to the world at large by third parties or, even, by the person who owed the duty in the first place. Again in that situation, it is sometimes said that the information has passed into the public domain. The question that then arises is, in essence, whether the information has lost its confidential quality. And as already pointed out, that is largely a question of fact.

The assertion that the transcripts entered into the public domain when they were tendered in the proceedings of the Royal Commission may mean one of two things. It may mean that, as a matter of law, the obligation of confidence owed to the appellant by the A.S.C. came to an end. If it did, it must follow that no obligation could devolve onto the sixth and seventh respondents. Alternatively, it may mean that, as a matter of fact, the transcripts no longer retained any quality of confidence and, quite apart from the position of the A.S.C., no obligation either could or should be imposed on the sixth and seventh respondents.

No matter what the consequences of the tender of the transcripts in the proceedings of the Royal Commission and no matter whether regard is had to the actual consequences of that tender or the consequences that might have been, it does not follow that the tender brought the A.S.C.'s obligation of confidence to an end. If the question is approached from the perspective of the general law of confidence, it seems that publication, no matter how extensive and no matter whether by third parties or by the person who owes the primary obligation, does not necessarily extinguish an obligation of confidence. In this regard, it may be noted that in Attorney-General (UK) v Guardian Newspapers [No 2] [9] the House of Lords, although refusing to continue injunctions against third parties with respect to publication of excerpts from Spycatcher [10] , affirmed the continuing existence of a primary obligation of confidence with respect to the information involved [11] . And if the question is approached from the perspective of the precise obligation involved in this case, it is by no means clear that it came to an end on the tender of the transcripts in the Royal Commission. If it did, it can only have been by reason of some further implication to be made from the terms of the Act. There may be no great difficulty in the way of an implication that the obligation comes to an end if, as a matter of fact, the information becomes widely known or freely available. It is another question whether the Act permits of an implication that the obligation, based as it is in a law of the Commonwealth, comes to an end because of consequences that attend the operation of a State law or the exercise of State powers or functions.

1. [1990] 1 A.C. 109. 2. Wright, Spycatcher (1988). 3. [1990] 1 A.C., at pp. 264, 265, 280, 293. Note that although Kirby P. expressed the view in Attorney-General (UK) v Heinemann Publishers Pty Ltd (1987), 10 N.S.W.L.R. 86, at pp. 165-166 (a case also concerned with Spycatcher ) that the obligation of confidence had come to an end because much of the information had entered the public domain, it seems that this view was based largely, if not entirely, on the fact that MI5 had authorized, or acquiesced in, earlier publications of the information, or significant parts of it.

Moreover, it is not axiomatic, in my view, that the transcripts entered into the public domain, in the sense that they lost their necessary quality of confidence, when tendered in the public proceedings of the Royal Commission. I can see much force in the view that no confidence attaches to material which is admitted into evidence in judicial proceedings [12] , unless, of course, an order is made against publication. But it is not apparent that, in this regard, a Royal Commission is in the same position as a court. Royal Commissions usually operate ad hoc and their proceedings need not be public. Moreover in this case, the Royal Commission returned the transcripts to the A.S.C. on completion of its report, without making use of them in any way that presently permits of their contents being discovered and having earlier made an order against their further publication. Of course, if that order was within power, the question of confidentiality is largely, if not entirely, academic; but if beyond power, that is another reason for not equating the proceedings of a Royal Commission with those of a court.

1. See Home Office v Harman [1983] 1 AC. 280, at pp. 303, 312; Marcel v Commissioner of Police of the Metropolis [1992] Ch225, at p. 237.

Finally, even if it can be said that the transcripts passed into the public domain when tendered in the proceedings of the Royal Commission, it is arguable, in my view, that they only passed into the public domain of Victoria - an area of limited significance in the context of a duty of confidence based in a law of the Commonwealth.

The question whether the appellant is entitled to equitable relief against the sixth and seventh respondents cannot, in my view, be answered on the material and arguments presented in this Court. Accordingly, that aspect of the matter must be returned to the Federal Court for further consideration. Otherwise, I agree with the orders proposed by Brennan J.

The questions raised in this appeal against an order of the Federal Court concern the validity of decisions made by the Australian Securities Commission ("the A.S.C.") to release information to a Royal Commission appointed to inquire into the affairs of the Tricontinental group of companies ("Tricontinental"). The information was acquired by the exercise of powers under the Australian Securities Commission Act 1989 Cth ("the Act"). By majority, the Full Court of the Federal Court upheld the validity of the decisions. The appellant contends that the decisions were in breach of the express or implied requirements of the Act and that they breached the rules of natural justice and an obligation of confidence.

On 7 September 1990, the Victorian Government appointed a Royal Commission ("the Royal Commission") to inquire into the affairs of Tricontinental. The A.S.C. came into existence on 1 January 1991. It was created by the Act to replace the National Companies and Securities Commission. Shortly after an arrangement made on 11 February 1991 between the A.S.C. and the Royal Commission, the A.S.C. delegated its powers and functions under Pt 3 of the Act to certain officers who had previously been seconded to the Royal Commission. The admitted purpose of the arrangement of 11 February 1991 was to assist the Royal Commission by making available to it the A.S.C.'s power to obtain documents and information under Pt 3 of the Act. The Full Court of the Federal Court determined that this arrangement was not improper or unlawful [13] .

1. Special leave to appeal with respect to this ground was refused. See transcript of application for special leave to appeal in Johns v Australian Securities Commission , 26 June 1992, p. 117.

From July 1991, officers of the A.S.C. at the Royal Commission issued notices under s. 19 of the Act requiring persons, including the appellant, Mr. Ian Johns, to attend examinations. The appellant is the former Managing Director of Tricontinental. His role in the affairs of Tricontinental was of significant interest to the Royal Commission. He was examined on oath and in private pursuant to ss. 21 and 22 of the Act. Sixteen transcripts of his examination were given to the Royal Commission. Some were given pursuant to the provisions of s. 127(4) of the Act. Section 127 provides:

(1) The Commission shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction.

(2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of this or any other jurisdiction shall be taken to be authorised use and disclosure of the information.

(3) or the purposes of subsection (1), the disclosure of information by a person for the purposes of:

(i) a member, staff member or Commission delegate; or

(ii) a person who is acting as a member or staff member or who is authorised to perform or exercise a function or power of, or on behalf of, the Commission; or

(b) the performance of functions or services by the person by way of assisting a Commission delegate;

shall be taken to be authorised use and disclosure of the information.

(4) Where the Chairperson is satisfied that particular information:

(b) will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power;

the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information.

(5) The Chairperson may delegate all or any of his or her functions and powers under subsection (4) to a member or staff member.

The remainder of the sixteen transcripts were purportedly given to the Royal Commission pursuant to s. 25(3) of the Act. Section 25 provides:

(1) The Commission may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person's lawyer if the lawyer satisfies the Commission that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.

(2) If the Commission gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, shall not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding:

(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents.

Penalty: $1,000 or imprisonment for 3 months, or both.

(3) The Commission may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book.

Eight of the transcripts were tendered at public hearings of the Royal Commission. After the tender, the transcripts were made available to media representatives, including journalists from The Herald & Weekly Times Ltd. and the Australian Broadcasting Corporation ("the media organizations"). Some material from these transcripts had already been published by 14 February 1992 when the Royal Commission made an order prohibiting further publication of transcripts of examinations of the appellant [14] . It appears that, apart from an "extremely limited" amount of information, the contents of the transcripts have not been disclosed to the general public [15] . However, the material was freely available to the public for several months.

1. In its ruling, the Royal Commission ordered "that no tender of further transcripts by Mr. Johns will be accepted, and that there be no further publication of those already tendered and distributed. It is also ordered that no further use be made before this Commission of the transcripts already tendered." 2. Appellant's Outline of Argument, p. 3.

Pursuant to the Administrative Decisions (Judicial Review) Act 1977 Cth, the appellant applied for an order of review of those decisions of the A.S.C. which resulted in the handing over of the transcripts to the Royal Commission. In the Federal Court, Heerey J. found that the decisions by the A.S.C. to disclose the transcripts to the Royal Commission were lawful. His decision was upheld by a majority of the Full Court.

The challenge to the decision of the Full Court of the Federal Court

The grant of special leave to appeal to this Court was limited to whether ss. 25(3) and 127(4) of the Act authorized the disclosure of the transcripts to the Royal Commission. The appellant contends that the decisions to release the material were invalid because: 1. the decisions were made in breach of express or implied provisions or requirements of the Act; 2. the decisions were reached in breach of the rules of natural justice because the appellant was not afforded an opportunity to be heard before the decisions were made to release the transcripts; and 3. the Federal Court erred in holding that, for an obligation of confidence to arise in respect of the examination, the appellant had to impose the obligation of confidence.

Did ss. 127(4) and 25(3) of the Act empower the A.S.C. to release the transcripts to the Royal Commission?

The information given by the appellant to the A.S.C. was obtained by means of the powers conferred by s. 19 of the Act. Where the A.S.C. suspects or believes on reasonable grounds that a person can give information relevant to a matter that it is investigating or is to investigate under Div I of Pt 3, it may require certain persons to appear before a member of the A.S.C. for examination on oath and to answer questions (s. 19). Pursuant to this power, the A.S.C. gave the appellant a notice to appear for examination "in relation to an investigation of the activities of the Tricontinental group of companies". He was examined on a number of occasions, the first of which was on 17 July 1991.

Information obtained under s. 19 is subject to a statutory obligation of confidence. A statute conferring compulsory powers of examination is strictly construed. It is construed as authorizing only those actions which are necessary to give effect to the purpose for which the power is conferred and whatever is reasonably incidental to that purpose [16] . Section 19 defines the purpose for which persons are made the subject of examination under that section. It is to obtain information that is relevant to a matter that the A.S.C. is investigating or is to investigate. An A.S.C. member who obtains information under s. 19 has no power to use the information for any purpose other than that purpose or such other purposes as the legislation authorizes. Thus, the examiner, upon receiving the information, becomes subject to an obligation to keep the information confidential unless it is necessary to use the information for the purposes of the Act. The terms of s. 22 of the Act, which require the examination to be in private, reinforce the conclusion that information obtained under s. 19 is obtained in confidence.

1. Morris v Director of the Serious Fraud Office [1993] Ch372, at p. 381.

Section 127(1) then imposes a further obligation. It requires the A.S.C. to "take all reasonable measures to protect from unauthorized use or disclosure information given to it in confidence". Section 127(2), (3) and (4) then deem certain disclosures to be authorized disclosures for the purposes of s. 127(1). Thus, s. 127(3) authorizes disclosure by a person for the purpose of performing certain functions of that person. The effect of s. 127(3) is that information obtained under s. 19 may be disclosed in performance or exercise of any of the functions or powers of the A.S.C. under the Act. Section 127(2) and (4), however, deem certain disclosures to be authorized disclosures even though the disclosures are made other than in performance of the A.S.C.'s functions. They deem disclosure of information to be authorized when the disclosure is required or permitted by certain laws or when, to the Chairperson's satisfaction, it will enable or assist State or Territory governments or their agencies to perform a function or exercise a power.

When s. 25(3) is read against this background, it becomes obvious that it cannot be taken as giving the A.S.C. an unfettered discretion to give copies of the record of an examination to such persons as it thinks fit. If it did, both the obligation of confidence imposed by s. 19 and the obligation imposed by s. 127(1) in respect of the record would be meaningless for practical purposes.

Section 25(1) authorizes the giving of a copy of a written record of the examination to a person's lawyer if the A.S.C. is satisfied that the person is carrying on or is contemplating in good faith a proceeding in respect of a matter to which the examination related. A record handed to a lawyer pursuant to the terms of s. 25(1) must be regarded, therefore, as an authorized disclosure for the purpose of s. 127(3). Similarly, when the A.S.C. exercises its power under s. 25(3), the giving of a written record of the examination to a person must be regarded as an authorized disclosure for the purpose of s. 127(3). But that does not mean that the A.S.C. may give the written record to a person independently of whether the giving of the record serves some purpose or function of the A.S.C.

It is not to be supposed that the legislature intended that the legislative scheme of confidentiality in respect of examinations was subject to the unfettered exercise of the A.S.C.'s discretion to release a copy of the examination. It would be of curious result if, despite the express authorization contained in s. 127(4), the general machinery power conferred by s. 25(3) was intended to be read as enabling the A.S.C. to give copies of the record of the examination to institutions or agencies other than those specified in s. 127(4). It would be an equally curious result if the A.S.C., acting under s. 25(3), had an unfettered discretion to give a copy of the examination to any person although s. 25(1) expressly requires certain conditions to be fulfilled before the A.S.C. can give a lawyer acting for a party a copy of the examination. It is true that s. 25(3) is dealing specifically with written records of examinations while s. 127 is dealing with information generally. But that is not a sufficient ground for construing s. 25(3) so as to overturn the scheme of confidentiality imposed by the Act. Examinations under s. 19 are a significant source of confidential information obtained by the A.S.C. It is unlikely that Parliament intended that a machinery provision such as s. 25(3) should override the general requirement of confidentiality imposed by s. 127(1).

Section 25(3) must, therefore, be read as authorizing the giving of a copy of a record of the examination to a person in circumstances where that will serve a purpose or function of the A.S.C. It would be inconsistent with the rules of statutory interpretation to interpret an ancillary provision such as s. 25(3) as authorizing the A.S.C. to vary the general plan or purpose of the Act [17] .

1. Shanahan v Scott (1957), 96 C.L.R. 245, at p. 250.

The A.S.C. was mistaken in thinking that s. 25(3) gave it authority to release the transcripts to the Royal Commission. But that is not a matter of importance in this case. The A.S.C. was authorized to give the transcripts to the Royal commission by the power conferred by s. 127(4)(b). Its mistaken intention to act under s. 25(3) does not invalidate the release of the transcripts. To adopt words of Starke J. [18] , written in an analogous context: "The question is not one of intention but of power, from whatever source derived."

1. In re Yates; Ex parte Walsh and Johnson (1925), 37 C.L.R. 36, at p. 135.

The appellant also contended that material released pursuant to s. 127(4) retains its confidentiality. Hence any decision authorizing the Royal Commissioners to remove the confidentiality attaching to the transcripts was not authorized for the purposes of s. 127(1). Nothing in the terms of s. 127(4) supports this contention. Disclosure under s. 127(4) is authorized disclosure for the purpose of s. 127(1). Once a lawful decision to release the information is made, the protective cloak of s. 127(1) is shed. If it wishes, the A.S.C. is able to release the information unconditionally to a body such as the Royal Commission. If it wishes, the A.S.C. can release the information conditionally.

Unlike s. 25(3), s. 127(4) contains no express power to impose conditions. But it is a discretionary power, and the discretion can be exercised by requiring the recipient of the information to comply with specified conditions. The scope of a statutory power is ascertained "by the character of the statute and the nature of the provisions it contains" [19] . When the exercise of a power is left to the discretion of some person, the scope for implementing the power is fettered only by the necessity to maintain consistency with the purpose or purposes of the legislation. Consequently, the repository of the power may impose conditions on those affected by the exercise of the power as long as the conditions are not inconsistent with the purpose for which the power is granted. The Royal Commission received the transcripts unconditionally. If the decision to release the transcripts was valid, the Royal Commission was entitled to tender the transcripts at public hearings. It could, if it wished, make the information public.

1. Morton v Union Steamship Co of New Zealand Ltd (1951), 83 C.L.R. 402, at p. 410.

Were the decisions to release the information to the Royal Commission under ss. 127(4) and 25(3) vitiated by a failure to comply with the rules of natural justice?

The foregoing discussion assumes that the decision to release the transcripts was a lawful one. However, the appellant contends that the decision was not lawful because it was made in breach of the rules of natural justice. The Act does not expressly provide for a hearing by a person whose rights, interests or legitimate expectations may be compromised through the disclosure of information gathered under Pt 3 of the Act. Nevertheless, the question arises whether, by implication, the Act requires the A.S.C. to provide the appellant with an opportunity to be heard in opposition to release of the transcripts.

A presumption exists that the exercise of statutory power is conditional upon the observance of the rules of natural justice [20] . As Mason C.J., Deane and McHugh JJ. said in Annetts v McCann [21] :

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute. Such an intention cannot be gleaned from "indirect references, uncertain inferences or equivocal considerations" [22] . No such intention can be discerned in the Act with respect to the disclosure of material under s. 127(4). 1. Ainsworth v Criminal Justice Commission (1992), 175 C.L.R. 564, at p. 591. 2. (1990) 170 C.L.R. 596, at p. 598. 3. Commissioner of Police v Tanos (1958), 98 C.L.R. 383, at p. 396.

A decision to release the transcripts had the potential to prejudice the appellant's interests. Specifically, the information was likely to affect perceptions of the appellant's integrity and injure his reputation. In Ainsworth v Criminal Justice Commission [23] , the Court held that reputation is an interest that may attract the protection of the rules of procedural fairness. Brennan J. said [24] :

[N]atural justice is required to be observed whenever a statutory authority contemplates a publication which would affect reputation by diminishing the estimation in which the bearer of the reputation stands in the opinion of others. The bearer of the reputation has an interest which is sufficient both to attract the requirement of natural justice and to give locus standi to seek judicial review if natural justice is denied. [25] Similarly, the requirements of natural justice will apply where a person's business or commercial reputation is at stake [26] . 1. (1992) 175 C.L.R. 564. 2. (1992) 175 C.L.R., at p. 592. 3. See also Heatley v Tasmanian Racing and Gaming Commission (1977), 137 C.L.R. 487, at pp. 495, 512; Mahon v Air New Zealand [1984] AC. 808, at p. 820; Kioa v West (1985), 159 C.L.R. 550, at pp. 582, 618-619. 4. Ainsworth (1992), 175 C.L.R., at p. 578. See also In re Pergamon Press Ltd, [1971] Ch. 388, at pp. 399-400; Mahon [1984] AC., at p. 820.

Where a person is to be afforded the benefit of procedural fairness, the scope of that benefit depends upon the circumstances of each case. In Kioa v West [27] , Mason J. said:

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting. [28] This means that, where the exercise of a power may "destroy, defeat or prejudice a person's rights, interest or legitimate expectations" [1] , that person must be afforded the procedural fairness that is appropriate in the circumstances. The critical question in this case is whether the circumstances negatived the presumptive right of the appellant being given an opportunity to be heard [2] . 1. (1985) 159 C.L.R., at pp. 584-585. 2. See also Russell v Duke of Norfolk [1949] 1 All ER. 109, at p. 118; University of Ceylon v Fernando [1960] 1 WL.R. 223, at pp. 230-231; [1960] 1 All E.R. 631, at p. 637; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963), 113 C.L.R. 475, at pp. 503-504; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969), 122 C.L.R. 546, at pp. 552-553; National Companies and Securities Commission v News Corporation Ltd (1984), 156 C.L.R. 296, at pp. 311-312, 319-320. 3. Annetts (1990) 170 CL.R., at p. 598. 4. See Kioa (1985), 159 C.L.R., at p. 585.

In the Full Court of the Federal Court, Black C.J. and von Doussa J. found that the appellant possessed no right to be heard. Their Honours pointed to the difficulties posed for a criminal investigation by the A.S.C. if an examinee had to be given a hearing. Their Honours said that, if the appellant had a right to be heard, the A.S.C. might have to reveal other evidence in its possession concerning the need to disclose the material to a third party [3] .

1. Where procedural fairness is implied, material adverse to a person ought generally to be revealed to him or her in order to enable him or her to address the material prior to a decision being reached. See Board of Education v Rice [1911] AC. 179, at p. 182; Kanda v Government of Malaya [1962] AC. 322, at pp. 337-338; Bread Manufacturers of NSW v Evans (1981), 56 A.L.J.R. 89, at p. 93; 38 A.L.R. 93, at p. 102.

While the need to protect the investigation process may restrict the scope of a person's access to information which the A.S.C. relies on to reach a decision, this factor does not mean that the right to be heard is inconsistent with the exercise of the power to release the transcripts. The need to preserve the confidentiality of the A.S.C.'s investigation does not exclude procedural fairness, but reduces its content [4] , perhaps in some circumstances to nothing [5] . To inform the appellant of the proposed intention to release the transcripts and to hear submissions concerning the effect of that decision upon the appellant's interests, for example, would not adversely affect the investigation process. If the A.S.C. was in possession of information which made it necessary or desirable to give the transcripts to the Royal Commission, it would be necessary for the A.S.C. to reveal the information or sources to the appellant only to the extent that it did not prejudice the Royal Commission's investigation. Moreover, it is difficult to see how the interests of either the A.S.C. or the Royal Commission could be improperly or unnecessarily prejudiced by informing the appellant that it proposed to release the transcripts unconditionally.

1. See Reg v Gaming Board; Ex parte Benaim [1970] 2 QB. 417, at p. 431; In re Pergamon Press, [1971] Ch. 388; News Corporation (1984), 156 C.L.R., at pp. 323-324; Re Hayes; Ex parte J Wattie Canneries Ltd (1986), 70 A.L.R. 65, at pp. 72-73; Ansett Transport Industries Ltd v Secretary, Department of Aviation (1987), 73 A.L.R. 205, at p. 218. 2. Kioa (1985), 159 C.L.R., at p. 615. See Johnson, Natural Justice and Legitimate Expectations in Australia, Federal Law Review, vol. 15 (1985) 39, at p. 71.

Thus, procedural fairness required as a minimum that the appellant be given the opportunity to put submissions before the A.S.C. relating to matters requiring the non-disclosure of information by the A.S.C. Given this opportunity, the appellant might have persuaded the A.S.C. that the intention to disclose the information should not be implemented or, if it was, that the transcripts should be handed over upon the condition that the Royal Commission should not publicly release the transcripts.

The respondents contended that the decisions to disclose the material to the Royal Commission were not decisions to make the material public and, consequently, the decisions could not cause harm to the appellant. While the decisions did not directly cause public disclosure of the transcripts, they did affect the confidentiality attaching to the transcripts by enabling a third party to prejudice the appellant's interests through public disclosure. Accordingly, the decisions to release the information to the Royal Commission were in themselves decisions that affected the appellant's interests in a manner that attracts the protection of procedural fairness.

The respondents also contended that any breach of the rules of natural justice by the A.S.C. was cured by the opportunity for the appellant to be heard by the Royal Commission before the transcripts were publicly tendered. The respondents relied upon the proposition in Ainsworth [6] , where the Court, citing South Australia v O'Shea [7] , stated:

It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness". [8] 1. (1992) 175 C.L.R., at p. 578. 2. (1987) 163 C.L.R. 378, at p. 389. 3. The respondents also relied on Twist v Randwick Municipal Council (1976), 136 C.L.R. 106, at pp. 111, 116 and Calvin v Carr [1980] AC. 574, at pp. 592-596.

In Ainsworth , the rules of natural justice had not been complied with by the Criminal Justice Commission, which was monitored and supervised by the Parliamentary Criminal Justice Committee. The Court held that the two bodies did not form part of the same decision-making process. Consequently, the availability of procedural fairness at the Parliamentary Committee could not cure a lack of fairness at the Criminal Justice Commission. Brennan J. noted [9] that the functions of the Criminal Justice Commission were reposed in that Commission alone and that the function of the Parliamentary Committee was restricted to that of being a watchdog over the Criminal Justice Commission.

The reasoning in Ainsworth is directly applicable here. The failure of the A.S.C. to comply with the rules of natural justice was not cured by the possibility that the appellant might have obtained a hearing before the Royal Commission as to the same subject matter. The decision to disclose the transcripts to the Royal Commission was the decision of the A.S.C. The powers of the A.S.C. and the Royal Commission were separate and independent. They were not part of the same power structure. The two bodies were not involved in the same decision-making process.

If the Royal Commission had not published the transcripts, there could be little doubt that the appellant would be entitled to relief against the A.S.C. and a consequential order against the Royal Commission. Equity will "restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged" [10] . In The Commonwealth v John Fairfax & Sons Ltd [11] , Mason J. said [12] that equity may restrain the use of information where it is shown "not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be "an unauthorized use of that information to the detriment of the party communicating it" ". Even though the Royal Commission received the transcripts without knowing of the breach of confidence by the A.S.C., once it learned of that breach, it could be restrained from breaking that confidence [13] . But the transcripts were tendered at the Royal Commission. They were part of the public record of the Royal Commission. Copies of the transcripts were given to the media organizations. Did this result in the transcripts losing their confidentiality?

1. Ashburton (Lord) v Pape [1913] 2 Ch469, at p. 475. 2. (1980) 147 C.L.R. 39, at pp. 50-52. See also Seager v Copydex Ltd [1967] 1 WL.R. 923, at p. 931; [1967] 2 All E.R. 415, at p. 417; Coco v A N Clark (Engineers) Ltd [1969] RP.C. 41, at p. 47. 3. John Fairfax (1980), 147 C.L.R., at p. 51; Coco [1969] RP.C., at p. 47 quoted. As to the requirement for detriment, see Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), pp. 872-873. 4. Fraser v Evans [1969] 1 QB. 349, at p. 361; G v Day [1982] 1 NS.W.L.R. 24, at p. 35; Wheatley v Bell [1982] 2 NS.W.L.R. 544, at p. 550.

The appellant submitted that the transcripts have not lost their confidentiality. He also contended that he has not lost his right to relief in respect of that confidentiality. Whether or not this is so, no relief can now be obtained against the Royal Commission: it has returned the transcripts and made non-publication orders in respect of the material tendered in public hearings. However, the appellant seeks an injunction against the media organizations to restrain a breach by them of the equitable duty to maintain the confidentiality existing in the material.

Once information becomes public knowledge [14] , or is in "the public domain" [15] , equity will refuse to intervene to protect the information because the information has lost its confidentiality. In some circumstances, however, equity will intervene if public dissemination has been limited. Consequently, a person who has received information published in breach of confidence may be restrained from publishing that information even though there has been a limited publication.

1. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948), 65 R.P.C. 203, at p. 215. 2. Marcel v Commissioner of Police of the Metropolis [1992] Ch225, at p. 237.

In the present case, the information retained its confidential character when received by the Royal Commission (because the decision of the A.S.C. to release the transcripts was invalid). However, the information may have lost its confidential character when it was tendered at the public hearings of the Royal Commission. On the other hand, either as a matter of law or of fact, the confidential character of the material may have endured. For the reasons given by Gaudron J., I do not think that the material and the arguments put before the Court enable us to determine the issue which should be returned to the Federal Court for determination.