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[1989] FCA 530
Federal Court of Australia
1989-12-20
Original judgment source is linked above.
Administrative Law - s.36 National Companies and Securities Commission Act 1979 - direction that the hearing take place "in private" - power of Commission to make orders prohibiting the disclosure of evidence - proper scope of such an order - access of witnesses and their solicitor to transcript - natural justice.
for Applicant: Mr. C. Birch instructed by
National Companies and
Securities Commission
Counsel and Solicitors Mr. W.H. Nicholas Q.C. and
for Respondents: Mr. B. McClintock instructed by
Allen Allen and Hemsley
1. Order that order 1 made on 7 March 1989 be set
aside. In lieu thereof, declare that the order or
orders described in the reasons for judgment as the
"non-disclosure" order was beyond power.
2. Order that the order for costs made on 7 March 1989
be set aside.
3. Otherwise order that the appeal be dismissed.
4. Order that the appellant pay three-quarters of the
respondents' costs at first instance and of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The relevant facts and statutory provisions are set out in the reasons for judgment of the other members of the Court, so I shall restate them only where it is necessary to do so for the purpose of some comments of my own which I propose to make. The appeal is concerned essentially with the nature of a private hearing of the National Companies and Securities Commission ("the Commission") pursuant to s. 36 of the National Companies and Securities Commission Act 1979 ("the Act") and the powers of the Commission to control the disclosure of evidence of witnesses called before it during the hearing.
2. During the course of its investigation into trading in certain futures contracts to determine whether offences had been committed under s. 130 of the Futures Industry (New South Wales) Code the Commission directed that a private hearing pursuant to s. 36 of the Act be held. Some of the respondents (there are 27 of them of whom six are corporations) were summoned to give evidence and others to produce documents. Mr. Anthony Geoffrey Hartnell, solicitor, appeared for all the respondents at the hearing.
3. The hearing commenced on 12 December 1988. On that day, during discussion with members of the Commission, Mr. Hartnell requested the Commission's
"consent to (his) being allowed to discuss with any
relevant employee of Bankers Trust (Bankers Trust
Australia Limited, the first respondent) that
participated in either the strategy or
decision-making or dealing processes in relation
to bond trading, evidence that has been adduced
before (the Commission), for the purpose of (his)
putting further evidence before (the Commission) as may
be relevant through individual or corporate witnesses."
This request was refused. After some discussion Mr. Hartnell then said:
"I understand your order to the effect that if
something is raised adverse to person A by person
B, I cannot tell person A about it."
The Chairman of the hearing, Mr. C. Williams, replied:
"I think you understand that very well, Mr. Hartnell
Mr. Hartnell then said:
"Nor can person B tell anyone about it."
4. Counsel assisting the Commission then said, "Yes, that is the nature of a private hearing."
5. At the conclusion of the evidence of the first witness (the seventh respondent) the Chairman said to the witness:
"May I caution you that this is a private hearing
pursuant to s. 36(4) of the National Companies and
Securities Act and that requires that you do not
discuss either questions asked or answers given or
exhibits given or provided with any person other
than your legal counsel. And any breach of that
requirement would be a contempt of the Commission.
The Chairman then said to Mr. Hartnell:
"Of course, following our discussion earlier, Mr.
Hartnell, you will appreciate that what I have
said to (the witness) applies equally to his legal
representative."
6. The Chairman's statement to the seventh respondent and to Mr. Hartnell are the "non-disclosure orders" under challenge in this appeal. I have some reservations about whether they are orders at all or simply statements by the Chairman of the Commission as to his perception of the effect of a private hearing; but they have been treated throughout this proceeding, before the learned primary Judge and on appeal to this Full Court, as constituting orders or decisions of the Commission and therefore as susceptible of review under the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act"), so I shall treat them accordingly.
7. At the further hearing on 23 January 1989, Mr. Hartnell raised again the question of the entitlement of a witness to discuss with others the evidence he had given before the Commission. On 24 January Mr. Williams gave this ruling:
"We have reconsidered your submission ... in
respect of the caution to witnesses that has been
given as regards the communication of evidence
given in the hearing ... We are not persuaded to
move from that position and whilst we believe that
we have power to release you or any witness from
the full obligation of privacy, we do not believe
that it is appropriate to do so and do not
propose to do so."
8. The determination of the object and scope of any statutory inquiry and the powers of the inquisitor must have as its starting point the relevant statute. It must be construed according to ordinary principles of construction, though in the framework of the body of common law and equity that has evolved for the purpose of adjusting the delicate balance between the power and right of the State to pursue its activities and the rights of the citizen upon which the former necessarily impinge.
9. There are well established principles governing the conduct of hearings which have evolved initially with respect to courts, but which have become applicable to many statutory tribunals. A fundamental principle in a democratic society like ours is that hearings which determine the rights and liabilities of citizens shall be open to the public. This underlying tenet is as important today as it ever was because, by exposing the administration of justice to public scrutiny, it better ensures that those who administer justice do so with fairness and impartiality and enables interested parties and the public to observe the quality of justice.
10. There are exceptions to this general requirement that judicial proceedings be open to the public, the exceptions being based on a yet more fundamental principle that the chief object of courts is to secure that justice be done to the parties before them. A notable exception is in cases which relate to secret processes or confidential information because they are the essence of the cause of action and would be destroyed if disclosures were made in open court. Other exceptions include cases involving the interests of infants or persons of unsound mind when courts close their doors to the public. Even in these cases, however, courts hold hearings in camera only so far as it is necessary to protect the property rights or the interests of the persons involved.
11. The principle was stated by Viscount Haldane L.C. in the case of Scott v Scott (1913) AC 417 at 437-438 thus:
"As the paramount object must always be to do
justice the general rule as to publicity, after
all only the means to an end, must accordingly
yield. But the burden lies on those seeking to
displace its application in the particular case to
make out that the ordinary rule must as of
necessity be superseded by this paramount
consideration. The question is by no means one
which, consistently with the spirit of our
jurisprudence, can be dealt with by the judge as
resting in his mere discretion as to what is
expedient. The latter must treat it as one of
principle, and as turning, not on convenience, but
on necessity."
12. The complexity of the problems that beset modern society brings with it much statutory regulation and a proliferation of statutory tribunals which perform a wide variety of tasks requiring investigation of public, business and private affairs of people and corporations and covering a large range of subjects. Particular statutory regimes are established to set up those investigations and to define the powers of the inquisitorial bodies and the rights and obligations of relevant persons.
13. In the case of the Commission there is no statutory presumption that hearings before the Commission shall take place in public. The Commission is essentially an investigative, not a judicial, body and the legislature has given the Commission an unfettered discretion as to whether to conduct hearings publicly or privately. The principles of open justice will naturally carry great weight with the Commission and unless there existed some valid reason for a hearing to take place privately such hearing would be public. Relevantly there is no challenge to the Commission's decision to conduct a private hearing. What is in dispute is the extent of the Commission's powers of flowing from that choice. This is essentially a matter of statutory interpretation.
14. Section 36 of the Act is the relevant statutory basis for hearings by the Commission and is the key statutory provision in this case. A summary of the section follows:
. Section 36 authorises the Commission to hold hearings
for the purpose of the performance of any of its functions or
the exercise of any of its powers (sub-s. 36(1))
. Where the Commission is required or decides to hold a
hearing, the Commission is authorised to direct that the
hearing take place either in public or in private (sub-s.36(2));
. The Commission is empowered to give directions as to the
persons who may be present at a private hearing (sub-s.36(5)).
. Where, at a hearing by the Commission that is held in
public, it is satisfied that it is desirable to do so by
reason of the confidential nature of any evidence or matter
or for any other reason, the Commission is empowered to
direct that the hearing or a part of the hearing take place
in private and give directions as to the persons who may be
present (para. 36(6)(a)) or give directions preventing or
restricting the publication of evidence given before the
Commission or of matters contained in documents lodged with
the Commission (para. 36(6)(b)). There is no provision
comparable to para. 36(6)(b) with respect to private hearings.
15. In this case the hearing in question was a private hearing and what is in dispute is the nature and extent of the Commission's powers to control the disclosure of evidence given at such a hearing. Counsel for the Commission's primary submission relied on what were said to be the inherent powers to be derived from the very nature of a "private" hearing. It was said that a hearing cannot be "private" if the evidence given can be subseqeuntly published; the very essence of a private hearing is that the public can be excluded and the evidence given kept out of the public domain. It was argued that as the control over the disclosure of evidence was a defining feature of a private hearing it was unnecessary for the legislature to separately and specifically grant powers to the Commission to restrict the disclosure of evidence. Paragraph 36(6) was said to confirm the validity of this approach. That sub-section permits the making of a non-publication order, but its terms only apply in the case of a hearing in public.
16. It may appear odd that a like power was not vested in terms in the Commission when hearings commence as private hearings. In my opinion the answer is not that there is a lacuna in the legislation, but that the power of the Commission to conduct a hearing in private pursuant to s. 36 and the express power conferred by sub-s. 36(5) to determine who should be present carries with it as an integral element of such a hearing the power to give directions preventing or restricting the publication of evidence given before it or of matters contained in documents lodged with it; otherwise the power to hold hearings in private would be of little value. The essence of a private hearing before the Commission is that what takes place is in private and, therefore, by definition and of necessity not open or accessible to the public.
17. The power of the Commission to maintain the privacy of the evidence is a necessary element in the private hearing itself. Alternatively, it may be regarded as a power which is incidental to or consequential upon the express power of the Commission to hold a hearing in private: see Attorney-General v The Great Eastern Railway Company (1879) 5 App Cas 473 per Lord Selborne (L.C.) at 478; Ex parte Evatt re New South Wales Bar Association (1967) 1 NSWLR 695; Makin v Gallagher (1974) 2 NSWLR 559 at p 575-576. The power which must be implied is a power to take all reasonable steps to ensure that the hearing takes place privately.
18. There are, however, limitations upon this power. It is doubtful if it can extend to giving directions to persons who are not before the Commission, whether as witnesses, representatives or otherwise: see John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465.
19. Courts and tribunals exercise the power of closing their doors to the public and hearing evidence in camera (I see no difference of any present relevance between a hearing in camera and a private hearing) in cases where secrecy is essential: for example, to preserve the anonymity of a witness whose evidence may be crucial and whose life or safety would be in jeopardy if his name was published or confidential information cases. Directions are given in those cases to limit the persons who have access to the secret evidence, whether oral or documentary and constraints are placed upon those persons requiring that their evidence not be disclosed to others and requiring the use of it solely for the purpose of the particular proceeding.
20. Courts hearing cases under Part IV or sometimes under Part V of the Trade Practices Act 1974 or industrial property cases exercise these powers only when necessary but not infrequently. An administrative tribunal that acts similarly is the Trade Practices Tribunal which is constituted by the Trade Practices Act (s. 106 expressly empowers the Tribunal to make necessary orders). By their very nature the issues that come before that Tribunal often involve commercially sensitive material and the Tribunal exercises its powers in like manner to courts.
21. When courts or tribunals make secrecy orders (I use this expression as a composite expression to encompass orders for hearing in private and restraining the disclosure of evidence) they may expressly impose a temporal constraint upon their operation, for example, until the determination of the proceeding or further order. Sometimes a Judge will be able to say at the time he makes the order for how long the secrecy order should continue. Sometimes when delivering judgment the Judge may remove the cloak of secrecy and disclose the confidential material in his reasons, either by necessity (for example, the material must be mentioned in the orders themselves) or because he is satisfied that the information needs no further protection or is in truth on, further examination, information that should not be protected by secrecy. Often when asked to make secrecy orders the Judge will be able only to form a prima facie view as to whether such orders should be made, but after the benefit of all the evidence and argument, he will be in a better position to determine whether those orders should continue, in some cases of course only after giving the parties an opportunity to be heard if the protective order is to be revoked.
22. This gives some illustration of the temporary nature of most secrecy orders. There are cases where secrecy orders are necessarily permanent as, for example, in the cases mentioned earlier involving the disclosure of confidential information or trade secrets; but that is because property rights are protected requiring the maintenance of the secrecy of the information. In most instances, however, the circumstances of the case would not justify imposing permanent orders restraining disclosure of evidence.
23. In the circumstances of an investigation by the Commission into possible criminal conduct it may be difficult to establish that permanent non-disclosure orders could be supported by the implied or incidental powers of the Commission arising from the power to hold a private hearing. At the same time it may be almost impossible for the Commission to accurately forecast at the time of making the orders the appropriate duration of them. In such circumstances it seems unrealistic to impose, as a pre-condition for validity, a requirement that a specific time limit be set in advance for the operation of the orders. It would be within the Commission's powers to order non-disclosure pending some definitive but undetermined date, such as the conclusion of the hearing or the investigation or alternatively until further order. The Commission must have a wide discretion as to the appropriate temporal limitation of non-disclosure orders. Provided that the orders made by the Commission are reasonably necessary for the purposes of the private hearing, the fact that they are of uncertain duration will not automatically invalidate them.
24. In this case the non-disclosure orders made by the Commission were not expressed to be limited in time. In the circumstances of the investigation it is possible that the Commission may not have been able to accurately forecast at the time it made the orders the length of their duration. The orders were not expressly made subject to further order. However, the temporary nature of them seems to me to be discernible from the circumstances in which they were made.
25. I have already set out the discussions that occurred between the Commission and Mr. Hartnell on 12 December 1988 and the terms of the non-disclosure orders then made by the Commission. The hearing before the Commission was adjourned and resumed on 23 January 1989 when Mr. Hartnell raised again the question of the entitlement of a witness to discuss with others the evidence he had given before the Commission and the Chairman gave the ruling mentioned earlier. This suggests to my mind that the Commission and Mr. Hartnell regarded the non-disclosure orders as being capable of variation and not necessarily permanent. They were temporary in the sense that they remained in force unless and until they were revoked.
26. The hearing before the Commission had reached its closing stages when these proceedings were commenced; but when this litigation is at an end and the hearing before the Commission resumes, the Commission may form prima facie views adverse to some of the witnesses or other persons. The Commission would then be bound to give those persons an opportunity to call evidence and make submissions. At that time the Commission may be asked to relax its non-disclosure orders to enable the people against whom adverse findings are foreshadowed to properly prepare their evidence and submissions. The material before this Court does not suggest to me that the Commission has closed the door to such an application.
27. The completion of the hearing before the Commission may not, however, be coterminous with the conclusion of its investigation. The Commission has power in my view, as an incident to the hearing, to vary or revoke the non-disclosure orders even after the conclusion of the hearing. On the other hand there may be good reasons in a particular case why the evidence before the Commission should remain private or secret after the hearing has concluded. The Commission is an investigative body and there may be sound reasons of public policy why the evidence should not be made available to the public until after decisions have been made whether to prosecute persons for criminal offences or not; and this may occur after the conclusion of any hearing before the Commission which was held for the purpose of assisting it in determining whether offences or contraventions of statutes had occurred.
28. If constraints are to be imposed upon witnesses or their representatives relating to disclosure of their evidence it is necessary that the Commission give specific directions to that end. The Commission must consider during the hearing what directions are appropriate with respect to these matters and give directions accordingly: see Re Trade Practices Tribunal; Ex parte Tooheys Limited [1977] FCA 22; (1977) 16 ALR 609 per Franki J. at 618 with whose reasons Northrop J. concurred; In Re a Barrister and Solicitor (1979) 29 ACTR 25 per Blackburn C.J. at 27.
29. We were referred in argument to various reported cases which are analysed by the other members of the Court in their reasons for judgment. I agree with their Honours' analysis and conclusion that they do not dispose of the present case.
30. In my opinion the non-disclosure orders made by the Commission under challenge in this case did not go beyond what was reasonably necessary to achieve the secrecy of the hearing before the Commission.
31. I agree with the reasons of the other members of the Court with respect to the transcript question. Oral evidence is invariably transcribed these days so obviously the maintenance of the secrecy of evidence given before the Commission must extend to preserving the secrecy of the transcript, otherwise a private hearing becomes a nonsense.
32. I would allow the appeal in so far as the learned primary Judge held that the non-disclosure orders were invalid and I would set aside order no. 1 and his Honour's order for costs; otherwise I would dismiss the appeal.
33. As to costs, in my opinion the Commission is entitled to succeed in its challenge to the findings of the primary Judge that the non-disclosure orders were invalid, which was the principal question argued before this Court on appeal; but the Commission has failed on the other questions. The proper order for costs is that the respondents pay one-half of the costs of the appellant of the appeal and of the proceedings at first instance.
The National Companies and Securities Commission ("the Commission") appeals from orders made by a judge of the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in the following circumstances.
2. In September 1988, the Commission commenced an investigation into trading in certain futures contracts to determine whether offences had been committed under s.130 of the Futures Industry (New South Wales) Code. On 23 November 1988, the Commission resolved that, as part of its investigation, a hearing be held pursuant to s.36 of the National Companies and Securities Commission Act 1979 ("the Act").
3. Hearings before the Commission are dealt with by Part VI of the Act. Hearings are specifically dealt with by s.36. (It will be necessary to consider this provision later in detail as it is of central importance in these proceedings.) The power to summons witnesses and take evidence is conferred by s.37. Proceedings at hearings are dealt with by s.38. The failure of witnesses to attend and answer questions is provided for by s.39. Contempt of the Commission is dealt with by s.40.
The scheme of s.36 itself
4. The Commission may hold hearings for the purpose of the performance of any of its functions or the exercise of any of its powers (s.36(1)). The Commission may either direct that the hearing take place in public or direct that the hearing take place in private (s.36(2)). If a person who is entitled under a federal or State Act to be afforded the opportunity by the Commission to appear at a hearing before the Commission requests that the hearing take place in public, the Commission shall direct that the hearing take place in public (s.36(3)), but where the federal or State Act requires the hearing to take place in private, the Commission shall so direct (s.36(4)). Where the Commission directs that a hearing take place in private, the Commission may give directions as to the persons who may be present at the hearing (s.36(5)). Where, at a public hearing, the Commission is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Commission may: (a) direct that the hearing or a part of the hearing take place in private and give directions as to the persons who may be present; or (b) give directions preventing or restricting the publication of evidence given before the Commission or of matters contained in documents lodged with the Commission (s.36(6)). Nothing in any direction given by the Commission under s.36(5) or (6)(a) prevents the presence at a hearing of (a) a person who is entitled under a federal or State Act to be afforded the opportunity to appear at the hearing; (b) a person representing such a person; or (c) a person representing a person who, by reason of directions given by the Commission, is entitled to be present (s.36(7)). Where a private hearing is directed, a person is not entitled to be present unless so entitled by virtue of the direction or by virtue of s.36(7) (s.36(8)).
5. On 23 November 1988, the Commission's Futures Industry Division ("the Division") resolved that a hearing be held before Messrs C. Williams and K. McPherson, members of the Division, pursuant to s.36 of the Act. It was directed, pursuant to s.36(2) of the Act, "that the hearing take place in private." On 30 November 1988 summonses were issued by the Commission pursuant to s.37(1) of the Act. The seventh to twentieth respondents to the appeal, the applicants at first instance, all employees of the first, second or third respondent, were summoned to attend before the Commission at the hearing and give evidence. The first to sixth respondents and the twenty-first to twenty-seventh respondents were summoned to produce documents at the hearing. All the respondents were represented at the hearing by Anthony Geoffrey Hartnell, solicitor. The hearing commenced on 12 December 1988 and continued on 13 and 14 December and on 23, 24 and 25 January 1989.
6. During the Commission's hearing, the following questions arose and were the subject of the proceedings under the ADJR Act: (1) The entitlement, if any, of the several witnesses and Mr. Hartnell to discuss evidence given and documents produced at the private hearing amongst themselves or with appropriate executives of the employer companies; and whether the Commission had power to make orders prohibiting such discussion. (2) The entitlement, if any, of Mr. Hartnell and the several witnesses to be given transcript of the testimony given by the witnesses. (3) The extent of the respondents' right to call evidence and make submissions before the termination of the hearing.
7. On 12 December 1988, Mr. Hartnell sought the Commission's "consent to (his) being allowed to discuss with any relevant employee of Bankers Trust that participated in either the strategy or decision-making or dealing processes in relation to Bond trading, evidence that has been adduced before (the Commission), for the purposes of (his) putting further evidence before (the Commission) as may be relevant through individual or corporate witnesses." When this consent was refused, Mr. Hartnell said: "I understand your order to the effect that if something is raised adverse to person A by person B, I cannot tell person A about it". The chairman, Mr. Williams, responded: "I think you understand that very well, Mr. Hartnell". Mr. Hartnell continued: "Nor can person B tell anyone about it". Counsel assisting the Commission then said: "Yes that is the nature of a private hearing".
8. At the conclusion of the evidence of the first witness (the seventh respondent), the chairman made the following statement to him: "May I caution you that this is a private hearing pursuant to s.36(4) of the National Companies and Securities Act and that requires that you not discuss either questions asked or answers given or exhibits given or provided with any person other than your legal counsel. Any breach of that requirement would be a contempt of the Commission." He also addressed Mr. Hartnell as follows: "Of course, following our discussions earlier, Mr. Hartnell, you will appreciate that what I have said to the witness applies equally to his legal representative". The chairman's statements to the seventh respondent and to Mr. Hartnell are the "non-disclosure" order in respect of which relief was sought in these proceedings.
9. At the hearing on 23 January 1989, Mr. Hartnell raised again the question of the entitlement of a witness to discuss with others the evidence he had given before the Commission. On 24 January, Mr. Williams gave this ruling: "We have reconsidered your submission...in respect of the caution to witnesses that has been given as regards the communication of evidence given in the hearing...We are not persuaded to move from that position and whilst we believe that we have power to release you or any witness from the full obligation of privacy, we do not believe that it is appropriate to do so and do not propose to do so."
The respondents' challenge to the "non-disclosure" order at first instance
10. The respondents challenged the "non-disclosure" order on two grounds: First, they argued that the Commission had no power to make an order prohibiting a person rightfully present during a private hearing from disclosing evidence given in the hearing. Secondly, they said that, even if such power existed, the order made in the present instance exceeded the ambit of the power.
The primary judge's decision on the validity of the "non-disclosure" order
11. In holding that the "non-disclosure" order was invalid, the primary judge said:
"The cases upon which the (respondents) rely are, for
the most part, cases dealing with the inherent powers
of courts to regulate their own procedures in the
interests of justice. However, I do not consider that
this raises any significant point of distinction in the
present circumstances. If an in camera order made by a
Court in respect of the whole or part of a hearing
before it does not, in itself, embrace a direction that
the evidence given at the hearing shall not be
disclosed outside it, then a power given to a merely
statutory body, which can have no inherent powers, to
direct that a hearing before it be conducted in private
cannot carry with it a further unspecified power to
prevent or restrict publication of evidence given at
the hearing. A court, by virtue of its inherent powers
can add a non-disclosure order to an in camera order.
A statutory body having no such inherent powers, cannot
unless authorized to do so by statute."
12. After referring to the reasoning in a series of cases dealing with the powers of courts and tribunals to restrict publication of their proceedings, viz., Scott v. Scott (1913) AC 417, Re Trade Practices Tribunal; Ex parte Tooheys Limited [1977] FCA 22; (1977) 16 ALR 609, Re A Barrister and Solicitor (1979) 29 ACTR 25 and John Fairfax and Sons Limited v. Police Tribunal of New South Wales (1986) 5 NSWLR 465, his Honour said:
"A consideration of these cases and of the passages
cited brings me to the conclusion that the legislature
has not given to the Commission power under the Act to
make orders for non-disclosure of evidence in private
hearings before it. It has merely given it power to
direct that a hearing shall take place in private and
to give further directions as to who shall be permitted
to be present at the hearing."
13. His Honour added that this did not mean that there exists an "unfettered" right in persons present at private hearings of the Commission, whether as witnesses or legal representatives, to publish evidence given in those hearings. For instance, publication could involve the publisher in incurring liability for contempt of the Commission (see s.4O(d)), if the evidence were disclosed in circumstances that constituted a wilful interference with the due conduct of the inquiry. His Honour also mentioned professional and ethical restraints on the discussion of evidence during the currency of proceedings.
14. The primary judge did not need to deal with the respondents' alternative submission that, assuming a general statutory power in favour of the Commission, nonetheless, this particular order exceeded that power. But his Honour said that the submission that the order, being unlimited as to scope and duration, was beyond power had "considerable weight".
Order made at first instance in respect of the "non-disclosure" order
15. In his reasons for judgment, his Honour indicated that he proposed to make an order setting aside the "non-disclosure" order. His Honour directed that the parties bring in short minutes of orders to give effect to his reasons. The respondents submitted draft short minutes of orders to the Commission. On 7 March 1989 the judge made orders in accordance with the respondents' draft short minutes of orders. Order 1, which is a declaratory order, is presently relevant and is as follows:
"1. Order that the (Commission) was not empowered to
make any decision or order requiring the
(respondents) or their solicitors not to discuss
or disclose evidence or exhibits (whether oral or
written) given during the course of the inquiry
now being conducted by the (Commission)..."
16. On 29 March 1989, the Commission filed its notice of appeal. No stay of proceedings was sought. At the commencement of argument on the appeal, we were informed that, after the making of the orders on 7 March, Mr. Hartnell had discussed with some of the respondents the evidence given by other respondents. We were also informed that the Commission's inquiry had almost concluded.
The Commission's primary argument on the appeal - inherent power
17. On behalf of the Commission, it is submitted that a hearing will not be "in private" within the meaning of s.36(2) if the evidence given can subsequently be published; for it to be a "private" hearing, not only must the public be excluded when the evidence is taken, but the public must also be excluded from the information gathered; otherwise, it is said, there would be no point in directing a private hearing. It is contended, for the Commission, that this construction is confirmed by the explicit reference to restrictions on the publication of evidence found in s.36(6)(b). In its terms, this provision applies only in the case of a "public" hearing. This indicates that, in the case of a "private" hearing, the legislature took it for granted that a similar power existed in that situation also. It is argued, on behalf of the Commission, that the contrary view produces so clearly an anomalous or absurd result that it could not have been intended; and that such a result should be avoided as a matter of proper statutory interpretation (see Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297).
The Commission's alternative submission - incidental power
18. It is further argued, on behalf of the Commission, that if the power to restrict publication is not inherent in the power to direct a "private" hearing pursuant to s.36(2), a power to restrict publication is incidental to, or consequential upon, the power to direct a hearing "in private"; that is to say, it is necessary to give effect to the decision to proceed privately (see generally on incidental powers Attorney-General v. Great Eastern Railway Co. (1880) 5 App Cas 473 at p 478; Civic Co-operative Permanent Building Society Ltd. v. Registrar of Co-operative Societies and Agents (1974) 24 FLR 430).
19. As has been noted, the Commission is empowered by s.36(2) to direct a hearing "in private". There is no special statutory definition of what is meant here by "in private". The Macquarie Dictionary definition of the phrase is: "in secret; not publicly". That Dictionary's primary definition of "publicly" is: "in a public or open manner". In turn, "public" is relevantly defined as: "open to the view or knowledge of all; ...done...in public: the fact became public." The Oxford English Dictionary, 2nd ed., defines "private" as, "in general, the opposite of public." Included in its definitions is: "Kept or removed from public view or knowledge; not within the cognizance of people generally; concealed, secret." Another definition is: "of a conversation, communication etc.: intended only for or confined to the person or persons directly concerned; confidential." The Oxford definition of "in private" is: "privately, not publicly" and "privately" is defined to mean, inter alia: "Without publicity; without the participation, presence, or cognizance of the public, in private; ...secretly."
20. Although the present question is one of the statutory construction of a particular provision of the Act, it is necessary, in the first instance, to consider the authorities which have dealt with the powers, if any, of courts or tribunals to restrict publication of evidence in proceedings before them.
The authorities dealing with the power to restrict publication
21. In Scott v. Scott, supra, an order was purportedly made for the hearing of a nullity suit "in camera", i.e., in the judge's private chambers. After a decree nisi had been pronounced, the petitioner obtained a transcript of the proceedings and sent copies of the transcript to certain persons in defence of her reputation. It was held by the House of Lords that the order to hear in camera was made without jurisdiction. Some members of the House also considered that, assuming there had been jurisdction, the order would not have prevented the subsequent publication of the proceedings.
22. Viscount Haldane L.C. said (at pp 437-8) that as the "paramount object" must always be to do justice, the "general rule as to publicity, after all only the means to an end, must accordingly yield." But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. "The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity."
23. Viscount Haldane went on to say (at p 438) that unless it be "strictly necessary for the attainment of justice", there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is contest between parties. "He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done."
24. The Earl of Halsbury (at p 442) agreed "generally" with the principles laid down by Viscount Haldane. He added (at p 443) that, "as to the injunction of perpetual secrecy, there is not a judgment of authority to justify it."
25. In discussing the exceptions to the "rule of publicity", Earl Loreburn said (at p 445-6):
"...the Court may be closed...if such a precaution is
necessary for the administration of justice...Or
witnesses may be ordered to withdraw, lest they trim
their evidence by hearing the evidence of others."
26. Earl Loreburn was of the view (at pp 447-8) that an order for a hearing in camera of a trial involving a secret process might be "utterly illusory" if the evidence could be published afterwards with impunity. There must be some power to prevent that, or the undoubted assertion by the very highest authorities of a right to close the Court in such cases would be "reduced to an idle mockery." After such an order has been made no one has a right to be present on terms of defying the order. It is not a bargain to maintain secrecy. It is a duty to obey the order for secrecy so far as the order lawfully goes.
27. Lord Atkinson held a different view, saying (at p 453):
"I think the order in its true interpretation means what
on its face it plainly says, and nothing more, namely
this, that the place where the case is to be heard
shall be a private chamber, not a public Court. All
the consequences I have indicated follow from that
alteration of the place of hearing. The order was, I
think, spent when the case terminated, and had no
further operation beyond that date. One of the
strangest things in this strange case is that the case
of Rex v. Clement...should be cited as an authority for
the proposition that a Court of Assize or one of the
Divisions of the High Court has power to prohibit the
publication, after a trial has ended, of a report of
the proceeding which took place at that trial."
28. Lord Shaw said (at p 476) that the order to hear this case in camera was beyond power. Even on the assumption that such an order had been within power, it was beyond power to impose a suppression of all reports of what passed at the trial after the trial had come to an end.
29. In our opinion, Scott's Case may be distinguished from the present case. In Scott, there was not, as here, a direction given restricting publication. In the present case, a direction having been given, the question is whether it was within the statutory power. In Scott, the only question was the true construction and operation of the "in camera" order.
Re Trade Practices Tribunal; Ex parte Tooheys Ltd., concerned the construction and operation of Div. 2 of Part IX, and in particular, s.106(2) of the Trade Practices Act, a provision similar to s.36(6) of the Act.
"In order that the Tribunal in such a situation be not
hampered by procedures and rules which could operate to
deprive it of relevant information and in order that it
be at the same time in a position to safeguard the
business interests of the parties before it, the
legislature in Div 2 of Pt IX gave the Tribunal very
wide powers, powers which in important respects are
much wider than those which a court may exercise."
Franki J., with the concurrence of Northrop J., said (at p 618):
"Applying the principles of Scott v. Scott, supra, I
consider that if the Tribunal makes an order only that
the proceedings be in private and enumerates the
persons entitled to be present, there is no absolute
prohibition on the publication of evidence given in the
private session, certainly if this be only for the
purpose of a legal adviser who was present, and not
excluded, obtaining appropriate instructions from his client.
The express power which the Tribunal has under
s.106(2)(b) to restrict the publication of evidence
also points to the conclusion that, in the absence of
any express order under that power, the general order
that proceedings be in private and that only certain
people may be present, does not restrict all
publication of that evidence."
31. Again, as in Scott, Toohey's Case did not require a consideration of the present question, namely, the validity of a specific direction purporting to prohibit publication.
In Re a Barrister and Solicitor, Blackburn C.J. agreed (at p 27) with Franki J. in Tooheys' Case that an order that a matter be heard in camera "does not, of itself, absolutely prohibit all publication, without further order, of the evidence given in camera."
32. In John Fairfax & Sons Ltd. v. Police Tribunal of New South Wales, a question arose concerning the construction and operation of s.44(1) of the Police Regulation (Allegations of Misconduct) Act 1978 (N.S.W.) as follows:
"44.(1) At any proceedings before the Tribunal,
whether under section 41 or 43 -
...
(b) the public shall not be excluded unless the
Tribunal exercising jurisdiction at those
proceedings otherwise orders; ..."
33. The Tribunal purported to make an order, until further order, that the name of a police informer not be published "in any reports of these proceedings nor in any material which would serve to identify him or his place of abode." It was held: (1) An order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in the proceedings before it. (2) An order of a court prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. (3) The making of an order prohibiting the publication of evidence before the court must also be reasonably necessary and there must be some material before the court upon which it can reasonably reach the conclusion that it is reasonably necessary to make such an order. Mere belief that the order is necessary is insufficient. (4) When the court wishing to make an order prohibiting the publication of evidence is an inferior court, the order must do no more than is "necessary to enable it to act effectively within" its jurisdiction (per McHugh J.A., Glass J.A. concurring, at p 477). McHugh J.A. said (at pp 481-2):
"I cannot see any justification for holding that a power
to exclude people from the proceedings includes a power
to prevent the publication of evidence in the
proceedings by persons who do attend the hearing or
includes a power to prevent persons who do not attend
the hearing from receiving details of the evidence. In
my opinion there is no similarity between a power to
exclude people from proceedings and a power to prohibit
publication by either those who are permitted to attend
the proceedings or to those who do not attend. The
order in question in this case was not even limited to
those persons who attended the hearing. It purported to
prohibit persons from publishing the evidence irrespective
of whether they attended the hearing and irrespective
of the source from which they obtained the information."
34. Mahoney J.A. was of the opinion that the second part of the order was bad because it purported to prevent publication of the name without reference to the suggestion that he was, in proceedings before the Tribunal, a police informer. His Honour said (at p 473):
"In the case of a court having inherent power of the
present kind an order in terms of the second part of
the Tribunal's order would, in my opinion, go beyond
jurisdiction. It would seek to achieve a purpose
within jurisdiction by a means not within the
jurisdiction of the court."
35. Again, the present question, namely the validity of a specific order directed at the witnesses present at the hearing, did not arise.
36. In Attorney-General for New South Wales v. Mayas Pty. Ltd. (1988) 14 NSWLR 342, Mahoney J.A. said (at p 346):
"It might be thought that, at least in some cases, the
reason why an in camera order can validly be made
should lead the court to conclude that, by
implication, the in camera order also restricts
publication. But in England it has been said that an
in camera order does not, as such, restrict the
subsequent publication of what has taken place in the
court: see the Scott case (at 483) and Halsbury's Laws
of England, 4th ed, vol 9, par 20(10) at 17. If this
be so, then it would follow that in some but not all
cases in which it is appropriate that an in camera
order be made, the considerations which made the in
camera order appropriate would justify the making of a
non-publication order: see,eg, the Scott case (at 447,451)."
"In my opinion, the power to make in camera and
non-publication orders is not confined to superior
courts. It is a power which, I think, a magistrate may
exercise in the course of proceedings in which he
determines criminal or civil rights."
37. However, Mahoney J.A. acknowledged (at p 347) that, in John Fairfax, a majority was of the opinion that the non-publication power did not extend to the statutory tribunal there in question. Mahoney J.A. further acknowledged that there are limits upon the circumstances in which a court may make "in camera" or non-publication orders and there are limits on their operation. Thus, publication may, in a particular case, be restricted only for a particular time or in relation to particular persons (at p 347).
38. McHugh J.A., Hope J.A. concurring, said (at pp 357-8):
"In Attorney-General v. Leveller Magazine Ltd
magistrates in committal proceedings had ruled that a
witness was to be referred to in Court as 'Colonel B'
and that his name was to be written down and only shown
to the Court, counsel and the defendants. In that
context Lords Diplock and Scarman expressed the view
that, since the magistrates had the power to sit in
camera, they were entitled to take the lesser course of
requiring certain of the evidence to be heard only by
those immediately connected with the proceedings and
not by members of the public whether inside or outside
the Court. However, if a court allows evidence to be
given in open court then, in the absence of statutory
authority, it has no power to prevent the publication
of that evidence."
39. In our opinion, the decision in Mayas may be distinguished for present purposes. The question there arose on a summons alleging contempt of court by a reporter in publishing the name of a complainant to a charge of sexual intercourse without consent where the magistrate had, in the course of the committal proceedings, made a non-publication order in respect of the name of the complainant and where the reporter was unaware of the order.
40. The authorities discussed above, although helpful in enabling an understanding of the present question, are not determinative of that question, which must be one of the statutory interpretation of the words used in the Act, taken in their own proper context.
41. In the present case, the Commission was given, expressly, the power to direct that the hearing take place privately. In aid of that power, the Commission was also given, in our opinion, by necessary implication, the power to take all reasonable steps, which when viewed objectively, were necessary in order to ensure that the hearing was conducted privately. The Commission is entitled to regulate its proceedings to avoid a situation arising where the confidentiality of information obtained by it may be exposed to the risk of premature disclosure (cf. National Crime Authority v. A, B and D (1988) 78 ALR 707 at p 716). This is not to say that the information should always be regarded as confidential. But, in order to conduct a hearing properly, it is necessary that the Commission have the power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. Publication of that material before the conclusion of the hearing could prejudice the effective conduct of the hearing. It follows, in our opinion, that it is proper to imply in the Act a power in the Commission to prevent or restrict the premature publication of evidence given at the hearing; or to put the matter positively rather than negatively, the Commission had the power, by necessary implication, to take all reasonable steps which were necessary to secure a "private", rather than a "public", hearing. The question then arises whether, in the present circumstances, the "non-disclosure" order was a reasonable step, viewed objectively, taken with a view to secure the privacy or secrecy of the hearing.
The meaning and operation of the "non-disclosure" order
42. It is first necessary to decide what is the meaning and operation of the order. It will be recalled that the order (a) operated on the persons present at the hearing; (b) prohibited any disclosure, except to a legal representative, of the evidence given at the hearing; and (c) was without any limitation as to time, except if the order is subsequently discharged. Thus, as to (a), the order is significantly restricted in its operation; but as to (b) the order is, substantially speaking, unrestricted in its operation except as to subject matter; and as to (c) the order is without any substantial restriction.
Was the "non-disclosure" order justified in the circumstances?
43. In our opinion, the "non-disclosure" order went beyond what was reasonably necessary to achieve the secrecy of the hearing. It was appropriate to limit the order to persons present and to evidence given at the hearing. In other words, the difficulties which arise in the case of an order which purports to bind any member of the public do not arise here. But, in our view, because the order would have continued to operate until discharged by another order, if ever made, the order went beyond what was necessary to achieve the privacy of the hearing. It is one thing to secure the secrecy of the hearing by prohibiting disclosure during the currency of the hearing, or, perhaps, within a reasonable time after it has concluded. (As to the temporary character of the public interest in the non-disclosure of information pending prosecution, see Inland Revenue Commissioners v. Rossminster Ltd. [1979] UKHL 5; (1980) AC 952 at p 1001; p 1012; Regina v. Inland Revenue Commissioners; Ex parte TC Coombs & Co., English Court of Appeal, Times Law Report, l June 1989.) It is a very different thing, as was attempted here, to seek to prohibit disclosure indefinitely, or at least unless and until an order of discharge, if any, is made. For all practical purposes, the order would have operated as a permanent restraint upon future publication. Put differently, the order, in our view, travelled beyond the period in respect of which the Commission's implied power to prohibit disclosure could reasonably operate (cf. McDonald v. Brott [1989] VicRp 16; (1989) VR 177 at p 181).
44. It follows, in our view, that the order was beyond power.
45. It will be recalled that the declaratory order made by the primary judge declared that the Commission "was not empowered to make any decision or order requiring the (respondents) or their solicitors not to discuss or disclose evidence or exhibits...". Although it appears that this order was intended to be directed at the "non-disclosure" order, it may be capable of a wider interpretation. In particular, if viewed in isolation, the order made by his Honour could suggest that the Commission lacked any relevant power in this area. With respect, we cannot agree. For the reasons already given, in our view, the Commission possessed an implied power, albeit a limited one, to prohibit publication so as to preserve the secrecy of the hearing at least during its currency. On the other hand, we are also of the opinion that the "non-disclosure" order actually made here was beyond power because, in practical terms, it was of indefinite duration. In the circumstances, we would propose that the order made in this respect by his Honour be set aside and the following declaration be made in lieu thereof:
"1. Declare that the order or orders described in the reasons
for judgment as the "non-disclosure" order was beyond power."
46. The relevant facts, as found by the primary judge, were as follows: From the commencement of the hearing, Mr. Hartnell requested that each witness (and presumably himself) be provided with a copy of the transcript of the evidence of each witness. The application was treated as a request for the provision of the transcript within a reasonable time because the transcript was not available on a daily basis. The Commission indicated to each witness at the conclusion of his testimony that he would receive a transcript of his evidence, but not immediately. In response to requests for the provision of transcript to Mr. Hartnell, the Commission indicated that it would provide transcript when it considers it appropriate to do so. The hearings took place on the days in December 1988 and January 1989 already indicated. At the time of the hearing before his Honour, no transcript had been provided despite repeated requests by Mr. Hartnell and no firm indication has been given as to when such transcript might be forthcoming. The evidence of all of the witnesses except one, Mr. David Bennett, had been taken, and in respect of this witness, his re-examination by Mr. Hartnell had not taken place. None of the witnesses, however, had been released and each one was subject to recall by the Commission for further questioning until such time as the hearing is formally terminated. Mr. Hartnell took notes of the evidence of witnesses in the ordinary way and on the basis of such notes, re-examination of witnesses took place. However, Mr. Hartnell said that he experienced difficulty in the taking of adequate notes, mainly because of the complex and technical nature of the evidence, and he sought a proper transcript for the purpose of considering the evidence given by the individual witnesses, discussing the evidence at least with the individual witness who gave it for the purpose of determining the desirability or otherwise of seeking to supplement the evidence already given by the witness. Mr. Hartnell also required the transcript for the purpose of using it, in the ordinary way, for the formulation and presentation of submissions on behalf of his clients.
47. The respondents contended, before the primary judge, that the refusal to provide transcript denied them natural justice in the sense explained in National Companies and Securities Commission v. News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296.
The decision of the primary judge on the transcript question
48. His Honour ordered that the Commission provide to the solicitors for the respondents a copy of the transcript of all respondents for whom those solicitors appeared in the inquiry. (Since the making of the order, the Commission has provided the transcript, as directed. As has been noted, no stay of proceedings was sought.) The essence of his Honour's reasons were as follows:
"...if a request for transcript is made by a legal
representative in circumstances where it is reasonably
possible to comply with that request and the request is
made on the basis that it is needed by the legal
representative to enable him properly to fulfill his
role as the representative of the witness at the
hearing, then that request, as a matter of natural
justice, should be complied with unless there are
compelling reasons related to the effectiveness and
integrity of the enquiry which require that the request
be refused at that point of time. If it be then
refused, that refusal should be withdrawn when the need
for it has passed."
The respondents' contention that the refusal to provide transcript denied the respondents natural justice.
49. The Commission acknowledges that, in its terms, s.38(1)(d) of the Act requires it to observe the rules of natural justice. But the Commission argues that his Honour erred in directing its provision for these reasons: (1) The principal question is whether witnesses are being treated fairly. There is no obligation to maintain a transcript at a hearing of the Commission. It would be unusual to impose an obligation to provide a copy of a transcript only in the event that one happened to be available. (2) The provision of transcript in the middle of an investigation is likely to hamper investigations rather than assist the investigator. (3) The fact that the transcript is given to a lawyer who will observe his professional ethics is not to the point. Once a transcript is available and is discussed with witnesses, nothing prevents those witnesses making further disclosure. The investigative process should not be required to depend upon the warning of a lawyer not to disclose the material and that warning being observed.
Did the failure to provide transcript breach the rules of natural justice?
50. In the News Corporation Case, supra, Mason, Wilson and Dawson JJ. said (at pp 325-6):
"In our opinion the Commission will comply with the
statutory mandate to observe the rules of natural
justice in the present case if it proceeds to allow
each witness who is called to give evidence to be
legally represented, with freedom for that
representative to participate in the examination of the
witness, and for the provision of a transcript of his
evidence. The conduct of an investigation in such a
manner is fair and nothing more is required."
51. It is true that the question whether there has been a failure to comply with the rules of natural justice will depend upon the particular circumstances of the individual case (see the News Corporation Case, supra, per Gibbs C.J. at p 3l2). Yet what was said by Mason, Wilson and Dawson JJ. in the passage cited above indicates that prima facie at least, fairness requires that transcript be provided in a case such as the present. In our opinion, it was open to the primary judge to conclude, on the material before him, that it was only fair that the respondents then have the transcript (see Forbes, The Law of Domestic or Private Tribunals at pp 157-8; cf. Connell v. National Companies and Securities Commission (1989) 7 ACLC 748 at p 754). No error of principle on his Honour's part, and no other ground for interference, has been demonstrated.
52. In all the circumstances, it is appropriate that the respondents receive three-quarters of their costs at first instance and on the appeal.
# Re National Companies and Securities Commission
Bankers Trust Australia Limited and Others \[1989\] FCA 530;
(1967) 1 NSWLR 695
(1974) 2 NSWLR 559
(1986) 5 NSWLR 465
(1977) 16 ALR 609
(1981) 147 CLR 297
(1974) 24 FLR 430
(1988) 14 NSWLR 342
(1988) 78 ALR 707
(1984) 156 CLR 296