Case: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598
Outcome: cited
The Commonwealth submitted that the RCA conferred power on the Commissioner, for practical and procedural reasons, to reach an opinion as to whether or not Exhibit 665 attracted legal professional privilege. This submission was founded on Re Adams and the Tax Agents' Board (1976) 7 ATR 87, in which Brennan J said at 89: 'An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the court's judgment and not the administrative body's opinion which defines the extent of (as well as the constitutional support for) its statutory authority. ... An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect. In R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598, Dixon J, whilst denying the power of a Local Coal Reference Board to determine judicially the meaning of a statutory phrase upon which its jurisdiction depended, distinguished the Board's function of forming an opinion upon the question. He said (at 618): "I do not mean to say that the Board may not, for the purpose of determining its own action, 'decide' in the sense of forming an opinion upon the meaning and application of the words 'coal mining industry'. It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception".' Brennan J applied these principles in concluding that the Administrative Appeals Tribunal and the Tax Agents Board could express an opinion about the constitutional validity of a provision of the Income Tax Assessment Act 1936 (Cth), but neither body could make a decision on that question that produces any effect in point of law: at 91-92. 185 Despite the widely formulated declarations sought by AWB, there was very little in dispute in this Court between AWB and the Commonwealth concerning the nature and extent of the Commissioner's powers under the RCA. In the end, it was essentially common ground between them that (to adapt the language used by Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 at 618) the Commissioner had an administrative power or capacity, for the purpose of determining his own actions and procedures, to 'decide', in the sense of forming an opinion, that Exhibit 665 was required to be produced under the notice because it was not legally privileged. In this sense, the Commissioner had the power to accept or reject the claim for privilege that was made to him. I consider that the Commissioner's opinion or ruling had no binding force or effect in point of law, and it was open to either party to agitate the issue directly in declaratory proceedings in this Court without embarking upon any review of the Commissioner's decision. 186 The main area of contention between AWB and the Commonwealth related to two matters. One area that was in dispute before the Commissioner was whether the Commissioner had to defer to a bare claim of legal professional privilege over Exhibit 665. If AWB advanced any such argument in this Court, it did so very weakly. AWB accepted that the Commissioner could quite properly hear argument and evidence about, and could accept or reject, a claim of legal professional privilege in the exercise of administrative or executive power, subject to the qualification that his decision would not have any legally binding force or effect. The Commonwealth submitted that the Commissioner is not required to accept a bare assertion of privilege. It argued that there is no reason why, in order properly to discharge his functions and to determine the scope of his jurisdiction, the Commissioner should not require that a person making a privilege claim properly establish the claim before him by evidence and submissions. These submissions were not seriously disputed by AWB. 187 I do not doubt that the Commissioner can make a non-binding decision concerning a claim of legal professional privilege. It is obviously administratively convenient and practical that the legislation should be construed as giving him the implied authority to do so. The Commissioner might well accept that legal professional privilege applies to certain documents, thereby obviating the need for any application to be made to the Court. On the other hand, if the Commissioner rejects a claim to privilege, his ruling will crystallise a dispute and provide the foundation for either the Commissioner or the other person concerned to make an application to the Court for an appropriate declaration or injunction.