Case: Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408
Outcome: referred to
In early 2008, ASIC received a request from the Australian Federal Police ("the AFP") that it disclose certain information, including the AWB Information, to the AFP. AWB's solicitors learned of the request from a current employee and three former employees who had been examined by ASIC. Those current and former employees had been contacted by ASIC about the AFP request. ASIC informed them that ASIC was considering whether to provide the transcript of their s 19 examination to the AFP and, consistent with the decision of the High Court in Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 , provided each of them with an opportunity to be heard and to make submissions to ASIC in relation to the proposed release of the transcript of their s 19 examination to the AFP. 4 Upon learning of the proposed disclosure by ASIC, AWB wrote to ASIC on 1 April 2008 seeking an opportunity to be heard and to make submissions to ASIC in relation to the proposed release of information to the AFP including the conditions of the release. ASIC responded on 11 April 2008. At that time, the request was limited to the transcripts of the s 19 examinations. ASIC outlined the terms of the AFP request, its proposal to release the transcripts of the s 19 examinations to the AFP and the conditions upon which that information was proposed to be released. ASIC expressed the view that: It is ASIC's view that the protocols that were applied during the course of the section 19 ASIC Act examinations to ensure that information subject to a valid claim of legal professional privilege was not disclosed were sufficient, and that no privileged information was disclosed during the course of any examinations. ... Further, in light of the conditions on which ASIC proposes to release the examination transcripts to the AFP, and the secrecy provisions imposed on employees of the AFP by section 60A of the Australian Federal Police Act 1979 Cth [sic], ASIC does not consider that [AWB's] interests in the confidentiality of any information provided to ASIC by examinees will be adversely affected by the proposed release. Although it is ASIC's view that ... [AWB's] interests will [not] be adversely affected by any decision to release the information to the AFP on the limited basis identified in paragraph 5 above, ASIC proposes to give [AWB] an opportunity to make submissions in relation to the conditions to be imposed on the disclosure of the transcripts of examinations of current or former employees of [AWB] to the AFP under section 127(4) of the ASIC Act . 5 ASIC and AWB's solicitors corresponded for some months. By July 2008, the AFP request had extended to disclosure of the witness statements that had been provided voluntarily by the employees and former employees of AWB. 45 However, that is not the end of the enquiry. The disclosure of the AWB Information by ASIC to the AFP was subject to conditions imposed under s 127(4A) (see [7] above). ASIC's s 127 power to disclose is discretionary: Johns at 428 and 469. The conditions are important. When, as here, conditions are imposed they are enforceable as an equitable obligation. The AFP is affected by the terms on which it received the AWB Information: Johns at 429. The obligation (expressed as a condition) is enforceable, at least, by injunction: Johns at 429. 46 The question which then arises is whether the disclosure of the AWB Information under s 127(4) requires ASIC to observe procedural fairness not only towards the examinee but also a party in the position of AWB consistent with the principles set out in Johns v ASC [1993] HCA 56 ; (1993) 178 CLR 408. The exercise of the statutory power is conditional upon the observance of the rules of natural justice ( Johns at 470; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , 591 and Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 , 598), but does that natural justice requirement extend to AWB? 47 First, it must be recalled that the AWB Information was protected by disclosure (s 127(1)) subject to the qualifications prescribed in ss (2)-(4). That antecedent right or duty is not determinative. However, it is a relevant factor affecting the exercise by ASIC of its discretionary statutory power to disclose the AWB Information to the AFP. Exercise of the authority conferred by s 127(4) was "apt to affect adversely" the interests of the examinees who are prima facie entitled to have the transcripts kept confidential: Johns at 430. It was for that reason, consistent with Johns , that ASIC observed the rules of natural justice and informed each of the examinees that it proposed to disclose the transcripts and gave each examinee an opportunity to oppose: Johns at 430-431. 48 The present case, however, concerns not the examinee but AWB, the employer or previous employer of each examinee. In Johns , McHugh J said (at 472) that "the need to preserve the confidentiality of ASIC's investigation does not exclude procedural fairness, but reduces its content, perhaps in some circumstances to nothing". Here, the question of whether or not ASIC was obliged to observe the rules of natural justice in the case of AWB did not arise. Although AWB was not told by ASIC of the proposed disclosures to the AFP, it learned of that fact, was "given the opportunity to put submissions before [ASIC] relating to matters requiring the non-disclosure of information by [ASIC]" ( Johns at 472) and took advantage of that opportunity by making numerous submissions opposing the disclosure. AWB might have persuaded ASIC to accept or adopt its submissions. It did not. In the circumstances, it is not necessary to pursue McHugh J's observation to its end to determine precisely how much the content of procedural fairness may have been reduced with respect to AWB; I need only find (and do find) that the opportunity to be heard that was given to AWB was sufficient. 49 It follows from what I have just said that none of AWB's grounds of review is made out. The specific grounds are disposed of as follows. 50 There was no and could be no constructive failure to exercise jurisdiction or an absence of power contrary to ss 5(1)(c) and (d) of the ADJR Act . AWB's contentions that ASIC was "[not] empowered by the ASIC Act to obtain confidential and privileged communications from persons other than the holder of the privilege in circumstances where the holder has not expressly or by implication waived the privilege" is too broad a proposition. ASIC is not empowered to compel production from the privilege-holder and did not do so. 55 In my view, there was no denial of natural justice. AWB was "given the opportunity to put submissions before [ASIC] relating to matters requiring the non-disclosure of information by [ASIC]" ( Johns at 472) and took advantage of that opportunity by making numerous submissions opposing the disclosure. As I have found, this opportunity to be heard was enough to satisfy any requirements of natural justice in the circumstances: see [47] above. Moreover, it is of the utmost importance to recall that in a proceeding of this nature it is neither necessary nor right to decide the merits of the decision. 56 For those reasons, I would dismiss the application and order the applicant to pay the respondent's costs to be taxed in default of agreement. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 11 December 2008 Counsel for the Applicant: Mr C Scerri QC and Mr P Corbett Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Mr S McLeish SC and Ms Z Maud Solicitor for the Respondent: Australian Securities and Investments Commission Date of Hearing: 10 November 2008 Date of Judgment: 11 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1877.html