Case: National Crime Authority v A, B and D (1988) 18 FCR 439
Outcome: referred to
respondent also referred to the decision of the Full Court of this Court in National Crime Authority v A, B and D (1988) 18 FCR 439 (' A, B and D' ) and said that the reasoning in that case was applicable to the case before him. The power of a statutory authority to regulate its own proceedings included as an implied power the more specific power to exclude a particular legal representative. The respondent gave examples of how an examination could be seriously undermined if there was no power to exclude a particular legal representative. He said: 'The absence of a power to preclude a particular legal practitioner from representing a witness could, in some circumstances, seriously undermine the efficacy of an examination. For example, if a lawyer acted improperly in an examination by, for example, prompting a witness or repeatedly obstructing the examination, the absence of the relevant power may seriously prejudice the examination. To take another example, if the legal practitioner was also the subject of the particular investigation, it would be highly undesirable for the legal practitioner to represent the witness, and he/she should not be permitted to do so. These examples highlight the need for the relevant power.' The respondent then turned to the exercise of the relevant discretion. In considering this question he proceeded on the basis that the question was whether there were reasonable grounds to conclude that the representation either 'will or may prejudice the investigation'. He adopted this test in preference to a test formulated in terms of 'will or is likely to prejudice the investigation', although he said that even on the latter test he would exercise the discretion in the same way. The respondent recognised as an important factor to which he must give weight, the applicant's wish to have present the legal representative of his choice. However, he was satisfied that the examination of the applicant would canvass the same subject matter as was raised with B on 9 November 2005. Even accepting, as he did, that there was no suggestion that Ms Boots would deliberately prejudice the investigation he said there were reasonable grounds to conclude that Ms Boots' representation of the applicant at the examination 'will, or may prejudice the investigation'. The essence of his reasoning in that regard is contained in the following two paragraphs: 'Because of Ms Boots' attendance at the previous examination, Ms Boots is aware of the topics and issues that are likely to be covered by counsel assisting in questions and how counsel assisting is likely to proceed. Ms Boots is aware of the answers given by the previous witness, and how the previous witness handled questions. If, consistent with Ms Boots' duty to Mr Bonan, she has taken Mr Bonan to the issues and matters likely to arise, Mr Bonan may be aware of the general nature of the questions that will be asked, and the areas that will be focused on. There is accordingly a real risk that the evidence of Mr Bonan may be influenced by the evidence provided by the previous witness. In my experience in this industry, it is very important that witnesses give evidence unaffected by any evidence given by other witnesses. These comments are by no means a criticism of Ms Boots. I accept Mr Jacobs' submissions that there is no suggestion that Ms Boots will deliberately prejudice the investigation. However, consistent with Ms Boots' duty to Mr Bonan, I accept that there is a real risk that Ms Boots may unintentionally, perhaps subconsciously, reveal to Mr Bonan matters that would in effect forewarn him. This would prejudice the investigation.' After referring to the authorities dealing with the power to restrict publication Beaumont and Einfeld JJ said (at 232): '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) 18 FCR 439 at 447-448. 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.' In A, B and D , the Authority ('the Authority') was conducting a special investigation and for that purpose it held a number of hearings. Under the National Crime Authority Act 1984 (Cth) a witness at an examination had a right to be represented by a legal practitioner: s 25(4). A witness was represented by a legal practitioner and that witness's spouse also gave evidence and was represented by the same legal practitioner. It was proposed that the same practitioner would appear for three further witnesses. The Authority decided that the legal practitioner could not appear for the three proposed witnesses and they challenged the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Their challenge was initially successful but failed on appeal to the Full Court of this Court. There is no doubt that the statutory provisions under consideration in A, B and D were quite different from the statutory provisions in this case. There were express provisions providing that hearings were to be held in private and that the Authority could make a non-disclosure direction. There was a provision giving the Authority incidental powers which, at one point in its reasons, the Full Court of this Court described as the 'critical provision': at 447. The offences which were to be the subject of an investigation were serious criminal offences. The Court said (at 446-447): 'A starting point for the consideration of the problem is the nature of the Authority and of its functions. It is concerned with investigating, either generally on its own initiative, or specially on references to it pursuant to ss 13 or 14 of the Act, a wide range of serious criminal activity, or suspected criminal activity, in the community. The powers it has are expressed in wide terms and it is clear that the legislature intended its powers to be extensive and far-reaching. Even without s 19 there could be no doubt, notwithstanding the provisions of s 25(4), that the Authority had power to regulate its own proceedings with a view to ensuring that they were not prejudiced, or exposed to the risk of being prejudiced, by the conduct of any person, whether involved in a hearing before it or otherwise. ... We think that the essential nature of the Authority and the functions with which it has been entrusted, when considered along with s 19 of the Act, lead to the conclusion that the power exists. We also regard s 46(8) as a further factor reinforcing this conclusion. It may seem strange that a provision dealing with meetings of the Authority should be relevant to the problem, but s 25(3) expressly applies s 46 to hearings . ' Lockhart J said that an inspector must have the power 'effectively to regulate and control the investigation which he is conducting' (at 520). His Honour's reasons were closely linked to the statutory provisions under consideration, although he did say (at 522): 'The power created by s 22(1) is expressed in positive terms, namely, the giving of directions about who may be present, and not in negative terms about who may not be present; s 22(2) achieves this to a degree. It seems to me, however, that to sensibly construe s 22(1) requires that the inspector be authorised to direct who may and who may not be present. The express power to give directions about who may be present implies a like power about who may not be present. It may be that the inspector's power to exclude a particular lawyer would exist as being reasonably incidental or ancillary to the proper conduct of the examination even if the specific power conferred by s 22(1) was absent; but it is not necessary to consider this because of the power conferred by s 22(1). ... The Full Court concluded in the A case [National Crime Authority v A (1988) 18 FCR 439] that the National Crime Authority had the power to regulate its own proceedings by excluding a legal practitioner "if it concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation which it is obliged to carry out pursuant to the terms of its statute". I have reached a similar conclusion with respect to ss 22 and 23 of the Act though, in this case, my preferred test of "will or is likely to" presents a slightly higher barrier than "will, or may"; but the difference in practical application will depend on judicial approach to the facts of the particular case. In my view, the differences between the two Acts and the basis of the power being s 22(1) coupled with an abuse of power under s 23(1), as opposed to the broader policy considerations relied on in the A case, lead to this result.' The decisions in A, B and D and Bell were referred to with approval by the Queensland Court of Appeal in Re Whiting [1994] 1 Qd R 561. A firm of solicitors was acting for a police officer who was the subject of a complaint under the Criminal Justice Act 1989 (Qld) and for three police officers who were witnesses in the proceeding. The Chairman of the Criminal Justice Commission ruled that the same legal representative would not be authorised by the Commission to represent both the potential witnesses and the officer against whom the complaint was made. An application to the Supreme Court challenging the order was dismissed. The statutory provisions in this case are very general. They may be contrasted with the quite detailed provisions under consideration in cases such as A, B and D and Bell . Nevertheless, I think it is clear that the ABC Commissioner must have the power to regulate and control the conduct of proceedings before him. He can determine when and where an examination will be held and, providing a proper basis exists, he can regulate and control how the examination is to proceed and who may be present. He is charged with the function of conducting an investigation into suspected unlawful conduct and may bring proceedings for a civil penalty in relation to that conduct. He must be taken to have by implication the power to make orders or give directions which will ensure the integrity of the investigation and, to a point, its effectiveness. In my opinion, he has the power to exclude a particular legal practitioner from acting or appearing for an examinee at an examination. It is appropriate for me to consider whether, insofar as the direction is within power, there was a proper basis to exercise the power. The test as formulated in A, B and D is whether the decision-maker 'concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation which it is obliged to carry out pursuant to the terms of its statute' (at 448). In Bell , Lockhart J said that he favoured a test which presented a slightly higher barrier of 'will or is likely to' prejudice the investigation, although he went on to say that 'the difference in practical application will depend on judicial approach to the facts of the particular case' (at 522). In my respectful opinion, although there is something to be said for a test which presents a slightly higher barrier, the weight of authority is in favour of the test of 'will or may' prejudice the investigation and it is that test which I will apply.