Case: National Crime Authority v A (1988) 18 FCR 439
Outcome: considered
The text of s 23(1) is, I think, plain. The right is conferred on the examinee's lawyer. In that regard, its wording is different from s 25(4) of the National Crime Authority Act 1984 (Cth) which provided, in part, that "a person giving evidence may be represented by a legal practitioner" and which was held by the Full Court in National Crime Authority v A (1988) 18 FCR 439 at 446 per Bowen CJ, Sheppard and Morling JJ to operate as a conferral of a right upon a witness. 47 The notion that rights are conferred on lawyers rather than their clients is neither novel nor surprising. The right to file an originating process is conferred on a solicitor just as the right of audience is conferred on both solicitors and barristers. In each of those cases the right thereby conferred is to be exercised by the lawyer in accordance with his or her legal and equitable duties. To conclude that the right conferred by s 23(1) on a lawyer is to be exercised for the benefit of the client (and in accordance with lawful instructions) does not make it necessary to construe s 23(1) as conferring a right on the client. 48 Reference has already been made to s 25 of the National Crime Authority Act 1984 (Cth) which expressly confers a right on an examinee to have a lawyer present during an examination. That Act did not confer on the Authority an explicit power to exclude a lawyer. However, s 19 of the Act conferred on the Authority the power to do all things necessary to be done for or in connexion with the performance of its functions. In National Crime Authority v A (1988) 18 FCR 439 at 446 the Full Court held that that power extended to the exclusion of a lawyer from an examination notwithstanding s 25(4). However, that meant that the extent of the power was coterminous with the degree of the necessity. Hence, the Full Court held (at 448) that the power to exclude a lawyer arose if the Authority "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". 49 There was nothing novel about that conclusion. The fact that the power actually used depended upon the existence of a relevant necessity meant that an absence of such a necessity entailed ultra vires action. In that sense, it was for the Authority to show that its action was within power and to do that it needed to so show the necessity which activated the power in s 19. 50 In Bell that test appears to have been grafted onto ss 22 and 23 of the former (but relevantly identical) Australian Securities Commission Act 1989 (Cth). Notwithstanding that s 22 expressly conferred a power to exclude which was absent from the National Crime Authority Act 1984 (Cth), Lockhart J concluded (at 521) that the power conferred by s 22(1) was subject to the same limitation that the Authority was subject to in National Crime Authority v A, namely, that the inspector must form the view that there are "reasonable grounds for a bona fide belief" on the inspector's part that to allow the particular lawyer to appear "will or is likely to prejudice the investigation which he is obliged to carry out pursuant to the requirements of the Act". 51 The mechanism underpinning this reasoning appears to be the need to reconcile apparently contradictory provisions. It is true that s 22(1) is not expressed to be subject to the same limitation as s 25 of the National Crime Authority Act 1984 (Cth), namely, that the step sought to be justified had to be "necessary". However, to prevent the power to exclude in s 22(1) from devouring the whole of the operation of s 23(1) , which entitled the lawyer to be present, it was necessary to place limits on the extent of the power thereby conferred. Lockhart J identified the limitation as one of reasonable necessity which was explicit in National Crime Authority v A . Burchett J expressed essentially the same conclusion (at 533): I agree that, despite the express language of the Act, it is implicit in the scheme for which the Act provides that he [scil. the lawyer] may be excluded. However, such a qualification upon the express entitlement conferred by the Act cannot be stretched beyond what the court can say is necessarily required for the carrying out of the examination for which the statute provides.