Case: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460
Outcome: cited
When a regulatory body or authority such as ASIC or the Australian Competition and Consumer Commission or the Commissioner of Taxation is given such a power it is a power to investigate not to decide in the sense that a court decides when it gives judgment upon a matter before it: Huddart Parker &amp; Co Pty Ltd v Moorehead at 358 (Griffiths CJ), 380 (O'Connor J), 384 (Isaacs J), 418 (Higgins J); Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. The latter case concerned s 155 of the Trade Practices Act conferring power on the Chairman of the Trade Practices Commission to orally examine persons or require production of documents relevant to possible contraventions of the Act. The Court held that s 155 did not purport to confer judicial power on the Commission. Mason J made some observations relevant to the distinction between the exercise of an investigative power which may lead to subsequent judicial proceedings but nevertheless remains administrative and the exercise of an administrative power as an incident of judicial power. He said (at 471 - 472): 'The absence in s 155 of any power to decide or determine a dispute between parties the central element in the exercise of judicial power might be thought to be an overwhelming answer to the argument that there is an attempt to confer judicial power on the Commission. However, it is suggested that if the Commission requires information to be given for the purpose of obtaining evidence in a matter before the Court then it is exercising judicial power. According to Holmes J in Prentis v Atlantic Coastline [(1908) 211 US 210 at p 227], "The nature of the final act determines the nature of the previous inquiry". But this does not mean that because the determination ultimately made by the Federal Court in proceedings in respect of a contravention of the Act is an exercise of judicial power the issue and service of the notices is itself such an exercise. Holmes J was merely saying that the character of the order or final decision made by a tribunal will determine the character of the inquiry which precedes its decision, so that if its determination is a judicial order then its inquiry will constitute an exercise of judicial power. R v Davison [(1954) [1954] HCA 46 ; 90 CLR 353] was just such a case. This is not to say that it is legitimate to characterize the nature of the power exercised by the Commission under s 155 by reference to the judicial power which the Court exercises when it hears proceedings for a penalty under the Act. What the Commission does will produce information which may be presented in evidence by a party in proceedings in respect of a contravention under the Act, but this is no basis for saying that there is an exercise of judicial power on the part of the Commission. The exercise of a power to compel the provision of information is not inherently such an exercise. It may constitute an element in the exercise of judicial power when the power is part of the proceedings of the court, its object being to aid the court or the parties to obtain and present evidence in those proceedings. Then the exercise of the power by the court or the parties in proceedings in the court is for the purpose of enabling the court to hear and determine the lis and is, accordingly, incidental to, if not an element in, the exercise of judicial power.' See also Kluver and Woellner , Powers of Investigation in Revenue, Companies and Trade Practices Law (Butterworths, 1983, [102] - [103])