Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
for ASIC submitted that the decision of Sheppard J in Hare v Gladwin (1988) 82 ALR 307 is in point and should be followed. Section 316 of the Commonwealth Electoral Act 1918 (Cth) provided, inter alia, that an authorised officer of the Electoral Commission could issue a notice requiring the production of documents where the officer has reasonable grounds to believe that a person is capable of providing documents relating to a possible contravention of certain parts of the Act. Sheppard J held that the officer was not obliged to give a recipient an opportunity of making submissions as to why the notice should not be served or why it should be limited in a particular respect, nor to foreshadow to the recipient the nature of her belief in relation to a possible contravention of the Act. His Honour said (82 ALR at 330): 'She was acting in an investigatory capacity only. Nothing that she could do could affect any right or interest which he has or expose him, except by the operation of the Act itself, to conviction for any offence or the risk of such a conviction. In the light of the decision in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550; 62 ALR 321, it is probably true to say that few statutes will be construed in such a manner as to deny to persons affected by action taken under them procedural fairness. The question in each case is what does procedural fairness require. In my opinion, it did not require Mrs Gladwin to give Mr Hare any opportunity of making any submissions to her at all about whether the notice should be issued or what the form of it ought to be.' That case is not on all fours with this case. On the one hand, it is a stronger case. The effect upon the recipient of the notice was direct and immediate rather than indirect. The right to maintain the privacy of documents was directly affected. On the other hand, there was no reference to damage to reputation, as public disclosure was apparently not involved. However, on the whole, it tends to support ASIC's position. Counsel for ASIC pointed out that a similar question would arise in relation to the issue of a subpoena to produce documents or give evidence in a court established by statute. The same question would apply to the issue of a summons to give evidence or produce documents to a Royal Commission or other administrative body with compulsory powers, eg, the Administrative Appeals Tribunal. There is a plethora of provisions that do not involve a hearing, but result in the compulsory acquisition of information and documents that can be used publicly later by the regulatory authority concerned, eg, notices pursuant to s 155 of the Trade Practices Act 1974 (Cth) and s 263 and s 264 of the Income Tax Assessment Act 1936 (Cth), search warrants pursuant to Pt 1AA Div 2 of the Crimes Act 1914 (Cth) and telephone interception warrants pursuant to the Telecommunications (Interception) and Listening Device Amendment Act 1997 (Cth). Counsel for the Administrators was not able to cite any authority that has imposed a duty to hear any person before exercising any such powers, notwithstanding the expansion of the application of natural justice since Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. I have already noted that no authority was cited to suggest that either the authorisation of an eligible applicant or the issue of a summons for examination has previously been challenged on this basis.