Case: Australian Securities Commission v Bell (1991) 32 FCR 517
Outcome: referred to
respondent said that given the power to administer an oath or affirmation (s 52(4)), the fact that the obligation to answer questions is subject to only limited excuses (s 52(6) and s 53) and the right to legal representation (s 52(3)) a power in the ABC Commissioner to regulate and control an examination must be implied. That conclusion was, said the respondent, supported by the decision of the Full Court of this Court in Australian Securities Commission v Bell (1991) 32 FCR 517 (' Bell '). In Bell , an inspector was conducting an examination in the course of an investigation by the Australian Securities Commission ('the Commission') and he made an order that an examinee not be represented by a particular legal practitioner. The order was made on the basis that the legal practitioner had appeared for a number of examinees and the legal practitioner's firm had been involved in the preparation of a prospectus which might be under consideration in the course of the investigation. The Australian Securities Commission Act 1989 (Cth) contained provisions to the effect that an examinee may have legal representation (s 23(1)) , that an examination was to be in private (s 22(1)) , that the inspector could determine who was to be present at the examination (s 22(1)) , and provisions dealing with the inspector's powers to control the conduct of a legal representative at an examination (s 23(2)). 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. In Stockbridge v Ogilvie (1993) 43 FCR 244, French J followed Bell and in the course of his reasons said (at 254): 'Where one lawyer seeks to represent a number of examinees in the same investigation, it may be thought that there is a risk that without consciously intending any impropriety that lawyer might divulge to one examinee what has passed in the examination of another. The extension of a restriction to all members of a given firm may be controversial: see Wood v National Companies &amp; Securities Commission (1990) 2 WAR 176. However there are matters of judgment and assessment involved. It is of course, not the role of the ASC to supervise the lawyer-client relationships of those who appear before it in s 19 examinations. It is only where a conflict of interest has some actual or potential impact on the investigative process that a direction based on such a concern would be within power.' In Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284, French J considered whether the Australian Securities and Investment Commission ('the Commission') had the power to give a non-disclosure direction and to direct that solicitors who had acted for other persons the Commission might wish to examine be excluded from the applicants' examinations. He followed Bell and his own decision in Stockbridge v Ogilvie (supra) and held that the Commission had both these powers. 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.