Case: Constantine v Trade Practices Commissioner (1994) 48 FCR 141
Outcome: referred to
first question is whether examinations under s 52 of the Act are to be conducted in private. I did not understand the applicant to suggest that the examinations are not to be conducted in private. In my opinion, they are to be conducted in private. In Constantine v Trade Practices Commissioner (1994) 48 FCR 141 (' Constantine ') a person (the applicant) was served with a notice pursuant to s 155(1)(c) of the Trade Practices Act 1974 (Cth) requiring him to give evidence about matters specified in the notice and to produce documents. He was permitted to have legal representation within certain limits. However, as a condition of that permission the applicant's legal representative was required to give certain undertakings as to non-disclosure. That condition was challenged by the applicant. Jenkinson J first considered whether examinations pursuant to a notice under s 155(1)(c) of the Trade Practices Act 1974 (Cth) were private. He held that they were private. He said (at 146-147): 'The authorities on which Mr Merkel relied as favouring privacy in the conduct of investigations into suspected contraventions of the law are concerned with prohibition of the investigator's inclination to proceed in public, not with prohibition of disclosure by those examined of what has occurred during the examination: see Hearts of Oak Assurance Co Ltd v Attorney-General [1932] AC 392; Re Pergamon Press Ltd [1971] Ch 388 at 400, 404; Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435. In the latter case Needham J observed (at 445): "There is much to be said for the proposition that the inspector [investigating the affairs of several companies under Pt VIA of the Companies Act 1961 (NSW)] is bound to observe the confidences of the witnesses whom he examines; none of those cases has anything to say about the right of the witness to disclose what the inspector said to him and what he said to the inspector." However, observance of the confidences of the witnesses requires privacy of their examination. My conclusion is that an examination pursuant to a notice under s 155(1)(c) served for the purpose of investigating whether a contravention of the Act has occurred is required to be held in private. A clear legislative intention is to be discerned in the provisions of the Act, particularly in Pt VI and s 163 that the Commission should have the function of taking and authorising curial proceedings, civil and criminal, in respect of contraventions of the Act. Exercise in public of the investigative powers conferred by s 155 on the Commission, to enable it to determine whether or not a contravention has occurred and to procure means of proving in a curial proceeding that a contravention has occurred, is so likely to be inimical to the effectiveness of the investigation and to interests of those who are the subjects of investigation, both witnesses and those suspected of contravention, that the requirement of privacy may be seen to have been intended by the legislature, notwithstanding that the requirement is not explicitly stated in the Act: cf Hearts of Oak Assurance Co Ltd v Attorney-General (supra) at 401. Whatever may be the position of the person who is examined on oath or affirmation, there is authority for the conclusion that his legal representative, present during a private investigative examination, may lawfully be required by the investigator to undertake not for a certain time to disclose to others what has been disclosed to the legal representative during the examination. Re London and Northern Bank Ltd [1902] 2 Ch D 73 was a case in which a solicitor was held by the Court of Appeal to have been rightly required, as a condition of his being permitted to represent a witness under private investigative examination by the liquidator in a winding-up, to undertake to the Registrar conducting the examination not to disclose to others information required at the examination. The solicitor was employed by a firm which was acting for a company then engaged in litigation with the company in liquidation and that circumstance was noticed by the members of the Court as justifying the Registrar's requirement.' In this case the requirement that an examination be held in private arises by implication rather than by reason of an express provision. I do not think that that is a ground upon which to distinguish what the Full Court said in Bankers Trust and I agree with what Jenkinson J said in Constantine (at 148): 'Whether the legislative requirement of examination in private be expressly given or laboriously found, the necessary implications must in my opinion be the same.' Having decided that an examination must be conducted in private and that an ABC Commissioner has the power to make a non-disclosure direction, I now address the question whether the ABC Commissioner has the power to direct that an examinee not be represented at an examination by a particular legal practitioner. The right to legal representation is an important right and may well have been implied in this case even in the absence of s 52(3) of the Act ( Constantine per Jenkinson J (at 150)). It seems to me that having regard to the relevant statutory provisions and the authorities which I will now discuss, the ABC Commissioner has such a power.