¹ Prasser, S, “Royal Commissions and Public Inquiries: Scope and Uses” in Weller, P (ed), Royal Commissions and the Making of Public Policy (1994) 1Google Scholar.

² See generally Sackville, R, “Royal Commissions in Australia: What Price Truth?” (1984) 60 Current Affairs Bulletin 3Google Scholar; Scott, R, “Procedure at Inquiries –The Duty to be Fair” (1995) 111 LQR 596Google Scholar; Crooke, G, “Reputation: Does it Matter and Can Administrative Law Protect It?” (paper presented to Administrative Law Forum 1996: Setting the Pace or Being Left Behind?, Sydney, 11-12 April 1996)Google Scholar.

³ Commonwealth Constitution, s 75(v). For an example of an application for a declaration in respect of state administrative action, semble under the Judiciary Act 1903 (Cth), s 30(a) (interpretation of the Constitution), see Easton v Griffiths (1995) 69 ALJR 669.

⁴ It is to be noted that under s 10(2)(b) of the ADJR Act the Federal Court may decline to exercise jurisdiction in respect of justiciable administrative action if another avenue of review by a court has been exercised or adequate provision exists by which the person is entitled to seek review by a court or tribunal. This usually affects adjudicative tribunals rather than investigative tribunals. For cases where the exercise of the discretion has been considered in relation to investigative tribunals, see Bragg v Secretary, Department of Employment, Education and Training (1995) 38 ALD 251 (discretion exercised, requiring applicant to utilise appeal to Disciplinary Appeal Committee); Re Excel Finance Corp Ltd (rec and mgr apptd); Worthley v England (1994) 34 ALD 85 at 96-7 (not appropriate to exercise discretion where judicial review sought of authorisation under s 597 of the Corporations Law since issues in judicial review are not identical with those in proceedings for review of registrar's order). Cf Whelan v Australian Securities Commission (1993) 33 ALD 53 (challenge to authorisation under s 597 of the Corporations Law appropriately made in court in which proceedings relating to examination are taken, rather than judicial review).

⁵ The test in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, which had formerly been invoked in the context of the constitutionally entrenched judicial review jurisdiction of the High Court, appears to be enjoying a renewed and expanded use so as to give some protection to decisions which involve a jurisdictional error. In South Australia, see The Aboriginal Legal Rights Movement Inc v State of South Australia (Supreme Court of South Australia, 7 September 1995, unreported), where Matheson J held that s 9 of the Royal Commissions Act 1917 (SA) was a privative clause which effectively precluded judicial review for jurisdictional error. A similar conclusion as to the effect of s 9 had been reached in Australian Broadcasting Corp v Samuel Jacobs QC, Royal Commission into the State Bank of South Australia (1991) 56 SASR 274. In New South Wales, see Darling Casino Ltd v New South Wales Casino Control Authority (New South Wales Court of Appeal, Kirby P, Powell and Cole JJA, 8 November 1995, unreported) where, applying Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, the New South Wales Court of Appeal held that the Casino Control Authority was protected from judicial review by a privative clause. The High Court has reserved its decision in the appeal from this decision. Cf Botany Council v The Ombudsman, (1995) 37 NSWLR 351, where the New South Wales Court of Appeal preferred to put to one side the submission of the Ombudsman that review was ousted by s 35A of the Ombudsman Act 1974 (NSW), and moved directly to the conclusion that the Ombudsman had acted within jurisdiction.

⁶ (1990) 170 CLR 321.

⁷ Ibid at 337.

⁸ Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 32 FCR 158.

⁹ Harris v Bryce (1993) 113 ALR 726 at 733.

¹⁰ ADJR Act, ss 3(3) and 5.

¹¹ ADJR Act, ss 3(5) and 6.

¹² (1990) 170 CLR 321 at 337 and 343. Toohey and Gaudron JJ, contra at 377 and 379 rejected the substance/procedure distinction.

¹³ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 and 340.

¹⁴ Ibid at 377.

¹⁵ Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 107 ALR 480 at 700-701.

¹⁶ Kelson v Forward in her capacity as Director of the Merit Protection and Review Agency (1995) 39 ALD 303 at 321-3.

¹⁷ McGibbon v Linkenbagh (1996) 41 ALD 219.

¹⁸ “X” v McDermott (1994) 51 FCR 1 at 6-7; C v T (1995) 58 FCR 1 at 20-1. These Regulations are made under the Defence Act 1903 (Cth). However, decisions made under the Defence Force Discipline Act 1982 (Cth) are expressly made non-justiciable under the ADJR Act: ADJR Act, s 3(1), Sch l(o); “X” v McDermott (1994) 51 FCR 1 at 6.

¹⁹ Mercantile Mutual Life Insurance Ltd v Australian Securities Commission (1993) 29 ALD 616 at 634.

²⁰ Shadforths Ltd v Human Rights and Equal Opportunity Commission (1991) 32 FCR 303 at 316.

²¹ Commonwealth v Human Rights and Equal Opportunity Commission (1991) 109 ALR 490 at 491. However, in the light of the facility for enforcement of determinations in the Federal Court and the intention of the anti-discrimination legislation that disputes should be resolved by conciliation and other administrative action, the Court “should not readily concern itself” with proceedings of the Commissioner or of the HREOC: ibid at 468 per Davies J.

²² (1995) 54 FCR 562 (the second Deloitte judgment).

²³ Deloitte originally sought review of the decision to cause proceedings to commence, but unfortunately then filed an amended statement of claim excluding this and confining review to the formation of the opinion. Had the application not been amended, justiciability would not have presented an obstacle.

²⁴ Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1995) 13 ACLC 783 (the third Deloitte judgment).

²⁵ Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453 at 479 (the fourth Deloitte judgment).

²⁶ Australian Securities Commission v Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu (Full Federal Court of Australia, Beaumont, Drummond and Sundberg JJ, 28 August 1996, unreported).

²⁷ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340.

²⁸ In Bond, Mason CJ contemplated that this would be so ((1990) 170 CLR 321 at 338). This occurred in Deloitte, where Lindgren J's fourth judgment and the Full Federal Court decision involved a review of the ASC's process of decision-making.

²⁹ Bond may provide a basis for objecting to the competency of an ADJR Act action to restrain the ASC from making a resolution under s 50. According to Mason CJ, Brennan and Deane JJ in Bond (Toohey and Gaudron JJ contra) review of “conduct engaged in for the purpose of making a decision” is available only on procedural grounds. This certainly permits review for a denial of procedural fairness prior to the s 50 decision. Possibly it excludes review for failure to take into account a relevant consideration. But it is unlikely that this ground or other grounds giving rise to an “improper exercise of power” could be established at this stage before the decision is made.

³⁰ (1995) 132 ALR413.

³¹ Walker v Criminal Justice Commission (1992) 2 Qd R 467.

³² Behrens v Criminal Justice Commission (1994) 2 Qd R 578.

³³ In Australian Securities Commission v Burns (1992) 30 ALD 923; (1994) 33 ALD 584, the ASC sought review of a decision of a magistrate in committal proceedings to dismiss informations laid against six defendants in respect of offences connected with a prospectus. The ASC's application was held to be justiciable, but then dismissed in accordance with the Federal Court's well-established principle of showing restraint lest judicial review fragment the criminal justice process, particularly where establishing an error of law requires the court to examine the evidence which was before the magistrate.

³⁴ Human Rights and Equal Opportunity Commission v Secretary, Department of Immigration and ' Multicultural Affairs (1996) 137 ALR 207 where the HREOC obtained mandamus against the ' Secretary of the Department of Immigration and Multicultural Affairs to require compliance withs 20(6)(6) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). (This provision entitled the HREOC to have delivered to recently arrived, detainees at the Port Hedland Detention Centre, through the custodian of the Centre, a, sealed envelope from the HREOC explaining its inquiry into a complaint from the Refugee Advice and Casework Service that their human rights were being infringed).

³⁵ (1980) 144 CLR 13.

³⁶ R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-6. See also, Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 107 ALR 480 at 488 (where the Disciplinary Appeal Committee abided by the rule in Hardiman).

³⁷ Vidler v Secretary, Department of Social Security (1995) 41 ALD 261 at 271-2.

³⁸ Re New Broadcasting Ltd and Australian Broadcasting Tribunal and Treasurer (party joined) (1987) 12 ALD 1 at 11 per Davies J.

³⁹ Re New Broadcasting Ltd and Australian Broadcasting Tribunal and Treasurer (party joined) (1987) 12 ALD 1 at 11; Cairns Port Authority v F N Albietz, Information Commissioner (Qld) [1995] 2 Qd R 470 at 477.

⁴⁰ Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88; Re New Broadcasting Ltd and Australian Broadcasting Tribunal and Treasure (party joined) (1987) 12 ALD 1 at 11.

⁴¹ For example, Merck & Co Inc v Sankyo Co Ltd (1992) 23 IPR 415 (Commissioner of Patents).

⁴² Secretary to the Department of Health and Community Services v Gurvich [1995] 2 VR 69 at 72-3. (Here two nurses obtained a declaration that findings that they contributed to the cause of death of a psychiatric patient were void. The findings were inconsistent with agreed facts and other findings, were made in denial of procedural fairness, and there was no breach of their duty as nurses.)

⁴³ [1995] 2 Qd R 470.

⁴⁴ (1992) 34 FCR 246.

⁴⁵ Ibid at 265.

⁴⁶ Corporations Law, s 1330.

⁴⁷ (1991) 32 FCR 303.

⁴⁸ Ibid at 317.

⁴⁹ (1995) 41 ALD 27.

⁵⁰ Commonwealth v Human Rights and Equal Opportunity Commission (1991) 32 FCR 468 Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191.

⁵¹ Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 3l(j); Sex Discrimination Act 1984 (Cth), s 48(1)(gb).

⁵² (1995) 41 ALD 27 at 36 and 37.

⁵³ (1991) 32 FCR 303 at 315. See also Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 467.

⁵⁴ (1990) 170 CLR 70.

⁵⁵ In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 the Australian Broadcasting Tribunal filed a defence of substantial truth and public interest in a defamation action against its officer, who claimed Laws made comments in breach of a radio program standard prohibiting racial vilification. Mason CJ, Brennan, Gaudron and McHugh JJ, Deane J dissenting, held that the filing of the defence did not give rise to an appearance of bias on the part of tribunal members inquiring into Laws's comments other than those involved in the decision to file the defence. An order could be made under the ADJR Act limited to restraining the tribunal from being constituted in the inquiry by the members involved in the decision to file the defence. The corporate action of filing the defence did not amount to prejudgment of issues by individual members. Mason CJ and Brennan J held further that even if there was an appearance of bias attached to all Tribunal members, the doctrine of necessity would require that the Tribunal not be disabled from performing its statutory functions.

⁵⁶ Australian Securities Commission v Somerville (1994) 33 ALD 405. In some cases an applicant may be entitled to a statement of reasons on request: MacDonald v Australian Securities Commission (1993) 29 ALD 736; Holmyard v Jones (1995) 40 ALD 553.

⁵⁷ (1996) 40 ALD 557.

⁵⁸ Ibid at 562.

⁵⁹ Ibid at 562-3.

⁶⁰ (1995) 40 ALD 179.

⁶¹ In Jacobsen v Rogers (1995) 182 CLR 572 the High Court held that the power to issue warrants under the Crimes Act 1914 (Cth), s 10 was binding upon the Crown in right of the State as well as in right of the Commonwealth. A warrant could, therefore, be issued authorising the search of a Western Australian Government department and the seizure of documents connected with investigation of Commonwealth offences, which over-ride the duty of secrecy in the Western Australian fisheries legislation with respect to lobster catch returns supplied by fishing operators, but which was subject to public interest immunity.

⁶² See generally M Allars, “International Law and Administrative Discretion” in B Opeskin and D Rothwell (eds), Australian Federalism and International Law, forthcoming.

⁶³ (1990) 169 CLR 625.

⁶⁴ Ibid at 635 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

⁶⁵ The Independent Commission Against Corruption (Amendment) Act 1990 (NSW), s 13(2)- (5) amended the ICAC Act removing s 74(5) and (6) and inserting ss 74A and 74B.

⁶⁶ Chairperson the Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238, which is discussed at text accompanying nn 84-88.

⁶⁷ (1990) 169 CLR 625 at 635-36.

⁶⁸ Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523; Coco v R (1994) 179 CLR 427 at 436-8.

⁶⁹ (1992) 28 NSWLR 125.

⁷⁰ [1969] 2 AC 147.

⁷¹ For example R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australia Branch (1991) 173 CLR 132 at 141. See M Allars, “In Search of Legal Objective Standards: The Meaning of Greiner v ICAC” (1994) 6 Current Issues in Criminal Justice 107.

⁷² (1995) 131 ALR 595.

⁷³ There may be other underlying concerns of the High Court. In the context of error of law on the face of the record the Court has expressed the desirability of not increasing “financial hazards” of litigation where there is no provision for appeal: Craig v South Australia (1995) 131 ALR 595 at 604. Further, the issue of judicial restraint in relation to government resource allocation may provide a further basis for the High Court's restraint in interfering with a State court's decision on a Dietrich claim, which effectively places a responsibility upon the State government to provide legal aid to an unrepresented indigent accused with respect to a State offence.

⁷⁴ Another alternative is to emphasise restraint in granting relief, as occurs in review under the ADJR Act of committal proceedings and prosecutorial decisions. Lamb v Moss (1983) 49 ALR 533; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338-39.

⁷⁵ (1995) 131 ALR 595 at 602.

⁷⁶ For example, Commissioner for Motor Transport v Kirkpatrick (1987) 11 NSWLR 427 at 450.

⁷⁷ ADJR Act, ss 5(1)(f), 6(1)(f).

⁷⁸ That is whether the tribunal “asked itself the wrong question” or “misconceived its function”: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100.

⁷⁹ See generally M Allars, “The Difference Between a Court and a Tribunal of Morals” in L Maher and O Mendelsohn (eds), Courts, Tribunals and New Approaches to Justice (1994) 73.

⁸⁰ Craig v South Australia (1995) 131 ALR 595 at 602 per Brennan CJ, Deane, Toohey, Gaudron and McHugh JJ.

⁸¹ This was accepted by Brennan J in relation to the AAT in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314,316 and 333-35.

⁸² District Court Act 1973 (NSW), s 8(2); Land and Environment Court Act 1979 (NSW), s 5, respectively.

⁸³ The availability of jurisdictional error in relation to the NSW Land and Environment Court is complicated by the fact that it is a superior court of limited jurisdiction, but the issue is in any event academic because appeals on questions of law lie from each jurisdiction of the Land and Environment Court.

⁸⁴ (1995) 134 ALR 238.

⁸⁵ Ibid at 250.

⁸⁶ Mahon v Air New Zealand Ltd [1984] AC 808.

⁸⁷ (1995) 37 NSWLR 357.

⁸⁸ The documents were already in the public domain.

⁸⁹ (1995) 39 ALD 303.

⁹⁰ See above n 78.

⁹¹ (1995) 39 ALD 303 at 314 and 317.

⁹² The statutory objects of the MPRA set only broad parameters within which the scope of the power to investigate was determined.

⁹³ Note that in Greiner it was the setting of new standards by the ICAC which concerned Priestley JA. The ICAC set standards because the statutory definition left it a discretion.

⁹⁴ Another issue arising in relation to notices to produce, considered in Part 6, is whether the inadequacy of the information provided in a notice results in a denial of procedural fairness.

⁹⁵ F H Faulding & Co Ltd v Federal Commissioner of Taxation (1994) 126 ALR 561 at 609-18 per Cooper J; Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 123 ACTR 17.

⁹⁶ (1992) 36 FCR 165.

⁹⁷ (1993) 43 FCR 466.

⁹⁸ See also Australian Securities Commission v Zarro (1992) 32 FCR 546 per Spender J.

⁹⁹ (1992) 27 ALD 67 at 81.

¹⁰⁰ (1993) 43 FCR 466.

¹⁰¹ (1993) 30 ALD 71 at 75.

¹⁰² Carbone v National Crime Authority (1994) 126 ALR 79.

¹⁰³ (1991) 33 FCR 449.

¹⁰⁴ Supreme Court of Victoria, Ruling No 9, Vincent J, 6 May 1995, unreported; Ruling No 13, Vincent J, 22 August 1996, unreported.

¹⁰⁵ (1991) 33 FCR 449 at 461.

¹⁰⁶ Ibid at 461-62.

¹⁰⁷ ffiid at 462.

¹⁰⁸ Ibid at 471.

¹⁰⁹ R v Elliott (Supreme Court of Victoria, Ruling No 9, Vincent J, 6 May 1995, unreported) at 3414.

¹¹⁰ R v Elliott (1996) 40 ALJR 637.

¹¹¹ R v Elliott (Supreme Court of Victoria, Ruling No 13, Vincent J, 22 August 1996, unreported) at 21.

¹¹² Ibid at 24.

¹¹³ Cf Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Revenue (1994) 123 ACTR 17 (a notice to produce issued by the Commissioner of Taxation in order to ascertain whether there was further material relevant to a decision about to be made by the AAT was not invalid on this ground).

¹¹⁴ Deputy Commissioner of Taxation v De Vonk (1995) 133 ALR 303 at 306 and 315-17.

¹¹⁵ Ibid at 309-14 and 322-26.

¹¹⁶ R v Elliott (Supreme Court of Victoria, Ruling No 13, Vincent J, 22 August 1996, unreported) at 24.

¹¹⁷ I shall not consider here another fundamental common law right, legal professional privilege. Recent cases concerning the availability of this privilege in regard to investigative tribunals include National Crime Authority v S (1991} 100 ALR 151; Hing v National Crime Authority (1995) 39 ALD 298 at 301; Australian Securities Commission v Dalleagles Pty Ltd (1992) 27 ALD 281; Taciak v Australian Federal Police (1995) 59 FCR 285.

¹¹⁸ Sorby v Commonwealth (1983) 152 CLR 281; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328.

¹¹⁹ Australian Securities Commission v Kippe (Federal Court of Australia, von Doussa, Cooper and Tamberlin JJ, 28 June 1996, unreported), where a proceeding for a banning order under s 829 of the Corporations Law was held not to be “a proceeding for the imposition of a penalty” within the use immunity clause of the ASC Act, s 68(3). The purpose of a proceeding for a banning order is protective and preventive in nature, rather than punitive and hence the statement was admissible.

¹²⁰ “X” v McDermott (1994) 51 FCR 1 at 11, applying Police Service Board v Morris (1985) 156 CLR397.

¹²¹ Police Service Board v Morris (1985) 156 CLR 397.

¹²² (1994) 51 FCR 1.

¹²³ (1995) 58 FCR 1.

¹²⁴ Ibid at 16.

¹²⁵ Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 107 ALR 480.

¹²⁶ Dornan v Riordan (1990) 95 ALR 451 (failure of the Pharmaceutical Benefits Remuneration Tribunal to give reasons for its decision) and Holmyard v Jones (1995) 40 ALD 553 (where the ground was not established in relation to a commissioner appointed under the Sex Discrimination Act 1984 (Cth)); Proudfoot v Human Rights and Equal Opportunity Commission (1991) 100 ALR 557 (rejection of complaint at the threshold without following procedure of referral to Commissioner resulted in an absence of authority for the threshold rejection.)

¹²⁷ Scurr v Brisbane City Council (1973) 133 CLR 242; Hunter Resources Ltd v Melville (1988) 164 CLR234.

¹²⁸ (1995) 133 ALR 74.

¹²⁹ The Full Federal Court interpreted very strictly the Minister's duty pursuant to s lO(l)(c) of the Heritage Act to “consider” the report and representations attached to it.

¹³⁰ Pursuant to Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10(3) and (4).

¹³¹ Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10(3)(a)(i); Hindmarsh Island Bridge case (1995) 133 ALR 226 at 236-37, 256 and 266-67.

¹³² Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10 (3)(a)(i).

¹³³ Black CJ did not decide this issue, and adverted to the policy of the Act of not offending Aboriginal traditions by disclosing particular beliefs: Hindmarsh Island Bridge case (1995) 133 ALR 226 at 237.

¹³⁴ Minister for Aboriginal and Torres Strait Islander Affairs v State for Western Australia (Full Federal Court, Black CJ, Burchett and Kiefel JJ, 28 May 1996, unreported) (Crocodile Park case).

¹³⁵ R v Gaming Board of Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417; Mahon v Air New Zealand Ltd [1984] 1 AC 808; National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296; Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646.

¹³⁶ Crocodile Park case at 27.

¹³⁷ For discussion see text accompanying nn 164-176.

¹³⁸ Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 133 ALR 74.

¹³⁹ In another episode in the Hindmarsh Island affair, in The Aboriginal Legal Rights Movement Inc v South Australia (1995) 64 SASR 558, the Full Court of the Supreme Court of South Australia held invalid authorisations given by the South Australian Minister for Aboriginal Affairs pursuant to the Aboriginal Heritage Act 1988 (SA), s 35 permitting the Hindmarsh Island Royal Commission to divulge information, contrary to Aboriginal tradition, relating to an Aboriginal site or Aboriginal tradition. The process followed by the Minister in making the authorisations did not satisfy the requirement of reasonable consultation in s 13 of the Act. No time was allowed for consideration of the details, no meetings took place with the Minister or his officers, and there was no consultation with a wide range of Aboriginal people. Doyle CJ (Bollen and Debelle JJ not deciding the issue) also held that the authorisations were invalid for failure adequately to identify the information whose disclosure they authorised. The authorisations were re-issued following a period of 26 days' consultation. In the meantime the royal commission was able to proceed with hearing evidence which did not require authorisation under s 35. A later challenge to the validity of the fresh authorisations was unsuccessful: The Aboriginal Legal Rights Movement Inc v South Australia (1995) 64 SASR 566.

¹⁴⁰ For example, Allen Allen and Hemsley v Australian Securities Commission (1992) 27 ALD 296 at 306; The Aboriginal Legal Rights Movement Inc v South Australia (1995) 64 SASR 558. See also Excel Finance Corp Ltd (Rec and Mgr apptd); Worthley v England (1994) 34 ALD 85 at 106. (Here the Federal Court held that in principle the ASC would exercise the power to apply to the Court for the issue of an examination summons under s 597(2) of the Corporations Law for an improper purpose if this were done to further the cause of the ASC in litigation aginst third parties, rather than for the benefit of the corporation, its contributories or creditors. The Federal Court may exercise its discretion to order disclosure to a prospective examinee of material lodged in support of the application for the examination order and will do so where the justice of the case requires). See also Flanagan v Australian Federal Police (1995) 40 ALD 385. (Here the Full Federal Court declined to deal with the question whether a telecommunications warrant was authorised for an improper purpose and in bad faith. The improper purpose argument could be raised in the County Court as a ground for discretionary exclusion of the evidence obtained under the warrant). In Taciak v Australian Federal Police (1995) 39 ALD 81 Sackville J held that information lawfully obtained under the Telecommunications (Interception) Act 1979 (Cth) could be used for the “permitted purpose” of disciplinary proceeedings against an officer of the Australian Federal Police (AFP), but not for the purpose of a decision not to appoint or to reappoint a person to an office, since such a decision did not fall within the expression “permitted purpose” expressly defined in the Act.

¹⁴¹ Full Court, Supreme Court of Western Australia, Rowland, Murray and Anderson JJ, 2 August 1995, unreported.

¹⁴² Ibid at 26.

¹⁴³ Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24. See AOJR Act, s 5(1)(e), (2)(a),(b).

¹⁴⁴ Mercantile Mutual Life Insurance Ltd v Australian Securities Commission (1993) 29 ALO 616 (the regional commissioner of the ASC had not failed to take into account a relevant consideration in authorising third parties to apply to the court for an examination order); Winter v Australian Securities Commission (Federal Court, von Ooussa J, 27 February 1995, unreported) (in an exercise of power under s 600(3) of the Corporations Law to prevent a person from managing a corporation for a period, the considerations which are relevant are wide-ranging and include all matters touching on the reasons the corporations failed); Excel Finance Corp Ltd (Rec and Mgr apptd); Worthley v England (1994) 34 ALO 85 at 100-1 (in authorising a person to conduct an examination, the ASC was required only to consider the relationship which the particular person had to the external administration of the corporation and in a particular case the appropriateness of that person being given standing through the authorisation to apply to the court for an examination order under s 597(2) of the Corporations Law).

¹⁴⁵ Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALO 296 (Allens sought to interview a former officer because, without authorisation from the ASC, he had provided information to the solicitors acting for a former client of Allens who was now suing Allens. The ASC's statement of reasons for its refusal to lift the duty of secrecy pursuant to s 127A(2)(c) of the ASC Law did not indicate that it took into account the discrimination between Allens and the solicitors for the other litigant. Ryan J, therefore, referred Allens' request for dispensation to the ASC for further consideration as to whether Allens should be permitted to interview the officer).

¹⁴⁶ C v T (1995) 58 FCR 1 at 21. The investigating officer also failed to take into account the relevant consideration that the complainant had conceded to the Tribunal that the flight lieutenant had advised her to undertake a medical examination and she had failed to do so.

¹⁴⁷ Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21 at 30; Bayeh v Attorney-General (NSW) (1995) 82 A Crim R 270 at 288.

¹⁴⁸ (1995) 35 ALO 519.

¹⁴⁹ See text accompanying nn 22-29.

¹⁵⁰ (1843) 2 Hare 461.

¹⁵¹ Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1995) 35 ALD 519; Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453.

¹⁵² In this respect in this case the ground of failure to take into account relevant considerations tends to merge with the ground of failure to give proper, genuine and realistic consideration to the merits of the case: Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453 at 468.

¹⁵³ Lindgren J rejected in obiter submissions that there were various other instances of failure to take into account relevant considerations. Of interest is Lindgren J's conclusion that damage to the professional reputation of partners of Deloittes throughout Australia was not a relevant consideration in the ASC's assessment of the public interest under s 50: Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1995) 35 ALD 519 at 540-41.

¹⁵⁴ Australian Securities Commission v Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) (Full Federal Court, Beaumont, Drummond and Sundberg JJ, 28 August 1996, unreported).

¹⁵⁵ Associated Provincial Picture Houses v Wednesbury Corp (1948] 1 KB 223. See ADJR Act, s 5(l)(e) and (2)(g).

¹⁵⁶ For example, unreasonableness has been argued without success in several ADJR Act applications for review of decisions of the ASC. See Allen Allen and Hemsley v Australian Securities Commission (1992) 27 ALD 296 at 306. In Deloitte Touche Tohmatsu (fomerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1995) 35 ALD 519, Lindgren J tentatively held the exercise of power under s 50 of the Corporations Law unreasonable. However, the Full Federal Court's view on appeal that there was no failure to take into account a relevant consideration implicitly indicated that the decision was also not unreasonable. See also Bayeh v Attorney-General (NSW) (Supreme Court of New South Wales, Hunt CJ at CL, 3 July 1995, unreported), where the plaintiff failed to establish that the commissioner had acted unreasonably in declining to hear certain evidence in private.

¹⁵⁷ “X” v McDermott (1994) 51 FCR 1 at 9-10.

¹⁵⁸ C v T (1995) 58 FCR 1.

¹⁵⁹ (1995) 58 FCR 1 at 22. On the evidence it was unreasonable to conclude that the accused officer was responsible for the complainant's disinhibition due to alcohol consumption, perhaps “in combination with some other substance” (suggesting he may have spiked her drinks), or that he had planned an assault. These findings were not open on the evidence and were made without evidence. In relation to this finding of Burchettt J, Wednesbury unreasonableness appears indistiguishable from the no evidence rule.

¹⁶⁰ (1985) 65 ALR 549 at 563.

¹⁶¹ The principle was subsequently applied in other cases of adjudicative decision-making: Luu v Renevier (1989) 91 ALR 39; Tickner v Bropho (1993) 114 ALR 409 (the Minister's decision to make an interim declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 9(1)). The High Court affirmed the Prasad principle as arising in the limited context of unreasonableness: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-90, 305 and 321 (Toohey J at 302-303 apparently regarding the duty of inquiry as capable of being associated with a legitimate expectation).

¹⁶² (1995) 58 FCR 1.

¹⁶³ Ibid at 22.

¹⁶⁴ (1963) 109 CLR 353.

¹⁶⁵ Mahon v Air New Zealand Ltd [1984] AC 808; Maksimovich v Walsh (1985) 4 NSWLR 318 at 327 and 337.

¹⁶⁶ (1990) 170 CLR 596.

¹⁶⁷ (1992) 175 CLR 564.

¹⁶⁸ (1990) 170 CLR 596 at 600.

¹⁶⁹ (1992) 175 CLR 564 at 576-77.

¹⁷⁰ (1985) 159 CLR 550.

¹⁷¹ Ibid.

¹⁷² (1970) 136 CLR 106 at 109-110.

¹⁷³ Commissioner of Police v Tanos (1958) 98 CLR 383 at 396.

¹⁷⁴ (1990) 170 CLR 596 at 598-99.

¹⁷⁵ Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 67 ALR 77; Courtney v Peters (1990) 98ALR645.

¹⁷⁶ In some cases a tribunal's empowering statute makes provision for a hearing which satisfies the requirements of procedural fairness. In Neate v Australian Securities Commission (1995) 39 ALD 565 the show cause procedure ins 600(2) of the Corporations Law ensures that procedural fairness is accorded where an order is made prohibiting a person from managing a corporation.

¹⁷⁷ (1990) 20 ALD 207.

¹⁷⁸ Ibid at 214.

¹⁷⁹ (1992) 108 ALR 405 (Federal Court); 108 ALR 277 (Full Federal Court); (1992) 116 ALR 567 (High Court).

¹⁸⁰ Pursuant to the Australian Securities Commission Act 1989 (Cth), ss 19(2)(b) and 68 (ASC Act).

¹⁸¹ ASC Act, s 127(1)-(4).

¹⁸² Gaudron and McHugh JJ differed from Brennan and Dawson JJ on the issue of whether the transcripts lost their confidentiality by passing into the public domain when they were tendered in the royal commission leaving the director without relief in respect of the media organisations.

¹⁸³ (1995) 129 ALR 443.

¹⁸⁴ (1994) 35 ALO 493.

¹⁸⁵ Pursuant to the ASC Act, s 33.

¹⁸⁶ (1994) 35 ALO 493 at 500.

¹⁸⁷ (1993) 30 NSWLR 21 at 28-9.

¹⁸⁸ (1990) 170 CLR 596.

¹⁸⁹ Ibid at 599.

¹⁹⁰ Ibid at 612.

¹⁹¹ (1992) 175 CLR 564.

¹⁹² McGibbon v Linkenbagh (1996) 41 ALD 219 at 226-27.

¹⁹³ (1996) 134 ALR 238.

¹⁹⁴ (1995) 39 ALD 303.

¹⁹⁵ Ibid at 326.

¹⁹⁶ Kioa v West (1985) 159 CLR 550.

¹⁹⁷ (1992) 175 CLR 564.

¹⁹⁸ See above, n 134.

¹⁹⁹ See cases cited above, n 135.

²⁰⁰ Peninsula Anglican Boys' School v Ryan (1985) 69 ALR 555.

²⁰¹ See, for example, the Freedom of Information Act 1982 (Cth), s 9.

²⁰² Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (approved in Kioa v West (1985) 159 CLR 550); Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648.

²⁰³ Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

²⁰⁴ (1995) 39 ALD 303.

²⁰⁵ See text acccompanying nn 194-5.

²⁰⁶ See above, n 198.

²⁰⁷ (1993) 30 NSWLR 21.

²⁰⁸ For more detailed discussion of the role of reputation in the judgments in Chaffey set: M Allars above n 79.

²⁰⁹ Bayeh v Attorney-General (NSW) (1995) 87 A Crim R 270. The plaintiff's common law righ to a fair trial had been abrogated to an extent by the Royal Commission (Police Service) Ac 1994 (NSW), s 38(2) which provided that, where proceedings for an indictable offence an on foot, the Commissioner “may, to the extent to which the Commissioner thinks i necessary to do so to ensure the accused's right to a fair trial is not prejudiced” order an) hearing to be conducted in private and give directions for suppression of evidence. Hurn CJ at CL concluded that the Commissioner had a discretion under s 38(2) to refuse a application notwithstanding that, as a result of evidence being given in public, there ma be prejudice to the fair trial of a person charged with an indictable offence.

²¹⁰ News Corp Ltd v National Companies and Securities Commission (1984) 156 CLR 296.

²¹¹ Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646.

²¹² (1990) 170 CLR 596.

²¹³ Brennan and Toohey JJ dissented on the ground that in view of the parents' claim in the Full Court of the Supreme Court of Western Australia to a general right to address the coroner on any aspect arising in the inquiry, the Full Court decision that there was no denial of procedural fairness was correct.

²¹⁴ See also Nagasinghe v Worthington (1994) 36 ALD 193 (no denial of procedural fairness by an inquiry commissioner who declined to admit into evidence material which went to the merits of an appointment decision rather than to the complaint of discrimination); Commonwealth v Human Rights and Equal Opportunity Commission (1991) FCR 25 ALD 467 at 471-72 (no denial of procedural fairness in taking only written submissions where inquiry restricted to questions of law); Boucher v Australian Securities Commission (1996) 20 ACSR 485 (no denial of procedural fairness by ASC in not complying with principles which apply in courts with regard to re-opening of a hearing to receive further evidence). Cf Shadforths Ltd v Human Rights and Equal Opportunity Commission (1991) 25 ALD 721 where procedural fairness was denied by failure to grant an adjournment where a complainant's delay in complying with directions resulted in the respondent not having a reasonable time to prepare its case); Edwardes v Kyle (1995) 89 LGERA 88 (failure in inquiry into Wanneroo Shire Council to give opportunity to cross-examine).

²¹⁵ New South Wales v Cannellis (1994) 181 CLR 309; Easton v Griffiths (1995) 69 ALJR 669.

²¹⁶ Majar v Northern Land Council (1991) 24 ALD 134.

²¹⁷ Australian Securities Commission v Bell (1991) 25 ALD 1.

²¹⁸ See also National Crime Authority v A, B and D (1988) 78 ALR 707 (rights to lega representation conferred by National Crime Authority Act 1984 (Cth) held to be rights o' witnesses not of legal practitioners and not to be absolute rights).

²¹⁹ “X” v McDermott (1994) 51 FCR 1 at 12.

²²⁰ C v T (1995) 58 FCR 1 at 10.

²²¹ Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

²²² In Winter v Australian Securities Commission (1995) 56 FCR 104 the formation by a delegati of the ASC of tentative preliminary views did not give rise to an appearance of bias.

²²³ (1994) 34 ALD 758.

²²⁴ Steytler J, Supreme Court of Western Australia, 9 February 1996, unreported.

²²⁵ R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171. Curiously in C v T (1995) 58 FCR 1 at 20-1, counsel for the respondent conceded that recommendations of an investigating officer appointed under the Defence (Inquiry) Regulations 1985 (Cth) were amenable to judicial review under the Judicary Act 1903 (Cth), s 39B. This may have required further argument as to whether the recommendations satisfied the Ainsworth conditions for exception from the general rule. Further, in R v Matterson; Ex parte Moles (1994) 4 Tas R 87 at 97-99, Underwood J understood Ainsworth as removing characterisation of proceedings as “not judicial” as a basis for denying prerogative relief. Although of an administrative nature, a coroner's decision not to make an order for committal was capable of affecting rights and was subject to the prerogative remedies.

²²⁶ (1992) 175 CLR 564.

²²⁷ Ibid at 580-81.

²²⁸ (1996) 134 ALR 469 at 477.

²²⁹ Ibid at 477.

²³⁰ (1992) 175 CLR 564 at 579-80.

²³¹ (1995) 64 SASR 566.

²³² (1995) 69 ALJR 669.

²³³ Ibid at 674.

²³⁴ (1995) 82 A Crim R 270.

²³⁵ ADJR Act, ss 15 and 16.

²³⁶ Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 (The Platters case).

²³⁷ (1996) 134 ALR 238.