Abl Legal Service Ltd & Anor, Ex parte- Re Ausn Securities Com

[1995] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Registry       No C2 of 1995

In the matter of -

An application for a Writ of Prohibition against AUSTRALIAN SECURITIES COMMISSION

First Respondent

ARTHUR WILLIAM WALLWORK

Second Respondent

JONATHAN PETER CADDICK

Third Respondent

Ex parte -

ABORIGINAL LEGAL SERVICE LIMITED

First Prosecutor

BRUCE ROBERT MILES

Second Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 FEBRUARY 1995, AT 9.14 AM

Copyright in the High Court of Australia

_____________________

MR G.C. CORR:   May it please the Court, I appear for the prosecutors in this matter.  (instructed by the Aboriginal Legal Service)

MR A. ROBERTSON:   May it please your Honour, I appear for the Attorney‑General of the Commonwealth in relation to the 78B notice which has been served.  (instructed by the Australian Government Solicitor)

I also seek to appear for the named respondents, but I should indicate to your Honour that their interest is really in any form of interlocutory relief that might be sought.  There has been some intimation in the correspondence that some interlocutory relief may be sought.

HIS HONOUR:   Yes.  Thank you.  Yes, Mr Corr.

MR CORR:   Yes, your Honour.  This is an application for a writ of prohibition to prevent the first respondent, through its employees, the second and third respondents, from conducting an investigation into the activities of the first prosecutor, the Aboriginal Legal Service. 

HIS HONOUR: Does section 75(v) of the Constitution apply to a body corporate, such as the Australian Securities Commission?

MR CORR:   I would submit, your Honour, that it is part of the Commonwealth ‑ ‑ ‑

HIS HONOUR:   Is it a Commonwealth officer?

MR CORR:   Yes, it is an emanation of the Commonwealth and the persons who are employed by the Australian Securities Commission are in fact officers of the Commonwealth.

HIS HONOUR:   The second and third respondents are employees of the Australian Securities Commission, according to the material before me, but are they Commonwealth officers?  Is not the Australian Securities Commission a body incorporated under the law of the Capital Territory?

MR CORR:   As I understand it it was a body which was established by the Australian Securities Commission Act.

HIS HONOUR: Yes, but it is a body corporate, is it not? Is that not a law of the Territory? Look, you may move on but it seems to me that you have a number of problems here because it seems to me at the moment, having read your material, that the application is misconceived in that it seems to be based on the idea that these laws rely on section 51(xx) of the Constitution when it is quite plain, is it not, that the source of the sections to which you refer is section 122 of the Constitution, the Territories power.

MR CORR:   Yes, that is for the application of those particular laws within the ACT, but there would have to be some nexus between the activities which are being investigated and the ACT and I would submit, your Honour, that there is no nexus between those activities ‑ ‑ ‑

HIS HONOUR:   But why can the Commonwealth not, through the Territories power, deem an offence to be committed in the Territory if the facts were committed outside the Territory?

MR CORR:   There still has to be some connection between those facts and those of the Territory, that if there is no connection between what is being done and those of the Territory then the Territories power could not apply.  There still has to be some connection;  whether it is a geographical one or one where those particular activities affect some activity occurring within the Territory, otherwise the Territories power would not apply.

HIS HONOUR:   I take it the offences are primarily alleged to be against New South Wales law, are they?

MR CORR:   Yes, that is correct, your Honour.

HIS HONOUR:   Have the States referred power to the Commonwealth?

MR CORR: Not under 51(xxxvii) of the Constitution, your Honour. There has been no attempt to actually refer those powers. There has been some State legislation which I would say has purported to give the ASC such a power. The question then arises how the Commonwealth body itself acquires the power to investigate offences occurring under State law.

HIS HONOUR:   Yes, I understand the way you put it.  Can I just move on to your next point then.  You have got four points, have you not?  You have got this power point; you have got the claim that an investigation would contravene the judicial power of the Commonwealth.

MR CORR:   Yes, that is correct, your Honour.

HIS HONOUR:   It seems to me you have got two problems there.  The first is that in almost identical circumstances in Huddart Parker v Moorehead, this Court held that an examination conducted by the Comptroller‑General of Customs in aid of investigation of offences against the Australian Industry Preservation Act were not an exercise of the judicial power of the Commonwealth.  The second point seems to be the Spratt v Hermes point, that Chapter III just does not apply in the Territory; certainly this part of Chapter III.

MR CORR:   In relation to the first point, your Honour, the difference is between an investigation and the totality of what the Australian Securities Commission does, namely that the ASC has power to prepare a report and to publish and distribute the report as well.  To a certain extent we would submit that this has the same effect as a declaration of a court and that that takes it outside just being an investigatory power, that the effect of this declaration as to what has occurred in relation to the laws of the Commonwealth can have a much greater effect than any finding that a court may have and, in relation to the first prosecutor, would almost certainly lead to extinction.

HIS HONOUR:   That may be so, but it seems to me to have nothing whatever to do with judicial power.

MR CORR:   Yes.

HIS HONOUR:   The third point is the section 80 point.

MR CORR:   Yes, your Honour. 

HIS HONOUR:   Now, again, you are met with a binding decision of this Court, are you not, and Bernasconi holds that section 80 does not apply in the Territory, so if what is being done here is somehow within the power of the Commonwealth or under section 122, then section 80 has got nothing to do with the point, has it, quite apart from other difficulties you have got in the way?

MR CORR:   Yes, I realise the difficulties with section 80, your Honour, but, again, that point arises as to whether there is, in fact, that nexus with the Territory which is necessary for the Territory power to operate.

HIS HONOUR:   Well, that is really your first point.

MR CORR:   Yes, your Honour.

HIS HONOUR:   Now, your final point is the civil matters point and, with great respect, that seems to me to be an entirely baseless point.  The fact that it may involve civil transactions does not prevent either the Commission from investigating it or from investigating whether it results in offences.

MR CORR:   Yes, your Honour, but if there is some evidence to show that there was an offence against the Corporations Law that would be the case, but I would be submitting in this case that the only evidence ‑ ‑ ‑

HIS HONOUR:   Well, then you win on the first point.  It has got nothing to do with the civil point.

MR CORR:   Yes, your Honour.

HIS HONOUR:   Well, now what relief do you seek?

MR CORR:   We are seeking an order nisi at this stage, your Honour, to prevent the respondents from investigating the activities of the Aboriginal Legal Service and that until such time as it can be brought before the Full Court for an order absolute to be made.

HIS HONOUR:   Yes.  Well, I will hear at this stage from Mr Robertson.  Mr Robertson, what do you say about the first point, the power point?

MR ROBERTSON: The question of section 122, your Honour?

HIS HONOUR:   Well, the reliance on sections 42 and 45 of the Corporations Act 1989.  That is the way it is put, is it not, in the affidavit?  It is put that you are relying on those - - -

MR ROBERTSON:   It does seem to be put on the basis that the legislation is structured on the power in 51(xx) and one matter that is particularly material to that is the definition in the legislation in section 9 of the Corporations Law of “corporation”, which really shows, in my respectful submission, that, as one would expect from the history of the matter and the decision of the court in New South Wales v Commonwealth, that in fact it is not based on the corporations power, it is a co-operative scheme involving section 122 primarily, so far as the Commonwealth is concerned and then corresponding State law under State Constitutions.

HIS HONOUR:   I appreciate that, but the way it is put against you is that whatever the Commission may do in the Territory under the Territories power, it has no authority under the Territories power to investigate matters that occur outside the Territory.

MR ROBERTSON:   Your Honour, just assuming for the moment that that was so as a matter of law, we would submit that it is not only the Territories power that the ASC is exercising. In other words, if one looks at the structure of the legislation its powers in relation to matters in New South Wales come where necessary from the State law. So that it is a body that can exercise such powers as are conferred on it by section 122, so far as the Territories power is necessary, and such powers as are conferred on it by the State Act under the State Constitution so far as that may be necessary. So we would submit that really the question does not arise of investigating the outer limits, maybe, of section 122. The question just does not arise.

Now, quite what the facts are here is a little bit murky, with respect. It seems that there is investigations in the Territory, but it seems that the events being investigated, so far as one can tell, or some of them, are events that happened in New South Wales. That seems to be the way that the investigation is being conducted. We would submit, on the basis that I have put, that there really is no question arising in relation to 122, and one might also add perhaps that the section 122 point is really not a point that arises on the 78B notice, which is really the Chapter III in the section 80 point.

Probably your Honour had this in mind as well but on the section 80 point there is another clear authority which is Sorby v The Commonwealth 152 CLR 281, where certainly the majority, certainly the then Chief Justice Gibbs and Justices Mason, Wilson and Dawson - the relevant pages are 298 and 308 - expressly approve in Huddart, Parker & Co Pty Ltd v Moorehead which your Honour referred to,
that section 80 has got nothing to do with self‑incrimination; they are just different streams of history.  So we would submit that that must be highly significant in terms of any relief that your Honour is being asked to grant. 

If I can perhaps turn briefly to another point, your Honour.  In so far as the fact of inquiry is said to be inconsistent with Chapter III, we would submit there is an unbroken line of cases going, in this Court, perhaps as far back as Clough v Leahy 4 CLR; the Builders Labourers Federation Case, the joint Royal Commission in Victoria, where that is a fortiori, because there there was the letters patent authorised an inquiry into a possible criminal offence.

Then there is the other point your Honour referred to.  I was given by my learned friend the latest draft of the draft order.  This goes to your Honour’s first point.  If your Honour were to turn to the top of page 2 - I am not sure whether your Honour has that document, but it is the same point in the earlier draft - it really asks for a writ of prohibition directed to the first respondent, and we would submit that Murray and Cormie,and other cases, certainly would establish that ‑ ‑ ‑

HIS HONOUR:   Sorry, what ‑ ‑ ‑

MR ROBERTSON:   If your Honour looks at the top of page 2, your Honour will see:

Why a Writ of Prohibition should not be issued out of this Court directed to the first Respondent.

HIS HONOUR:   Yes.

MR ROBERTSON:   Now, to take up your Honour’s first point, we would submit it is quite clear that the Australian Securities Commission does not hold an office consistently with Murray and Cormie and the cases that have followed it. So, we would submit that that is an impossibility as well, and we would certainly adopt what your Honour has put in argument, which is that there are difficulties at the threshold with the section 80 point and the Chapter III point, leaving aside the underlying point as to whether the judicial power of the Commonwealth is involved anyway, because the structure of the legislation seems to contemplate either section 122 or the constitutional powers of the States.

Now, I should add in that respect that really we have emphasised the former point because your Honour will recall that in Precision Data v Wills the Full Court of this Court found it unnecessary to deal with the second point, that is, whether it is judicial power of the Commonwealth.  Now, whether the facts of that case and the powers there in question quite coincide with these powers, perhaps we do not need to stay to inquire, but certainly we would submit that those questions fall at the threshold because of Sorby, because of the BLF Case and matters of that sort.

So, your Honour, we would submit that plainly there are a number of different things that your Honour can do under Order 55 of the High Court Rules.  We

would submit that the application is really in such a state, if I can use that expression, that no order nisi should go, let alone, as I understood my learned friend to submit, an order absolute in the first instance, which we would submit is an exceptional coursens where there is a very strong case, and we would submit this case is at the other end of the spectrum.  If the Court pleases.

HIS HONOUR:   Yes, Mr Corr.

MR CORR: Yes. My learned friend said that there are the two parts which purport to give all power to the ASC here; the first one being section 122 of the Constitution, the Territories power, and where there was any lapse there, that the constitutional power of the States would supply any power which is necessary. However, that appears to be giving the power for the States to vest their powers in a Commonwealth body.

HIS HONOUR:   Well, it is a hybrid body; it is just like the Coal Industry Tribunal; it has operated for 50 years, and there have been numerous cases before this Court.  It is the same sort of thing, is it not?

MR ROBERTSON:   I think that in that instance there would be a difference because the ASC is completely under the control of the Commonwealth.  It is purely a Commonwealth body and that it is responsible to the responsible Commonwealth Minister, everyone is appointed by the Commonwealth and so on.  In that respect it can be distinguished from the Coal Industry Boards where the various States did in fact have some degree of control over the appointment and running of those various bodies.

HIS HONOUR:   Yes.

MR ROBERTSON: Therefore, there is the provision within the Constitution for the States to vest their powers within the Parliament of the Commonwealth, but there is no provision there for them to vest any of their powers in bodies which have been created by the Commonwealth. Therefore, there is in fact a gap which does exist. This is such a gap and therefore, the ASC does lack the power to investigate offences against State laws.

HIS HONOUR:   Yes.

MR ROBERTSON:   Therefore, there should be a writ of prohibition going to prevent them from exceeding powers which they have which are to investigate offences against other laws of the Commonwealth or laws of the Territories.  Therefore, a writ of prohibition should issue from this Court to that effect.

HIS HONOUR:   Yes.  Do you have anything further?

MR ROBERTSON:   In relation to Sorby I would submit that in that particular case, it was a Royal Commission and that there there are historic powers which are attaching to Royal Commissions and that it is not applicable in this case, where it is leading directly to, we would submit in the first instance, a judicial finding by the ASC.  Your Honour has indicated he has difficulty with that.  Secondly, where it is leading directly to the prosecution in judicial fora, that a Royal Commission has got certain historical incidents attaching to it which make it quite specific and that therefore, Sorby is not applicable in this case.

HIS HONOUR:   Mr Corr, for the moment, I am not disposed to grant you an order nisi on any point.  With some reluctance, I would refer the first point to the Full Court where you could put your arguments before the Full Court on the first point, but even that I do with some reluctance.  But in relation to the other points, I am of the view that there is no substance in them and they have no prospects of success.  In the light of that, do you want me to refer the first point?

MR CORR:   Yes, if it pleases, your Honour.

HIS HONOUR:   It goes without saying that I would not be prepared to grant any form of interlocutory relief in the matter, Mr Corr.

MR CORR:   If it please the Court.  in that instance, your Honour, I shall confer with my learned friend and prepare an appropriate case for your Honour to refer to the Court.

HIS HONOUR:     am not talking about referring a case.  I am exercising the power under the rules instead of

dismissing your order nisi to enable you to bring the matter before the Full Court.

MR CORR:   Yes.

MR ROBERTSON:   Does your Honour have in mind Order 55 rule 2, the notice of motion provision.

HIS HONOUR:   Yes.  What I have in mind is to make an order under Order 55 rule 2 in respect of what I will call the power point. 

Accordingly, in accordance with Order 55 rule 2, I direct the present application, so far as it asserts that it is beyond the power of the Australian Securities Commission to investigate matters taking place outside the Australian Capital Territory, be referred to the Full Court and, in so far as is necessary, I adjourn the application so that notice on the application may be given accordingly.  Otherwise, the application be dismissed.

MR ROBERTSON:   If it please the Court.

HIS HONOUR:   Anything further, Mr Corr?

MR CORR:   No, your Honour.

HIS HONOUR:   Adjourn the Court.

AT 9.39 AM THE MATTER WAS ADJOURNED SINE DIE