Aboriginal Legal Service Ltd (ACN 001 310 710) v Australian Securities Commission

[1996] FCA 900

IN THE FEDERAL COURT OF AUSTRALIA    )
           )
NEW SOUTH WALES DISTRICT REGISTRY )     No. NG791 of 1996
           )
GENERAL DIVISION           )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:

ABORIGINAL LEGAL SERVICE LIMITED ACN 001 310 710

First Appellant

PAUL THOMAS COE

Second Appellant
  - and -

AUSTRALIAN SECURITIES COMMISSION

First Respondent

ALAN CAMERON, CHAIRPERSON, AUSTRALIAN SECURITIES COMMISSION

Second Respondent

ARTHUR WILLIAM WALLWORK

Third Respondent

JONATHAN PETER CADDICK

Fourth Respondent

CORAM:      BLACK CJ, LOCKHART and WHITLAM JJ
PLACE:        MELBOURNE
DATE :          10 OCTOBER 1996

REASONS FOR JUDGMENT

THE COURT:
This is an appeal from the judgment of Moore J dismissing an application for judicial review made under the Administrative Decisions Judicial Review Act 1977 ("the ADJR Act") and under s39B of the Judiciary Act 1903.

As the primary judge observed in his reasons for judgment, the issue in this case is a narrow one. The Australian Securities Commission ("the Commission") has undertaken an investigation into the first appellant, the Aboriginal Legal Service Limited ("the ALS"), and has prepared a report in the exercise of its powers under s17 of the Australian Securities Commission Act 1989 ("the ASC Act"). Moore J found that a copy of the report was likely to be given to the Minister, as contemplated by s18 of the Act, in the very near future.

It was common ground that the case was one to which s6(1)(a) of the ADJR Act applied, in that the Commission was engaging in conduct for the purpose of making a decision to which the ADJR Act applies.

The issue raised by the ALS and by Mr Coe, who is Chairperson of the ALS, was whether the Commission, in preparing the report it was about to deliver to the Minister, had acted in breach of the rules of natural justice by failing to afford procedural fairness to the ALS and to Mr Coe.  Moore J found that the applicants had failed to make out their case and dismissed the application with costs.  The same issue was raised on appeal.

We should make brief reference to the factual background which is not complex and which his Honour set out in his reasons for judgment. In essence, what occurred was that the Commission, having examined several people in the exercise of its powers under Division 2 of Part III of the ASC Act, began to prepare a draft report. It then sent letters to the directors of the ALS and to Mr Coe, informing them that a draft report was being prepared and providing extracts of it. Accompanying the extracts from the draft report were extracts from the transcripts of the examinations that the Commission had conducted. The letter, which is dated 10 July 1996, included the following:

"As you are no doubt aware, the Australian Securities Commission ("ASC") is in the process of preparing a report to its Minister, the Commonwealth Treasurer, about the affairs of Aboriginal Legal Services Limited ("ALS"). The report is being prepared pursuant to section 17 of the ASC Law. Under section 18 of the ASC Law the Treasurer is vested with a discretion to publish the report.

Work on this has now advanced to the stage where the substantial documentary and oral evidence obtained from ALS and others during the ASC's investigation has been analysed and summarised in draft.  The draft report contains, on a provisional basis for comment by persons whose rights or interests may be affected, numerous findings of fact and many other statements.  Whatever form the contents of the draft report take, if they are included unamended in the report to the Treasurer then they could affect ALS's rights or interests as well as the rights or interests of individuals associated with ALS.  A copy of the parts of the draft report which could affect the rights or interests of ALS or persons associated with ALS is enclosed together with relevant annexures.  An additional copy of the annexures is being provided to Mr Coe.

In order to ensure that the report in its final form will be accurate and fair, you are invited to respond to the draft report in writing addressed to my office by no later than 5pm Monday 12 August 1996.  You should comment on everything in the draft which you disagree with, not just draft findings of fact.

...

I stress to you that the draft report is just that.  It is not final.  The ASC is open to any rational criticism of the draft and will give consideration to all submissions or any new evidence provided to it by any person within the time frame and in the manner described above.

..."

There was further correspondence between the parties, in which it was contended on behalf of the appellants that the Commission's failure to provide the entire transcripts constituted a breach of the rules of natural justice.  It was asserted on behalf of Mr Coe that he was entitled to see any exculpatory material and to see the transcripts in their entirety so that he could be satisfied that there were no other relevant matters in them.

Although a brief extract of the draft report was tendered by the applicants before Moore J, the more substantial extracts which had earlier been forwarded to them by the Commission with the letter of 10 July 1996 for their comment were not tendered. No attempt was made before the trial judge, or before us, to show by reference to specific parts of the material that was in evidence, that there was some matter adversely affecting the appellants, or either of them, as to which they had been kept in ignorance.  Nor was any attempt made to show by reference to specific parts of the
material that there was any other material that, as a matter of procedural fairness, should have been shown to the appellants so that they might make use of it in a submission to the Commission about the content of the draft report.

The argument for the appellants before us and before the primary judge rested ultimately on the proposition that procedural fairness required that they be shown all the transcripts. This was asserted as a matter of broad principle, although underlying that proposition was the contention that all the material must be irrelevant, in which case it was said that the Commission must have exceeded its powers, or potentially adverse, in which case it should have been shown to the appellants, or else exculpatory, in which case too it should have been made available to the appellants for their comment.

The short answer to the appellants' argument is that it was not shown that the material with which the appellants were not provided fell into any particular category.  It was contended on behalf of the Commission that the obligation to afford procedural fairness did not require that a person be given potentially exculpatory or positive material but even if this is not so - and we do not need to consider that question - the appellants did not make out a case for there being any such material.  Likewise, they did not make out a case for there being any potentially adverse material other than the material the Commission provided to them.
In these circumstances Moore J was correct in concluding that the appellants had not shown that there had been any breach of the rules of natural justice.  There is no support in the authorities for the general proposition that in a case such as the present a person potentially affected by a report must have access to, and an opportunity to comment upon, all the material that is before the person compiling that report.

The appeal should be dismissed with costs.

I certify that this and the 5 preceding pages are a true copy of the Reasons for Judgment of the Court.

Associate

Dated:

Counsel for the Appellants              :          Mr G C Carr
Solicitors for the Appellants           :          Aboriginal Legal Service Limited  

Counsel for the Respondents          :          Mr A R Emmett QC
  Mr C M Erskine
Solicitors for the Respondents       :          Australian Government Solicitor

Hearing Date  :          10 October 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
   )
NEW SOUTH WALES DISTRICT REGISTRY )     No. NG791 of 1996
   )
GENERAL DIVISION   )

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:

ABORIGINAL LEGAL SERVICE LIMITED ACN 001 310 710  First Appellant

PAUL THOMAS COE        Second Appellant

- and -

AUSTRALIAN SECURITIES COMMISSION   First Respondent

ALAN CAMERON, CHAIRPERSON, AUSTRALIAN SECURITIES COMMISSION Second Respondent

ARTHUR WILLIAM WALLWORK

Third Respondent

JONATHAN PETER CADDICK

Fourth Respondent

CORAM:      BLACK CJ, LOCKHART and WHITLAM JJ
PLACE:        MELBOURNE
DATE :          10 OCTOBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court
       Rules.

CATCHWORDS

ADMINISTRATIVE LAW - investigation by Australian Securities Commission ("the Commission") under the Australian Securities Commission Act 1989 - whether procedural fairness afforded to persons who might be adversely affected by investigation - Commission not obliged to provide entire transcripts of examinations conducted by Commission investigators.

Administrative Decisions (Judicial Review) Act 1977 s6(1)(a)

No:  NG791 of 1996

B E T W E E N:

ABORIGINAL LEGAL SERVICE LIMITED ACN 001 310 710            First Appellant
PAUL THOMAS COE  Second Appellant
- and -
AUSTRALIAN SECURITIES COMMISSION  First Respondent
ALAN CAMERON, CHAIRPERSON, AUSTRALIAN SECURITIES COMMISSION Second Respondent
ARTHUR WILLIAM WALLWORK  Third Respondent
JONATHAN PETER CADDICK  Fourth Respondent

BLACK CJ, LOCKHART and WHITLAM JJ
MELBOURNE
10 OCTOBER 1996