Attorney General for New South Wales v Melco Resorts & Entertainment Limited

[2020] NSWCA 40

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40

Hearing dates:

9 March 2020

Date of orders:

12 March 2020

Decision date:

12 March 2020

Before:

Bathurst CJ, Bell P, Gleeson JA

Decision:

1.   Direct the appellant to file a notice of appeal in the form of the draft notice of appeal referred to in paragraph 10 of the reasons for judgment within 7 days.

 

2.   Appeal allowed with costs.

 3.   Set aside orders made by the primary judge and, in lieu thereof, order that the Commercial List Summons be dismissed with costs.

Catchwords:

COMMISSIONS OF INQUIRY – inquiry established under Casino Control Act 1992 (NSW) – whether conferral of powers and authorities of a commissioner under the Royal Commissions Act 1923 (NSW) included power to compel testimony or production of documents irrespective of claim of legal professional privilege – meaning of s 143A of Casino Control Act – whether a witness summoned by or appearing before the person presiding at an inquiry entitled to claim legal professional privilege.

 

PRIVILEGE – legal professional privilege – whether s 143A of Casino Control Act operated to abrogate legal professional privilege – whether s 143A of Casino Control Act conferred power to compel production of documents irrespective of legal professional privilege.

STATUTORY INTERPRETATION – whether s 17(1) of the Royal Commissions Act conferred a power or authority on a commissioner – whether s 143A of the Casino Control Act picked up s 17(1) of the Royal Commissions Act and abrogated legal professional privilege – principle of legality – legislation to be construed in context of case law existing at time of enactment – meaning of “protection” afforded to a witness in s 11(3) of Royal Commissions Act – permissible use of extrinsic materials.

Legislation Cited:

Casino Control Act 1992 (NSW) ss 3, 4A(1), 143, 143A
Casino Control Amendment Act 2001 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW) s 81(2)
Crimes Act 1900 (NSW) s 474G
Foreign Tribunals Evidence Act 1856 (UK) s 1
Gaming and Liquor Administration Act 2007 (NSW)
Interpretation (Amendment) Act 1980 (NSW) s 3
Interpretation Act 1987 (NSW) ss 21(1), 33, 35
James Hardie (Investigations and Proceedings) Act 2004 (Cth) s 4
Royal Commissions Act 1923 (NSW) ss 6, 8, 11, 13, 15, 16, 17, 18, 18A-D, 19(1), Pt 1, Pt 2, Pt 3
Uniform Civil Procedure Rules 2005 (NSW) rr 1.9(3), (4), (5)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248
Balog v Independent Commission Against Corruption (1990) 169 CLR 625; [1990] HCA 28
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41
Calvin v Carr [1977] 2 NSWLR 308
Carruthers v Connolly [1998] 1 Qd R 339
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319; [1991] HCA 28
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49
Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526
Elliott v Minister administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123
Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477; [1993] HCA 74
Fingleton v R (2005) 227 CLR 166; [2005] HCA 34
Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 372 ALR 126
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48
Lennon v Gibson and Howes Limited (1919) 26 CLR 285; [1919] AC 709
MacDonald v Australian Securities Commission (No 2) (1994) 48 FCR 210
Melbourne Steamship Co Limited v Moorehead (1912) 15 CLR 333; [1912] HCA 69
Melco Resorts & Entertainment Limited v The Independent Liquor and Gaming Authority [2020] NSWSC 53
Meteyard v Love (2005) 65 NSWLR 36; [2005] NSWCA 444
Nisselle v Brouwer (2007) 16 VR 296; [2007] VSC 147
Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Ronen (2004) 62 NSWLR 707; [2004] NSWCCA 67
R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115
Rochfort v Trade Practices Commission (1982) 153 CLR 134; [1982] HCA 66
Sirros v Moore [1975] QB 118
Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; [1976] HCA 53
Thelander v Woodward [1981] 1 NSWLR 644
Toohey v Lewer [1979] 1 NSWLR 673
Watson v M’Ewan [1905] AC 480
Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Appellant)
Melco Resorts & Entertainment Limited
(First Respondent)
The Independent Liquor and Gaming Authority (Second Respondent) (Submitting appearance)
The Hon. PA Bergin SC in her Capacity as Commissioner of an Inquiry Established by the Independent Liquor and Gaming Authority
(Third Respondent) (Submitting appearance)

Representation:

Counsel:
J Kirk SC, O Jones (Appellant)
S Finch SC, J Stoljar, Z Hillman (First Respondent)

  Solicitors:
Crown Solicitor’s Office (Appellant)
Clayton Utz (First Respondent)

File Number(s):

2020/53141

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 53

Date of Decision:

11 February 2020

Before:

Adamson J

File Number(s):

2020/22260

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 August 2019, pursuant to s 143 of the Casino Control Act 1992 (NSW) (CC Act), the Independent Liquor and Gaming Authority (the Authority) appointed the Hon. P A Bergin SC (Ms Bergin) to preside over an inquiry (the Inquiry) into a range of matters concerning the Crown Casino and its licensee, Crown Sydney Gaming Pty Limited, a wholly owned subsidiary of Crown Resorts Limited (Crown Resorts). The immediate catalyst for the Inquiry was a share sale agreement between Melco Resorts and Entertainment Limited (Melco) and CPH Crown Holdings Pty Ltd (CPH) by which CPH would dispose of approximately 9.99% of shares in Crown Resorts to Melco or its nominee.

By the instrument of appointment, Ms Bergin was granted “the powers, authorities, protections and immunities conferred on a Commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 (NSW)” (RC Act) and was also granted the “powers and authorities conferred on a Commissioner by Division 2 of Part 2 of that Act except for s 17(4) and (5).” The language of this instrument of appointment deliberately picked up the language of s 143A(1)(b) of the CC Act.

Between September 2019 and January 2020, some nine summonses to produce documents were issued to Melco. In correspondence with officers of the Authority, Melco asserted a claim of legal professional privilege in respect of certain documents otherwise falling within the terms of the summonses for production. These claims were not accepted by the Authority which contended that Melco’s privilege was abrogated by a combination of s 143A of the CC Act and s 17(1) of the RC Act, the latter of which constitutes a clear abrogation of legal professional privilege.

This dispute led to the initiation of proceedings by way of Commercial List Summons filed on 22 January 2020. The primary judge made declarations to the effect that s 17(1) of the RC Act had not come into effect for the purposes of the Inquiry, and that Melco’s privileges, including legal professional privilege, were not abrogated. The Attorney General for NSW (the Attorney) made an application for leave to appeal from this decision, although the Court noted that leave to appeal was not required, with the matter instead considered on the basis that the Attorney had exercised a right of appeal.

The principal issues on appeal were:

1. Whether the primary judge erred in concluding that s 17(1) of the RC Act does not confer a “power or authority” on a commissioner, and was therefore not one of the provisions picked up by s 143A(1) of the CC Act;

2. Whether the primary judge erred in concluding that s 17(1) of the RC Act did not have effect for the purposes of the Inquiry pursuant to s 143A(2) of the CC Act.

The Court held (Bathurst CJ, Bell P and Gleeson JA), allowing the appeal with costs:

1. The primary judge erred in concluding that s 17(1) of the RC Act did not confer a “power or authority” on a commissioner. Falling within Division 2 of Part 2 of the RC Act, headed “Special Powers”, s 17(1) was correctly characterised as conferring a power on a commissioner. It extended the general power to compel the production of documents to include the power to compel the production of legally privileged documents. It could also be considered as confirming an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege: [78] – [93].

2. The legislature, in s 143A(1)(b) of the CC Act itself, has treated s 17(1) of the RC Act as conferring a power on a commissioner: [87].

3. The primary judge also erred in her construction of s 143A(2) of the CC Act. The Court held that that subsection had the effect of applying s 17(1) of the RC Act to witnesses summoned to produce documents by a person who fell within either of the two qualifications in s 143A(1)(b). As Ms Bergin was such a person, Melco was subject to the operation of s 17(1) of the RC Act and it was not entitled to resist production of documents which it was summoned to produce on the grounds of legal professional privilege: [94] – [102].

4. Observations by the Court on principles of statutory construction, the principle of legality and the use of extrinsic materials: [57] – [58], [88], [103] – [110].

Judgment

1. THE COURT: On 14 August 2019, pursuant to s 143 of the Casino Control Act 1992 (NSW) (CC Act), the Independent Liquor and Gaming Authority (the Authority) appointed the Hon. P A Bergin SC (Ms Bergin) to preside over an inquiry into a range of matters concerning the Crown Casino and its licensee, Crown Sydney Gaming Pty Limited (the Licensee), a wholly owned subsidiary of Crown Resorts Limited (Crown Resorts). The immediate catalyst for the inquiry was a share sale agreement between Melco Resorts & Entertainment Limited (Melco) and CPH Crown Holdings Pty Ltd (CPH) by which CPH would dispose of approximately 9.99% of shares in Crown Resorts to Melco or its nominee, MCO (KittyHawk) Investments Limited.

2. Amongst other matters, Ms Bergin was requested to inquire into and report upon:

“(a)   whether the Licensee is a suitable person to continue to give effect to the Barangaroo restricted gaming licence;

(b)   whether Crown Resorts is a suitable person to be a close associate of the Licensee;

(c)   in the event that the answer to either (a) or (b) above is no, what, if any, changes would be required to render those persons suitable; …”

She was also requested to:

“(a) inquire into and report upon the efficacy of the primary objects under the Casino Control Act in an environment of growing complexity of both extant and emerging risks for gaming and casinos;

(b)   undertake a forward-looking assessment of the Authority’s ability to respond to an environment of growing complexity of both extant and emerging risks for gaming and casinos;

(c)   identify recommendations in order to enhance the Authority’s future capability, having regard to the changing operating environment …”.

3. Ms Bergin was directed to hold hearings in public unless she was satisfied that it was convenient to conduct hearings in private and then to report to the Authority in writing as soon as reasonably practicable.

4. By the instrument of appointment, Ms Bergin was granted “the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 (NSW)” (RC Act) and was also granted the “powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (NSW) (except for s 17(4) and (5))”. As will be seen, the language of this instrument of appointment picks up the language of s 143A(1)(b) of the CC Act, and deliberately so.

5. The background to this appeal and the commencement of proceedings in this Court is that, between September 2019 and January 2020, some nine summonses to produce documents were issued to Melco. The sample Summons to Produce which was in evidence recited that “[p]ursuant to section 8 of the Royal Commissions Act 1923 (NSW), you are required to attend the Inquiry to produce the documents described in the Schedule…”.

6. In correspondence with officers of the Authority, Melco asserted a claim of legal professional privilege in respect of certain documents otherwise falling within the terms of the summonses for production. These claims for privilege were not accepted by the Authority which contended that Melco’s privilege was abrogated by a combination of s 143A of the CC Act and s 17(1) of the RC Act and that Melco was obliged to produce all documents falling within the summonses for production. It was this dispute which led to the initiation of proceedings in this Court by way of Commercial List Summons filed on 22 January 2020. That summons relevantly sought declarations that:

“(a) subsection 17(1) of the Royal Commissions Act 1923 (NSW) has not come into effect for the purposes of the inquiry established by the [Independent Liquor and Gaming Authority] on or about 29 August 2019 under section 143 of the Casino Control Act 1992 (NSW) (the Inquiry); and

(b)   [Melco’s] privileges, including legal professional privilege, are not abrogated for the purposes of the Inquiry.”

7. The suit for declaratory relief was heard expeditiously by Adamson J (the primary judge) on 6 February 2020 and her Honour delivered judgment with equal expedition on 11 February 2020: Melco Resorts & Entertainment Limited v The Independent Liquor and Gaming Authority [2020] NSWSC 53. Her Honour made the following declarations and order:

“(1) Declare that s 17(1) of the Royal Commissions Act 1923 (NSW) has not come into effect for the purposes of the inquiry established by The Independent Liquor and Gaming Authority, the first defendant, on or about 29 August 2019 under s 143 of the Casino Control Act 1992 (NSW).

(2)   Declare that the plaintiff’s privileges, including legal professional privilege, are not abrogated for the purposes of an inquiry conducted under the Casino Control Act 1992 (NSW).

(3)   Unless either the plaintiff or the third defendant applies in writing to my Associate for a different order within seven days, order the third defendant to pay the plaintiff’s costs of the proceedings.”

8. On 18 February 2020, the Attorney General for New South Wales (the Attorney) filed a summons in this Court seeking leave to appeal from the whole of the decision below. That summons was accompanied by a notice of motion seeking expedition of the hearing of the summons for leave to appeal, and a draft notice of appeal.

9. As is customary when matters involve obvious urgency (as does the present case, given that the Inquiry was set to commence hearings on 24 February 2020) matters of formality in relation to expedition were put to one side and the Registrar of the Court of Appeal offered the parties early hearing dates for the summons for leave to appeal to be heard on a concurrent basis.

10. By his draft notice of appeal, the Attorney contends:

“(1) That the primary judge erred in law in concluding that s. 17(1) of the Royal Commissions Act 1923 (NSW) did not have effect for the purposes of the inquiry established by the Independent Liquor and Gaming Authority on 14 August 2019 (the Inquiry) pursuant to s. 143A(1) of the Casino Control Act 1992 (NSW).

(2)   That the primary judge erred in law in concluding that s. 17(1) of the Royal Commission[s] Act 1923 (NSW) did not have effect for the purposes of the Inquiry pursuant to s. 143A(2) of the Casino Control Act 1992 (NSW).”

11. It is not apparent why leave to appeal was sought in view of the final nature of the declarations made by the primary judge but, even if leave was required, it was not resisted, Melco recognising that this was plainly an appropriate case for the grant of leave.

12. In our opinion, leave to appeal was not required and we have considered the matter on the basis that the Attorney exercised a right of appeal. An order should be made that the Attorney file a notice of appeal in the form of the draft notice of appeal within seven days.

Disposition

13. For the reasons that follow and with due respect, in our opinion, the primary judge erred in her construction of s 143A of the CC Act with the consequence that the appeal should be allowed with costs.

14. It was not in dispute that s 17(1) of the RC Act constitutes a clear abrogation of legal professional privilege. The intent of ss 143A(1)(b) and 143A(2) of the CC Act is to carry that clear abrogation through to a commission of inquiry established by the Authority in circumstances where an inquiry is being presided over by a person who has the qualifications set forth in s 143A(1)(b) of the CC Act. It was not in dispute that Ms Bergin was such a person.

15. As such, it was not open to Melco to resist the production of documents which it was summoned to produce on the grounds of legal professional privilege, and the declarations made by the primary judge must be set aside and Melco’s Commercial List Summons must be dismissed with costs.

16. It is necessary to set out the relevant statutory framework in some detail before turning to the primary judgment, the arguments advanced on appeal and ultimately our reasons for the conclusion we have reached.

Statutory framework

Casino Control Act 1992 (NSW)

17. The “Authority” is defined in s 3 of the CC Act to mean the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administration Act 2007 (NSW).

18. Section 4A(1) of the CC Act, which was inserted at the same time as s 143A, provides that:

“Among the primary objects of this Act are:

(a)   ensuring that the management and operation of a casino remain free from criminal influence or exploitation, and

(b)   ensuring that gaming in a casino is conducted honestly, and

(c)   containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families.”

19. Section 143 of the CC Act provides that:

“(1)    For the purpose of the exercise of its functions under this Act, the Authority may arrange for the holding of inquiries in public or in private presided over by a member of the Authority or by some other person appointed by the Authority to preside.

(2)     Evidence may be taken on oath or affirmation at an inquiry, and for that purpose:

(a)     the person presiding at the inquiry may require a person appearing at the inquiry who wishes to give evidence to take an oath or to make an affirmation in a form approved by the person presiding, and

(b)     a key official may administer an oath or affirmation to a person so appearing at the inquiry.

(3)     The person presiding at an inquiry is not bound by the rules or practice of evidence and may inform himself or herself on any matter in such manner as the person considers appropriate.

(4)     A reference in this section to an inquiry includes a reference to an inquiry held for the purpose of enabling a person to make submissions to the Authority and a reference to the giving of evidence includes a reference to the making of those submissions.

(5)     The person presiding at an inquiry is required to report to the Authority on the results of the inquiry and is subject to the control and direction of the Authority with respect to the matters that are to be the subject of inquiry, the procedures to be adopted at an inquiry and the time within which the person is to report to the Authority.”

20. Section 143A of the CC Act was introduced by the Casino Control Amendment Act 2001 (NSW). In the Second Reading Speech (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 March 2001 at 12324), the Minister for Gaming and Racing, Mr Face, said that:

“The legislation is defective in that it does not empower the presiding officer to require a person directly or indirectly associated with matters that are the subject of the inquiry to give evidence to the inquiry… These provisions will allow witnesses to be compelled to attend and give evidence at an inquiry and will ensure that witnesses who do so have the same protection as witnesses who give evidence in a Supreme Court proceedings”.

21. Section 143A of the CC Act provides that:

“(1) The person presiding at an inquiry being conducted by or on behalf of the Authority under section 143:

(a) has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and

(b) if the person is a Judge of the Supreme Court, or is an Australian lawyer of at least 7 years’ standing whose instrument of appointment to preside at the inquiry expressly so provides, has the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17 (4) and (5)).

(2)     The Royal Commissions Act 1923 applies to any witness summoned by or before the person presiding at the inquiry (except for section 13 and, subject to subsection (1) (b), Division 2 of Part 2).”

22. Section 13 of the RC Act relates to the payment of allowances to witnesses. Division 2 of Part 2 of the RC Act is described in more detail below.

Royal Commissions Act 1923 (NSW)

23. The RC Act is divided into three parts: Part 1 (Preliminary); Part 2 (Commissions); and Part 3 (Offences). Part 2 is further divided into two divisions: Division 1 (Commissions generally); and Division 2 (Special powers).

24. Under the RC Act, a commissioner need not be, but may be, a lawyer. Whether a lawyer or not, every commissioner enjoys, in the exercise of his or her duty as a commissioner, the same protection and immunity as a judge of the Supreme Court: s 6. However, not every commissioner is invested with the same powers as a judge of the Supreme Court. Under the RC Act, a commissioner’s powers depend on his or her status and qualifications, and it is only those commissioners who have the status and qualifications described in s 15(1) of the RC Act that may exercise what are described as “special powers” which are contained in Division 2 of Part 2.

25. Within Division 1 of Part 2 of the RC Act is s 8, entitled “Witnesses”. That section provides that:

“The chairperson or the sole commissioner, as the case may be, may by notice in writing summon any person to attend the commission at a time and place named in the summons, and then and there to give evidence and to produce any documents or other things in the person’s custody or control which the person is required by the summons to produce.”

“Person” includes a corporation: Interpretation Act 1987 (NSW) s 21(1).

26. Interpolating there, as s 8 of the RC Act plainly confers a power, there is no question that, by virtue of s 143A(1)(a) of the CC Act (see [21] above), Ms Bergin had the power to issue the summonses for production of documents to Melco.

27. Section 11 of the RC Act relevantly provides:

“11   Answers and documents

(1) A witness summoned to attend or appearing before the commission shall not be entitled, except as otherwise provided in this section and section 127 (Religious confessions) of the Evidence Act 1995, to refuse:

(a)   to be sworn or to make an affirmation,

(b)   to answer any question relevant to the inquiry put to the witness by any of the commissioners,

(c)   to produce any document or other thing in the witness’s custody or control which the witness is required by the summons to produce.

(2)    Nothing in this section shall make it compulsory for any witness:

(a)   to answer any question or produce any document or other thing if the witness has a reasonable excuse for refusing,

(b)   to disclose any secret process of manufacture.

(3)   A witness summoned to attend or appearing before the commission shall have the same protection, and shall in addition to the penalties provided by this Act be subject to the same liabilities in any civil or criminal proceeding as a witness in any case tried in the Supreme Court.

(4)    If a commission obtains for the purposes of the inquiry any document or other thing or any information that is provided voluntarily by a person, subsection (3) applies to the person as if the person were a witness appearing before the commission.”

28. As noted above, Division 2 of Part 2 of the RC Act deals with and is headed “Special powers”. This heading is taken to be part of the Act: Interpretation Act s 35(1)(a).

29. Section 15 of the RC Act, which falls within Division 2 of Part 2, provides as follows:

“15   Application of Division

(1)   The provisions of this Division have effect if the chairperson of a commission or the sole commissioner is a qualified person, namely:

(a)   a Judge of the Supreme Court of the State or of any other State or Territory, a Judge of the Federal Court of Australia or a Justice of the High Court of Australia, or

(b)   a former Judge or Justice of any such court, or

(c)   a person qualified to be appointed as a Judge or Justice of any such court (but only if in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that this Division has effect in relation to the commission).

(2)   In this Division, commissioner means a chairperson or sole commissioner who is such a qualified person, and also includes a member of a commission who is such a qualified person and who has been authorised by the chairperson to exercise powers under this Division (but only if the chairperson is also such a qualified person).”

30. It may be noted that there is a partial overlap between the persons described in s 15(1) of the RC Act and those referred to in s 143A(1)(b) of the CC Act.

31. Section 16 of the RC Act gives the commissioner power to issue a warrant for the apprehension of a witness who fails to attend the commission after having been summoned to do so.

32. Section 17 of the RC Act provides as follows:

“17   Answers and documents

(1)   A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(1A)   Subsection (1) prevails over any inconsistent provision of any other Act or law (whether the inconsistent provision is made before or after the commencement of this subsection) unless the inconsistent provision specifically states that it is to have effect despite this section.

(2)   An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

(3)   Nothing in this section shall be deemed to render inadmissible:

(a)   any answer, document or other thing in proceedings for an offence against this Act,

(b)   any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),

(c)   any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(4)   This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

(5) A declaration under section 15 that the provisions of this Division are to have effect is not sufficient to apply this section unless the declaration specifically states that this section shall apply to and with respect to the inquiry.”

33. Section 18, dealing with the powers of a commissioner, provides that:

“18   Powers of commissioner

(1)     For the purposes of the inquiry the commissioner shall have all such powers, rights, and privileges as are vested in the Supreme Court or in any judge thereof in or in relation to any action or trial, in respect of the following matters:

(a)   compelling the attendance of witnesses,

(b)   compelling witnesses to answer questions which the commissioner deems to be relevant to the inquiry,

(c)   compelling the production of documents and other things.

(d)   (Repealed)

(2)   Nothing in this or any other section of this Division shall limit the powers, rights, and privileges of the commissioner under any other provision of this Act.”

34. Section 18A provides that:

“18A   Contempt

(1)   A person is guilty of contempt of a commission if the person does or omits to do anything which would, if the commission were the Supreme Court, be contempt of that Court or if the person disobeys any order or summons made or issued by the commissioner.

(2)   For the purposes of this Division, offender means a person guilty or alleged to be guilty of contempt of a commission.”

It may be observed that this section does not in terms confer any power or authority on a commissioner.

35. Section 18B sets out how contempt of a royal commission may be punished. Section 18C then contains general provisions regarding contempt. Section 18C(3), like s 18A, does not in terms confer any power or authority on a commissioner. It provides:

“If a contempt of the commission is committed in the face or hearing of the commission, no summons need be issued against the offender, but the offender may be taken into custody then and there by a police officer and called upon to show cause why the offender should not be dealt with under section 18B for the contempt.”

36. Section 19(1) of the RC Act creates an offence “[i]f any person served with a summons to attend a commission, whether the summons is served personally or by being left at the person's usual place of abode, fails without reasonable excuse to attend the commission or to produce any documents …”. As with s 8 of the RC Act, s 19(1) refers to a “person” summoned to give evidence or produce a document rather than a “witness”. Such a person may include a corporation: Interpretation Act s 21(1).

The primary judgment

37. The principal issue argued before the primary judge was whether s 17 of the RC Act conferred a “power” or “authority” on Ms Bergin within the meaning of s 143A(1)(b) of the CC Act, it being accepted that s 17(1) of the RC Act entailed a clear abrogation of privilege.

38. Melco’s argument was that s 17 did not do so in express terms and should not be interpreted as having done so “impliedly”.

39. A further argument which was advanced at first instance albeit, so it would appear, very much on a secondary basis (and not in written submissions) concerned s 143A(2) of the CC Act, it being contended by the Attorney that that sub-section meant that s 17(1) of the RC Act applied, irrespective of whether it involved the conferral of any power or authority on Ms Bergin. No doubt reflecting the way the matter was put at first instance, consideration of this argument does not feature prominently in the primary judgment.

40. At [37]–[39] of her judgment, the primary judge noted that:

“It was accepted that s 17 [of the RC Act], of itself, expressly confers neither a power nor an authority on a commissioner. Its effect is to abrogate, by s 17(1), certain rights and privileges and to provide, by s 17(2) and (3), for limited use of material and answers obtained by reason of such abrogation. When s 17 is read with s 18, it can be seen that a Royal Commissioner has powers to compel a witness both to attend and answer questions and also to compel a person to produce documents, notwithstanding any claim for privilege, such privileges having been abrogated by s 17(1). But s 143A does not in terms make the whole or any part of Division 2 of Part 2 applicable to inquiries under the Casino Control Act. What it does is confer certain ‘powers and authorities’ on the commissioner. In other words, only those provisions in Division 2 of Part 2 which confer powers and authorities are imported into inquiries under the Casino Control Act.

I understood Mr Free to accept that for s 17 to be picked up by s 143A, it was necessary to construe s 17(1) as not only an abrogation of rights, but also as a conferral of a correlative power and authority in the commissioner to enforce such abrogation by requiring a witness to answer a question or a person to produce documents otherwise covered by a summons. The argument that s 17(1) is, in substance, a power since it contains within it an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege has considerable attraction. Lawyers are accustomed to the process of matching rights with remedies, obligations with powers and abrogation of rights and corresponding entitlement: see, for example, Maxwell v Murphy (1957) 96 CLR 261 at 268-269 (Dixon CJ). If this broad construction is given to ‘powers and authorities’ in s 143A(1)(b), the abrogation of rights in s 17(1) applies in inquiries under the Casino Control Act.

Parliament can be taken to have used the words ‘powers and authorities’ advisedly. The only provisions in Division 2 of Part 2 of the Royal Commissions Actwhich would appear to be necessarily unsuitable for, or irrelevant to, inquiries under the Casino Control Act are s 15 (application of the division), since s 143A has its own provision which provides for its application, and s 17(4) and (5), since the Governor plays no role in such an inquiry. Parliament could readily have imported the whole of Division 2 of Part 2 into the Casino Control Act, with the exception of ss 15, 17(4) and 17(5). While the drafting of a statute is at least a skill, if not an art, and it may be assumed that there are several ways of achieving the same result, the use of the words ‘powers and authorities’ is no mere drafting device. It indicates a substantive limitation on what is imported from Division 2 of Part 2: that is, only powers and authorities are to be picked up and not those provisions which do not confer powers or authorities.” (emphasis in original).

41. The primary judge made reference to extrinsic material in aid of the construction of the provision, noting (at [40]) that:

“The Second Reading Speech and the Explanatory note were presumably intended to give Parliament an assurance that the effect of s 143A was not such as to abrogate significant rights, or at least those rights which would be available to witnesses giving evidence in this Court. However, the construction for which the Attorney General contended would have the opposite effect. Far from a witness before the Commissioner having the ‘same protections’ as in this Court, such a person would be deprived of any basis for not answering a question, save, potentially, relevance. I do not accept the Attorney General’s contention that the word ‘protections’ in the Explanatory note and the Second Reading Speech is to be read as confined to protection from liability and is not intended to refer to privileges or other rights.”

The primary judge’s reference in this paragraph to the Minister’s Second Reading Speech was a reference to his statement that the amendments to the CC Act which included s 143A would “ensure that witnesses [who were compelled to give evidence] have the same protection as witnesses who give evidence in a Supreme Court proceedings”: see [20] above. It may be observed that the Minister referred to “the same protection” and not “the same protections”. The relevance of this reference to the Second Reading Speech is considered further at [103]–[110] below.

42. The primary judge concluded (at [41]–[43]):

“The effect of the extrinsic material is a powerful indication that Parliament did not intend s 143A to have the effect of importing the widespread abrogation of rights in s 17(1) to inquiries conducted under the Casino Control Act.

It is significant that Parliament has chosen to import only ‘powers and authorities’, not all of the provisions in Division 2 of Part 2. It has also sought to ‘explain’ through the Explanatory note that the effect of s 143A is to preserve rights, not to abrogate them. I regard the extracts from the Explanatory note and the Second Reading Speech as confirming the construction for which the plaintiff contended: namely, that it is only the express powers and authorities in Division 2 of Part 2 that are to be conferred on a commissioner by s 143A(1)(b) and not the balance of Division 2 of Part 2, which does not fall within that description.

I do not regard this construction as necessarily inconsistent with the exclusion of s 17(4) and (5) in s 143A(1)(b). Sections 17(4) and (5) plainly have no application to an inquiry under the Casino Control Actsince the Governor has no role in the creation of any such inquiry. In these circumstances, it is understandable that Parliament would expressly except them.”

43. Separately to be noted is the primary judge’s rejection of the secondary argument that had been presented by the Attorney, namely that even if s 17(1) of the RC Act were not picked up by s 143A(1)(b) of the CC Act because s 17(1) did not confer a power on a commissioner, it was nevertheless picked up by s 143A(2) because that sub-section applied in terms to witnesses, it not being in issue that Melco was a “witness” within the meaning of s 143A(2) notwithstanding that, as a corporation, it could not give evidence (see further at [65]–[77] below).

44. The primary judge rejected this argument at [44], stating that:

“Division 2 of Part 2 is excepted ‘subject to subsection (1)(b)’. Section 143A(1)(b) is qualified by the expression ‘powers and authorities’. Thus, s 143A(2) needs to be construed with that qualification.”

45. The primary judge considered that, in addition to the text of the CC Act and the extrinsic material referred to, the principle of legality (or, as referred to by Basten JA in Elliott v Minister administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123 at [35] (Elliott), the “clear statement principle”) also supported the conclusion that s 143A of the CC Act did not have the effect of importing the widespread abrogation of rights in s 17(1) of the RC Act into inquiries conducted under the CC Act by a person who satisfied one of the two descriptions in s 143A(1)(b) of that Act.

46. In this context, the primary judge made reference to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [39] (Daniels), where the principle of legality was described by McHugh J as:

“…an elementary rule of statutory construction that courts do not read general words in a statute as taking away rights, privileges and immunities that the common law or the general law classifies as fundamental unless the context or subject matter of the statute points irresistibly to that conclusion…”.

47. The Attorney had submitted that Daniels concerned the interpretation of a provision that purported to require the production of documents notwithstanding the existence of a privilege and contended that there was no warrant for the application of principles of strict construction where it was clear that the relevant statute (here, s 17(1) of the RC Act) abrogated the privilege, and the immediate question of construction was concerned with s 143A of the CC Act.

48. The primary judge rejected this contention and expressed the opinion (at [49]–[50]) that:

“…the principle of legality applies not only to the construction of s 17(1) (which is tolerably clear) but also to any provision which is said to incorporate it by reference or make it applicable in circumstances other than under the Royal Commissions Act. Thus, for s 143A to have the effect of making s 17(1) applicable, it too needs to be expressed with clarity. This is not to suggest that Parliament may not incorporate a provision such as s 17(1) by reference into another statute; rather that if it intends to do so, it must use clear language.

The effect of the principle of legality in the present case is that the court ought not be left to guess whether the alleged correlative power and authority embedded in the abrogation of privileges and rights in s 17 is intended to be conferred on a commissioner appointed under the Casino Control Act. If Parliament intended that for which the Attorney General contended, it was obliged to make its intention clear. The wording of s 143A, the Second Reading Speech and the Explanatory note was such as to give rise to a substantial risk that the full implications of the Attorney General’s preferred interpretation would go unnoticed in the course of the Bill’s passage through both Houses of Parliament. It is not for this Court, by a process of construction which relies on implied correlative powers and authorities, to enable Parliament to avoid confronting the inevitably controversial question whether, in inquiries held by the Authority under the Casino Control Act, it is desirable to abrogate fundamental privileges and rights of witnesses and persons required to produce documents.”

49. For the above reasons, the primary judge made the declarations we have set out at [7] above.

Submissions

50. The Attorney’s grounds of appeal have been noted at [10] above. The first ground of appeal related to that part of the primary judgment summarised at [40]–[42] above, together with her Honour’s reliance on the principle of legality. The second ground of appeal related to the primary judge’s much briefer reasoning in relation to s 143A(2) of the CC Act, to which reference has been made at [44] above.

Ground 1

51. As has been noted, the primary judge held that s 143A(1) of the CC Act does not have the effect of picking up and applying s 17(1) of the RC Act for the purposes of the Inquiry. Her Honour found that s 17 does not confer a “power or authority” on a commissioner, and is therefore not one of the provisions picked up by s 143A(1)(b): at [37]–[41].

52. The Attorney submitted that the primary judge erred in her construction of s 143A(1)(b), arguing that:

“On its proper construction s. 143A does operate in such a way as to engage the abrogation of privilege in s. 17(1) of the Royal Commissions Act, including by conferring on the person presiding at a relevant inquiry power to compel the production of documents notwithstanding privilege. There is a corresponding obligation to produce imposed on the recipient of a summons.

This is because either s. 17(1) is properly construed as a power in its own right, or because it is properly construed as a necessary aspect of the other powers conferred on a commissioner in Div 2 of Part 2 of the Royal Commissions Act. On either view it is part of the law which is picked up by s. 143A(1)(b) of the Casino Control Act… it is also a provision which applies to a witness, by virtue of s. 143A(2).

Key to her Honour’s reasoning is the notion that s. 17(1), when read in isolation, neither expressly nor implicitly confers anything in the nature of a power or authority on a commissioner. It is respectfully submitted that this is incorrect even taking s. 17(1) alone. More fundamentally, Adamson J erred by separating out individual provisions without paying due regard to the operation of Div 2 as a whole. It is to be recalled that s. 143A(1)(b) operates to confer ‘the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17 (4) and (5))’.

The entirety of Div 2 of Part 2 of the Royal Commissions Act is headed ‘Special powers’ (emphasis added). The legislature evidently considered the whole of that collection of provisions to constitute a source of additional powers conferred on a commissioner. Moreover, each provision of the Division needs to be read in the context of Part 2 as a whole to understand the nature and scope of the powers and authorities conferred on a commissioner. The task is not to identify, seriatim and in isolation, those provisions which confer powers and authorities, and treat only those provisions as engaged by s. 143A”. (emphasis in original).

53. The Attorney also referred to a number of Supreme Court decisions in which s 17(1) had been interpreted as conferring a power: see [85]–[86] below. Given that these decisions predated the passage of s 143A of the CC Act, it was submitted that the legislature may be taken to have been aware of those decisions at the time of the introduction of s 143A, and that the CC Act should be construed in the context of those decisions. These authorities were not relied upon and this argument was not advanced before the primary judge.

54. The Attorney also submitted that the primary judge erred in dealing with the words in parentheses in s 143A(1)(b) – “(except for section 17(4) and (5))” – describing these words as:

“… a telling indication that the legislature when referring to the ‘powers and authorities conferred on a commissioner by Division 2 of Part 2’ intended to capture s. 17(1) as a relevant source of power and authority, either in its own right or in combination with other provisions defining the scope of the powers and authorities of a commissioner to compel production. It was necessary for the legislature to include the words in parentheses to make clear that the adoption of s. 17, as part of the source of powers and authorities in Div 2, did not include adoption of the special preconditions that apply pursuant to subsections (4) and (5). Those preconditions are sui generis to the context of a royal commission established by letters patent”.

55. The Attorney further submitted that:

“[t]he fact that the legislature dealt with s. 17 expressly in this context, but did so in a very selective way by excepting only subsections (4) and (5), is a compelling indicator that the legislature intended to otherwise pick up s. 17 of the Royal Commissions Act.

If Parliament had intended in enacting s. 143A of the [CC Act] not to pick up and apply s. 17(1) of the [RC Act] as a source of powers and authorities, it could and would have said simply ‘except for s. 17’”.

56. The Attorney’s argument was further refined by Mr Kirk SC in oral argument. He submitted that the primary judge, having noted at [38] of her judgment that the argument that s 17(1) was “in substance, a power since it contains within it an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege” had “considerable attraction”, subsequently stated at [46] that:

“If the words ‘powers and authorities’ in s 143A are read broadly so as to include implied correlative powers and authorities, this will have the effect that all the common law rights and privileges covered by s 17(1) are abrogated for an inquiry under the Casino Control Act conducted by a person who qualifies under s 143A(1)(b).”

Her Honour then said at [50], having referred to Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635–636; [1990] HCA 28 and R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 at 131, that:

“It is not for this Court, by a process of construction which relies on implied correlative powers and authorities, to enable Parliament to avoid confronting the inevitably controversial question whether, in inquiries held by the Authority under the Casino Control Act, it is desirable to abrogate fundamental privileges and rights of witnesses and persons required to produce documents.”

57. It was submitted that the effect of the primary judge’s reasoning was to elevate the principle of legality to one which required any abrogation of a privilege to be the subject of express legislative language. This, it was submitted, was inconsistent with the acceptance by the plurality in Daniels that a fundamental right could be abrogated by necessary implication. At [11] of the plurality’s judgment in Daniels, it was said that “[i]t is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.”

58. The argument proceeded that if, on its proper construction, s 17(1) of the RC Act conferred an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege, an argument the primary judge described at [38] as having “considerable attraction”, that was no less a power than one conferred expressly and, if it was a power, then Ms Bergin was able to exercise it because s 143A(1)(b) of the CC Act conferred it upon her in clear and unambiguous terms. This argument also called in aid the observations of Basten JA (with whom Beazley P and Payne JA agreed) in Elliott at [40], where his Honour observed of the principle of legality that it:

“does not override the usual exercise of statutory construction by reference to the text of the statute, its identifiable purpose and the context within which a particular provision is found.”

59. In response to the Attorney’s submission that s 17(1) of the RC Act conferred a power or authority on the Commissioner, Melco submitted that:

“First, plainly s 17(1) does not expressly confer such a power. Section 17(1) is concerned with the rights and privileges of the witness, not with the questioner’s power. Nor is there any basis for construing the language of s 17(1) as conferring such a power by implication, because the Royal Commissions Act expressly confers, and the Commissioner has, power under s 18(1)(b) and (c) to compel answers or to produce documents. Since the legislature made explicit provision for such powers in s 18 it should not be construed as intending that the same powers arose by implication in s 17 of the same Act. The legislature did not intend to confer such a power twice.

Secondly, had the legislature intended that s 17(1) should have effect with respect to an inquiry under the Casino Control Act it could easily, and would, have said so in plain terms, as explained by the primary judge (J[39] – [42]). Since the legislature elected not to do this there is no basis for trying to divine such an intention through a process of implied ‘corresponding’ powers. As held in Bropho v Western Australia (1990) 171 CLR 1 it is in the last degree improbable that the legislature would abolish fundamental rights without expressing its intention with irresistible clarity (at 18).

Thirdly, and more generally, the Attorney’s entire approach of searching for a relevant power in s 17(1), then asking whether that power has been picked up and applied by s 143A(1)(b), is misconceived. The true issue is whether a witness’s right or privilege has been abrogated, not whether the Commissioner has any particular power”. (emphasis in original).

60. With respect to the Attorney’s argument based on the words “(except for section 17(4) and (5))” (see [54] above), Melco submitted that such words:

“…certainly do not abrogate privilege by clear terms. Nor could it be said they do so by implication, let alone ‘necessary’ or ‘irresistible’ implication. The words in parentheses limit or confine the powers conferred on the Commissioner, they do not expand them. And in any event… the issue is not about a conferral of powers on a Commissioner but rather a potential abrogation of the witness’s rights”.

Ground 2

61. In relation to ground 2, the Attorney submitted that the primary judge erred in her construction of s 143A(2) of the CC Act, on the basis that her Honour’s reasoning:

“…does not, with respect, properly address the intended operation of s. 143A(2). The qualification exception to which Adamson J referred is in fact an indication that Div 2 of Part 2 can apply to witnesses, depending upon the operation of s. 143A(1)(b). It is illogical to posit that since s. 143A(1)(b) is concerned with powers and authorities it cannot speak to the position of witnesses under s. 143A(2). The clear significance of the text is that where the powers and authorities of a commissioner are conferred on a person presiding at an inquiry through the mechanism of s. 143A(1)(b), the legislature intended that there is a corresponding effect for witnesses through s. 143A(2). Relevantly, that includes witnesses becoming subject to s. 17 of the Royal Commission Act”. (emphasis in original).

62. Melco submitted that the Attorney’s argument fails because s 17(1) was not a power or authority conferred on the Commissioner by s 143A(1)(b). This was essentially the reasoning that commended itself to the primary judge. Further, Melco submitted that, had the legislature intended that the effect of s 143A(2) was that s 17(1) of the RC Act would apply to witnesses at an inquiry under the CC Act, it could and would have achieved that outcome by the simple expedient of identifying s 17(1) as one of the provisions applying to witnesses at such an inquiry. In oral submissions, Mr Finch SC for Melco contrasted the language of s 143A(2) of the CC Act with what he submitted was the far clearer abrogation of legal professional privilege in s 4 of the James Hardie (Investigations and Proceedings) Act 2004 (Cth).

Use of secondary materials

63. Both parties made submissions in relation to the extent to which it was legitimate to resort to secondary materials in construing ss 143A(1)(b) and 143A(2) of the CC Act. In this context, the Attorney submitted that the primary judge:

“…did not seek to rely on the secondary material for the confined and orthodox purpose of identifying the purpose sought to be achieved, or mischief sought to be addressed… Rather, her Honour drew from that material that the legislature was assured that ‘the effect of s 143A was not such as to abrogate significant rights’ (Reasons at [40]) such that members of the legislature would have been ‘misled’ (Reasons at [41]) if the legislation in fact had the effect of abrogating privilege. Her Honour appears to have proceeded from this assessment to a conclusion that s. 143A is not to be construed as abrogating privilege. In doing so, her Honour departed from the text as enacted and resorted instead to a process of divining what members of the Parliament may have had in mind when they enacted that text”.

64. Melco countered that the primary judge was not engaging in:

“…an exercise in delving into the subjective intentions of those promoting or passing the relevant legislation. Rather the primary judge’s observation was supportive of the proposition that construed objectively the purpose sought to be achieved by s 143A as revealed by the extrinsic materials was the opposite of that for which the Attorney contends”.

Consideration

A preliminary matter

65. Both s 17(1) of the RC Act and s 143A(2) of the CC Act refer respectively to “[a] witness summoned to attend or appearing before the commission” and to “any witness summoned by or before the person presiding at the inquiry”.

66. At first instance, the arguments advanced by both parties assumed that Melco was a “witness” and no point was taken that, as Melco could not be a witness (because it was a corporation), whatever the proper construction of s 143A was, s 143A(2) could not apply to it for that reason cf. Melbourne Steamship Co Limited v Moorehead (1912) 15 CLR 333 at 344–345 and 347; [1912] HCA 69; Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; [1976] HCA 53; Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 at 513; [1993] HCA 74. Similarly, it was not contended that because s 17(1) of the RC Act referred to a “witness summoned to attend”, it could not apply to a corporation such as Melco.

67. The Court raised with both parties the correctness of this assumption. Melco did not seek to contend that if s 143A of the CC Act, on its proper construction, gave effect to s 17(1) of the RC Act, it nonetheless did not apply to it because a corporation could not be a “witness”.

68. In our opinion, the reference to witness in s 17(1) of the RC Act and in s 143A(2) of the CC Act extends to include a corporation summoned to produce documents. This is so for at least five reasons.

69. First, the reference to a “witness summoned to attend or appearing before the commission” in ss 11(1), 11(3) and 17(1) of the RC Act must be a reference to a “witness” summoned pursuant to s 8 of that Act. That “witness” may be a corporation as, notwithstanding its heading, s 8 refers to a “person” summoned to attend the commission, and “person” includes a corporation: see [25] above. Similarly, a “person” (including a corporation) summoned to give evidence or produce documents may be punished for not complying with a summons: s 19(1) of the RC Act.

70. Second, s 8 of the RC Act is headed “Witnesses” but, as we have pointed out at [69] above, it applies to “persons” which, by s 21 of the Interpretation Act, includes corporations. The section does not itself use the words “witness” or “witnesses” other than in its heading.

71. Because the heading to s 8 of the RC Act formed part of that Act prior to 1 February 1981 (being the date on which s 3 of the Interpretation (Amendment) Act 1980 (NSW) commenced), it may be taken to be part of the Act: Interpretation Act s 35(3). As such, it may be taken into account in the construction of the RC Act and, in so doing, it may be seen to support a construction that persons summoned, inter alia, to produce documents are “witnesses” for the purposes of the RC Act.

72. Third, where the same term is used in cognate legislation, the same meaning should be accorded to it: Lennon v Gibson and Howes Limited (1919) 26 CLR 285 at 287; [1919] AC 709 at 711–12; Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [131]; AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [76]. Thus, when s 143A(2) of the CC Act refers to a “witness summoned by or before the person presiding at the inquiry” in circumstances where, subject to exceptions, the section applies the RC Act to such a person, it is reasonable to proceed on the basis that the legislature which amended the CC Act intended the word “witness” in s 143A(2) to have the same meaning as “witness” in the RC Act. As has been illustrated at [69] above, witness in the RC Act is described in terms of a person summoned to produce documents, which includes a corporation so summoned.

73. Fourth, although corporations cannot of course literally be “witnesses” or, for that matter, produce documents in answer to compulsory process, they can do so by their proper officers. In Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 at 662 (Penn-Texas), Lord Denning MR observed:

“I think that a limited company can give testimony.  It can give it by its proper officer. It does so whenever it makes an affidavit of documents or answers interrogatories.  It can also do so when it produces documents under a subpoena duces tecum.  It may be that a limited company cannot give evidence at large in answer to a subpoena ad testificandum.  The first ruling in Penn-Texas (No. 1), if correct, shows that it cannot.  But I am clearly of opinion that it can give evidence as to documents in answer to a subpoena duces tecum.” (footnote omitted).

His Lordship’s observations were made in the context of a consideration of s 1 of the Foreign Tribunals Evidence Act 1856 (UK) which provided for the taking of the evidence of a “witness” on commission in the United Kingdom, and whether or not a corporation through its proper officer could be subjected to such a process. It was held by both Lord Denning and Pearson LJ that the company could be required to give evidence “as a witness” under the Act, to the extent of attending by its proper officer and producing documents to the examiner.

74. Lord Denning’s reasoning would apply equally to a claim for privilege on behalf of a corporation. The proper officer gives evidence on behalf of the corporation in order to establish the corporation’s claim to privilege.

75. Penn-Texas was referred to with approval by Sir Anthony Mason in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 146; [1982] HCA 66, who said that “[t]he production of documents by a corporation stands in a special position”. His Honour went on to observe that:

“In the past it seems to have been thought that a problem arose by reason of the corporation's inability to give evidence. This problem can be avoided by serving a subpoena on the corporation itself, requiring it, by its proper officer, to give evidence and produce the documents.” 

76. No point was taken in the present case that the summonses to produce documents were not addressed to the proper officer of Melco, it being accepted that the proper officer could have been summoned to produce documents on the company’s behalf: see, generally, R v Ronen (2004) 62 NSWLR 707; [2004] NSWCCA 67 at [29]–[40]; see also MacDonald v Australian Securities Commission (No 2) (1994) 48 FCR 210 (MacDonald). Further, any claim for privilege on the company’s behalf would generally have to have been made or supported by evidence on oath, which obviously requires an authorised officer of the company to give evidence in support of the claim: see Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7] and [27] as to the need for claims of privilege to be supported by evidence on oath “so that the court can determine their sufficiency”; see also Uniform Civil Procedure Rules 2005 (NSW) r 1.9(5) (UCPR).

77. Fifth, to construe the reference to “witness” in ss 11(1), 11(3) and 17(1) of the RC Act and the cognate reference to “witness” in s 143A(2) of the CC Act as not including a corporation would leave a gaping hole in the structure of the former Act and be quite antithetical to the evident purpose of both Acts. Section 33 of the Interpretation Act requires a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) and that construction is required to be preferred to a construction that would not promote that purpose or object. A similar approach was taken by Hill J in an analogous case: see MacDonald at 217.

Power: conferral and extent

78. There is no question that Ms Bergin had power to issue the summonses to produce documents by virtue of s 143A(1) of the CC Act and s 8 of the RC Act. Section 18 of the RC Act, insofar as it invests a commissioner with the same powers as a Supreme Court judge in relation to compelling the production of documents, was an additional source of power authorising the issue of the summons for production of documents in the present case. But a Supreme Court judge may not compel the production of documents over the objection of a person who seeks to claim legal professional privilege, unless and until that objection is overruled: see UCPR rr 1.9(3) and (4); cf Meteyard v Love (2005) 65 NSWLR 36; [2005] NSWCA 444 at [129]–[132].

79. Both ss 8 and 18 of the RC Act must be read together with s 11(2)(a) of that Act, which relieves a person required by a commissioner to answer any question or to produce documents from the obligation to do so “if the witness has a reasonable excuse for refusing”. A substantiated claim for legal professional privilege would supply such an excuse. But s 17(1) of the RC Act, in abrogating legal professional privilege in a case in which s 17(1) applies, means that such a claim would not, in those circumstances, provide a “reasonable excuse” within the meaning of s 11(2)(a) of the RC Act.

80. In this way, s 17(1) is a provision which extends the power of a commissioner who meets the qualifications set out in s 15 of the RC Act. It does so by removing an immunity from powers of compulsion, the true character of legal professional privilege being a freedom or immunity from the exercise of legal power or control: Glencore International AG v Commissioner of Taxation [2019] HCA 26 at [12] – [23]; (2019) 372 ALR 126 (Glencore). As a unanimous High Court said in Glencore, “[t]he privilege was granted by the law to render a person immune from powers of compulsion”: at [16]. In this context, Melco’s submission that s 17(1) does not operate as an extension of power because the power to compel the production to documents rests in s 18 of the RC Act which requires no extension must be rejected.

81. We accept the Attorney’s overall submission that “[t]he powers of the commissioner are conferred and defined by the combined operation of Divisions 1 and 2 (in particular, ss 8, 11, 17, 18 and 18A–18D)”. A similar approach to statutory construction, in an analogous context, was followed by Sheppard J in Toohey v Lewer [1979] 1 NSWLR 673 at 678–681.

82. The Attorney’s submission highlights the importance of the oft-quoted injunction against construing a section of a statute “in isolation from the enactment of which it forms a part” (K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315; [1985] HCA 48), and the concomitant need to construe any given statute as a whole: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320; [1981] HCA 26; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky).

83. We have noted above that, at [38] of her judgment, the primary judge described as having “considerable attraction” the Attorney’s contention at first instance that s 17(1) of the RC Act “in substance” conferred a power, “since it contains within it an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege”. We agree with her Honour’s description of that contention.

84. The contention which the primary judge found attractive is consistent with the fact that s 17(1) falls within Division 2 of Part 2 of the RC Act which is headed “Special powers”, and whilst Mr Finch was correct to point out that not every section within Division 2 of Part 2 entailed the conferral of a power, pointing to ss 15, 18A and 18B(3) in particular, none of those sections, unlike s 17, contained an implied correlative right or power.

85. The submission is also consistent with a number of decisions of this Court in relation to s 17(1) of the RC Act to which, as we have noted above, the primary judge was not referred. Thus, in Thelander v Woodward [1981] 1 NSWLR 644 at 645–646, Moffitt P described ss 17 and 18 of the RC Act as, together, a “powerful weapon” and as providing “a powerful means of ascertaining what has occurred”. His Honour read ss 17 and 18 of the RC Act together, consistently with the argument advanced by the Attorney in the present case. In Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 at 531, Sheller JA, with whom Meagher JA agreed, said:

“The intention of s 17(1) is to enable the Commission to obtain evidencefrom a witness whether or not any answer or the production of any documentmight criminate or tend to criminate the witness or the witness would beotherwise excused from answering or producing the document on the ground of privilege or on any other ground.” (emphasis added).

86. This case law has an added significance because it forms part of the context against which s 143A of the CC Act is to be construed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 at [12]. Thus, in conferring upon a person referred to in s 143A(1)(b) of the CC Act the “powers and authorities” conferred on a commissioner by Part 2 Division 2 of the RC Act, the legislature should be taken to have been aware of the meaning attributed to s 17 of the RC Act by decisions of this Court. To paraphrase Brennan J (as he then was) in Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319 at 323; [1991] HCA 28, s 143A of the CC Act should be construed in light of the law as it stood when s 143A was enacted.

87. The Attorney’s contention that s 17(1) of the RC Act confers a power or authority on a commissioner (and therefore, by operation of s 143A(1)(b) of the CC Act, on Ms Bergin) is further and perhaps most significantly supported by the fact that, in s 143A(1)(b) of the CC Act, the legislature has treated it as conferring a power. That section, it will be recalled, confers on the inquirer “the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17 (4) and (5))”. (emphasis added).

88. As a matter of ordinary English, the parenthetical exception necessarily treats the balance of s 17 of the RC Act and, most relevantly for present purposes, s 17(1), as conferring a power. Were it otherwise, the parenthetical exception would be otiose, contrary to a basic canon of statutory construction: Commonwealth v Baume (1905) 2 CLR 405 at 414 and 419;[1905] HCA 11; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12–13; [1992] HCA 64; Project Blue Sky at [71].

89. Melco struggled to identify in its submissions any convincing answer to this argument or to explain what work the words “(except for section 17 (4) and (5))” did, submitting that “the Court is not required for the purposes of this application to determine in a general sense the metes and bounds of the words in parentheses in s 143A(1)(b)”. Melco asserted that “[i]t is not easy to determine in a general sense the precise effects and consequences of the words in parentheses in s 143A(1)(b), because ss 17(4) and (5) of the Royal Commissions Act do not confer any powers on a person conducting an inquiry under the Casino Control Act”. Melco’s first submission is, with respect, heterodox. Its second submission is in the face of what we consider to be the obvious meaning of the parenthetical exception, read in the context of s 143A(1)(b) as a whole. In response to the Chief Justice’s question in the course of argument “if s 17 wasn’t a conferral of power, why would it be necessary to put in that exclusion at all?”, Mr Finch was constrained to concede that “it’s difficult to say”.

90. The primary judge’s observation at [43] of her reasons to the effect that ss 17(4) and (5) of the RC Act were expressly exempted in s 143A(1)(b) of the CC Act because the Governor does not and could never have a role in the creation of an inquiry under the CC Act leaves pregnant the question why the balance of s 17 of the RC Act was not excluded.

91. In this context, the Attorney drew a contrast between s 143A(1)(b) of the CC Act and s 474G of the Crimes Act 1900 (NSW) as it stood at the time of the passage of s 143A of the CC Act (see now Crimes (Appeal and Review) Act 2001 (NSW) s 81(2)). Section 474G of the Crimes Act was concerned with the procedure for an inquiry into a conviction or sentence. Section 474G(2) provided:

“The prescribed person conducting the inquiry has:

(a) the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and

(b) in the case of a person who is a Judge of the Supreme Court or whose instrument of appointment under this section expressly so provides, the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17).”

92. The Attorney also highlighted a tension in the construction favoured by the primary judge and supported by Melco, submitting that:

“Melco’s position, and that of the primary judge, is that s 17 does not fall within the ‘powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act’. If that is right, then there would be no point in the legislature exempting any part of s 17 from application. It must follow from the adoption of the words in parentheses that the legislature considered that s 17 otherwise formed a part of the powers and authorities of the commissioner that are picked up by s 143A(1)(b) of the Casino Control Act. Once that is recognised, the role of the words in parentheses becomes plain: they are to make clear that s 17(1) applies in the context of an inquiry under s 143 of the Casino Control Act without any declaration by the Governor being made.”

93. For all of the above reasons, we consider that s 17(1) of the RC Act was an important and integral element of the powers conferred on a commissioner and, as such, by virtue of s 143A(1)(b) of the CC Act, was a power that was also vested in Ms Bergin in the conduct of her important inquiry. Melco accepted that if s 17(1) was properly characterised as a power, then s 143A(1)(b) operated to abrogate any privilege in documents the subject of a summons for production.

A more direct route

94. As has been noted earlier in these reasons, the course of argument at first instance focussed almost exclusively on whether or not s 17(1) of the RC Act involved the conferral of a power on a commissioner within the meaning of s 143A(1)(b) of the CC Act. That course of argument was reflected in the primary judge’s detailed reasons.

95. In many respects, however, a more direct answer to the question of whether or not Melco was required to produce privileged documents is supplied by s 143A(2) of the CC Act, which in terms is directed to the application of the RC Act to a “witness summoned by or before the person presiding at the inquiry”. Melco was such a “witness”.

96. The terms of s 143A(2) of the CC Act, it will be recalled, are as follows:

“The Royal Commissions Act 1923 applies to any witness summoned by or before the person presiding at the inquiry (except for section 13 and, subject to subsection (1) (b), Division 2 of Part 2).”

97. Thus the short but key question is whether, on its proper construction, s 143A(2) of the CC Act was engaged, so that s 17(1) of the RC Act applied to Melco. The answer to this question does not depend upon whether or not s 17(1) of the RC Act confers a power or authority on a commissioner (although, for the reasons expressed above, in our view it does).

98. Were it not for the words “(except for section 13, and subject to subsection (1)(b), Division 2 of Part 2)”, s 143A(2) would provide a very clear and unequivocal answer to this question. Indeed, were it not for the phrase “subject to subsection (1)(b)” within the parenthetical exception, the answer would also be clear, viz. that the RC Act (other than s 13 which falls within Part 2 Division 1, and Part 2 Division 2, which includes s 17(1)) applied to any witness summoned to give evidence and produce documents.

99. But it is necessary to give meaning to the phrase “subject to subsection (1)(b)” within the parenthetical exception contained in s 143A(2) of the CC Act. In our opinion, that phrase conditions the application of Division 2 of Part 2 of the RC Act to witnesses. It creates a qualification to the carve out from the operation of s 143A(2) of the CC Act. The exception, which otherwise would apply, does not apply when the relevant inquiry is being conducted by a person having one of the two qualifications referred to in s 143A(1)(b). As Ms Bergin was such a person, the whole of the RC Act (with the sole exception of s 13) applied to a witness such as Melco summoned to produce documents to the inquiry.

100. This construction is consistent with the structure of Part 2 of the RC Act, which, as has been noted, is divided into two Divisions, with the “Special powers” granted by Division 2 only being able to be exercised by certain types of commissioners, namely those described in s 15(1) of the RC Act. Similarly, the Division 2 “[s]pecial powers” may only be exercised in an inquiry under the CC Act by certain types of persons, namely those described in s 143A(1)(b).

101. The phrase “subject to subsection (1)(b)” in s 143A(2) in context means that a witness is excepted from the application of Division 2 of Part 2 of the RC Act, unless the inquiry is being presided over by a person meeting the description contained in that subsection. As the Attorney submitted in his written submissions in reply:

“In light of this, if Melco is right that s 17(1) is not part of the ‘powers and authorities conferred on a commissioner’ by Part 2 of Division 2 of the Royal Commissions Act, and is instead to be treated as a provision solely ‘concerned with the rights and privileges of witnesses’, then it applies in the context of the Inquiry by reason of s 143A(2).”

102. If, of course, Melco is wrong in relation to the “power” question (as we have held it is), the construction of s 143A(2) which we favour means that s 143A(2) complements s 143A(1). That in itself is a reason for preferring the two constructions for which the Attorney contended and which we have accepted.

Extrinsic materials

103. The construction of the Act which we favour does not depend on, and is not influenced by, any extrinsic materials. As the plurality stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention”.

104. Subject to one point, it is not necessary, in our view, to enter into any consideration of the primary judge’s use of extrinsic materials, notwithstanding the arguments developed in relation thereto: see [63]–[64] above.

105. The one point that should be made, however, relates to the primary judge’s reference at [40] of her reasons, extracted at [41] above, to the Minister’s observation in the Second Reading Speech in relation to the amendments that led to the introduction, inter alia, of s 143A of the CC Act, namely that the amendments would “ensure that witnesses [who were compelled to give evidence] have the same protection as witnesses who give evidence in a Supreme Court proceeding”. It is evident that the primary judge considered that an ability to claim legal professional privilege was a component of the “protection” to which the Minister referred. Four matters may be observed.

106. First, the purpose identified by the Minister was achieved by s 143A(2)’s application of s 11(3) of the RC Act (which falls within Division 1 of Part 2) to witnesses. Section 11(3) provides that “[a] witness summoned to attend or appearing before the commission shall have the same protection … as a witness in any case tried in the Supreme Court.”

107. Second, the fact that s 11(2) of the RC Act establishes a regime for the assertion and upholding of non-production of documents, which, to that extent and subject to s 17(1), qualifies a commissioner’s powers of compulsion, provides a strong textual indication that whatever “protection” the Minister may have been referring to in his Second Reading Speech, it was not the protection afforded by legal professional privilege, as that subject matter was already dealt with in s 11(2) of the RC Act.

108. Third, the “protection” to which provisions such as s 11(3) of the RC Act and s 6 of the same Act (which affords “protection” to commissioners) has been conventionally held to refer in cognate legislation is to the immunity from suit enjoyed by both judges and witnesses in respect of their participation in a trial. Thus, in Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 (Cabassi), Starke J observed (at 141) that “[t]he law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice” (emphasis added). In his frequently cited decision in Sirros v Moore [1975] QB 118 at 132, in relation to a judge’s cognate immunity from suit, Lord Denning MR observed that:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege.” (emphasis added).

Similarly, in Fingleton v R (2005) 227 CLR 166; [2005] HCA 34 at [38]–[39], Gleeson CJ said:

“This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest.” (emphasis added).

The Earl of Halsbury also deployed the language of “protection” when describing a witness’s immunity from suit in Watson v M’Ewan [1905] AC 480 at 486; see also Calvin v Carr [1977] 2 NSWLR 308 at 340–341; Carruthers v Connolly [1998] 1 Qd R 339 at 378; Nisselle v Brouwer (2007) 16 VR 296 at [96]–[101]; [2007] VSC 147.

109. Fourth, it is not apparent from the Second Reading Speech precisely what “protection” the Minister was referring to when he made the statement picked up by the primary judge at [40] of her judgment. It may have been to the immunity enjoyed by witnesses, as considered and confirmed by the High Court in Cabassi. On the other hand, the Minister in the Second Reading Speech may have been referring to some other protection instead of, or in addition to, witness immunity. We have already observed that the Minister spoke of the “same protection”, not the “same protections”, and her Honour’s reference to “protections” in the plural at [40] of her judgment appears, with respect, to have been in error: see [41] above.

110. Whether anything turns on whether the Minister was intending to refer to one or more protections in his Second Reading Speech may be debated. That one is left to speculate, however, as to what “protection” or “protections” the Minister was referring to only illustrates the dangers and potential pitfalls that resort to extrinsic materials may have. As French CJ and Hayne J observed in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25]:

“The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted.” (footnote omitted).

Conclusion and orders

111. For the above reasons, the appeal should be allowed with costs, the orders made by the primary judge set aside and in lieu thereof it be ordered that the Commercial List Summons be dismissed with costs.

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Decision last updated: 12 March 2020