Daniels Corp International & Anor v Australian Competition and Consumer Commission

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S27 of 2002

B e t w e e n -
THE DANIELS CORPORATION INTERNATIONAL PTY LTD AND MEERKIN & APEL (A FIRM)
Appellants
and
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent
Appeal

Office of the Registry
Sydney No S238 of 2001

B e t w e e n -
WOOLWORTHS LIMITED
Plaintiff
and
ALLAN HERBERT MILLER FELS
First Defendant
AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Second Defendant
Case Stated

Office of the Registry
Sydney No S249 of 2001

B e t w e e n -
COLES MYER LIMITED
First Plaintiff
LIQUORLAND (AUSTRALIA) PTY LTD
Second Plaintiff
and
ALLAN HERBERT MILLER FELS
First Defendant
AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Second Defendant
Case Stated

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 18 JUNE 2002, AT 10.17 AM

_____________________

MR N.J. YOUNG, QC: May it please the Court, in the first matter I appear with my learned friend, MR S.E. MARKS, for the appellants. (instructed by Meerkin & Apel)

MR S.J. GAGELER, SC: If the Court pleases, in the second and third matters I appear with MR P.R. WHITFORD for the plaintiffs. (instructed by Clayton Utz and instructed by Allens Arthur Robinson)

MR A. ROBERTSON, SC: May it please the Court, in the first matter I appear with my learned friend, MR J.C. SHEAHAN, SC, for the respondent. (instructed by Corrs Chambers Westgarth)

MR J.C. SHEAHAN, SC: May it please the Court, in the second and third matters I appear with my learned friend, MR P.J. RENEHAN, for the defendants. (instructed by the Australian Government Solicitor)

GLEESON CJ: I understand these matters are to be heard together.

MR SHEAHAN: Yes, your Honour.

GLEESON CJ: I understand the parties have been notified that I hold some shares in Woolworths Limited, and nobody wants to suggest that on that account I should not sit.

McHUGH J: I also hold shares in Woolworths Limited and I understand that there is no objection to my sitting.

GLEESON CJ: Yes, Mr Young.

MR YOUNG: In this matter it is our submission that the Full Federal Court fell into error by critically holding that the general language of section 155(5)(a) determined the issue as to whether legal professional privilege had been abrogated or not. The Full Court arrived at that result by essentially two steps that, we say, involved error.

First, it is our submission that the court, in construing the provision, failed to apply the correct principles of statutory construction. Secondly, it will be our submission that the court failed to recognise the significant differences between legal professional privilege, on the one hand, and privileges against self‑incrimination and exposure to a penalty, on the other hand, and that error led their Honours to hold that the decision of this Court in Pyneboard, which concerned the privilege against exposure to a penalty, in effect, determined the result by the way in which that court approached that different privilege.

KIRBY J: That is not quite admissible, is it? Justice Wilcox said that it had to be acknowledged that Pyneboard, as a matter of technicality, did not require the result in this case.

MR YOUNG: He did, your Honour, but he also considered that there were considered statements in Pyneboard directed towards legal professional privilege, which we say was an error.

KIRBY J: I am just making the point that he recognised that as a matter of ratio decidendi Pyneboard did not bind him to the result he reached.

MR YOUNG: Yes, your Honour. Now, we start our submissions with several propositions which are not debatable but it is important that we enunciate them as the platform for our submission.

The first is that legal professional privilege is a substantive and fundamental common law doctrine. Without going to it, may I invoke some of the language used by Justices Gummow and Gaudron in the Goldberg Case. Justice Gummow described the rule as a rule of law that provides “a practical guarantee of fundamental rights” at page 120 to 121 of Goldberg. In the same case Justice Gaudron described the principle as a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts. Statements to like effect appear in many decisions in this Court.

The second general proposition is that legal professional privilege reflects the outcome of a balancing process between two competing public interests. On the one hand, the public interest in the administration of justice which is assisted and enhanced by legal professional privilege and, on the other hand, the more general public interest that requires, in the context of a fair trial, that litigation be conducted on the footing that all relevant evidence is available. Legal professional privilege reflects the paramountcy of the first of those public interests. Where the privilege attaches, it is conclusive and there is no occasion for any further balancing process. That proposition is drawn from this Court’s decision in Waterford and in Carter and from the recent House of Lords decision in Morgan Grenfell, to which I will come.

Thirdly, and uncontroversially, the privilege extends to all forms of compulsory disclosure unless Parliament unmistakably excludes or confines it. Baker v Campbell, of course, decided that. But we draw attention to this statement by Justice Deane in Baker v Campbell at page 116:

the privilege would represent an aberration of the common law if it withheld from the courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents.
The fourth and final proposition is that legal professional privilege is not to be assimilated with self-incrimination or exposure to penalty privileges. They have different origins, serve different purposes and rest upon different public policy considerations. In support of that proposition we refer to the judgments of the members of the Full Court in the Compass Case. Justice Lockhart at page 454 to 455 and Justices Beaumont and Gummow, as your Honour then was a judge of the Federal Court, at page 463 to 464.

KIRBY J: Have you not left out the first and primary obligation of every court construing legislation, namely that the first rule is to go to the statute and to give it its normal natural meaning? Is that not the starting point, as this Court has repeatedly said in so many cases recently where statutes are before the Court?

MR YOUNG: Yes, your Honour. I did not mean to suggest that we are not going to go to the statute and to apply established rules of construction.

KIRBY J: This is the point Justice Moore makes. Justice Moore makes this point that really all the common law principles are important but the first duty is to go to the statute and derive the meaning from the statute.

MR YOUNG: Yes, your Honour, but we would submit that that must be done in accordance with established principle and our case is that whilst their Honours had primary regard to the language in subsection (5)(a), they did so in a way that did not give effect to established principles of statutory construction. I will develop that point immediately, if I may, your Honour. It is our submission that the crux of the Full Court’s reasoning was to the effect that the general words in that subsection (5)(a) abrogated the privilege.

GUMMOW J: Yes. That seems to be part of their problem. They did not start with the statute. You start with 155(1).

MR YOUNG: Exactly, your Honour.

GUMMOW J: There is an offence section, but unless you have a notice that answered 155(1) you cannot have an offence.

MR YOUNG: We agree entirely with your Honour and we say in a way it goes a little bit deeper. If your Honour looks at section 155(1), the power to give a notice is perfectly general and it permits notice to be given to a range of persons in a range of circumstances provided that there is a foundation situation of a reason to believe:

that a person is capable of furnishing information . . . relating to a matter that constitutes, or may constitute, a contravention of this Act –

and then the section goes on to deal with other circumstances –

or is relevant to a designated telecommunications matter (as defined by subsection (9)) –

which that subsection expands to mean:

a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under –

the Acts mentioned and certain parts of the Trade Practices Act. Thirdly, and I am going back to subsection (1):

or is relevant to the making of a decision by the Commission under subsection 93(3) or (3A) –

Now, 93(3) and (3A) relate to the circumstance where a notification is given of exclusive dealing and the Commission has power either to decide to remove the protective effect of that notice or to continue it.

So that is not even dealing with the situation of contravention. So we would agree with your Honour Justice Gummow that the first thing to do is to look at the scope of the power in section 155(1).

We make the point that it is exercisable in a range of circumstances not confined to circumstances where there is suspected to be a contravention of the Act. Secondly, a notice can be given to any person, not just the person suspected of the contravention. In many cases, notices are given to persons simply because it is believed that that person, although not suspected of having been involved in a contravention, is capable of providing information, documents or evidence relating to a matter.

As this Court has said on a number of occasions the expression “relating to” are words that connote a connection but it may be a quite wide connection.

HAYNE J: What is to be understood by the word “capable”? What sort of capacity is there being spoken of?

MR YOUNG: It is part of a single phrase, your Honour, “has reason to believe that a person is capable”.

HAYNE J: I understand that.

MR YOUNG: And therefore it is directed to the existence of a reason to believe on the part of the Commission that a person is able to provide information or documents or evidence.

HAYNE J: But “ability” could be understood in terms of physical ability. Does it carry with it any echo of legal capacity?

MR YOUNG: Well, it may, your Honour. There is no reason why a notice could not be given to somebody who is capable of accessing documents through the exercise of legal rights.

KIRBY J: Do you say your client was not capable of furnishing information?

MR YOUNG: No, we do not say that my clients, either of them, your Honour, were incapable of producing the documents.

GAUDRON J: What about their solicitors? Were notices given to your clients’ solicitors?

MR YOUNG: The notices in question were given to my clients’ solicitors.

HAYNE J: Why were they capable?

MR YOUNG: I was answering his Honour Justice Kirby in terms of the question which I understood to ask about physical capacity.

KIRBY J: But the solicitors have been added by order of Justice Wilcox as a party, have they not?

MR YOUNG: That is so.

KIRBY J: And they are represented by you?

MR YOUNG: Yes.

KIRBY J: So that my question was, was either capable? You say physically, yes, but certainly in terms of the lawyers, they might have a problem of capacity by reason of the rule of professional privilege ‑ ‑ ‑

MR YOUNG: That is so. The lawyers are bound to preserve the clients’ privilege and so, as a matter of law, they were not free to comply. As a matter of physical ability they had the documents in their possession and there was no physical impediment to delivery.

KIRBY J: Pyneboard gave a lot of attention to that phrase, did it not?

MR YOUNG: It gave attention to that phrase, your Honour, but in a context in which the more general consideration was the Mortimer v Brown consideration as to whether or not the privilege against exposure to a penalty would stultify the operation of the Act.

KIRBY J: A very important step in the reasoning of the Full Court here was that, essentially that phrase “is capable of furnishing information” was given an interpretation in Pyneboard and that that was the interpretation that has been picked up in other statutes and it must be now regarded as a sort of dictionary.

MR YOUNG: Yes, your Honour.

KIRBY J: I think Justice McHugh took that view in a later case, in the case where Justice Gaudron and he dissented.

MR YOUNG: Your Honour is thinking of Yuill.

KIRBY J: Yes.

MR YOUNG: Yes.

KIRBY J: Yes, I remember Yuill very well.

MR YOUNG: But we will, your Honour, take issue with the suggestion that that is how his Honour Justice McHugh’s judgment is to be read. But the Full Court did not fasten on the words in subsection (1). It fastened on like words in subsection (5)(a). It went directly to them and, indeed, it is apparent that Justice Wilcox was more or less proceeding on the presumption that the power was directed to those suspected of being involved in the contravention. His Honour, in fact, says that on two occasions and that is a mistaken view of the ambit of the power.

McHUGH J: You have to construe subsection (1) first. I mean you can test it before you come to subsection (5). You can test it by a case where the Commission directed the request to a firm of solicitors and asked them to produce certain documents which were identified as being legally privileged. The question is, could you give a notice within 155(1) to that effect?

MR YOUNG: Yes, that, we say, is the correct approach, your Honour.

McHUGH J: If on the proper construction there is no power to do that, then 155(5) has nothing to say.

MR YOUNG: We would agree, your Honour. In support of that ‑ ‑ ‑

McHUGH J: The real question is whether or not 155(1) is narrowed by the common law presumption that the legislature does not interfere with legal professional privileges or other fundamental rights.

MR YOUNG: Yes. Can I say two things in response, your Honour. As to construction, we agree with your Honour. We would point to the words in subsection (5)(a) “under this section”. The compliance provision only attaches if the notice is properly given under the section. Therefore, the question of the authority to give the notice in the first place must be the governing issue of construction.

Secondly, in response to what your Honour said, we would not quite put it the same way. We would not suggest that the governing rules of construction suggest that it is a question of whether subsection (1) is narrowed. Rather, it is a presumption that general words are not to be given a reach, even if their literal meaning permits it, that would abrogate fundamental common law rights.

McHUGH J: Yes, I do not disagree with that.

MR YOUNG: I did mention that Justice Wilcox spoke of the section as if it was confined to those involved in a contravention. We found that observation on a passage at page 114 of the appeal book, at paragraph 57, second sentence where his Honour uses the expression “that involves a contravention”.

KIRBY J: I do not quite understand the error that you are saying that involves.

MR YOUNG: It is simply this, your Honour, that the ambit of section 155(1) extends to the giving of a notice to many persons not suspected of contraventions ‑ ‑ ‑

KIRBY J: I see.

MR YOUNG: ‑ ‑‑ and in circumstances where there is no question of contravention.

GLEESON CJ: There is also anther important aspect of the ambit of subsection (1), is there not, that helps to explain, I would have thought, subsection (5)(a)? The Commission only has to have reason to believe that a person is capable of doing something to give the notice, but the belief may be erroneous, and I would have thought at least part of the explanation of subsection (5)(a) is that in the case where the belief is erroneous, a person who fails to comply with the notice has not contravened the section.

MR YOUNG: Yes, your Honour makes a very valid and forceful point and we agree with it. That is to say, if I can take it a next step, your Honour, that we would submit that it is erroneous to read into the words that appear in subsection (5) any intention by those words to abrogate legal professional privilege.

GLEESON CJ: They are just the corollary of the way in which subsection (1) founds the obligation to comply with the notice.

MR YOUNG: Yes, and by indicating that there is a sensible meaning to be given to those words other than one that involves an intentional abrogation of the privilege, that really gives effect to the corollary of the basic principle of construction, namely, if there are two possible and reasonable meanings open, the Court should prefer that one which does not involve abrogation of the privilege.

HAYNE J: And the particular process that you are inviting is, is it, to construe the words “capable of complying”?

MR YOUNG: No.

HAYNE J: That is to invite a construction that would limit “capable of complying” in (5)(a) and “capable of furnishing” understood against the background of it being reason to believe that a person is capable of furnishing as referring to legal capacity, not simply physical capacity? Is that the path through you are inviting?

MR YOUNG: That is not the main way in which we put the submission. We do put the submission that that is the meaning to be given to “capable of complying”, but that is not really the brunt of the point that I was just making or at the forefront of our argument. That point is that those words in (5)(a) do not convey either an intention or necessary implication to abrogate the principle. The words are explicable simply on the basis that there is no offence of refusing or failing to comply if a person, regardless of the Commission’s original belief, is in fact incapable physically or legally of complying.

In other words, those words are not intended to convey any exclusivity of circumstances in which there will be an offence. They simply point to one possible ground of defence if a charge is laid. There are other grounds of defence, for instance subsection (7A). The section does not reach Cabinet documents, but no doubt the Cabinet officer is capable of furnishing the documents, but there is a defence. So he is within (5)(a) but you have an overriding provision saying the section does not require, and presumably no notice could be given that requires the production of such documents.

But there are other defences that would be available. For instance, the words “refuse or fail” connote intention. This is not a strict liability offence. There are indeed tax cases construing those words, “refusing or failing”, as requiring intentional conduct. Take the present case: my clients have made clear that we will comply with whatever the law requires. There is no intention to refuse or fail to comply with a valid notice. We have not complied pending determination of what the law requires, but that would be a defence. If we were the subject of a charge at the moment, we would defend it by saying no intentional refusal or failure to comply. The words “to the extent that” et cetera simply point to just another ground of defence.

GLEESON CJ: I am not sure it is just another ground of defence. Those qualifying words in paragraph (a), I would have thought, are the inevitable consequence of the way in which the power to give a notice is expressed in subsection (1).

MR YOUNG: Yes, I would not disagree with that, your Honour. The point I was trying to make – and perhaps I overstated it – is that that would be a defence in those circumstances but there are other defences as well. No intention to exclusively set out the circumstances in which an offence will arise should be drawn from the fact that those words appear in subsection (5)(a) rather than in some separate subsection, as has been the case since 15 December 2001.

I pointed to Justice Wilcox’s use of the expression, “involves a contravention” in paragraph 57. Can I complete that reference by asking the Court also to note paragraph 48 and in particular that part of it which appears at the top of page 112 of the appeal book. There his Honour Justice Wilcox is distinguishing the Compass Case which concerned the public examination provisions of the Corporations Law. The point of distinction was that in the public examination case there was no:

necessity for a prior finding of fraud or other default on the part of the person to be examined.

That is in the second line at page 112.

His Honour contrasts that with section 155 three lines from the end of that paragraph:

in other words, unlike in relation to s 597 of the Corporations Law, there must be some suspicion of wrongdoing.

Our submission is his Honour seems to be proceeding – we say “seems” because it is not entirely clear – on the basis of a rather confined view of the reach of section 155, that it is aimed at persons involved in wrongdoing in circumstances where there is some suspicion of wrongdoing by the recipient of the notice, and section 155 is not so confined.

In that context, can we draw attention to an observation by Justice Finn in the bankruptcy case referred to in our submissions, that is Worrell v Woods. I will not go to the case but can I simply give the Court this reference. Of the bankruptcy notice provision, Justice Finn said this at page 267 point 9 of Worrell, “The extension of the notice power to persons other than the bankrupt provides telling support for non‑exclusion of legal professional privilege.” We would say the same observation could be made of section 155(1).

GUMMOW J: What citation, Mr Young?

MR YOUNG: It is (1999) 56 FCR 264, and the passage is at 267 point 9.

GUMMOW J: Is that on your list of authorities?

MR YOUNG: It is not on the list to be read. It is referred to in our written outline of submissions, your Honour. My learned friend, Mr Robertson, corrects me. I have misstated the citation from my note. It is in fact 90 FCR 264.

KIRBY J: I realise the importance of the principle that you are arguing for and I myself applied it, and also in connection with the issue of the presumption of the retention of procedural fairness. The Court has applied that quite recently. But there has been something of a tendency, I think, has there not, in interpretation of statutes to try to avoid these presumptions. I am thinking of tax statutes or criminal statutes, and to get back to the words of the statutes.

MR YOUNG: On the contrary, your Honour. In the middle of May of this year the House of Lords applied the presumption in its full rigour to a tax case ‑ ‑ ‑

KIRBY J: Which presumption? Against ‑ ‑ ‑

MR YOUNG: Abrogation of fundamental common law rights; in that case legal professional privilege.

KIRBY J: That is privilege, but I am talking about – do you remember the old rule that you construe a tax statute so that unless it is very clear it does not burden the taxpayer.

MR YOUNG: Yes, your Honour.

KIRBY J: I think that has gone out the window.

MR YOUNG: Your Honour is referring to the second limb, as it were, of Potter v Minahan.

KIRBY J: Yes.

MR YOUNG: That is you construe a statute so as not to disturb the existing legal situation.

KIRBY J: That is right. It really is rooted in the notion that common law is the glorious heritage of us all and that statute is an aberration to be confined as far as possible.

MR YOUNG: Yes. I am conscious that your Honours Justice Kirby and Justice McHugh discussed the matter in Malika, which was the section ‑ ‑ ‑

KIRBY J: I had forgotten; Malika was it?

MR YOUNG: Malika was the section 167 of the Customs Act being the exclusive way of contesting an assessment of customs duty.

KIRBY J: But is it not fair to say that the tendency of this Court is, in terms of tax statutes and statutes imposing criminal sanctions, penal sanctions, to as it were bypass those old presumptions and to go directly to the words of the statutes?

MR YOUNG: No, your Honour. Those principles have been applied in their full rigour wherever what is being addressed is recognised to be a fundamental right of the same kind as legal professional privilege. I take your Honours to the cases ‑ ‑ ‑

KIRBY J: Is it a fundamental right not to be taxed?

MR YOUNG: No. That was the point of the discussion in Malika, that the presumption is to be confined to what are truly recognised to be fundamental rights. I will take the Court to the cases, if I may, immediately.

KIRBY J: I am not saying that I am antithetical to the notion that you are putting forward, that is to say that to take away a fundamental right of the common law Parliament has to say it clearly. After all, it is not asking all that much. Has Parliament ever expressly said ‑ notwithstanding any legal professional privilege, are there such provisions in federal statutes?

MR YOUNG: No, there is not a provision that I am aware of dealing with legal professional privilege and, if we put aside the Yuill-type lawyer provision for the moment, that is because we would say that Parliament has never bitten the bullet, as it were, to use a colloquialism, it has never ‑ ‑ ‑

GUMMOW J: But there is a certain lack of fibre on the part of those who draw these statutes, because it would be picked up immediately by people who read them.

MR YOUNG: Well, the English have a more polite expression for it, your Honour. They call it the principle of legality, which forces Parliament to confront what it is doing.

GAUDRON J: Well, it tends to excite attention in the Senate – let us get real.

MR YOUNG: Yes.

KIRBY J: I feel this is a very strong point on your side, because, after all, it is not asking Parliament to do all that much, if it is going to take it away, to do it expressly and thereby to submit it to the democratic legislature.

MR YOUNG: Yes. Well, that is the principle that does apply, it has been recently reiterated a few weeks ago by the House of Lords and it applies, in our submission, in its full rigour to legal professional privilege about which there is no doubt that it is a fundamental right attracting those principles.

CALLINAN J: But let the court suffer the opprobrium of obstructing the regulator. That is the legislative approach, is it not?

MR YOUNG: Well, your Honour, the words of Justice Dawson in Baker v Campbell were that the court should not ease the way for Parliament to indirectly, or by a side wind, obliterate fundamental rights. If they are going to do it, they should do it by clear and unmistakable language.

McHUGH J: Well, this case is a good illustration, is it not? Apparently for 25 years the respondent has accepted that legal professional privilege information is exempt from the operation of 155.

MR YOUNG: Yes, your Honour.

McHUGH J: Now the Executive Government seeks to give a new interpretation.

MR YOUNG: Yes, and, indeed, this case was launched prior to the publication of a revised guideline document for section 155 by the regulator.

CALLINAN J: Test the envelope.

MR YOUNG: Yes. Can I take the Court to what we say are the most pertinent cases dealing with the principle of construction to be applied to demonstrate its rigour. Can I start with Baker v Campbell 153 CLR 52.

KIRBY J: Can I just get clear in my mind, before you go to that, Pyneboard was about the obligation of non self‑incrimination?

MR YOUNG: Non-exposure to a penalty, which is analogous to self‑incrimination.

KIRBY J: Yes. For failing to answer questions, was it not?

MR YOUNG: Yes, it was – no, I think it was producing documents on grounds of a refusal – or to produce documents on grounds that they might expose to a penalty.

KIRBY J: I can understand an argument that without being able to get a person to answer questions orally and perhaps incriminate himself or herself, there are some areas of regulation you could not get off the ground, but I find it more difficult to understand what the Full Court was saying when it said that it would be impossible to get this case off the ground without – this would only apply to the limited number of documents to which legal professional privilege attaches, would it not?

MR YOUNG: Yes, your Honour. We criticise that step because what the Full Court did was to apply some reasons that were directed towards exposure to a penalty which adhered to the Mortimer v Brown line of cases that in an investigatory context either self‑incrimination or exposure to a penalty might stultify the whole enforcement and investigation process.

KIRBY J: That is right.

MR YOUNG: They translated that across as being equally apposite to legal professional privilege and that was a conflation of the different privileges with different bases and different ambits that was impermissible.

KIRBY J: Except that, as I pointed out in Esso, there can be a tendency, especially with in‑house counsel, to label everything legal advice and thereby, as it were, build up a scope of immunity, especially now the Court has adopted a more generous test for legal professional privilege.

McHUGH J: Mortimer v Brown was the basis of Pyneboard, was it not?

MR YOUNG: Yes, your Honour.

McHUGH J: Mortimer v Brown was probably poorly argued by junior counsel who appeared for the person in that case.

MR YOUNG: I will not comment on that, your Honour. Can I just point to the relevant passages in Baker v Campbell: Justice Murphy, page 90 point 8, last two sentences of the last complete paragraph; Justice Wilson at page 96 point 9 to the top of 97. Whilst I am on that page, and apropos of your Honour Justice Kirby’s last question, I would also refer to the first full paragraph at page 96, the last two sentences commencing:

But it is for the legislature, not the courts, to curtail the operation of common law principles –

Justice Deane next at page 116 ‑ ‑ ‑

KIRBY J: Well, I said all that in Yuill, copying what was said here and I was overruled, or the Court of Appeal was overruled.

McHUGH J: It does not mean you were wrong.

MR YOUNG: No, we will direct submissions later on to the fact that, in our submission, your Honour was correct.

KIRBY J: Very likely.

MR YOUNG: And so, too, were the minority in Yuill for that matter. Justice Deane deals with the applicable principle, in the last paragraph at 116 to the top of 117. We draw attention in particular to the last sentence in that passage at the top of 117:

It is to be presumed that if the Parliament intended to authorize the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express and unambiguous terms.

The passage about aberration that I mentioned at the outset of our submissions appears at page 116 at about point 3 and, in this case as well, Justice Dawson at page 122, the middle paragraph, particularly the last sentence:

general words of statutes to be construed, if possible, so as not to effect an alteration of common law doctrines or a denial of common law rights.

Then at page 123, the first complete paragraph referring to “presumption” and at about point 8 his Honour says:

the Court should not assist that result by reading that intention into the general words of the statute.

His Honour expresses a similar sentiment at page 131 point 8, the last sentence of the last complete paragraph:

But it does not seem to me that the law should ease the way for the legislature to expand the practice nor should it disguise the fact that a principle which the law regards as fundamental is involved.

KIRBY J: Where was that “not ease the way”, what page was that?

MR YOUNG: Page 131 point 8, your Honour. Next, could I ask the Court to go to Coco v The Queen 179 CLR 427 at 436 to 437, the first paragraph of 436. Now, we draw particular attention to the reference that is made to Plenty v Dillon that:

“[I]nconvenience –

which would seem to include the sort of practical problems that some members of the Full Court referred to –

is not a ground for eroding fundamental common law rights.”

We draw attention to what Lord Browne‑Wilkinson said in the Wheeler Case in England, and which he thereafter repeated in Ex parte Pierson, and we place reliance on the first complete paragraph at 437 where the High Court refers to Lord Browne‑Wilkinson’s view and says this:

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

As well, we would refer the Court to page 438, first complete paragraph. The Court refers to the necessary implication test in that paragraph. They refer to the test as a very stringent one, gave an example of where it might apply, that is, where statutory provisions might become inoperative or meaningless, and concluded by saying:

It would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.

McHUGH J: What do you say, though, that in this particular legislation in 155, the legislation in 155(5) deals with a person’s inability to comply. Then in 155(7) it expressly says, “Self-incrimination not an excuse” which rather indicates that the view is taken that the words of 155(1) were wide enough to include information that would incriminate the person. Then you have (7A), “Privacy of Cabinet documents and deliberations”, again exempted. So why should you not construe 155?

MR YOUNG: Well, your Honour, we would submit, that you need to put on one hand – on the one side – privileges like self‑incrimination and exposure to a penalty for the reasons given in Pyneboard and Mortimer, that is, they may stultify the whole investigative process.

HAYNE J: But they are also under the complete control of the person to whom the notice is given. Section 155(7) has operation where the person to whom the notice is given might otherwise decline on crimination grounds.

MR YOUNG: Yes.

HAYNE J: That person has control of taking or not taking the privilege. By contrast, the lawyer to whom a notice is directed does not have control.

MR YOUNG: Well, not entirely, your Honour. In self‑incrimination the National Crime Authority v S is one case in which a claim of self‑incrimination privilege was tested – “and of legal professional privilege was tested and was found not to be available”, so it is not untestable if your Honour suggests that it is untestable by way of control.

HAYNE J: No, no. I am not suggesting whether it is testable but a person is capable of answering, though it will incriminate, because that person may chose – or in this case may be bound, in effect, to waive the privilege. Contrast that with the position of the lawyer who does not have control over whether the privilege is asserted or not.

MR YOUNG: Yes, and that is one of the reasons why we said he, properly construed, is not capable of complying.

KIRBY J: But that does not help you too much, does it, because that might let your client, the lawyers, off the hook, but it does not necessarily let your client, Mr Daniels, off the hook?

MR YOUNG: But you are left then with a situation where the position of the client’s legal professional privilege is entirely untouched by any express words or necessary indication in this piece of legislation. It is not enough to say they have expressly address self‑incrimination and said that is not available. That cuts both ways as some of the cases have said.

The House of Lords recently said, “That is an indication of the preservation of legal professional privilege rather than its abrogation”.

KIRBY J: You are holding this House of Lords case out tantalisingly before us, but first, we have to get through our own jurisprudence, I think, before we go on ‑ ‑ ‑

MR YOUNG: Well, it is appropriate to start with this Court’s jurisprudence, your Honour, and I am almost through it.

CALLINAN J: Mr Young, is there any other provision like, for example, 151BUF of the Act which refers to self‑incrimination, and expressly abrogates the rule?

MR YOUNG: Yes. I think 160 and 161 are – 161 is an example. Your Honour will see in 161 – these are witnesses before the Competition Tribunal.

CALLINAN J: Yes.

GUMMOW J: And 159.

MR YOUNG: And 159. That is before the Commission.

CALLINAN J: That is significant, is it not, for your argument, that there are a number of express provisions?

MR YOUNG: Yes, where a fundamental right is intended to be abrogated Parliament has turned its mind to it and done so expressly.

CALLINAN J: In the same Act.

MR YOUNG: In the same Act, in a number of provisions, yes, and within 155 itself.

CALLINAN J: That does not seem to have been mentioned anywhere in the Full Court judgment. Am I right about that?

MR YOUNG: I think it is mentioned but no weight is really attached to it because ‑ ‑ ‑

CALLINAN J: Is it? At some stage I will get you to give me the reference to the mentions of it.

MR YOUNG: Yes, your Honour, I will check that.

KIRBY J: It may be, as Justice Gummow was hinting earlier, that Parliament has steeled itself to taking away the right to self‑incrimination – it does it all the time – and can the documents – well, they are protected all the time because all major parties want to protect them, but facing up to taking away legal professional privilege is a hard nut.

MR YOUNG: Yes.

KIRBY J: It may be that as lawyers become less and less popular it may not be quite as hard as some might think but ‑ ‑ ‑

MR YOUNG: Our point is that it has not been done, either expressly or by necessary implication to this point.

KIRBY J: The question, I think, is whether ‑ ‑ ‑

McHUGH J: I think it may have been done in a couple of Royal Commission or inquiry statutes. I have just a vague ‑ ‑ ‑

MR YOUNG: It was done in the Longford statute where I appeared. There was an express provision passed by the Victorian Parliament to abrogate legal professional privilege for the purposes of Justice Dawson’s Royal Commission.

KIRBY J: Perhaps we could have a reference to that and the terms of the provision.

MR YOUNG: Yes. I will give the Court a reference.

McHUGH J: The Police Integrity Commission in New South Wales also may ‑ ‑ ‑

MR YOUNG: But where it has been done, it has been done explicitly in those Acts.

McHUGH J: Yes.

MR YOUNG: In Victoria it was section 19 of the Victorian Evidence Act that was amended specifically to refer, I believe, to the Longford Royal Commission, so it was not an amendment to the Evidence Act of general application, but we will provide a copy of that section to the Court.

GUMMOW J: In section 19?

MR YOUNG: Section 19 of the Victorian Evidence Act.

GUMMOW J: Now, this notion about Parliament having to face up to things is exemplified in paragraph 44 of the judgment in Morgan Grenfell of ‑ ‑ ‑

MR YOUNG: Yes. I will go to that immediately, your Honour. Can I just complete Coco by saying that it has been endorsed subsequently on at least two occasions. One is Lim v The Minister 176 CLR 1 at 12. Another occasion was the Kartinyeri decision, Hindmarsh Island, 195 CLR 337 at 381 by Justices Gummow and Hayne. I will accept your invitation to eliminate ‑ ‑ ‑

KIRBY J: It has been applied several times. These are not the only ones.

MR YOUNG: It has, on numerous occasions. It was applied in Balog ‑ ‑ ‑

KIRBY J: No, but recently.

MR YOUNG: Recently. I will check, your Honour, but ‑ ‑ ‑

KIRBY J: Coco is always on our lips.

MR YOUNG: Can I go to the English position. There are a number of relevant cases. Justice Gummow has referred to the most recent one that I have referred to several times. It is a tax case, Ex parte Morgan Grenfell [2002] 2 WLR 1299.

GLEESON CJ: Can I ask you a question, to understand the context of this case. The development in the law that occurred in Baker v Campbell was that the previous understanding exemplified in O’Reilly that legal professional privilege operated only in a forensic context was incomplete. What is the English position in that regard?

MR YOUNG: The English position is that legal professional privilege is available outside judicial proceedings.

GUMMOW J: As Grenfell illustrates.

MR YOUNG: Grenfell illustrates that but the previous view that it was confined was the view expressed in a case called Parry.

GLEESON CJ: When did that change occur in England?

MR YOUNG: It changed, I believe, in the 1980s, I do not have the case that effected the change at the ‑ ‑ ‑

GLEESON CJ: I would be interested if you could just turn that up. I would just like to see the way the law developed in England corresponding to the way it developed here.

GUMMOW J: Parry-Jones was in 1969.

MR YOUNG: Yes, I think it was in the 1980s that the House of Lords altered the position but the case is not at the forefront of my thoughts at the moment, your Honour, but we will find it.

GLEESON CJ: Can I ask you one other background question about Morgan Grenfell?

MR YOUNG: Yes.

GLEESON CJ: It was in the context of tax advice?

MR YOUNG: It was in the context of a notice to a tax solicitor under provisions a bit like section 264 of the Income Tax Assessment Act but which had a lawyer subsection akin to the provisions considered in Yuill.

GLEESON CJ: What I wanted to ask you is this: the case referred to a citizen’s fundamental human right to obtain advice about the Tax Act from a lawyer. Has anyone ever inquired whether citizens have a corresponding right to obtain advice about the Tax Act from an accountant? Why is the confidentiality a fundamental human right when it comes from a lawyer and not when it comes from an accountant? And, what do you do if the advice is given by a firm like Arthur Anderson used to be, that had a legal department?

MR YOUNG: Yes. I can, at this stage, only give your Honour a general answer. That is, in Baker v Campbell and in other cases that have discussed the rationale of our rule of legal professional privilege they have referred to the fact that it is essential from the viewpoint of administration of justice that people be able to have access to legal advice in the context of complex legislation and other laws.

GLEESON CJ: But, if an accountant tells you what a particular provision of the Income Tax Assessment Act means, is that legal advice?

MR YOUNG: I think not, your Honour, but ‑ ‑ ‑

HAYNE J: The Commissioner has addressed some of these issues, has he not, is some guidelines or rulings that have been issued, I think, about the way in which section 264 powers will be used in relation to accountants? I have in mind a dim memory of the Commissioner trying to grapple with this kind or problem.

MR YOUNG: I think he has, your Honour. He has certainly laid out guidelines for section 264 notices on lawyers and so forth and I think it does deal with, effectively, the in‑house accounting firm with the legal section as well. We will have a look at that too, if we may, your Honour.

KIRBY J: To what extent was this case in the House of Lords affected by the participation of the United Kingdom in the European Convention of Human Rights?

MR YOUNG: Their Honours point out that it was not really but they draw attention to the fact that legal professional privilege is protected under the European Human Rights Convention and rights of privacy.

KIRBY J: I do not think the Human Rights Act of 1998 applied to this case. That came into force in 2000 I think.

MR YOUNG: Yes, I think that is right, your Honour.

GUMMOW J: Paragraph 7.

MR YOUNG: Paragraph 7. I ‑ ‑ ‑

KIRBY J: You see they always have to look at cases just in case it might be reversed in Strasbourg.

MR YOUNG: Yes, but their Lordships ‑ ‑ ‑

GUMMOW J: The English like saying, “All this stuff in Europe is not news to us, we have had it already.”

MR YOUNG: Yes.

GUMMOW J: Paragraph 7 is an example.

MR YOUNG: Their Lordships do say that the outcome of Morgan Grenfell did not depend on the European provisions. That appears in I think paragraph 39 of Lord Hoffmann’s speech, and in paragraph 47 of Lord Hobhouse’s speech, but they do refer to the European cases as simply indicating the importance of recognising legal professional privilege.

Grenfell concerned a notice requiring disclosure by the bank of its instructions to and advice from counsel in relation to a particular tax scheme concerning lease premiums. The relevant provisions of the Tax Act is set out as an appendix to the judgments from page 1312 onwards. The notice power is relevantly in section 20(3). It is much like section 264. The lawyer provisions that I described that was akin to section 308 considered in Yuill was section 20B(8) at the foot of page 1313 and, as well, 20C(3) in its last sentence has again a provision addressing the documents in the possession of a lawyer. Section 20B(8) said only that:

A notice . . . does not oblige a barrister, advocate or a solicitor to deliver or make available, without his client’s consent, any document with respect to which a claim to professional privilege could be maintained.

No provision of the Act addressed the client’s right to privilege. Essentially the issue in the case was whether the indirect reference to the notice not binding a lawyer to produce the documents without his client’s consent supported a necessary implication that the client’s privilege had been abrogated. The House of Lords applied the longstanding principle of construction and said there was no sufficient basis for such an implication.

The steps in the reasoning are apparent in paragraphs 7 and 8 firstly of Lord Hoffmann’s speech at 1302. I should have said his speech was the leading judgment. At paragraph 20 on page 1304 his Lordship said in the last sentence:

In my opinion, the revenue stand or fall by the express references to LPP in –

the sections that I have mentioned. Then he sets out the revenues argument at paragraph 21. In paragraph 22 he said he sees the force of that argument founded on the lawyer provision but thought:

that it has difficulties which were not fully addressed either in the Court of Appeal or in the Taylor case. Why should Parliament want to preserve LPP for documents in the hands of the lawyer but not for documents . . . in the hands of the taxpayer?

He refers to A M & S, which was the decision considered in Baker v Campbell. In paragraph 24 his Lordship rejects the revenues argument. After discussing Parry‑Jones, which was the case that discussed the confidentiality obligation as being the only relevant obligation, which might provide an explanation for the lawyer provision, his Lordship concluded at paragraph 36 that there was no sufficient basis for an implication that privilege was intended to be excluded.

His Lordship disagreed with the reasoning below in Taylor and thought that the BCCI Case was wrong – that is paragraphs 36 and 37. It is noteworthy that in the BCCI Case, without going to it, Justice Millett approached the question by looking at the source of the power, the equivalent of our subsection (1), without looking at the reasonable excuse provision. He said it is a mistake to approach the issue of construction by reference to the compliance provision; you need to do it by the source of the power.

GLEESON CJ: And the legal professional privilege was claimed by a firm named Price Waterhouse.

MR YOUNG: That is so.

GLEESON CJ: What, their legal section?

MR YOUNG: I believe so, yes, your Honour.

KIRBY J: That was an important point made in the Federal Court in this case that Yuill failed, even though in that statute there was a reasonable excuse provision which affected the Court of Appeal in Yuill, but in this case there is not a reasonable excuse let‑out. You do not have, as it were, a statutory hook on which to hang your ‑ ‑ ‑

MR YOUNG: Yes, but on analysis, your Honour, the judgments in Yuill depended also heavily on the particular provisions, 299(2)(d) and 308.

KIRBY J: In your analysis of this Court’s jurisprudence, you passed over Pyneboard and Yuill, perhaps out of delicacy for my feelings about Yuill, but you will have to grapple with it in due course.

MR YOUNG: Yes, I am coming to both judgments as separate ‑ ‑ ‑

KIRBY J: Why are we dealing with this foreign case? They did not refer to any of our decisions. Why are we referring to them?

MR YOUNG: The reason is for the principle. It is clearly stated by Lord Hobhouse, if I can go to the other major judgment, at pages 1310 and 1311. First, paragraph 43 in the quoted passage from the Derby Magistrates’ Court Case, the character of the privilege is absolute. Then in paragraph 44, the principle of construction applied in England, known as the principle of legality there. Can I draw particular attention to the quoted passage from Ex parte Simms. The Court, without reading it, will see there a reference to:

Parliament must squarely confront what it is doing and accept the political cost.

And also a reference to the presumption that general words will not suffice. And the reason for that is expanded upon in paragraph 45 at page 1311C:

A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

GUMMOW J: I am not sure that is right, is it? I am not sure what it means anyway.

MR YOUNG: I am not sure what the last sentence means, your Honour.

GAUDRON J: Well, if you left out the words “not interpretation”, you might ‑ ‑ ‑

MR YOUNG: Yes, we would say that that is the way in which it is applied in Mortimer v Brown. If the provision is not read as abrogating legal professional privilege, it would render valueless or stultify or render unenforceable the whole legislative scheme. That is a matter of logic more than interpretation. Finally, in that case, notwithstanding the lawyer’s provision, Lord Hobhouse said:

the statutory language falls a long way short of meeting this criterion.

He says it is “equivocal” and he:

would incline to the view that –

he goes on to say – I will not attempt to paraphrase it.

Now, that case picks up some very strong statements about the principle of construction that appeared in Simms, to which reference is made in paragraph 44, and B v DPP, another decision from 2000, that is referred to in paragraph 45. I will not go to those cases, but they do state the principle of legality, that is, a principle of construction, that legislation is not presumed to interfere with fundamental rights by general words in very strong terms.

KIRBY J: Were there similar words in the Supreme Court of Canada? Is that the way the Canadians also approached the matter?

MR YOUNG: They applied a similar principle. In the Shell Case and Solosky they applied it rigorously and they too, like Baker v Campbell, thought that arguments about practical problems were not to the point.

Can I turn to the judgment of Justice Wilcox, because it is only Justice Wilcox who sets out a statement of the applicable general principles. That is paragraph 49 at page 112 and, in particular, subparagraphs (iii) and (iv).

KIRBY J: Do you contest the statement?

MR YOUNG: Yes; we can test the looseness or lack of proper exactitude in the statement at paragraph (iv), particularly the second sentence:

The intention to abrogate legal professional privilege will be sufficiently indicated if Parliament has used words that, in their natural meaning, are inconsistent with retention of the privilege in the particular case;

That really is the antithesis of the principle established in Baker, Coco and in England, namely that general words in their natural or literal meaning are presumed not to interfere with the privilege.

HAYNE J: Now, how much is that general principle that you have identified out of Coco, Baker v Campbell and the like, dependent upon notions, firstly, of sole purpose underpinning legal professional privilege and, secondly, dependent upon notions that lawyers, and only lawyers, tender advice about the application of the law?

MR YOUNG: We would say it is dependent on neither, for these reasons. First, the principle applies with the same force in England and in Australia. England has always had a “dominant purpose” test. The change in the test effected in Esso in Australia has not made any difference to the principle or its application. The principle applies to all fundamental rights, as Coco demonstrates. Secondly – now I have forgotten your Honour’s second proposition.

HAYNE J: In effect ‑ ‑ ‑

GLEESON CJ: The one about Price Waterhouse.

HAYNE J: Yes, the emergence of the multi‑disciplinary firm.

MR YOUNG: The principle applies to legal professional privilege, whatever its proper ambit. If legal professional privilege is enunciated by our courts as confined to the giving and receiving of legal advice, or more precisely perhaps communications constituting the giving of instructions for legal advice or the communication of the legal advice, and part of the definition of legal professional privilege is that it must be advice from a lawyer as distinct from advice about tax or other statutory matters from an accountant, or the privilege attaches to whatever – I am sorry. The privileges as defined by courts, the principle of construction attaches to the principle as so defined. Now, if this Court were to say that accountants giving legal advice also fell within a like privilege, then there would have to be good reasons for the extension.

HAYNE J: Or that lawyers giving “commercial” advice.

MR YOUNG: That would not be protected by ‑ ‑ ‑

HAYNE J: Just so. But part, at least, of the argument against you I would understand to be that legal professional privilege or the milieu in which it now applies, has moved on so dramatically, partly by abandonment of sole purpose, but largely I suspect, from the unstated premise, that lawyers are now doing much more than advising about the law, and not only lawyers are advising about the law. Therefore, what I would ask you to address is what your answer is to that kind of unstated premise to the argument against you.

MR YOUNG: Your Honour, those arguments go to, effectively, we would say, the ambit of the privilege. At the moment, as we understand the ambit of the privilege, non‑legal commercial advice by lawyers is not protected at all, so the privilege is not available.

HAYNE J: So the answer you make is, if there is a problem it is to be solved at the level of identifying the privilege.

MR YOUNG: Yes.

HAYNE J: Not at ‑ ‑ ‑

MR YOUNG: Not at permitting general words in a statute that do not address the privilege to be the foundation for saying there is a necessary implication that the privilege has been abrogated.

GLEESON CJ: But does it raise a problem about characterising the privilege? If a farmer in a country town goes to a lawyer, a country solicitor, as he often does to prepare his tax return, he is said to be exercising a fundamental human right, and if he goes to the accountant he is not.

MR YOUNG: With respect, I doubt that, your Honour. It must be doubted whether the preparation of the actual return itself ‑ ‑ ‑

GLEESON CJ: All right. So instead of getting his tax return prepared he wants to ask somebody whether a particular receipt constitutes assessable income.

MR YOUNG: Yes.

GLEESON CJ: If he asks the local solicitor he is exercising a fundamental human right, and if he asks the local accountant he is not. Is that the position?

MR YOUNG: We would think so, your Honour, yes. The first communication would be the subject of legal professional privilege.

GLEESON CJ: Once legal professional privilege moved out of the context of the administration of justice into the area of receiving advice about your legal rights, you have got into this problem, to which Justice Hayne refers, that is to say it is not only lawyers who give you advice about your legal rights.

MR YOUNG: Your Honour, a lot of these arguments were considered in Baker v Campbell and it was considered that the advice aspect of legal professional privilege was also quite central to the efficient administration of justice because it was in the public interests of the administration of justice that people be able to obtain legal advice about their rights, absent a litigation context. That was part of the administration of justice. In other words, a large segment of the administration of justice occurs in dealings between clients and their lawyers about legal advice that is outside the realm of the courts.

GLEESON CJ: The problem was then compounded in the country town when the persons that the farmer might want to consult, that is the solicitor and the accountant, can now become partners.

MR YOUNG: In New South Wales, I think, your Honour, at the moment. That was one of the issues, of course, raised about that sort of move, that is to say that grave problems and conflicts were created particularly, vis-à-vis, privilege, by that sort of change that permitted a lawyer to become a partner with an accountant. But they are problems to be worked out, we would submit, in defining the scope of legal professional privilege.

If we move to the problem at hand, there may be core documents that everyone from the 16th century onwards would say was properly the subject of legal professional privilege that might be reached by a notice such as this. The question there is, is there a sufficiently disclosed intention by Parliament that you can say, as a matter of necessary implication, Parliament has considered and intends to abrogate legal professional privilege.

This case does not raise issues at the margins about the ambit of legal professional privilege. It simply raises a question whether a general statutory power, because of the generality of its language if literally extended to their natural ambit, would have the effect of eliminating privilege should it be given that effect notwithstanding these fundamental rules.

KIRBY J: I think that the point that is being put to you is that you are, as it were, suggesting that there should be put in brackets, “save, of course, for legal professional privilege” in the statute and what is being put against you is that in our days, with the expansion of that content, or arguable expansion, that it is a bigger ask.

MR YOUNG: Well, your Honour, we would submit that Carter and Baker v Campbell and a succession of other cases such as Propend would be decided differently. I mean Baker v Campbell decided that legal professional privilege was an answer to a general search warrant power. There were no words in parentheses specifically protecting legal professional privilege in Baker.

KIRBY J: The Court inferred that because there was no express removal of the right of legal professional privilege that it was still there, so it is as if there are words in parentheses.

MR YOUNG: Exactly so this case, we would say.

KIRBY J: You have been treating Justice Wilcox’s principles, and I just wonder if you are being entirely fair to his Honour because he only came at those principles after he analysed Yuill and Pyneboard and cases in the Federal Court which dealt with ‑ ‑ ‑

MR YOUNG: Can I suggest not, your Honour, by tracking the reasoning for a moment, if I may? The other principle we draw attention to is principle (vi) at page 113. His Honour there says:

In determining whether the words used by Parliament impliedly exclude legal professional privilege . . . it is necessary to have regard to –

and then his Honour uses the expression –

the extent (if any) to which legal professional privilege might impede the discharge of those functions or the exercise of those powers.

That appears to be a reference to the Mortimer v Brown line of cases but, in the end, that is not really how it is used. What his Honour says about the general meaning of the words, having stated the principle, we criticise at 49(iv), then appears in paragraph 51, “the critical question”, and his Honour says in the second sentence:

If the natural meaning of those words, in that context, is such as to exclude the doctrine of legal professional privilege, that is the end of the matter.

Again, we would say that is not in conformity with the governing principle.

KIRBY J: Justice Moore says words to similar effect. He says you really have to start with the statute and construe the statute. It is a statute of the Federal Parliament. It is has a higher democratic legitimacy than the common law and if it is constitutionally valid and if it is clear, then we have no right to refuse to give it effect. The purpose of this whole exercise is to find what is the meaning of the federal statute, not to find what is the common law.

MR YOUNG: Yes, but their Honours went straight to subsection (5), in effect, just to ‑ ‑ ‑

GUMMOW J: That is their problem. That is part of their problem, it seems to me.

MR YOUNG: Yes. Justice Wilcox then turned to “the natural meaning” of the words and he stated the general principle in terms of an inquiry into the natural meaning of the words, their literal reach, in effect. That is clear and he says that is “the critical question”. No mention really is made ‑ ‑ ‑

KIRBY J: He does say it has to be read “in the context of s 155, as a whole”. That is in paragraph 51.

MR YOUNG: Yes, but there is no reference to the Coco principle that general words are not to be so read as having their literal ambit if that would impede or impair the fundamental right. His Honour then turned to the meaning of the words at paragraph 56, and I have been asked about that. His Honour construed their literal meaning as being physical ability, including no reference to entitlement. His Honour then said at paragraph 57:

the policy considerations that influenced the High Court in Pyneboard, in relation to self‑incrimination, are equally apposite to legal professional privilege.

He then said at paragraph 57:

it may be impossible for the ACCC to see the whole picture –

without legal professional privilege. That was an argument that was rejected in Morgan Grenfell. The Tax Commissioner wanted to see the whole picture as well. But that is an argument for what it would be reasonable for Parliament to do, not an argument about what it is necessary to imply. Then his Honour mentioned, it seems, a practical consideration at paragraph 59. Nowhere does his Honour apply the applicable principles that govern the approach to such an issue.

Can I turn to Justice Moore, commencing at paragraph 65 at page 119, first sentence. His Honour starts with the subsection (5) expression. He then gives that expression a meaning at paragraph 67, the last sentence of the paragraph at page 121:

should be approached on the footing that it comprehends, consistent with its ordinary meaning, circumstances where the recipient is physically able ‑ ‑ ‑

KIRBY J: It is that what has been interpreted as meaning in the tax statute by the Full Court of the Federal Court, is it?

MR YOUNG: No. On the contrary. As the preceding sentence makes clear, the Full Court has concluded that the section does:

not authorise the compulsory interrogation of a person in circumstances where the questioning might constitute –

the contempt. So, subsection (1) is subject to implied limitations. Physical capacity is not the entire answer.

KIRBY J: You see, it is that quote from Justices Hill and Lindgren at paragraph 67 that led to my comment earlier that their Honours in the Federal Court apparently take the view that this, to the extent that a person is capable, is a dictionary. It is a dictionary that is to be taken as a parliamentary purpose to override.

MR YOUNG: Well, your Honour, those tax cases, including De Vonk, from which that passages comes, were directed to self-incrimination. They were not directed to legal professional privilege. There are contrary Full Court decisions holding that legal professional privilege is not reached either by sections 263 or 264.

KIRBY J: I just find this distinction ‑ I can understand it, but as I remember it, if you are talking about fundamental human rights, the fundamental human right against self-incrimination is in the instruments, whereas I think you have to do a bit of work to find the fundamental human right to legal advice.

MR YOUNG: Well, no, your Honour. In Coco it was not in the instrument.

KIRBY J: I am talking about the International Covenant.

MR YOUNG: I am sorry, your Honour.

KIRBY J: Which is what would have been in the mind of the House of Lords in Morgan Grenfell ‑ ‑ ‑

MR YOUNG: No, with respect, your Honour ‑ ‑ ‑

KIRBY J: ‑ ‑ ‑ because they were talking about the European Convention which parallels ‑ ‑ ‑

MR YOUNG: No, with respect, they were addressing themselves to the common law right ‑ ‑ ‑

HAYNE J: Which they traced to the 16^th century, I think.

MR YOUNG: Which they traced to the 16^th century.

KIRBY J: Yes, but they had an eye over their shoulder to Strasbourg because when they make a decision which does not conform to the European Convention on Human Rights they are taken to Strasbourg and they do not like it.

MR YOUNG: Yes, but only to the extent to say that the common law’s recognition of legal professional privilege is consistent with the European position.

HAYNE J: No, “we thought of it first”; that is what they are saying.

GAUDRON J: And more importantly, they put it on a quite different basis from the European Convention which locates legal professional privilege merely as an aspect of the right to privacy. Legal professional privilege has always been located on much more important principle than that.

MR YOUNG: Yes, we agree with your Honour.

GUMMOW J: And given a much stronger history of the legal profession in England than in some of these European countries.

MR YOUNG: Yes. Can I turn to the next step in Justice Moore’s reasoning. Paragraph 73 at page 123, his Honour then examines two possible approaches to the meaning of the words “capable of complying”, and the Court sees them set out. Neither approach accommodates the approach required in principle, namely, the presumption that general words do not abrogate. His two approaches adopt the contrary proposition. That is that under the first approach there is an intention to abrogate, “any common law privilege that then might be raised”, and the other approach is an intention to abrogate, “any common law privilege then existing or that might later be recognised”.

So his Honour has excluded the question – the critical question – that the authorities command needs to be considered.

KIRBY J: I did not quite understand the importance of this in his Honour’s reasoning. It seemed to be a little bit of a side tangent, interesting though it was.

MR YOUNG: Well, he starts with the ordinary meaning of “capable” in subsection (5), he explains this exploration of two approaches, both of which exclude the Coco type approach, and then your Honour returns at paragraph 81, I think it is, to give his conclusion – it is at pages 126 to 127 - abrogation is found for two reasons:

First, the language of section 155(5) is emphatic ‑

and the second reason that his Honour gives is essentially the view expressed in paragraph 83, which I will turn to separately, but his Honour there says:

The attainment of the purpose for which the power is conferred by section 155 may be hampered.

He then recognises distinctions between self-incrimination and exposure to a penalty that might be more stultifying, but at the foot of the page at 127 he says:

Nonetheless, the observations of Justice Dawson in Yuill are, to some extent, apt ‑ ‑ ‑

are observations about the provisions of the Companies Code and legal professional privilege in that context.

KIRBY J: Well, sooner or later you are going to have to deal with Yuill because ‑ ‑ ‑

MR YOUNG: I am going to come to Yuill if I can, your Honour. Then he deals in 84 with practical problems, and in the sentence immediately above the quotation in paragraph 84 he translates Pyneboard’s discussion of the problems of stultification through exposure to a penalty directly across to legal professional privilege:

They would be no less if the asserted privilege was legal professional privilege ‑

which is a flawed comparison, in our submission. Now, can I go to Pyneboard, in the context of Justice Wilcox’s observation, at paragraph 52 at 113 that there is a passage:

Pyneboard strongly suggests that the natural meaning of the words used in section 155(5)(a) excludes legal professional privilege.

It is the passage that uses the words at the end that his Honour emphasises, “or otherwise”.

Just before I go to the judgments in Pyneboard, can I ask the Court to go back to Justice Wilcox at 113 and 114 of the appeal book. I have quoted the bulk of the reference to Pyneboard and the expression “or otherwise”. His Honour then says this, and it is the passage we criticise:

The inclusion of the emphasised words is explicable only –

and I emphasise those words –

on the basis that their Honours wished to make a statement, about the effect of the words used in the paragraph, that went beyond the matter of self-incrimination.

Then incorrectly his Honour says:

This is the way Justice McHugh, in Yuill, understood their Honours.

It is a mistaken reading of Justice McHugh’s statement in Yuill, which was not made by reference to the “or otherwise” passage at all. His Honour then says this:

If that understanding is correct, it is impossible to doubt –

and we would emphasise those words –

that their Honours intended this statement to include reference to legal professional privilege.

GUMMOW J: Perhaps they should have said so.

MR YOUNG: Well, your Honour, in context, we would say, the passage is plainly not referring to legal professional privilege, but his Honour then recognises, as Justice Kirby pointed out, that technically Pyneboard is no precedent, because legal professional privilege was not an issue in Pyneboard.

KIRBY J: But it was squarely involved in Yuill and with that wonderful little sentence, reasonably and necessary or ‑ ‑ ‑

MR YOUNG: Yes, I will come to that, your Honour, but can I go to the next sentence here, that:

they were considered observations by three members of the High Court.

His Honour is treating the “or otherwise” passage as:

considered observations by three members of the High Court –

concerning the relationship between legal professional privilege and section 155, as if there is an obiter dictum to that effect. In our submission, there is none. His Honour then turns to the Full Federal Court cases, two of which have held that legal professional privilege is not intruded upon by section 264 or 263. His Honour says, in the last line of paragraph 55, they:

are not authorities to the contrary; in neither case was the point argued.

We would ask rhetorically, authorities to the contrary of what? It is apparent his Honour is treating Pyneboard as some kind of contrary authority to the effect that section 155 ousts legal professional privilege because there is a considered obiter dictum to that effect in Pyneboard and that is why this formula, capable, which his Honour said was given a particular meaning in Pyneboard, is applied here, without examining the applicable principles.

Can I turn then to Pyneboard 152 CLR 328 to deal with those passages. The relevant passage appears at page 343 – that is the “or otherwise” passage.

GUMMOW J: Justice Gaudron draws my attention to page 335 of Pyneboard, the penultimate paragraph “As will appear,” and:

the privilege against exposure to a civil penalty –

Maybe that is what “or otherwise” is talking about.

MR YOUNG: Yes, that is our submission, your Honour, exposure to a penalty or forfeiture, analogous privileges to self-incrimination.

GUMMOW J: Yes, exactly.

MR YOUNG: And that is apparent from the context – if I could step through the context in the joint judgment. Page 337, the middle paragraph, really starts the discussion, where they address the issues, in effect. Beneath that, the next paragraph, they say the first point they are going to consider is whether:

the privilege against exposure to a penalty is confined in its application to testimonial disclosures in judicial proceedings –

That is then discussed over several pages and at page 341 the conclusion is in the middle paragraph:

not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings.

The Court then turns to the self‑incrimination line of cases that includes Mortimer. At the foot of page 341, five lines from the end, they observe that one relevant issue is whether:

full investigation . . . of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation.

The Court then turns to Mortimer v Brown, which was a self‑incrimination case, where the essence of the decision was that to allow self‑incrimination in a Companies Act public examination would ‑ and I go to the quote from Justice Kitto ‑ “render the provision relatively valueless”.

Then at page 343 in the “or otherwise” passage, that is introduced by saying, in the first complete paragraph:

The comments made by Kitto and Walsh JJ in Mortimer are apposite to s. 155.

Then, in the third sentence, they do turn to the words of subsection (5). You have the concluding words “or otherwise”. But then they go immediately back to the self‑incrimination cases:

Moreover . . . a purpose which would be defeated if privilege were available.

The concluding words. That is apposite for Mortimer v Brown, self‑incrimination exposure to a penalty but not legal professional privilege. They then confirm that reading by saying:

As in Mortimer the comment may be made that the provision is valueless if the obligation to comply is subject to privilege.

And a little bit further on:

the Commission would find it virtually impossible to establish the existence of those contraventions.

In context “or otherwise” is referring to privileges analogous to self‑incrimination, the exposure to a penalty – which they were dealing with – or forfeiture. It cannot be read as a considered reference to legal professional privilege.

GLEESON CJ: There was actually in issue in that case a question of the scope of those other privilege, such as the privilege against exposure to ecclesiastical censure.

MR YOUNG: Yes, that was another privilege, yes.

GLEESON CJ: They might well have used the words “or otherwise” to avoid committing themselves to an identification of privileges.

MR YOUNG: Yes, but our point is, your Honour, that they were speaking about that kind of “exposure” privilege, be it penalty, ecclesiastical, censure, forfeiture.

HAYNE J: That is reinforced by the sentence commencing last on page 344 and drafting over to page 345 where their Honours are dealing with the possible distinction between privilege against incrimination and privilege against exposure to penalty.

MR YOUNG: Yes. The absurdity of having privilege against self‑incrimination expressly abolished by subsection (7) but leaving exposure to a penalty in place was apparent to their Honours and that was one of the powerful reasons for the conclusion they reached. Justice Murphy made a similar observation in the last sentence of page 347 about the absurdity of that situation.

GUMMOW J: There is a later case in the Federal Court about the interrelation of these two privileges and their abolition – Ice Storage and someone or other.

MR YOUNG: It is Compass I think your Honour is referring to.

GUMMOW J: I am not sure.

MR YOUNG: ABBCO. It may be ABBCO

GUMMOW J: It is ABBCO, yes, exactly.

MR YOUNG: Before I turn to Yuill can I just say that Justice McHugh’s observations to which Justice Wilcox refer was, in fact, directed to the passage at page 341 of Pyneboard, the last paragraph at page 341, and not to the “or otherwise” passage. His Honour, in our respectful submission, has misread Yuill and Justice McHugh’s observations in that respect and he has obviously drawn comfort from the fact that he read Justice McHugh in Yuill as treating “or otherwise” as being a considered attempt to say the position is the same for legal professional privilege.

KIRBY J: I take the point you make about the distinction of the two, but in this particular area there would be no doubting the absolutely crucial importance of documentary evidence, would there? I mean these cases are generally built on, as we saw in a recently argued case, indiscreet or wished‑away but put on paper documents. I am wondering whether they would be covered by the privilege, but it is documents that win these cases, not ‑ ‑ ‑

MR YOUNG: Your Honour, the only thing that falls outside the notice, in our submission, are documents that are properly the subject of legal professional privilege. As all the cases show in this sort of context, they are likely to be within a very narrow compass. They are not likely to bear upon the actual implementation of transactions. They are not likely to be in any way central or important to the investigation. Investigations have been conducted for 27 years without them, and very effectively so.

In our written submission we draw attention to the position in competition legislation in other jurisdictions where the legal professional privilege is expressly protected. We do that not because it is an aid to construction but to answer your Honour’s point, that is in other jurisdictions in England, in Canada and the US there are express protections for legal professional privilege and the inference is that competition authorities in those countries have never formed the view that legal professional privilege and its preservation is an obstacle to the effective investigation of competition law offences, or that the presence of such, the protection for legal professional privilege, would stultify their investigative powers.

KIRBY J: It cuts both ways. The failure of our Parliament to so provide is perhaps an indication that it is less cherished in this country.

MR YOUNG: Your Honour, that is really to reverse the presumption in effect, in our submission. Can I turn to Justice Moore and what he said about Pyneboard at page 122. Justice Moore admitted of the possibility that “or otherwise”, those words, were not directed to legal professional privilege. That is paragraph 70, in the middle of the paragraph at line 6. His Honour was also astute to observe that Justice McHugh’s statement in Yuill was directed to an entirely different passage. See the words in parenthesis at about line 13. Then in paragraph 71 he says:

Even if the words “or otherwise” . . . cannot be treated as an authoritative and binding pronouncement on the meaning of s 155 as it might apply to . . . legal professional privilege . . . Nonetheless the decision of the High Court must be taken to indicate the expression “is capable of complying” imposes an obligation that is unlikely to permit of any exceptions.

GUMMOW J: That is just ‑ ‑ ‑

MR YOUNG: We would criticise that reasoning as well. The fact that in Pyneboard, in the context to which I have taken the Court, those words were thought to be a significant part of the reasoning that exposure to a penalty was excluded, essentially because of the fact that, like self‑incrimination, it would render the whole process relatively valueless or would frustrate it, is no reason for concluding that the words “capable of complying” were determined by the High Court to be unlikely to permit of any exception such as legal professional privilege. It just does not follow at all. His Honour is giving an improper weight or force to the decision in Pyneboard as fortifying his reasoning that founds exclusion totally on the ordinary meaning of those general words.

GUMMOW J: I know time is getting on, but what do you say about Justice Lindgren’s judgment?

MR YOUNG: I am immediately going to come to that, your Honour. Justice Lindgren admits of the possibility that “capable” does include legal entitlement. That is at paragraphs 88 and 90 at 130 to 131. Sorry, first of all at 88 and 90 his Honour agrees with the other judgments. Paragraph 90 he says:

“to the extent” clearly means “to the full extent” –

we do not think that is right, but perhaps it does not matter –

and “capable” seems to mean at least “immediately physically able –

but he goes on to add:

and without in any respect acting unlawfully or committing a legal wrong”.

So his Honour imports some legal entitlement aspect. He confirms that at page 132 with two qualifications. At line 4 there is a first qualification but it is the second one I would like to fasten on, “capable of complying” raises a question of:

would a person –

be capable if –

he or she would contravene a statutory provision, infringe the rights of a third party –

parenthetically noting “lpp” as an exception –

or breach of court order or otherwise commit a contempt of court –

see De Vonk. Now, his Honour immediately imports a legal element into the concept of “capable” in that passage. What his Honour does not explain is why the importation of those legal elements might lead to a different result in the case of contravention of statutory provision, infringement of right, breach of court order or other contempt, but somehow legal professional privilege falls into a different category. How so, we would ask, and this takes us to the point we made in our written submissions about Brambles.

The Full Federal Court decided in Brambles that the power in section 155(1) was limited. It did not authorise the giving of a notice to a person who was already a defendant in penalty proceedings instituted by the Commission. Now, if section 155(1) is to be read down in that regard, why cannot it be read down to accord with general principle so as to protect legal professional privilege.

KIRBY J: We are not bound by Brambles. I do not know the case at all.

MR YOUNG: No. Brambles was referred to with approval by two members of this Court in Pioneer. Chief Justice Gibbs and Justice Mason referred to it with approval whilst distinguishing it. Brambles was a case ‑ ‑ ‑

KIRBY J: Is not this a bit of a side issue?

MR YOUNG: I will only take a moment, your Honour. Chief Justice Gibbs expressly approved Brambles in Pioneer. Justice Mason, we would say, did so likewise. They decided the case was distinguishable because it did not apply where proceedings were commenced, not by the ACCC but by someone else, prior to that other person receiving a section 155 notice.

But the point we make is the same point I made about De Vonk. De Vonk read down 155(1) so as not to authorise any action that would constitute a contempt. His Honour Justice Lindgren simply does not explain why legal professional privilege is put aside in a special basket so that ‑ ‑ ‑

McHUGH J: There is a difference, is there not, because in the De Vonk situation you are construing 155(1) so as not to include those documents, but it is not quite the same question with 155(1) in its application to legal professional privilege communications, is it, because the person can always waive it. The real question is whether section 155 empowers or authorises a notice that seeks information, documents or evidence that are protected by legal professional privilege if the addressee claims the benefit of that privilege. So it may be that 155(5) has a greater part to play than I was at first inclined to give it.

MR YOUNG: Your Honour, we would say that ‑ ‑ ‑

McHUGH J: Because if you do not claim the privilege, there is no doubt that 155(1) covers it, if they are otherwise relevant.

MR YOUNG: Yes, that is so, but can I ‑ ‑ ‑

McHUGH J: So it is a question of whether or not you can, in effect, refuse to produce them on the ground that they are covered by privilege?

MR YOUNG: Your Honour, we would say the position so far as “capable” is really no different. If you are bound by a court order, you hold discovered documents and you have given undertakings and you get a 155 notice. You are physically able to hand over those documents to the ACCC but you have a legal answer. So, “capable of complying” does not address the entire compliance situation.

GLEESON CJ: How does this work if someone is prosecuted for contravention of subsection (5)(b)? Suppose a person knowingly furnishes false or misleading information in response to a notice. It would be a defence, would it not, to a charge of a contravention of 155(5)(b) that there was no power to issue the notice under subsection (1) because it would not be such a notice.

MR YOUNG: That is so.

GLEESON CJ: So the question of the power to issue the notice which I observe is the way the question in the stated case is presented in the proceedings that are following yours is a question that directs attention to subsection (1) not to subsection (5).

MR YOUNG: Yes. That is so, your Honour, and we would say that (b) confirms the importance of going to subsection (1).

McHUGH J: Yes, but maybe it raises a false issue, that maybe the question is not concerned so much with power but with an immunity from production.

KIRBY J: And in the face of a parliamentary statement, “We do not want to have any arguments about this, you have to produce it to the extent that you are capable of complying with it”. That is how Justice Moore reads that phrase.

MR YOUNG: Yes, but as I have endeavoured to point out, his Honour has done that without regard to the applicable general principles and by attaching a false importance to Pyneboard.

KIRBY J: Yes. You say we have to put on special glasses because it is a very important principle of the common law and if Parliament wants to take it away it has to do it very clearly.

MR YOUNG: But also, your Honour, as Justice Lindgren points out, “capable of complying”, on analysis, bears other interpretations which are reasonable and they are to be preferred rather than an interpretation which goes much wider and which treats those words as negativing legal professional privilege.

HAYNE J: And the “capable of complying” construction as physically able does not deal with the case where the document is on subpoena to a Federal Court at the time where the ACCC gives its 155 notice. Yes, of course, you may physically be able to take the document to the ACCC but if it is on subpoena to a Federal Court, are you to fall within 155(1) and (5)? Justice Lindgren’s analysis seems to say, “No, you are not” in that case.

MR YOUNG: That is so.

HAYNE J: And thus, at once, you have moved away from physical capacity.

MR YOUNG: No, you still have the physical capacity but you have another answer admitted by a different interpretation of the word “capable”.

HAYNE J: Just so, but you have moved away from construing capable as physical capacity, have you not?

MR YOUNG: No, you have not, your Honour.

HAYNE J: No?

MR YOUNG: In our respectful submission, you have not. You have moved away from construing it as physical capacity alone.

HAYNE J: Yes.

MR YOUNG: But so you should, in our submissions.

HAYNE J: I am not suggesting that you are wrong, Mr Young. I thought I was making a point that went your way but perhaps I am not.

MR YOUNG: Perhaps I am obtuse, your Honour.

KIRBY J: You are always so suspicious.

GUMMOW J: Now, Mr Young, what is the relation between subsection (1) and subsection (2)? Are there any cases on the significance of legal professional privilege in a situation where there is a notice and there is entry and there is a demand to inspect?

MR YOUNG: Not that I am aware of in the context of section 155. There is, of course, in the context of 263 of the Tax Act.

GUMMOW J: I understand that, yes.

MR YOUNG: That is the Citibank Case saying the right of going into premises to take things is subject to legal professional privilege in the case of 263. Can I add that the Shell Case, the Canadian case Re Director of Investigation and Research and Shell Canada Ltd that was referred to in Baker v Campbell was a physical visitation case.

GUMMOW J: Yes, so subsection (2) links with (5)(c). I suppose you would be hindering if you said, “No, you can’t look at it; it’s got legal professional privilege”?

MR YOUNG: Physically so, yes. We would say you would have offences ‑ ‑ ‑

GUMMOW J: If you are going to construe this section as a whole, it seems to me that is probably something you look at.

MR YOUNG: Yes.

KIRBY J: Nobody wants to do that; everybody wants to talk about the common law.

GUMMOW J: They just want to talk about (5)(a).

MR YOUNG: Can I turn to Yuill 172 CLR 319. We make two submissions about Yuill. The first is that Yuill is a decision that turned on the particular statutory provisions of the Companies Code then under consideration. They were very different than section 155.

KIRBY J: But on one view more helpful to recognition of the privilege.

MR YOUNG: That was the view taken by the minority, which equated with the view taken in England in Ex Parte Morgan Grenfell. The view taken by the majority though was to place very great weight on the particular provisions that refer to lawyers in section 299(2)(d) – that is referred to in the headnote – and to section 308, which was the – you cannot get production from a lawyer without the consent of the client.

GUMMOW J: You say the presence of references to lawyers cuts both ways.

MR YOUNG: We would say the better view is the House of Lords view, that it does not mark the limit; it simply is an indication they were intended to extend some protections in that situation but without conveying any intention to abrogate. Can I simply say this, Justice Brennan’s judgment makes it clear that heavy, if not controlling ‑ ‑ ‑

GUMMOW J: Can I ask you this. It may be important, Mr Young. Is there any rejection in the majority judgments in Yuill of the reasoning which has subsequently attracted the House of Lords in Morgan Grenfell?

MR YOUNG: Only to this extent, your Honour ‑ ‑ ‑

GUMMOW J: In other words, have they anticipated and rejected the basis which moved the House in Morgan Grenfell?

MR YOUNG: In terms of general principle, no, but in terms of the construction placed upon the particular lawyer provision - 20B(3), I think, in the English case and 308 in this case - the majority adopted a different construction. The majority adopted the construction that Justice Millett adopted in the BCCI Case, namely that by protecting the lawyer to some extent, that was an indication that that marked out the limit and Parliament was conveying that it intended to go no further and there was to be no protection for legal professional privilege.

The minority judgments of Justices Gaudron and McHugh rejected that view, saying simply that it was an intention to confer some benefit in circumstances where it was assumed, because of O’Reilly and that line of cases, that privilege was not available anyway, so an intention to confer a benefit did not convey an intention to abrogate. That is the sort of view that found favour with the House of Lords.

GLEESON CJ: I am not completely convinced at the moment that there is a majority view in Yuill. I thought that one member of the majority, Justice Brennan, regarded the development from O’Reilly to Baker v Campbell as significant and took the view, which was influential in his decision, that the statute ought to be construed as Parliament would have understood the law pre‑Baker v Campbell.

MR YOUNG: That is definitely so, your Honour, yes.

GLEESON CJ: That view was not, as I understand it, agreed in by the other two members who made the majority orders in Yuill, but I am not sure that it is right to accept that there is a majority view in Yuill.

MR YOUNG: Well, there was a majority outcome perhaps, your Honour.

GLEESON CJ: Yes, quite.

MR YOUNG: Yes, your Honour is correct. That was an important flag in Justice Brennan’s reasons. It epitomised at the top of 323 that the other judges rejected, but even if we put that to one side, your Honours, and look at the judgments, the role played by these other provisions that found no comparison in our case was effectively a controlling force.

Can I draw the Court’s attention to the list of indicia of legislative intention that Justice Brennan addressed. It commences at 324. There are numerous statutory indicia to which he refers, not replicated here, through that page. They include solicitors included within the definition of corporate officers. That is at point 2 on the page. At about point 4 on the page, section 308, the solicitors provision. At about point 8 on the page, section 299(2)(d), which resurrected privilege in certain instances and then the last factor his Honour turned to at 326 was the overall purpose of special investigations under the Act. It commences at 326 at about point 4 but his Honour refers to the Mortimer v Brown line of cases, Rees v Kratzmann and then Mortimer v Brown at 326 to 327 and extended those, it would seem, as one consideration supporting the view that legal professional privilege was excluded.

Now, Justice Dawson noted all the provisions at 329 and set them out. At 332 Justice Dawson noted the Mortimer v Brown, Hamilton v Oades line of cases as background. That is 333, second‑last paragraph at about point 8, having drawn attention to those cases concerned with hampering or impeding the operation of the statute, his Honour though went to the specific provisions and at 334 point 7 he addressed section 308, then he addressed 299(2)(d). At about point 8 at 334 his Honour says:
it manifests an intention to extend the protection of legal professional privilege no further; in particular, not to extend it to the client.

Justice Toohey agreed with Justice Dawson.

KIRBY J: That looks to be exactly opposite to what the House of Lords has done in the analogous legislation.

MR YOUNG: It is, exactly, yes, your Honour.

KIRBY J: One has to read it more carefully, but there does appear to be a common holding, and that is that you have this principle in Baker, it is very important, it must be given a lot of weight, but you have to construe the statute and here the statute, looked at as a whole, ousts the principle, and that is the common holding of the majority.

MR YOUNG: Yes. But by reference to particular provisions that their Honours said gave the strongest indications of a necessary intention to exclude the privilege.

HAYNE J: Not least the solicitor being an officer who was examinable.

MR YOUNG: Well, that is one of many indications.

HAYNE J: Yes.

MR YOUNG: Yes. Page 336 Justice Dawson sums it up in the middle of the page, about point 5:

there are the strongest indications in other provisions of the Code that the privilege was not intended to constitute a reasonable excuse –

and refers to “reasonable excuse”.

To construe it as embracing legal professional privilege would be to render ss 299(2)(d) and 308 superfluous and to produce an incongruity with the denial of self-incrimination as a reasonable excuse.

And then he goes to 308:

positively indicates . . . an intention not to extend the full protection of legal professional privilege beyond a legal practitioner.

KIRBY J: You passed over his Honour’s statement:

“Reasonable excuse” more aptly refers to any physical or practical difficulties in complying ‑ ‑ ‑

MR YOUNG: Yes, I did not mean to ‑ ‑ ‑

KIRBY J: ‑ ‑ ‑ and, in a sense, the language of this statute is, at least arguably, stronger for that type of approach than is the words “reasonable excuse”, which one could construe, and much more widely than Justice Gaudron and Justice McHugh did.

MR YOUNG: Your Honour’s point is valid, but the point remains that this case turned on those specific indications of legislative intention. The point we make about the case otherwise – firstly, we say it is distinguishable, but if that is wrong, or if it is necessary to go into it, it is our submission that there are deficiencies in the reasoning of the judgments of Justices Brennan and Dawson, in two respects. Can I simply identify them. One is what we have discussed, that is the weight or inferences drawn from provisions such as 308 and 299(2)(d) as conveying an intention to abrogate is not the preferred view. The preferred view is that of the minority about those sections, which was a view expressed by the House of Lords about very similar provisions, that is, they do not convey any intention to abrogate; at best they are equivocal and they are not sufficient to eliminate a fundamental right – that is one criticism we would make.

The other criticism is that there is, in our submission, a too ready extension of the Mortimer v Brown stultification test to legal professional privilege. That test, in all those cases, is expressed in strong terms, meaningless, inoperative, valueless, frustrated, hobble, et cetera.

GUMMOW J: Well, it seems to me it is the other way around really, because given subsection (2), which I think ordinarily would not be interpreted in accordance with the tax decisions to override legal professional privilege, it is all going to depend on whether the Commission goes under subsection (1) or subsection (2) of 155.

MR YOUNG: On the Full Court’s view of the matter?

GUMMOW J: Yes.

MR YOUNG: Yes.

GUMMOW J: And I notice that Justice Wilcox did not set out subsection (2) at the beginning of his judgment. There is just bits and pieces of the section set out. I am not sure whether Justice Moore ‑ ‑ ‑

MR YOUNG: No, I do not think so, your Honour.

GUMMOW J: Yes, well that seems to be part of the problem.

KIRBY J: Justice Moore said you have to read it in the section as a whole.

MR YOUNG: That is so but there was certainly a focus on subsection (5) and the argument we have advanced about subsection (1) was, in fact, advanced before the Full Court.

GUMMOW J: Yes, but not (5)(c), not (5)(c), which leads you back to (2).

MR YOUNG: Yes, I agree. In our submission the Full Court, perhaps prompted by Yuill, was very ready to attribute difficulties in the operation of the statute to the existence of legal professional privilege. I have drawn attention to Justice Wilcox at paragraph 57, saying:

the policy considerations . . . in relation to self‑incrimination –

referred to in Pyneboard and Mortimer:

are equally opposite to legal professional privilege.

In our submission, that is an error. We refer to Compass and Justice Dawson in Baker to the effect that that is not the case. Justice Moore was more circumspect about that matter. As I have pointed out, he said there are differences but, nonetheless, observations about hampering made in Yuill “are, to some extent, apt to apply”. His Honour then, however, said the problems are no less than the case of self‑incrimination.

In our submission, what Justice Dawson said in Baker v Campbell about that is correct, namely, that those sorts of arguments really do not withstand analysis in the case of legal professional privilege being confined, as it is, and not reaching either documents that are the implementation of ordinary transactions with which the Act is concerned in Part 4 and not reaching any documents or communications brought into existence in furtherance of a crime or fraud.

Can I add this as well? The statements made by Justice Moore about significant practical impediments are, in our submission, really matters of Parliament, not matters to be speculated about by courts, in this respect: legal professional privilege always takes out of the province of purview, either by a court or administrative body, documents that are the subject of legal professional privilege. That was the case in Baker and it is always the case in legal professional privilege in the context of a trial.

To say that the ACCC would like to see the whole picture is like the tax commissioner in Morgan Grenfell saying they would like to access to the privileged documents. That is really a wholly inadequate reason for saying that the unavailability of those documents is a basis for inferring abrogation. It is inherent in the existence of the privilege and always is.

KIRBY J: It is acknowledged that there is no binding authority which requires a particular decision in this case of this Court because Pyneboard did not deal with this and Yuill did not deal with this particular issue.

MR YOUNG: Statute.

KIRBY J: Therefore, there is nothing binding on us to require, though, of course, one seeks to put it into its proper place in the development of doctrine. But if, therefore, there is an ambiguity and one seeks to put it in doctrine, why, as a matter of legal principle, do you urge the interpretation you do apart from saying the Court has acknowledged it is a very important doctrine and the Parliament has not expressly taken it away. If it wants to take away such an important right of citizens it should say so, expressly. It has not done so here and if it wants to there is no constitutional impediment to its doing so later and for 30 years or 25 years or whatever it was the respondent was able to cope. And, in any case, documentary material covered by this privilege is not going to be as wide as self‑incrimination. Is there anything else?

MR YOUNG: Well, your Honour, we would say several things. First, we would say it is not a complete statement to say that there are no binding authorities dealing with this issue ‑ ‑ ‑

KIRBY J: With this very section.

MR YOUNG: Well, Baker v Campbell, your Honour, dealt with a general power to obtain documents by search warrant. We submit that there is really no distinction between Baker v Campbell and this case. True, it is a different provision, but they were both very general powers. Section 115(1) is really no different from section 10 of the Crimes Act. Subsection (5A) does not afford a sufficient difference or basis for distinction from the Campbell line of cases, whereas Pyneboard and Yuill, one was a very different privilege and Yuill was a very different statutory context.

Secondly, the argument that the availability of privilege would frustrate investigation altogether and prevent Part IV being enforced, which was the argument accepted about a different privilege in Pyneboard, is not, in our submission, available here in respect of legal professional privilege for the reasons given by Justice Dawson in Baker at, I think, page 132.

GAUDRON J: There is another aspect, I think, Mr Young. If you look at subsection (2), which at least provides part of the general context for subsection (1), it may be that there is binding authority in Coco.

MR YOUNG: Yes, we understand that proposition, your Honour, and we would embrace it. Coco, in our submission, is the governing principle, and it was not applied, in our submission. Had it been applied, the reverse approach would have been adopted. The general words would have been presumed not to extend so far, and another available interpretation such as that advanced or referred to by Justice Lindgren or by Justice Gummow in the context of subsection (2) would have been preferred to one that abrogates a fundamental right. Nor would we say there is any basis for a necessary implication, and we hark back to what Lord Hobhouse said about necessary implication.

It is not a question of whether it is reasonable or whether you could understand that Parliament would want to limit or eliminate legal professional privilege. It is not a question whether there are practical problems that Parliament ought to consider in deciding whether to do so or not. The question is whether, as a matter of necessary implication, it has done so. In our submission, there is no such basis for a necessary implication. Unless I can assist the Court further, those are my submissions in‑chief.

GLEESON CJ: Thank you, Mr Young. Yes, Mr Gageler.

MR GAGELER: Your Honours, I will aim to finish by lunchtime. The Woolworths and Coles matters differ from Daniels in two respects, neither of which we see as material. They are concerned with notices issued to clients and not to lawyers and the compliance with the notices falls to be governed by section 155 in its currently amended form, that is, the form in which it has existed since 15 December last year.

GUMMOW J: Well, that is not the same form as Mr Young’s form, is it?

MR GAGELER: No. I will come to that. Your Honours, without repetition of Mr Young’s submissions, which we are content to adopt, we propose to address briefly on three topics. One is the relevant principle of construction, two is the application of that principle to section 155 in its amended form, and the third is the status of Yuill.

The principle of construction is that set out in our written submissions in paragraph 6 in the form of two propositions. The first proposition derives in Australia from Baker v Campbell in 1983. The second proposition can be traced back in Australia to Potter v Minahan in the very first days of this Court, but it received its clearest modern expression in Coco v The Queen in 1994. That date is significant because it postdates Yuill by some three years and Yuill, in our submission, must be put in that historical perspective.

As Your Honours have seen, both propositions are now supported by the decision of the House of Lords in Morgan Grenfell very much in the terms in which we have stated them. They have been stated by Lord Hoffmann in paragraph 7 and 8 and Lord Hobhouse in paragraphs 44 and 45. Your Honours have been taken to paragraphs 44 and 45 of that decision, but by reference to them can I point out two things about the principle of statutory construction.

The first, in paragraph 44, in Lord Hobhouse’s speech, one finds what Mr Young has labelled the “principle of legality”. It is the pro‑democratic justification for the rule of construction. That is the quotation from Ex parte Simms. One finds in Coco v The Queen, 179 CLR 437 at point 9 a statement in substance identical, although using rather different words. What the four members of the Court said with the concurrence of two others was that:

curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.

What the principle of construction does is to set a default position. It does not rely on imputing a parliamentary intention to adhere to that default position.

GLEESON CJ: Mr Gageler, was Parliament given any explanation of the amendments to section 155, and in particular to the rearrangement of the provisions concerning incapability of complying with a notice?

MR GAGELER: The explanation is tied entirely to the enactment of the Criminal Code which occurred in 1995 and to the working through of the provisions of the Criminal Code simply to deal with ‑ ‑ ‑

GLEESON CJ: That is the explanation that is given in your written submissions.

MR GAGELER: Yes.

GLEESON CJ: But was there any explanation given to Parliament?

MR GAGELER: There was a second reading speech and explanatory memorandum. We can provide those to your Honour but in substance they simply deal with working through the implications of the Criminal Code in this and in a number of contexts. There were quite a package of Bills that were put through Parliament pretty much at the same time.

GLEESON CJ: So he only explanation that was given to the Parliament of the relevant amendment was that it concerned the onus of proof?

MR GAGELER: Yes. If your Honour pleases, the second point ‑ ‑ ‑

KIRBY J: This democratic principle was referred to in the Court of Appeal in Yuill but the court was reversed. I mean, this was all said before Coco.

MR GAGELER: That is part of my point about Yuill, your Honour, it was all said before Coco. Coco really overtakes the reasoning of the majority in Yuill, and I will come to that. The second point from Lord Hobhouse’s judgment concerns paragraph 45 and that is the necessary implication limb of the test of abrogation which, in our submission, flows very much from what I would call the pro-democratic justification.

A necessary implication is one which –

his Lordship says, flows necessarily from the language used, it is not simply one that is reasonable or convenient or even what Parliament is likely to have intended.

That language is very much consistent with the language of Coco and Bropho, which refers to an intention manifested by unmistakable and unambiguous language or an intention to abrogate appearing with irresistible clearness. In our submission, they are, in substance, one and the same.

Your Honour the Chief Justice asked about the position of accountants and it was mentioned that the Commissioner of Taxation has issued guidelines which, in substance, equate the position of accountants giving legal advice with that of a legal practitioner for the purposes of sections 263 and 264 of the Income Tax Assessment Act. Those guidelines were discussed in a judgment of Justice Burchett in ONE.TEL Limited v Commissioner of Taxation (2000) 101 FCR 548 at pages 564 and following.

Coming to the application of the principle and to the relevant form of section 155, the notices were issued to the plaintiffs, that is to Woolworths and Coles, that these proceedings on 17 August 2001. At that time the section was in the form that it appears in Reprint No 8, that is in the identical form to that which it was considered in Daniels at the time of the issue.

However, in each case the notice has been varied so that the time for compliance has been ultimately extended to 14 days after the Court delivers its reasons for decision in these cases. Your Honours can see that from the instruments appearing at pages 40 and 80 of the case stated book. So that if there is to be a failure to comply, that failure to comply can only occur after the date for compliance set by the notices, which is after, of course, 15 December 2001, which is the date upon which the amendment came into operation.

By virtue of section 4(1) of the amending Act No 146 of 2001 it is the amended form of section 155(5)(a) that would apply. If there is any significance in the amendments it is simply this, that as amended, paragraph (5)(a) of section 155 simply reads:

A person shall not:
(a) refuse or fail to comply with a notice under this section –

and subsection (5A) in terms somewhat similar to subsection (7A) creates a defence to that general provision.

Applying, then, the relevant principle of statutory construction to the words of section 155, our primary submission is that if there is an intention to abrogate legal professional privilege is to be found relevantly in subsection (1) read in its context with subsection (2) and, of course, paragraph (5)(a), (5)(b) and (5)(c). One would be committing error, as did the Full Court of the Federal Court in Daniels, in our submission, in focusing simply on paragraph 5(a).

GLEESON CJ: Is that a convenient time, Mr Gageler?

MR GAGELER: Yes, your Honour, I had almost finished.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: To deal precisely with the question your Honour the Chief Justice asked just before lunch, your Honours are being provided with a revised explanatory memorandum for what became Act No 146 of 2001. The relevant explanation is at paragraphs 1.40 page 8 through to 1.43 page 9, most usefully in the first of those paragraphs 1.40.

GLEESON CJ: Thank you.

MR GAGELER: If it is correct, as we put our primary argument, that the focus for the abrogation of legal professional privilege ought be on the scope of the power conferred by subsection (1), then the amendment is irrelevant because the amendment was not in force at the time the notices, in our cases, were issued. If, however, it is correct, as our learned friends suggest, to focus at all on paragraph (5)(a) then the amendment, in our submission, assists in making clear that the qualification concerning the extent to which a person is capable of complying is a defence and, as your Honour the Chief Justice has said, is related to the precondition for the exercise of the power conferred by subsection (1), that is, the “reasonable belief” aspect of subsection (1) rather than the scope of the power, that is the nature of the documents, or the information that fall within the power.

To deal with a question your Honour Justice McHugh asked of my learned friend, Mr Young, concerning the position of waiver. As we see waiver, your Honour, it is simply part of the definition of the circumstances in which legal professional privilege will or will not apply to particular documents or information.

Can I then deal somewhat briefly with the status of Yuill, adopting my learned friend Mr Young’s submissions on that topic, but perhaps adding just two things. The first is Mr Young said primarily that the decision in Yuill need not be addressed. It was concerned with different legislation expressed in different terms. Can I add to that, that it was concerned with legislation that is no longer in force. It was concerned with Part VII of the Companies Code dealing with special investigations, that is, at least two versions of the Corporations Law ago. There are now somewhat similar but by no means identical provisions in the Australian Securities and Investments Commission Act 2001, but there is no precise equivalent of the Part VII special investigation. That is one point.

The second point related to my opening observation as to the historical place of Yuill between Baker v Campbell and Coco. In our submission, it can be said, with the benefit of hindsight perhaps, that Yuill was wrongly decided, but it may better be said, adopting the language of the majority in Annetts v McCann 170 CLR 599 dealing with Testro v Tait, at 601 to 602 where it was simply said that in view of the developments which had occurred in the intervening years in relation to the understanding of the principles of natural justice “the view of the majority in that case would not prevail today”. If your Honours please.

GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Robertson.

MR ROBERTSON: If the Court pleases. Your Honours are dealing with a question of construction of section 155 of the Trade Practices Act. There is an unresolved disputed question of fact which your Honours are not concerned with as to whether any of the documents that are claimed to be the subject of legal professional privilege are, in fact, subject to legal professional privilege.

Certainly we accept that section 155 has to be read as a whole and certainly we accept that section 155 is the starting point, but it is to be read as well with section 155(5). That the section has to be construed as a whole with the defence or the liability, the limited liability and defence follows from the line of cases in this Court dealing with self‑incrimination privilege beginning, perhaps, no earlier than Mortimer v Brown 122 CLR 493 at pages 496 and 498, which was mentioned this morning, and going through, if I can just list three or four decisions, Controlled Consultants v Commissioner for Corporate Affairs 156 CLR 385, The Police Service Board v Morris 156 CLR 397, Hamilton v Oades 166 CLR 486, which we referred to in our written submissions, and, of course, Corporate Affairs Commission v Yuill 172 CLR 319.

So, as this Court did in Pyneboard, one starts with the language of the section. Their Honours in Pyneboard looked at subsection (1), looked at, as well, section 155: in the course of answering this question there is the language of the section and then, going on to ask does the character of the provision and the purpose it is designed to achieve affect the meaning of the language that the Parliament has used.

That approach can perhaps be seen and summarised clearly in your Honour Justice McHugh’s judgment in Yuill’s Case 172 CLR 319 at 346, where your Honour sets out the first step in statutory construction and then says that plain meaning may be affected by the principles, and including, at the foot of the page, the:

rule of construction that, in the absence of a clear contrary indication, legislation is not to be interpreted as abolishing basic common law rights and privileges.

So, in terms of Pyneboard, in our submission, certainly the dispute was as to whether or not the express mention in section 155(7) of self‑incrimination privilege had any implication in relation to the issue before the court, which was the privilege against self-exposure to a penalty. Their Honours in the majority proceeded as I have indicated, that is, first of all by reference to section 155(1) – that is at 152 CLR 328 at 332. If I can pass over it relatively briefly since my learned friend, Mr Young, has taken your Honours to it. Their Honours then set out at 333 subsections (5) and (7) and assumed at 335:

that the privilege against exposure to conviction for a crime and the privilege against exposure to a civil penalty is available to a corporation in Australia.

Then went on to explain at 337, point 5, the approach to the construction of section 155 and considered various authorities at the following pages, English and Australian, and referred at the foot of 340 to the “rule of the common law”, the self‑incrimination privilege, as a “fundamental bulwark of liberty”. Then at 341, point 6, is the passage that your Honour Justice McHugh in Yuill’s Case set out, beginning with the words:

it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges –

and that is the principle that, in our submission, the Full Court of the Federal Court applied and the passage that I was going to take your Honours to is at 341, point 7:

In deciding whether a statute impliedly excludes –

and we take that to mean all cases where the statute does not say “this particular privilege” – naming it – “is expressly excluded”. So in deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. Their Honours go on to say, and I think, as well, this part of the passage was set out by your Honour Justice McHugh:

The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation.

Then their Honours refer to Mortimer v Brown but this is a point at which we part company with our learned friends. There is no, in our respectful submission, principle that requires the operation of a statute to be stultified before any common law privilege is displaced if by stultification is meant that it would not work at all, because what their Honours said in Mortimer v Brown in the passage set out at page 342 in Pyneboard, Justice Kitto said that:

To read down the wide terms of the section . . . would render the provision relatively valueless in –

certain cases, and Justice Walsh, again in the passage set out at page 342, said:

the character and purpose of the provision are such that a construction which would curtail its operation in the manner and for the reason suggested ought not to be adopted.

KIRBY J: What, in the facts of this case, would lead to that sort of conclusion? Because on the face of things I could understand that conclusion being voiced in respect of an omission to answer questions which may sometimes be the only way in which the investigator can get at the truth, but where it is a refusal to produce documents which have to be documents produced with a dominant purpose of the litigation, that is a relatively confined class.

MR ROBERTSON: Your Honour, could I answer that in a number of ways. First of all, of course, it is not limited to a dominant purpose for the communication being for use in litigation because, of course, it extends to any communication for the dominant purpose of giving or receiving advice and I did not understand your Honour to be limiting it in that way.

Perhaps I can answer it this way. In our respectful submission, if one compares the position that their Honours in the joint judgment in Pyneboard were considering as to rendering a provision relatively valueless in matters of that sort, their Honours were not saying the statute would not work at all because, of course, an officer of the corporation could never have claimed the privilege against self‑incrimination in relation to the corporation so that depending on who you were asking, that observation makes the exercise a relative one.

Now, your Honour says, “What about the facts of this case?” Of course it is not known, apart from the fact that the Commission, the chairperson, has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes or may constitute a contravention of the Act. Nothing more is known about the utility of these particular documents.

HAYNE J: That is not right, is it, Mr Robertson? Something more is known because the hypothesis for debate is that the documents are in fact caught by legal professional privilege.

MR ROBERTSON: Of course.

HAYNE J: Therefore it is known, is it not, that the communication concerned is a communication for the purpose of giving advice either as to the lawfulness of what has been done in the past, or as to the lawfulness of what is proposed to be done. But is there some further category of document that might properly come within “privilege” other than those two I have just identified?

MR ROBERTSON: Probably not, your Honour. There may be, if one looked at the documents and the claim, there may be some in a class of apprehended legal proceedings. One just does not know.

HAYNE J: Let it be assumed there is. How does keeping those from the Commission present any barrier to the Commission investigating, apparently in the context of these cases, though it may extend much beyond that, whether there has been a contravention?

MR ROBERTSON: Your Honour, the case that I am dealing with is a case of apprehended or potential breach of section 45 of the Trade Practices Act. If for example the only document that disclosed the corporation’s purpose in arriving at a particular arrangement was the subject of the claim, then plainly that would fit within the category of importance to the investigation or, indeed, if the document showed that the corporation about whom the Commission or the Chairperson had a reason to believe, in fact had nothing to do with it. So if, as we submit, one approaches the question first by asking, after looking at the language, what is the character of the provision and the purpose which it is designed to achieve and if one accepts, as the Full Court of the Federal Court did, that the purpose is to facilitate the investigation, or to use I think Justice Wilcox’s language, to enable the Commission in the investigation to see the whole picture ‑ ‑ ‑

HAYNE J: The notion of seeing the whole picture is simply circulatory, is it not? That is, the question is, “Is anything to be kept from them?” That is not answered sufficiently by saying, “If you keep something from them they do not have it.”

MR ROBERTSON: Your Honour, one has to of course start at a particular point to try and break the circle, or not venture into the circle. If one asks the question, as indicated in Pyneboard, as a first step, “What is the purpose of this power?”, then, in our submission, one can answer that without anticipating the result of the very question your Honour has indicated. If one says, “What is the purpose of the power?” and answers that by saying, “The purpose of the power is to enable the Commission to investigate these punitive offences in order to decide what role if any the particular party has or does not have in relation to the alleged contravention”, then that is a first step. I would fully accept that it is not the last step, and it does not necessarily answer the question of statutory construction that your Honours have.

KIRBY J: I asked my question because I had in mind paragraph 5 in the case stated in the Woolworths matter. I know you are not dealing with that, but are we to take it that the facts are different in the two cases or can we assume that in your case the same position can be assumed, namely, that the plaintiffs have in their possession the documents which comprise confidential communications by legal advisers and so on, and in respect of which a claim of professional privilege is made?

MR ROBERTSON: Is your Honour referring ‑ ‑ ‑

KIRBY J: I am referring to page 58 in the Coles Myer ‑ ‑ ‑

MR ROBERTSON: I think the answer to your Honour’s question is probably, yes.

KIRBY J: In that case, there is, as it were – part of the stated case tenders the issue crisply.

MR ROBERTSON: Well, there may not be as many subcategories because what your Honours do have in the present case is reproduced in the appeal book, and perhaps I can give your Honours a reference to it.

KIRBY J: It is a pity to allow facts to intrude into this matter, but having regard to the way it has come up from the Federal Court it just seems to have been assumed that the facts tendered the issue of law otherwise it ought not to have been dealt with.

MR ROBERTSON: Yes. Your Honour, the fullest statement of the facts is to be found at pages 4, 5 and 6. When I say statement of the facts, setting out what the claimed classes of documents are in the Daniels Case. That is, a schedule to a statutory declaration which was ‑ ‑ ‑

KIRBY J: It does not make much sense, really.

MR ROBERTSON: Well, it does not, and that is why I started by indicating that there is an unresolved factual question, that this was the basis upon which the Full Court of the Federal Court or originally the single justice and then the Full Court of the Federal Court answered the question of principle, that is, whether or not the power in 155 ‑ ‑ ‑

KIRBY J: But are we to assume in this case, that is to say your case, that these documents which are on pages 4 to 6 include confidential communications between – that have been the subject of communications between a client and a lawyer for the purpose of receiving advice in respect of which a claim for legal professional privilege is made?

MR ROBERTSON: Yes, your Honour. Whether ultimately it turns out that a claim is well made in relation to every document is a question your Honours need not concern yourselves with.

CALLINAN J: But if the stated case – if the questions asked were to be answered, no, would that dispose of the actions in these two matters?

MR ROBERTSON: I am sorry. If the question, can the production of documents to which legal professional privilege attaches be compelled – if the answer was, no, then that answer would not dispose of the action in the Daniels Case because if the answer were, no, then the unresolved factual question of whether any and if so how many of these documents are in truth subject to legal professional privilege having been claimed would remain and it would have to be ‑ ‑ ‑

CALLINAN J: I am sorry. I was really thinking of the other matters. I should ask Mr Sheahan about that.

MR ROBERTSON: Can that wait, your Honour?

CALLINAN J: Yes, of course.

MR ROBERTSON: If your Honour pleases. I was taking your Honours, I think, to Pyneboard at 341 for the purpose of indicating that the second inquiry, having looked at the language of the statute, is to examine what is the character of the provision and the purpose which it was designed to achieve, and the issue is, does that character and purpose indicate that the obligation to provide documents is not intended to be subject to any qualification? Those matters are, of course, central to determining whether the statute takes away the common law right by express words or necessary implication.

Without taking your Honours to them, we have set out in paragraph 35 of our written submissions a number of cases, including Hamilton v Oades, which I have already referred to, where Chief Justice Mason, Justice Dawson, Justice Toohey, Justice Deane and your Honour Justice Gaudron referred to the test, that is, the rule of statutory construction, requiring a clear expression of legislative intent.

Could I indicate before passing from that topic that your Honour Justice Gummow, I think, asked my learned friend, Mr Young, about section 155(2) and the different obligation in section 155(5) in relation to that provision. My submission, your Honour, is that subsection (2), as I think your Honour Justice Gaudron indicated, is much more akin to a search warrant power or a power for full and free access ‑ that is a power authorising what would otherwise be a trespass – and that there is for those reasons a different answer to 155(2). It is really the ‑ ‑ ‑

GUMMOW J: Well, what is the answer to 155(2)?

MR ROBERTSON: The answer being that 155(2) does not displace legal professional privilege in the same way that the full ‑ ‑ ‑

GUMMOW J: You say “in the same way”.

MR ROBERTSON: I am sorry, your Honour?

GUMMOW J: Are you saying it does not displace legal professional privilege?

MR ROBERTSON: Yes, in the same way as their Honours in the Federal Court in Citibank held that section 263 of the Income Tax Assessment Act, which referred to full and free access, but in relation to which there were no words equivalent to the words “obligation ‑ ‑ ‑

GAUDRON J: What is it that brings about the difference, in your submission, between the operation of subsections (1) and (2)? Is it in those subsections or is it in subsection (5)?

MR ROBERTSON: It is the difference in language between subsections (1) and (2) on the one hand, and the different paragraphs in subsection (5). So it is in both places, your Honour.

GAUDRON J: Could you take us through the individual bits that you say bring about that consequence? I should think it would be a little bizarre if the sections were to be given a different operation.

MR ROBERTSON: The provisions in subsection (1) are, as your Honours would be familiar with, the power is conditioned on a:

reason to believe that a person is capable of furnishing information, producing documents . . . notice in writing served on that person ‑ ‑ ‑

GUMMOW J: That is something they have in common.

MR ROBERTSON: I am sorry, your Honour?

GUMMOW J: Both subsections require “reason to believe”.

MR ROBERTSON: Yes, and subsection (2):

reason to believe that a person has engaged or is engaging in conduct –

and then there is no notice requirement under subsection (2):

if the Commission . . . has reason to believe . . . a member of the Commission may . . . authorize . . . a member of the staff . . . to enter any premises ‑ ‑ ‑

GUMMOW J: Yes, “and make copies of, or take extracts”.

MR ROBERTSON: Yes, then 155(5)(c) provides that:

A person shall not . . .
(c) obstruct or hinder an authorized officer –

So there is no notice under 155(2).

GUMMOW J: No, but you have to hand over the documents in both circumstances. Whether you look at it by saying you permit them to make copies of them or whether you yourself produce them seems to me beside the point at the end of the day.

MR ROBERTSON: Your Honour, there is a different power but there is a different obligation as well. On the one hand, there is a notice requiring either information or documents where the Commission believes that a person is capable, and an obligation that:

A person shall not:
(a) refuse or fail to comply ‑ ‑ ‑

GUMMOW J: The privilege attaches, as we said in Propend, I think, to the information in the documents.

MR ROBERTSON: Yes, of course, your Honour.

GUMMOW J: It is not to the chattel as such.

MR ROBERTSON: Yes. I am using a shorthand when I talk about documents, documents plainly that are the form of the communication. The powers are different in nature and as I have earlier indicated 155(2) permits ‑ ‑ ‑

GAUDRON J: Their purposes, though, are the same, are they not, and their object is the same?

MR ROBERTSON: In a broad sense, your Honour, yes, they are.

GAUDRON J: One is simply a power to require production and the other is a power to seize. Why should the fact that one is a power to require production and the other is a power to size make any relevant difference?

MR ROBERTSON: It is partly because 155(2) authorises, as I was submitting, the member of the staff to enter any premises and inspect documents, so it is a power that is much more akin to the power that used to be in section 10 of the Crimes Act, that is, a search warrant power to go on to premises. Your Honour Justice Gaudron indicated before lunch that Coco v The Queen, and that principle, is more directly referable, or is referable, to subsection (2) but not, we would add, with respect, to subsection (1). So, although in a broad sense both powers are directed to the obtaining of information ‑ ‑ ‑

GAUDRON J: It does seem to me, Mr Robertson, when you say that and when you emphasise the difference in the power, you are doing anything but pointing to language of the kind that it is now uncontroversial is required, either language or effect, and if you accept it in respect of subsection (2) what is it that manifests the intention or dictates the consequence that it be so construed?

MR ROBERTSON: The answer, in our submission, to your Honour’s question are the words that are used in subsection (1) and reflected in 155(5)(a), that is ‑ ‑ ‑

GAUDRON J: A reasonable ‑ ‑ ‑

MR ROBERTSON: No, I am not talking about the reason to believe, your Honour. I am talking about whether or not a person is capable of either furnishing information or producing documents and that is not a condition of the power in subsection (2) and when the obligation is stated in 155(5)(a) that:

A person shall not:
(a) refuse or fail to comply . . . to the extent that the person is capable –

that is, of course, referable only to where there is a notice and there is only a notice under subsection (1) and not under subsection (2).

GUMMOW J: That is meant to encourage the Commission to rely on its powers in (1) rather than its powers in (2), I suppose.

MR ROBERTSON: That may be so, your Honour. That may be so. In terms of authority, as I indicated, the ‑ ‑ ‑

GAUDRON J: Have a look at subsection (6), Mr Robertson. Let us assume for the moment that is the solicitor who is holding the documents, the information in which is privileged. I would have thought that was somewhat stronger, really, and it clearly relates to subsection (2), they are incapable of complying with. It is a positive obligation.

MR ROBERTSON: To:

provide . . . all reasonable facilities and assistance ‑ ‑ ‑

GAUDRON J: Yes. Here are the documents.

HAYNE J: Under (2), can the Commission actually seize the document? It cannot, can it? Under (2) it can:

inspect . . . make copies of, or take extracts from ‑ ‑ ‑

MR ROBERTSON: That is right, yes. That is so.

GAUDRON J: Yes.

HAYNE J: Thus, your obligation under (6) is to facilitate inspection of the communication, copying of it or taking extracts from it, is it not?

GAUDRON J: “Here is the document, here is the photocopier and here is my clerical assistant who will copy it for you.”

MR ROBERTSON: Well, your Honour, whether it extends that far is perhaps another issue, but ‑ ‑ ‑

GAUDRON J: But it goes beyond, is capable of.

HAYNE J: And under (1), can the Commission retain the document that is produced to it?

MR ROBERTSON: I think there is a provision, your Honour, in a later section.

HAYNE J: Because it would seem strange if there is a privilege against showing it to them, but there is no privilege against them being able to seize it; a very odd result, is it not, Mr Robertson?

MR ROBERTSON: A privilege against ‑ ‑ ‑?

HAYNE J: If under (2), legal professional privilege is an answer to the Commission’s demand, “Please let me look at this communication, this document”, but privilege is not an answer to a demand under subsection (1), “Please produce it to me”, and if there is power to the Commissioner to require it to be left with them for a time, it is an odd result, is it not? Privilege against showing it; no privilege against seizure.

KIRBY J: Do you accept that differentiation or do you say the privilege has nothing to do with either subsections?

MR ROBERTSON: No, I was accepting for these purposes, your Honour, that because of the difference in language between 155(1) and 155(2) and, in particular, the words that have been the subject of debate this morning, that is that under (1) the question is whether a person is capable of furnishing information and also, under 155(5)(a), that the privilege was displaced by 155(1); the power in 155(2) is a power to enter premises and inspect documents. What I was going to go on to say is that it is really no different from the position that has been reached in the Full Court of the Federal Court whereby under the decision in Citibank, looking at the equivalent power to 155(2), in section 263 of the Income Tax Assessment Act, that is an authority in the Commissioner of Taxation to have full and free access to documents, that has been held not to displace legal professional privilege, one of the reasons being that there was no equivalent, and there is no equivalent, in relation to section 263, unlike 264, that is that the person shall comply with the requirement to the extent to which the person is capable. So, in my submission, the difference in language and the difference in the nature of the power leads to the distinction that I have indicated.

HAYNE J: Now, the power for the Commission to retain is section 156?

MR ROBERTSON: Section 156, yes, that is what I was looking for, thank you, your Honour. In our submission the same principle, in relation to the displacement of the privilege, applies to either or both of the common law privileges that have been under discussion and are dealt with in the decisions such as Mortimer’s Case, Baker v Campbell. If I could take your Honours to Baker v Campbell for a moment ‑ ‑ ‑

GUMMOW J: Before you do that, Mr Robertson, have you detached yourself from the reasoning in the Full Court?

MR ROBERTSON: Have I detached myself, your Honour, no.

GUMMOW J: Yes. I thought you might be doing it sub silentio.

MR ROBERTSON: No, your Honour; which particular part of it did your Honour have in mind.

GUMMOW J: Well, conclusions 1 to 6 of paragraph 49, for example.

MR ROBERTSON: Yes.

GUMMOW J: There was great criticism directed against points 4 and 6 by Mr Young, for example.

MR ROBERTSON: There was criticism, your Honour, directed to begin with at (iii) but, in my submission, (iii) is no more than a restatement of the relevant principle, that is that the common law rule about legal professional privilege is not to be taken as abrogated in a particular case except by clear words. That is his Honour’s paraphrase and an accurate paraphrase, in our submission, of the necessary intendment limb of the express words or necessary intendment principle.

KIRBY J: This is a straw man because my note is the same as Justice Gummow. The attack was on (iv) and (vi).

MR ROBERTSON: But it is important that when one gets to (iv), no doubt his Honour says “has used words that, in their natural meaning” but having already said that clear words are necessary his Honour should not be taken, in my respectful submission, to be claiming any new or different principle.

KIRBY J: You see, the problem is that (iv) is really stating the usual rule. You construe legislation according to its ordinary meaning on its language –that is Re Bolton; Ex parte Beane – but when you look at these cases where it is said that there is an important common law privilege which is being taken away, there is this special rule and you have to put on special glasses.

MR ROBERTSON: You have to look for clear words.

McHUGH J: I know, but that is part of the problem. I mean, when you read Justice Brennan’s judgment in Pyneboard in particular, but also Sir Anthony Mason’s judgment in the same case, it is very difficult to believe or to accept that he joined Justice Gaudron and I in Coco. Their approach is just so different in Pyneboard and the law had moved on a great deal in the next 11 years. At 355 Justice Brennan says:

To construe a statutory provision, clear and absolute in its terms, as though it were qualified by privilege is to import a principle applicable to judicial procedure into the area of investigation by a law enforcement agency.

Nothing about fundamental rights. It is a voice almost from another era, Pyneboard. I mean, human rights have moved on and particularly from about 1987 onwards in this Court much more emphasis was given to the right of the individual in a series of cases.

MR ROBERTSON: Your Honour, can I say two things in relation to that? One is that the test still is whether there are clear words. Secondly, we would submit, with respect, that legal professional privilege is not a human right and this Court has not held that it is a human right.

McHUGH J: Well, I think I have said it was. Have not the European ‑ ‑ ‑

KIRBY J: I said it in Yuill, but I was overruled.

MR ROBERTSON: I am sorry, your Honour. Your Honour Justice McHugh may well be right, but if one looks at the convenient – in Propend 188 CLR 501, if one looks at Justice Gummow’s collection, if that is the right word, of statements at 564. If I could ask your Honours to go to that. Of course, this approach avoids the difficulty that your Honour the Chief Justice was adverting to before lunch, that is that one is exercising a fundamental human right in talking to a lawyer but not in relation to anybody else, but Justice Gummow at the foot of 564, last five lines, it is:

more than an aspect of procedural law –

that is uncontroversial –

it is then a question of identifying its true character. Views differ as to whether the privilege is to be characterised as “a practical guarantee . . . of fundamental constitutional or human rights”, “a substantive rule of law”, or one of those traditional common law rights which is not to be abolished or cut down otherwise than by clear statutory provision.

His Honour refers to Maurice, Bropho and Coco in footnote (268) and then ‑ ‑ ‑

KIRBY J: There is a bit of a problem in talking about a human right of corporations like the present parties. Mr Yuill was a human being but these are corporations and this was explored in Lenah Meats v ABC as to whether or not you extend these notions into corporate rights.

MR ROBERTSON: Yes. Well, in a sense ‑ ‑ ‑

KIRBY J: There has been debate about this.

MR ROBERTSON: Quite so, your Honour, and in a sense what Justice McHugh was saying is evidenced by the passage of time between Pyneboard, where their Honours assumed for the purposes of argument that the privilege was available to corporations, and Caltex where, of course, the Court held that they were not.

GLEESON CJ: Which privilege, self‑incrimination?

MR ROBERTSON: Self‑incrimination privilege, yes, your Honour.

GLEESON CJ: No one has ever suggested that legal professional privilege is not available to corporations.

MR ROBERTSON: No, they have not, but I think his Honour Justice Kirby was perhaps flagging the possibility that if one uses language to justify legal professional privilege, if one uses language of human rights, then that issue of the entitlement of corporations to human rights is raised.

KIRBY J: Justice Gummow goes on in Propend to say, or traditional common law rights or constitutional rights, it does not have to be explained in terms of human rights. It is just a fundamental right of citizens, natural and legal persons in our country, that you can get the very useful advice of a lawyer.

MR ROBERTSON: Yes.

KIRBY J: Apparently your client, so we understand, was content to go along with this for decades, then suddenly you change.

MR ROBERTSON: We make two answers to that, your Honour. One is that that is not, in any event, the position.

KIRBY J: Is that in evidence before us, or not?

MR ROBERTSON: Yes, it is, your Honour. Could I ask your Honour to look at the appeal book.

GUMMOW J: Just before you leave Propend, it may be that what we are really talking about, as Justice McHugh mentioned this morning, is an immunity.

MR ROBERTSON: Yes, I was going to go on to read the end of that and perhaps I might do that before ‑ ‑ ‑

GUMMOW J: It is not a right that breach of which gives rise to the cause of action.

MR ROBERTSON: No, exactly, as your Honour says in the immediately following paragraph to the passage that I was reading out.

GUMMOW J: There may be a coincidental cause of action for trespass, or whatever.

MR ROBERTSON: Yes, or I think your Honour indicated breach of confidence, yes. To answer your Honour Justice Kirby’s question, and I think your Honour Justice McHugh raised this point as well this morning, if I can take your Honours to the appeal book, page 25, this is a document dating from 1994 and that can be seen at page 11 of the appeal book. It is called, “Section 155 of the Trade Practices Act – a guide to the administration of the Trade Practices Commission’s power to require provision of information”, I think it reads. It talks about availability – I will not read it all out to your Honours. It refers to Baker v Campbell. It refers to Yuill’s Case. It refers, at point 8 of the page, to the possibility that Yuill might be distinguishable but then goes on to say:

The Commission’s present policy is generally to refrain from pressing for documents or information declined on the basis of a claim for legal professional privilege.

Then, at the top of page 26, it says:

nevertheless, prepared to require documents in such circumstances if it thinks it appropriate –

What one may glean from the comparison – and perhaps I should for completeness take your Honours to pages 68 and 69 ‑ ‑ ‑

KIRBY J: Just before you leave it, it says:

for example where there is an attempt to use legal professional privilege to ‘protect’ vital documents by transferring them to the legal adviser’s custody.

That would raise a number of questions. First of all whether the document was entitled to legal professional privilege at all under current remit and, secondly, perhaps, whether there was not some fraudulent act which would deprive a party anyway.

MR ROBERTSON: Quite possibly.

CALLINAN J: It is talking of abuse of legal professional privilege.

MR ROBERTSON: It is an example, your Honour, but what I wish to draw attention to – that is an example. It may not ‑ ‑ ‑

CALLINAN J: Of abuse of legal professional privilege.

MR ROBERTSON: Yes. I was going to say it may not be a very good example, but it is an example of what immediately precedes it, that is:

prepared to require documents in such circumstances if it thinks appropriate.
Now, the guide which begins at page 50, and dated October 2000 ‑ and I am addressing the question of, I suppose, practicality. It does not obviously go to the question of statutory construction. But at page 68 of the appeal book one can compare page 25 to page 68. Page 25 says:

Section 155 does not expressly provide for any exemption –

et cetera, but the statement at the top of page 26:

The Commission is, nevertheless, prepared to require documents in such circumstances if it thinks it appropriate –

plainly must proceed on the view that the Commission did not regard legal professional privilege as displaced by 155.

KIRBY J: Is this a new practice, is it?

MR ROBERTSON: Yes. What I am taking your Honour to at 68 ‑ ‑ ‑

KIRBY J: This came into force in October 2000, did it?

MR ROBERTSON: Yes, and the language is ‑ ‑ ‑

KIRBY J: So the practice was apparently changed, the emphasis.

MR ROBERTSON: The emphasis, I think that is fair, your Honour, yes, but what I was saying is at the top of page 26, to say:

The Commission is, nevertheless, prepared to require documents . . . if it thinks it appropriate –

is inconsistent with the idea that the Commission accepted that they would never have access to privileged documents. Again, I am only talking about the level of practice and not about legal interpretation.

KIRBY J: So a decision is made in the Executive Government that effectively takes away what is said to us is a fundamental right ‑ ‑ ‑

MR ROBERTSON: No, your Honour.

KIRBY J: ‑ ‑ ‑ to have a lawyer give you advice when you are in a corner.

MR ROBERTSON: No.

CALLINAN J: All you are doing is answering the proposition put on the other side, as to what was said to be the policy or practice.

MR ROBERTSON: The policy or practice. It plainly does not, and could not, take away something – if the Parliament, as we contend, had displaced the privilege, this is consistent with both page 26 and 68 ‑ ‑ ‑

HAYNE J: What are we to make of this pamphlet that is published the month after the initiating process that begins the proceedings that lead to this present appeal, Mr Robertson? Not much I would have thought.

MR ROBERTSON: Very little, your Honour.

HAYNE J: Yes.

MR ROBERTSON: Very little. I am only dealing with the point - attempting to deal with the point that something can be made of the different in language between pages 26 and 68. Perhaps I should not ‑ ‑ ‑

KIRBY J: You are answering a question for me, and I perhaps have strayed into an area that is irrelevant. It is hard for me to get out of my mind this fact, that if you have an ambiguity in the statute, and you have Baker v Campbell with its ringing words, the Court has a choice. What is so wrong with the Court is saying, “We’re going to say you don’t only have to spell it out with self‑incrimination and with Cabinet documents, in future you’re going to have to spell it out in respect of taking away people’s rights to legal professional privilege and that will mean the elected representatives, the people in Parliament, will have to put their attention to the issue, which is not a bad democratic principle.”

MR ROBERTSON: Has your Honour moved from these pamphlets now?

KIRBY J: They really tender the issue. Instead of it being resolved by a change of policy in your client ‑ ‑ ‑

MR ROBERTSON: No, your Honour.

KIRBY J: It is resolved by a clear rule that Parliament has to do it.

MR ROBERTSON: Your Honour, this is a misconception, with respect, that I do want to clear up. These policies, practices, do not touch on the question – they could not – of what the Parliament had done by the language it chose in 155.

McHUGH J: You are not relying on them for a Chevron‑type argument. Do you know Chevron’s Case?

MR ROBERTSON: No, I am not, your Honour.

McHUGH J: The United States Supreme Court, the agency interpretation of general provisions should be taken into account by the court.

MR ROBERTSON: No. I am just trying to deal with the argument that was put against me, but it has got a little more complicated since then; the argument that was put against me that the Commission had got on very well for 17 or 27 years

GUMMOW J: For 27 years.

KIRBY J: You say you had a mental reservation which you always flagged, it was always in there, but it was not something you were enforcing before.

MR ROBERTSON: No, I do not say that, your Honour, and I do not want to take more time on it except to say this, that it could not go to whether or not 155 displaces the privilege. It proceeds on the basis that it does displace the privilege but it cannot obviously answer the question of whether that is the right construction or not. So all I am endeavouring to say is that there was never an absolute statement that the Commission would never seek access to privileged documents. The last thing I wanted to say about it is that the change in emphasis may very well reflect the change in the nature of the practices of lawyers that I think your Honour the Chief Justice was putting to my learned friends this morning. That is that there may well have been a shift in the importance – I was going to say “quantity” – of material that can be the subject of a claim for legal professional privilege based on communications for the purposes of obtaining or receiving advice leading to the change in emphasis between those two dates.

What I did want to take your Honours to was Baker v Campbell to make good the proposition for which we contend that the same rule of construction applies to the common law privilege against self‑incrimination as self‑exposure to a penalty as legal professional privilege. If your Honours have Baker v Campbell, Justice Wilson at the foot of page 96 of the report says:

It is now necessary to decide whether resort to the privilege has been abrogated by s.10(b) of the Crimes Act.

The then Crimes Act. Of course, section 10 has now been repealed.

The principle is clear. A statute will not be construed to take away a common law right unless a legislative intent to do so clearly emerges whether by express words or necessary implication: Sorby v The Commonwealth, and the authorities there cited.

Of course, Baker v Campbell was a case about legal professional privilege and his Honour Justice Wilson was applying the selfsame principle of construction.

At page 116, Justice Deane, at the paragraph that begins at about point 7 of the page, says:

It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment.

So again, his Honour is applying the same principle. Justice Dawson at page 123 point 4 of the page, says, and I will not read it to your Honours:

Legal professional privilege, whatever the extent of its application, is clearly a doctrine which falls within the presumption. The not dissimilar privilege against self‑incrimination is not to be abrogated by statute –

et cetera.

Of course, one of the two things that was decided in Baker v Campbell was that section 10 of the Crimes Act as it then was did not disclose a sufficiently clear intention to displace the privilege against self‑incrimination. The point that I am making is that that second question in Baker v Campbell fell to be determined by an application of exactly the same principle as was applied in Pyneboard by this Court.

GLEESON CJ: What is the reason why the common law extends to corporations the privilege, called legal professional privilege, but withholds from them the privilege against self‑incrimination?

MR ROBERTSON: It would have to be found, your Honour, in the purpose of affording legal professional privilege which would not involve any personal prejudice in the sense that that was discussed in relation to corporations in Caltex. It would have to be on some basis of humanness rather than ‑ ‑ ‑

CALLINAN J: It has some basis in canon law, has it? I have an idea that the privilege against self‑incrimination does have some basis in canon law originally.

MR ROBERTSON: Caltex did not, of course, deal with legal professional privilege.

CALLINAN J: No.

MR ROBERTSON: The answer to the question as to why self‑incrimination privilege is not available to corporations, as one can glean from that decision of this Court, would seem to involve what I might call issues of personality, whereas legal professional privilege goes more to the application of the – it has been said, the application of the rule of law; the better application of the rule of law, so not involving personality in the same way, but ‑ ‑ ‑

GUMMOW J: There is discussion of it by the Chief Justice in the Court of Appeal in Caltex, 25 NSWLR 122.

MR ROBERTSON: Thank you, your Honour.

GUMMOW J: A lot of it is bound up with the embrace of corporations by the criminal law but apparently in recent times.

MR ROBERTSON: But the point that I am making, your Honours, is that both, that is, what I will call compendiously the privilege against self‑incrimination and legal professional privilege ‑ are both said to be deeply ingrained in the common law. Each has been said to be an important common law right. Each may be displaced by express words or necessary implication and if my learned friend, Mr Young’s fourth proposition of principle, with which he opened this morning, was intended to stand for a different principle, that is, when he said that legal professional privilege was not to be assimilated with self‑incrimination privilege, to the extent that I have indicated, we would obviously differ from him in relation to that.

So that the next step in our argument is to submit the language and purpose of the section does not, by reference to Pyneboard, suggest that the legislature intended to distinguish between the common law privileges, such as I have indicated, nor, in our submission, that legal professional privilege is more important than self‑incrimination privilege or self‑exposure to a penalty.

GLEESON CJ: Mr Robertson, what do you say to the proposition that the concluding words in subsection (5)(a), far from being a portentous indication of a legislative intention to exclude legal professional privilege, are merely a statement of the obvious when you bear in mind that a notice may have been issued based on an erroneous belief, and the words qualify an offence of failure to comply with the notice?

MR ROBERTSON: I accept, your Honour, that the words qualify a failure to comply with the notice, but they do reflect, as I have submitted, the language in 155(1) and plainly, in our submission, the decision of this Court in Pyneboard – at least the majority judgment in Pyneboard –proceeded on the basis that the words in subsection 155(1), when read with subsection 155(5), as their Honours said at page 343 in Pyneboard, those words in themselves ‑ that is, the words that your Honour the Chief Justice has just drawn attention to – those words in themselves are quite inconsistent with the existence of a privilege entitling the recipient of a notice to refuse to comply and, as your Honour said, whether on the ground that compliance might involve self‑incrimination or otherwise.

So that our answer to your Honour the Chief Justice is that we accept that those words qualify the refusal or failure but we would submit on the authority of Pyneboard that they displace the two privileges that were under consideration in Pyneboard – and I will develop that in a moment – that is the privilege against self‑exposure to a penalty and self‑incrimination privilege and, equally, whether or not the words “or otherwise” on page 343 are meant to refer only to self‑exposure to a penalty, we would respectfully adopt what your Honour Justice McHugh said, that the intention was to abolish all relevant common law rights and privileges, subject to one matter, because the same principle, the same principle of construction or guide to construction applies to all of those privileges.

GAUDRON J: And on that basis subsection (7) is only present in section 155 to limit the use that may be made of evidence.

MR ROBERTSON: Quite so. Exactly as their Honours decided in Pyneboard.

GAUDRON J: But why does subsection (7) not simply say that any information provided, et cetera, to which a person has taken objection or in respect of which a person has asserted privilege, et cetera, and so on, rather than begin with the words, “A person is not excused from furnishing information”?

MR ROBERTSON: Your Honour, can I approach that in this way – I will leave page ‑ ‑ ‑

GAUDRON J: Because what subsection (7) is assuming, it seems to me, is that there is an excuse under the general law over and above anything that appears in the subsections and so that it reads into it the sort of reasonable excuse provisions that were found in Yuill.

MR ROBERTSON: Your Honour, may I answer it in this way, that going to page 344 of Pyneboard – and I will come to Justice Brennan’s judgment in a moment – but perhaps at the foot of 343 what their Honours in the joint judgment said was that 155(1) and 155(5)(a) themselves, both as a matter of language and purpose, displace each of the two self‑incrimination privileges and then their Honours went to say at the foot of 343, the last five lines of the page:

On this view of the section the presence of sub‑s (7) presents no problem. Its object is to limit the use to which the material obtained can be put . . . It is understandable that no similar provision is made in respect of the use of the material obtained in proceedings for a civil penalty.

Then their Honours say at line 3 on page 344:

It may be said that on the construction which we favour that the first part of sub‑s (7) is redundant.

Then their Honours said, well, that is so. So, their Honours treated ‑ ‑ ‑

GAUDRON J: It may be that developments in the law since Pyneboard would indicate that the result is right but the reasoning would not be adopted today.

McHUGH J: Yes. I was going to say exactly the same thing. The decision may well be right but it may well be that the reasoning can no longer be accepted, if it could be accepted at the time.

MR ROBERTSON: Certainly, your Honour Justice McHugh in Yuill’s Case said that ‑ ‑ ‑

McHUGH J: I know. I said then and I think their Honours probably did intend to include all privileges that were abolished by the section. That was only an obiter dictum so far as the words “or otherwise” are concerned, but the view I think I took in Yuill as to what they meant and reading it again in this case I maintain that view, but the question is whether or not that dictum is correct and a further question to my mind is whether the entire reasoning is correct.

MR ROBERTSON: Your Honour, that would depend on whether or not the subject matter of the privileges goes to – fundamentally, we would submit – the question of whether the privileges relate to the power to issue the notices or whether they are matters of defence or immunity. In our respectful submission, it is not only Pyneboard; it is the series of cases that I took your Honours to by name. All of them, of course, except Yuill, were concerned with self‑incrimination privilege of one sort or another. But they all approached the question by reference to what is the power and what are the defences?

McHUGH J: Exactly, but it seems to me undue weight was put on 155(5) in the reasoning in Pyneboard and the effect of 155(7) was played down. Just on Mortimer principles alone you can probably support the decision in Pyneboard¸ without worrying about 155(5) or 155(7). The opening words, given the subject matter, may itself be sufficient, as in Mortimer and all the cases that preceded Mortimer.

MR ROBERTSON: Yes, but if that is so, if the result is as their Honours held – I was actually going to draw your Honour’s attention to what your Honour Justice McHugh had said in Yuill’s Case at page 350. At point 8 of the page, your Honour said “By majority, the Court held” that 155 “intended to abolish the right to refuse to answer questions”, but, as we read it, the joint judgment held that, Justice Brennan held that, and, although arriving at the conclusion in a different way, Justice Murphy as well held that. But if the result is that 155 taken globally displaces the privileges against self-incrimination, including a penalty, we would submit that because the same principle of construction applies to, as I have endeavoured to explain by reference to Baker v Campbell, legal professional privilege, then the result is the same.

McHUGH J: But in Pyneboard it was said that when people are required to give evidence on oath at committal proceedings, as preliminary to a trial, you are more likely to uphold the privilege against incrimination, but here, the power under 155(1)(c) can be exercised so that under 155(3) you have to give evidence on oath.

MR ROBERTSON: Yes, that is right, your Honour. Yes.

McHUGH J: So if somebody is giving evidence on oath, they cannot claim legal professional privilege and what is more they cannot claim self‑incrimination even though they are on oath.

MR ROBERTSON: That is the result of – but that provision was there throughout, your Honour.

McHUGH J: I know.

MR ROBERTSON: And there was a distinction referred to, although not a matter to which any great weight was given, in my respectful submission, between administrative or executive inquiries, on the one hand, and judicial examinations, on the other hand, but I suppose there are probably three groups. Their Honours spoke of executive inquiries not on oath, and what your Honour has just put to me is executive inquires on oath, and then there is still judicial inquiries, but that did not, with respect, form a substantial part of their Honours’ reasons.

McHUGH J: I know.

GLEESON CJ: Do you rely on what is said at page 341 in the last paragraph on that page, which seems to be the question that the three parties to that judgment asked themselves? If you look at the second sentence in the last paragraph:

The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification.

MR ROBERTSON: Yes, and what follows from that:

This is so when the object of imposing the obligation is to ensure –

et cetera, because that is the characterisation that their Honours gave to this very section and which, therefore, we rely upon. Their Honours were dealing with the purpose, and the language obviously as well, of 155. So we do rely on it, your Honour.

GLEESON CJ: That seems to be why they attach so much significance to subsection (5). They seem to find in subsection (5)(a) an obligation expressed in general terms and intended to be not subject to any qualification.

MR ROBERTSON: Yes, when read with subsection (1), but that is the reason that much attention was, we would submit, likely, following Pyneboard, placed by the Full Federal Court on, not only (1) but also on subsection (5).

McHUGH J: I know, but it is very difficult, is it not, to reconcile that statement of principle, that approach that the Chief Justice has just referred to, with what Sir Anthony Mason was a party to in Coco?

MR ROBERTSON: Well, your Honour, I have already submitted ‑ ‑ ‑

McHUGH J: There is a passage there that says general words are not enough or will hardly ever be enough.

MR ROBERTSON: Coco v The Queen, as your Honours have been taken to, concerned ‑ and this is why I was submitting that 155(2) might stand in a different category, but Coco v The Queen and also, of course, Plenty v Dillon both involved tortious conduct. Plenty v Dillon, I think, was the service of the summons following an express statement that access to the property was no longer consented to. Coco v The Queen was also a case where the tortious conduct was trespass to land and 436 in the joint judgment makes it clear that their Honours, your Honours, were concerned with statutory authority to engage in what otherwise would be tortious conduct.

McHUGH J: I know, but the general statement of principle is on 437. If you contrast what was said at 341 in Pyneboard with what appears at 437 in Coco, it is very difficult to reconcile.

KIRBY J: Justice Gaudron and Justice McHugh appear to be consistent but a Damascus road conversion seems to have come over Chief Justice Mason.

MR ROBERTSON: Your Honour, we would submit not and that although expressed in different terms, the question still becomes, leaving aside express words, a matter of necessary implication. Now, when at 437 ‑ ‑ ‑

GUMMOW J: What does “necessary” mean? I never understand this.

MR ROBERTSON: It means, your Honour, what is said, for example, in Hamilton v Oades, which we have given your Honours the page references to in paragraph 35 of our written submissions. It means is there a high degree of certainty of legislative intention? That is what all their Honours in Hamilton v Oades 166 CLR 486 said that it meant.

GUMMOW J: Meaning what, by intention?

MR ROBERTSON: Meaning what, by intention?

GUMMOW J: Yes, by looking at the words.

MR ROBERTSON: Yes.

GUMMOW J: It seems to me you go round and round.

GAUDRON J: I would think once you spoke of intention in this area, the intention was to say nothing and hope the courts would do the dirty work for the legislature and it would have gone no higher and no lower than that.

MR ROBERTSON: Your Honour, even supposing that that was so, and perhaps one should not proceed on that basis because one is not actually looking at subjective intentions ‑ ‑ ‑

GAUDRON J: That is right.

GUMMOW J: Exactly.

MR ROBERTSON: One is looking at ‑ ‑ ‑

GAUDRON J: One has to look at meaning to be ascertained in accordance with established principles of construction, and the principles of construction are not in doubt.

MR ROBERTSON: And if I can add to that, your Honour, the question becomes, is there a sufficient clarity from the words that the Parliament has used?

McHUGH J: Yes, but Pyneboard now seems to have given the Executive an opportunity to get into Acts of Parliament an abolition of fundamental rights by the use of this expression “to the extent that the person is capable of complying with”. If the parliamentarians were told that this was abolishing legal professional privilege they might have a very different view of it, but this is put into one of those taxation offences Act and is relied on.

MR ROBERTSON: Well, it is put in the Taxation Administration Act.

McHUGH J: Yes.

MR ROBERTSON: Expressly following Pyneboard.

McHUGH J: I know. So it is now seized on. These words are now relied on as abolishing all these fundamental rights.

MR ROBERTSON: That is because this Court said so, your Honour.

McHUGH J: I know. That is a reason. That is why I say Pyneboard might be right as a matter of decision but its reasoning I think needs further examination.

MR ROBERTSON: What this Court had said – the Parliament cannot be, with respect, criticised for adopting legislatively a form of words which this Court has said has a particular result.

McHUGH J: I know, but the question is whether or not members of Parliament appreciate what they are doing.

MR ROBERTSON: Your Honour, that is ‑ ‑ ‑

McHUGH J: You have to have a certain turn of mind to see in the words, “to the extent that the person is capable of complying with”, in the context like 155, as abolishing fundamental rights. But that is what your argument comes to, really.

MR ROBERTSON: Of course, your Honour.

McHUGH J: I know. That is a far‑reaching proposition.

MR ROBERTSON: And that is exactly what this Court decided in Pyneboard.

GAUDRON J: No, it is not exactly what it decided. There may be some loose language in Pyneboard, but what it decided was that a person could not, in relation to a notice, or in response to a notice ‑ that a corporation could not in response to a notice avail itself of a privilege against exposing itself to a penalty.

MR ROBERTSON: Quite so, your Honour, yes.

GAUDRON J: That is precisely what it decided, I think.

MR ROBERTSON: Yes, your Honour is quite right.

GAUDRON J: A consequence whereof might come about – that may be right, not because of any way in which the section was construed at all, but because of the principles that invested the decision in Caltex.

MR ROBERTSON: It has been overtaken by events in a sense.

GAUDRON J: Exactly.

MR ROBERTSON: Yes.

GAUDRON J: That is what I mean by it, when I suggested the decision may be right ‑ ‑ ‑

MR ROBERTSON: I had not understood that, your Honour.

GAUDRON J: And the no longer reasoning that would be adopted. Certainly, subsection (7), as a matter of ordinary language, seems to have a more definite operation than the Court would accord it in Pyneboard, saying it was only there to prevent use in subsequent proceedings, which is not what the subsection says.

MR ROBERTSON: That is certainly what both ‑ ‑ ‑

GAUDRON J: But that is not to say – and there is certainly some loose language, I think, at page 124 if I am not wrong. Nothing in Pyneboard, you must concede, decided that the effective section 155 was to abolish all privilege that might avail against complying with a notice or assisting in the copying of documents when premises have been entered.

MR ROBERTSON: It certainly has nothing to say about premises being entered.

GAUDRON J: Why would it not? You see, that is really back to where we are started.

MR ROBERTSON: We would not accept, with respect, your Honour, that it does not say anything about the displacement of all relevant common law privileges because what it does say is that ‑ and both your Honours and the three Justices in the joint judgment, and Justice Brennan in a separate judgment, said that subsection (7) is not the section that affects the displacement of the ‑ ‑ ‑

GAUDRON J: Yes, I know what was said. I am just saying that that certainly gives subsection (7) less than its words would indicate.

MR ROBERTSON: But following the reasoning in both the joint judgment and Justice Brennan’s judgment we submit that because, as I have submitted, the relevant principle of statutory construction is the same for all of these privileges, there is no distinction to be drawn because unlike Yuill’s Case which dealt with amongst other things what reasonable excuse might be and where one could well understand that your Honour Justice Gaudron and your Honour Justice McHugh would arrive at the conclusion that reasonable excuse might embrace privileges ‑ legal professional privilege in particular – their Honours in Pyneboard proceeded on the view that the language of 155(1) and 155(5), that is, to the extent to which a person is capable, was not a matter of legal answer which, for example, an expression such as “shall not without lawful excuse” would obviously bring in to play, one would think, legal answers to a notice, but raise the question, is the person capable of answering?

GAUDRON J: Let me ask you another question about subsection (7), Mr Robertson. On the hypothesis that subsection (7) has the limited operation ascribed to it in Pyneboard and ignoring for the moment – no, assuming it has that limited operation, can one resist providing assistance under subsection (2) when they come knocking on your door saying, “I am not going to give you this one to copy because it will incriminate me or it tends to incriminate me”? I am assuming you are real person that is.

MR ROBERTSON: Your Honours, I think focusing on the words in the opening lines of subsection (7) “permitting the inspection of a document” and assuming that those words are not there ‑ ‑ ‑

GAUDRON J: But it also says that is the “not excused from”.

A person is not excused from furnishing information –

that is subsection (1) –

or producing –

subsection (1) –

or permitting the inspection of a document –

subsection (2). But, in Pyneboard what was said, subsection (7), at least in relation to subsection (1), is only there to protect against the use of the information in subsequent criminal proceedings. If it is only there for that purpose in relation to subsection (1), you would think it was only there for that purpose in relation to subsection (2). My question then is, on that hypothesis and given what you have already conceded in relation to subsection (2) about legal professional privilege, do you contend that subsection (2) requires assistance in relation to documents that would tend to incriminate? I raise that because I think the one thing that has not been done in Pyneboard is for the section to be construed as a whole.

HAYNE J: Which may stem from the way in which Pyneboard presented, which you need to understand in light of Mr Goldberg’s argument at page 330 at about lines 4 and following, where the argument was that:

The privilege against self‑incrimination and that against exposure to a penalty are separate heads of privilege . . . Section 155(7) of the Act removes only the privilege against self‑incrimination.

Not the privilege against exposure to penalty. Taken with the further fact that the Court was there talking about contravention of Part IV and contravention of Part IV could not found, could it, criminal prosecution, only prosecution for civil penalty?

GUMMOW J: Section 78.

MR ROBERTSON: Yes, that is so.

HAYNE J: What the Court says in Pyneboard needs to be understood in that light, does it not, that their focus is on proceedings for civil penalty in a context where counsel are urging that there are two separate privileges of which the relevant one, so the argument ran, was the privilege about the penalty, not the privilege about incrimination.

MR ROBERTSON: Quite so, and an essential part of the argument was that there was only one of those two privileges displaced because of, amongst other things, the terms of (7). That was rejected. In answer to your Honour Justice Gaudron, we would submit that on that hypothesis self‑incrimination privilege or privilege against self‑exposure to a penalty would not be an answer to 155(2) because it is dealt with in the same way in the concluding words of subsection (7), that is:

the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not admissible –

So the latter part of subsection (7), which their Honours in Pyneboard said was the operative part, would seem to cover both subsections (2) and (1).

GAUDRON J: Yes, but what one leaves out of account entirely in that analysis are the words “is not excused from”.

MR ROBERTSON: That is so, your Honour. I am just looking where, for variety, Justice Brennan dealt with that topic. I think it was at 357 in Pyneboard in the middle of the page. I trust I am dealing with the same point your Honour Justice Gaudron raised. At the middle of the page his Honour says:

Sub-section (7) falls into two parts . . . the first part must be taken to have been inserted ex abundanti cautela.

So his Honour joins with the joint judgment in that respect.

GAUDRON J: I would have thought that once you have the words “is excused from”, you are hypothesising because the word “excuse” has never before been mentioned.

MR ROBERTSON: A person is not excused under (7).

GAUDRON J: On one view at least, it seems to me, one can read that as not excluding lawful excuse as an answer to either subsections (1) or (2) save to the extent specifically provided, which is by subsection (7). I would have thought when you are dealing with a subject such as this, that really would be the natural and ordinary meaning of the words. One does not go looking for the rule in Potter v Minahan in any relevant sense. One says the natural and ordinary meaning of the whole, having regard to subsection (7), is that section 155 is not a Code as such but it leaves intact all excuses provided by the law save to the extent to which they are specifically excluded.

MR ROBERTSON: The consequence of that, your Honour, leaving aside Caltex, as I understand what your Honour is putting, would be that in those days, anyway, as in the days of Pyneboard, a corporation, would have been entitled to ‑ ‑ ‑

GAUDRON J: No, because you have subsection (7).

MR ROBERTSON: But subsection (7) only relates to self‑incrimination. I mean that goes back to what Justice Hayne, I think, was raising about the argument of Mr Goldberg.

GAUDRON J: But there was never any decision that there was such a privilege on the part of Pyneboard as Pyneboard was asserting. It was assuming for the purposes of disposing of the matter.

MR ROBERTSON: Quite so.

GAUDRON J: And I am just wondering if that assumption did not lead to a wrong approach to construction. I would have thought – why you should read section 155 as a code, does not seem to have been addressed in Pyneboard or, indeed, in argument here today.

MR ROBERTSON: As a code, your Honour?

GAUDRON J: Yes, as a complete self‑contained provision with respect to what happens when you get a notice or Mr Fels’ right‑hand man comes knocking at your door.

GLEESON CJ: And it seems to involve the idea that words in subsection (5) that look as though they mean, “just do the best you can”, in truth mean “your privileges are gone”.

MR ROBERTSON: Well, it is certainly true to say – I will have to come back to an aspect of what Justice Gaudron was putting to me in a moment –but it certainly gives the words, “a person is capable of furnishing information” a quality of absoluteness, that is, the question is, “Are you capable of furnishing the information and if you refuse or fail to comply” to that extent means that that is the test of liability.

GLEESON CJ: It makes your capacity to comply with the notice definitive of your obligations rather than a qualification of your obligations?

MR ROBERTSON: Quite so. I will have to come back to the point of construction about subsection (7), but so far as, for example, issues of contempt of court are concerned, which I think your Honour Justice Hayne raised this morning, that issue – and we have put this in our written submissions but I will give your Honours a reference to it – in Pioneer Concrete (1983) 152 CLR 460 at 473 in this Court – his Honour Justice Mason, at 473 point 6, point 7, said that questions of power and contempt should be kept separate. Therefore, for example, in relation to some of the issues raised in Justice Lindgren’s judgment about what happens if there is contempt of court ‑ ‑ ‑

GAUDRON J: Which I would have thought brought you straight back to whether there is lawful excuse as subsection (7) postulates; that the whole of 155 assumes that there may be a lawful excuse for non‑compliance.

GLEESON CJ: That is not found elsewhere in 155?

MR ROBERTSON: Well, your Honours, one thing which is clear, in my respectful submission, is that unlike many other statutory provisions this series of sections does not use the language of lawful excuse or the language in Yuill’s Case in the operative provisions of 155(1) or 155(5).

GAUDRON J: It uses “excuse” in subsection (7)?

MR ROBERTSON: Yes. But, your Honour, can I perhaps go back to subsection (7), just so that I have understood what your Honour Justice Gaudron was putting to me: on that construction that your Honour was putting, then the answer would be – leaving aside Caltex for the moment – or the result would be that the corporation would have as an answer to a notice the privilege against self‑exposure to a penalty.

GAUDRON J: No, not at all. Leaving aside Caltex, did you say?

MR ROBERTSON: Leaving aside Caltex, yes.

GAUDRON J: I do not think you can. That is the whole point about it. I do not think you can leave aside Caltex, but even if you did, if such a privilege existed, such a privilege existed and if it was not expressly abrogated, then it was not expressly abrogated. That does not seem to be a dire consequence, but there are two things you have to note about this, one, one presumes, as Justice McHugh pointed out earlier, you have to allow for the privilege to be waived, at least under ordinary notions.

MR ROBERTSON: Your Honour is speaking of legal professional privilege, though, of course?

GAUDRON J: Yes, or, indeed, the privilege against self‑incrimination can be waived.

MR ROBERTSON: Or you could not claim the privilege, yes.

GAUDRON J: Given that that is how they normally operate, what would happen is that you get your notice, or you get the man at the door, and then, on the hypothesis as came through to some extent from Justice Gummow’s judgment in Propend that what you are talking about is an immunity, you then say, “Sorry. Like to help you but I have a privilege and I am claiming it.” And if the privilege you claim is one within subsection (7), it does not avail you at all, but otherwise it does.

That would seem to me to be entirely consistent with the way one ordinarily construes provisions such as this and allows it to operate and looks at the section as a whole, none of which, it seems to me, really was attended to in Pyneboard. All of that seems to have gone off on the assumption that the section is a complete self‑contained code about what happens.

MR ROBERTSON: Your Honour, Justice Murphy did not make the same assumption as the majority in terms of the applicability of the privilege under consideration to corporations but his Honour at 347, in my respectful submission, arrived at the same result. I think what your Honour Justice Gaudron was putting to me would mean, if I have understood your Honour correctly, that accepting Caltex now, but in relation to individuals – that is, as your Honour said, real people – the privilege against self‑exposure to a penalty would be available on that construction. Their Honours, of course, have held that it is not and what their Honours have held would presumably apply to corporations and to individuals.

GAUDRON J: I do not know if there are two different privileges anyway. It has never been so held, has it?

MR ROBERTSON: As between self‑exposure to a penalty and self‑incrimination?

GAUDRON J: Yes. It may be that it is just different tags for ‑ ‑ ‑

McHUGH J: They had different historical roots, did they not? One came out of the Court of Chancery, that is the exposure penalties. I think, they, to a large extent, came out of the Court of Chancery – it may not be exclusively but to a large extent – whereas the other one, self‑incrimination, which I have dealt with this in Azzopardi, it is common law.

MR ROBERTSON: But the point I am making is that – perhaps I can do it briefly by reference to what Justice Murphy said at 347, point 8 of the page. His Honour said:

155 expressly excludes any privilege against self‑incrimination, it does not recognize any privilege from exposure to ecclesiastical censure . . . In the light of its sub‑s (5) . . . it would be wrong to adopt a federal common law rule which conferred a privilege against self‑exposure to civil penalties. It would be absurd to read s 155 as expressly denying privilege against self‑incrimination but impliedly allowing privilege against self‑exposure to civil penalties.

GAUDRON J: But I think that is the same mistake.

MR ROBERTSON: I do not accept obviously that it is a mistake, but it is arrived at ‑ ‑ ‑

GAUDRON J: In the sense that it is assuming everything is to be found within the four corners of section 155. Justice Murphy deals with two issues there, but in the end he comes back to dealing with it on the basis that it is all within the four corners of section 155. The earlier one is much more interesting. He denies that there is a common law privilege against self‑exposure to civil penalties.

MR ROBERTSON: Is that the first sentence of that paragraph your Honour is looking at?

GAUDRON J: It seems to me that that is what he is doing, in any event.

MR ROBERTSON: Perhaps I should not dwell on it, but his Honour seems to be reasoning from 155(7). His Honour has not expressed it as a free‑standing proposition, we would submit with respect.

GUMMOW J: Now, in understanding section 155, we probably have to have an understanding of the enforcement provisions of the Act. Whilst it is very important in Pyneboard that criminal proceedings did not lie for contraventions of Part IV; they lie for contravention of other parts, do they not?

MR ROBERTSON: I think that is right, your Honour.

GUMMOW J: Certainly Part X. Anyhow, do not stop to do it now, but if we can have a note on that it would be helpful.

MR ROBERTSON: Yes, I think the criminal provisions ‑ ‑ ‑

GUMMOW J: Section 163 is some help but it is not a complete help. Section 79 will deal with Part V.

MR ROBERTSON: Section 79 deals with some of them plainly, your Honour ‑ ‑ ‑

GUMMOW J: Yes, but that is not all of them.

MR ROBERTSON: I thought there had recently been a consolidation, as it were, of the offence provisions.

GUMMOW J: You may be right; I am just looking at the Reprint 8, which are the relevant ones.

MR ROBERTSON: Certainly we can perhaps let your Honours have a note on that, if that is convenient.

GLEESON CJ: How much longer do you expect to require to finish your argument?

MR ROBERTSON: I should think 10 minutes, your Honour. We have put in the written submissions what we see as a significant matter going to the purpose of the power in 155, at least so far as legal professional privilege is concerned, and that is that both at common law and under the Evidence Act the compulsory obligation to comply with a notice would not have the effect of displacing legal professional privilege in any subsequent court proceedings. That emphasises, in our respectful submission, that what is being conducted here, or the scope of 155, is an administrative or executive inquiry into the very matters that 155(1) deals with. We take issue with in that respect paragraph 34 of the appellants’ written submissions.

I have already submitted that Coco, at page 438, deals with tortious conduct, and I think I have taken your Honours to Justice Gummow’s judgment at 188 CLR 564 in Propend, as to the nature of legal professional privilege and, as we would submit, the difference between that privilege and the rights under consideration in Coco’s Case and we submit that if one looks at the words of 155 following Pyneboard, one derives from those words a clear statement of intention to abolish all relevant common law rights and privileges. One looks then at the purpose of conferring the power and imposing the obligation and one adopts the construction that would effectuate that purpose.

We contend also, as I have earlier submitted, that it is not a question of whether the operation of the statute would be stultified, using that term literally, but, as Mortimer v Brown shows, and cases that follow Mortimer v Brown, it is a question of whether the purpose of the statute would be rendered relatively valueless or whether its operation would be curtailed, to adopt those expressions from Mortimer v Brown, and the same principle can be seen applied in Yuill’s Case in the judgment and I will give your Honours the page references ‑ ‑ ‑

KIRBY J: I am still troubled by what we know of the facts, and on the face of things I would be inclined to say, as I understand the facts, that it would not be relevantly curtailed or frustrated. It would not be as good for you and you would not get the whole picture but the common law may delete part of the picture for reasons of high policy.

MR ROBERTSON: That is the issue, in a sense, your Honour, and, in our submission, it does not depend upon the individual facts in an individual case and Yuill’s Case shows that their Honours in the majority were not, as it were, assessing whether there was one box of documents or two boxes of documents. It does not suggest ‑ your Honours, perhaps, have a better recollection of it – that there was any evidence relevant to these questions of statutory construction as to the volume of material. The test cannot be the volume of material. It must be ‑ ‑ ‑

KIRBY J: I suppose you are entitled to say we have to test this by other cases as well as these cases. We have to test it as a matter of legal principle and the construction of the statute by what happens in a multitude of cases where claims are made for legal professional privilege. Is this something that the Parliament must be taken to have intended or contemplated?

MR ROBERTSON: One has to test it in the same way, we would submit, as the relative lack of value in the operation of the Companies Act was tested in Mortimer v Brown. There was no evidence about it. It was a matter of reasoning and the same approach was applied by the majority in Yuill’s Case so as to ask at an abstract level as opposed to the level of detailed facts because, of course, whether as a matter of construction a privilege is displaced cannot depend upon the facts of an individual case that happens to be before your Honours. It has to be at a higher level of abstraction.

KIRBY J: You see, I suppose I am complaining about the fact that this is being dealt with as an abstract question instead of being dealt with, in a sense, in the course of a case in which the judge has to focus on, and explain in reasons to us, what is the relevance of this evidence to the resolution of the case before the Court.

MR ROBERTSON: But, your Honour, a judge would, in our submission, never be in that position because that would assume that the privilege, in a sense, had been displaced. The judge would then say, “That being so, I’ve looked at these documents and I find that they were or were not important to the inquiry being conducted by the Commission”.

GUMMOW J: Well, these questions often arise on returns of subpoenas when one knows very little about the case and the judicial officer attending on the return….looked at a trial judge.

MR ROBERTSON: But, your Honour, with respect, that is dealing with whether or not – as I understand what your Honour is putting to me, that is whether or not a particular document is or is not the subject of some privilege.

GUMMOW J: Yes.

MR ROBERTSON: And then the judicial officer can say, “Well, I’ve read the pleadings and I have an affidavit from somebody saying that the privilege is ‑ ‑ ‑

GUMMOW J: There may be no pleadings these days.

MR ROBERTSON: Of course, your Honour.

GLEESON CJ: But the arguments in the present case would not be materially different, would they, if we had in front of us a notice under section 155 that said, “I require the production of all briefs to counsel in this matter”?

HAYNE J: I thought that was what they were asking for in the Coles Myer Case.

MR ROBERTSON: Assuming that that was that sort of case, no, the question would be no different and all I wish to say about it is that if your Honours look at Yuill’s Case 172 CLR 326, for example, where Justice Brennan dealt with it, his Honour was not looking at whether there was one bundle or more of documents that would otherwise be available but in respect of which legal professional privilege had been claimed, so far as one can see from the report.

The pages are 326 point 4 to point 9, that is Justice Brennan’s judgment; Justice Dawson at 333 point 5 of the page, and of course Justice Toohey at 337 point 1 agreed with Justice Dawson. So even though, to pick up at 333, Justice Dawson adverted to:

Legal professional privilege may not, of course, be claimed . . . for communications which amount to participation in a crime or a fraud –

nevertheless his Honour concluded:

but a claim of legal professional privilege may nevertheless seriously impede the investigation of those matters –

that his Honour had adverted to.

In our submission, neither the result nor the reasoning in Yuill’s Case, contrary to the submissions of our learned friends, should be departed from. In paragraph 36 of our written submissions we have referred to – we should refer to, I do not think we have, to the relevant passage in John v Federal Commissioner of Taxation, 166 CLR 417 at 438 to 440 and, as my learned friend has indicated, I think this morning, those provisions have been re‑enacted more than once and presently form part of Part 3 of the Australian Securities and Investments Commission Act 2001, especially section 63.

Perhaps going back to the beginning, the focus on the language of the section, we would, in relation to Morgan Grenfell, draw your Honours’ attention to the differences in language there under consideration by the House of Lords as opposed to section 155. Indeed, Lord Hoffmann referred to with approval the earlier decision of the New Zealand Court of Appeal in West‑Walker. That, again, was a case where the statutory defence was “without lawful excuse”, and the Court of Appeal held that that defence permitted a claim of legal professional privilege to be maintained. So that the approach to construction was the same but the difference in language led to a different result.

I should also submit that, although in Yuill’s Case, their Honours of this Court proceeded upon the view that the legislature would not have thought that legal professional privilege was available in non‑curial circumstances before Baker v Campbell, West‑Walker, for example, is a case where such a privilege was held to be available.

In our submission, it is only after the decision in O’Reilly’s Case that it became clear for a short period that legal professional privilege was not available outside court proceedings. So, it was only that period of time between O’Reilly and the decision in Baker v Campbell. I think I have adverted already and we have mentioned in the written submissions the effect, the potential and actual effect, that the widening of legal professional privilege following the decision of this Court in Esso Australia 201 CLR 49 has on the question of the relative curtailment of the scope of the statutory power.

Your Honours, there were some other matters dealt with in our written submissions in relation to Federal Court decisions under both the Taxation Administration Act and in relation to the Bankruptcy Act. Those are set out at paragraphs 45 to 48 of our written submissions and we do not need to take the Court to them other than to say one thing, which is that the bankruptcy cases proceed – that is the ones we have mentioned in paragraph 48 – proceed without reference to the section of the Bankruptcy

Act imposing a duty to comply, that is, without reasonable excuse. The section of the Bankruptcy Act is, I think, 267F.

KIRBY J: Are you aware of any federal legislation which contains an express exemption in respect of legal professional privilege?

MR ROBERTSON: No, I am not, your Honour.

McHUGH J: The New South Wales Court of Appeal held in Egan v Willis, after that case was here, that legal professional privilege did not apply when the Legislative Council called for documents, I think. Is that ‑ ‑ ‑

MR ROBERTSON: Yes, I think that is so.

McHUGH J: Yes, they said the public interest in the Legislative Council obtaining access to Executive Government documents overcame any question of legal professional privilege.

MR ROBERTSON: Yes, perhaps we should have a look at that. Certainly it is not in the line of country that your Honour Justice Kirby was talking about.

McHUGH J: I think it is in 46 NSWLR. There are a couple of those Egan Cases.

MR ROBERTSON: Yes. Perhaps we can give your Honours a note on that too. It appears relevant.

GLEESON CJ: Thank you, Mr Robertson.

MR ROBERTSON: Thank you, your Honours.

GLEESON CJ: Mr Sheahan. I just want to get some idea about the progress of the matter. How long do you expect to be, Mr Sheahan?

MR SHEAHAN: Ten minutes, your Honours.

GLEESON CJ: Mr Gageler?

MR GAGELER: One minute, your Honour.

GLEESON CJ: Mr Young?

MR YOUNG: Five to 10 minutes, your Honour.

GLEESON CJ: Well we should be able to finish this evening. Yes, go ahead, Mr Sheahan.

MR SHEAHAN: Your Honours, we want to try and answer two of your Honours’ questions that are outstanding and address five points. The first is a question asked by your Honour Justice Gummow as to the penalty provisions in the Trade Practices Act. They are conveniently collected in a table in the 2002 edition of Mr Miller’s work, commencing at page xxxiv, which includes civil as well as criminal penalties. It sets out all the penalties.

GUMMOW J: I am interested in the prosecution provisions.

MR SHEAHAN: All those are there. The only civil penalty provision, I think, is section 76 and it is identified as being a penalty as opposed to something else. Our learned friends indicated rightly that there are two points of distinction between the Coles Myer and Woolworths Cases and the Daniel’s Case. In our submission, each of those two points of distinction has perhaps some minor significance.

The first is that the notices here went to the clients, not to the lawyers. This bears upon a particular point that your Honour Justice Hayne raised this morning and that is that while the lawyers might be able to say, to use neutral language, that our obligations to our clients are some impediment to the production of documents, notices directed to the clients do not give rise to any such consideration.

HAYNE J: And thus much turns on where the document is held and the accident of where the document is held – curious.

MR SHEAHAN: Not so much the accident, your Honour, because the client would have a right to get the document from the lawyers but it might mean, as the House of Lords pointed out in Morgan Grenfell that some class of documents which were peculiarly the lawyers property and custody could not be accessed, if one drew this distinction. It is not, of course, our case that such a distinction should be drawn.

HAYNE J: The notices you have given in this case are directed to, amongst other things, provision of:

copies of all legal advice obtained by Liquorland relating to –

certain matters. See page 92, paragraph 6.

MR SHEAHAN: They do indeed and that, your Honour, highlights one of the points we wish to make and that is that while sometimes an ability on the part of the Commission to have access to privileged material will make very little difference – indeed, in many cases the Commission would not properly be able to form the requisite opinion in respect of privileged documents, the requisite reason to believe – in some cases privileged documents might be vital. In our submission, the Coles Myer and Woolworths cases are such cases.

The contraventions of section 45 that are under investigation are contraventions involving the use of lawyers in the legal process. They involve an allegation or a concern that Coles Myer and Woolworths have been commencing proceedings in licensing courts and then entering into deeds of settlement with parties against whom they brought those proceedings, those deeds of settlement incorporating exclusionary provisions.

KIRBY J: But may that not be a case of abuse of privilege with would not attract the ordinary privilege?

MR SHEAHAN: Your Honour, it may be but, in fact, in this case what has happened is that a very, very large proportion of the documents have been the subject of a claim for privilege. Now, it may be that if we test it, some of those claims for privilege will fail, but we seek simply to make the point that there will be some cases, and perhaps as time goes on there will become more, where documents in the control of lawyers, or to which legal professional privilege might attach, will become more important in shedding light ‑ ‑ ‑

HAYNE J: Well, why? I mean, that is a proposition of the most startling breadth, Mr Sheahan. It is to be assumed, one, that Cox and Railton does not apply – true – because they are properly privileged?

MR SHEAHAN: Yes.]

HAYNE J: What business is it of the Commission? How does it assist the Commission to know that a lawyer has told a client, for example, “The conduct upon which you are proposing to engage is lawful”?

MR SHEAHAN: That sort of advice would assist the Commission in two respects, but these are not the respects in which it is most important to get the information. The two respects would be, first, to indicate that when it came to assessing whether a penalty was appropriate or some sort of undertaking that that client had acted innocently if they had been advised that they were entitled to act in the way they should.

Secondly, it might indicate that in fact the advice was right, the client had not contravened the Act, and that would be useful information for the Commission. But the more important purpose, in terms of establishing a contravention, is to see the client’s purposes, and that will be reflected not so much by the lawyer’s advice but by the instructions the clients give to the lawyer for the purposes of the advice being given. That sort of information might have a very direct bearing on the client’s purposes, and purposes are at the heart of contraventions of section 45.

GLEESON CJ: And confidentiality is a part of legal professional privilege.

MR SHEAHAN: Indeed it is.

GLEESON CJ: And there is no confidence in iniquity.

MR SHEAHAN: Quite so, but to come within the crime/fraud exception, the document would have to be brought into existence for the purpose of advancing the unlawful purpose and in the case of a letter from a client to the solicitor saying, “Here is what we propose to do. This is our commercial purpose. Give us advice on this aspect or the other.”, that document might not be caught by the crime/fraud exception. It would be entitled to privilege but it would be useful to the Commission to shed light on the client’s purpose.

GAUDRON J: Am I right in thinking that there is no equivalent protection for documents to which legal professional privilege attaches or, indeed, information, as there is for information which tends to incriminate? That is to say, am I right in thinking that if your construction is right, incriminatory material cannot be used in subsequent proceedings but privileged material can?

MR SHEAHAN: No, your Honour. In Federal Courts and the Supreme Court of New South Wales material which is the subject of a claim for privilege does not lose that status if it has been produced under compulsion. That would be this case. At common law, the same applies. Material that is disclosed by one to another as a result of legal compulsion does not lose its privileged character.

HAYNE J: May I take you back to your answer to me and the concern of the Commission to deal with purpose and take you to section 45(2). It is a contravention of 45(2), is it not, for a corporation to make a contract in certain cases where a purpose exists, to give effect to a contract arrangement, et cetera, which has a particular purpose?

MR SHEAHAN: Yes, your Honour.

HAYNE J: If the document that is to be produced reveals that that is the purpose of the making of the contract, arrangement or understanding, why would Cox and Railton not apply?

MR SHEAHAN: In our submission, it would not apply because the document, which merely evidenced the purpose, would not itself be in furtherance of the contravention.

HAYNE J: Thus, if the client writes to the solicitor saying, “Purely for the purpose of gaining mastery of the market for widgets, I propose to enter a series of objections to the grant of widget licences and then enter various arrangements in pursuit of it”, do you say Cox and Railton would not apply to that communication?

MR SHEAHAN: I would have to consider that question, your Honour. Might we give you a short note on it?

GLEESON CJ: Yes, certainly.

MR SHEAHAN: Thank you. Now, the third point that we wish to raise relates to the second point of distinction between the Coles Myer and Liquorland Cases and the Woolworths Case and it is that the Coles Myer Liquorland and Woolworths Cases relate to section 155 in their current form as opposed to the form in which they previously stood.

Now, the only effect is to introduce subsection (5A) as clearly a defence to the operation of the provision in relation to which the accused bears the evidentiary onus and it serves, at least, in our submission, to emphasise that the notion of capacity marks out the boundaries of the operation of subsection (1) if subsection (1) did not itself make that clear. In our submission, subsection (1) does itself make that clear because the documents which are the subject of a notice under subsection (1) are such documents, that is documents as to which the Commission “has reason to believe”.

In other words, subsection (1) creates an imperfect obligation; there is no sanction within it. That obligation is perfected by subsection (5) and its content is better defined, more conclusively defined by subsection (5).

Your Honours, the last point before answering Justice Callinan’s question is this. In our submission, legal professional privilege is properly characterised as an immunity rather than as a positive right and in our submissions, at footnote 2, we give a series of references to decisions of this Court which are authority for that proposition, or at least observations and judgments in this Court which suggest a conclusion. Might we add to those references a reference to what fell from your Honour Justice Gummow in Propend at 566 point 1 to point 3.

The last thing I wanted to say before dealing with your Honour Justice Callinan’s question was that in considering the question of the integrity of the legislative process, in the context of abrogating legal professional privilege, it should not be ignored, as Justice Gummow pointed out this morning, that lawyers in the legal profession are an important and powerful body in this community and it should not be thought that they would not take the opportunity to inform parliamentarians if they saw a risk of legislation impacting on one of their treasured privileges. Your Honours, Justice Callinan in particular, the answer ‑ ‑ ‑

GLEESON CJ: Actually, they are client’s privileges.

MR SHEAHAN: Indeed, they are.

HAYNE J: This notion that it is the lawyer’s privilege, Mr Sheahan, is pernicious, wrong.

MR SHEAHAN: Your Honour is right, of course, but it is one in relation to which – particularly in the context that the Chief Justice mentioned earlier today – the legal profession has a pecuniary interest and other interests as well.

GAUDRON J: I do not understand that. I do not think anything turns on it but I do not understand it. Perhaps just go on with your submissions. I do not see how lawyers have a pecuniary interest in maintaining privilege, but go on. I will take it at face value.

CALLINAN J: It might lead clients to consult lawyers rather than accountants and other advisers.

MR SHEAHAN: That is what I meant, your Honour. The answer to the question in the cases stated either way, in our submission, will dispose of these two cases. If the answer is “yes”, then the proceedings should be dismissed. If the answer is “no”, then the Court could properly give a declaration in the form in the first paragraph of each of the prayers for relief. It would be unnecessary to do any more, in our submission. In particular, it would not be necessary to grant any injunctive relief. The Commission will of course act in accordance with the law as declared by this Court.

GAUDRON J: The injunction that is already granted would have to be dissolved.

MR SHEAHAN: Those injunctions are interlocutory, so they will expire.

GAUDRON J: I think they are until further order.

MR SHEAHAN: They would have to be dissolved in that event, your Honour, yes.

GAUDRON J: Yes.

GLEESON CJ: Thank you, Mr Sheahan. Yes, Mr Gageler.

MR GAGELER: Your Honours, we would be content with a declaration and with costs in the event that the questions are answered “no”.

GLEESON CJ: Thank you. Yes, Mr Young.

MR YOUNG: There were a number of matters that I was asked to address in‑chief and I deferred. I go to those. Your Honour Justice Callinan asked me whether, in the judgments in the Full Court there was any reference to specific exclusions of self‑incrimination in the Trade Practices Act, including sections such as 161 and so forth? The answer is that there are none. There is indeed only a passing reference to section 155(7), not as part of the reasoning but, effectively, as the background extraction of the Act.

Your Honour the Chief Justice asked me two questions, which were left unanswered: one was the date of the adoption in England of the dominant purpose rule; the answer is 1980, your Honour. In the case of Waugh v The British Railways Board [1980] AC 521, the House of Lords determined that they would follow the minority view in Grant v Downs of Chief Justice Barwick and adopt dominant purpose. Theretofore, the prevailing position in England was unsettled. The bulk of authorities seem to prefer a one of many purposes rule, provided the purpose was an appreciable or substantial one, but not necessarily a dominant one. They had never adopted sole purpose.

Your Honour asked me also for examples of explicit statutory abrogation of legal professional privilege. We have confirmed that the Evidence Act 1958 of Victoria contains an explicit abrogation in a set of provisions that are directed at royal commissions and boards of inquiry. That is section 19D. It is a very explicit provision that abrogates legal professional privilege. It immediately follows a like provision in similarly explicit terms in section 19C that abrogates a privilege against self‑incrimination.

KIRBY J: For that particular royal commission, was it?

MR YOUNG: No, your Honour, I was mistaken in that regard. It was applied in that particular royal commission but the provision applies generally to royal commissions. We looked at the Commonwealth Royal Commissions Act and there is no abrogation in that Act of legal professional privilege. There is, however, an abrogation of self‑incrimination by section 6A of the Royal Commissions Act 1902 of the Commonwealth.

In the time available, we have not carried our searches further, but we, like Mr Robertson, are of the view that there is no explicit abrogation of legal professional privilege in any Commonwealth legislation of which we are aware. On the contrary, it is noteworthy that in the Crimes Act 1914 –and I am looking at 2001 print – following Baker v Campbell in 1994, section 3ZX was introduced into the Act saying:

This Part –

dealing with search warrants –

does not affect the law relating to legal professional privilege.

So the Parliament has, in the Commonwealth Crimes Act, enshrined legal professional privilege. One other observation about the Commonwealth Crimes Act: it contains a provision making it an offence to hinder or impede the execution of a search warrant. That is in section 3P as it now stands.

A similar provision existed in the Crimes Act at the time of Baker v Campbell. There is an equivalent provision, of course, in section 155(5)(c). So that affords no reason to distinguish section 155 from the Crimes Act considered in Baker v Campbell. Your Honour the Chief Justice also asked me about the position of accountants. We cannot take the matter any further and we think that the best assistance is really provided by the ONE.TEL Case that Mr Gageler referred to.

Your Honour Justice Gummow asked me about ABBCO in the Federal Court. That decision addressed the distinction between self‑incrimination and the privilege against exposure to a penalty. It is 52 FCR 96. In the present context we submit it is of less assistance than Compass which addresses the distinction between legal professional privilege on the one hand, and the self‑incrimination privileges on the other.

That, I think, is the shopping list of matters that I needed to address, and I make several short points in reply to Mr Robertson. Firstly, Mr Robertson submitted that the expression “stultification” which we had used overstated the effect of the Mortimer v Brown line of authorities. We submit that that is not so, as a reading of Mortimer itself attests. The Chief Justice at page 495 point 4, at 122 CLR, spoke of the privilege of self‑incrimination frustrating and rendering nugatory the part of the Act. Justice Kitto spoke of it rendering it relatively valueless in the very cases that called most loudly for investigation, and although Justice Walsh used the expression “would curtail”, he later on made it clear that he was speaking of a privilege that, and I quote from page 501:

would frustrate the purpose of the provisions contained in it, as well as being inconsistent with their language.

So the test of frustration or stultification espoused in the Mortimer line of authorities is quite a stringent one. In our submission, the concession that Mr Robertson made that section 155(2) and the related compliance provisions would not abrogate legal professional privilege does demonstrate the absurdity of the enormous weight that they try and place upon the word “capable”. He is compelled to that position of course because both Citibank and Baker v Campbell itself had compliance provisions no different from those in section 155, yet the privilege was not ousted. In Baker v Campbell section 263 was accompanied by a subsection making it a penalty or imposing a penalty for not providing all reasonable assistance, just like section 155(6). So there really is no distinction. One would be compelled to say on the ACCC’s argument that the privilege is available in respect of subsection (2) in the light of the compliance provisions in 155(5)(b) and (c) but unavailable in the case of notice under (1), simply because of the word “capable” in the compliance provision.

Mr Robertson also addressed some submissions to paragraph 341 or Pyneboard and the passage that spoke about the purpose of the statute. In our submission, the reference to “the privilege” in that passage is squarely in context a reference to the privilege under consideration, that was self‑incrimination and/or the analogous exposure to a penalty which were grouped together for the purposes of discussion. Therefore, that passage really needs to be read with that consideration in mind and it really does not support an attempt to translate the same approach, very loosely, to privilege that might have some minor peripheral impingement on an investigation.

It is minor, in our submission, as a matter of principle, for the reasons given by Justice Dawson in Baker. I referred generally to that in‑chief. The passage is at 122, point 9, to 123 where his Honour made these points “Legal professional privilege” cannot affect documents that have “an existence apart from the process of giving or receiving” legal advice. So the transactions involved in making or giving effect to arrangements will fall outside the scope of privilege.

KIRBY J: Is that affected by the dominant sole purpose controversy?

MR YOUNG: No, your Honour, we would submit not. They lie outside the privilege. There is a fraud or crime exception and, as his Honour points out, the privilege will not extend to documents that are part of the commercial means of carrying out a transaction, which will be the real burden of the investigation under the Act. Lastly, we did submit in‑chief that section 155 is not a code. That was what we intended and hoped we conveyed by the reference to Pioneer and Brambles. That is to say, lawful answers or lawful excuses otherwise provided by the law as to a reason why the power of compulsion – the compulsion did not extend to a particular situation were available. Brambles was an example. Pioneer was an example. De Vonk in a tax context is an example. So, too, is the Criminal Code because that applies to these provisions of refusing or failing to supply documents.

GUMMOW J: They may be all factored into the reasonableness of the belief.

MR YOUNG: Of the issuer of the notice, your Honour?

GUMMOW J: Yes, in the first place. The Brambles type - I am not saying it is against you. That may be how ‑ ‑ ‑

MR YOUNG: It is possible, but if it is not and the notice is served as in Brambles on somebody who is already subject to penalty proceedings, surely ‑ ‑ ‑

GUMMOW J: It cannot be reasonable to collide with the pending court situation.

MR YOUNG: But nothing in subsection (5) would preclude the answer.

GUMMOW J: Of course.

GAUDRON J: What I think you are putting is – just correct me if I over simplify – is something like a He Kaw Teh approach to construction of provisions such as this, He Kaw Teh being a case considering the criminal provisions of the Customs Act, it being held that although on their face they did not make provision in that regard, they nonetheless did not exclude the necessity for mens rea.

MR YOUNG: Yes.

GAUDRON J: Intention and knowledge.

MR YOUNG: Yes, your Honour.

McHUGH J: Even though the section specifically provided for lawful excuse, reasonable excuse – lawful excuse, I think.

GAUDRON J: Yes. What you are saying is that, in essence, where you are being compelled to produce documents outside – you are being compelled to provide information, it has to be information that the provision of which can at law be compelled.

MR YOUNG: Yes.

GAUDRON J: Unless there is some clear abrogation. That way you start off at a different point from the starting point in Pyneboard, I think.

MR YOUNG: Yes, we agree, your Honour. The English case of B(A Minor) v DPP is the English parallel of the case your Honour mentions. That applied the same approach to mens rea in the context of criminal provisions in England. The point I was going to add by reference to the Criminal Code is that it now makes generally available in Commonwealth statutes general defences of lack of intention and mistake of fact and they apply to section 155(5) by force of the Criminal Code. So, notwithstanding the language “capable”, other defences not mentioned in section 155 are available by force of other Commonwealth enactments. On that point, it is our submission that my clients stand in the same position, vis-à-vis, the December 2001 amendment, as Coles and Woolworths for this reason: when a notice is issued under section 155(1) the Act was in its old form, but so far as the compliance provision is concerned, an act of refusing or failing to comply has not yet occurred with intention; any such Act lies in the future ‑ ‑ ‑

KIRBY J: Well you say so; that may not be common ground. Speaking for myself, I think it is a little unsatisfactory for you to be raising this point at the very end in reply. At least we ought to have a note explaining how you propounded this, because we have to get the correct statute that applies.

MR YOUNG: Yes, your Honour, I do believe I did raise it in‑chief but, leaving that aside, the submission is simply that, for the purposes of applying the compliance provision, it swings on an alleged act of refusal or failure to comply. We do not confront any allegation ‑ ‑ ‑

KIRBY J: You raised that in-chief. You did not raise in-chief the application of the new statute.

MR YOUNG: Well, that point I was making is by reference to the new statute, your Honour, and I am sorry if I did not make it clear.

GUMMOW J: Well, the question is at what stage of the declaration are we speaking? That is the precise issue. Are we speaking of the time it has been made?

MR YOUNG: We do not suggest it makes a difference because we do not suggest that the amendment altered the proper construction of subsection (5). It may have made our argument clearer but our argument, we say, is unchanged and the amendment and how the section should be read effectively is unchanged. We do say that there has been no allegation of failure or refusal to comply within subsection (5)(a), and it is the making of that allegation that is the timing point, the point of reference under the transitional provision, for the application of the ‑ ‑ ‑

GUMMOW J: Well, the Full Court made a declaration on 16 March 2001, after all the changes, that you were not entitled to refuse.

MR YOUNG: Yes.

GUMMOW J: You say, “Well, that was speaking to our entitlement then, March 2001?” So that is wrong, because of – amongst other things – the present Act?

MR YOUNG: Yes. Well, if that declaration put us in a situation of needing to comply within a reasonable time, then it will be the old form of the Act which governs our non-compliance as such, but we do not say anything turns upon it, your Honours. We simply raised it to clarify what we say is the operation of the amendment.

KIRBY J: Is this point dealt with in your written submissions? I do not know ‑ ‑ ‑

MR YOUNG: No, your Honour, we drew attention to the amendment, but we did not ‑ ‑ ‑

KIRBY J: I think if this is a serious point, then you really have to put in a note which deals with it in relation to the declaration which is made and which you are challenging.

MR YOUNG: Yes, we can do that, your Honour. We do not suggest that it ‑ ‑ ‑

KIRBY J: At least speaking for myself, I do not think this should be done on the run on an oral submission.

MR YOUNG: If your Honours please, we can do that. Those are our submissions, if the Court pleases.

GLEESON CJ: Thank you. We will reserve our decision in this matter.

AT 4.39 PM THE MATTER WAS ADJOURNED

[2002] HCATrans 232

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