Esber v the Commonwealth

The High Court of Australia considered an appeal by Esber against the Commonwealth of Australia concerning the validity of a notice issued under s 16(1) of the *Royal Commissions Act 1902* (Cth) (the Act). The notice required Esber to produce certain documents to a Royal Commission. Esber sought to set aside the notice, arguing that it was invalid because it was issued for an improper purpose, namely to obtain information for use in criminal proceedings against him, rather than for the legitimate purpose of the Royal Commission.

The central legal issue before the High Court was whether a notice issued under s 16(1) of the *Royal Commissions Act* could be set aside on the ground that it was issued for an improper purpose. This required the Court to consider the scope of the power to issue such notices and the extent to which that power is subject to judicial review for abuse of process or improper purpose.

The Court held that the power to issue a notice under s 16(1) is not unfettered and can be reviewed by the courts if it is exercised for an improper purpose. However, the Court found that in this instance, the evidence did not establish that the notice was issued for an improper purpose. The Court reasoned that the purpose of a Royal Commission is to inquire into matters of public importance, and the power to compel the production of documents is a necessary incident of that power. While the information obtained might also be relevant to criminal proceedings, this did not, in itself, render the notice invalid. The Court emphasised that the onus was on the applicant to demonstrate that the notice was issued for a purpose other than that for which the power was conferred.

The appeal was dismissed.