Johns v Australian Securities Commission

[1993] HCA 56

HIGH COURT OF AUSTRALIA

BRENNAN, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

JOHNS v. AUSTRALIAN SECURITIES COMMISSION AND OTHERS

(1993) 178 CLR 408

13 October 1993

Administrative Law (1993) 31 ALD 417

Administrative Law—Natural justice—Australian Securities Commission—Private examination—Transcripts released to Royal Commission for internal use—Subsequent decision to release for use in Royal Commission's public hearings—Whether examinee entitled to opportunity to object—Judicial review—Power to direct party to do any act necessary to do justice between parties—Extent of power—Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 16(1)(d)—Australian Securities Commission Act 1989 (Cth), ss. 19(2)(b), 22(1), 24, 25(3), 127(1), (4).

Orders

1. Appeal allowed in part.

2. Set aside the order of the Full Court of the Federal Court and in lieu thereof order:
(a) appeal to that Court allowed in part;
(b) set aside the order of Heerey J and in lieu thereof:

(i) declare as against the first and third respondents that the following decisions by the third respondent in exercise of powers delegated to her under the Australian Securities Commission Act 1989 (Cth) were invalid on the ground that the powers were exercised in breach of the rules of natural justice, namely, the decisions to release to the fourth and fifth respondents transcripts of the appellant's examination before the third respondent held pursuant to s.21 of the Act in circumstances which allowed the material or information contained in such transcripts to be published generally; (ii) otherwise dismiss the application;

(c) otherwise dismiss the appeal to the Full Court of the Federal Court.

3. Otherwise dismiss the appeal to this Court.

4. Liberty to each of the parties to file and serve on each of the other parties within 14 days written submissions as to the orders which should be made relating to
(a) the costs of the proceedings in the Federal Court; (b) the costs of the application for special leave to appeal to

this Court;

(c) the costs of this appeal.

Liberty to each of the parties to file and serve submissions in reply, if any, within 7 days from service of the submission to which the reply relates or, in the case of the submissions already filed by the fourth, fifth and eighth respondents, within 21 days of this order.

Decisions

BRENNAN J I take the facts of this case substantially from the judgment of Black CJ and von Doussa J in the Full Court of the Federal Court from which this appeal is brought ((1) (1992) 108 ALR 405.). The appellant (Mr Johns) was the managing director of 22 companies comprising the Tricontinental group ("Tricontinental") at the time of the group's collapse. On 7 September 1990 the Victorian Government secured the appointment by the Governor-in-Council of a Royal Commission to inquire into the affairs of Tricontinental. The fourth and fifth respondents, the Hon. Sir Edward Woodward, O.B.E., QC and Mr D.G. Williamson, R.F.D., QC, are the two Commissioners who remained in office at the time of the appeal in this matter to the Full Court of the Federal Court. The terms of reference of the Royal Commission were, in general, to inquire into and report upon the affairs of and transactions engaged in by Tricontinental. Particular topics for investigation were, in summary, (1) whether any person had committed any criminal offence or breach of statutory duties; (2) whether any officer of Tricontinental had acted illegally, improperly or in breach of duty; (3) what matters and events caused the collapse; (4) whether any auditor, valuer or adviser had acted in breach of duty to Tricontinental or had given false or misleading information; (5) whether the affairs of Tricontinental were properly supervised by its own directors and managers, and by other nominated people;
(6) whether any person was liable to make restitution or pay compensation to Tricontinental or the State Bank of Victoria; and (7) whether any changes to the law are necessary.

2. On the same day that the Governor-in-Council appointed the Royal Commissioners, the Attorney-General for the State of Victoria, being the Minister for the time being responsible for the administration of the Companies (Application of Laws) Act 1981 (Vict.), gave a ministerial direction pursuant to s.291(1) of the Companies (Victoria) Code ("the Code") to the National Companies and Securities Commission ("the NCSC") to arrange for an investigation into the affairs of Tricontinental by the three Royal Commissioners identified by name in the ministerial direction. The matter to be investigated was specified as "the affairs of and transactions engaged in by the corporations in the Tricontinental group". The topics in particular to be investigated were specified in the same terms as in the Letters Patent establishing the Royal Commission. On the same day the NCSC, in compliance with s.292(3) and (4) of the Code, appointed the Royal Commissioners as inspectors to carry out the investigation, and notification of the investigation was given under s.292(6). The Commission also certified under s.292(9) that an investigation under Pt VII of the Code into the affairs of Tricontinental was being carried out by the Royal Commissioners as inspectors.

3. However, on 1 January 1991, before the Royal Commissioners entered on their hearings, the provisions of the Australian Securities Commission Act 1989 (Cth) ("the Act") relevant to these proceedings came into force and the functions of the NCSC devolved on the first respondent, the Australian Securities Commission ("the ASC") ((2) The Act, s.11(1A).). By s.14A(2) of the Act, the ministerial direction under the Code was given the effect of a direction under s.14(1) of the Act "with such other modifications (if any) as the circumstances require". The ministerial direction required the ASC to investigate the matters which the Minister had specified ((3) See s.14(1) and (3) of the Act.), but the ASC did not delegate any of its powers under the Act to the Royal Commissioners. The Royal Commissioners exercised
their powers under the Letters Patent appointing the Royal Commission. In 1991 the Royal Commission commenced substantial public hearings.

4. The NCSC and subsequently the ASC had agreed to make available to the Royal Commission the services of certain of their officers, including the third respondent, Ms Megay. Ms Megay became the Director of Investigations for the Royal Commission. Following an arrangement made on or about 11 February 1991 between the ASC and the Royal Commission, the ASC delegated to Ms Megay and to some other ASC officers attached to the Royal Commission the powers and functions of the ASC under Pt 3 of the Act.

5. Section 19(2)(b) of the Act empowers the ASC by written notice to require certain persons "to appear before a specified member or staff member for examination on oath and to answer questions". This power is available "where the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1" of Pt 3 of the Act. Mr Johns was given a notice to appear for examination before Ms Megay "in relation to an investigation of the activities of the Tricontinental group of companies". He appeared before Ms Megay on 17 July 1991 and on a number of subsequent occasions. Ms Megay, in exercise of the powers conferred by s.21, required Mr Johns to answer on oath or affirmation questions which she put to him "relevant to a matter that the Commission is investigating". The examinations were conducted in conformity with s.22(1) which provides:

" The examination shall take place in private and the inspector may give directions about who may be present during it, or during a part of it."

6. Transcripts were made of these examinations. The information in these transcripts was protected from disclosure by s.127(1) of the Act subject to certain qualifications prescribed by s.127(2), (3) and (4). Sub-section (1) reads as follows:

" The Commission shall take all reasonable measures to

protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction." Sub-sections (2), (3) and (4) prescribe particular circumstances in which such information is authorized to be used or disclosed ((4) But s.127(6)(b) contemplates the possibility of authorized use or disclosure of information in other circumstances.). Pursuant to a delegation by the Chairperson of the ASC, Ms Megay authorized the disclosure of certain transcripts to the Royal Commission under s.127(4)(b) of the Act which provides:

" Where the Chairperson is satisfied that particular information: (a)... (b) will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power; or (c)... the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information".

Ms Megay at first released transcripts to the Royal Commission to be used "within the Royal Commission" and only "for the purpose of enabling or assisting the Royal Commission to perform or exercise one or more of its functions or powers, and for no other purpose". Ms Megay's advice did not authorize the Royal Commission to publish
the transcripts but only to use them internally. That was in accordance with a decision taken by the ASC on 11 February 1991 and communicated to Ms Megay in the following terms:

"The ASC is concerned that, where information is provided to the Royal Commission pursuant to section 127(4), that information should be held by the Royal Commissioners as confidential information, unless the ASC otherwise agrees. The Commission members take the view that all information obtained by the ASC under compulsive procedures is prima facie subject to the confidentiality obligations in section 127(1). The ASC believes that it would not be appropriate to disclose material to any person who may intend publication of that material, without a reconsideration of the information to be made public. We understand that the Royal Commissioners would wish to hold as many hearings in public as possible, but trust that we can come to an appropriate arrangement to ensure that information disclosed to the Royal Commissioners by the ASC is only made public where appropriate."

7. It was understood that, when transcripts were released, the Royal Commission was not thereby authorized to publish them. At first the Royal Commission sought permission from the ASC on each occasion when it desired to use publicly the transcripts released to it by Ms Megay. In respect of three of these transcripts, Ms Megay gave permission for their public release by the Royal Commission. But this practice
presented some difficulties. The Royal Commission thought it desirable to hold as many hearings as possible in public and, on 17 September 1991, the second respondent, Mr Hartnell, who was the Chairperson of the ASC, wrote to Senior Counsel assisting the Royal Commission setting out a new arrangement:

"I believe that the existing delegation of powers under 127(4) to your Director of Investigations is appropriate for the release of information for use within your Commission. However, with respect to the public dissemination of any ASC information to which section 127 relates, I believe that there must be a full and proper consideration of each particular item of information, prior to the exercise of the discretion conferred by section 127(4). Accordingly, because of possible difficulties which I may have in exercising a personal discretion in relation to all the material obtained by your Commission, in exercise of ASC powers, I propose a new arrangement whereby Mrs Megay will exercise a delegated power to consent to the public release of information provided by the ASC to your Commission. That consent will operate to waive the confidentiality condition otherwise imposed upon all ASC information provided to your Commission. ... In the case of records of examinations conducted pursuant to ASC powers, I propose that Mrs Megay should exercise the powers contained in section 25 of the ASC Law, but consistent with the Commission's policy in relation to any proposed release. Mrs Megay is already delegated all powers contained in Part 3 of the ASC Law, including section 25. ... ... I will authorise Mrs Megay to release certain records of examination, again with the consent of Mr Stephen Menzies. In appropriate cases, it may be necessary to impose conditions to the disclosures pursuant to section 25, consistent with ASC policy, but these conditions can be agreed between Mrs Megay and Mr Menzies." (Mr Menzies was a senior officer of the ASC.)

Section 25 of the Act reads as follows:

" (1) The Commission may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person's lawyer if the lawyer satisfies the Commission that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related. (2) If the Commission gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, shall not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding: (a) use the copy or a copy of it; or (b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents. Penalty: $1,000 or imprisonment for 3 months, or both.

(3) The Commission may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book."

Ms Megay, purporting thereafter to act in exercise of her delegated powers under s.25(3), gave transcripts of Mr Johns' examinations to the Royal Commission and, in a majority of instances, gave written permission for the Royal Commission to use the transcripts in a public hearing.

8. When copies of transcripts of examinations of Mr Johns conducted by Ms Megay were tendered in evidence in public hearings by the Royal Commission, the Royal Commission made copies available to media representatives, including journalists from the sixth respondent, The Herald and Weekly Times Ltd. ("HWT") and from the seventh respondent, the Australian Broadcasting Corporation ("the ABC"). Information contained in those transcripts has been published by the media.

9. Mr Johns was called to give evidence before the Royal Commission. On 11 December 1991 he refused to answer certain questions. His claim of privilege against self-incrimination was upheld by the Supreme Court of Victoria. As s.68 of the Act denied him that privilege in his examinations before Ms Megay, the Royal Commission thought that "it would have been better if the Commission had confined the tender of the transcripts to the tender of extracts on a confidential basis, pending the actual giving of evidence to the Commission by Mr Johns". On 14 February 1992 the Royal Commission ordered:

"that no tender of further transcripts by Mr Johns will be accepted, and that there be no further publication of those already tendered and distributed. It is also ordered that no further use be made before this Commission of the transcripts already tendered."

HWT and the ABC brought proceedings in the Supreme Court of Victoria challenging the Royal Commission's non-publication order. Those proceedings were adjourned pending a determination of the present proceedings which Mr Johns commenced in the Federal Court of Australia on 25 March 1992.

10. From the Federal Court Mr Johns sought, inter alia, orders against HWT and the ABC restraining further publication of material from the transcripts of his examinations. Heerey J dismissed Mr Johns' action and the Full Court of the Federal Court by majority (Black CJ and von Doussa J, Davies J dissenting) dismissed his appeal. This Court granted special leave to appeal on limited grounds. The appellant was given special leave (1) to attack the validity of the decisions of Ms Megay to release the transcripts to the Royal Commission in circumstances which allowed the information released to be published generally and (2) to argue the relief to which he was entitled if it should be held that Ms Megay's decisions were, or any of them was, invalid.

11. Mr Johns' argument is that neither s.127(4) nor s.25(3) of the Act authorized the release of the transcripts of his examinations to the Royal Commissioners in circumstances which authorized, allowed or permitted those transcripts to be published generally. It is submitted that the transcripts should not have been released without requiring that they not be published generally and maintaining that
requirement. It is further submitted that by releasing the transcripts in those circumstances and without affording Mr Johns an opportunity to be heard, he was denied natural justice. On the footing that, for these reasons, the release of his transcripts for general publication was invalid, Mr Johns' argument is that he is entitled to an order setting aside each of the decisions to release the transcripts and to a further order that HWT and the ABC be restrained from publishing the transcripts or the information contained therein or any part thereof pursuant to s.16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or pursuant to his rights in law and/or in equity to protect the confidentiality of the transcripts.

Privacy of Pt 3 Div.2 Examinations

12. Section 22 of the Act directs that an examination under s.19 "shall take place in private", the inspector being given a discretion as to who may be present in addition to the inspector, the examinee's lawyer and any staff member approved by the ASC ((5) ss.22(2), 23.). The Act thus maintains the traditional privacy of examinations into the affairs of a company. Privacy has been observed in conducting such examinations out of consideration for the commercial reputation of the company and the protection of witnesses ((6) Hearts of Oak Assurance Co. v. Attorney-General (1932) AC 392, at pp.397-398, 403; (1931) 2 Ch 370, at pp.392-393; In re Pergamon Press Ltd. (1971) Ch 388, at
pp.399-400, 404; Finnane v. Australian Consolidated Press Ltd. (1978) 2 NSWLR 435, at pp.443-445.).

13. Section 24 provides for the making of a record of statements made at an examination - the transcripts in this case - and ss.24(2)(b) and 25 provide for the distribution of such transcripts. Although ss.22 and 23 insist on privacy in the conduct of an examination, s.25(3)
contains no express restriction on the giving of copies of transcripts. Section 26 makes it an offence for any person having possession, custody or control of a copy of a transcript to fail to comply with any condition imposed on the giving of a copy of that transcript under ss.24(2) or 25(3). However, the general authority to give the transcript conferred by s.25(3) is not expressly qualified. Yet that apparently unqualified authority is subject to the direction to the ASC in s.127(1) to take all reasonable measures to protect from unauthorized use or disclosure information given to the ASC in confidence and other information acquired in the performance of its functions. In the absence of an express waiver by all affected parties, the information contained in the transcript of a private examination is given in confidence. And, of course, it is acquired by the ASC in the performance of its functions. Unless the affected parties waive the confidentiality imposed by s.127(1) or unless statutory authority be found for breaching that confidentiality, it would be contrary to s.127(1) to disclose the information contained in a copy of the transcript. The terms of s.25(3), relating to the distribution of transcripts, must be construed in the context of provisions affecting the confidentiality of the information contained therein.

The limitation of s.25(3) authority

14. Information is intangible. Once obtained, it can be disseminated or used without being impaired, though dissemination or use may reduce its value or the desire of those who do not have it to obtain it. Once disseminated, it can be disseminated more widely. A person to whom information is disclosed in response to an exercise of statutory power is thus in a position to disseminate or to use it in ways which are alien to the purpose for which the power was conferred. But when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the
purpose for which the information disclosed can lawfully be disseminated or used. In Marcel v. Commissioner of Police ((7) (1992) Ch 225, at p.234. The Vice-Chancellor's view in this respect was affirmed on appeal: see (1992) Ch, esp. at pp.261, 262.) Sir Nicolas Browne-Wilkinson VC said, in reference to a statutory power conferred on police to seize documents:

"Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorised the use and disclosure of seized documents for purposes other than police purposes."

And in Morris v. Director of the Serious Fraud Office ((8) (1993) 3 WLR 1, at p.7.), Sir Donald Nicholls VC said in reference to
information acquired by exercise of statutory powers:

"The compulsory powers of investigation exist to facilitate the discharge by the S.F.O. of its statutory investigative functions. The powers conferred by section 2 are exercisable only for the purposes of an investigation under section 1. When information is obtained in exercise of those powers the S.F.O. may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorised by statute, but not otherwise. Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent."

A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature. Where and so far as a duty of non-disclosure or non-use is imposed by the statute, the duty is closely analogous to a duty imposed by equity on a person who receives information of a confidential nature in circumstances importing a duty of confidence.

15. A person who obtains information in exercise of the powers conferred by s.19 of the Act comes under a statutory duty of confidence with respect to the information thus obtained. It is
therefore important to ascertain the purposes for which such information can be legitimately used or disclosed. In the first place, the power conferred by s.19 of the Act to require a person to appear for examination and to answer questions is conferred for the purpose of obtaining "information relevant to a matter that (the ASC) is investigating, or is to investigate, under Division 1" of Pt 3 of the Act. So the information acquired by conducting a s.19 examination may be used for the purposes of such an investigation. In addition, s.127(3) authorizes disclosure of otherwise confidential information by, inter alia, the members and staff members of the ASC for the purposes of performing the official functions of the person making the disclosure. As investigations are but some of the functions of the ASC (most of which are prescribed by Pt 2 of the Act) the Act contemplates that information acquired on examinations under s.19 may be used and disclosed for the purpose of the performance or exercise of any of the functions of the ASC. Then, certain purposes other than the performance of the functions of the ASC are approved by sub-ss.(2) and (4) of s.127. Information obtained in exercise of the powers conferred by s.19 may therefore be used or disclosed for the purpose of the performance of any of the functions of the ASC and for any of the purposes mentioned in sub-ss.(2) and (4) of s.127. But for no other purpose.

16. The purposes for which information may legitimately be used or disclosed are one thing; the means by which information is used or disclosed are another. Section 127 of the Act relates to purposes; s.25(3) relates to means. The two provisions must be read together. Section 25(3) cannot be read as conferring a broad discretionary power to disseminate information obtained in exercise of powers conferred by s.19 ((9) I am, with respect, unable to accept a view of s.25(3) as broad as that embraced by the Full Court of the Supreme Court of Western Australia in interpreting s.298(8) of the Companies (Western Australia) Code in Wardley Australia Ltd. v.
Attorney-General (W.A.) (1991) 5 WAR453, at p.468; (1991) 5 ACSR 786, at p.801.). The power conferred by s.25(3) must be exercised consistently with the provisions of s.127 so that the giving to a person of "a copy of a written record of the examination ... together with a copy of any related book" under s.25(3) is authorized only if it be for a purpose consistent with s.127. Section 25(3) can be read as authorizing the ASC to give copies of a transcript to another person in cases in which the disclosure of the information
contained therein is authorized by s.127(2), (3) or (4). Or s.127(2),(3) or (4) can be read as themselves authorizing the employment of appropriate means (including the giving of transcripts) by which to disclose the information that can legitimately be disclosed in accordance with those sub-sections. It matters not whether those provisions be read in one way or the other. The extent of the
authority to give a transcript is the same: it is a limited authority.

17. The Royal Commissioners were not exercising the powers of the ASC nor can they be said to be performing ASC functions. The investigation being carried on by the Royal Commission and the investigation being carried on by the ASC pursuant to s.14A of the Act were parallel but distinct investigations. Had the Code remained in force to give effect to the ministerial direction of 7 September 1990, the Royal Commissioners would have had a dual function to perform
- as inspectors in an NCSC investigation as well as Royal Commissioners - but that situation changed on 1 January 1991. If, after that date, information contained in the transcripts of Mr Johns' examinations was to be given to the Royal Commission by the ASC, specific statutory authority had to be found. It was found in s.127(4)(b) of the Act. The Royal Commission was an agency of the State of Victoria, and there could be no doubt but that the Royal Commission, conducting an investigation parallel with the ASC investigation, would be assisted by the disclosure of the information contained in Mr Johns' transcripts. The requirements of s.127(4)(b) were thus satisfied.

Mistake in the source of authority

18. The ASC and Ms Megay evidently saw s.25(3) and s.127(4)(b) as alternative sources of authority to give copies of the transcripts to the Royal Commission. The better view may be that s.25(3) was the source of the authority and s.127(4)(b) was a limitation on its exercise. But if Ms Megay or the ASC were in error as to the source of the authority, the error was immaterial. If, as I would hold, it was lawful for the ASC and its delegate Ms Megay to disclose to the Royal Commission the information contained in the transcripts, it was lawful to disclose that information by giving copies of the transcripts to the Royal Commission. When a power is exercised, a mistake in the source of the power works no invalidity ((10) Moore v. The Attorney-General for the Irish Free State (1935) AC 484, at p.498; R. v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, at p.487;
Brown v. West (1990) 169 CLR 195, at p.203.). Validity depends simply on whether a relevant power existed.

The condition of confidentiality

19. Prima facie, it is the privilege of any person who possesses information to keep the information confidential. That person may wish not to disclose it at all or may wish to disseminate it or to authorize its dissemination only for a limited purpose or to a limited
class of persons. In Attorney-General v. Guardian Newspapers (No.2) ((11) (1990) 1 AC 109, at p.214.) - the Spycatcher case - Bingham LJ said:

" It is a well-settled principle of law that where one party ('the confidant') acquires confidential information from or during his service with, or by virtue of his relationship with, another ('the confider'), in circumstances importing a duty of confidence, the confidant is not ordinarily at liberty to divulge that information to a third party without the consent or against the wishes of the confider."

The jurisdictional basis or bases of this principle may not have been finally determined ((12) See per Lord Goff of Chieveley, ibid., at p.281.) but there is certainly jurisdiction in equity to grant relief against actual or threatened abuse of confidential information. In Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No.2) ((13) (1984) 156 CLR 414, at pp.437-438.), Deane J said:

" It is unnecessary, for the purposes of the present appeal, to attempt to define the precise scope of the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trade mark right. A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: see The Commonwealth v. John Fairfax and Sons Ltd. ((14) (1980) 147 CLR 39, at pp.50-52.). Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained."

20. Deane J was speaking of the exclusive jurisdiction of equity to enforce a duty imposed by equity. The jurisdiction to restrain the repository of a statutory power from using or disclosing information obtained in exercise of the power cannot rest on the same basis. A duty not to use or to disclose information obtained in exercise of a statutory power except for a purpose authorized by the statute is a duty imposed by statute, not by equity. Yet the equitable remedy of injunction is available in appropriate cases to enforce a statutory duty against a public authority ((15) Bradley v. The Commonwealth (1973) 128 CLR 557, esp. at pp.575, 581-582; Annetts v. McCann (1990)
170 CLR 596.). Jurisdiction to grant an injunction, like jurisdiction to make a declaration ((16) Dyson v. Attorney-General (1911) 1 KB 410; Balog v. Independent Commission Against Corruption (1990) 169 CLR 625.), is well established - albeit the theoretical foundation of the jurisdiction has not been clearly defined ((17) See de Smith's Judicial Review of Administrative Action, 4th ed. (1980), ch.9.).

21. The confidentiality of the information contained in the Johns transcripts was thus amenable to protection by injunction in cases where its use or disclosure was not authorized by statute. But once the ASC, possessed of statutory authority to disclose the information to the Royal Commission, gave the transcripts to the Royal Commission, the confidentiality of the information could be protected by order against the Royal Commission only by enforcing an "obligation of conscience arising from the circumstances in or through which the information was communicated or obtained". However, there was no abuse of confidence on the part of the Royal Commissioners. They observed punctiliously the conditions which the ASC or Ms Megay imposed on the use which the Royal Commission might make of the transcripts. Before any transcript was used in public hearings, approval was given by the ASC or by Ms Megay. Although Mr Johns attacks the validity of the decisions by the ASC and Ms Megay to approve the use of the transcripts in public hearings, he makes no case that the Royal Commissioners were knowingly privy to any wrongful approval. It cannot be said that the Royal Commissioners came under any obligation of conscience not to use the transcripts in public hearings once approval for that use had been given.

22. The question whether approval for use of the transcripts in public hearings was validly given depends on the scope and effect of s.127(1) and (4)(b). Section 127(1) protects information from "unauthorised use or disclosure". It does not purport to protect information from publication when the publication occurs in the course of an authorized use or disclosure. For example, the Act contemplates that information contained in the transcript of a s.19 examination may be published in the course of court proceedings: see ss.25(1) and (2), 68 and 76 and generally Pt 3 Div.9. When information is disclosed under s.127(4)(b) to an agency of a State to enable or assist it to perform its functions, the use or disclosure of that information by that agency is not governed by s.127(1).

23. It is arguable that, where the ASC discloses information to a State agency under s.127(4)(b), the ASC has no power to impose a condition on the agency's use or disclosure of that information. I do not accept that argument. No doubt the Royal Commission itself had a discretion as to the use which it chose to make of information disclosed to it by the ASC, but, statutory provisions apart, that discretion could be exercised only in a manner consistent with the terms upon which the Royal Commission had received the information from the ASC. The power conferred on the ASC by s.127(4)(b) is discretionary and there is no reason why the ASC should not disclose information under that provision upon a condition governing the receiving agency's use or further disclosure of the information. An authority conferred by statute is construed as authorizing everything which can fairly be regarded as incidental to or consequential upon the authority itself ((18) Attorney-General v. Great Eastern Railway
Co. (1880) 5 App Cas 473, at p.478; Reg. v. Gough; Ex parte Australasian Meat Industry Employees' Union (1965) 114 CLR 394, at pp.416, 422.). Therefore it is within the competence of the ASC, as a condition of disclosing information to a State agency, to impose a restriction on the use or further disclosure which the agency may make of the information disclosed. When such a condition is imposed, it may be enforceable as a statutory duty if s.26 applies but, in any event, it will be enforceable as an equitable obligation, the conscience of the State agency being affected by the terms on which it receives the information. The condition may be enforced by injunction or perhaps, in the event of breach, by damages in lieu of injunction under Lord Cairns' Act ((19) In Victoria, the applicable provision is s.38 of the Supreme Court Act 1986 (Vict.). See generally Gurry, Breach of Confidence, (1984), pp.27, 364-365, 428-430.).

24. In this appeal, the decisions taken by the ASC and Ms Megay which Mr Johns seeks to attack are not simply the decisions to disclose the information in the transcripts to the Royal Commission but the decisions to do so in circumstances which allowed the transcripts to be published generally. In substance this is an attack on the lifting of the condition that that information not be used in public hearings. The power to lift the condition, like the power to impose it, is conferred as an incident of the authority conferred by s.127(4)(b) taken in conjunction with s.25(3). It is therefore amenable to review under the ADJR Act.

Review of the decisions to permit publication

25. Prima facie, the ASC and Ms Megay were obliged by s.127(1) to keep the Johns transcripts confidential except to the extent to which disclosure was authorized for the purpose of the performance of a function of the ASC. Prima facie, Mr Johns had a corresponding right to insist on the maintenance of that confidentiality ((20) See Marcel v. Commissioner of Police (1992) Ch, at pp.237, 261, 262.). But,
as s.127(4)(b) authorizes disclosure to State agencies, the confidentiality of the transcripts was vulnerable to destruction by exercise of that authority. The prima facie obligation imposed on the ASC and Ms Megay to keep the transcripts confidential affected the manner in which they could lawfully exercise the discretion under s.127(4)(b) to lift the condition against use of the transcripts in public hearings. The exercise of a statutory power or authority may annihilate or modify an antecedent right or duty ((21) Smorgon v. Australia and New Zealand Banking Group Ltd. (1976) 134 CLR 475, esp. at pp.486-488.), but that is not to say that the antecedent right or duty is irrelevant to the manner in which the statutory power or authority is to be exercised. The antecedent right or duty is a relevant factor affecting the discretionary exercise of the statutory power or authority. It will not ordinarily be a determinative factor, because statute will usually confer the power or authority for some public purpose embracing factors beyond the rights of, or duties owed to, an individual. Thus, in the present case, Mr Johns' prima facie right to confidentiality of the transcripts was a relevant factor to be taken into account in deciding whether to disclose the information contained in the transcripts to a State agency, but it was not determinative of the question. It is clear, however, that the confidentiality of the transcripts was taken into account in the decisions to release the transcripts to the Royal Commission and to permit their use in public hearings. Those decisions are not open to attack on the ground that a material factor was not taken into account. Nor could an argument founded on unreasonableness impugn a decision to make the Johns transcripts available for use by the Royal Commission. The holding of public hearings was a proper function of the Royal Commission and a decision to permit the use of the transcripts for that purpose was within the bounds of reasonableness and was made for a
purpose for which authority under s.127(4)(b) was conferred.

26. However, it is another question whether the decision to make the transcripts available for use in public hearings ought to have been made without giving Mr Johns an opportunity to be heard in opposition. The decisions to allow the use of the transcripts in public hearings were prejudicial to Mr Johns' interests. Some indication of that prejudice is shown by the Royal Commission's observation that "it would have been better if the Commission had confined the tender of the transcripts to the tender of extracts on a confidential basis, pending the actual giving of evidence to the Commission by Mr Johns".

27. An exercise of the authority conferred by s.127(4)(b) is apt to affect adversely the interests of an examinee who is prima facie entitled to have the confidentiality of the transcript of the examination observed. Accordingly there is an obligation on a person proposing to exercise that authority to observe the rules of natural justice ((22) Kioa v. West (1985) 159 CLR 550, at p.619; Annetts v. McCann (1990) 170 CLR, at p.598; Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564, at pp.591-592.). Of course, there would be some situations in which natural justice would not require notice to be given to an examinee of an intention to make transcripts of the examination available to a State agency: for example, where an investigation by a State law enforcement agency might be frustrated by informing the examinee that information disclosed in a s.19 examination was in the hands of the agency. But where no such consideration countervails against a person's right to be heard before a decision prejudicial to his or her interests is taken, the ASC should give that person an opportunity to oppose. In this case, the decisions to permit the Royal Commission to use the transcripts in public hearings were

taken without reference to Mr Johns. He was given no formal opportunity to oppose the decision to permit use of the transcripts in public hearings, though he must have known, after the decision to permit use in a public hearing of the first transcript, that a similar decision might be taken with respect to other transcripts. Yet there seems to have been no exigency which warranted a failure to give him a formal opportunity to object. That opportunity should have been given ((23) See Marcel v. Commissioner of Police (1992) Ch, at pp.259, 261; Morris v. Director of the Serious Fraud Office (1993) 3 WLR, at pp.10, 11.). Had Mr Johns opposed their public use, the ASC and Ms Megay may have formed the view, like the subsequent view of the Royal Commission, that it would be better that the transcripts not be used in public hearings. Had that decision been taken, the probabilities are that it would have been respected by the Royal Commission.

28. However, the transcripts were used in the public hearings and it is too late now to recall the decisions which permitted them to be so used. The most that can be done is to declare that the decisions were invalidly taken for failure to accord Mr Johns an opportunity to be heard in opposition ((24) Ainsworth v. Criminal Justice Commission
(1992) 175 CLR, at pp.581-582, 595-597.). But should such a declaration be made? In the Full Court of the Federal Court it was unnecessary for the majority to consider whether any discretionary relief should be granted but their Honours nevertheless indicated that
Mr Johns had left his challenge too late. This is a powerful consideration but, on balance, I would favour the making of a declaration. Yet it will be a pyrrhic victory for Mr Johns.

Relief against 6th and 7th respondents

29. There remains the question of the relief against HWT and the ABC. Counsel for Mr Johns submits that, as the information contained in the transcripts has not been generally disseminated by the media and as the Royal Commission imposed a ban on further dissemination, the information is not in the public domain. In support of this submission, counsel cited passages from cases in which the courts have acknowledged that relief can be given to restrain a defendant from publishing confidential information after some limited publication has occurred ((25) The Commonwealth of Australia v. John Fairfax and Sons Ltd. (1980) 147 CLR 39, at p.54; Franchi v. Franchi (1967) RPC 149, at pp.152-153; and see Attorney-General (U.K.) v. Heinemann
Publishers Australia Pty. Ltd. (1987) 8 NSWLR 341, at p.374; David Syme and Co. Ltd. v. General Motors-Holden's Ltd. (1984)
2 NSWLR 294, at p.299.). A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. Here the transcripts were exhibits tendered before the Royal Commission sitting in public. HWT and the ABC obtained copies of the exhibits as documents already in the public domain. When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain ((26) Home Office v. Harman (1983) AC 280, at pp.303, 312.). Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not "imparted so as to import an obligation of confidence": per Mason J in The Commonwealth of Australia v. John Fairfax and Sons Ltd. ((27) (1980) 147 CLR, at p.51.). In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain ((28) Attorney-General (U.K.) v. Heinemann Publishers Australia Pty. Ltd. (1987) 8 NSWLR, at p.374; Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC, at pp.271, 286-288, 293.). This case concerns information which was already in the public domain at the time when HWT and the ABC acquired it. In Marcel v. Commissioner of Police, Browne-Wilkinson VC said ((29) (1992) Ch, at p.237; see also Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC, at pp.215, 268, 282.):

"there can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared. In the case of the ... documents which have been read in open court, they have now lost their confidentiality by disclosure in open court."

Accordingly, no obligation of confidence was imposed on HWT or on the
ABC either by equity or by the Act.

30. Nevertheless, Mr Johns submits that he is entitled to a remedy against HWT and the ABC under the ADJR Act. That Act confers on the Federal Court jurisdiction to make orders "directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties": s.16(1)(d). HWT and the ABC were joined as respondents to Mr Johns' application to the Federal Court, but it does not follow that an injunction may issue restraining them from using the transcripts merely because they are made parties to the litigation. The relief which may be ordered under s.16(1)(d) of the ADJR Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer. Some observations in Park Oh Ho v. Minister for Immigration and Ethnic Affairs ((30) (1989) 167 CLR 637, at pp.644-645.) were relied on in support of an argument that the recipient of information was within the purview of that paragraph if the information was received in consequence of a reviewable and void decision. In that case, this Court said ((31) ibid., at p.644.):

" The legislative purpose to be discerned in the conferral by s.16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is 'necessary to do justice between the parties' (s.16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality."

However, s.16(1)(d) applies only when the making of an order is "necessary to do justice between the parties". That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence ((32) The position in equity of a third party recipient of confidential information was discussed in Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC, at pp.260, 272.). But HWT and the ABC received the transcripts from the Royal Commission, not from the ASC, and it does not appear that either of them had knowledge of any breach of duty on the part of the ASC in permitting publication of the transcripts by the Royal Commission.

31. If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s.16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the ADJR Act.

32. I am unable to ascertain any basis for the grant of relief under the ADJR Act against HWT or the ABC. They received and were entitled to receive the transcripts free of any obligation of confidence when those transcripts were tendered in the public proceedings of the Royal Commission and were given to them by the authority of the Royal Commission. I note that in Marcel v. Commissioner of Police, Browne-Wilkinson VC said ((33) (1992) Ch, at p.235.):

"so far as I am aware the court in exercising its jurisdiction by way of judicial review would not have power to order third parties ... who have unlawfully received property from a public authority to return that property. Such right, if any, must be based on a private law cause of action."

33. No order can be made under the ADJR Act against either the 6th or the 7th respondent.

34. I would therefore - (1) declare as against the Australian Securities Commission and

Ms Megay that the decisions by Ms Megay to release the Johns transcripts in circumstances which allowed the material or information contained in the transcripts to be published generally were invalid on the ground that the decisions were made in breach of the rules of natural justice;

(2) otherwise dismiss the appeal.

35. In accordance with the procedure discussed during the argument in this case, the making of the order for costs will stand over until the parties to these proceedings have had an opportunity, in the light of the reasons for judgment, to make submissions as to the orders which
ought to be made.

DAWSON J In this matter I agree generally with Brennan J The facts and relevant legislation are set out in his judgment and I shall not repeat them. I wish only to add the following comments.

2. It is, I think, apparent that information given by a person in the course of an examination under Pt 3 of the Australian Securities
Commission Act 1989 (Cth) ("the Act") must be treated by the
Australian Securities Commission ("the ASC") as confidential information. That would probably be the case even apart from specific
statutory provision ((34) See Hearts of Oak Assurance Co. v. Attorney-General (1931) 2 Ch 370, at pp.392-393; (1932) AC 392, at pp.397-398; In re Pergamon Press Ltd. (1971) Ch 388, at pp.399-400, 404; Finnane v. Australian Consolidated Press Ltd. (1978) 2 NSWLR 435, at pp.443-445.), but it also flows from the requirement that the examination take place in private (s.22(1)), the restriction placed upon the provision of a transcript of the examination to a person's lawyer (s.25(1)), the use of the transcript when so provided (s.25(2)) and the conditions which may be imposed when any person is given a copy of the transcript (s.25(3)). Most significantly it flows from the express provision in s.127(1) that the ASC shall take all reasonable measures to protect from unauthorized use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under
relevant legislation. However, the duty of confidence is not absolute, and statutory authority is given to disclose the information in circumstances set out in s.127(2), (3) and (4). For present purposes the relevant provision is s.127(4)(b), which permits disclosure where the information will, amongst other things, enable or assist an agency of a State to perform a function or exercise a power. Clearly, the Victorian Royal Commission to inquire into the affairs of Tricontinental was such an agency.

3. Whatever view may have been taken by the ASC, I agree with Brennan J that s.127(2), (3) and (4) deals with the purposes for which information may be disclosed, in contrast with s.25(3) which deals with the means by which the transcript of an examination may be disclosed. Relevantly, s.25(3) authorizes the ASC, subject to such conditions (if any) as it imposes, to give to a person a copy of the transcript of an examination. Thus, the Act prescribes not only the confidentiality of the transcript, but the means by which and the purpose for which the ASC may disclose that transcript without breach of the duty imposed upon it. There is also a general rule that where a body has statutory powers to compel the provision of information to it, it should not disclose the information except for the purposes for which the powers were conferred ((35) Marcel v. Commissioner of Police (1992) Ch 225; Morris v. Director of the Serious Fraud Office (1993) 3 WLR 1.). Any other approach in relation to information gleaned under compulsion would encroach further than necessary upon the right of the individual to treat as confidential information in his or her possession. But in this case, the purposes for which disclosure may be made are specifically set out in the Act. Although in this case the existence and extent of the duty of confidence resting upon the ASC are to be found in the Act, the same may not be said of any duty of confidence on the part of the Royal Commission arising from receipt of the information imparted to it by the ASC. No doubt where information is provided on the condition that confidence be maintained, a duty of confidence might be said to arise from the requirement imposed by s.26 of the Act that the recipient of a copy of a transcript given subject to conditions shall comply with the conditions. But, that section apart, it must be equity, rather than the statute, which imposed a duty of confidence upon the Royal Commission upon the basis that the information provided to it was confidential and was provided in circumstances which imported an obligation of confidence ((36) See Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC 109; Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No.2) (1984) 156 CLR 414, at pp.437-438.).

4. The conditions initially imposed upon the Royal Commission that the transcripts not be published were removed and the ASC permitted the Royal Commission to use them publicly. The consent given by the ASC removed the obligation of confidence previously resting upon the Royal Commission ((37) See Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC, at p.214.) and the Royal Commission was then free to publish the information for its own purposes. I agree with Brennan J that the restriction upon use imposed by s.127(1) applied to the ASC but not to the Royal Commission. Once provided with the information pursuant to s.127(4)(b), the Royal Commission was freed from any conditions and was at liberty to use the information to assist in the performance of its own functions. There was, therefore, no breach of confidence by the Royal Commission in using the transcripts in public hearings.

5. The grounds of appeal limit the appellant's complaint to the decision of the ASC to release material or information to the Royal Commission "in circumstances which allowed the material or information released to be published generally". The decision to release the
material to the Royal Commission subject to a condition of confidentiality was followed by the decision to consent to the use of the transcripts in public hearings. It would appear that the appellant complains of the later decision and he contends that it is invalid because the ASC failed to hear him before it made this decision. It may be that in some circumstances it could be contended the rules of natural justice ought to be observed by granting a hearing before deciding to release material to another agency for internal use. I express no view upon that question, which would involve considerations of overriding public policy ((38) See Morris v. Director of Serious Fraud Office (1993) 3 WLR, at p.11.). But in the circumstances of this case, the decision to remove the conditions and to consent to the use of the information publicly was clearly a decision which prejudiced the appellant's rights or interests. Procedural fairness therefore required the ASC to afford the appellant a hearing before making that decision ((39) See Annetts v. McCann
(1990) 170 CLR 596, at p.598.). The appellant's personal reputation was a sufficient interest to require the ASC to observe the rules of natural justice before making a decision which might adversely affect him ((40) See Ainsworth v. Criminal Justice Commission (1992)
175 CLR 564.), but more than that, the publication of the information provided by the appellant under compulsion was a further encroachment upon the appellant's common law right to maintain his silence upon the matters which were the subject of investigation by the ASC.

6. I agree with Brennan J that the appellant is entitled to a declaration that the decision was invalid. I also agree that the appellant has not made out grounds for relief by way of an order under s.16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the Australian Broadcasting Corporation and the Herald and Weekly Times Ltd.

7. The finding that the transcripts were invalidly released to the Royal Commission does not entitle the appellant to any other relief such as an injunction preventing further breach of confidence. The improper origin of that material cannot alter the fact that the material was introduced into the public domain when it was tendered at a public hearing. There is no breach of confidential information if the information does not have the "quality of confidence" ((41) Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No.2) (1984) 156 CLR, per Deane J at p.438.). Information which is on the public record cannot have that quality. It is unnecessary to decide whether the necessary quality of confidence was or could be reimposed upon the material when the Royal Commission made an order restraining its further publication. The validity of the Royal Commission's order has been challenged in the proceedings in the Supreme Court which were adjourned pending the outcome of these proceedings. If that order was invalid, the transcripts remained in the public domain and did not attract an obligation of confidence. If the order was valid, then it took effect of its own force, independently of any obligation of
confidence.

TOOHEY J The grant of special leave to appeal in this matter was limited to part of the judgment and order of the Full Court of the Federal Court of Australia from which special leave to appeal was sought. Correspondingly, the grant of special leave was confined to the following grounds:

"1 That the decisions by the thirdnamed respondent in purported exercise of the powers delegated to her to release material acquired by the exercise of powers
under Part 3 of the Australian Securities Commission
Act 1989 or to release other information to the
fourthnamed and fifthnamed respondents in circumstances
which allowed the material or information released
to be published generally were invalid either on the
ground that the powers were exercised in breach of
the rules of natural justice or otherwise in breach
of the express or implied requirements of the
Australian Securities Commission Act 1989.
2 If the decisions of the thirdnamed respondent to
release material or information to the fourthnamed and fifthnamed respondents were invalid, what right to
relief if any does the applicant have against any and
which of the respondents?"

The background

2. The first step in these reasons must be to identify the parties before the Court. It is convenient to do so in an order different from that in which they appear in the title of the appeal. It is also convenient to adopt generally the abbreviations used in the judgments of the Federal Court.

20. A decision to release the transcripts had the potential to prejudice the appellant's interests. Specifically, the information was likely to affect perceptions of the appellant's integrity
and injure his reputation. In Ainsworth v. Criminal Justice
Commission ((104) (1992) 175 CLR 564.), the Court held that reputation is an interest that may attract the protection of the rules of procedural fairness. Brennan J said ((105) ibid., at p.592.):

"(N)atural justice is required to be observed whenever a statutory authority contemplates a publication which would affect reputation by diminishing the estimation in which the bearer of the reputation stands in the opinion of others. The bearer of the reputation has an interest which is ... sufficient both to attract the requirement of natural justice and to give locus standi to seek judicial review if natural justice is denied." ((106) See also Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp.495, 512; Mahon v. Air New Zealand (1984) AC 808, at p.820; Kioa v. West (1985) 159 CLR 550, at pp.582, 618-619.)

Similarly, the requirements of natural justice will apply where a person's business or commercial reputation is at stake ((107) Ainsworth (1992) 175 CLR, at p.578. See also In Re Pergamon Press Ltd. (1971) Ch 388, at pp.399-400; Mahon (1984) AC, at p.820.).

21. Where a person is to be afforded the benefit of procedural fairness, the scope of that benefit depends upon the circumstances of each case. In Kioa v. West ((108) (1985) 159 CLR, at pp.584-585.), Mason J said:

"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting." ((109) See also

Russell v. Duke of Norfolk (1949) 1 ALL ER 109, at p.118; University of Ceylon v. Fernando (1960) 1 ALL ER 631, at p.637; Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, at pp.503-504; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp.552-553; National Companies and Securities Commission v. News Corporation Ltd. (1984) 156 CLR 296, at pp.311-312, 319-320.)
This means that, where the exercise of a power may "destroy, defeat or prejudice a person's rights, interest or legitimate expectations" ((110) Annetts (1990) 170 CLR, at p.598.), that person must be afforded the procedural fairness that is appropriate in the circumstances. The critical question in this case is whether the circumstances negatived the presumptive right of the appellant being given an opportunity to be heard ((111) See Kioa (1985) 159 CLR, at p.585.).

22. In the Full Court of the Federal Court, Black CJ and von Doussa J found that the appellant possessed no right to be heard. Their Honours pointed to the difficulties posed for a criminal investigation by the ASC if an examinee had to be given a hearing. Their Honours said that, if the appellant had a right to be heard, the ASC might have to reveal other evidence in its possession concerning the need to disclose the material to a third party ((112) Where procedural fairness is implied, material adverse to a person ought generally to be revealed to him or her in order to enable him or her to address the material prior to a decision being reached. See Board of Education v. Rice (1911) AC 179, at p.182; Kanda v. Govt. of Malaya (1962) AC 322, at pp.337- 338; Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at p.93; 38 ALR 93, at p.102.).

23. While the need to protect the investigation process may restrict the scope of a person's access to information which the ASC relies on to reach a decision, this factor does not mean that the right to be heard is inconsistent with the exercise of the power to release the transcripts. The need to preserve the confidentiality of the ASC's investigation does not exclude procedural fairness, but reduces its content ((113) See Reg. v. Gaming Board; Ex parte Benaim (1970) 2 QB 417, at p.431; In Re Pergamon Press (1971) Ch 388; News Corporation
(1984) 156 CLR, at pp.323-324; Re Hayes; Ex parte Wattie
(1986) 70 ALR 65, at pp.72-73; Ansett v. Department of
Aviation (1987) 73 ALR 205, at p.218.), perhaps in some circumstances to nothing ((114) Kioa (1985) 159 CLR, at p.615. See Johnson, "Natural Justice and Legitimate Expectation in Australia",
(1985) 15 Federal Law Review 39, at p.71.). To inform the appellant of the proposed intention to release the transcripts and to hear submissions concerning the effect of that decision upon the appellant's interests, for example, would not adversely affect the investigation process. If the ASC was in possession of information which made it necessary or desirable to give the transcripts to the Royal Commission, it would be necessary for the ASC to reveal the information or sources to the appellant only to the extent that it did not prejudice the Royal Commission's investigation. Moreover, it is difficult to see how the interests of either the ASC or the Royal Commission could be improperly or unnecessarily prejudiced by informing the appellant that it proposed to release the transcripts unconditionally.

24. Thus, procedural fairness required as a minimum that the appellant be given the opportunity to put submissions before the ASC relating to matters requiring the non-disclosure of information by the ASC. Given this opportunity, the appellant might have persuaded the ASC that the intention to disclose the information should not be implemented or, if it was, that the transcripts should be handed over upon the condition that the Royal Commission should not publicly release the transcripts.

25. The respondents contended that the decisions to disclose the material to the Royal Commission were not decisions to make the material public and, consequently, the decisions could not cause harm to the appellant. While the decisions did not directly cause public disclosure of the transcripts, they did affect the confidentiality attaching to the transcripts by enabling a third party to prejudice the appellant's interests through public disclosure. Accordingly, the decisions to release the information to the Royal Commission were in themselves decisions that affected the appellant's interests in a manner that attracts the protection of procedural fairness.

26. The respondents also contended that any breach of the rules of natural justice by the ASC was cured by the opportunity for the appellant to be heard by the Royal Commission before the transcripts were publicly tendered. The respondents relied upon the proposition in Ainsworth ((115) (1992) 175 CLR, at p.578.), where the Court, citing South Australia v. O'Shea ((116) (1987) 163 CLR 378, at p.389.), stated:

"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'." ((117) The respondents also relied on Twist v. Randwick Municipal Council (1976) 136 CLR 106, at pp.111, 116 and Calvin v. Carr (1980) AC 574, at pp.592-

596.)

27. In Ainsworth, the rules of natural justice had not been complied with by the Criminal Justice Commission, which was monitored and supervised by the Parliamentary Criminal Justice Committee. The Court held that the two bodies did not form part of the same decision-making process. Consequently, the availability of procedural fairness at the Parliamentary Committee could not cure a lack of fairness at the Criminal Justice Commission. Brennan J noted ((118) Ainsworth (1992) 175 CLR, at p.594.) that the functions of the Criminal Justice Commission were reposed in that Commission alone and that the function of the Parliamentary Committee was restricted to that of being a watchdog over the Criminal Justice Commission.

28. The reasoning in Ainsworth is directly applicable here. The failure of the ASC to comply with the rules of natural justice was not cured by the possibility that the appellant might have obtained a hearing before the Royal Commission as to the same subject-matter. The decision to disclose the transcripts to the Royal Commission was the decision of the ASC. The powers of the ASC and the Royal Commission were separate and independent. They were not part of the same power structure. The two bodies were not involved in the same decision-making process.

Relief against the ASC

29. If the Royal Commission had not published the transcripts, there could be little doubt that the appellant would be entitled to relief against the ASC and a consequential order against the Royal Commission. Equity will "restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged" ((119) Ashburton (Lord) v. Pape (1913) 2 Ch 469, at p.475.). In The Commonwealth of Australia v. John Fairfax and Sons Ltd. ((120) (1980) 147 CLR 39, at pp.50-52. See also Seager v. Copydex Ltd. (1967) 2 ALL ER 415, at p.417; Coco v. A.N. Clark (Engineers) Ltd. (1969) RPC 41, at p.47.), Mason J said ((121) John Fairfax (1980) 147 CLR, at p.51; Coco (1969) RPC, at p.47 quoted. As to the requirement for detriment, see Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd
ed. (1992), pp.872-873.) that equity may restrain the use of information where it is shown "not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be 'an unauthorised use of that information to the detriment of the party communicating it'". Even though the Royal Commission received the transcripts without knowing of the breach of confidence by the ASC, once it learned of that breach, it could be restrained from breaking that confidence ((122) Fraser v. Evans (1969) 1 QB 349, at p.361; G. v. Day (1982) 1
NSWLR 24, at p.35; Wheatley v. Bell (1982) 2 NSWLR 544, at p.550.). But the transcripts were tendered at the Royal Commission. They were part of the public record of the Royal Commission. Copies of the transcripts were given to the media organisations. Did this result
in the transcripts losing their confidentiality?

Relief against the media organisations

30. The appellant submitted that the transcripts have not lost their confidentiality. He also contended that he has not lost his right to relief in respect of that confidentiality. Whether or not this is so, no relief can now be obtained against the Royal Commission: it has returned the transcripts and made non-publication orders in respect of the material tendered in public hearings. However, the appellant seeks an injunction against the media organisations to restrain a breach by them of the equitable duty to maintain the confidentiality existing in the material.

31. Once information becomes public knowledge ((123) Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (1948) 65 RPC 203, at p.215.), or is in "the public domain" ((124) Marcel v. Commissioner of Police (1992) Ch 225, at p.237.), equity will refuse to intervene to
protect the information because the information has lost its confidentiality. In some circumstances, however, equity will intervene if public dissemination has been limited. Consequently, a person who has received information published in breach of confidence may be restrained from publishing that information even though there has been a limited publication.

32. In the present case, the information retained its confidential character when received by the Royal Commission (because the decision of the ASC to release the transcripts was invalid). However, the information may have lost its confidential character when it was tendered at the public hearings of the Royal Commission. On the other hand, either as a matter of law or of fact, the confidential character
of the material may have endured. For the reasons given by Gaudron J, I do not think that the material and the arguments put before the Court enable us to determine the issue which should be returned to the Federal Court for determination.

Orders
33. I agree with the orders proposed by Gaudron J.