Johns v Australian Securities Commission

This matter came before the High Court of Australia concerning an application for special leave to appeal. The primary parties involved were the Australian Securities Commission (ASC) and, implicitly, individuals whose examination transcripts were potentially subject to disclosure. The core dispute revolved around the ASC's decision to disclose information, specifically transcripts of examinations, to a Royal Commission, particularly in circumstances where the Royal Commission was not obliged to maintain the confidentiality of that information.

The High Court was required to determine two principal legal issues. Firstly, whether the ASC's power to disclose such information was to be exercised in the manner intended by Parliament, as stipulated by section 5 of the relevant Act. Secondly, the Court considered whether the exercise of this disclosure power was conditioned upon affording natural justice to any person whose reputation or interests might be adversely affected by such a decision.

In addressing these issues, the Court, through Brennan J, raised concerns about the ASC's discretion in disclosing information. The Court noted that the purpose of the confidentiality provisions within the Act was for the ASC's investigations, which are distinct from judicial proceedings. The Court considered submissions that for an opportunity to be heard on disclosure to be meaningful, the decision-maker would need to reveal its reasons, potentially compromising ongoing investigations or revealing confidential information provided by third parties. This led the Court to question whether the legislation contemplated a right for an examinee to be heard on the disclosure of examination records.