"JUDGMENT No. bSb/.81.. rea CATCHWORDS Administrative Law - order of review of decision of National Crime Authority - whether Authority has power to limit the statutory right or privilege of a witness to be represented by the legal practitioner of his choice at a hearing before the Authority - the nature of the power of an administrative body to regulace the conduct of proceedings before ait - nature of a hearing under National Crime Authority Act - applicability of Amecican principle of law that the cight ta counse of witnesses subpoenaed ta testiry ac an investigation does not include the right to he represented by counsel connected with or retained by tha persons being investigatad. Administrative Decizions (Judicial Review) 2ct 1377 A and OTHERS v. NATIONAL CRIME AUTHORITY V. Nos. G 237, 232 and 240 of 15387 NORTHROP J. MELBOGRNE yr LN "RECEIVED 2.7 NOV 1987 FEDERAL COURT AUSTRALIA OF PRINCIPAI REGISTRY a wow ee 5) wn rr en eee ne Se re + . ST tire ot ee egress St re nce tee een oie eines IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT RECISTRY GENERAL DIVISION BETWEEN : A and OTHER and NATIONAL CRIME AUTHORITY cOURT: NORTHROP J. DATE 27 NOVEMBER 1387 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS AND DECLARES THAT: - 1. The decision sought t3 5a reviewed be 2. In the absence of any allegation ef him, the legal practitioner chosen cy a vight to be peasent at the hearine while the applicant 15 giving eavidenc 3. The Authority pay the costs of the ap | wma a) V. Nos. G 237, 238 and 240 of 1987 Applicants Respondent SEC aside Zscanduck against the applicant has by the Authority licant (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) wen IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. Nos. G 237, 238 ) and 240 of 1987 } GENERAL DIVISTON BETWEEN : A and OTHERS Applicants and NATIONAL CRIME AUTHORITY Respondent COURT: NORTHROP J. DATE : 27 NOVEMBER 1987 PLACE: MELBOURNE REASONS FOR JUDGMENT The primary 1ssue ra1rsed by these three applications, heard together with che consent of all parties, 1s whether the National Crime Authority ("the Authority") constituted under the National Ceime Ssutherity Act 1984 ("the Act"), has the power to limit the statutory right or privilege of a witness to be represented by the legal ondary t1ssue a practitioner chosen by the witness. The sec raised 183 whether, if the Authority has that power, 1t has exercised that power according to law. ee oo (ot , - Section 7 of the Act constitutes the Authority which consists of the Chairman and two other members. Sub-section I11(1) lists the general functions of the Authority, while sub-section 11(2) lists the pecial ul functions of the Authority. The present applications rczlate to the special functions of the Authority. Sub-section 11(2) is set out in full:- "(Z) The special functions of the Authority ara - aa eo an weoct Foi are Oo fu la) in Force in respect of a ng to a relevant criminal activity wate Ehe matter an sG far a vant offence is, or the relevant of are or include, an offence or offe a law of the Commonwealth or of and cence to Che Authority made under SPR UW e Lome a o ra a= (b) where a reference to the Authority made in accordance with section id by a Minister of the Crown of a State is in force in respect of a matter relating to a relevant criminal activity - subject to sub-section 14(1), to investigate the matter in s0 far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State." Sections 13 and 14 empower the relevant Minister of the Commonwealth and of a State respectively by notice in writing to the Authority to "refer a matter relating to a relavant cyiminal activity to che Authority for investigation in sca Far as the relevant offence is, or the relevant orfences are or include, an offence or offences against a law" or the Commonwealth, of a Territory or of a State. An investigation y proiee are - ' - a rr eens ne were rie 's > a we me ee errr ern an ay ae EY that the Authority 15 conducting in the performance of its special functions 15 called a "Special investigation"; see 5.4. Section 25 of the Act contains provisions relating to special investigations. It 15 a long section but it is important that the relevant sub-sections be set out in full:- "25.(1) For the purposes of a special investigation the Authority may hold hearings. (2) Ab' a hearing, the Authority may be constituted by one or more members or acting members. {3) Subject to sub-section (2), applies, so far as it is capable of appl a hearing before the Authority as if t weré a meeting of the Authority. section 16 ication, at he hearing (4) At a hearing before the authority - (a) a person giving evidence may be represented by a legal practitioner; and \b) 2f, by yveason of the existence of special circumstances, the Authority consents to a person who 15 nGt giving évidence being represented by a legal practitioner - the person may be 50 represented. (5) A hearing before the Authority shall be held in private and the Authority may waive directions as to the persons who may be present during the hearing or 4 part of the hearing. (6) Nothing in a direction given by the Authority under sub-section (5) prevents the presence, when 2vidence is being taken at a hearing before the Authority, of - (a) a person representing the person giving evidence; or (by) a person representing, pursuant bo sub-section (4), a person who, by reason of a direction given by the Authority under sub-section (5), is entitled to be present. (7) Where a hearing before the Authority is being heid, a person (other than a member or an acting member, counsel assisting the Authority in relation to the matter that is the subject of the hearing or a member of the starf of the Authority approved by the Authority) shall not be present at the hearing unless the person 15 entitled to be present by virtue of a direction given by the Authority under sub-secticn (5) or by virtue of sub-section (5). 1a) A purposes o @aring before the Authority for the pecial investigation - (a) counsel assisting the Authority generaliy or in rélation to the matter to which the investigation relatas; \b) any per son authorized by the Authority to appear bef ore it at the hearing; or {c) any legal practitioner representing a person at the hearing pursuant to sub-section (4), may, so far as the Authority thinks appropriate, axamine or cross-examine any witness on any matter that the Authority considers relevant to the special investigation. (9) The Authority may direct that - {a) any avidence given before it; {b) the contents of any document, or & descciption of any thing, produced ta che Authority or seised pursuant to 4a warrant issued under section 22; (c) any information that might enabl who has given evidence be Authority to be identified; or (d), Che fact that any person has given or may be about to give evidence at a hearing, Shall not be ocublisned, or shall not be published except in such manner, and to such persons, as the Authority specifies, and the Authority shall give such a direction if the failure to do so0 might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. nae les qr te corn ere ee cae aay Femanr oe ro re ep ee te eee (12)A person who - (a) present at a hearing in contravention ub-section (7); or (b) makes a publication in contravention of a direction given under sub-section (9), is guilty of an offence punishable, upon summary conviction, by a fine not exceeding $2,000 or imprisonment for a period not exceeding 12 months." Section 46 contains provisions relating to meetings of the Authority. Under sub-section 46(3), the Authority is . empowered to regulate the conduct of proceedings at its meetings. Section 19 of the Act 13 of importance. It 1s set out in full:- "19. The Authority has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of 1t5 general functions of cf its special functions, and any specific powers conferred on the Authority by this Act shall not be taken to limit by implication the generality or this section." The facts giving rise to the present applications relate to a special investigation by the Authority arising From references under 5.15 and 3.14 of the Act. The references ar= in similar Form and by way of illustraticn, the relevant parts of the reference under 5.15 are set out:- oe "COMMONWEALTH OF AUSTRALIA NATIONAL CRIME AUTHORITY ACT 1994 NOTICE TO: NATTONAL CRIME AUTHORITY PURSUANT to Sub-section 135{(1) of the NATIONAL CRIME AUTHORITY ACT 1381 I HEREBY REFER to the Natzonal Crime Authority for anvestigation the following matter relating to a relevant criminal activity insofar as the relevant offence or the relevant offences are or include an offence or offences against the law of the Commonwealth or of a Territory. MATTER The nature and scope of any illegal activity, che identity of Che persons involved and the nature of the1r involvement disclosed by the circumstances or allegations described below or otherwise revealed by investigations into those circumstances or allegations. PARTICULARS PURSUANT TO SUB-SECTION 13(2) (a) The general natura of the circumstances or allegations constituting the relevant criminal activity 15 activity by a group or groups of persons including infer alia persons identified ta me by the Authority on the 11 March 1326 and associated persona and companies suggesting offences involving: (2) the aimoortation and azstribution or marcotic substances; (il) bribery or corruption of sificers of the Commonwealth or officers of a Territocy; (iii) widespread financial and business activities including activities associated with illegal gambling, tax evasion, and violence; (b) The offences referred to above are, or include, offences against laws of the Commonwealth or of a Territory; f | ; [. (c) The purpose of Che investigation 15: (i) to ascertain whether any or what gelaevant offences (including any offence deemed to be a relevant offence pursuant to s.4(2) of the National Crime Authority Act 1984) have been or are being committed against laws of the Commonwealth or of a Territory; (il) to identify the offender or offenders; {2ii) to assembls evidence that would be admissible in the oprcsecution of the offenders; (iv) to furnish that evidence to the Attorney-General of the Commonwealth of Australia or of the 3tatea of New South Wales or to the relevant law enforcement a cy for the oresecution of those Go neces," Pac] rt it bs In conformity with 3.25 of the Act, the Authority commenced to hold a hearing to carry out the special investigation. It was constituted by the Chairman. The Authority gave directions under sub-section 25(9) prohibiting and restricting the publication of material obtained at the hearing. In addition, it gave directions under sub-section 25(5). A witness summonsed to give evidence at the hearing, exercised the statutory right or privilege conferred by sub-section 25(4) and chose a legal practitioner as his representative at the hearing while giving avidence. By reason of sub-secticons Z5¢(4t),(9) and (7), the legal practitioner had a right to be present while the client was giving evidence. The right to be present was not dependent upon any direction given under sub-section 25(5). The same legal practitioner appeared for the spouse of the first witness when the spouse gave evidence. ye pres nace ae = eee Se picee er —T" It then became apparent that each of the applicants an the three proceedings before the Court was to give evidence at the hearing and that eéacn had instructed the same legal practitioner who had represented the first witness to represent each of Ehem while each gave evidence ab the hearing. After hearing submissions from counsel assisting the Authority and the legal practitioner appearing for each of the three applicants, the Authority made a decision with respect to each of the applicants that the legal practitioner would not be permitted to be present at the hearing while any of the three applicants was giving evidence. Each of the applicants, pursuant ta the Administrative Decisions (Judicial Review) Act 1977, seeks an order of review of that decision. At the very outset, 1¢ should be stated that no suggestion of impropriety 15 made against the legal Practitioner. Section 25 of the Act, read in the context of the mature of the special functions of the Authority, makes it clear that the Authority is exercising investigatory functions of an administrative nature of a kind wheres privacy and confidentiality is of the utmost importance. Sub-section 25(5) is consistent with the policy of the Act. It is equally clear that 5.25 confers rights upon a4 legal practitioner, representing a person giving evidence at a hearing before the Authority under 5.25, to be present at the y om ee wep meee meen o pr epee =e hearing while the witness 15 giving evidence. That right is stated in absolute terms. The section states expressly that the legal practitioner is entitled to be present while the client 15 giving evidence. The right to ask questions 15 conditional; see sub-section 25(8). Nevertheless, there must be some limitation on the right of the legal practitioner toa be present while the client is giving 2vidence. Counsel for the applicants, quite properly in my opinion, conceded some limitation. Thus, if the legal practitioner so conducted himself so as to prevent the Authority from crocseding with the hearing, he could be excluded. This power to exclude persons for Ehat reason is common to all meetings and to proceedings before tribunals generally, including courts of law. This power 1s illustrated by Ex parte Cory (1864) 3 $.C.9. 304 and more recently, Bell v. Norton, Supreme Court of New South Wales, Lee J., 10 August 1363, unreported. Tn the latter case, counsel had the statutory right to represent his client at committal proceedings before a stipendiary Magistrate. At the direction of the magistrate, the counsel was removed forcibly from the court for misconduct. Relying cl upon the principle that the magistrate had a power bo control the proceedings before him and the conduct of chose Participating in those proceedings, Lee gd. held that the magistrate had power to order the removal of the counsel from } t Ie ; ig L ' —re - 10 - the court and Eo refrain from hearing him further in the proceedings if the magistrate considered that course "necessary in the interests of justice." That line of authority 1llustrates a limitation which 15 imposed on what appears to be an absolute right. In the present case, the Authority asserts the existence of another limitation on the right of a legal practitioner to be present at a hearing under 5.25 of the Act when the client of that legal practitioner 15 giving evidence as a witness at that hearing. The limitation claimed arises from the nature of the hearing and th iv] bs) eed For contidsntiraiitty of what occurs at that hearing. Before considering this contention, 1t is necessary to make brief reference to the nature of a hearing under 5.25 of the Act. The nature of a special investigation has been discussed. A member of the Authority has power to summons a person to appear before the Authority at a hearing to give evidence and to produce documents; see sections 28 and 29. A failure, without reasonable excuse, to produce documents constitutes a criminal offence; see sub-section 25(3). A person who, without reasonable axcuse, fails to attend at a hearing to which he has Seen summonsed or to take an oath or make an affirmation, or fails to answer a question oe fails to produce a document commits a@ criminal offence; see 5.30 and in particular sub-sections 30(1), (2) and (11). Under sub-section 30(4), 16 15 a reasonable excuse for the purposes of sub-section 30(2) for a natural person to refuse or fail a. - li - to answer a question or to produce a document if the witness Claims that the answer or document "might tend to incriminate him." If that claim is made, the Authority is given power to decide whether "in 165 opinion the claim 15 justified"; sae sub-section 32(1). If the person is dissatisfied with the decision, tha person may apply to the Federal Court for an order of réview in respect of -that decision; see sub-section 32(2). Other sub-sections of 5.32 contain provisions relating to any such application. It is becoming increasingly common for Parliament to create administrative bodies and to confer powers on those bodies to conduct investigations. The nature of the powers so conferred are discussed in Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 C.L.R. 328. In that case, the High Court held chat under 5.155 of the Teade Practices Act 1974, a person required to give information or to produc fi) documents could not ¢ a fuse £5 give that information or produce those documents on the ground that to do so might tend to expose him ta tne civil Liability of a penalty. Under the National Crime Authority Act, a witness at a hearing under 3.25 can, supjyect bo the provisions of 5.32, refuse to answer questions and produce documents if he claims that to do so "might ténd to incriminate him." Aspects of 5.32 are discussed in C v. National Crime Authority, judgment aun which is given tcday. Subject to that qualification, it would appear that a person summonsed to give evidence or to produce documents ata hearing under 5.25 of the Act is io bd ' required to answer any question or produce any document which is relevant to the special investigation. Sub-section 25(4) of the Act confers on a witness a privilege or right in the nature of a facultative power to be represented by a legal practitioner at a hearing under 5.25. Where a witness exercises that privilege or right, the legal representative has a statutory right to be oresent at the hearing while the client is giving evidence; see sub-sections 25(4)(a), (6)¢(a) and (7). In addition, if by reason of Tt ee Special circumstances, the Aubhority ronsents ta a person who ii] = u eS i in] 1s not giving eaviden ing cepresented by a legal practitioner, that legal practitioner has a statutory right to be present at the hearing while another person 15 giving evidence; see sub-sections 25(4)(b), (6)(5) and (7). Those statutory rights cannot be affacted by a direction under sub-section 25(5). In form, the statutory right is stated to be in the legal practitioner, but the same statutory right is conferred on the person who has chosen or instructed the legal practitioner. The power of the legal practitioner to ask questions 15 conditional; see sub-section 25(9). At the hearing of these applications, counsel for the applicants sought ta rely upon the rommon law principle va that a verson appearing before a Tribunal has the right to ba represented by an agent including a legal practitioner. He "er = we ar eee ee rg qs ak Dre rep nq ee te ce een - 13- relied upon authorities such as The Queen v. Assessment Committee of Saint Mary Abbotts, Kensington £13913 1 0.8. 378 and The King v. Board of Appeal Ex parte Kay (1916) 22 C.L.R. 183. Im my opinion, it 15 not necessary to consider this line of authority for the purpose of deciding these applications since the statutory right conferred by 5.25 of the Act is s50 clear. In each application, the decision sought to be reviewed is stated as follows:- "... the decision of the respondent that the applicant's claim, namely that he is entitled to be represented by a Barrister & Solicitor of his choice, 1s not justified." That description of the decision 15 misleading. As appears from the transcript of the proceedings befora the Tribunal, the decision sought to be reviewed was the decision of the Tribunal "not te allow (the legal oractitioner} to appear for the further witnesses for whom he has indicated he wishes to appear." Those further witnessez are the applicants to the Ww three applications for review of that decision. Accordingly, Iwill treat each application as seeking an order of review of a decision by the Authority to rafuse to permit the legal practitioner of a witness to be present while the witness is giving evidence at a hearing under 5.25 of the Act. eee tear an ere epee —nee ee ee en a i res - 14 - Counsel for the Authority contended that the Authority has power to regulate the conduct of its proceedings. They referred to sections 19, 25 and 46 of the Act. They contended Ehat the Authority is entitled to conduct 1ts special investigations in such a way as to avoid the premature disclosure of the information at its disposal. They referred to what was said in National Companies and Securities Commission v. The News Corporation Ltd. (1384) 156 C.L.R. 236 per Gibbs C.d. at p.316 and per Mason, Wilsan and Dawson JJ. at 9.323. It followed, 1b was contended, that e witnesses wera not, in effect, entitled to look over th a shoulder of the Authority while that hody was sxamining another witness. The relevant provisions of the legislation in that case are very different from the relevant provisions of the prasent case. Counsel veferred to a number of authorities illustrating the power of a Tribunal, including a Court, to vegulate the conduct of its proceedings and the power of a Tribunal bts) conduct proceedings, in appropriate cr circumstances, in private. Those powers are not disputed bu the extent cof the powers vested in the Author1ty ara to he considered in the light of -he specific rights conferred on witnesses and their legal cepresentatives by 5.25 of the Act. As has been indicated earlier, that right 15 expressed in absolute terms. This 1s nok a case wheres questions of natural justice arise. - 15 - For present purposes, it 1s accepted that the Authority must be able to conduct a hearing under s.25 of the Act in secrecy and in confidence. Tf a person discloses information obtained at a hearing contrary to directions made under s.25(9), that person commits a criminal offence and is liable to a penalty. In the present case, no allegation of impropriety is made against the legal practitioner concerned. It is not suggested that he is likely to act in breach of a direction made under 5.25(9) of the Act and thus there is no need to consider what powers the Authority may have in thos ny circumstances, In essence, the existence of the sower claimed on behalf of the Authority is based on sections 13, 25 and 46 of the Act. In my opinion, the existence of tne power to canduct 26s proceedings ata hearing under 5.55 as if the hearing was a meeting of the Authority under 5.46 of the Act is not sufficient to deny the exprass right conferred by 5.25 or the Act upon a legal representative appearing for a witness at the hearing. Section 19 of the Act centers general pewers upon the Authority and provides that specific powers conferred upon the Authority by the Act "Shall not be taken to limit by implication the generality of this section." Section 25 does not confer a specific power on the Authority to parmit a legal practitioner to represent a witness while that witness 1S g1lving evidence. Section 25 itself confers the right on the legal practitioner. It follows therefore that there is 'ancl oreiieen tied meee ey - 16- powers no basis for 5.19 to operate with respect to specific conferred on the Authority. Accordingly, the existence of the power sought by the Authority must depend upon the power conferrad by 3.19 of the Act, namely the "power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its ... special functions." Put another way, 15 that a power sufficiently strong to override the statutory right conferred upon the legal practitioner by 5.25 of the Act? Counsel sought to rely upon a principle of law applied in the United States of America with respect to investigations, namely that the right to counsel of witnesses subpoenaed to testify at investigations does not include the right to be represented by counsel connected with or retained by the person being investigated. Counsel raferred to a number of authorities of the United States District Court and a later décision of the United States Court of Appeals, Ninth Circuit. The District Court decisions are United States v. Smith (1349) 87 Fed. Supp. 293, Torras v. Stradley (1952) 108 us Fed. Supp. 787 and United States v. Steel (1965) 238 Fed. Supp. 575. Those cases illustrate a principle that an apparent conflict between a statutory right of a witness to be represented by counsel of choice at an investigation can be affected by a rule of the investigating authority that a counsel representing a witness cannot represent any later Pn nine ae ee ee ere i . fa De -17- witness at the same investigation. The principle explained in Steel at pp.577-8 as follows: - "Assuming that the Administrative Procedure Act does apply to investigations, nothing in Rule 8(c) of the Rules of Practice of the Commission and nothing done here was any denial of counsel. The Commission officers merely ruled that Mr. [Gubell could not at the same time in the same investigation represent both movant and Alaska. The order for investigation had named Alaska as a subject of the investigation; movant had been, but was mot at the time, an officer of Alaska. Mr. Lubell was then and for some time had been general counsel t5 Alaska. Movant wat cree to select any eounsel of her choice other chan Mr. Gubell. Movant could not insist on Mr. Utbell when Rule d(c) and the conclusion of the Commiss1on officers reasonably required that he be ineligrbls (after his choice to represent Alaska). True, the classic statement is that 'the vight to counsel being conceded, a defendant should be afforded 3 fair Opportunity to secure counsel of his own choice'. Powell v. Alabama, 287 U.S. 45, 53, 58 5.Ck. 5, 58, 77 L.Ed. 158 (1932). But this was said in a criminal prosecution and in a constitutional context. Even in such cases, there can be reasonable limitations on the selection of counsel. United States v. Dardi, 380 F.td 316, 385 (2a Cir. 1964), cert. denied 370 U.S. 845, 85 5.Ct. 60, 18 L.Ed.2d 50 (October 12, 1964); Smith v. United States, 52 Ape.H.C. 5a, 288 F. 250 (1922). In tax investigations it has been held to be no violation of Section (a) of the Administrative Procedure Act to require that a third party witness select as counsel some one other than counsel for the taxpayer. Soa ruled District Judge (now Crrcuit Judge) Smith in United States v. Smith, 37 F.Supp. 293 (D. Conn. 13493). The same conclusion was reached in Torras v. Stradley, 1038 F.Supp. 787 (N.D. Ga. 1952). But cf. packer v. Commissioner, 275 F.2d 141 (Sth Cic. 1360)." is y eon ad reece ee ee ern nt ee ee aye ee ee eee t % os is ee a oe pre ee - 18 - In Securities and Exchange Commission v. Higashi (1966) 359 P.2d 550, the United States Court of Appeals had to consider the conflict between the statutory right to counsel and the rule of the Commission that no counsel for a witness "shall be permitted Eo be prasent during the examination of any other witness called during the proceeding." The validity of the rules was not in question. The reason for the rule is clearly stated at p.552:- "The vyeason for and purpose of the Commission's sequestration rule are clear and there can be no question as 49 1ts necessity and general propriety. The Commission points out that violations of Frederal securities laws are often difficult ta datect and require axtensive investigation; that 1t may be necessary ta determine whether or not individuals are acting in concert; that investigations frequently are sought to be frustrated by non-cooperatiscn and even Subornaticn of perjury; Chat the purpose or sequestration could be defeated by an attorney advising Witnesses as to the testimony which had been given by others." The issue was whether the Commissioner, in applying the rule, had exceeded "permissible limits." At ».553 the Court said:- "The right granted by the Administrative Procedures Act must be construed to mean counsel of one's choice. Backer v. Commissioner, 275 F.2a@ 1411 (5th Cir. 1960). While this right may well be subject to Commission authority within permissible limits to disqualify counsel under its rule, cf. United States v. Steel, 23@ F.Supp. 575 (S.D.N.¥.1965), those limits must be held to have been exceeded when the rule is invoked in such a case as this. Here the impact of the rule is not limited to its effect as sequestration upon the interests of those under investigation. Here the act of sequestration has a second and impermissible effect; it bears directly and prejudicially upon the interests of the witness himself. Since his interests are common with those of the corporation for whose acts he may be held responsible, to sequester - i939 - corporation counsel is to deprive the witness of the services of the attorney most familiar with the source of his vulnerability. This invocation of the rule exceeds the bounds and purposes or sequestration. It strikes not only at others who would use the witness' right to counsel for their own purposes; it strikes directly at the witness himself. lude that the Administrative Procedure , 60 Zhat. 241, § U.S.C. § 1005{a) rents the SEC from invoking its rule of on in this case." Act, § 5 (1964), 5 ste sequestra These authorities do not deal with the power of the administrative body to mak= the rule under considsrabion and Ido not Find these authorities helpful in determining the issue before me. The authorities would be helpful in considering the proper exercise of the power, if 16 existed. It can be accepted that premature disclosure of information May prevent the Authority exercising its functions effectively but that by itself is not cf] ufficient to justify he Act sufficient to cr n the existence of a power under 3.19 of overcome the right conferred by 5.25. Wide as is the form of 5.193, some Limitation must be placed upon the power conferred by it. In Anthony Uagoon Station Pty. Ded. wv. Maurics, rl tH a fu Federal Court of Austra orted, a Full ul cq c bh Ay wr w [us] nd s iq att al ct a ia Court had Eo consider the axte or the power conferred on r the Aboriginal Land Commissioner by 35.51 of the Aboriginal ovided:- Land Rights (Northern Territory) Act 1976 which pr "Sl. The Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his functions." seas yee me egy bs o i} By majority, Sweeney and Northrop dJdJ., Ryan J. dissenting, the Court held that that section did not empower the Commissioner to make an order authorising people to enter upon land occupied by a leaseholder. In my reasons for judgment in that case I said:- "There are many authorities of the highest order which insist that before an administrator has power to interfere with the rights of a person, that power must be given in express and clear terms. This vrinciple is rafterred to in Noordhof v. Bartlett, above. It has been stated in many decisions of the High Court; see for examole Commissioner of Taxation of sAustralia v. The Australian and New SZeaiand Banking Group std. (1979) 143 C.L.R. 199; Sorby v. The Commonwealth of Australia (1983) 152 C.L.R. 281; Pyneboard Fty. Ltd. v. Trade Practices Commission (1983) 152 C.L.R. 328; O'Reilivy v. Commissioner of the State Bank of Victoria (1383) 53 C.L.R. 1 and Baker v. Campbell (1383) 153 C.L.R. 5Z." In my opinion, the power conferred by 5.19 of the National Crime Authcrity Act is mot sufficient to svercome the statutory right conferred on the legal practitioner, and implicitly upon a witness, by 5.25 of that Act. It follows that the Authority had no power to make the decisions sought to be reviewed. In these circumstances, it is not necessary to consider whether the Authority, 17 it had that power, exercised proverly the discretion FEhat would have arise if a 1t had the power claimed. mero enn see \ ee eet ewe Ra a pen ae ete - 21 - Accordingly, orders will be made in each application setting aside the decision sought to be reviewed and a declaration made that in the absence of any allegation of misconduct against him, the legal practitioner chosen by the applicant has a right to be present at the hearing by the Authority while the applicant 1s giving evidence. The Authority should pay the costs of each applicant. SE EERE, ' ' To certizy "hat ths and the Ubuceey (20) preceuzng wages sie a tmte copy of the Reasoas for Indgment herein of the Honomable Mr. Justice 4M Northrogy RL Tene Me rage ee nner "8 ape enee ce s > ; > && @ a cero oe tc Title of Actions File Numbers Dates of Hearing Judgment Delivered Counsel for Applicants Solicitors for Applicant Counsel for Respondent Solicitor for Respondent Signed . Shar ww F. wbduace Date November 19387 ATTACHMENT A o A, B, and Dv. NATIONAL CRIME AUTHORITY In fu q o rh mh a a a ut a all tt Llinghaus & Mr. S.P. Charles 0.C. with Mr. N.d. Young Australian Government Solicitor ay 3 ae ee et Qacpoc —— ree senze