Aboriginal Legal Service Ltd (ACN 001 310 710) & Anor v Australian Securities Commission & Ors [1996] FCA 900

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG791 of 1996 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: ABORIGINAL LEGAL SERVICE LIMITED ACN 001 310 710 First Appellant PAUL THOMAS COE Second Appellant - and - AUSTRALIAN SECURITIES COMMISSION First Respondent ALAN CAMERON, CHAIRPERSON, AUSTRALIAN SECURITIES COMMISSION Second Respondent ARTHUR WILLIAM WALLWORK Third Respondent JONATHAN PETER CADDICK Fourth Respondent CORAM: BLACK CJ, LOCKHART and WHITLAM JJ PLACE: MELBOURNE DATE : 10 OCTOBER 1996

REASONS FOR JUDGMENT THE COURT: This is an appeal from the judgment of Moore J dismissing an application for judicial review made under the Administrative Decisions Judicial Review Act 1977 ("the ADJR Act") and under s39B of the Judiciary Act 1903. As the primary judge observed in his reasons for judgment, the issue in this case is a narrow one. The Australian Securities Commission ("the Commission") has undertaken an investigation into the first appellant, the Aboriginal Legal Service Limited ("the ALS"), and has prepared a report in the exercise of its powers under s17 of the Australian Securities Commission Act 1989 ("the ASC Act"). Moore J found that a copy of the report was likely to be given to the Minister, as contemplated by s18 of the Act, in the very near future. It was common ground that the case was one to which s6(1)(a) of the ADJR Act applied, in that the Commission was engaging in conduct for the purpose of making a decision to which the ADJR Act applies. The issue raised by the ALS and by Mr Coe, who is Chairperson of the ALS, was whether the Commission, in preparing the report it was about to deliver to the Minister, had acted in breach of the rules of natural justice by failing to afford procedural fairness to the ALS and to Mr Coe. Moore J found that the applicants had failed to make out their case and dismissed the application with costs. The same issue was raised on appeal. We should make brief reference to the factual background which is not complex and which his Honour set out in his reasons for judgment. In essence, what occurred was that the Commission, having examined several people in the exercise of its powers under Division 2 of Part III of the ASC Act, began to prepare a draft report. It then sent letters to the directors of the ALS and to Mr Coe, informing them that a draft report was being prepared and providing extracts of it. Accompanying the extracts from the draft report were extracts from the transcripts of the examinations that the Commission had conducted. The letter, which is dated 10 July 1996, included the following: "As you are no doubt aware, the Australian Securities Commission ("ASC") is in the process of preparing a report to its Minister, the Commonwealth Treasurer, about the affairs of Aboriginal Legal Services Limited ("ALS"). The report is being prepared pursuant to section 17 of the ASC Law. Under section 18 of the ASC Law the Treasurer is vested with a discretion to publish the report. Work on this has now advanced to the stage where the substantial documentary and oral evidence obtained from ALS and others during the ASC's investigation has been analysed and summarised in draft. The draft report contains, on a provisional basis for comment by persons whose rights or interests may be affected, numerous findings of fact and many other statements. Whatever form the contents of the draft report take, if they are included unamended in the report to the Treasurer then they could affect ALS's rights or interests as well as the rights or interests of individuals associated with ALS. A copy of the parts of the draft report which could affect the rights or interests of ALS or persons associated with ALS is enclosed together with relevant annexures. An additional copy of the annexures is being provided to Mr Coe.