Anthony Gordon Oates v The Honourable Daryl Williams QC in his capacity as Attorney-General & Anor [1998] FCA 136 (27 February 1998)

Last Updated: 4 March 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Consent by Minister to institution of criminal proceedings under Corporations Law - proceedings instituted more than five years after alleged criminal conduct - whether Minister failed to take into account relevant considerations - whether Minister obliged to give person who might be charged an opportunity to be heard before decision made whether to consent.

Corporations Law s 1316

Evidence Act 1995 (Cth) Part 3.2, s 67, s 190(3)

Federal Court Rules O 33 r 3

Buffier v Bowen (1988) 32 A Crim R 214 followed

Buffier v Bowen (1988) 32 A Crim R 224 followed

Brisbane Regional Health Authority [1996] HCA 25; (1996) 186 CLR 541 referred to

R v Barton [1980] HCA 48; (1980) 147 CLR 75 referred to

Clyne v Attorney-General (Cth) (1984) 55 ALR 624 at 632-633 referred to

Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461 referred to

Houacher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 referred to

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 referred to

Johns v Australian Securities Commission (1993) 178 CLR 408 referred to

Brierley Investments Limited v Australian Securities Commission (1997) 148 ALR 158 referred to

Grech v Featherstone (1991) 33 FCR 63 referred to

Cornall v AB (A Solicitor) (1995) 1 VR 372 at 399-400 referred to

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 referred to

Lane v Jurd (No 2) (1995) 40 NSWLR 708

ANTHONY GORDON OATES v THE HONOURABLE DARYL WILLIAMS QC IN HIS CAPACITY AS THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND SENATOR, THE HONOURABLE AMANDA VANSTONE IN HER CAPACITY AS THE MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA

WAG 90 of 1997

MOORE J

SYDNEY (HEARD IN PERTH)

27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 90 of 1997

BETWEEN:	ANTHONY GORDON OATES Applicant
AND:	THE HONOURABLE DARYL WILLIAMS QC IN HIS CAPACITY AS THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT SENATOR, THE HONOURABLE AMANDA VANSTONE IN HER CAPACITY AS THE MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA SECOND Respondent
JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 1998
WHERE MADE:	SYDNEY (HEARD IN perth)

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 90 of 1997

BETWEEN:	ANTHONY GORDON OATES Applicant
AND:	THE HONOURABLE DARYL WILLIAMS QC IN HIS CAPACITY AS THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT SENATOR, THE HONOURABLE AMANDA VANSTONE IN HER CAPACITY AS THE MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA SECOND Respondent
JUDGE:	MOORE J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY (HEARD IN perth)

REASONS FOR JUDGMENT

The Background

This is an application for judicial review of a decision by the then Minister for Justice of Australia to consent to the institution of criminal proceedings against Mr Anthony Gordon Oates. The consent was given pursuant to s 1316 of the Corporations Law and subs 91(3) of the Corporations (Western Australia) Act 1990 . The proposed proceedings were for offences against s 229 and s 570 of the Companies (Western Australia) Code. The charges to which the consent related concerned dealings involving three companies, Bell Resources Limited, Bond Corporation Holdings Limited and Freefold Pty Ltd between 29 August 1988 and 29 May 1989. The consent was given on 5 January 1995, more than five years after the date of the last transaction to which the charges related. Complaints were laid on 12 January 1995 before a Justice of the Peace in the Court of Petty Sessions in Perth, Western Australia. The complainant was Mr Timothy Phillips who was Director, Investigations, of the Australian Securities Commission.

Section 1316 provides:

"Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of five years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any other time."

It is common ground that no notice was given to the applicant that the Minister was being asked to give his consent or proposed to give it. The applicant became aware consent had been given when an article appeared in the Australian Financial Review on Monday 16 January 1995 referring to charges against him.

In these proceedings, which were brought under s 39B of the Judiciary Act 1903 (Cth), the applicant sought a writ of certiorari to quash the decision to consent and a writ of mandamus compelling the first respondent to consider whether to consent. The bases on which relief was sought were twofold. The applicant contended that he was denied procedural fairness and should have been afforded an opportunity to be heard prior to any decision being made under s 1316. He also contended the decision to consent was attended by legal error as the Minister failed to take into account relevant considerations in deciding to consent. Both are issues of some importance though each has been considered by Neaves J, a Judge of this Court, in Buffier v Bowen (1988) 32 A Crim R 224. I will refer to his Honour's reasons for judgment in more detail shortly.

The Issues

The issues in these proceedings were established by pleadings. An amended statement of claim was filed on 5 January 1998 pursuant to leave granted by Lee J on 18 December 1997. The issue whether relevant considerations were taken into account was raised by paragraph 12A. It read:

"12A In granting the Consent the Honourable Duncan Kerr failed to take into account the following relevant considerations:

(1) prejudice to the applicant including but not limited to the fact that the applicant has been firmly established in Poland since 1990; that the applicant is a Polish citizen; and that the applicant has been married for over two years to a Polish national with a Polish step-son;

(2) the availability on public record or from readily identifiable and accessible sources of all documents relied upon by the prosecution;

(3) the presence in Australia of and ready co-operation afforded by most or all witnesses called at the Committal or who provided statements;

(4) the publication of the Sulan Report and obvious coincidence between the facts found by its author and the facts relied upon by the prosecution;

(5) the fact the Mr Sulan obviously had access to, obtained and preserved all of the relevant documents;

(6) the impact of his decision upon the applicant;

(7) the number of people and the time spent by them investigating the case, the detail of which showing that they really had everything they needed from the outset; and

(8) the likely cost of the proceedings to the prosecution.

Senior counsel for the applicant accepted that sub-paragraphs (2), (3), (4) and (5) were specific matters comprehended by the consideration identified in sub-paragraph (7). He also accepted that sub-paragraphs (1) and (6) raised a common issue. What paragraph 12A comprehends is, in my opinion, somewhat obscure. However, I indicated during the hearing that I took it to raise three matters. The first was a contention that the Minister failed to take into account prejudice to the applicant occasioned by the decision to consent. The second was a contention that the Minister failed to take into account the reason for the delay in instituting the proceedings given that either within five years of the alleged criminal conduct or before the time at which consent was sought and given, criminal proceedings could have been instituted but were not. The third was a contention that the Minister failed to take into account the likely cost of the proceedings to the prosecution.

Issues arising during the course of the trial

(i) Objections to evidence

Evidence led to show the proceedings could have been instituted earlier included evidence of Mr Mark Webeck, a partner in the firm of solicitors acting for the applicant. In an affidavit sworn on 17 February 1998 and filed the next day he deposed to the following:

"2. Further to my earlier Affidavit, I say that on 22, 23, 24, 25 and 26 October 1990 the Applicant gave oral evidence before Inspector Sulan at the investigation into the affairs of Bond Corporation Holdings Limited ("the Sulan inquiry").

3. The Applicant was shown a number of documents during his examination at the Sulan Inquiry and the contents of a substantial number of those documents covered inter alia, matters in the Complaint dated 11 January 1995, being Annexure "MJW1" to my earlier Affidavit.

4. In 1993 I commenced acting as solicitor for the Applicant. I have been subsequently informed by the Applicant that he attended at the Sulan Inquiry on the date specified in paragraph 2 above. I have subsequently obtained the transcript of the Applicant's testimony given at the Sulan Inquiry. For this reason, I am able to make the statements in paragraph 3 above. However, I have been unable to annex the transcript to this affidavit due to a confidentiality undertaking given by the Applicant in relation to the transcript.

...

7. I am informed by the Applicant, and verily believe to be true, that the Applicant returned to Australia in March 1991 to be further examined by the Sulan Inquiry. I am further informed by the Applicant and verily believe to be true, that upon the Applicant's return to Australia at that time, he was informed he was not required for any further examination. Annexed hereto and marked "C" is a true copy of a facsimile letter dated 9 January 1992 from the Applicant to the Australian Securities Commission."

Objection was taken to each paragraph. I was then informed by senior counsel for both the applicant and the respondents they were content for me to rule on the admissibility of this material as part of my later consideration of the matter generally.

The grounds of objection were the evidence was hearsay evidence and, having regard to its generality, not relevant evidence and constituted secondary evidence of the contents of documents. Further, it was submitted that to the extent the applicant might rely on provisions in Part 3.2 of the Evidence Act 1995 (Cth), notice had not been given in the manner required by s 67. On that basis, provisions in that Part that might otherwise render the paragraphs admissible had no application. The admissibility of these paragraphs was put in issue against a background where an order had been made by Lee J on 18 December 1997 that the applicant file and serve any further affidavits in support of the application by 3 February 1998 in addition to those that had already been filed in the Supreme Court of Western Australia.

Plainly each of the paragraphs is hearsay to the extent that Mr Webeck was giving evidence of facts he came to know not because he perceived or experienced the event deposed to, but because of the representation made to him by the applicant concerning what the applicant had perceived or experienced. The evidence is otherwise secondary evidence of the contents of documents and an opinion of what the documents disclose. Secondary evidence of the content of documents is admissible under the Evidence Act 1995 in limited circumstances. Paragraph 48(4)(b) of that Act allows a party to adduce evidence of the contents of a document by oral evidence if, relevantly, the document in question is not available to the party. The circumstances in which a document is not available are identified in clause 5 of Part 2 of the dictionary. While no submissions were made about clause 5, none of the identified circumstances, in my opinion, apply to the documents referred to by Mr Webeck. Some of the documents are in his possession. Notwithstanding the confidentiality undertaking he referred to, I see no reason why the applicant's counsel could not have sought to tender the documents on the basis that an order might be made under s 50 of the Federal Court of Australia Act 1976 after the party to whom the undertaking was made had been given notice. To the extent the evidence related to documents that were or had been in the possession of what is described as the Sulan Inquiry, steps could have been taken to secure their production.

To the extent that the evidence is hearsay evidence concerning the circumstances of the applicant, it is evidence potentially admissible under s 63 or s 64 of the Evidence Act 1995 depending on whether the applicant was "available to give evidence". Plainly paragraphs 2, 4 and 7 concern facts that could have readily been agreed to by the respondents and, having regard to the role of the Crown in litigation (see Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 41 and the cases cited), should have been agreed to if not seriously in issue. However, notice of the asserted facts was not given in accordance with s 67. Moreover, it appears that the affidavit was provided to the respondents on the afternoon of 17 February 1998 in Western Australia, one working day before the trial. Not only was notice not given in the prescribed way: see O 33 r 16 and r 17 of the Federal Court Rules, but such notice as that affidavit might have constituted, was not reasonable notice.

Senior counsel for the applicant relied on O 33 r 3 of the Federal Court Rules which enables the Court to dispense with compliance with the rules of evidence for proving any matter not bona fide in dispute. However, even if I was prepared to exercise that power, which I am not, the rule now only has effect in interlocutory proceedings: see s 9(1) of the Evidence Act 1995 , and not otherwise: see Lane v Jurd (No 2) (1995) 40 NSWLR 708. Moreover, I would not exercise a corresponding power conferred by s 190(3) of the Evidence Act (Cth) given that, because of the late notice, it is not clear whether the evidence is genuinely in dispute. Senior counsel for the respondents simply did not know. The ultimate issue to which much of this evidence was directed was the state of affairs in 1991-92, and perhaps after that, in order to establish that the criminal proceedings could have been instituted earlier than January 1995. That constitutes an allegation of some gravity and evidence led to establish facts to found the contention should, in my opinion, be in a proper form apart from the requirements of the Evidence Act 1995 . I reject paragraphs 2, 3, 4 and 7 of Mr Webeck's affidavit of 17 February 1998.

(ii) The pleadings and the production of the submission to the Minister

During the course of the proceedings an issue arose about the production of a submission made to the Minister shortly before he gave his consent. It was described in a schedule of documents provided to the applicant's solicitors under the Freedom of Information Act 1982 , as a submission of the Criminal Law Division dated 30 December 1994 concerning the request of the Director of Public Prosecutions that the Minister "consent to institute proceedings". The applicant's solicitors had served on the respondents a notice to produce and an issue arose whether this submission should be produced in response to the notice. The matter was dealt with comparatively informally. I decided that the applicant was entitled to that part of the submission which dealt with prejudice he might generally suffer as a result of a decision to consent. I was not satisfied that the likely cost of the proceeding to the prosecution was a matter the Minister was obliged to take into account. For reasons which become apparent shortly, I was satisfied that the reason for the delay would be a relevant consideration but, having regard to the way the applicant's case was pleaded, there was no evidence even suggestive of the fact that the proceedings could have been instituted either before the expiration of the five year period or the time at which consent was sought and given.

A point was reached in the hearing when those representing the applicant had had access to a report, which was described by Mr Webeck in the earlier extracts from his affidavit as the Sulan report, had ascertained which parts of it they wished to rely on, had copied them and had tendered, without objection, the parts relied on. The report arose from a direction given on 2 March 1990 by the Ministerial Council for Companies and Securities to the National Companies and Securities Commission pursuant to s 291(3) of the Companies (Western Australia) Code to investigate the affairs of what were described as the Bond group of companies. After this point had been reached in the hearing, there were further submissions about whether the submission to the Minister should be produced. The following exchange then took place with senior counsel for the applicant:

"HIS HONOUR: ... [C]an I just ask you, in relation to [sub]paragraph 7, again giving the pleading a benevolent construction and approaching it on the basis that it constitutes an allegation that the authorities were in a position to commence proceedings either before the five years had elapsed or before the time they were in fact commenced, assuming that 7 is construed as raising that issue, and that the earlier paragraphs we discussed this morning are but particulars of that, what evidence is there that you can refer me to that supports, as a matter of fact, that that was so?

DR FLICK: The closest that we can get to that is the one paragraph of Mr Webeck's third affidavit to which objection was taken, namely that by March 1991 you have got the inquiry before Mr Sulan well and truly under way, the fact that Mr Oates returns to Australia and was told, by the time that he had left, that he was not required for any further examination, so whatever may be the position in relation to other people, if you look at it from my client's point of view, as at about March 1991 what he was being told by the investigators was that he would not be required any further.

That has got some shortfalls in it. We appreciate that, namely, the fact that you have asked all of the questions of Mr Oates that you need to doesn't mean that you are not going to test it by asking other people and the like, but I think that is as close as we can come to answering your Honour's question. That is why I said that paragraph 7 perhaps fell into a different category to the rest of the affidavit by reason of the exception to the hearsay rule."

It can be seen that I indicated the issue I viewed sub-paragraph 12A(7) of the amended statement of claim as raising. Further, I asked what evidence there was to support it. That question was prompted by the observations of Neaves J in Buffier v Bowen (1987) 32 A Crim R 214 at 220, an interlocutory judgment, to which I had earlier been taken. His Honour indicated that if an order of discovery is sought against a decision maker where it is alleged relevant considerations were not taken into account, then discovery will be ordered if there is some evidence to indicate that facts existed at the time the decision was made that made the consideration a relevant one.

Before this exchange, I informed senior counsel for the applicant that the paragraphs in Mr Webeck's affidavit which had been objected to, were not likely to be admitted. I was not referred to any parts of the Sulan report to answer the question I asked about what evidence supported the contention that the criminal proceedings could have been instituted earlier. I then ruled on the issue arising from the notice to produce in the following passage:

"I can indicate now that I am prepared to require the production of that part of the submission made to the Minister that deals with prejudice to the applicant generally, though having regard to what Mr Martin has just said that may not be a practical matter. It would thus follow that the whole of the submission would be produced.

I have reached the conclusion that that is the appropriate course for the following reasons: firstly, I accept some of what Mr Martin has said about the way the case has been pleaded in paragraph 12A. The particulars in that paragraph appear to me to be poorly framed if they seek to raise, as is contended, prejudice to the applicant occasioned by the delay, as well as the contention that consideration was not given to the reason for the delay, having regard to the asserted fact that the prosecution of the applicant could have been instituted at least before the time at which it was instituted and probably before the time of five years elapsed from the events that are the subject of the proceedings.

Prejudice to the applicant occasioned by the delay and the reasons for the delay both appear, at least arguably, to be relevant considerations having regard to the judgment of Neaves J in the matter of Buffier.

There is no evidence in my view establishing the contention that the proceedings could have been instituted prior to the time when they in fact were instituted and it was for that reason that I would have otherwise limited the grant of access to the document in the way earlier discussed. Similarly, I am not satisfied that the prejudice identified specifically in 12A(1) is prejudice occasioned by the delay in instituting the proceedings. The applicant left Australia and settled in Poland well before the five years expired and to the extent that the applicant relies on the fact that he has subsequently married, it appears to be the fact as submitted by Mr Martin that that occurred after the relevant decision was made.

Nonetheless, given the view I have adopted about how 12A(1) should be construed, it does raise the question of prejudice to the applicant generally and it is for that reason that I indicated access to that part of the submission ought be allowed. Given the practical difficulties I adverted to earlier, in my view the notice to produce should be complied with and, if it be necessary, an order can be made to that effect but I would hope not in the circumstances."

My reference to practical difficulties was to an intimation senior counsel for the respondents earlier made, but later withdrew, that the submission to the Minister could not be edited in a way that would facilitate access only to relevant parts. The effect of the events I have just described was that the Sulan report was tendered but no part of it was relied upon to support a submission that either the entire submission to the Minister or that much of it concerning the reasons for the delay in instituting the criminal proceedings should be produced.

Did the Minister fail to take into account relevant considerations

I turn now to consider whether the matters referred to in paragraph 12A were considerations the Minister was obliged to take into account and failed to take into account. The issue of what considerations a decision maker ought take into account in making a decision of the type contemplated by s 1316 was considered by Neaves J in Buffier v Bowen. The correctness of his Honour's judgment was, on this question, not challenged by either party in these proceedings. His Honour considered the operation of s 381(4) of the Companies Ordinance 1962 (ACT) which provided:

"(4) Notwithstanding anything in any other law of the Territory, proceedings for the summary prosecution of an offence against this Ordinance may be brought within the period of three years after the commission of the offence or, with the written consent of the Minister, at any later time.

It is convenient to set out in full a passage from his Honour's reasons which deals with the matter comprehensively. His Honour said at 230:

"Subsection (4) of s 381 of the Companies Ordinance is expressed in general terms: proceedings may be bought within three years after the commission of the offence or, with the written consent of the Minister, at any later time. The provision clearly confers a very wide discretion. The subsection contains no specification of the criteria by reference to which the discretion to give or withhold consent is to be exercised. Nor does the subsection expressly identify any matters as factors which the decision-maker is bound to take into account in exercising the power. In such circumstances, `the court will not find the decision maker is bound to take a particular matter into account in exercising the power. In such circumstances,

`the court will not find that the decision-maker is bound to take a particular matter into account unless the implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act': Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, per Mason J.

In my opinion, a consideration of s 381(4) in its context and the general nature of the power confers serves to indicate that the overriding consideration for the decision-maker must be what the proper administration of justice dictates in the particular case. But, a consideration of those matters also serves to identify a number of factors which must be taken into account in the balancing process which is involved in determining whether consent to the institution of proceedings for an offence should be granted notwithstanding the lapse of time since the date of its alleged commission.

During the period of three years to which the subsection refers, proceedings for an offence may be brought by the Registrar acting on his own initiative. During that period proceedings may also be instituted by any person, the common informer, provided he obtains the consent of the respondent as the relevant Minister. So much is provided in s 381(3). The requirement that a person other than the Registrar must obtain the consent of the respondent is to be seen as an administrative safeguard against the formulation of charges which the respondent, as Attorney-General, might think do not warrant prosecution: Murchison v Keating (No 2) [1984] FCA 162; (1984) 54 ALR 386 at 394. After the expiration of three years no prosecution may be brought, either by the Registrar or by any other person, without the respondent's written consent.

The subject-matter of the power clearly requires that, in considering whether to consent, the respondent is bound to consider the nature of the offence in question, the allegations made against the person alleged to have committed the offence, the seriousness of those allegations and the sufficiency of evidence against him. It seems to me to be equally clear that the respondent is bound to take into account the period of time which has lapsed since the commission of the offence, if it is likely to be substantial, the further period which will lapse before the prosecution can be heard and determined. After all, the circumstance that the period of three years since the commission of the offence has expired is the very matter which brings the relevant power into operation. The period of delay is, therefore, at the very heart of the matter and is a consideration which the legislature must be taken to have required the decision maker to take into account.

To require that the decision maker take into account the delay which has occurred since the commission of the offence involves more than simply taking into account the period of time which has elapsed. To give proper consideration to the question before him, the decision maker must, in addition to the actual period of time involved, have regard to his reasons why the delay occurred and to any available material offering an excuse, explanation of justification for the delay. To conclude in a particular case that, in all the circumstances, the delay was inordinate and unjustifiable would be a most material consideration in determining whether consent should be given. Further, delay usually renders more difficult the determination of factual issues. Documents and witnesses may become unavailable and, even when witnesses are available, their recollection of events may well be impaired. Clearly, if any material were available to the decision-maker showing particular prejudice to the alleged offender on this account, the decision-maker in my view be bound to take that prejudice into account. Reason and experience of human affairs suggests that, at least where the delay is substantial the alleged offender would be likely to suffer some prejudice and the likelihood that this would be so is yet another matter that the decision-maker is bound to take into account."

After the hearing concluded the applicant's solicitors wrote and referred me to those parts of the Sulan report they relied on. They constituted a discussion of material before the inquiry that concerned, directly or indirectly, the applicant. Some constituted a record of what the applicant said during his examination. They did not establish, or even tend to establish, that the material before the inquiry was in a form that could be proved in any criminal proceedings or, even if proved, that the elements of each of the charges ultimately laid could be made out. Moreover, other references to which my attention was drawn by the respondents' solicitors, indicated Mr Sulan had reservations about the credibility of many of the witnesses who were examined and that examinees, including the applicant, had availed themselves of the protection conferred by s 68 of the Australian Securities Commission Act 1989 (Cth) by claiming privilege. He noted that answers an examinee gave, if privilege was claimed, were not admissible in proceedings against the examinee nor would any information, document or other thing obtained as a direct or indirect consequence of the examinee answering such questions. I was also referred by the respondents' solicitors to a section where it was noted that evidence was not complete.

I am satisfied there is no evidence even raising as a credible hypothesis that the proceedings could have been instituted either within the five year period or prior to the consent being sought and given. Thus there is no material which indicates that the Minister ought to have investigated the reason for the delay occasioned by the failure to institute proceedings at a date earlier than the date upon which they were, in fact, instituted. The respondents were entitled to insist upon the matter being determined on the basis raised in the pleadings and, notwithstanding the view I expressed at the hearing about the scope of sub-paragraph 12A(7) of the amended statement of claim, no application was made to amend further the pleadings. The question of what are relevant considerations depends not only on the nature of the statutory power but the circumstances in which it is to be exercised (see Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363 at 375), which will include the matrix of facts in which the power is to be exercised: see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87 at 96. If there is no material before the Court tending to establish that a circumstance or matter existed when the decision was made, then I fail to see how it can be contended that the decision maker was bound to take the matter into account and erred in not doing so. Moreover, there is no evidence that it was not taken into account.

A submission was made on behalf of the applicant that it could be inferred the Minister failed to take into account, inter alia, the reasons for the delay because he did not seek to establish in these proceedings that it was a matter he had, in fact, taken into account. Reference was made to New Zealand Fishing Industry Association Inc v Minister for Agriculture and Fisheries [1988] 1 NZLR 544, Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87 at 93 and Xiang Sheng Li v Refugee Review Tribunal [1994] FCA 1550; (1994) 36 ALD 273 at 279-280. The decision of the New Zealand Court of Appeal was to the effect that an inference may more readily be drawn that a Minister who makes a decision in exercise of a statutory power to decide by reference to specified criteria, has not taken them into account if he does not provide an affidavit stating that he did. The inference is more readily drawn in those circumstances if there is other material before the court that would enable the inference to be drawn that consideration had not been given to the specified criteria. The two Australian authorities deal with the application of the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in the context of judicial review of administrative action. However, each depends on there being material before the court tending to establish the relevant fact. As Menzies J said in Jones v Dunkel at 312, the failure to call evidence "cannot be used to make up any deficiency of evidence": see more generally Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 297; (1993) 43 FCR 100 at 123-124. The failure of the Minister to expose his reasoning when giving consent cannot and does not remedy the deficiencies in the evidentiary case of the applicant to which I have just referred. For these reasons the applicant has not, in this respect, demonstrated that a relevant consideration was not taken into account.

Prejudice to the applicant was a consideration the Minister was obliged to take into account. In appropriate cases this might involve a consideration not only of prejudice occasioned by the delay but also prejudice occasioned by the institution of the proceedings themselves following the grant of consent

(see Brisbane Regional Health Authority [1996] HCA 25; (1996) 186 CLR 541 at 555-556 per McHugh J), though the failure of a prosecutor to give any particular weight to the personal circumstances of the person to be prosecuted does not make the decision to prosecute an abuse of power: see Newby v Moodie (1988) 83 ALR 523 at 528. However, there is no evidence indicating that the Minister failed to take into account prejudice to the applicant. Senior counsel for the applicant was provided with that much of the submission of 30 December 1994 which dealt with prejudice to the applicant generally. The selection of the extracts provided was undertaken by senior counsel for the respondents who assured me that all relevant parts of the submission were provided. Perhaps understandably, senior counsel for the applicant declined an offer to review the entire submission to satisfy himself that all relevant parts of it were being provided. The extracts of the submission provided to the applicant were not tendered by either the applicant or the respondents. What material was before the Minister concerning prejudice to the applicant is not in evidence. Thus, it is not apparent to what extent the Minister considered prejudice occasioned to the applicant by the grant of consent. The applicant has not established that the Minister, in this respect, failed to take into account a relevant consideration.

I accept that the task of an applicant in proceedings such as these is a difficult one. That is, the practical problems of demonstrating that a decision maker failed to take into account certain matters is fraught with practical difficulties. I would respectfully adopt the observations of Lockhart J in Mostyn v Deputy Federal Commissioner of Taxation (1986) 86 ATC 4930 at 4932:

"Before leaving the matter, however, I would say that, quite independently of sec 13 of the Judicial Review Act 1958 , this Court is seised with the substantive application for review of the two decisions, Therefore, at some stage, the Court must have before it evidence as to what the Deputy Commissioner says were the relevant decisions referable to this application, that were made by him. Whether that is obtained by particulars being sought from the Deputy Commissioner by the applicant or by pleadings being ordered and interrogatories being administered, is not for me to say. But the Court, in the control of its own process, cannot be kept in the dark as to what the decision-making process was. I say that in no way critically of the Deputy Commissioner but simply to indicate that there is a problem in matters of this kind which parties must grapple with to elucidate the true issues."

However, the respondents were entitled, in my opinion, to resist the production of a submission relating to the institution of criminal proceedings unless it was arguably relevant. I was satisfied it was in relation to prejudice to the applicant but not in relation to delay in instituting the proceedings as the matter had been pleaded by the applicant.

The applicant has not made out a case that the Minister failed to take into account considerations of the type raised in the pleadings.

Was the Minister bound to afford the applicant procedural fairness

(i) The approach of Neaves J in Buffier v Bowen

I now consider the issue whether the Minister failed to accord the applicant procedural fairness. Whether a decision maker, giving consent of the relevant character, is required to accord procedural fairness was considered by Neaves J in Buffier v Bowen. For reasons which I will explain shortly it is convenient to set out a lengthy passage from his Honour's reasons for judgment dealing with this matter. His Honour said at 227-230:

"Counsel for the applicant conceded, for the purpose of argument, that a decision to institute a prosecution for an offence against the Companies Ordinance might properly be made without affording to the person to be prosecuted an opportunity to put material and submissions before the decision-maker. I also understand him to concede, for that purpose, that a simular situation applied to the giving of consent under s 381(3). But, it was submitted that the nature of the power conferred by s 381(4) and the matters relevant to be considered in its exercise, being the matters referred to above, compelled a different conclusion in relation to that provision.

It was further submitted on behalf of the applicant that the respondent was bound to afford him an opportunity to present material and make submissions in support of his contention that consent should not be given because the giving of consent would deprive the applicant of a legitimate expectation of a benefit. In respect of each of the offences alleged against him it was said that, upon the expiration of the period of three years from the date on which the offence was alleged to have been committed, the applicant had a legitimate expectation that he would not be prosecuted in respect of that offence. In consequence, so the submission ran, consent to the institution of proceedings for that offence could not properly be given unless and until the applicant had been given an opportunity to put relevant material before, and make submissions to, the decision maker.

The general principles to be applied in resolving the issues between the parties are to be found in the judgment of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. His Honour said at (at 582-583):

`It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, it is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109; Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419; Mackellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 476; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 498-499; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945. The reference to `right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

The reference to `legitimate expectation' makes it clear that the doctrine applies in circumstances where the order would not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 404, Barwick CJ expressed the view that the expression in `legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of `legitimate expectations' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 508-509; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 348, 351-352, 369, 412; A-G (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 at 636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the court in Salemi (No 2) the `amnesty' constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI [1982] HCA 26; (1982) 151 CLR 342 or from the exercise of a regular practice which the person effected can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case"

His Honour continued (at 584-585):

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

...

Where the decision in question is one for which provision is made by statute the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on `the particular statutory framework'. 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 rule under which the decision maker is acting: Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552-553; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 311, 319-321."

The giving of consent under s 381(4) of the Companies Ordinance to the summary prosecution of a person for an offence against that Ordinance does not affect any right or interest of that person in the sense in which those expressions are used in the above cited passages. Indeed, I did not understand counsel for the applicant to submit to the contrary. The submission made on behalf of the applicant has already been summarised. Its acceptance depends upon the applicant being found to have a legitimate expectation that he would not be prosecuted in respect of any of the offences alleged against him. That legitimate expectation was said to arise not from any assurance given to the applicant by the respondent or by anyone on his behalf nor from any other conduct engaged in by or on behalf of the respondent. It was said to arise solely from a consideration of the legislative provision itself.

In my opinion, the submission lacks substance and should be rejected. If it be proper to regard section 381(4) of the Companies Ordinance as giving rise in the applicant to a legitimate expectation of benefit, the legitimate expectation did not extend beyond an expectation (perhaps more correctly described as a right) that summary proceedings for an offence alleged to have been committed more than three years before would not be instituted except with the written consent, properly given, of the respondent.

In Murchison v Keating (No 2) [1984] FCA 162; (1984) 54 ALR 386, Morling J rejected a submission that the rules of natural justice were applicable to the making of a decision by the Treasurer of the Commonwealth of Australia pursuant to
s 70(1) of the Banking Act 1959 (Cth) to consent to the institution of proceedings for an offence against the Act or the regulations made thereunder. Counsel for the applicant submitted that, although what was said in that case in relation to the giving of consent to the institution of proceedings for a criminal offence might be applicable to the comparable provision contained in s 381(3) of the Companies Ordinance, it had no application to the giving of consent under s 381(4). This was said to follow from the circumstance that s 381(4) operated only after the expiration of the three year period referred to therein, the expiration of that period giving rise to the legitimate expectation to which reference has already been made.

In my opinion for the reasons I have already given, there is, for the purpose of the argument now being considered, no relevant distinction between subss (3) and (4) of s 381 of the Companies Ordinance. In the case of neither provision, in my view, is the decision-maker bound to afford to the person alleged to have committed an offence against the Ordinance a prior opportunity to present material or make submissions. This conclusion accords with that reached by the Supreme Court (Vic) in Nicol v A-G (Vic) [1982] VR 353 in relation to the provision, s 381(2) of the Companies Act 1961 (Vic) which corresponds with s 381(4) of the Companies Ordinance now under consideration. It must, however, be acknowledged as I pointed out in the reasons for decision I delivered on 12 May 1987 dismissing an objection by the respondent to the competency of the present application, that the actual decision in that case turned on the provisions contained in the Administrative Law Act 1978 (Vic) which delimited the kinds of decisions that could be the subject of review under the Act."

(ii) The status of Buffier v Bowen

It is primarily a matter of statutory construction whether Parliament intended that the exercise of a statutory power carried with it an obligation to afford procedural fairness if the exercise of the power would destroy, defeat or prejudice a person's rights, interests or legitimate expectations. The basis upon which this question may be approached was discussed by Brennan J (as he then was) in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 409-410:

"The construing of a statute with a view to determining whether the principles of natural justice are to be applied requires more than mere exegesis of the statutory test; the common law attributes to the statute an operation which accords as closely as may be with the requirements of justice; the common law attributes to the statute an operation which accords as closely as may be with the requirements of justice. The common law attributes to the legislature an intention that the principles of natural justice be applied in the exercise of certain statutory powers, and the legislature's intention provides the sole and sufficient warrant for judicial review of the exercise of those powers when an applicable rule of natural justice is not observed. And so, where a challenge to the validity of an exercise of a statutory power is made on the grounds that a rule of natural justice has not been observed, the true foundation for the challenge is that a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled and that an exercise of the power is not efficacious unless the condition is fulfilled.

The subjects of statutory powers are so various, the repositories of power so differently constituted and the language of statutes so diverse that the conditions to be implied are not - indeed cannot be - constant from statute to statute. In each case it is necessary to infer the true intention of the legislature by examining both the text of the statute and those extrinsic matters to which reference might properly be made in aid of interpretation. That examination is no longer impeded by drawing a rigid distinction between powers to be exercised judicially and powers to be exercised ministerially. The rigidity of that distinction has given way to a consideration of the functions to be performed as an aid in ascertaining the legislature's intention. The concepts of natural justice and fairness, for all their imprecision, have illuminated the perception of the legislature's intention by the courts."

Buffier v Bowen is a judgment of a single judge of this Court. It concerned a statutory provision which, in material respects, was in substantially the same terms as s 1316. Ordinarily a judge of this Court should follow the judgment of another single judge unless the judge thinks the judgment is clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1995) 55 FCR 233 at 255 and the cases cited. While the provision considered by Neaves J was part of a statutory framework common in general form throughout Australia that predates the Corporations Law, it is nonetheless a provision of a type that informed the language and structure of the Corporations Law.

It is desirable that a common approach be adopted throughout Australia to the construction of the Corporations Law (see Australian Securities Commission v Melborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485 at 492) and, in my opinion, the same can be said, though with perhaps less force, of provisions predating the Corporations Law but which are, in material respects, the same. These considerations suggest I should follow Neaves J's judgment unless I consider it is clearly wrong. On the other hand, notions of comity and binding precedent have a greater role in the development and application of the common law than they have in statutory construction: see the observations of Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 572. However, as revealed by Brennan J in the passage from FAI Insurances Ltd v Winneke, both the common law and principles of statutory construction have a role to play in the present matter. I have concluded I should follow the judgment of Neaves J unless I consider it is clearly wrong.

(iii) Whether the approach in Buffier v Bowen should be followed in the present case

Senior counsel for the applicant sought to argue that the applicant should have been afforded procedural fairness on a different footing than had been argued by counsel for the applicant in Buffier v Bowen. The focus of the submissions made by the applicant in Buffier v Bowen was that the applicant had a legitimate expectation that he would not be deprived of a benefit, that is, he would not be prosecuted in respect of the offence after the limitation period of three years had expired. Senior counsel for the applicant in these proceedings submitted that a decision to consent to the institution of proceedings outside the period specified in s 1316 was a decision adversely affecting the reputation of the person against whom the criminal proceedings would be brought. Having regard to the judgment of the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, it was submitted, the person affected by the consent should be afforded an opportunity to be heard before a decision whether to consent was made.

I will approach the matter on the footing that the issue is whether the Minister was obliged to afford procedural fairness to the applicant prior to deciding whether to give consent. It may, however, be approached on another basis. That is, the inquiry is whether the power to consent might be capable of being exercised peremptorily and, though the principles of natural justice apply, they are devoid of content: see the observations of Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 615 cited with approval by McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 at 472.

In Ainsworth v Criminal Justice Commission a report had been prepared by the Queensland Criminal Justice Commission ("the Commission") about the introduction of poker machines into Queensland. Consistent with an obligation imposed by the Criminal Justice Act (1989) (Qld) ("the Queensland Act") the report was furnished to the chairman of the Parliamentary Criminal Justice Committee ("the Committee"), the Speaker of the Legislative Assembly of Queensland and the relevant Minister. The report, to adopt the language of the leading judgment of Mason CJ, Dawson, Toohey, Gaudron JJ, had "blackened" the reputations of Mr Ainsworth and Ainsworth Nominees Pty Ltd, who were associated with the production of poker machines. Neither had been given an opportunity to comment on the report before it was tabled in Parliament. The Queensland Act created a statutory framework in which the Commission investigated and reported, which were two of its functions. It was obliged by the Queensland Act to act fairly in all proceedings: see s 2.21 of the Queensland Act. The proceedings in the High Court were an appeal from the Full Court of the Supreme Court of Queensland, which had decided that the processes undertaken by the Commission were not proceedings and, accordingly, s 2.21 had no application. The Full Court of the Supreme Court had also concluded that the report did not affect the rights, interests or legitimate expectations of Mr Ainsworth or the company in a way that dictated they be afforded procedural fairness.

In the leading judgment, Mason CJ, Dawson, Toohey and Gaudron JJ concluded that the processes which led to the making of the report were proceedings. Accordingly, there was a statutory duty of fairness imposed by the Queensland Act. Their Honours went on to consider what conduct constitutes fairness which would either satisfy the statutory requirement or the general law. They said at 578:

"It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel MR in Fisher v Keane (1879) 11 Ch D 353 at 362-363:

"According to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of person who decide upon the conduct of others, [they ought not] to blast a man's reputation for ever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct"

And, as recently as 1990, Brennan J said in Annetts (1990) 170 CLR at 608 that:

"Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made."

The same is true of business or commercial reputation. And it matters not that instead of an express finding, there is, as here, an adverse recommendation based on the reports of other bodies or authorities. That being so, the appellants were entitled to procedural fairness."

Their Honours went on to consider an argument to the effect that Mr Ainsworth and the company had not been deprived of any entitlement to procedural fairness because the entitlement arose in an entire process which included the public hearing of the Committee. In relation to this submission they said at 578:

"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' ".

[Citation omitted]

However, they went on to point out that the Commission and the Committee were not engaged in the one decision-making process. That is, the Commission had taken the final step in discharging its functions and responsibilities. They also pointed out that the Commission and the Committee served quite separate and distinct purposes and that while, as a matter of fact, the Committee might afford procedural fairness it was under no obligation to do so.

Their Honours commenced the discussion of the particular processes that had been undertaken by the Commission with the following statement of general principle at 576:

"It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may `destroy, defeat or prejudice a person's rights, interests or legitimate expectations'. Thus what is decisive is the nature of the power, not the character of the proceeding which attends its exercise."

[Citation omitted]

The question that arises in these proceedings is whether the granting of consent involved the exercise of a statutory power that destroyed, defeated or prejudiced the reputation of the person concerned in a way that would imply a duty to afford procedural fairness. Damage to the applicant's reputation can be assumed. It was submitted by senior counsel for the respondents that any damage done to the reputation of the applicant was as a result of the decision to prosecute and not the grant of consent. A further argument was put that s 1316 was not a section which imposed a time limit. Rather, it was submitted, it permitted proceedings to be instituted within five years, or with ministerial consent after five years, where a time limit was elsewhere imposed.

I do not accept that the decision damaging reputation was the decision to prosecute and not the decision to consent. Assuming, for the moment, that consent was necessary for the criminal proceedings to be instituted, the decision to prosecute had no relevant practical effect on the reputation of the applicant until consent was given to their institution. To the extent that the applicant's reputation has been adversely affected, it was the institution of the proceedings and attendant publicity that brought that about. The language of s 1316 and the nature of the power it confers indicates that the power to consent is enlivened when a prior decision has been made to prosecute. Institution connotes commencing: see McManaminy v Hadley [1975] VR 705 at 708. Any decision to prosecute which would result in the institution of proceedings more than five years after the events to which they related would be subject to a condition subsequent, namely the grant of consent. The grant of consent would perfect the decision to prosecute and enable the institution of proceedings. In that way, in my opinion, a decision to consent is inextricably linked with the decision to prosecute.

However, there is now a comparatively well developed line of authority that suggests decisions to prosecute, or decisions linked or akin to the decision to prosecute in the way I have just discussed, are decisions which, if they involve the exercise of a statutory power, are not decisions attended by a requirement to afford procedural fairness: see R v Barton [1980] HCA 48; (1980) 147 CLR 75, Clyne v Attorney-General (Cth) (1984) 55 ALR 624 at 632-633. To the references cited by Neaves J in the passage from Buffier v Bowen I have just quoted can be added a reference to a Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461.

One of the authorities cited by Neaves J was the judgment of Morling J in Murchison v Keating (No 2), Morling J said at 395:

"Counsel for the applicant was unable to point to any authority to support the proposition that the rules of natural justice have any application to the making of a decision by a Minister of the Crown to permit the bringing of a prosecution. In my opinion the authorities make it clear that the rules have no application in such a case."

It may be accepted that the unambiguous trend of modern authority is that the rules of natural justice or the obligation to afford procedural fairness attend the exercise of a statutory power which has the effect of destroying, defeating or prejudicing a right, interest or legitimate expectation unless the rules or the obligation are excluded by plain words of necessary intendment: see eg Houacher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 and Johns v Australian Securities Commission (1993) 178 CLR 408. However, the line of authority to which I have just referred concerning a decision to prosecute made in exercise of a statutory power suggests procedural fairness need not be afforded if the Act conferring the power does not expressly exclude an obligation to afford it. I return to this question shortly.

The rationale for the view that procedural fairness need not be afforded at the initial stage of the institution of criminal proceedings may be that any damage done to the reputation of a person against whom criminal proceedings are instituted, occurs in a legal framework where the innocence of the person is presumed and the person would be afforded procedural fairness during the process of hearing or trial. It is a process described by Heerey J in Grech v Featherstone (1991) 33 FCR 63 at 67 in the context of dealing with a submission that the power to arrest conferred by s 92(1) of the Migration Act 1958 (Cth) could only be exercised if the person to be arrested was heard before the exercise of the power. His Honour said at 67:

"Although it is by now trite law that the content of the rules of natural justice vary according to the nature of the particular power being considered, it seems to me that any recognisable form of natural justice is totally inconsistent with a statutory power of arrest. No authority was cited to me in which such a power had been held to attract the rules of natural justice. This is hardly surprising. The whole point of arrest is that the person arrested is brought within the judicial system, there to be dealt with according to law. Statute and common law will then ensure the determination of the person's liberty by an impartial court with the arrested person being given the right to be heard."

If the protection afforded by the criminal trial or hearing might be treated as sufficient to imply that a decision maker who consents to the institution of criminal proceedings out of time is absolved from an obligation to afford procedural fairness, then the relationship between the decision and the ensuing processes must be considered.

As was apparent from a passage I cited earlier from Ainsworth v Criminal Justice Commission, the central question then becomes whether the impugned decision was sufficiently connected with, or an integral part of, the process that would follow: as to the degree of necessary connection generally, see Minister for Aboriginal And Torres Strait Islander Affairs v State of Western Australia (1996) 66 FCR 40 at 54-95 and for the purposes of founding a writ of certiorari, see Hot Holdings Ltd v Creasy (1996) 185 CLR 149. Two recent decisions have considered this issue in a context that bears some relationship to the present one.

I refer first to a matter recently decided by a single judge in this Court in Brierley Investments Limited v Australian Securities Commission (1997) 148 ALR 158. A decision was made by the Australian Securities Commission to apply to the Corporations and Securities Panel for a declaration under s 733(3) of the Corporations Law. At the time the Australian Securities Commission made the decision it decided to publish a media release. A question arose whether, having regard to the issue of the media release, the Australian Securities Commission had been under an obligation to afford procedural fairness to the companies in question before making the application to the Panel. Emmett J considered this matter in the following way at 169:

" It was conceded by the BIL Companies, on the bases of this court's decision in Edelsten v Health Insurance Commission (1990) 27 FCR 56; 96 ALR 637, that the decision to make an application under s 733(1) was not subject to challenge. Further, no challenge was made as such to the decision to make a statement under s 736A(2). Nevertheless, it was argued that because the decision to make the press release was made in close proximity to the decision to make an application under s 733 and before the application to the panel had actually been made by the ASC, there was a duty to afford procedural fairness to the BIL Companies before making the application. I do not consider that the fact that the decision to make the media release was made in close proximity to the decision to make an application to the panel and before the application had actually been made to the panel constitutes circumstances such as to give rise to a right to be heard. I do not consider that the additional circumstances of the media release make the decision to apply to the panel any different to the circumstances considered by the court in Edelsten's case.

Reference was made to the observations of the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 579; [1992] HCA 10; 106 ALR 11 to the effect that reputation is an interest attracting the protection of the rules of natural justice. While I accept that the publication of the media release was capable of causing harm to the reputations of the BIL Companies and the Merrill Lynch Companies, the determination to make the application to the panel and the publication of the media release are of a different character from the finding which was under consideration in Ainsworth v Criminal Justice Commission. There, the report in which the finding was made was the final step in the discharge by the Commission of its functions and responsibilities. Here, the decision is no more than a step or stage in bringing the matter in question before the panel where procedural fairness must be accorded to the BIL Companies."

His Honour was influenced by the fact that procedural fairness would be afforded the aggrieved parties by procedures flowing from and following the making of the relevant decision. He treated the impugned decision as a step precipitating the inquiry that would follow, in which procedural fairness would be given to the parties whose reputation may have been harmed.

A similar issue arose in Cornall v AB (A Solicitor) (1995) 1 VR 372. Special leave to appeal to the High Court was refused. That matter concerned the reference by the Secretary of the Law Institute of Victoria under the Legal Profession Act (Vic) of a complaint against a solicitor to the Registrar of the Solicitors' Board for hearing. It had been argued that before the complaint was referred by the Secretary, the solicitor should have been given the opportunity to be heard and on the basis, principally, that the likely publication of the Secretary's decision would adversely affect his reputation. It was assumed by the Court there was a risk it would. Three judges of the Appeal Division of the Supreme Court of Victoria said in a joint judgment at 399-400:

"The present case is stronger because there is no question of an appeal from the decision of the secretary under Pt IIIA but there is a full hearing on the evidence for the first time before registrar or board. The only decision of the secretary is a decision to refer the matter for quasi-judicial determination and it is thus easier to see that in considering the whole process whereby matters are referred to the registrar or Solicitors' Board there is intended to be an ample opportunity for the respondent to present his case at the hearings prescribed by the legislature.

In truth the case is closer to another High Court decision, Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582, in which the court considered procedures under the Medical Act of Queensland very similar to those under Pt IIIA of the Act in that they provided that, if the Medical Board was of opinion that a doctor should be subjected to disciplinary punishment, it might proceed to have that doctor charged before the Medical Assessment Tribunal of that state. An attempt was made to stay the proceedings before the tribunal which was ultimately rejected by the High Court. In reaching that conclusion McTiernan J, after observing that the opinion of the board was not intended to bind the tribunal, concluded at 590:

`The only consequence of the opinion of the board, if adverse to the medical practitioner, to which the Act points, is that he is to be charged before the tribunal and that there he is to have a judicial trial.'

In the judgment of Fullagar and Taylor JJ at 594 their Honours concluded that the formation of the opinion by the board `merely prescribe(d) a condition to be satisfied' before the medical practitioner was charged. They continued:

`The formation of the opinion which satisfies this condition is, in no sense, any part of a judicial process; on the contrary the requirement that it shall be formed before a charge is preferred is but an administrative safeguard against the formulation of charges before the tribunal based upon convictions for trivial offences or for offences which cannot be thought to call for any disciplinary action under the Act. Accordingly when such a charge is made it is for the tribunal ultimately to determine whether the conviction is in respect of an offence for which the practitioner should be subjected to disciplinary punishment.'

The decision in Byrne's case was one of many relied upon by Meagher JA (in whose judgment Clarke JA agreed) to conclude in Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461:

`It has been well recognised that a decision to commence criminal proceedings does not require the observance of the principles of natural justice ... A similar view has been taken of professional disciplinary actions ...'

It is sufficient to say that, having regard to those authorities, without examining the many others which have dealt with similar issues, we would take the High Court's recent observations in O'Shea's case and Ainsworth's case requiring the decision-making process to be viewed in its entirety as leading to the conclusion that the investigations of prosecutors or bodies charged with disciplinary functions may likewise be seen as forming part of an entire process. Viewing those processes in their entirety must involve a recognition that the role of the prosecutor or the Secretary of the Law Institute is very different from that of the person or body required to reach a decision so that, if procedural fairness is inherent in the ultimate decision-making process, then the rules of natural justice will ordinarily not be broken by some failure to afford a further opportunity to be heard at the stage of recommending the preferment of a charge.

Of course, every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard before a prosecution or disciplinary proceeding is launched."

On the question of what constitutes the exclusion of the obligation to afford procedural fairness by plain words of necessary intendment, their Honours said at 395:

"Moreover we accept the following statement by McHugh J in Johns's case at 470 as effectively stating the present test as to exclusion of the rules of natural justice:

`An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute. Such an intention cannot be gleaned from `indirect references, uncertain inferences or equivocal considerations'. (Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at p 396.)'

The test from Tanos's case had likewise been adopted by Mason CJ, Deane and McHugh JJ in Annetts's case: at 598. However, having regard to the considerations which the High Court has recently considered to be relevant to this exercise, to which we shall now turn, we would not assume that
McHugh J was requiring that the exclusion of the rules had to be stated expressly in the language of the relevant statute; rather he was looking to the whole of the statutory scheme to `discern' whether such an intention was `clearly evident': ibid. A quick and no doubt imprecise search of a database of Commonwealth Statutes reveals no such express provision and a similar search of a database of Victorian Statutes reveals only two statutes with express provisions, each relating to parole. Nevertheless, it cannot be said that every decision requires the decision-maker to afford procedural fairness and it is an enquiry which can only be answered by looking at the whole of the statute in question. As was said in Ainsworth's case: `Obviously, not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness.': per Mason CJ, Dawson, Toohey and Gaudron JJ: at 576.

These authorities support the view that a decision which may adversely affect reputation is not one that necessarily attracts a requirement to afford procedural fairness if the decision puts in train a process of hearing in which an opportunity arises for the person to vindicate their reputation. I have already indicated that the decision to consent was inextricably linked to the decision to prosecute. These decisions lead immediately and directly to the laying of charges and the commencement of the process of hearing and possibly trial.

These authorities also support the view that the submissions in which, in effect, senior counsel for the applicant sought to argue that Buffier v Bowen was not correctly decided, should be rejected. I am not satisfied that the judgment of Neaves J in Buffier v Bowen was clearly wrong. Accordingly no reviewable error is established by the fact that the Minister did not give the applicant an opportunity to be heard before giving his consent to the institution of the criminal proceeding against the applicant.

Conclusion

To this point I have proceeded on the assumption that s 1316 operated to require consent to be given for the institution of the criminal proceedings against the applicant. It is unnecessary, in my opinion, to deal with the submission of senior counsel for the respondents that the role of s 1316 is more limited. The case of the applicant necessarily proceeded on the footing that the decision to consent was the decision that damaged the applicant's reputation. I have dealt with the matter on the basis that it did. If it did not, then the interest said to have been affected by the decision would not have been so affected. It is for this reason that it is unnecessary for me to consider in detail and determine the precise scope of
s 1316. It has also been unnecessary for me to consider submissions whether, if the applicant established reviewable error, relief should be granted on discretionary grounds.

There is a measure of tension between a conclusion that the Minister was obliged to take into account prejudice to the applicant when deciding whether to consent but was not obliged to give the applicant an opportunity to be heard before the decision was made, and thus an opportunity to articulate what, from the applicant's perspective, the prejudice might be. However, there are some reasons of public policy why Parliament may be viewed as having intended that those exercising statutory powers involving decisions to prosecute individuals or companies for criminal offences would not be required to give the person or company an opportunity to be heard before the decision to prosecute was made or perfected by the grant of consent. The most obvious is that in a case where it is appropriate, immediate arrest may be frustrated. The person put on notice of an intention to prosecute, subject to consent, may flee the jurisdiction and extradition may be difficult or impossible. The requirement, if it is a requirement, that the Minister give his or her consent to the institution of criminal proceedings for an offence against the Corporations Law more than five years after the events in question is intended to provide a safeguard against oppressive, unwarranted or unjustified prosecutions flowing from what may have been dilatory conduct on the part of investigating or prosecuting authorities. It is a safeguard that is fortified by the decision to consent being amenable to judicial review.

For the preceding reasons the applicant has not established that the decision of the Minister for Justice on 5 January 1995 to consent to the institution of criminal proceedings against him was attended by legal error. I dismiss the application and order the applicant to pay the respondents' costs.

I certify that this and the preceding twenty eight (28) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate: Click here for Picture

Dated: 27 February 1998

Counsel for the Applicant:	Dr G A Flick SC with Mr P R Hannan
Solicitor for the Applicant:	Webeck Farland Pender
Counsel for the Respondents:	Mr W S Martin QC with Mr P R Macliver
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	18 and 19 February 1998
Date of Judgment:	27 February 1998