National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 (15 May 1984)

HIGH COURT OF AUSTRALIA

NATIONAL COMPANIES AND SECURITIES COMMISSION v. THE NEWS CORPORATION LIMITED,
MIRROR NEWSPAPERS LIMITED, NATIONWIDE NEWS PTY. LIMITED AND CONTROL INVESTMENTS
PTY. LIMITED [1984] HCA 29; (1984) 156 CLR 296

Companies - Administrative Tribunals

High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(2), Brennan(3) and Dawson(2) JJ.

CATCHWORDS

Companies - National Companies and Securities Commission - Hearing - Contraventions of legislation suspected - Hearing to investigate whether contraventions occurred and whether application should be made to court for orders - Statutory requirement to observe rules of natural justice - Extent to which witness entitled to be represented and take part - Findings - Whether necessary or appropriate for Commission to publicize - Companies Act 1981 (Cth), ss. 5(1), 16A, 137, 138, 146(1); Companies (Acquisition of Shares) Act 1980 (Cth), ss. 11, 45(1); National Companies and Securities Commission Act 1979 (Cth), ss. 36, 37, 38, 39, 40, 41, 42.

Administrative Tribunals - Proceedings - Hearing - Investigation of whether contraventions of legislation had occurred and whether application should be made to court for orders - Statutory requirement to observe rules of natural justice - Witness - Right to be represented and take part - Findings - Whether necessary or appropriate to publicize.

HEARING

1984, February 16; May 15. 15:5:1984
APPEAL from the Federal Court of Australia.

DECISION

GIBBS C.J. This appeal from a decision of the Full Court of the Federal Court requires us to decide some important questions concerning the powers of the National Companies and Securities Commission ("the Commission") when it holds a hearing for the purpose of investigating whether there has been a breach of the provisions of the Companies Code, or, in this case, of the Companies Act 1981 (Cth) ("the Companies Act").

2. On 17 March 1983 the Commission issued a document called a "Notice of Hearing" which, omitting formal parts, was in the following terms:

"NOTICE OF HEARING
COMMISSION ("the Commission") has reason to suspect
that persons may have contravened the statutory
provisions set forth in Schedules A and B

AND WHEREAS the Commission may commence proceedings
in respect of the said contraventions

THE COMMISSION HEREBY GIVES NOTICE that it will
hold a hearing pursuant to section 36 of the
National Companies and Securities Commission Act
1979 at its offices, 17th floor, 31 Queen Street,
Melbourne, in the State of Victoria, commencing at
9.30 a.m. on Tuesday, 19 April 1983:

(a) in relation to the matters enumerated in
Schedule A, for the purpose of the performance
of its functions or the exercise of its powers
that are conferred or expressed to be
conferred upon the Commission by or under -

(i) section 16A of the Companies Act 1981 to
make such investigations as the
Commission thinks expedient for the due
administration of the Companies
(Acquisition of Shares) Act 1980, and

(ii) sub-section 45(1) of the Companies
(Acquisition of Shares) Act 1980 to apply
to the Supreme Court of the Australian
Capital Territory for one or more of the
orders therein set out where a person has
acquired shares in a company in
contravention of section 11 of the
Companies (Acquisition of Shares) Act
1980,

(b) in relation to the matters enumerated in
Schedule B, for the purpose of the performance
of its functions or the exercise of its powers
that are conferred or expressed to be
conferred upon the Commission by or under -

(i) section 16A of the Companies Act 1981 to
make such investigations as the
Commission thinks expedient for the due
administration of the Companies Act 1981,
and

(ii) sub-section 146(1) of the Companies Act
1981 to apply to the Supreme Court of the
Australian Capital Territory for one or
more of the orders therein set out where
a person has been a substantial
shareholder and has failed to comply with
sections 137 and 138 of the Companies Act
1981.

SCHEDULE A
The acquisitions of shares between 1 September 1981
and 5 October 1982 in Thomas Nationwide Transport
Limited ("TNT") by The News Corporation Limited
("News"), Ansett Transport Industries Limited
("ATI"), McIlwraith McEacharn Limited ("MML"), TNT
Superannuation Pty. Limited ("TNT S"), Associated
Steamships Pty. Limited Staff Superannuation Fund
("ASS"), Mirror Newspapers Limited ("Mirror"),
Nationwide News Pty. Limited ("Nationwide"),
Control Investments Pty. Limited ("Control") and
CBBH Custodians Pty. Limited ("CBBH") or some or
one of them which constitute or may constitute a
contravention of the provisions of section 11 of
the Companies (Acquisition of Shares) Act 1980.

SCHEDULE B

The failure by TNT, News, ATI, MML, TNT S, ASS,
Mirror, Nationwide, Control and CBBH or some or one
of them between 1 July 1982 and 5 October 1982 to
give to TNT a notice in accordance with
sections 137 and 138 of the Companies Act 1981
which constitutes or may constitute a failure to
comply with the said provisions.

AND TAKE NOTICE that any party to these proceedings
may be represented in the manner set out in
sub-section 38(2) of the National Companies and
Securities Commission Act 1979."

The Notice was published in the press, and copies were sent to the respondents.

3. Thomas Nationwide Transport Limited is a company incorporated in the Australian Capital Territory. It is not in dispute that the Full Court of the Federal Court was correct when it said that the Commission proposed to hold a hearing in intended exercise of the power conferred by s.36 of the National Companies and Securities Commission Act 1979 (Cth) ("the NCSC Act") for the following purposes:

"(a) to investigate under s.16A of the Companies
Act whether News Corporation and others
acquired shares in Thomas Nationwide Transport
Limited ("T.N.T.") in contravention of s.11 of
the Companies (Acquisition of Shares) Act 1980
("Acquisition of Shares Act") in that they
acquired more than 20 per cent of the voting
shares.

(b) to determine whether it should under s.45(1)
of the Acquisition of Shares Act apply to the
Supreme Court of the Australian Capital
Territory for certain orders consequent upon
the contravention of s.11 of the Act.

(c) to investigate under s.16A whether News
Corporation and others have contravened s.137
and s.138 of the Companies Act by failing to
give notices required of them as substantial
shareholders.

(d) to determine whether it should under s.146(1)
of the Companies Act apply to the Supreme
Court for certain orders consequent upon the
failure to give the substantial shareholders'
notices."

It is also not in dispute that the Commission had a suspicion that some persons had committed offences against s.11 of the Companies (Acquisition of Shares) Act 1980 (Cth) (the "Acquisition of Shares Act") and ss.137 and 138 of the Companies Act in connexion with Thomas Nationwide Transport Limited.

4. On 19 April 1983 the Commission commenced its hearing in public. The Chairman of the Commission stated that it proposed to meet in private, and that it would later give directions as to the persons who might be present. Counsel for the respondents made an application the effect of which was summarized in writing as follows; par.2 of the summary is omitted because the matter that it raised is not presently in question. The written summary stated that News Corporation Limited sought:

"1. A statement of the matters facts and
circumstances which cause the Commission to
have reason to suspect that News has committed
an offence under the legislation, or some
other specification of the substance of the
case which News may be required to meet at the
hearing.

2. ...

3. Directions:

(a) That News and its legal representatives
are entitled to be present throughout the
whole of the hearing, or

(b) That News be permitted to intervene in
the proceedings constituted by the
hearing.

(c) That subject to s.38(1)(a) of the NCSC
Act that legal representatives of News be
permitted to cross-examine witnesses
called at the hearing.

(d) That subject to s.38(1)(a) of the NCSC
Act News Ltd. be permitted to call
evidence in reply.

(e) That subject to s.38(1)(a) of the NCSC
Act News or its legal representatives are
entitled to make submissions to the NCSC
concerning the subject matter of the
hearing before the NCSC makes any
findings covering News or exercises any
of its powers or functions referred to in
the notice of hearing and if the NCSC is
inclined to make or publish any finding
or decision prejudicial to or critical of
News, to afford News an opportunity to
comment further before doing so."

The Commission refused this application. It later gave written reasons which contain the following paragraphs:

"8. The Commission has already observed that the
hearing is held for the purpose of
investigating whether or not the
contraventions referred to in the notice of
hearing may have taken place. The hearing
will be held in private. Except to the extent
necessary to illustrate the reasons for its
conclusions, the evidence led during the
course of the hearing will not be published.
Thus, no rights (within the relevant meaning
of that term) will be affected by the hearing.
In those circumstances, the rules of natural
justice (which the Commission is bound to
observe) do not extend to require it to accord
to News any of the rights claimed by it above.
These rules require the Commission to act
fairly. This requirement will be satisfied if
each person called at the hearing is allowed
legal representation during his examination
and the right to be re-examined by his
representative if he so wishes, and, in the
circumstances of this case, if the
requirements set out in paragraphs 15 and 16
are fulfilled.

9. The Commission wishes to proceed with its
investigation and hearing as expeditiously as
the law permits and is of the view that if it
accedes to the application referred to in
(par.3(a) to (e) of the written summary
above), this aim may not be achieved.
Moreover, it cannot see any relevant benefits
flowing from the course proposed by Mr. Hely.

...

15. The Commission reiterates its statements made
on 19 April 1983 that if, at the conclusion of
the hearing, it proposes to publish any matter
adverse to or critical of any person, it will
afford him or it an opportunity to be heard
and call evidence on such matter before
proceeding further.

16. The Commission will also provide to each
witness a copy of the transcript of his
evidence."

5. The respondents then applied under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for a review of the Commission's decision. They sought orders which would give effect to the written summary which their counsel had placed before the Commission. The application came before a judge of the Federal Court (Lockhart J.) who dismissed it. The respondents then appealed to the Full Court of the Federal Court, which allowed the appeal, and, so far as is presently material, ordered as follows:

"3. The appellants and their legal representatives
be permitted to be present throughout the
hearing before the respondent.

4. Subject to paragraph 38(1)(a) of the National
Companies and Securities Commission Act 1979

(a) the appellants or their legal
representatives be permitted to
cross-examine witnesses called at the
hearing

(b) the appellants or their legal
representatives be permitted to call
evidence in reply prior to the conclusion
of the hearing

(c) the appellants or their legal
representatives be permitted to make
submissions to the respondent concerning
the subject matter of the hearing before
the respondent makes any findings
relating to the appellants."

6. There can be no doubt that the Commission is entitled to hold a hearing for the purpose of investigating whether there have been breaches of the Companies Act or of the Acquisition of Shares Act (which is incorporated with the Companies Act - see s.5(1) of the Acquisition of Shares Act). Section 36(1) of the NCSC Act provides:

"The Commission may hold hearings for the
purpose of the performance of any of its functions
or the exercise of any of its powers."

In Gibbs v. National Companies and Securities Commission (1982) QdR 328 it was held by Sheahan J. that the corresponding provisions of the legislation in force in Queensland did not empower the Commission to hold a hearing for the purpose of investigating whether there had been a breach of s.11 of the Acquisition of Shares Act and whether the Commission should accordingly institute legal proceedings. Section 16A was inserted in the Companies Act to overcome this decision. It provides:

"Where the Commission has reason to suspect
that a person has committed an offence under a
provision of this Act, the Commission may make such
investigation as the Commission thinks expedient
for the due administration of this Act."

It is now clear that when the Commission has reason to suspect that an offence against the Companies Act or the Acquisition of Shares Act has been committed it may hold a hearing for the purpose of making an investigation into the question whether such offence has been committed. Where a contravention of s.11 of the Acquisition of Shares Act or ss.137 and 138 of the Companies Act has occurred the Supreme Court may on the application of the Commission make orders under s.45(1) of the Acquisition of Shares Act and s.146(1) of the Companies Act respectively. It follows that such a hearing may be held for the further purpose of deciding whether the Commission should make an application under either of those sections.

7. There is equally no doubt that when the Commission does hold hearings for the purposes just mentioned it must observe the rules of natural justice - that is expressly provided by s.38(1)(d) of the NCSC Act. The question in the present case is whether, when the Commission suspects that a person has committed a contravention of the Companies Act, and holds a hearing to investigate whether such a contravention has occurred, and to decide whether, if a contravention has occurred, an application should be made to the Supreme Court, the rules of natural justice, or the very fact that what is held is a "hearing", oblige the Commission to permit the person suspected of having committed the contravention and his legal representatives to be present throughout the whole of the hearing and to cross-examine witnesses, give evidence in reply, and make submissions to the Commission before it makes any findings.

8. The powers, duties and immunities of the Commission in relation to a hearing are set out in Part VI of the NCSC Act. The provisions of sub-s.(1) of s.36 have already been quoted. Other subsections of s.36 to which it is necessary to refer are the following.

"(2) Subject to this section, where the Commission
is required or decides to hold a hearing, the
Commission may either direct that the hearing take
place in public or direct that the hearing take
place in private.

...

(5) Where the Commission directs that a hearing to
be held by it take place in private, the Commission
may give directions as to the persons who may be
present at the hearing.

(6) Where, at a hearing by the Commission that is
held in public, the Commission is satisfied that it
is desirable to do so by reason of the confidential
nature of any evidence or matter or for any other
reason, the Commission may -

(a) direct that the hearing or a part of the
hearing take place in private and give
directions as to the persons who may be
present; or

(b) give directions preventing or restricting
the publication of evidence given before
the Commission or of matters contained in
documents lodged with the Commission.

(7) Nothing in any direction given by the
Commission under sub-section (5) or paragraph
(6)(a) prevents the presence at a hearing of -

(a) a person who is entitled under an Act or
a State Act to be afforded the
opportunity to appear at that hearing;

(b) a person representing, pursuant to
sub-section 38(2), a person referred to
in paragraph (a); or

(c) a person representing, pursuant to
sub-section 38(2), a person who, by
reason of a direction given by the
Commission under sub-section (5) or
paragraph (6)(a), is entitled to be
present at the hearing.

...

(9) Where the Commission is required by an Act or
a State Act to afford a person an opportunity to
appear at a hearing before the Commission and to
make submissions and give evidence to the
Commission, the Commission shall appoint a date,
time and place for the hearing and cause notice in
writing of the date, time and place to be given to
the person.

(10) Where a person referred to in sub-section (9)
does not wish to appear before the Commission, he
may, before the date of the hearing, lodge with the
Commission in writing any submissions that he
wishes the Commission to take into account in
relation to the matter."

There is no Act, and of course in the present case no State Act, under which persons in the position of the respondents are entitled to be afforded an opportunity to appear at a hearing, so as to call for the application of s.36(7) and (9). Section 37 gives a member of the Commission power to summon witnesses to appear at a hearing, and gives the Commission power to take evidence on oath or affirmation. Section 38(1) and (2) provides as follows:

"(1) At a hearing before the Commission -

(a) the proceedings shall be conducted with
as little formality and technicality, and
with as much expedition, as the
requirements of any relevant Act or State
Act and a proper consideration of the
matters before the Commission permit;

(b) the Commission is not bound by the rules
of evidence;

(c) the Commission may, upon such conditions
as it thinks fit, permit a person to
intervene in the proceedings;

(d) the Commission shall observe the rules of
natural justice; and

(e) (irrelevant).

(2) At a hearing before the Commission -

(a) a natural person may appear in person or
may be represented by an employee of the
person approved by the Commission;

(b) a body corporate may be represented by an
employee, or by a director or other
officer, of the body corporate approved
by the Commission;

(c) an unincorporated association of persons
or a member of an unincorporated
association of persons may be represented
by a member or officer of the association
approved by the Commission; and

(d) any person may be represented by a
barrister or solicitor of the Supreme
Court of a State or Territory or of the
High Court."

9. Section 39 provides (inter alia) that a person summoned as a witness shall not without reasonable excuse fail to attend and that a person appearing as a witness shall not without reasonable excuse fail to take the oath or make an affirmation or answer questions and that a person shall not at a hearing give false or misleading evidence. Section 40 renders punishable what are in effect contempts of the Commission when holding a hearing, and makes punishable also "any other act that would, if the Commission were a court of record, constitute contempt of that court" (s.40(d)). Subsections (1) to (4) of s.41 provide as follows:

"(1) A member or an acting member has, in the
performance of his functions or the exercise of his
powers as a member or acting member in relation to
a hearing before the Commission, the same
protection and immunity as a Justice of the High
Court.

(2) A barrister, solicitor or other person
appearing on behalf of a person at a hearing before
the Commission has the same protection and immunity
as a barrister has in appearing for a party in
proceedings in the High Court.

(3) Subject to this Act, a person summoned to
attend or appearing before the Commission as a
witness has the same protection as a witness in
proceedings in the High Court.

(4) The Commission, a person appointed for the
purposes of this Act or of any other prescribed
Act, a member of the staff of the Commission or a
person authorized to perform or exercise any
function or power of the Commission or any function
or power on behalf of the Commission is not liable
to an action or other proceeding for damages for or
in relation to an act done or omitted to be done in
good faith in performance or purported performance
of any function, or in exercise or purported
exercise of any power, conferred or expressed to be
conferred by or under any Act or State Act."

By s.42 it is provided:

"A hearing before the Commission shall, for
the purposes of Part III of the Crimes Act 1914, be
deemed to be a judicial proceeding."

In consequence of this provision the offences of knowingly giving false testimony, fabricating evidence, intimidating, corrupting or deceiving witnesses or destroying evidence may be committed in relation to hearings held by the Commission.

10. On behalf of the respondents it was submitted that important consequences flow from the very fact that the proceeding held by the Commission is called a "hearing". The meaning of that word must of course depend on the context in which it is found. For the reasons I shall give, I consider that in Part VI of the NCSC Act the word "hearing" cannot be used in any technical sense; it cannot sensibly mean the trial of a cause, or the determination of a matter, or "a formal proceeding upon notice with adversary parties, and with issues on which evidence may be adduced by both parties and in which all have a right to be heard", to use the description given in In re Securities and Exchange Commission (1936) 84 F(2d) 316, at p 318.

11. Hearings may be held by the Commission for a variety of purposes. The Acts which fall for consideration in this case form part of a legislative scheme which, as the result of co-operation between the Commonwealth and the States, applies in all the States as well as in the Australian Capital Territory. The agreement by which the governments agreed to achieve uniformity, which is contained in the schedule to the NCSC Act, states, in cl.32(1):

"Subject to this agreement, the functions of
the National Commission to be established by the
Commonwealth Acts shall be to have and to exercise,
subject only to directions from time to time of the
Ministerial Council, responsibility for the entire
area of policy and administration with respect to
company law and the regulation of the securities
industry."

For the purpose of performing any of the functions so widely described, the Commission may hold a hearing. In some cases, as s.36(2) recognizes, the Commission is required to hold a hearing: for example, before refusing to register a person as auditor or liquidator (ss.18(8) and 20(10) of the Companies Act), before revoking a licence authorizing a company to omit "Limited" from its name (s.66(9) of the Companies Act), and, with certain exceptions, before refusing to grant, or revoking or suspending, or imposing or varying conditions or restrictions in respect of, a licence under the Securities Industry Act 1980 (Cth) (s.62(1) of that Act). Those are cases in which the exercise of power by the Commission may affect rights, but the Commission is not required to hold a hearing in every case when rights may be affected; in some such cases the Commission may, but need not, hold a hearing - see, for example, ss.65(3), 166(1) and 167(2) of the Companies Act and s.40 of the Securities Industry Act. In some cases where the Commission holds a hearing before making a decision that will directly affect rights, one might sensibly speak of an issue to be determined, although not of an issue between contending parties. Where, however, the Commission decides to hold a hearing for the purpose of investigating whether a person has committed an offence against the Companies Act, or for the purpose of deciding whether it should make application to the Supreme Court, there is no issue to be decided; the hearing is designed to discover facts which may or may not lead to further action being taken; no finding of fact or decision of law need be made; and the procedure is not an adversary one but inquisitorial. In the case of such hearings, which include the present, the word "hearing" has no significance other than to indicate that Part VI applies; the word is not used for the purpose of prescribing, implicitly, the procedure which the Commission must follow at a hearing or of indicating that persons who may be affected by a hearing have rights similar to those of parties at a trial. Its use is a convenient description of a procedure the incidents of which are described in Part VI of the NCSC Act.

12. It was further submitted on behalf of the respondents that the Commission had equated its proceedings at a hearing with those adopted by an inspector under Part VII of the Companies Act and was attempting to conduct a hearing as though it were a special investigation, or a series of private examinations, under Part VII but without the safeguards which that Part provides. An investigation permitted by Part VII may be into the affairs of a corporation (see ss.290, 291 of the Companies Act) - i.e., it may be much wider in scope than an investigation under s.16A. An application for an investigation under Part VII may be made, inter alia, by a prescribed number or proportion of members of the corporation, by a trustee for debenture holders, by the holders of debentures of sufficient value or by the corporation itself (s.290) or it may be instigated by ministerial direction (s.291). The investigation can be established, and its scope determined, only by the Minister or the Ministerial Council (ss.290-2), although the investigation will be carried out by the Commission or one of its inspectors (s.292). An inspector (which term for this purpose includes a member of the Commission - s.289(4)) may require an officer of a corporation whose affairs are being investigated to produce books and appear for examination and to answer questions (s.295(1)). An examination under s.295 is deemed to be a judicial proceeding for the purpose of Part III of the Crimes Act (s.295(4)). It is an offence, inter alia, to fail to comply with a requirement made under s.295 or to make a false or misleading statement when appearing before an inspector for examination under that section (s.296). An inspector may make a record of the questions asked and answers given at an examination (s.298(1)) and the examinee is entitled to a copy of the record (s.298(2)(b)). The Commission may give a copy of a written record of an examination to a legal practitioner who satisfies the Commission that he is acting for a person who is conducting, or is, in good faith, contemplating criminal or civil proceedings in respect of any matters into which the investigation has been or is being made (s.298(6)), and may, if it thinks fit, give a copy to any other person (s.298(8)). When a final report is made in respect of an investigation, any record of an examination shall be furnished with the report (s.298(10)). On completion of an investigation a report shall be made (s.305). Subject to certain exceptions, copies of the final report of the investigation shall be sent to the corporation, and (on request) to an applicant under s.290, and to each other person to whom in the opinion of the Commission the report ought to be given by reason that it relates to the affairs of that person to a material extent (s.306(1)-(4)). The report may be printed and published by the Minister or the Ministerial Council as the case may be (s.306(6)), but shall not be published where an Attorney-General certifies that its publication would be prejudicial to the administration of justice (s.306(7)).

13. It is apparent from these provisions that an investigation under Part VII of the Companies Act is quite different in its scope, nature and consequences from a hearing held under Part VI of the NCSC Act. The detailed provisions regarding the conduct of examinations for the purpose of an investigation under Part VII do not in my opinion throw any light on the manner in which a hearing under Part VI should be conducted. It is not possible to say that a hearing conducted in accordance with Part VI is forbidden because it happens to resemble in some respects an examination under Part VII. It is, however, in my opinion, not without significance that Part VII deals with the making and publication of a report of an investigation, whereas Part VI does not make any provision for the report of a hearing.

14. The manner of conducting a hearing, and the rights of persons possibly affected, must be gleaned from Part VI of the NCSC Act. As I have indicated, hearings may be held for a variety of purposes, and in the present case it is necessary to consider only the position of hearings held for the purposes of investigating whether a person has committed an offence and of deciding whether the Commission should accordingly make an application to the Supreme Court. In framing Part VI the legislators had to balance two conflicting considerations. On the one hand, the performance of the functions of the Commission, which include that of securing the observance of statutory provisions which are designed to promote the honesty, fairness and efficiency of the market in securities throughout Australia, may often require the Commission to conduct an investigation with great speed, in order to protect the public from dealings which may themselves be carried out swiftly and in secret. This need for expedition is expressly recognized in s.38(1)(a). On the other hand, the legitimate interests of those affected by a hearing should be given proper protection; this is to be achieved by the observance of the rules of natural justice.

15. In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at p 444, the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person." It is important to consider exactly what the Commission is empowered to do in a case such as the present. Counsel for the respondents relied on the fact that the Commission intends to publish its decision, with detailed reasons, and possibly with an account of some of the evidence which was given in private; indeed it was stated that the Commission might even announce a finding of guilt in a case in which criminal proceedings might possibly follow. The Commission has in fact, in two cases which were brought to our attention (those concerning Grace Bros. Holdings Ltd. and Murphyores Holdings Limited) published detailed reasons for its decision - it appears however that the Commission did not propose to take further action in either case and that the report in the Murphyores case at least was in fact the announcement of a compromise reached between the Commission and a company which the Commission had found had contravened the law.

16. In my opinion the Commission has misconceived the extent of its functions in thinking that the powers conferred by s.16A of the Companies Act and Part VI of the NCSC Act entitle it to publish a report of the result of its investigations under s.16A, or to make a finding or assertion that a person has contravened a provision of the Companies Act. The purpose of a hearing of the kind in question in the present case is simply to find out the facts and to enable the Commission to decide whether it should make application to the Supreme Court under s.45(1) of the Acquisition of Shares Act or s.146(1) of the Companies Act. For these purposes no report is necessary and none is contemplated by Part VI - here the contrast with Part VII of the Companies Act is important. Of course the Commission has the freedom of speech which any member of the community enjoys, but to say that it may exercise its right to speak is not to say that it is necessarily performing its functions under the Act in doing so, or that its words will necessarily be protected by s.41 of the NCSC Act if an action for defamation is brought in respect of them. It would be unnecessary and unwise to attempt to discuss, in the abstract, the sort of cases in which the Commission would or would not obtain the protection given by s.41. However, it would seem that where the Commission has held a hearing such as that in the present case, three typical situations may arise. First, the Commission may conclude that a contravention has occurred and it may decide to take action in the Supreme Court. In that case, speaking generally, the publication of a report by the Commission that in its opinion a contravention had occurred would not only be no part of its function, but might well be a contempt of the Supreme Court. Secondly, the Commission may conclude that no contravention had occurred. In that case ordinary fairness might require it to say so, and its statement might be regarded as made in the performance of its functions, although it probably would not in any case need the protection of s.41 for what was said. The third case is where the Commission reaches the conclusion that a contravention has occurred but is prepared to accept an undertaking that some remedial action will be taken by those who have committed the contravention. In such a case the Commission is in effect compromising the proceedings or proposed proceedings in the Supreme Court and it may be possible that as part of the compromise the alleged offender may agree to the publication of a report. The fact that it is normally no part of the Commission's function to publish a report on a hearing of the present kind does not mean that it is unable to perform an educative role, for example, by the publication of general guidelines or by private admonition.

17. The Full Court of the Federal Court accepted that the Commission might, as a result of its hearing, make a report adverse to the respondents and placed considerable weight on that circumstance in reaching its conclusion that the course proposed by the Commission did not satisfy the demands of natural justice. Although, as I have indicated, I do not agree that the publication of adverse findings, conclusions or evidence after a hearing such as the present is normally, and without more, one of the functions of the Commission, that does not in my opinion make a critical difference to the result. Let it be assumed that as a result of the hearing the reputation of the respondents may in some way be affected. The question would then be what natural justice requires when a hearing, publicly announced but held in private, is held only for the purpose of investigation, the hearing being one in the course of which no issue can be determined, and as a result of which no right, interest or legitimate expectation can be affected, although the reputation of the respondents may be damaged. That question has to be answered in the light of a statutory framework which expressly recognizes the need for expedition and gives the Commission power to decide who may attend and who may intervene at the hearing. If the Commission were to accord to all the persons whose reputation might possibly be affected by the hearing a right to cross-examine the witnesses and call evidence as though they were in a court of law, the hearing might become so protracted as to render it practically futile. In these circumstances, with all respect, I find it quite impossible to say that the rules of natural justice require the Commission to proceed as though it were conducting a trial. It seems to me in no way unfair that, at a hearing of the kind which I have described, the respondents should not be entitled to cross-examine such witnesses as the Commission may call, or to call evidence of their own. If proceedings are subsequently brought in the Supreme Court against the respondents, they will of course be able to test by cross examination the evidence adduced, and to call evidence themselves.

18. In argument before us, some reliance was placed on the recent decision in Mahon v. Air New Zealand Ltd. (1984) 50 ALR 193, where the Judicial Committee considered what the rules of natural justice required in the conduct of a Royal Commission and the making by the Commissioner of a report which reflected adversely on some of the persons named in it. Their Lordships said (at p.206) that the rules of natural justice that were germane to the appeal before them could be reduced to those two that were referred to by the Court of Appeal in Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456, at pp 488, 490, another case dealing with the exercise of an investigative jurisdiction. In that case, Diplock L.J. had described the two rules as follows, at p.488: "First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing." No consideration need now be given to the first of these requirements, since it is not suggested that the Commission will give a decision not based on evidence. As to the second rule, their Lordships in the Judicial Committee said (at pp.206, 207):

"The second rule is that he must listen fairly to
any relevant evidence conflicting with the finding
and any rational argument against the finding that
a person represented at the inquiry, whose
interests (including in that term career or
reputation) may be adversely affected by it, may
wish to place before him or would have so wished if
he had been aware of the risk of the finding being
made.

...

The second rule requires that any person
represented at the inquiry who will be adversely
affected by the decision to make the finding should
not be left in the dark as to the risk of the
finding being made and thus deprived of any
opportunity to adduce additional material of
probative value which, had it been placed before
the decision-maker, might have deterred him from
making the finding even though it cannot be
predicated that it would inevitably have had that
result."

These statements will not be applicable to a hearing before the Commission if, as I have held, it is normally no part of its function to make any findings or any report and if none are to be made in the present case. However, assuming their applicability, the requirement to which they refer is satisfied by the procedure which the Commission has suggested, namely, that if, at the conclusion of the hearing, the Commission proposes to publish any matter adverse to or critical of any person it will afford him or it an opportunity to be heard and call evidence on such matter before proceeding further. The learned judges who constituted the Full Court said that the right to call rebutting evidence and to make submissions after the Commission had formed its views in the absence of the accused fell well short of the rights ordinarily afforded to a person accused of a breach of the law. That is true but it is of no present significance; in the first place, there is in the true sense no accused, and secondly, the rules of natural justice do not require the Commission to treat the hearing as though it were a trial in a court of law. Their Honours went on to say that the procedure proposed by the Commission placed the respondents in the position of having to call evidence and make submissions in an endeavour to persuade the Commission to change its mind and reverse the conclusion arrived at on evidence which only the Commission had heard. They said: "Human experience teaches that such a course imposes a heavy burden. Minds which have reached conclusions, however tentative, may not be closed totally, but the task of prising them open will not be a light one." Whether the course proposed would place a heavy burden on the respondents depends of course on the circumstances. However, as common judicial experience shows, minds may remain open and impartial although they have given consideration to a matter and reached tenative conclusions upon it (cf., Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, at p 554); and it will be enough in the present case if the respondents are given a fair opportunity to correct or contradict any relevant material prejudicial to them (cf., Board of Education v. Rice (1911) AC 179, at p 182, and In re Pergamon Press Ltd. (1971) Ch 388, at pp 399-400 and 407). It is hardly likely that at the hearing the Commission will fail to call witnesses from the respondent companies, and since the Commission has indicated that such witnesses may be represented by counsel, who may re-examine them, the respondents' case will in all probability be made known to the Commission during the course of the hearing. Further, when the Commission said that it would give the respondents an opportunity to be heard, it must have meant a proper opportunity, and there is no reason to think that the Commission will not give to the respondents adequate notice of any adverse conclusion which it has tentatively reached, or of any criticism which it tentatively proposes to make, or that it will not listen with an open mind to whatever material is then put before it by the respondents and give full weight to such material. Having regard to the nature of the hearing, it seems to me that what the Commission has proposed is all that fairness requires.

19. I have already made it plain that the application of the rules of natural justice may vary from case to case even though the same power is being exercised. There may be cases in which fairness would require some of the procedures which the Full Court has prescribed in the present case to be observed at some hearings before the Commission. For the reasons I have given I do not think that the present is such a case.

20. There are one or two additional observations that need to be made. The mere presence of the respondents and their legal represenatives at the hearing might in itself not protract the proceedings. However the Commission is entitled to consider that a hearing may be frustrated if all the information at its disposal is prematurely disclosed. Whether or not that would be so in the present case is not the question, which is whether in all the circumstances it was unfair not to allow the respondents or their representatives to be present. As I have said, I consider that the course proposed was not unfair.

21. The Full Court appear to have thought that the position of the Commission would be sufficiently protected if the rights to cross-examine, call evidence and make submissions were made subject to s.38(1)(a). In my opinion, such a condition might itself well impede the conduct of the hearing by giving rise to repeated arguments as to the extent to which the condition limited the rights which the order conferred on the respondents. In any case, as I have indicated, the rules of natural justice did not require those rights to be conferred.

22. Before us, counsel for the respondents criticized the statement of the Commission that it could not see any relevant benefits flowing from the course proposed by the respondents. It was submitted that it was quite likely that the Commission would benefit from the assistance of counsel for the respondents in the cross examination of witnesses and the presentation of evidence, and that the Commission had misdirected itself. The Commission however was performing a balancing exercise. It was quite entitled to take the view that the course proposed by the respondents would not be more beneficial than that which the Commission itself intended to adopt. But even if it was wrong, that does not mean that the respondents were denied natural justice.

23. For these reasons the application to review the Commission's decision was rightly dismissed by Lockhart J. I would allow the appeal and restore the order made by Lockhart J.

MASON, WILSON and DAWSON JJ. This is an appeal by the National Companies and Securities Commission ("the Commission") from a unanimous decision of the Full Court of the Federal Court of Australia reversing a decision at first instance by Lockhart J. The proceedings were instituted in the Federal Court by the respondents (to whom it is convenient to refer collectively as "News Corporation") in the form of an application for judicial review both of a decision by the Commission and of conduct proposed to be taken by it. They were brought pursuant to ss. 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) as amended.

2. On 17 March 1983 the Commission gave notice of its intention to hold a hearing, pursuant to s. 36 of the National Companies and Securities Commission Act 1979 (Cth) as amended ("the NCSC Act"), for the purpose of investigating suspected offences by a number of companies including News Corporation of s. 11 of the Companies (Acquisition of Shares) Act 1980 (Cth) as amended and ss. 137 and 138 of the Companies Act 1981 (Cth) as amended ("the Companies Act"). The authority to investigate is conferred on the Commission by s. 16A of the Companies Act, which reads:

"Where the Commission has reason to suspect that a
person has committed an offence under a provision
of this Act, the Commission may make such
investigation as the Commission thinks expedient
for the due administration of this Act."

The expression "this Act" in this provision embraces all the legislation which has been enacted by the Commonwealth in accordance with the Agreement made on 22 December 1978 between the Commonwealth and the States ("the Agreement") with respect to the creation of a uniform national scheme governing companies and the securities industry. The Companies (Acquisition of Shares) Act is one such piece of legislation.

3. Section 36 of the NCSC Act, to which we have referred, provides in sub-s. (1) that the Commission may hold hearings "for the purpose of the performance of any of its functions or the exercise of any of its powers". It is plain that s. 36 and the succeeding sections, which together form Pt VI of the NCSC Act, confer on the Commission a general power which may be exercised in quite different circumstances. Some provisions contained in the legislative scheme require the Commission to hold a hearing (for example, Companies Act, ss. 18(8), 20(10)); others are entirely permissive. In the case of the former, the Commission is expressly required to afford the person in respect of whom the hearing is to be conducted an opportunity to appear at such hearing and to make submissions and give evidence in relation to the matter. Part VI of the NCSC Act confers specific rights upon persons who are entitled to be afforded the opportunity to appear at a hearing (ss. 36(3), 36(7)). At both hearings in the Federal Court, it was contended unsuccessfully for News Corporation that the Commission was not empowered to conduct an investigation in the form of a hearing pursuant to Pt VI. However, that submission is not pursued in this appeal.

4. When the Commission met for the hearing as notified, it announced that the proceedings would be held in private. News Corporation sought, inter alia, a number of directions as to the conduct of the hearing, namely:

"(a) That News and its legal representatives are
entitled to be present throughout the whole of
the hearing, or

(b) That News be permitted to intervene in the
proceedings constituted by the hearing.

(c) That subject to s. 38(1)(a) of the NCSC Act
that legal representatives of News be
permitted to cross examine witnesses called at
the hearing.

(d) That subject to s. 38(1)(a) of the NCSC Act
News Ltd. be permitted to call evidence in
reply.

(e) That subject to s. 38(1)(a) of the NCSC Act
News or its legal representatives are entitled
to make submissions to the NCSC concerning the
subject matter of the hearing before the NCSC
makes any findings covering News or exercises
any of its powers or functions referred to in
the notice of hearing and if the NCSC is
inclined to make or publish any finding or
decision prejudicial to or critical of News,
to afford News an opportunity to comment
further before doing so."

The Commission refused these requests, although it stated that:

"... if, at the conclusion of the hearing, it
proposes to publish any matter adverse to or
critical of any person, it will afford him or it an
opportunity to be heard and call evidence on such
matter before proceeding further."

5. At this stage News Corporation applied to the Federal Court for judicial review of the course which the Commission proposed to take. Lockhart J. dismissed the applications and an appeal was taken to the Full Court (Bowen C.J., Fisher and Sheppard JJ.). The appeal succeeded in part. Their Honours gave the following directions as to the conduct of the hearing:

"3. The appellants and their legal representatives
be permitted to be present throughout the
hearing before the respondent.

4. Subject to paragraph 38(1)(a) of the National
Companies and Securities Commission Act 1979

(a) the appellants or their legal
representatives be permitted to
cross-examine witnesses called at
the hearing

(b) the appellants or their legal
representatives be permitted to call
evidence in reply prior to the
conclusion of the hearing

(c) the appellants or their legal
representatives be permitted to make
submissions to the respondent
concerning the subject matter of the
hearing before the respondent makes
any findings relating to the
appellants."

So far as material, s. 38(1) of the NCSC Act provides as follows:

"38. (1) At a hearing before the Commission -

(a) the proceedings shall be conducted with
as little formality and technicality, and
with as much expedition, as the
requirements of any relevant Act or State
Act and a proper consideration of the
matters before the Commission permit;

(b) the Commission is not bound by the rules
of evidence;

(c) the Commission may, upon such conditions
as it thinks fit, permit a person to
intervene in the proceedings;

(d) the Commission shall observe the rules of
natural justice; ...

6. It is to be observed that the express declaration that the Commission shall observe the rules of natural justice at any hearing it may conduct relieves the Court from examining the Act in order to determine the intention of the legislature in that regard. It is such a task that has often been uppermost in many of the earlier decisions, both in this Court and elsewhere, which have been given in the exercise of judicial review of administrative decisions. However, although in the Act now under consideration the legislature has plainly resolved that question, it remains to consider what the rules of natural justice require in the particular circumstances of this case. In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 552-553, the whole Court said, in a joint judgment:

"But it must be borne in mind that these principles
are not to be found in a fixed body of rules
applicable inflexibly at all times and in all
circumstances. Tucker L.J. said in Russell v. Duke
of Norfolk (1949) 1 All ER 109, at p 118:

'The requirements of natural justice must
depend on the circumstances of the case,
the nature of the inquiry, the rules
under which the tribunal is acting, the
subject matter that is being dealt with,
and so forth.'

This passage was approved by the Privy Council in
University of Ceylon v. Fernando (1960) 1 WLR
223, and was used by Kitto J. in Mobil Oil
Australia Pty. Ltd v. Federal Commissioner of
Taxation [1963] HCA 41; (1963) 113 CLR 475, at p 504. There
his Honour observed:

'What the law requires in the discharge
of a quasi-judicial function is judicial
fairness ... What is fair in a given
situation depends upon the circumstances.'

We agree with the foregoing statements of the
relevant law."

The statement of Tucker L.J. has been adopted in many subsequent cases: cf. Wiseman v. Borneman (1971) AC 297; Furnell v. Whangarei High Schools Board (1973) AC 660, at p 679; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, at p 444.

7. A convenient starting point for consideration of the present problem is to examine the role and responsibility of the Commission. The Agreement outlines the objectives of the scheme in its Preamble, which reads, in part:

"WHEREAS -

(A) it is generally acknowledged in the interests
of the public and of persons and authorities
concerned with the administration of the laws
relating to -

(a) companies; and

(b) the regulation of the securities
industry,

that there should be uniformity both in those
laws and in their administration in the States
and Territories of Australia in order to
promote commercial certainty and bring about a
reduction in business costs and greater
efficiency of the capital markets and that the
confidence of investors in the securities
market should be maintained through suitable
provisions for investor protection;

(B) the Governments of the Commonwealth and of the
States of Australia are agreed that such
uniformity will be achieved by establishing
and implementing a co-operative scheme the
objectives of which are to ensure that -

(a) the legislation relating to the
scheme is, and continues to be,
uniform throughout Australia at all
times;

(b) the legislation is administered on a
uniform basis;

(c) the Commonwealth and the States are
able to co-operate with each other
in regard to the matters to be
provided in the legislation and the
way in which the legislation is
administered;

(d) the legislation is capable of
effective administration throughout
Australia with the minimum of
procedural requirements and is so
administered; and

(e) changes in the legislation are
proposed for consideration as
appropriate from time to time and
amendments made when the need for
reform arises;

...

(D) the essential element of the scheme is an
agreement between the Commonwealth and the
States to provide for the introduction of
legislation, the establishment and operation
of a Ministerial Council and of a National
Companies and Securities Commission and for
matters relating to the functioning of the
scheme as hereinafter appears; ..."

Clause 32 of the Agreement provides:

"(1) Subject to this agreement, the functions
of the National Commission to be established by the
Commonwealth Acts shall be to have and to exercise,
subject only to directions from time to time of the
Ministerial Council, responsibility for the entire
area of policy and administration with respect to
company law and the regulation of the securities
industry.

..."

The NCSC Act establishes the Commission and indicates that its functions and powers are those conferred upon it by any Act that is a law of a kind referred to in s. 122 of the Constitution (s. 6(1)). In addition it is to perform any functions and may exercise any powers conferred upon it by any State Act (s. 6(2)). Section 9 provides:

"9. The Commission shall perform its
functions and exercise its powers in accordance
with the Agreement and shall comply in all respects
with the provisions of the Agreement that are
applicable to it."

8. As we have said, the Federal Court rejected a submission by News Corporation that the Commission could not carry out an investigation pursuant to s. 16A of the Companies Act by way of a formal hearing such as is provided for by Pt VI of the NCSC Act. Its decision in that respect is not challenged. However, it is argued for News Corporation that the manner in which the Commission proposes to conduct the hearing is such as to deny it that character within the meaning of Pt VI. What is proposed is that the Commission will meet in private and call witnesses before it for examination. Each witness may be accompanied by a legal representative who may himself examine the witness. Each witness will be provided with a transcript of his evidence. The Commission believes that it may properly publish any views which may result from the hearing even if they are damaging to the reputation of any person; however, in that event it will afford to such a person an opportunity to rebut the Commission's views by evidence and submissions to the Commission before publication. In the submission of News Corporation such a proceeding is not a "hearing". It is a meeting of the Commission at which a number of private examinations are conducted. Part VI invests a hearing with important characteristics suggestive of judicial or quasi-judicial proceedings. It necessarily imports a procedure where the person whose interests are at stake is entitled to be heard. Such a person can only be heard if he or his representative is entitled to be present throughout the private examination of witnesses and is given the opportunity, subject to the demands of expedition in particular circumstances, of questioning them.

9. On the other hand, the Commission argues that a hearing pursuant to Pt VI will take its character from the nature of the purpose to be attained. In a case where a person's rights are involved and the Commission is required to hold a hearing then that person is entitled to be present throughout the hearing whether or not it be held in private. Indeed, in some circumstances such a person may request that the hearing take place in public and the Commission shall comply with that request (NCSC Act s. 36(3)). However, when a hearing is convened in order to carry out an investigation based on a mere suspicion, it takes on a different character. There is no charge, no person is accused and no person is in jeopardy of being affected in his legal rights. More specifically, there is no person who is entitled under an Act to be afforded the opportunity to appear at such a hearing.

10. In our opinion, the submission of News Corporation should not be accepted. Once it be acknowledged, as the Federal Court has found and is not now challenged, that the Commission may adopt the procedures of a hearing in accordance with Pt VI of the NCSC Act when pursuing an investigation, it follows that the form of the hearing and the requirements of natural justice in respect of it will reflect that purpose. It may still be described as a "hearing" notwithstanding that there are no parties to be heard. The persons who are summonsed to appear and testify will be heard. The word "hearing" is not used here as a term of art. It is used as an ordinary word which must take its meaning from its context in the Act. The Act authorizes the Commission to conduct an investigation by way of procedures which the Act refers to as a "hearing".

11. The primary thrust of the appeal rests in the Commission's challenge to the Federal Court's conclusions as to what natural justice requires in the circumstances of the case. It is said for the Commission that to permit News Corporation and their legal representatives to be present throughout the hearing would frustrate the investigatory purpose of the hearing. Furthermore, to permit News Corporation or their legal representatives to cross-examine witnesses called at the hearing and to call evidence in reply and make submissions concerning the subject matter of the hearing would run counter to the need in many cases for a hearing to be conducted with expedition. The Commission reminds the Court that the requirements of natural justice are to be determined in relation to an investigation into -

(a) the acquisition of shares in a particular
company by a number of other companies in
suspected contravention of s. 11 of the
Companies (Acquisition of Shares) Act; and

(b) the suspected failure of those companies to
give a notice in accordance with ss. 137 and
138 of the Companies Act

with a view to determining in the event that such contraventions have occurred whether it should apply to the Supreme Court for orders under s. 45(1) and s. 146(1) of the respective Acts. Those orders may encompass a wide range of restraints upon dealings in specified shares, including their disposition, registration of transfer and the exercise of any voting or other rights attached to them. These considerations emphasize the desirability of expedition in carrying out any necessary investigation. Prompt action may be imperative. At the same time, it should be noted that the Federal Court's orders with respect to the cross examination of witnesses, the calling of evidence in reply and the making of submissions are all conditioned by a recognition of the need for expedition. They are made subject to s. 38(1)(a) of the NCSC Act.

12. It is the Commission's case that the requirements of natural justice will be met by permitting each witness to be accompanied by a legal representative and provided with a transcript of his evidence with the corollary that in the event that it proposes to publish any views critical of News Corporation it will afford them an opportunity of rebutting those views by evidence and submissions before publication.

13. There is considerable force in the Commission's claim that to comply with the directions of the Federal Court would frustrate the purpose of the hearing. It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment. Having regard to the express statutory injunction of s. 38(1)(d) of the NCSC Act, it would clearly be a denial of natural justice if the Commission in the present hearing received evidence adverse to News Corporation without providing an opportunity to News Corporation to be heard. An effective examination of such persons would require that the substance of the adverse information received during the investigation be disclosed to them. Legal representation would be permitted to such witnesses with the opportunity for their further examination by counsel and for submissions to be made touching matters covered by the examination. There is no reason why the Commission should not welcome, time permitting, any request by News Corporation that further persons be called to give evidence. A hearing conducted along these lines, subject to what we have to say in a moment about the publication of the Commission's views, would in our opinion be fair in all the circumstances.

14. We have noted the proposal of the Commission that, at the conclusion of the hearing, if publication of any matter adverse to a person is likely it will afford that person an opportunity to be heard and call evidence on such matters before proceeding further. A similar procedure, although in different circumstances, met with the approval of the Court of Appeal in In re Pergamon Press Ltd. (1971) Ch 388. In that case, the inspectors appointed to investigate the affairs of the company were required to make a report to the Board of Trade. The Board was obliged to send a copy of the report to the company and was empowered, if it thought fit, to publish it to the public at large. It frequently did so. By way of contrast, the provisions of the NCSC Act dealing with hearings say nothing about publication of any report of a hearing. This is not surprising, because a hearing is a facility designed to serve a range of diverse functions. Publication may be appropriate in relation to some of those functions but not others.

15. The developing practice of the Commission in relation to the publication of its views following an investigation is in our opinion open to question. As has been seen, s. 36(1) of the NCSC Act authorizes the Commission to hold a hearing "for the purpose of the performance of any of its functions or the exercise of any of its powers". Those functions include, subject to directions from time to time of the Ministerial Council, "responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry" (the Agreement, cl. 32(1)). One can understand, in the light of such a responsbility, that it is an important task of the Commission to make known nationally matters of policy and administration. Particularly in these early years of the co-operative scheme there is a daunting educative role confronting the Commission. So much may be readily conceded. But where the purpose of undertaking an investigation by way of a hearing is to determine whether the Commission should make certain applications to the Supreme Court, and that hearing is conducted in private, the subsequent publication by the Commission of the evidence given in that hearing and of the Commission's views upon it may not be appropriate. Part VI of the Act, although dealing in detail with the subject of hearings, does not expressly authorize the Commission to publish a report of a hearing. Certainly, if the hearing is to be followed by an application to the Court then any prior publication would seem to be distinctly unwise if not positively unlawful. If the result of the hearing, whether or not followed by successful negotiations for a settlement of the matter, does not issue in any further proceedings, the desirable course of action is not so clear. Bearing in mind the fact that the Commission has published in conjunction with the notice of hearing a statement to the effect that it has reason to suspect that a number of companies may have contravened certain of the provisions of the legislation but that thereafter the hearing has proceeded in private, it would seem that fairness required some further statement either to the effect that the suspicion has not been substantiated or that the matter had been resolved to the satisfaction of the Commission as the case may be. In the latter case, the form and content of the publication would be likely to form part of the settlement.

16. On the other hand, a particular hearing may acquaint the Commission of practices which in the light of its responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry it believes strongly should be exposed and criticised with a view to the discouragement of others from the pursuit of those practices. But in that event the discouragement may have to be offered in the form of general guidelines which do not take the conduct of an identifiable person or company as an illustration of the type of conduct which is impugned.

17. In our opinion the Commission will comply with the statutory mandate to observe the rules of natural justice in the present case if it proceeds to allow each witness who is called to give evidence to be legally represented, with freedom for that representative to participate in the examination of the witness, and for the provision of a transcript of his evidence. The conduct of an investigation in such a manner is fair and nothing more is required.

18. We would allow the appeal and restore the order made by Lockhart J.

BRENNAN J. I have had the advantage of reading the reasons for judgment of the Chief Justice and I agree with them subject to a reservation. Once it is clear that it is no part of the Commission's function to publish adverse findings, conclusions or evidence after a hearing of the kind proposed in the present case, it is unnecessary to consider what the rules of natural justice might require if such a publication were one of its functions. For my part, I should prefer to reserve consideration of that question until an appropriate case arises. At the forefront of the factors for consideration at that time will be the statutory provision which creates that function. If a statute were enacted to authorize an administrative agency to publish matter reflecting adversely upon the reputation of a person after an inquiry into that person's conduct, the statute might be expected to specify the procedural protection which the agency would be required to accord to that person. When the limits of a statutory function are ascertained the interests which are apt to be affected by the performance of the function can be identified. Then it is possible for a court to say - in the absence of express statutory provision - what has to be done to be fair to those whose interests are apt to be affected by the performance of the function. The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice: see FAI Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 56 ALJR 388, at p 417; R v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at p 553.

2. In the present case, it should be presumed that the Commission will not exceed its functions. It should be presumed that the Commission will use its hearing power not to obtain material for publication, but to inform itself in the exercise of its power to institute criminal or civil proceedings. Had the Full Court felt at liberty to act on that presumption, it might not have set aside the order of Lockhart J. I agree that the appeal should be allowed and the order of Lockhart J. restored.

ORDER

Appeal allowed with costs.

Order that the orders of the Full Court of the Federal Court be set aside and in lieu thereof order that the appeal to that court be dismissed with costs.