FEDERAL COURT OF AUSTRALIA

Esso Australia Resources Ltd v Sir Daryl Dawson [1999] FCA 363

CONSTITUTIONAL LAW – legal professional privilege – s 19D of the Evidence Act 1958 (Vic) abrogating privilege in proceedings before a royal commission – validity of s 19D – whether s 19D is inconsistent with s 118 and s 119 of the Evidence Act 1995 (Cth) or s 78 of the Judiciary Act 1903 (Cth) – whether s 19D is an impermissible interference with the judicial power of the Commonwealth or undermines confidence in the impartial administration of justice in courts exercising federal jurisdiction

Constitution of the Commonwealth of Australia: s 109

Evidence Act 1995 (Cth): s 118, s 119

Judiciary Act 1903 (Cth): s 78

Evidence Act 1958 (Vic): s 19D

Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth (1986) 161 CLR 88, cited

Baker v Campbell (1983) 153 CLR 52, referred to

Calcraft v Guest [1898] 1 QB 759, cited

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, cited

Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, referred to

Descoteaux v Mierzwinski and Attorney General (Quebec) [1982] 1 SCR 860, cited

Esso Australian Resources Ltd v Federal Commissioner of Taxation (1999) 159 ALR 664, applied

Fencott v Muller (1983) 152 CLR 570, cited

Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, cited

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, referred to

Leeth v The Commonwealth (1992) 174 CLR 455, cited

Liyanage v R [1967] 1 AC 259, cited

New South Wales v Canellis (1994) 181 CLR 309, cited

Nicholas v The Queen (1998) 151 ALR 312, applied

The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, cited

Western Australian v Ward (1997) 145 ALR 512, applied

Williamson v Ah On (1926) 39 CLR 95, cited

ESSO AUSTRALIA RESOURCES LTD, ESSO AUSTRALIA LTD v THE HONOURABLE SIR DARYL MICHAEL DAWSON AC KBE CB, BRIAN JOHN BROOKS & STATE OF VICTORIA

VG 733 OF 1998

JUDGES:       BLACK CJ, SUNDBERG & FINKELSTEIN JJ

DATE:            1 APRIL 1999

PLACE:          MELBOURNE

THE COURT ORDERS THAT:

1.      The case stated should be answered as follows:

      Q.        Is s 19D of Evidence Act 1958 (Vic) inconsistent with s 118 or s 119 of the Evidence Act 1995 (Cth) and accordingly invalid to the extent of the inconsistency? 

      A.        No.

      Q.        Is s 19D inconsistent with s 78 of the Judiciary Act 1903 (Cth) and accordingly invalid to the extent of the inconsistency?

A.                 No.

      Q.        Is s 19D a valid law of the Victorian Parliament?

      A.        Yes.

2.      The applicants pay the respondents’ costs of and incidental to this application.

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

REASONS FOR JUDGMENT

1                     Esso Australia Resources Limited (EARL) operates a plant at Longford where raw hydrocarbons extracted from fields in the Bass Strait are separated and processed.  Esso Australia Ltd (Esso) employs the workers engaged at the plant.  One of the commercial products that is produced at the plant is sales gas.  Most of this gas is sold to Gascor, a public authority established by s 13 of the Gas Industry Act 1994 (Vic), for resale to domestic and industrial consumers in Victoria.

2                     On 25 September 1998 an explosion and fire occurred at the Longford plant.  Two workers died and many others were injured.  The plant was extensively damaged and was shut down until 8 October 1998.  As a result, workers were stood down and the supply of sales gas was interrupted.

3                     Following the explosion and its aftermath, the Coroner for the State of Victoria commenced an investigation into the cause of death of the two workers and into the cause of the fire and the Victorian WorkCover Authority (a statutory authority established by
s 18 of the Accident Compensation Act 1985 (Vic)) began an inspection and examination of certain of the plant at Longford.  In the Federal Court, proceedings have been commenced on behalf of consumers of gas and stood down workers claiming damages as a result of the interruption to the supply of sales gas. 

4                     On 20 October 1998 a joint commission was issued to Sir Daryl Michael Dawson AC, KBE, CB and Brian John Brooks by the Governor in Council of the State of Victoria to enquire into certain matters arising in consequence of the explosion and fire.  The letters patent granted to the commissioners gave them “full power and authority to call … such person or persons as [they] shall judge likely to afford [them] any information upon the subject of [the] Commission, and to enquire of and concerning the premises by all other lawful ways and means whatsoever.”

5                     In Victoria, where a commission is issued by the Governor in Council, the president or chairman of the commission or the sole commissioner may summon any person to attend the commission and give evidence or produce any documents in his custody possession or control which is material to the subject matter of the enquiry:  see s 17 of the Evidence Act 1958 (Vic).  A failure to attend the commission without reasonable cause renders the person in default guilty of an offence and liable to a fine of $1,500 or imprisonment for three months:  see s 19 and s 20.

6                     By amendments to the Evidence Act 1958 (Vic) which came into force on 13 November 1998 (Act No. 80 of 1998) a person appearing before the commission to give evidence or to produce documents is denied the right to decline to answer questions or to produce documents on the ground that to do so would disclose a communication that was the subject of legal professional privilege.  The relevant section is s 19D which provides:

            “(1)     Despite anything to the contrary in this Division, if a person is required by a commission to answer a question or produce a document or thing, the person is not excused from complying with the requirement on the ground that the answer to the question would disclose, or the document contains, or the thing discloses, matter in respect of which the person could claim legal professional privilege.

            (2)        The commissioner may require the person to comply with the requirement at a hearing of the commission from which the public, or specified persons, are excluded in accordance with section 19B.”

Section 19B, which was also introduced by Act No. 80 of 1998, relevantly provides:

            “(1)     The commissioner presiding at a hearing of a commission may order the exclusion of the public or of persons specified by the commissioner from the hearing or a part of it if the commissioner is satisfied that the exclusion of the public, or of those persons, from the hearing or a part of it would facilitate the conduct of the inquiry by the commission or would otherwise be in the public interest.

            (2)        The commissioner presiding at a hearing of a commission may make an order prohibiting the publication of a report of the whole or any part of the proceedings of a hearing or part of a hearing to which an order under sub-section (1) applies or of any information derived from the hearing or part of it except by, or with the leave of, the commission.”

7                     EARL and Esso have retained solicitors and counsel to provide them with advice and legal representation in relation to the Coronial Inquiry, the WorkCover Authority investigation, the Federal Court proceedings and the Royal Commission.  They claim that as a consequence of those retainers confidential communications and documents have been brought into existence that are the subject of legal professional privilege. 

8                     The case that has been stated for the consideration of the Court raises the following questions.  Assuming that:

(a)        the communications and documents –

(i)         are communications or documents of the kind referred to in s 118 or s 119 of the Evidence Act 1995 (Cth);

(ii)        would be protected from disclosure at common law in the Federal Court proceedings; and

(b)        a person or persons will be required by the Royal Commission to answer a question or produce a document and the answer to the question or the production of the document would result in the disclosure of a communication or document that is subject to legal professional privilege –

(i)         Is s 19D of Evidence Act 1958 (Vic) inconsistent with s 118 or s 119 of the Evidence Act 1995 (Cth) and accordingly invalid to the extent of the inconsistency?

(ii)        Is s 19D inconsistent with s 78 of the Judiciary Act 1903 (Cth) and accordingly invalid to the extent of the inconsistency?

(iii)       Is s 19D a valid law of the Victorian Parliament?

We propose to answer these questions in reverse order. 

9                     EARL and Esso contend that the Victorian Parliament does not have power to enact s 19D.  There are two broad bases for this contention.  The first is that s 19D authorizes an impermissible interference with the judicial power of the Commonwealth.  The second is that the effect of s 19D is to undermine confidence in the impartial administration of the judicial function of courts exercising federal jurisdiction. 

10                  The Constitution provides for the judicial power of the Commonwealth to be vested in the High Court, in federal courts created by the Parliament and in such other courts as the Parliament invests with federal jurisdiction:  see s 71.  There is no exhaustive definition of what is meant by the judicial power of the Commonwealth.  In Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 Griffith CJ said it involved the power “to decide controversies between … subjects, or between [the Commonwealth] and its subjects.”  In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375 Kitto J said that it involved:

 “as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or those classes of persons.”

Thus the judicial power of the Commonwealth is concerned with the finding of facts, the application of the law to the facts so found and, where applicable, the exercise of judicial discretion, in the resolution of controversies:  Fencott v Muller (1983) 152 CLR 570 at 608.

11                  The Constitution is established on the doctrine of separation of powers.  One effect of this doctrine is that it is impermissible for a parliament, federal or state, to usurp the functions of a court exercising the judicial power of the Commonwealth.  Accordingly, if a parliament were to enact legislation the effect of which is to secure a particular result in a curial proceeding, the enactment would be struck down.  For example, in Liyanage v R [1967] 1 AC 259 the Privy Council considered legislation that the Parliament of Ceylon had passed to deal with the trial of persons arrested after an attempted coup d’état.  The legislation legalised their imprisonment while awaiting trial, made admissible their inadmissible statements, altered the law of evidence so as to facilitate their conviction and altered the punishment that could be imposed.  Thus it was held to be ultra vires.

12                  However “[i]t is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution”: Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth (1986) 161 CLR 88 at 96.  Parliament may also prescribe practices and procedures of the court, and it may lay down the rules of evidence to be applied in the determination of a controversy.  None of these matters impinge upon the judicial power:  Williamson v Ah On (1926) 39 CLR 95 at 122-123; Nicholas v The Queen (1998) 151 ALR 312.

13                  But there are limitations upon the Parliament’s power to affect the procedures to be applied in a court exercising federal jurisdiction.  In New South Wales v Canellis (1994) 181 CLR 309 the High Court said the principles of natural justice (or procedural fairness as it is now called) apply to the exercise of judicial power.  And in Leeth v The Commonwealth (1992) 174 CLR 455 at 470 Mason CJ, Dawson and McHugh JJ suggested that an attempt by Parliament to cause a court to act in a manner that is contrary to natural justice may be to impose a non-judicial requirement inconsistent with the exercise of judicial power.  In Nicholas, supra, Gaudron J went so far as to say (at 335-336):

“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in the manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to the facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of the guilt or innocence by means of a fair trial according to law.  It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”

Does then s 19D authorise an impermissible interference with the exercise of federal judicial power?

14                  Historically, legal professional privilege was justified as a vindication of the oath and honour of the lawyer.  But it came to be recognised that the privilege has a more solid foundation.  In the absence of the privilege a client would not freely consult with his lawyer.  He would not make a full and frank disclosure of the material facts upon which the lawyer’s advice is sought.  Thus it is said that one effect of the denial of the privilege could, some say that it would, greatly inhibit the professional advice and assistance given by a lawyer.  This inhibition would significantly undermine the proper functioning of the adversarial system of justice.  These considerations, among others, have led courts to accept that the privilege is not merely a rule of evidence but a basic principle of the common law: a principle that transcends the normally predominant principle that all rational means for ascertaining the truth should be employed in the curial process.

15                  In this connection there are two things to note about s 19D.  The first is that it does not purport to abolish legal professional privilege.  It is confined in its operation to testimonial compulsion and the production of documents at a Royal Commission.  The second is that if the power to require the disclosure of information can be exercised otherwise than at a hearing from which the public or a section of the public has been excluded, it can reasonably be expected that, at least usually, the power will be exercised on terms calculated to prevent general disclosure of the confidential material.  On one view, the effect of s 19D(2) is that a commissioner may only require the provision of privileged material at a closed hearing.  The Explanatory Memorandum that accompanied the Bill states:  “Section 19D provides that persons are not excused from providing evidence to a commissioner on the grounds of legal professional privilege.  However, if a person does refuse to provide the evidence on that basis, the commissioner may require the provision of the evidence at a closed hearing.”  This may be contrasted with what was said by the Treasurer, Mr Stockdale, when he moved that the Bill be read a second time, namely that s 19D(2) “confers a discretion on the commissioners to restrict access to a hearing in circumstances where legal professional privilege is claimed”.  If this view of the construction of s 19D(2) is correct, it is likely that a commissioner would usually exercise the discretion in order to prevent the public dissemination of privileged material.

16                  This is not to suggest that privileged material that comes into the possession of a Royal Commission will remain private for all time.  Royal Commissioners are required to furnish a report to the Executive.  In the case of Sir Daryl Dawson and Mr Brooks their report, which must be furnished by 30 June 1999, might make reference to privileged material and it is possible, perhaps even likely, that the report will be tabled in Parliament.  It is the practice of the Executive not to make public any part of a report that might be prejudicial to pending or contemplated legal proceedings.  However, there is no such practice, nor could there be, in relation to litigation that is not foreseen. 

17                  But if the privileged material is in fact made public, it does not thereby become capable of being tendered in evidence in all courts exercising federal jurisdiction.  The admissibility of evidence in proceedings in the High Court, the Federal Court and in courts of the Australian Capital Territory is governed by the Evidence Act 1995 (Cth).  Legal professional privilege, or client legal privilege as the privilege is referred to in that Act, is dealt with in Part 3.10.  By s 118 and s 119 evidence is not to be adduced if it would result in the disclosure of a “confidential communication” between a client and his lawyer or a “confidential document” prepared by a client or his lawyer, for the dominant purpose of providing legal advice.  A “confidential communication” is defined as a communication made in such circumstances that, when it was made, the parties to the communication were under an obligation, whether express or implied, not to disclose its contents: s 117.  A “confidential document” is defined as a document prepared in such circumstances that, when it was prepared, the person who prepared it or the person for whom it was prepared was under an obligation, whether express or implied, not to disclose its contents:  s 117.  These definitions look to the circumstances in which a communication was made or a document was prepared to establish its confidentiality.

18                  The privilege established by s 118 and s 119 is not absolute.  It will not be available in a variety of circumstances:  see generally s 121 to s 126.  For example, the privilege will be lost if the client knowingly and voluntarily discloses the substance of a confidential communication or a confidential document (s 122(2)) or has expressly or impliedly consented to its disclosure (s 122(4)).  However, where the disclosure of privileged material is made under compulsion of law, the privilege will not be lost (see s 122(2)(c)).  There can be no doubt that where privileged information is disclosed by reason of s 19D, that is a disclosure made under compulsion of law.  Moreover, s 122(2) contemplates that a communication that has ceased to be “confidential” in a popular sense, because it has been “disclosed”, nevertheless retains its character as a confidential communication for the purpose of Part 3.10.

19                  The position may be different in the case of state courts exercising federal jurisdiction.  Under the common law, where a person has obtained possession of a document that contains privileged material, the document is receivable in evidence even though the document may have been wrongly or even unlawfully obtained:  see Calcraft v Guest [1898] 1 QB 759; Descoteaux v Mierzwinski and Attorney General (Quebec) [1982] 1 SCR 860 at 876.  The same will be true where a person has overheard a confidential communication that was not intended to be heard.

20                  In reality, however, it is but mere speculation that the passage of s 19D will deter a client from making a full and frank disclosure to his lawyer in the course of obtaining legal advice.  In Victoria, Royal Commissions are few and far between.  Legal proceedings arising from facts disclosed during the course of a commission are not common.  It will only be in an exceptional case that a person called before a commission to give evidence will run the risk of having privileged material that may be required to be produced at a hearing used against him in a court exercising the judicial power of the Commonwealth.  So exceptional is the position, that the suggestion that s 19D will inhibit full and free communications between a lawyer and his client, so as to interfere with that exercise, must be rejected.

21                  There is, in any event, an insuperable difficulty with respect to EARL’s and Esso’s argument.  The High Court has said on numerous occasions that legal professional privilege is a right that is fundamental to the administration of justice: see for example Baker v Campbell (1983) 153 CLR 52 at 126; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 348; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 582‑583.  But in these very cases the Court has said that it is competent for a Parliament to abrogate or abolish legal professional privilege.  As Dawson J said in both Baker and Yuill, the public interest which underlies legal professional privilege may yield to a more important public interest requiring the disclosure of information: see Yuill, supra at 332; Baker supra at 131.  See also Propend at 567.  For the same reason, EARL’s and Esso’s submissions that the legislation produces a result that is incompatible with the exercise of the judicial power of the Commonwealth, and is obnoxious to the separation of powers required by Chapter III, cannot be accepted.

22                  It is true that the cases to which we have referred were concerned with the loss of legal professional privilege in the context of executive enquiries.  It is also true that the statements made by the members of the High Court were made without the constitutional validity of the abrogation of the privilege being adverted to or even raised in argument.  Nevertheless, it is not to be supposed that the High Court was unmindful of a possible argument that the abrogation of the privilege during the course of an executive enquiry would interfere with the judicial power of the Commonwealth.  We take the High Court’s silence on this point as an indication that such an argument has no merit.

23                  It is interesting to note that in the United States it has been said that the removal of the privilege would be limited by the applicable constitutional guarantees:  see e.g. United States v Euge (1980) 444 US 707 at 712, footnote 5.  The relevant guarantees would seem to be the 5th Amendment (the right to due process in criminal proceedings), the 6th Amendment (the right to assistance of counsel in criminal proceedings) and, perhaps, the 14th Amendment (due process in civil cases):  see also J A Hornstein “Paying the ‘Traditional Price’ of Disclosure” (1993) 71 Washington University Law Quarterly 467. 

24                  There are decisions in which courts in the United States have struck down legislation that has purported to abrogate the privilege:  see e.g. Times Publishing Company v Williams (1969) 222 So 2d 470, a decision of the Court of Appeals of Florida, and Dunn v Alabama State University Board of Trustees (1993) 628 So 2d 519, a decision of the Supreme Court of Alabama.  These cases proceeded on the basis that the legislature did not have authority to interfere with or impair the privilege, not because the privilege was absolute and incapable of abrogation, but because an attorney is subject to judicial and not legislative control.  That is to say, the doctrine of separation of powers (a doctrine that is applicable in the states that decided these cases) placed the maintenance or abrogation of the privilege under the control of the courts and not of the legislature.  That is not the position in this country.

25                  The second basis upon which the validity of s 19D is challenged is that it has a tendency to undermine public confidence in the administration of justice in courts exercising federal jurisdiction.  Reliance was placed upon Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.  The extraordinary facts of that case are as follows.  Gregory Kable had been convicted of manslaughter and sentenced to a term of imprisonment.  Before his release the New South Wales Parliament enacted the Community Protection Act 1994 (NSW).  That Act authorised the Supreme Court to make an order for the detention of Kable if satisfied that he was likely to commit a serious crime of violence and that it was appropriate that he be held in custody.  The Act was passed for the purpose of ensuring that Kable was kept in prison.  The High Court held that the Act was invalid by reason of its incompatibility with Chapter III of the Constitution, on the ground that the exercise of jurisdiction under the Act was incompatible with the integrity, independence and impartiality of the Supreme Court of New South Wales, a court which exercises the judicial power of the Commonwealth.  The ground of invalidity was that the Act made a mockery of the judicial process and undermined public confidence in the Supreme Court.  McHugh J said (at 124):

            “At the time of its enactment, ordinary reasonable members of the public might reasonably have seen the [Community Protection] Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law.  Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy.  That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired.  The Act therefore infringed Ch III of the Constitution and was and is invalid.”

Gummow J said (at 134):

            “The Act is an extraordinary piece of legislation.  The making thereunder of ‘detention orders’ by the Supreme Court in the exercise of what the statute purports to classify as an augmentation of its ordinary jurisdiction, to the public mind, and in particular to those to be tried before the Supreme Court for offences against one or other or both of the State and federal criminal law, is calculated to have a deleterious effect.  This is that the political and policy decisions to which the Act seeks to give effect, involving the incarceration of a citizen by court order but not as punishment for a finding of criminal conduct, have been ratified by the reputation and authority of the Australian judiciary.  The judiciary is apt to be seen but as an arm of the executive which implements the will of the legislature.  Thereby a perception is created which trenches upon the appearance of institutional impartiality to which I have referred.”

26                  Legal professional privilege has long been the subject of controversy.  It operates to exclude evidence not because of its unreliability but to advance other objectives.  Jeremy Bentham regarded the exclusion of probative evidence as “one of the most pernicious and most irrational notions that ever found its way into the human mind”: Rationale of Judicial Evidence (J S Mill ed) (1827) at 193-194.  But the judgment of the common law has been that while the central objective of the legal system is the search for truth, it is more important that some communications be kept secret.  In the case of legal professional privilege, secrecy is defended on the basis that it will promote the administration of justice.  “The systemic benefits of the privilege are commonly understood to outweigh the harm caused by excluding critical evidence”: Swidler v United States (1998) 141 L ed 2d 379 at 389 per O’Connor J (in dissent).

27                  In our view s 19D will not result in any loss of confidence in the administration of justice in courts exercising federal jurisdiction.  First, as we have pointed out, it is by no means clear that privileged material will ever find its way into evidence in such courts other than in limited circumstances.  Second, the public may well accept the view that the public good will be better served if Royal Commissions are able to conduct their enquiries on behalf of the executive government for a purpose of government by having access to as much relevant evidence as possible.  The public may also accept the view that if this results in some marginally adverse effect on the functioning of our adversary system (which in any case may be doubted) it will be seen as serving a greater public good.  Third, there will be many informed members of the public who believe that the common law still places too many restrictions on the ability of courts to exercise their constitutional function of deciding cases in accordance with the truth, the whole truth and nothing but the truth.  Those members of the public may consider that the benefits obtained from the maintenance of legal professional privilege do not always outweigh the harm caused by the exclusion of relevant evidence. 

28                  Next, EARL and Esso rely upon on s 78 of the Judiciary Act as conferring a right to legal representation which, to be effective, implicitly includes the right to privately consult with legal advisers.  That is, so the argument goes, s 78 recognises and endorses legal professional privilege and s 109 of the Constitution prevents state parliaments from enacting legislation that will cut down the privilege.

29                  In the United States the 6th Amendment guarantees to an accused person the right to have the assistance of counsel.  Under the common law as developed in England a person charged with a felony did not have the right to counsel although counsel was allowed to argue points of law.  The recognition of the harshness of this rule led to the ratification of the 6th Amendment.  Contemporaneously Congress enacted s 35 of the Judiciary Act 1789 (US) which provided that in federal courts parties could manage and plead their own causes personally or by the assistance of counsel as provided by the rules of the court.  This indicated that the then prevailing view was that the guarantee was limited to ensuring that a person wanting and able to afford counsel would not be denied that right:  see Constitution of the United States of America – Analysis and Interpretation at 1430.  Since the 1930s the Supreme Court has expanded the scope of the clause so that an accused person has a right to counsel (Giddeon v Wainwright (1963) 372 US 335), and must be given a reasonable opportunity to retain counsel (Chandler v Fretag (1954) 348 US 3).  Further, the assistance of counsel must be effective, and any imposition of restrictions that would impede effective representation would be rendered invalid by the 6th Amendment.  The due process clause, the 14th Amendment, which applies to states, has been held to incorporate the right to counsel given by the 6th Amendment:   see Giddeon, supra.

30                  Section 78 is derived from s 747 of the US Revised Statutes, the successor to s 35 of the Judiciary Act 1789:  see now 28 USCA s 1654.  It has been held that 28 USCA s 1654 was enacted to enforce the 6th Amendment’s guarantee of the right to counsel:  see Turner v American Bar Association (1975) 407 F Supp 451 at 477.  We do not regard s 78 as having a similar operation.  The provision should be regarded as one that is confined to the right of audience in courts exercising federal jurisdiction:  Western Australian v Ward (1997) 145 ALR 512 at 521 per Hill and Sundberg JJ.

31                  Immediately before federation, each colony had a system for the admission to practice of barristers and solicitors, and admission to practice in one jurisdiction did not confer a right of practice in another.  Upon federation, a federal judicial structure was created with the High Court at its apex.  The Constitution contemplated the creation of other federal courts and the conferral of the judicial power of the Commonwealth upon state courts:  see s 71 and s 77 of the Constitution.  It was therefore necessary to make provision for the right of audience before federal courts as well as before state courts exercising federal jurisdiction. 

32                  Section 49(1) of the Judiciary Act dealt with the right of practitioners to appear in federal courts.  It provided that “any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practise in any federal Court”: see now s 55A and s 55B.  It had been proposed to extend s 49(1) so as to entitle a person to practise as a barrister or solicitor in any court exercising federal jurisdiction.  The proposal was rejected because there was doubt as the constitutional authority of Parliament to authorise a legal practitioner admitted in one state to practise in the courts of another state: see Quick & Groom, The Judicial Power of the Commonwealth (1904) at 186‑187.

33                  Section 78 dealt with all courts exercising federal jurisdiction (ie federal courts and State courts exercising federal jurisdiction).  In its original form it provided:

            “In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.”

34                  Plainly this was merely a procedural provision relating to appearance or representation in courts exercising federal jurisdiction.  While it is unlikely that s 78 conferred a right that otherwise did not exist, no doubt it was thought appropriate to make express provision that parties who did not wish to appear in person could be represented by barristers or solicitors who are entitled to practise in federal courts or other courts exercising federal jurisdiction: see Western Australia v Ward at 526.  Thus we agree with the submissions made on behalf of the State of Victoria that the substantive content of legal professional privilege must be found either in the common law, some express statutory provision, or in the Constitution, and that it is not to be found in s 78.

35                  Finally, EARL and Esso contend that s 19D is inconsistent with s 118 and s 119 of the Evidence Act (Cth) and that, by reason of s 109 of the Constitution, s 19D is invalid in consequence of that inconsistency.  The argument is based on the premise that s 118 and
s 119 confer a right or benefit which the state law purports to impair:  see Victoria v The Commonwealth (1937) 58 CLR 618 at 630.  The relevant right is described as a right to claim legal professional privilege unfettered by state law. 

36                  In Esso Australian Resources Ltd v Federal Commissioner of Taxation (1999) 159 ALR 664 a majority of the Full Court held that s 118 and s 119 are confined in their operation to evidence that may be adduced in a “federal court” (as defined) or an “ACT court” (as defined).  The Full Court also held that these sections do not apply to other evidence gathering processes in a “federal court” or “ACT court” such as the process of obtaining discovery of documents.  More importantly, the Full Court held that the sections did not bring about any alteration to the common law;  they merely regulated proceedings in the courts to which the sections apply by rendering certain evidence inadmissible:  see also s 134 of the Evidence Act 1995 (Cth). 

37                  Section 109 will render invalid state laws in a variety of circumstances:  where it is not possible to obey both state and federal law; where the federal law intends to make exhaustive or exclusive provision upon a topic; and where, although not attempting to cover the field, the federal law is directly inconsistent with state law. 

38                  Whatever type of inconsistency is to be considered, there is no inconsistency between s 118 and s 119 on the one hand and s 19D on the other.  In particular, s 19D does not in any way vary, detract from or impair the operation of these sections.  It could hardly do so.  Section 19D is only concerned with the provision of information to a Royal Commission.  It does not, and it does not purport to, deal with the adducing of evidence in a “federal court” or an “ACT court”.  Moreover, as we have sought to demonstrate, the production of documents or the provision of information to a Royal Commission will not render those documents or that information admissible in a “federal court” or in an “ACT court”.  That is to say, the admissibility of evidence in those courts is wholly unaffected by s 19D and the consequences of the application of that section to the production of information to Royal Commissioners. 

39                  It follows that the answers to the questions in the case stated should be as follows:

            Q.        Is s 19D of Evidence Act 1958 (Vic) inconsistent with s 118 or s 119 of the Evidence Act 1995 (Cth) and accordingly invalid to the extent of the inconsistency?

            A.        No.

            Q.        Is s 19D inconsistent with s 78 of the Judiciary Act 1903 (Cth) and accordingly invalid to the extent of the inconsistency? 

            A.        No.

            Q.        Is s 19D a valid law of the Victorian Parliament?

            A.        Yes.

40                  The applicants should pay the respondents’ costs of and incidental to this application.

Associate:

Dated:              1 April 1999