Limits on the Commissioner’s power to demand information and documents

Update: 26 February 2009 For an interesting review of the authorities relating to similar statutory investigators’ powers and the implied limitations to be found in the relevant statutes, see A. B. Pty Limited v Australian Crime Commission [2009] FCA 119, a decision of the Federal Court’s Justice Flick.

Original post: Once a complaint form has been lodged by a complainant with the Legal Services Commissioner, she has decided that it constitutes a ‘complaint’ as defined, has heard the respondent lawyer on whether it should be summarily dismissed, and has decided against that course, the Commissioner may exercise any or all of her draconian powers under s. 4.4.11 of the Legal Profession Act, 2004. That provision is reproduced in full at the end of the post, but it says that by a written notice, the Commissioner may require a lawyer under investigation to provide a ‘full written explanation’ of his or her conduct, and ‘any other information or documents’, regardless of whether they are privileged or not. The privilege against self-incrimination is no answer to such a demand. The equivalent section under the Legal Practice Act, 1996 was s. 149, and the equivalent inquisitor the Legal Ombudsman, whose last incarnation was Kate Hamond [sic., despite the spelling of the case name].

In Power v Hammond [2006] VSCA 25, Justice of Appeal Chernov said:

‘[73] [It was] argued that the Ombudsman’s investigation of the [complaint] was conducted improperly. It is clear enough that [the Legal Ombudsman’s] power under the [Legal Practice Act, 1996] to conduct an investigation into the behaviour of a legal practitioner was a wide one. It included the power to require the practitioner the subject of investigation to provide to her “a full explanation of [his or her] … conduct and any other information or documentation” and to stipulate the form of the response. [footnote 66: See subss 149(1) and (2) of the Act.] Importantly, s 149(4) provided that the practitioner was not entitled to refuse to comply with the request on the ground that the provision of such material would involve a breach of confidence, legal professional privilege or might incriminate the practitioner, although subs (5) operated so as to make such material inadmissible against the practitioner for an offence other than one under the Act (and in respect of other specified offences).

[74] It is plain enough that such a wide power of investigation was given only for the purpose of enabling the Ombudsman to establish whether the practitioner’s impugned conduct was likely to be considered by the Tribunal to amount to misconduct [it is unclear why Chernov JA omitted reference to unsatisfactory conduct: SW] …. It is also clear that the power could not be exercised capriciously, but had to be exercised reasonably and fairly to all concerned, including the legal practitioner under investigation. [footnote 67: See, for example, the observations of Ormiston, Coldrey and O’Bryan JJ in Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 and 401; and Murray v Legal Services Commissioner (1999) 46 NSWLR 224 at 241 per Sheller JA with whom Priestley and Stein JJA agreed.] In particular, given that the practitioner served with such a request would have been compelled to respond to the Ombudsman’s demand, even if the response was against his or her interests, fairness required that the s 149 request contained [sic.] sufficient information to enable the practitioner to understand what was the alleged wrongful conduct in respect of which an “explanation” was sought and whether such conduct could constitute relevant misconduct. Without such information, the practitioner would not be able to make an informed decision as to what “explanation” was required or whether the Ombudsman had exceeded the power conferred on her by s 149. As Davies J observed in Bannerman v Mildura Fruit Juices Pty Ltd [footnote 68: (1984) 2 FCR 581 at 591], which was concerned with the validity of a notice issued under s 155(1) of the Trade Practices Act 1974 (Cth) that compelled its recipient to furnish information and produce documents relating to a matter the subject of investigation, such a:

“notice should give to its recipient sufficient information to enable the recipient to perceive what are the matters in respect of which the Commission requires information or documents, that those matters constitute contraventions or possible contraventions of the Act and that the information and documents sought are relevant thereto”.

It is true that, in a number of respects, the provision with which that court was concerned differed from s 149, but I think that the principle stated by Davies J applies to the present situation.’

Now, the full text of the current provision, as earlier promised:

‘.4.11. Practitioner, law practice and others to provide information and documents

(1) An investigating authority may require an Australian legal practitioner who is subject to an investigation under this Division to provide-

(a) a full written explanation of the practitioner’s conduct; and

(b) any other information or documents-

and to verify the explanation, information or documents by statutory declaration or another manner specified by the investigating authority.

(2) The power referred to in subsection (1)(b) is exercisable-

(a) at any time during the investigation; and

(b) so far as the power relates to the provision of documents-also at any time after the investigation but before the commencement of the hearing by the Tribunal of any charge resulting from the investigation.

(3) For the purpose of an investigation under this Division, an investigating authority may require any of the following to provide any information or documents and to verify the information or documents by statutory declaration or another manner specified by the investigating authority-

(a) a law practice of which the practitioner subject to the investigation is an associate;

(b) an associate of a law practice referred to in paragraph (a);

(c) an Australian legal practitioner who is not subject to investigation.

(4) For the purpose of an investigation under this Division, an investigating authority may require an ADI that, or an external examiner who, has any documents that may be relevant to the subject-matter of the investigation to provide those documents and to verify them by statutory declaration or another
manner specified by the investigating authority.

(5) A requirement under subsection (1), (3) or (4) must be in writing and must allow the person to whom, or body to which, it is given at least 14 days to comply.

(6) A person or body may not refuse to comply with subsection (1) or (3)-

(a) on the ground of any duty of confidence, including any duty of confidence owed by a law practice or legal practitioner to a client; or

(b) on the ground that the production of the record or giving of the information may tend to incriminate the person or body.

(7) If a natural person, before producing a document or giving an explanation or information, objects to the investigating authority on the ground that the production of the document or giving of the explanation or information may tend to incriminate the person, the document, explanation or information is inadmissible in evidence in any proceeding against the person for an offence,
other than-

(a) an offence against this Act; or

(b) any other offence in relation to the keeping of trust accounts or the receipt of trust money; or

(c) an offence against section 314(1) of the Crimes Act 1958 (perjury).

(8) An investigating authority may make copies of any document provided to the investigating authority under this section.

(9) In this section-

investigating authority means-

(a) the Commissioner, in relation to any investigation;

(b) a prescribed investigatory body, in relation to the investigation of a complaint referred to it under section 4.4.9.’

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