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The Wilson legal professional privilege claim and the Royal Commission's powers in Victoria

“On 15 April 2014, the Governor of Victoria, His Excellency the Honourable Alex Chernov AC QC, issued Letters Patent establishing a Royal Commission into Trade Union Governance and Corruption in the state of Victoria and formally appointed the Commissioner The Honourable John Dyson Heydon AC QC to conduct the Inquiry.”

Here is the Explanatory Memorandum that introduces the act about legal professional privilege and commissions of enquiry in Victoria.

Crimes, Confiscation and Evidence Acts

(Amendment) Bill

EXPLANATORY MEMORANDUM

1998

 

These amendments are deemed to operate from 1 July 1998.

PART 4-EVIDENCE ACT 1958

Clause 6 inserts new sections 19A to 19E into Division 5 of Part I of the

Evidence Act 1958. These sections provide additional powers

to commissions established by the Governor in Council. They

are deemed to have come into operation on 20 October 1998.

Section 19A provides that, in relation to commissions,

references in Division 5 of Part I to a "document" includes a

reference to a thing. The provisions of Division 5 are also

applied to coroners, the WorkCover Authority and various other

statutory authorities, agencies and office holders, with the effect

that no other statute or law can restrict or prevent these bodies or

persons from complying with their obligations under Division 5.

Section 19B allows the presiding commissioner to exclude the

public or specified persons from a hearing, where this will

facilitate the conduct of the inquiry or is in the public interest.

The commissioner may also prohibit publication of reports of

proceedings or information gained from the hearing. Orders

prohibiting publication must be conspicuously displayed and a

breach of such an order attracts a penalty of 30 penalty units or

3 months imprisonment.

Section 19C provides that persons providing evidence to a

commissioner may not refuse to do so on grounds of the

privilege against self-incrimination. However, such evidence

will not be admissible against the person in any criminal

proceedings other than for perjury or giving false information.

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.

Section 19E confers on the commissioners of a commission

powers to enter and inspect any place and to take possession of

documents and things located there and to copy documents.

A commissioner may also provide written authorisation to a

member of the police force to carry out these functions, subject

to various time limits being imposed. A commissioner may then

release documents or things taken into his or her possession and

may require an undertaking from the person to whom they are

being released. Failure to comply with an undertaking attracts a

penalty of 10 penalty units.

In his capacity as a Commissioner under Victorian Law The Honourable Mr John Dyson Heydon AC QC has the powers set out in:

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

These provisions are all contained in Division 5.

 

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 - SECT 14

Power to send for persons and papers

It shall be lawful for any board appointed or to be appointed by the Governor in Council to summon by writing under the hand of the chairman or sole member thereof (as the case may be) any person whose evidence in the judgment of the said board or of any member thereof is material to the subject-matter of inquiry to be made by such board to attend the said board at such place and at such reasonable time from the date of such summons as is therein specified; and such person may be required by such summons to bring before such board any documents in his custody possession or control material to the subject-matter of inquiry. Such summons may be served either by delivering the same to the person required to attend or by leaving the same at his usual place of abode.

 

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 - SECT 17

Power to send for witnesses and documents

    (1)     Where a commission has been heretofore or is hereafter issued by the Governor in Council to any persons to make any inquiry the president or chairman of the commission or the sole commissioner (as the case may be) may by writing under his hand summon any person to attend the commission at a time and place named in the summons, and then and there to give evidence or to produce any document in his custody possession or control material to the subject-matter of inquiry or to give evidence and produce any such document: Provided that no person shall be compelled to answer any question or to produce any document that he would not be compellable to answer or produce at the trial of an action in the Supreme Court. Such summons may be served by delivering the same to the person required to attend or by leaving the same at his usual place of abode.

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 - SECT 19A

Application of Division

    (1)     This Division applies in relation to a commission as if a reference in this Division to a document included a reference to a thing.

    (2)     Nothing in any Act or law prevents the application of this Division for the purposes of a commission to and in relation to—

        (a)     a person who is—

S. 19A(2)(a)(i) amended by No. 77/2008 s. 129(Sch. 2 item 9.2).

              (i)     a coroner;

              (ii)     the Victorian WorkCover Authority or a member of its Board of Management;

              (iii)     any other public statutory authority or a member of the board of management (by whatever named called) of such an authority;

              (iv)     the Director of Public Prosecutions;

              (v)     a member of the police force;

              (vi)     the holder of an office established by or under an Act;

        (b)     any information, document or thing obtained by or in the possession or control of any such person;

        (c)     the disclosure or production to the commission of any such information, document or thing.

 

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 - SECT 19D

Legal professional privilege

    (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.

 

The Registrar or Prothonotary is an office established under an act

SUPREME COURT ACT 1986 - SECT 106

Power to employ chief executive officer, prothonotary etc.

For the purposes of this Act and to assist in the administration of justice in Victoria there are to be employed under Part 3 of the Public Administration Act 2004

S. 106(a) amended by Nos 46/1998
s. 7(Sch.1), 9/2009 s. 58(1).

        (a)     a chief executive officer, a prothonotary and a registrar of probates and such other employees as are necessary; and

S. 106(ab) inserted by No. 24/2008 s. 37.

        (ab)     registrars, deputy registrars and any other employees that are necessary for the effective operation of the Court generally; and

S. 106(ac) inserted by No. 78/2008 s. 8.

        (ac)     such costs registrars, deputy costs registrars and other officers as are necessary for the effective operation of the Costs Court; and

S. 106(b) amended by No. 9/2009 s. 58(2).

        (b)     as many deputy prothonotaries and assistant registrars of probates as are required to assist in the administration of j

It appears to be the Prothonotary who has possession and it is him who has obtained the relevant documents.

 

SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2005 - REG 28.01

How document filed

    (1)     Subject to paragraph (2), a document in a proceeding is filed by filing it—

        (a)     in the office of the Prothonotary or, where a proceeding is commenced in an office of the Court outside Melbourne, in that office; or

        (b)     with the proper officer in court.

 

SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2005 - REG 42.13

Documents and things in the custody of a court

    (1)     A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Prothonotary in writing accordingly, identifying the document or thing.

    (2)     If the document or thing is in the custody of the Court, the Prothonotary shall produce the document or thing

        (a)     in Court or to any person authorised to take evidence in the proceeding, as required by the party; or

        (b)     as the Court directs.

    (3)     If the document or thing is in the custody of another court, the Prothonotary shall, unless the Court has otherwiseordered

        (a)     request the other court to send the document or thing to the Prothonotary; and

        (b)     after receiving it, produce the document or thing

              (i)     in Court or to any person authorised to take evidence in the proceeding as required by the party; or

              (ii)     as the Court directs.

 

The end result is that the Victorian Legislation seems to provide the Commission with the power to obtain the documents which are the subject of the LPP appeal by Wilson.

It may suppress publication until Wilsons appeal is heard but there doesn’t appear to be anything preventing the use of this information irrespective of the result in Wilson’s case.

In relation to the Commission's powers under the Commonwealth Act I wanted to make the point that it is recognised that that Act can affect the operations of State Supreme Courts.

The obvious example of this is S6DD relating to the admissibility of Witness statements.

It would appear to be open to find that the LPP provisions which are intended for use solely for the purposes of the RC could have a similar effect.

 

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