Attorney General for New South Wales v Melco Resorts & Entertainment Limited

1. [1]

   THE COURT: On 14 August 2019, pursuant to s 143 of the Casino Control Act 1992 (NSW) (CC Act), the Independent Liquor and Gaming Authority (the Authority) appointed the Hon. P A Bergin SC (Ms Bergin) to preside over an inquiry into a range of matters concerning the Crown Casino and its licensee, Crown Sydney Gaming Pty Limited (the Licensee), a wholly owned subsidiary of Crown Resorts Limited (Crown Resorts). The immediate catalyst for the inquiry was a share sale agreement between Melco Resorts & Entertainment Limited (Melco) and CPH Crown Holdings Pty Ltd (CPH) by which CPH would dispose of approximately 9.99% of shares in Crown Resorts to Melco or its nominee, MCO (KittyHawk) Investments Limited.

2. [2]

   Amongst other matters, Ms Bergin was requested to inquire into and report upon:

3. [3]

   Ms Bergin was directed to hold hearings in public unless she was satisfied that it was convenient to conduct hearings in private and then to report to the Authority in writing as soon as reasonably practicable.

4. [4]

   By the instrument of appointment, Ms Bergin was granted “the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 (NSW)” (RC Act) and was also granted the “powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (NSW) (except for s 17(4) and (5))”. As will be seen, the language of this instrument of appointment picks up the language of s 143A(1)(b) of the CC Act, and deliberately so.

5. [5]

   The background to this appeal and the commencement of proceedings in this Court is that, between September 2019 and January 2020, some nine summonses to produce documents were issued to Melco. The sample Summons to Produce which was in evidence recited that “[p]ursuant to section 8 of the Royal Commissions Act 1923 (NSW), you are required to attend the Inquiry to produce the documents described in the Schedule…”.

6. [6]

   In correspondence with officers of the Authority, Melco asserted a claim of legal professional privilege in respect of certain documents otherwise falling within the terms of the summonses for production. These claims for privilege were not accepted by the Authority which contended that Melco’s privilege was abrogated by a combination of s 143A of the CC Act and s 17(1) of the RC Act and that Melco was obliged to produce all documents falling within the summonses for production. It was this dispute which led to the initiation of proceedings in this Court by way of Commercial List Summons filed on 22 January 2020. That summons relevantly sought declarations that:

7. [7]

   The suit for declaratory relief was heard expeditiously by Adamson J (the primary judge) on 6 February 2020 and her Honour delivered judgment with equal expedition on 11 February 2020: Melco Resorts & Entertainment Limited v The Independent Liquor and Gaming Authority [2020] NSWSC 53. Her Honour made the following declarations and order:

8. [8]

   On 18 February 2020, the Attorney General for New South Wales (the Attorney) filed a summons in this Court seeking leave to appeal from the whole of the decision below. That summons was accompanied by a notice of motion seeking expedition of the hearing of the summons for leave to appeal, and a draft notice of appeal.

9. [9]

   As is customary when matters involve obvious urgency (as does the present case, given that the Inquiry was set to commence hearings on 24 February 2020) matters of formality in relation to expedition were put to one side and the Registrar of the Court of Appeal offered the parties early hearing dates for the summons for leave to appeal to be heard on a concurrent basis.

10. [10]

    By his draft notice of appeal, the Attorney contends:

11. [11]

    It is not apparent why leave to appeal was sought in view of the final nature of the declarations made by the primary judge but, even if leave was required, it was not resisted, Melco recognising that this was plainly an appropriate case for the grant of leave.

12. [12]

    In our opinion, leave to appeal was not required and we have considered the matter on the basis that the Attorney exercised a right of appeal. An order should be made that the Attorney file a notice of appeal in the form of the draft notice of appeal within seven days.

Disposition

1. [13]

   For the reasons that follow and with due respect, in our opinion, the primary judge erred in her construction of s 143A of the CC Act with the consequence that the appeal should be allowed with costs.

2. [14]

   It was not in dispute that s 17(1) of the RC Act constitutes a clear abrogation of legal professional privilege. The intent of ss 143A(1)(b) and 143A(2) of the CC Act is to carry that clear abrogation through to a commission of inquiry established by the Authority in circumstances where an inquiry is being presided over by a person who has the qualifications set forth in s 143A(1)(b) of the CC Act. It was not in dispute that Ms Bergin was such a person.

3. [15]

   As such, it was not open to Melco to resist the production of documents which it was summoned to produce on the grounds of legal professional privilege, and the declarations made by the primary judge must be set aside and Melco’s Commercial List Summons must be dismissed with costs.

4. [16]

   It is necessary to set out the relevant statutory framework in some detail before turning to the primary judgment, the arguments advanced on appeal and ultimately our reasons for the conclusion we have reached.

Statutory framework

1. [17]

   The “Authority” is defined in s 3 of the CC Act to mean the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administration Act 2007 (NSW).

2. [18]

   Section 4A(1) of the CC Act, which was inserted at the same time as s 143A, provides that:

3. [19]

   Section 143 of the CC Act provides that:

4. [20]

   Section 143A of the CC Act was introduced by the Casino Control Amendment Act 2001 (NSW). In the Second Reading Speech (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 March 2001 at 12324), the Minister for Gaming and Racing, Mr Face, said that:

5. [21]

   Section 143A of the CC Act provides that:

6. [22]

   Section 13 of the RC Act relates to the payment of allowances to witnesses. Division 2 of Part 2 of the RC Act is described in more detail below.

7. [23]

   The RC Act is divided into three parts: Part 1 (Preliminary); Part 2 (Commissions); and Part 3 (Offences). Part 2 is further divided into two divisions: Division 1 (Commissions generally); and Division 2 (Special powers).

8. [24]

   Under the RC Act, a commissioner need not be, but may be, a lawyer. Whether a lawyer or not, every commissioner enjoys, in the exercise of his or her duty as a commissioner, the same protection and immunity as a judge of the Supreme Court: s 6. However, not every commissioner is invested with the same powers as a judge of the Supreme Court. Under the RC Act, a commissioner’s powers depend on his or her status and qualifications, and it is only those commissioners who have the status and qualifications described in s 15(1) of the RC Act that may exercise what are described as “special powers” which are contained in Division 2 of Part 2.

9. [25]

   Within Division 1 of Part 2 of the RC Act is s 8, entitled “Witnesses”. That section provides that:

10. [26]

    Interpolating there, as s 8 of the RC Act plainly confers a power, there is no question that, by virtue of s 143A(1)(a) of the CC Act (see [21] above), Ms Bergin had the power to issue the summonses for production of documents to Melco.

11. [27]

    Section 11 of the RC Act relevantly provides:

12. [28]

    As noted above, Division 2 of Part 2 of the RC Act deals with and is headed “Special powers”. This heading is taken to be part of the Act: Interpretation Act s 35(1)(a).

13. [29]

    Section 15 of the RC Act, which falls within Division 2 of Part 2, provides as follows:

14. [30]

    It may be noted that there is a partial overlap between the persons described in s 15(1) of the RC Act and those referred to in s 143A(1)(b) of the CC Act.

15. [31]

    Section 16 of the RC Act gives the commissioner power to issue a warrant for the apprehension of a witness who fails to attend the commission after having been summoned to do so.

16. [32]

    Section 17 of the RC Act provides as follows:

17. [33]

    Section 18, dealing with the powers of a commissioner, provides that:

18. [34]

    Section 18A provides that:

19. [35]

    Section 18B sets out how contempt of a royal commission may be punished. Section 18C then contains general provisions regarding contempt. Section 18C(3), like s 18A, does not in terms confer any power or authority on a commissioner. It provides:

20. [36]

    Section 19(1) of the RC Act creates an offence “[i]f any person served with a summons to attend a commission, whether the summons is served personally or by being left at the person's usual place of abode, fails without reasonable excuse to attend the commission or to produce any documents …”. As with s 8 of the RC Act, s 19(1) refers to a “person” summoned to give evidence or produce a document rather than a “witness”. Such a person may include a corporation: Interpretation Act s 21(1).

The primary judgment

1. [37]

   The principal issue argued before the primary judge was whether s 17 of the RC Act conferred a “power” or “authority” on Ms Bergin within the meaning of s 143A(1)(b) of the CC Act, it being accepted that s 17(1) of the RC Act entailed a clear abrogation of privilege.

2. [38]

   Melco’s argument was that s 17 did not do so in express terms and should not be interpreted as having done so “impliedly”.

3. [39]

   A further argument which was advanced at first instance albeit, so it would appear, very much on a secondary basis (and not in written submissions) concerned s 143A(2) of the CC Act, it being contended by the Attorney that that sub-section meant that s 17(1) of the RC Act applied, irrespective of whether it involved the conferral of any power or authority on Ms Bergin. No doubt reflecting the way the matter was put at first instance, consideration of this argument does not feature prominently in the primary judgment.

4. [40]

   At [37]–[39] of her judgment, the primary judge noted that:

5. [41]

   The primary judge made reference to extrinsic material in aid of the construction of the provision, noting (at [40]) that:

6. [42]

   The primary judge concluded (at [41]–[43]):

7. [43]

   Separately to be noted is the primary judge’s rejection of the secondary argument that had been presented by the Attorney, namely that even if s 17(1) of the RC Act were not picked up by s 143A(1)(b) of the CC Act because s 17(1) did not confer a power on a commissioner, it was nevertheless picked up by s 143A(2) because that sub-section applied in terms to witnesses, it not being in issue that Melco was a “witness” within the meaning of s 143A(2) notwithstanding that, as a corporation, it could not give evidence (see further at [65]–[77] below).

8. [44]

   The primary judge rejected this argument at [44], stating that:

9. [45]

   The primary judge considered that, in addition to the text of the CC Act and the extrinsic material referred to, the principle of legality (or, as referred to by Basten JA in Elliott v Minister administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123 at [35] (Elliott), the “clear statement principle”) also supported the conclusion that s 143A of the CC Act did not have the effect of importing the widespread abrogation of rights in s 17(1) of the RC Act into inquiries conducted under the CC Act by a person who satisfied one of the two descriptions in s 143A(1)(b) of that Act.

10. [46]

    In this context, the primary judge made reference to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [39] (Daniels), where the principle of legality was described by McHugh J as:

11. [47]

    The Attorney had submitted that Daniels concerned the interpretation of a provision that purported to require the production of documents notwithstanding the existence of a privilege and contended that there was no warrant for the application of principles of strict construction where it was clear that the relevant statute (here, s 17(1) of the RC Act) abrogated the privilege, and the immediate question of construction was concerned with s 143A of the CC Act.

12. [48]

    The primary judge rejected this contention and expressed the opinion (at [49]–[50]) that:

13. [49]

    For the above reasons, the primary judge made the declarations we have set out at [7] above.

Submissions

1. [50]

   The Attorney’s grounds of appeal have been noted at [10] above. The first ground of appeal related to that part of the primary judgment summarised at [40]–[42] above, together with her Honour’s reliance on the principle of legality. The second ground of appeal related to the primary judge’s much briefer reasoning in relation to s 143A(2) of the CC Act, to which reference has been made at [44] above.

2. [51]

   As has been noted, the primary judge held that s 143A(1) of the CC Act does not have the effect of picking up and applying s 17(1) of the RC Act for the purposes of the Inquiry. Her Honour found that s 17 does not confer a “power or authority” on a commissioner, and is therefore not one of the provisions picked up by s 143A(1)(b): at [37]–[41].

3. [52]

   The Attorney submitted that the primary judge erred in her construction of s 143A(1)(b), arguing that:

4. [53]

   The Attorney also referred to a number of Supreme Court decisions in which s 17(1) had been interpreted as conferring a power: see [85]–[86] below. Given that these decisions predated the passage of s 143A of the CC Act, it was submitted that the legislature may be taken to have been aware of those decisions at the time of the introduction of s 143A, and that the CC Act should be construed in the context of those decisions. These authorities were not relied upon and this argument was not advanced before the primary judge.

5. [54]

   The Attorney also submitted that the primary judge erred in dealing with the words in parentheses in s 143A(1)(b) – “(except for section 17(4) and (5))” – describing these words as:

6. [55]

   The Attorney further submitted that:

7. [56]

   The Attorney’s argument was further refined by Mr Kirk SC in oral argument. He submitted that the primary judge, having noted at [38] of her judgment that the argument that s 17(1) was “in substance, a power since it contains within it an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege” had “considerable attraction”, subsequently stated at [46] that:

8. [57]

   It was submitted that the effect of the primary judge’s reasoning was to elevate the principle of legality to one which required any abrogation of a privilege to be the subject of express legislative language. This, it was submitted, was inconsistent with the acceptance by the plurality in Daniels that a fundamental right could be abrogated by necessary implication. At [11] of the plurality’s judgment in Daniels, it was said that “[i]t is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.”

9. [58]

   The argument proceeded that if, on its proper construction, s 17(1) of the RC Act conferred an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege, an argument the primary judge described at [38] as having “considerable attraction”, that was no less a power than one conferred expressly and, if it was a power, then Ms Bergin was able to exercise it because s 143A(1)(b) of the CC Act conferred it upon her in clear and unambiguous terms. This argument also called in aid the observations of Basten JA (with whom Beazley P and Payne JA agreed) in Elliott at [40], where his Honour observed of the principle of legality that it:

10. [59]

    In response to the Attorney’s submission that s 17(1) of the RC Act conferred a power or authority on the Commissioner, Melco submitted that:

11. [60]

    With respect to the Attorney’s argument based on the words “(except for section 17(4) and (5))” (see [54] above), Melco submitted that such words:

12. [61]

    In relation to ground 2, the Attorney submitted that the primary judge erred in her construction of s 143A(2) of the CC Act, on the basis that her Honour’s reasoning:

13. [62]

    Melco submitted that the Attorney’s argument fails because s 17(1) was not a power or authority conferred on the Commissioner by s 143A(1)(b). This was essentially the reasoning that commended itself to the primary judge. Further, Melco submitted that, had the legislature intended that the effect of s 143A(2) was that s 17(1) of the RC Act would apply to witnesses at an inquiry under the CC Act, it could and would have achieved that outcome by the simple expedient of identifying s 17(1) as one of the provisions applying to witnesses at such an inquiry. In oral submissions, Mr Finch SC for Melco contrasted the language of s 143A(2) of the CC Act with what he submitted was the far clearer abrogation of legal professional privilege in s 4 of the James Hardie (Investigations and Proceedings) Act 2004 (Cth).

14. [63]

    Both parties made submissions in relation to the extent to which it was legitimate to resort to secondary materials in construing ss 143A(1)(b) and 143A(2) of the CC Act. In this context, the Attorney submitted that the primary judge:

15. [64]

    Melco countered that the primary judge was not engaging in:

Consideration

1. [65]

   Both s 17(1) of the RC Act and s 143A(2) of the CC Act refer respectively to “[a] witness summoned to attend or appearing before the commission” and to “any witness summoned by or before the person presiding at the inquiry”.

2. [66]

   At first instance, the arguments advanced by both parties assumed that Melco was a “witness” and no point was taken that, as Melco could not be a witness (because it was a corporation), whatever the proper construction of s 143A was, s 143A(2) could not apply to it for that reason cf. Melbourne Steamship Co Limited v Moorehead (1912) 15 CLR 333 at 344–345 and 347; [1912] HCA 69; Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; [1976] HCA 53; Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 at 513; [1993] HCA 74. Similarly, it was not contended that because s 17(1) of the RC Act referred to a “witness summoned to attend”, it could not apply to a corporation such as Melco.

3. [67]

   The Court raised with both parties the correctness of this assumption. Melco did not seek to contend that if s 143A of the CC Act, on its proper construction, gave effect to s 17(1) of the RC Act, it nonetheless did not apply to it because a corporation could not be a “witness”.

4. [68]

   In our opinion, the reference to witness in s 17(1) of the RC Act and in s 143A(2) of the CC Act extends to include a corporation summoned to produce documents. This is so for at least five reasons.

5. [69]

   First, the reference to a “witness summoned to attend or appearing before the commission” in ss 11(1), 11(3) and 17(1) of the RC Act must be a reference to a “witness” summoned pursuant to s 8 of that Act. That “witness” may be a corporation as, notwithstanding its heading, s 8 refers to a “person” summoned to attend the commission, and “person” includes a corporation: see [25] above. Similarly, a “person” (including a corporation) summoned to give evidence or produce documents may be punished for not complying with a summons: s 19(1) of the RC Act.

6. [70]

   Second, s 8 of the RC Act is headed “Witnesses” but, as we have pointed out at [69] above, it applies to “persons” which, by s 21 of the Interpretation Act, includes corporations. The section does not itself use the words “witness” or “witnesses” other than in its heading.

7. [71]

   Because the heading to s 8 of the RC Act formed part of that Act prior to 1 February 1981 (being the date on which s 3 of the Interpretation (Amendment) Act 1980 (NSW) commenced), it may be taken to be part of the Act: Interpretation Act s 35(3). As such, it may be taken into account in the construction of the RC Act and, in so doing, it may be seen to support a construction that persons summoned, inter alia, to produce documents are “witnesses” for the purposes of the RC Act.

8. [72]

   Third, where the same term is used in cognate legislation, the same meaning should be accorded to it: Lennon v Gibson and Howes Limited (1919) 26 CLR 285 at 287; [1919] AC 709 at 711–12; Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [131]; AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [76]. Thus, when s 143A(2) of the CC Act refers to a “witness summoned by or before the person presiding at the inquiry” in circumstances where, subject to exceptions, the section applies the RC Act to such a person, it is reasonable to proceed on the basis that the legislature which amended the CC Act intended the word “witness” in s 143A(2) to have the same meaning as “witness” in the RC Act. As has been illustrated at [69] above, witness in the RC Act is described in terms of a person summoned to produce documents, which includes a corporation so summoned.

9. [73]

   Fourth, although corporations cannot of course literally be “witnesses” or, for that matter, produce documents in answer to compulsory process, they can do so by their proper officers. In Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 at 662 (Penn-Texas), Lord Denning MR observed:

10. [74]

    Lord Denning’s reasoning would apply equally to a claim for privilege on behalf of a corporation. The proper officer gives evidence on behalf of the corporation in order to establish the corporation’s claim to privilege.

11. [75]

    Penn-Texas was referred to with approval by Sir Anthony Mason in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 146; [1982] HCA 66, who said that “[t]he production of documents by a corporation stands in a special position”. His Honour went on to observe that:

12. [76]

    No point was taken in the present case that the summonses to produce documents were not addressed to the proper officer of Melco, it being accepted that the proper officer could have been summoned to produce documents on the company’s behalf: see, generally, R v Ronen (2004) 62 NSWLR 707; [2004] NSWCCA 67 at [29]–[40]; see also MacDonald v Australian Securities Commission (No 2) (1994) 48 FCR 210 (MacDonald). Further, any claim for privilege on the company’s behalf would generally have to have been made or supported by evidence on oath, which obviously requires an authorised officer of the company to give evidence in support of the claim: see Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [7] and [27] as to the need for claims of privilege to be supported by evidence on oath “so that the court can determine their sufficiency”; see also Uniform Civil Procedure Rules 2005 (NSW) r 1.9(5) (UCPR).

13. [77]

    Fifth, to construe the reference to “witness” in ss 11(1), 11(3) and 17(1) of the RC Act and the cognate reference to “witness” in s 143A(2) of the CC Act as not including a corporation would leave a gaping hole in the structure of the former Act and be quite antithetical to the evident purpose of both Acts. Section 33 of the Interpretation Act requires a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) and that construction is required to be preferred to a construction that would not promote that purpose or object. A similar approach was taken by Hill J in an analogous case: see MacDonald at 217.

14. [78]

    There is no question that Ms Bergin had power to issue the summonses to produce documents by virtue of s 143A(1) of the CC Act and s 8 of the RC Act. Section 18 of the RC Act, insofar as it invests a commissioner with the same powers as a Supreme Court judge in relation to compelling the production of documents, was an additional source of power authorising the issue of the summons for production of documents in the present case. But a Supreme Court judge may not compel the production of documents over the objection of a person who seeks to claim legal professional privilege, unless and until that objection is overruled: see UCPR rr 1.9(3) and (4); cf Meteyard v Love (2005) 65 NSWLR 36; [2005] NSWCA 444 at [129]–[132].

15. [79]

    Both ss 8 and 18 of the RC Act must be read together with s 11(2)(a) of that Act, which relieves a person required by a commissioner to answer any question or to produce documents from the obligation to do so “if the witness has a reasonable excuse for refusing”. A substantiated claim for legal professional privilege would supply such an excuse. But s 17(1) of the RC Act, in abrogating legal professional privilege in a case in which s 17(1) applies, means that such a claim would not, in those circumstances, provide a “reasonable excuse” within the meaning of s 11(2)(a) of the RC Act.

16. [80]

    In this way, s 17(1) is a provision which extends the power of a commissioner who meets the qualifications set out in s 15 of the RC Act. It does so by removing an immunity from powers of compulsion, the true character of legal professional privilege being a freedom or immunity from the exercise of legal power or control: Glencore International AG v Commissioner of Taxation [2019] HCA 26 at [12] – [23]; (2019) 372 ALR 126 (Glencore). As a unanimous High Court said in Glencore, “[t]he privilege was granted by the law to render a person immune from powers of compulsion”: at [16]. In this context, Melco’s submission that s 17(1) does not operate as an extension of power because the power to compel the production to documents rests in s 18 of the RC Act which requires no extension must be rejected.

17. [81]

    We accept the Attorney’s overall submission that “[t]he powers of the commissioner are conferred and defined by the combined operation of Divisions 1 and 2 (in particular, ss 8, 11, 17, 18 and 18A–18D)”. A similar approach to statutory construction, in an analogous context, was followed by Sheppard J in Toohey v Lewer [1979] 1 NSWLR 673 at 678–681.

18. [82]

    The Attorney’s submission highlights the importance of the oft-quoted injunction against construing a section of a statute “in isolation from the enactment of which it forms a part” (K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315; [1985] HCA 48), and the concomitant need to construe any given statute as a whole: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320; [1981] HCA 26; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky).

19. [83]

    We have noted above that, at [38] of her judgment, the primary judge described as having “considerable attraction” the Attorney’s contention at first instance that s 17(1) of the RC Act “in substance” conferred a power, “since it contains within it an implicit correlative right or power in a commissioner to exercise compulsory powers unfettered by claims of privilege”. We agree with her Honour’s description of that contention.

20. [84]

    The contention which the primary judge found attractive is consistent with the fact that s 17(1) falls within Division 2 of Part 2 of the RC Act which is headed “Special powers”, and whilst Mr Finch was correct to point out that not every section within Division 2 of Part 2 entailed the conferral of a power, pointing to ss 15, 18A and 18B(3) in particular, none of those sections, unlike s 17, contained an implied correlative right or power.

21. [85]

    The submission is also consistent with a number of decisions of this Court in relation to s 17(1) of the RC Act to which, as we have noted above, the primary judge was not referred. Thus, in Thelander v Woodward [1981] 1 NSWLR 644 at 645–646, Moffitt P described ss 17 and 18 of the RC Act as, together, a “powerful weapon” and as providing “a powerful means of ascertaining what has occurred”. His Honour read ss 17 and 18 of the RC Act together, consistently with the argument advanced by the Attorney in the present case. In Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 at 531, Sheller JA, with whom Meagher JA agreed, said:

22. [86]

    This case law has an added significance because it forms part of the context against which s 143A of the CC Act is to be construed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 at [12]. Thus, in conferring upon a person referred to in s 143A(1)(b) of the CC Act the “powers and authorities” conferred on a commissioner by Part 2 Division 2 of the RC Act, the legislature should be taken to have been aware of the meaning attributed to s 17 of the RC Act by decisions of this Court. To paraphrase Brennan J (as he then was) in Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319 at 323; [1991] HCA 28, s 143A of the CC Act should be construed in light of the law as it stood when s 143A was enacted.

23. [87]

    The Attorney’s contention that s 17(1) of the RC Act confers a power or authority on a commissioner (and therefore, by operation of s 143A(1)(b) of the CC Act, on Ms Bergin) is further and perhaps most significantly supported by the fact that, in s 143A(1)(b) of the CC Act, the legislature has treated it as conferring a power. That section, it will be recalled, confers on the inquirer “the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17 (4) and (5))”. (emphasis added).

24. [88]

    As a matter of ordinary English, the parenthetical exception necessarily treats the balance of s 17 of the RC Act and, most relevantly for present purposes, s 17(1), as conferring a power. Were it otherwise, the parenthetical exception would be otiose, contrary to a basic canon of statutory construction: Commonwealth v Baume (1905) 2 CLR 405 at 414 and 419; [1905] HCA 11; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12–13; [1992] HCA 64; Project Blue Sky at [71].

25. [89]

    Melco struggled to identify in its submissions any convincing answer to this argument or to explain what work the words “(except for section 17 (4) and (5))” did, submitting that “the Court is not required for the purposes of this application to determine in a general sense the metes and bounds of the words in parentheses in s 143A(1)(b)”. Melco asserted that “[i]t is not easy to determine in a general sense the precise effects and consequences of the words in parentheses in s 143A(1)(b), because ss 17(4) and (5) of the Royal Commissions Act do not confer any powers on a person conducting an inquiry under the Casino Control Act”. Melco’s first submission is, with respect, heterodox. Its second submission is in the face of what we consider to be the obvious meaning of the parenthetical exception, read in the context of s 143A(1)(b) as a whole. In response to the Chief Justice’s question in the course of argument “if s 17 wasn’t a conferral of power, why would it be necessary to put in that exclusion at all?”, Mr Finch was constrained to concede that “it’s difficult to say”.

26. [90]

    The primary judge’s observation at [43] of her reasons to the effect that ss 17(4) and (5) of the RC Act were expressly exempted in s 143A(1)(b) of the CC Act because the Governor does not and could never have a role in the creation of an inquiry under the CC Act leaves pregnant the question why the balance of s 17 of the RC Act was not excluded.

27. [91]

    In this context, the Attorney drew a contrast between s 143A(1)(b) of the CC Act and s 474G of the Crimes Act 1900 (NSW) as it stood at the time of the passage of s 143A of the CC Act (see now Crimes (Appeal and Review) Act 2001 (NSW) s 81(2)). Section 474G of the Crimes Act was concerned with the procedure for an inquiry into a conviction or sentence. Section 474G(2) provided:

28. [92]

    The Attorney also highlighted a tension in the construction favoured by the primary judge and supported by Melco, submitting that:

29. [93]

    For all of the above reasons, we consider that s 17(1) of the RC Act was an important and integral element of the powers conferred on a commissioner and, as such, by virtue of s 143A(1)(b) of the CC Act, was a power that was also vested in Ms Bergin in the conduct of her important inquiry. Melco accepted that if s 17(1) was properly characterised as a power, then s 143A(1)(b) operated to abrogate any privilege in documents the subject of a summons for production.

30. [94]

    As has been noted earlier in these reasons, the course of argument at first instance focussed almost exclusively on whether or not s 17(1) of the RC Act involved the conferral of a power on a commissioner within the meaning of s 143A(1)(b) of the CC Act. That course of argument was reflected in the primary judge’s detailed reasons.

31. [95]

    In many respects, however, a more direct answer to the question of whether or not Melco was required to produce privileged documents is supplied by s 143A(2) of the CC Act, which in terms is directed to the application of the RC Act to a “witness summoned by or before the person presiding at the inquiry”. Melco was such a “witness”.

32. [96]

    The terms of s 143A(2) of the CC Act, it will be recalled, are as follows:

33. [97]

    Thus the short but key question is whether, on its proper construction, s 143A(2) of the CC Act was engaged, so that s 17(1) of the RC Act applied to Melco. The answer to this question does not depend upon whether or not s 17(1) of the RC Act confers a power or authority on a commissioner (although, for the reasons expressed above, in our view it does).

34. [98]

    Were it not for the words “(except for section 13, and subject to subsection (1)(b), Division 2 of Part 2)”, s 143A(2) would provide a very clear and unequivocal answer to this question. Indeed, were it not for the phrase “subject to subsection (1)(b)” within the parenthetical exception, the answer would also be clear, viz. that the RC Act (other than s 13 which falls within Part 2 Division 1, and Part 2 Division 2, which includes s 17(1)) applied to any witness summoned to give evidence and produce documents.

35. [99]

    But it is necessary to give meaning to the phrase “subject to subsection (1)(b)” within the parenthetical exception contained in s 143A(2) of the CC Act. In our opinion, that phrase conditions the application of Division 2 of Part 2 of the RC Act to witnesses. It creates a qualification to the carve out from the operation of s 143A(2) of the CC Act. The exception, which otherwise would apply, does not apply when the relevant inquiry is being conducted by a person having one of the two qualifications referred to in s 143A(1)(b). As Ms Bergin was such a person, the whole of the RC Act (with the sole exception of s 13) applied to a witness such as Melco summoned to produce documents to the inquiry.

36. [100]

    This construction is consistent with the structure of Part 2 of the RC Act, which, as has been noted, is divided into two Divisions, with the “Special powers” granted by Division 2 only being able to be exercised by certain types of commissioners, namely those described in s 15(1) of the RC Act. Similarly, the Division 2 “[s]pecial powers” may only be exercised in an inquiry under the CC Act by certain types of persons, namely those described in s 143A(1)(b).

37. [101]

    The phrase “subject to subsection (1)(b)” in s 143A(2) in context means that a witness is excepted from the application of Division 2 of Part 2 of the RC Act, unless the inquiry is being presided over by a person meeting the description contained in that subsection. As the Attorney submitted in his written submissions in reply:

38. [102]

    If, of course, Melco is wrong in relation to the “power” question (as we have held it is), the construction of s 143A(2) which we favour means that s 143A(2) complements s 143A(1). That in itself is a reason for preferring the two constructions for which the Attorney contended and which we have accepted.

39. [103]

    The construction of the Act which we favour does not depend on, and is not influenced by, any extrinsic materials. As the plurality stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention”.

40. [104]

    Subject to one point, it is not necessary, in our view, to enter into any consideration of the primary judge’s use of extrinsic materials, notwithstanding the arguments developed in relation thereto: see [63]–[64] above.

41. [105]

    The one point that should be made, however, relates to the primary judge’s reference at [40] of her reasons, extracted at [41] above, to the Minister’s observation in the Second Reading Speech in relation to the amendments that led to the introduction, inter alia, of s 143A of the CC Act, namely that the amendments would “ensure that witnesses [who were compelled to give evidence] have the same protection as witnesses who give evidence in a Supreme Court proceeding”. It is evident that the primary judge considered that an ability to claim legal professional privilege was a component of the “protection” to which the Minister referred. Four matters may be observed.

42. [106]

    First, the purpose identified by the Minister was achieved by s 143A(2)’s application of s 11(3) of the RC Act (which falls within Division 1 of Part 2) to witnesses. Section 11(3) provides that “[a] witness summoned to attend or appearing before the commission shall have the same protection … as a witness in any case tried in the Supreme Court.”

43. [107]

    Second, the fact that s 11(2) of the RC Act establishes a regime for the assertion and upholding of non-production of documents, which, to that extent and subject to s 17(1), qualifies a commissioner’s powers of compulsion, provides a strong textual indication that whatever “protection” the Minister may have been referring to in his Second Reading Speech, it was not the protection afforded by legal professional privilege, as that subject matter was already dealt with in s 11(2) of the RC Act.

44. [108]

    Third, the “protection” to which provisions such as s 11(3) of the RC Act and s 6 of the same Act (which affords “protection” to commissioners) has been conventionally held to refer in cognate legislation is to the immunity from suit enjoyed by both judges and witnesses in respect of their participation in a trial. Thus, in Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 (Cabassi), Starke J observed (at 141) that “[t]he law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice” (emphasis added). In his frequently cited decision in Sirros v Moore [1975] QB 118 at 132, in relation to a judge’s cognate immunity from suit, Lord Denning MR observed that:

45. [109]

    Fourth, it is not apparent from the Second Reading Speech precisely what “protection” the Minister was referring to when he made the statement picked up by the primary judge at [40] of her judgment. It may have been to the immunity enjoyed by witnesses, as considered and confirmed by the High Court in Cabassi. On the other hand, the Minister in the Second Reading Speech may have been referring to some other protection instead of, or in addition to, witness immunity. We have already observed that the Minister spoke of the “same protection”, not the “same protections”, and her Honour’s reference to “protections” in the plural at [40] of her judgment appears, with respect, to have been in error: see [41] above.

46. [110]

    Whether anything turns on whether the Minister was intending to refer to one or more protections in his Second Reading Speech may be debated. That one is left to speculate, however, as to what “protection” or “protections” the Minister was referring to only illustrates the dangers and potential pitfalls that resort to extrinsic materials may have. As French CJ and Hayne J observed in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25]:

Conclusion and orders

1. [111]

   For the above reasons, the appeal should be allowed with costs, the orders made by the primary judge set aside and in lieu thereof it be ordered that the Commercial List Summons be dismissed with costs.