The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission
[2002] HCA 49(Judgment by: KIRBY JJ)
The Daniels Corporation International PTY LTD & anor APPELLANTS
v Australian Competition and Consumer Commission RESPONDENT
Judges:
GLEESON CJ, GAUDRON, GUMMOW, HAYNE JJ
McHUGH JJ
KIRBY JJCALLINAN JJ
Subject References:
Evidence
Legal professional privilege
Statutory notice to produce documents
Whether statute abrogated legal professional privilege
Trade practices
Notice to produce documents to Australian Competition and Consumer Commission
Commission investigating whether Trade Practices Act 1974 (Cth) contravened
Whether documents to be produced included those for which legal professional privilege claimed
Legislative References:
Trade Practices Act 1974 - 155
Judgment date: 7 November 2002
Canberra
Judgment by:
KIRBY JJ
57. The Court has before it an appeal from a judgment of the Full Court of the Federal Court of Australia [F95] . The appeal was heard together with cases stated by Gaudron J [F96] that are the subject of a concurrent decision. The issue is one of statutory construction. It concerns the interpretation of s 155 of the Trade Practices Act 1974 (Cth) ("the TPA"). The essential question is whether the Full Court erred in concluding that the section (which requires the furnishing of information and the production of documents) applies, although the communications in question are the subject of claims to legal professional privilege.
58. In deciding that the privilege was overridden by the terms of s 155, the Full Court was greatly influenced by the reasoning of the majority of this Court in Corporate Affairs Commission (NSW) v Yuill [F97] . An examination of decisions before and after that case suggests that Yuill may have been wrongly decided. It appears as an exception to the approach taken by this Court to like problems. Considerations of legal principle and legal policy also support the appeal against the Full Court's interpretation. In my view, the appeal should be allowed. However, I accept that there are countervailing arguments [F98] . It will be necessary to recount these in order to explain how I arrive at my conclusion.
The facts and legislation
59. The facts and dispute: The background facts and the procedural history are stated in other reasons [F99] .
60. The dispute between the parties concerns the obligation of The Daniels Corporation International Pty Ltd ("Daniels") and its solicitors to furnish information and produce documents relevant to an investigation of Daniels by the Australian Competition and Consumer Commission ("the Commission"). The information and documents were purportedly sought for the purpose of determining whether Daniels had engaged in conduct that contravened the TPA. The information and documents included communications during 1998 between Daniels and its solicitors. Although some information and documents were provided, Daniels, acting on legal advice, declined to produce other documents. It did so on the ground that, in respect of the communications contained in them, it was entitled to legal professional privilege. The service of a notice pursuant to s 155 on the solicitors (and their joinder as a party to the proceedings) avoided any contest concerning the reach of s 155 in circumstances where physical possession of the subject documents (or other media in which the information was contained) had passed from the corporation under investigation to another person, subject to duties (in this case those of solicitors) to that corporation [F100] .
61. It is important to notice that, at this stage, there has been no determination of whether any of the communications in respect of which legal professional privilege has been claimed are properly the subject of such privilege. That question has been postponed whilst the threshold issue has been argued. That issue is whether, in accordance with its language and purpose, s 155 respects claims to legal professional privilege or overrides the privilege and obliges the person who is "capable of furnishing information" or "producing documents" to do so despite any such privilege that might otherwise exist.
62. The relevant legislation: The key provision is s 155 of the TPA. It is set out in other reasons [F101] . Although amendments were introduced by legislation that came into force in December 2001 [F102] , it was common ground that they are not relevant to the determination of Daniels' appeal.
The decision of the Full Federal Court
63. No decision of this Court has determined the question that is now presented. It was therefore necessary for the Full Court to approach that question as a matter of principle rather than of binding authority. Extracts from the reasons of the Full Court are set out in other reasons [F103] .
64. Section 155 contains express exemptions in cases where compliance might involve self-incrimination or exposure to a penalty or intrusion into nominated State or Territory Cabinet documents. No express provision is made with respect to legal professional privilege - either to preserve, modify or abolish it in respect of communications to which a notice under s 155 otherwise applies. The impact of s 155 upon any such privilege is, accordingly, left to a process of legal reasoning. Prudently, the Full Court sought guidance from the way in which this Court had tackled questions that appeared to be in some ways analogous. Thus, the Full Court examined this Court's reasoning in Pyneboard Pty Ltd v Trade Practices Commission [F104] , Baker v Campbell [F105] and Yuill [F106] .
65. The decision in Pyneboard was not concerned with legal professional privilege. It did relate to s 155, however, only in respect of exposure of a person, who had received a notice under that section, to a civil penalty. In that sense, Pyneboard was addressed to issues closely related to self-incrimination, a subject for which s 155(7) made explicit provision. It would be a mistake to draw from Pyneboard implications about common law legal professional privilege. That privilege has a different history, purpose and function. However, the reasoning in Baker and Yuill has implications for the construction of s 155 and its relationship with legal professional privilege. It will be necessary to return to that reasoning later.
Arguments against the privilege
66. This Court's authority: I do not regard this appeal as presenting a simple question. Cases involving contested interpretation of legislation that reach this Court are rarely straightforward. We can give no more than this Court's opinion, which thereby becomes the correct interpretation of the statute.
67. Because this is a case in which the precise question for decision has never been determined, this Court will, as in all such matters, start with the statutory text and its apparent purpose and have regard to relevant considerations of legal authority, principle and policy [F107] . The applicable legal authority is not conclusive. But consistency is an attribute of the rule of law. It is therefore desirable that a court should, so far as possible, avoid giving inconsistent signals. At least it should avoid doing so unless it explains clearly any changes of direction. As the opinions in the Full Court demonstrate in this case (and as do the cases to which those opinions refer) many instances arise for the construction of legislation where it is necessary for other Australian courts to approach their task seeking, so far as they can, to conform to the rulings of this Court when addressing new and analogous problems.
68. This Court's decisions closest to the question in this appeal, namely Baker and Yuill, point in opposite directions. Baker lays great emphasis upon the importance of legal professional privilege, holding that very clear, indeed unmistakable, provisions of legislation will be needed to deprive a person, otherwise entitled, of such privilege.
69. Yuill is a later decision. It held that a particular power conferred on an inspector, requiring the production of books of a corporation, necessarily overrode legal professional privilege. In Yuill, the legislation under consideration was, if anything, more amenable to the preservation of legal professional privilege than that under consideration here. It contained an express exception excusing the company officer served with the notice from committing an offence for a failure to comply with its requirements where there was a "reasonable excuse" for such non-compliance [F108] . A textual argument was therefore available that the existence of legal professional privilege constituted a "reasonable excuse" within the statute. That argument was advanced. There is no equivalent exemption in s 155 of the TPA.
70. On the face of things, therefore, the last word of this Court on the subject of legislation providing for notices to corporations to produce documents for inspection, expresses a rule that appears unfavourable to the survival of the privilege. According to Yuill, legal professional privilege cannot provide an exemption from disclosure if the inspector's ability to perform the envisaged functions would thereby be "significantly diminished" [F109] or would be "likely to be hampered" [F110] . If such are the criteria to be applied, there can be little doubt that a construction of s 155 that upheld an unexpressed exception for legal professional privilege could, to some degree, diminish, hamper or impair the operation of the Commission's investigation. An approach to the problem presented by the present case, consistently with the majority opinions in Yuill, would thus appear (as the Full Court concluded) to require a decision favourable to the Commission.
71. I acknowledge that the question of authority remains open. But the legislation is, in material respects, different. Most especially, the legislation considered in Yuill included an unusual provision dealing expressly with legal professional privilege in a way irrelevant to the case but sufficiently expressed to indicate that some consideration had been given by the drafter to the issue [F111] . Further, one of the members of the majority in Yuill (Brennan J) took, as a step in his reasoning, what he saw to be a relevant consideration, namely the supervening change in the understanding of the nature and availability of legal professional privilege. That had been quite different when s 155 was first enacted [F112] . As Moore J said in the Full Court, correctly in my view, that "approach to the construction of a statute is rarely appropriate" [F113] . It is a dubious rule of construction, of limited utility and application. Nevertheless, as a matter of decisional authority, Yuill certainly represents a warning light against the propositions advanced by the appellants in these proceedings.
72. Textual arguments: By reference to the actual provisions of s 155, the Commission advanced a number of arguments that are by no means meritless.
73. First, the law on the subject having been reduced to statutory form (and no constitutional objection being raised as to its validity [F114] ), the correct starting point for analysis is the language of s 155, not pre-existing doctrines of the common law. Where valid legislation has been enacted, the function of a court is to give effect to it [F115] , not to common law rights as if the Parliament had not spoken. This was obviously the approach favoured by Brennan J in Pyneboard [F116] . It has the merit of concentrating the attention of the decision-maker upon the enactment of the Parliament and giving primacy to its purposes as stated in its words. In many recent decisions this Court has insisted that decision-makers should focus their attention upon the terms of applicable legislation rather than use pre-existing common law or unconnected expositions [F117] .
74. Secondly, in its terms, s 155 is expressed in very broad language. It makes no explicit exemption for information or documents the subject of legal professional privilege. Cases do exist where legislatures expressly enact provisions dealing with legal professional privilege, either to override it [F118] or to modify it [F119] . However, legislation is often silent on the point. The Commission accepted that, in such a situation, a necessary implication from the terms of the statute had to be demonstrated in order to override such an important civil right [F120] .
75. Thirdly, so far as "necessary implication" was concerned, the Commission submitted that it had never been the standard of this Court that a party, seeking enforcement of legislation according to its terms, had to show that such enforcement would be totally frustrated if the privilege invoked were upheld [F121] . Such an approach was not only contrary to authority, but also difficult to reconcile with the emerging principles of statutory construction that this Court has emphasised in recent years. Those principles have stressed the importance of adopting a purposive approach to legislation [F122] . Courts have no function to frustrate the carrying into effect of the purposes of Parliament by superimposing on a legislative text unreasonable burdens that distort the fundamental task of construction, which is to give effect to the purpose of the legislature as evident in the statutory language.
76. Fourthly, adopting a purposive approach in the present case, two textual indications were invoked to support the conclusion of the Full Court. The first was the reference to the "capability" of the person having control of the information or documents, the subject of the s 155 notice. Had it been the purpose of the Parliament to exempt information and documents on the grounds of entitlements derived from legal professional privilege, a different phrase could have been used. Alternatively, provision might have been made for exceptions for a "lawful excuse". No such exceptions, specific or general, appear. As well, the treatment of the privilege against self-incrimination (and the express indication in s 155(7) [F123] that such privilege is not to afford an exception) makes it more difficult to accept that, read as a whole, s 155 contemplated an unqualified exception for legal professional privilege. Harmony within the entire section lends some force to the argument that, in so far as the Parliament turned its attention to pre-existing common law privileges, it specifically denied their continued operation.
77. Fifthly, whatever might otherwise have been the construction of the phrase "is capable of", had it arisen for consideration for the first time in this appeal, the Commission pointed out that, following Pyneboard, those words had been adopted in federal legislation, specifically relating to taxation [F124] , as a statutory formula taken as equivalent to a reference to actual possession and physical capability [F125] . Although s 155 did not contain an exclusion of legal professional privilege, this (the Commission submitted) was what, in effect, the chosen phrase meant. As further federal legislation had been enacted on that footing, and countless proceedings determined on that basis, the phrase should not now be interpreted to produce a different construction.
78. Sixthly, when a purposive approach was applied to s 155, the Commission argued that it supported the construction upheld by the Full Court. The section, so it was put, disclosed laudable policy objectives that should not be impeded. The object of the section was to facilitate an investigation initiated for the high public purposes of the TPA [F126] . An inability to gain access to documents of a corporation under investigation would, to that extent, run the risk of stultifying, defeating or frustrating such investigation [F127] . It was illegitimate, and contrary to the repeated endorsement by this Court of the "modern" approach to statutory construction, to superimpose on the words of s 155 an undue burden as necessary to expel the legal professional privilege of which no mention had been made. In support of this approach, the Commission relied on the principle that, where the offence in question is one against the statute itself, courts will more readily assume that the Parliament's purpose was only that stated in the legislative text [F128] .
79. Arguments of principle and policy: In addition to the foregoing, the Commission called in aid a number of considerations of legal principle or policy which, it said, reinforced the conclusion to which the arguments of authority and statutory analysis pointed [F129] .
80. First, a consideration favouring a clear and simple criterion (such as that available in the literal words of s 155) is the desirability of reducing the scope for extended and costly legal disputation [F130] . Especially in some areas of the Commission's responsibilities, such as the administration of mergers, speed on the part of the Commission and its officers is essential to the proper discharge of the functions imposed by the Parliament [F131] . The adoption of a single criterion, such as physical capability to furnish information or produce documents, affords such a simple touchstone. The Commission suggested that it was therefore one which, in the present context, this Court should uphold.
81. Secondly, when Baker was decided, the observations in this Court favourable to the preservation of legal professional privilege were uttered in a legal context in which that privilege was quite confined [F132] . Since that time, by the decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation [F133] , the scope of legal professional privilege, as it relates to communications in documents, has effectively been expanded. In Esso, I referred to the potential of this expanded rule to cover, in the case of corporations and government agencies, a much wider range of communications, thereby diminishing the ability of courts and tribunals to arrive at the truth of contested corporate and governmental conduct [F134] .
82. This is not the occasion to revisit those arguments. I was in the minority in Esso. The principle in that case must be accepted. It is, after all, the same principle as is applied in a number of foreign jurisdictions [F135] . However, the increased scope must be weighed in deciding whether the privilege asserted would now truly be compatible with the operation of s 155 [F136] . Potential interference with the operation of that section would be expanded if the legal professional privilege were available in respect of communications prepared for legal advice by in-house corporate counsel or by joint businesses of legal practitioners and accountants, such businesses now being permitted under the law of at least one Australian State [F137] .
83. Thirdly, to the extent that a court introduced an unexpressed exception for legal professional privilege, it would necessarily do so in terms preserving the common law. If the Parliament had actually addressed the issue, it might have been expected that at least a qualified abrogation of the privilege would have been enacted, as had been done in the case of the privilege against self-incrimination [F138] . Recognition of the privilege would render irrelevant the need for carefully balanced guidelines to govern access to, or exclusion from, particular information or documents the subject of the privilege [F139] . In considering the appellants' contentions, the Commission pointed out that the exception sought was one that sat uneasily with the highly qualified exemption provided in relation to the privilege against self-incrimination [F140] .
84. Fourthly, the implications of the decision in this case were emphasised. Similar statutory language to that appearing in s 155 has been adopted in other federal legislation affecting powers of investigation with respect to taxation, the environment and so on [F141] . Such legislation was adopted to protect and to advance the public interest. Properly conducted, with access to all relevant documents, investigations can sometimes exonerate corporations (and persons) the subject of notices under s 155. Where the Parliament had acted on past decisions of this Court [F142] , care is needed in initiating a different direction. Cogent reasons are needed for changing this Court's approach, given that such change would almost certainly have implications extending far beyond the present Act and the circumstances of the present parties.
Clarity in the abrogation of legal privilege
85. The privilege as an important right: In so far as this Court has dealt with the topic of legal professional privilege, save for Yuill, it has consistently emphasised the importance of the privilege as a basic doctrine of the law [F143] and a "practical guarantee of fundamental rights" [F144] , not simply a rule of evidence law applicable to judicial or quasi-judicial proceedings [F145] . It has been increasingly accepted that legal professional privilege is an important civil right to be safeguarded by the law. Of course, derogations appropriate to the needs of a democratic society may be contemplated [F146] . However, vigilance is required against accidental and unintended erosions of the right.
86. Legal professional privilege is also an important human right deserving of special protection for that reason [F147] . I am conscious of the fact that Daniels is a corporation. As such, it may not be entitled to all of the rights described as fundamental human rights [F148] . Nevertheless, in the expositions of the rationale for legal professional privilege, it has not so far been suggested (nor was it argued in this case) that such privilege is somehow inapplicable to a corporation or is of a kind that would not attract the presumption of parliamentary respect for its continuance in such a case [F149] .
87. In his explanation before the European Court of Justice of the reasons for legal professional privilege, Advocate-General Slynn explained the principle in terms applicable to both natural and legal persons [F150] :
"Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks."
88. This Court's authority: Legal professional privilege is a right that will not be taken to have been abolished by legislative provisions except by express language or clear and unmistakable implication [F151] . Such was the strict rule upheld in Baker. This Court's later decision in Yuill seems to be at odds with that proposition.
89. Yuill, in this Court, was a decision that reversed a unanimous judgment of the New South Wales Court of Appeal. I participated in that Court of Appeal decision [F152] . Because Yuill dealt with a statute that has long since been repealed, it is unnecessary (even if it would otherwise be appropriate) to overrule it. However, it is proper to point out, with due respect, that there are weaknesses and difficulties in the majority opinions in this Court.
90. With due deference, the majority does not appear to have approached the issue in that case in the manner suggested by the approach of this Court to like matters. Although mention was made in the majority opinions of the rule of strictness expressed in Baker, obliging the clearest terms for legislation said to abrogate a "doctrine of a fundamental kind" [F153] , when it came to the application of that rule, the majority slipped into language far less demanding, using words such as "hamper", "impair" and "seriously impede". In fact, Yuill presents a singular contrast to the repeated emphasis by this Court, in decisions before [F154] and since [F155] Baker, to the effect that important common law rights will not be abrogated or impaired by general statutory language.
91. There are also significant differences between the reasoning of Brennan J on the one hand and of Dawson J (with whom Toohey J concurred) on the other. It was important to Brennan J's reasoning that the statute was to be construed with the understanding of the law as it stood when it was adopted. That is, before Baker was decided [F156] . This consideration (although mentioned [F157] ) was not treated as critical to the reasoning of Dawson J. Moreover, Brennan J, who had dissented in Baker, appeared less enthusiastic for the approach that Baker laid down. For him, the issue remained the preferable construction of the statute in question and the carrying into effect of what he took to be the legislative "intentions" [F158] .
92. The dissenting reasoning of Gaudron J and McHugh J appears more consistent with the general approach of this Court to the suggested abrogation or impairment of fundamental common law rights by general legislative provisions. For these reasons, the decision in Yuill should, in my view, be confined to its particular facts. There were peculiarities of the legislation that are not applicable in the present appeal.
93. Approaching the matter in that way, the authority of this Court otherwise speaks with a clear and consistent voice in respect of what is required for legislation, stated in general terms, to override fundamental civil rights. In Re Bolton; Ex parte Beane [F159] , it was expressed in this way:
"Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."
94. In Bropho v Western Australia [F160] , citing Potter v Minahan [F161] , the practical foundation for this principle was explained as lying in the fact that it is: "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used".
95. Textual arguments: When the foregoing approach is adopted to s 155, there are a number of indications in the language of that section, read as a whole, that support the conclusion, urged by the appellants, that the section does not abrogate so fundamental and important a civil right as that of protecting the facility of obtaining legal advice upon matters that might subsequently prove relevant to an investigation under the Act.
96. First, (apart from considerations of legal history) the absence of any express mention of legal professional privilege could simply indicate that this is another instance where the Parliament has failed to address itself to the repeal of the privilege, rather than one where the generality of the language should be taken to have abolished it. That is the point made in Bropho.
97. Secondly, this consideration is strengthened by the explicit mention in s 155 of the qualified operation of the privilege against self-incrimination. Contrary to the submission of the Commission, the fact that the Act referred to, and reserved for particular purposes, the privilege against self-incrimination, but made no mention of the removal of legal professional privilege, reinforces the conclusion that the latter was overlooked. It gives no support to the suggestion that it was considered but rejected as unnecessary.
98. Thirdly, the provisions of s 155(2) are instructive when extracting the overall operation of the section [F162] . That sub-section permits the entry of a member of the staff assisting the Commission onto premises, their inspection of documents and their copying and taking of extracts. All of these activities would otherwise be unlawful and actionable. In s 155(5)(c), an offence is provided for obstructing or hindering an authorised officer acting in pursuance of sub-s (2). It appears extremely unlikely that the Parliament would have had a purpose of denying respect to common law privileges in relation to offences against s 155(5)(a), simply because it refers to the capability of a person to comply with the notice, and yet require observance of such common law rights in respect of s 155(5)(c) because there is no mention in that paragraph of such capability. But the decision of this Court in Coco v The Queen [F163] would oblige the preservation of the applicable common law privileges in s 155(2), read with s 155(5)(c). It is difficult to accept, as a matter of construction of s 155, when read as a whole, that a different approach would be applicable to other sub-sections. In short, the construction urged by the Commission demands too much of the phrase "capable of complying". To read into that phrase the abrogation of legal professional privilege is to stretch the language to attempt the discharge of a task that it was never designed to perform.
99. Arguments of principle and policy: A number of considerations of legal principle or legal policy reinforce the foregoing conclusions.
100. First, once this approach is adopted, it is comparatively easy to perceive a distinction between claims for the privilege against self-incrimination and claims to legal professional privilege [F164] . The former would, if not restrained by the section itself [F165] (or by this Court's decision [F166] ), present a risk of stultifying (ie rendering valueless or virtually inoperative) the investigation contemplated by s 155. On the other hand, the latter is more likely, in practice, to affect a smaller range of relevant information and a limited number of documents [F167] . An observation of Dawson J in Baker [F168] is to similar effect. He suggested that the communications to which legal professional privilege would attach were likely to be "closely confined", with the consequential impediment to investigations being "limited".
101. Even allowing that, since the decision of this Court in Esso, the ambit of the legal professional privilege has expanded, it is important to keep in mind the practicalities of a decision upholding that privilege. This consideration reinforces the rigorous application of the stringent test for derogations from legal professional privilege, notwithstanding that its recognition does, to some extent, involve an impediment in the unrestricted exercise of the Commission's investigatory powers which the Parliament did not explicitly enact.
102. Secondly, I do not overlook the fact that the application of the interpretative principle favouring universal human rights [F169] in a context such as the present runs into difficulties. Daniels is not a human being. It is a corporation - a legal person only [F170] . In so far as the rights of human beings are concerned, in their capacity as consumers, they may arguably be better advanced by upholding the ample construction of s 155 of the TPA for which the Commission contends [F171] . Nevertheless, to adopt that view would be to narrow unduly the operation of the general presumption in favour of the basic human right to legal advice, free from prying official eyes. How is this dilemma to be resolved?
103. A broad construction of s 155 would, on occasion, impinge upon individual human rights. A consistent application of the interpretative principle obliges this Court to demand a uniform clarity in provisions that abolish legal professional privilege if that is truly the Parliament's purpose. Occasionally, in any case, a fundamental human right is an expression of an even larger concept, namely a fundamental civil right belonging also to artificial persons such as corporations. Protection from self-incrimination rests upon different historical, legal and policy considerations almost all related to individual human beings [F172] . The entitlement to sound legal advice, immune from compulsory disclosure to investigating or prosecuting public authorities, is arguably necessary both for natural and artificial persons. If so, its withdrawal by the Parliament must be enacted in clear terms.
104. Thirdly, it is important to appreciate that it is comparatively rare for Australian parliaments to abolish legal professional privilege expressly. Perhaps one can infer from this fact a disinclination to do so, occasioned by a realisation of the resistance that the deprivation of such an important civil (and in some cases human) right would occasion. In Yuill, in the Court of Appeal, I sought to justify the use of the technique of statutory construction protective of basic rights [F173] . I pointed out that oversights in the passage of legislation can easily occur. Where courts uphold unexpressed fundamental rights they may sometimes give rise to feelings of frustration amongst legislators and the officials who advise them. However, as I said in that Court [F174] :
"[T]he delay, interruption and frustration are strictly temporary. And they have a beneficial purpose. It is to permit Parliament, which has the last say, an opportunity to clarify its purpose where the court is not satisfied that the purpose is sufficiently clear. And that opportunity is reserved to those cases where important interests are at stake, which might have been overlooked and which deserve specific attention."
105. Viewed in this light, the courts are not usurping the democratic function of Parliament by insisting on clear provisions to abolish an important common law right. They are acting in a role "auxiliary to Parliament and defensive of basic rights" [F175] . I observed then, and still believe, that [F176] :
"Parliaments both in this country and in other countries of the common law accept this beneficial relationship with the courts. It reflects the shared assumptions of all the lawmakers in our society ... [I]t has prevented the unintended operation of words of generality in a statute to diminish basic rights as Parliament would never have enacted, had the point been properly considered."
106. There are practical reasons why, if the common law legal professional privilege is to be removed, this should only be done by a clear decision, expressly stated or necessarily implied, of a parliament with powers to act in such a way. Lord Hoffmann recently stated the principle in terms similar to those that I used ten years earlier [F177] :
"Parliament can, if it chooses, legislate contrary to fundamental principles of human rights ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
107. Fourthly, the last passage demonstrates a coalescence in doctrine in a number of common law countries concerning the approach to be adopted to problems of the kind presented by this appeal. It is desirable that, upon such questions, this Court should apply similar doctrine. In Yuill, in the Court of Appeal [F178] , I pointed to the similarity of the position reached in this Court's decision in Baker and those reached by the Court of Appeal of New Zealand [F179] and the Federal Court of Appeal of Canada [F180] .
108. Now a similar question has arisen in the House of Lords. It did so in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [F181] . In that case, their Lordships unanimously held that such a fundamental right as legal professional privilege could only be overridden by express words or necessary implication. As that was missing from the legislation in question, it had to be concluded that the privilege continued to apply. Lord Hoffmann [F182] derived his conclusion not only from decisions of the United Kingdom and European courts to which I have made reference [F183] . He also referred to New Zealand authority in which it had been pointed out (before it had been fully accepted elsewhere) that legal professional privilege is not simply a rule of evidence but "a substantive right founded on an important public policy" [F184] . To similar effect was the speech of Lord Hobhouse of Woodborough who applied the principle that to abolish such an important right, general or ambiguous statutory language was not sufficient [F185] .
109. Fifthly, in support of the suggestion that this approach falls far short of rendering s 155 of the Act "valueless", "inoperative" or "meaningless", it is worth recording that from the commencement of the Act in 1974, the Commission, as a matter of policy, did not press for documents declined on the "basis of a claim for legal professional privilege" [F186] . The Commission's policy had changed by 2000 [F187] . However, in making the change, the Commission explicitly acknowledged that such documents or information were unlikely to assist investigations [F188] . Compulsory disclosure of privileged communications would, in some cases, affect the ability and willingness of corporations and individuals to consult, without inhibition, with lawyers about complex legal issues affecting day to day business. It might also affect the preparedness and freedom of lawyers to advise clients concerning the TPA and especially in matters potentially giving rise to prosecutions.
110. In the United Kingdom [F189] , Canada [F190] , the United States of America [F191] and the European Union [F192] , documents to which legal professional privilege attaches are exempted from production in like circumstances. It is therefore difficult to accept that a different regime is now essential in Australia. If it is, it is not unreasonable that the Commission, which has access to government, should be obliged to seek an amendment of its Act to secure from the Parliament the addition of such a power, either expressly or by unmistakable implication.
Conclusion: the appeal succeeds
111. Legal professional privilege can arise in many circumstances. It is necessary to have a single, clear rule to govern cases in which there is propounded an unstated but implied legislative abolition. As in other countries of like legal tradition, that rule in Australia is, and should be, that the privilege is not lost by statutory words of generality. If it is to be taken away, this must be done clearly. At least then the attention of the legislature will have been addressed to the seriousness of the step. It will not be possible to deprive persons, whether natural or legal, of such a fundamental right by general words or by ambiguous formulae (such as "capable of complying") that might not be understood by readers as working such a consequence.
112. Adoption of this approach does not mean a return to an excessively literalist interpretation of regulatory legislation, where important considerations of public interest are involved. The approach is not inconsistent with a purposive construction of legislation. It remains in every case to identify the purpose. Where it is clear, from the express language or necessary implications of the statutory provisions, that the purpose overrides common law rights, such purpose must be given effect. Where, however, there is no such express language and the implications are, as here, at best uncertain, a court will be slow to include amongst the purposes of the legislation the abolition of a fundamental right.
113. It follows that the appeal succeeds. As a matter of authority, after Yuill, I can understand how the Full Court came to its conclusion. However, when the decision in Yuill is confined to its own facts, as it should be, and this case is re-examined in the light of the approach of this Court consistently stated in Baker, Ex parte Beane, Bropho, Coco, Chu Kheng Lim v Minister for Immigration [F193] , Kartinyeri v The Commonwealth [F194] and other cases, a different result follows. The approach of this Court to the suggestion that legal professional privilege has been abolished by general words of legislation is returned to the mainstream of the authority expressed in Baker. That course has the added advantage of restoring Australian law, in this regard, to the approach long adopted in New Zealand and Canada and most recently in England in Morgan Grenfell.
114. The foregoing conclusion does not mean that a mere claim of legal professional privilege will be sufficient to attract the privilege. In the case of each communication alleged to be privileged the party making the claim must bring it within the applicable principles [F195] . Legal professional privilege will not be available where a conclusion is reached that particular communications were not prepared for the dominant purpose of giving or receiving legal advice. Similarly, legal professional privilege may not apply where an ulterior purpose for the communication is demonstrated [F196] , for example, where the communication was made in furtherance of a criminal or fraudulent purpose [F197] . The extent to which the privilege would extend to a joint practice of lawyers and non-lawyers (where that is permissible) has not been considered. Various other matters of detail remain for the future [F198] . However, the declaration and order made by the Full Court cannot stand.
115. The matter must be returned to the primary judge so that the claims for privilege can be considered, in the case of each contested communication, in a way that is conformable with the general principles of legal professional privilege at common law. That privilege survives the enactment of s 155.
116. A subsidiary question was presented in the appeal relating to the costs order made by the Full Court. However, in view of the appellants' success in the appeal, it is unnecessary to deal separately with the grounds of appeal relating to that question.
Orders