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Published online by Cambridge University Press: 24 January 2025
For the purpose of reaching a decision about potentially defective administrative action into which he is conducting an investigation, the Ombudsman may wish to compel people to engage in various sorts of testimonial activity—the furnishing of information in writing, the production of documents, the answering of questions orally. This article examines the Ombudsman’s powers in that regard, pointing to matters which may give rise to difficulties in the exercise of such powers and suggesting a number of changes to the relevant provisions. Some of the matters discussed are relevant to the information-gathering powers of other Commonwealth agencies, for example, the Taxation Commissioner and the Trade Practices Commission. Not discussed in the article is the question of excuses which can be made to avoid complying with a valid request once made, a subject which deserves its own treatment separately.
1 Commonwealth Ombudsman First Annual Report (1977-1978) 33.
2 Id. 36.
3 Ombudsman Act 1976 (Cth).321
4 Perhaps it could be argued that a person who refused without lawful excuse to furnish information in writing when required to do so by the Ombudsman had committed the common law misdemeanour of contempt of statute. For a discussion of this crime: The Law Commission (U.K.), Report on Conspiracy and Criminal Law (Law Com. No. 76) (1976) Part VI. A successful prosecution for this crime has taken place in New South Wales in the twentieth century: R. v. Martin (1904) 4 S.R. (N.S.W.) 720, a case which should be read together with the three Chanter v. Blackwood cases: (1904) 1 C.L.R. 39; 121; 456, and with Sawer, , Australian Federal Politics and Law 1901-1929 (1956) 35, 64Google Scholar, in order to gain a better understanding of the political skulduggery with which it deals. An objection to this argument might be that there are no federal common law crimes, but this objection would seem likely to fail. Certainly Quick and Garran thought that contempt of a federal statute would be a punishable crime: Quick, and Garran, , The Annotated Constitution of the Australian Commonwealth (1901) 809-810.Google Scholar Judicial acceptance of the notion of federal common law crimes can be found in R. v. Kidman (1915) 20 C.L.R. 425, 436 per Griffith C.J., 444 per Isaacs J., and in Connor v. Sankey [1976] 2 N.S.W.L.R. 570, 597 per Street C.J., although in neither of these cases was contempt of a federal statute the particular federal common law crime under discussion. Another, more weighty, objection would be based on the notion, expressio unius est exclusio alterius. It seems difficult to argue seriously that Parliament, having dealt with three activities together and having explicitly created penalties in respect of refusal to engage in two of them, had intended that the penalty in respect of refusal to engage in the third activity would be supplied by the common law.
5 [1962] 1 Q.B. 718, 726, quoting Maxwell on Interpretation of Statutes (10th ed. 1953) 376.
6 Whitmore, and Aronson, , Review of Administrative Action (1978) 191.Google Scholar
7 (1978) 19 A.L.R. 373.
8 Id, 375 (emphasis added).
9 (1976) 134 C.L.R. 475.
10 Id. 481.
11 The Ombudsman Act and Income Tax Assessment Act provisions may be compared withs. 155(1)(a} of the Trade Practices Act 1974 (Cth) which authorises the Commission to require a person “to furnish . . . by writing signed by that person or, in the case of a body corporate, by a competent officer” certain information.
It should be noted that in Geosam Investments Pty Ltd v. Australia and New Zealand Banking Group Ltd (1979) 79 A.T.C. 4, 418 (High Court), Gibbs J., sitting alone, held valid a notice issued under s. 264(1) (b) of the Income Tax Assessment Act requiring a company to furnish information to the Taxation Commissioner. It does not appear, however, from the brief report of the reasons for judgment that it was argued that such a notice could not be directed to a company, by analogy with the reasoning of Stephen J. discussed supra.
12 Broom’s Legal Maxims (10th ed. 1939) 648.
13 (1845) 10 Q.B. 411, 116 E.R. 158.
14 Id. 452.
15 Ibid.
16 Id. 452-453.
17 (1967) 67 S.R. (N.S.W.) 404.
18 Id. 407.
19 Id. 409.
20 Id. 408-409.
21 There appears to be only one circumstance in which the recipient of a notice to furnish information who was not capable of furnishing relevant information could nevertheless wish to allege mala fides on the part of the Ombudsman in seeking the information. This is when the Ombudsman has required not only the furnishing of information, but also the production of documents, and the recipient, although he is not capable of furnishing relevant information, is capable of producing relevant documents. In that case the recipient could allege that the Ombudsman’s power to require the production of documents is ancillary to his power to require the furnishing of information (infra p. 332) and that the Ombudsman, knowing full well that the recipient was incapable of furnishing relevant information, but believing that he was capable of producing relevant documents, sought the information solely as a device to justify his seeking the documents.
22 [1975] 1 N.S.W.L.R. 252.
23 Id. 258.
24 Id. 255.
25 (1976) 134 C.L.R. 475 (already referred to supra p. 324).
26 Id. 492.
27 (1977) 16 A.L.R. 721.
28 Id. 730.
29 Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd (1979) 23 A.L.R. 480, 489-493 per Gibbs J., 498-499 per Mason J. A similar approach in a similar situation was taken by Devlin J. (as he then was) in Potato Marketing Board v. Merricks [1958] 2 Q.B. 316, 332.
30 (1977) 16 A.L.R. 721.
31 (1976) 134 C.L.R. 475.
32 (1977) 16 A.L.R. 721, 728.
33 (1979) 23 A.L.R. 480, 490.
34 Ibid.
35 (1978) 19 A.L.R. 373.
36 (1976) 134 C.L.R. 475.
37 (1979) 23 A.L.R. 480.
38 Id. 486.
39 (1976) 134 C.L.R. 475, 481.
40 (1979) 23 A.L.R. 480.
41 On subpoenas duces tecum: Crowther v. Appleby (1873) L.R. 9 C.P. 23; R. v. Stuart (1885) 2 T.L.R. 144. See also Radio Corporation of America v. Rauland Corporation [1956] 1 Q.B. 618, 648-649; Penn-Texas Corporation v. Murat Anstalt [1964] 1 Q.B. 40, 59; Penn-Texas Corporation v. Murat Anstalt (No. 2) [1964] 2 Q.B. 647, 663. On discovery: Williams v. Ingram (1900) 16 T.L.R. 451; Park Company v. South Hustler’s Reserve Company (1882) 8 V.L.R., M. 37; cf. B. v. B. [1978) 3 W.L.R. 624. See also Lonrho Ltd v. Shell Petroleum Co. Ltd (H.L.) The Times 25 May 1980.
42 (1979) 23 A.L.R. 480.
43 Id. 502.
44 Ibid.
45 Id. 501.
46 Id. 487.
47 (1976) 134 C.L.R. 415, 491.
48 Ibid.
49 (1979) 23 A.L.R. 480, 490.
50 (1975) 132 C.L.R. 582, 594.
51 [1976] Q.B. 23.
52 Cf. Nichols v. U.S. (1971) 325 F. Supp. 130, a decision concerning the Federal Public Records Law or Information Act (U.S.). It was held that a rifle belonging to Lee Harvey Oswald, the coat and shirt worn by President Kennedy at the time of his assassination and various bullets and fragments thereof were not “records” within the meaning of that statute.
53 [1964] N.S.W.R. 775.
54 Id. 780-781.
55 (1979) 2 A.T.P.R. 40-107, 18,080.
56 Id. 18,099.
57 5 Eliz. c. 9 (1562), s. 12.
58 The argument is similar to that which has been made in connection with the Ombudsman’s discretions to fix a time within which information is to be furnished to him in writing under s. 9(1) and to fix a place at which documents are to be produced to him under the same section. In Bank of America National Trust & Savings Association v. Douglas (1939) 105 F. 2d 100, the Securities and Exchange Commission served subpoenas on the cashier and vice-president of a San Francisco bank, requiring them to appear in Washington, D.C. In invalidating the subpoenas as unreasonable, the United States Court of Appeals for the District of Columbia said, id. 107, “While it is true the [Securities Exchange] Act authorizes the [Securities and Exchange] Commission to subpoena witnesses from any part of the United States, we think it a fair statement that Congress never intended that the power should be exercised to bring from one side of the country to the other the principal officers of a bank . . . to appear before an examiner of an administrative commission”.
59 As was done by a Full Court of the Federal Court in respect of a comparable provision in Re Trade Practices Tribunal; ex parte Tooheys Ltd (1977) 16 A.LR. 609,616.
60 S. 22(2).
61 It should, incidentally, be noticed thats. 9(2)(c) is so worded that the Ombuds-man is able to summon without Ministerial approval officers of any Department or prescribed authority, not only those in the particular Department or prescribed authority whose action is under investigation.
62 [1953] A.C. 530.
63 Id. 533.
64 1bid.
65 Cf. s. 155(1 )(c) of the Trade Practices Act 1974 (Cth).
66 The High Court refused to answer a similar question in Testro v. Tait (1963) 109 C.L.R. 353, 361-362, 371.
67 On the question of whether, in the absence of s. 8(7), a person being heard under s. 8(5) would have been-entitled te be represented, see generally WhitmoFe and Aronson, op. cit. 107-109.
68 (1976) 134 C.L.R. 475.
69 Id. 492.
70 [1977) 3 All E.R. 703; reversed without reference to this point, in Rio Tinto Zinc Corpn v. Westinghouse Electric Corpn [1978) A.C. 547.
71 [1977] 3 All E.R. 703, 710.
72 Wigmore on Evidence (1961) viii, para. 2210.
73 Phipson on Evidence (12th ed. 1976) para. 583.
74 (1841) 2 M. & Rob. 386, 174 E.R. 326.
75 [1976] Q.B. 23 (referred to supra n. 51).