Melco disputes the powers of NSW casino probe
Thursday 6th February 2020
Stanley Ho is banned from any involvement in Australian - and several foreign - gambling operations because of his alleged connections with organised crime, the existence of which he denies and have never been proven.
The inquiry, which will hear evidence from both Mr Packer and the junior Mr Ho, has already ordered Melco produce documents that the company claims are privileged.
But Steven Finch, SC, appearing for Melco, questioned whether the rules that may allow the inquiry to ignore legal privilege - section 17(1) of the Royal Commissions Act - even apply to the inquiry.
While the Casino Control Act enables the ILGA to hold inquiries, he said it "does not mention the Royal Commissions Act or privilege".
The barrister said there were several "hurdles" to clear to enliven the provisions of the Royal Commissions Act, including receiving letters patent from the governor, which had not occurred.
He also defended his clients' right to refuse such orders under the privilege, which he said was "essentially about witnesses and their protection when giving evidence".
"We are in the territory of the removal of people's rights," Mr Finch told the court.
"If an incursion is going to be made into civil rights in terms of the abrogation of civil rights ... then it underlines the importance of recognising that the inquiry that is currently underway is not and never was a royal commission."
Any decisions that compromised witnesses' rights required "clear words" to do so, the silk said.
"Is there anything that we have seen so far that makes it clear through clear words that section 17(1) should apply to this inquiry? The answer is no, no it should not."
But Stephen Free, SC, appearing for the ILGA, said Melco's understanding of how the Royal Commissions Act and Casino Control Act interacted with each other was wrong and the inquiry was properly empowered to order legal privilege be breached.
"It's the wrong starting point to go through the Royal Commission Act in isolation ... The Casino Control Act establishes an entirely distinct regime by which inquiries are established.
"They are established by the inquiry itself, and that inquiry has the power to decide how that person [the Commissioner] is appointed ... and to decide if they will engage the special powers of part two of the Royal Commissions Act."
Melco already unsuccessfully objected to the inquiry's intention to require witnesses produce evidence despite "legal, professional or other privileges" in a preliminary hearing in January.
Justice Christine Adamson reserved her judgment but acknowledged there was "some urgency" to reach a decision.
Mr Finch said the inquiry had plenty to be going on with until examining Melco witnesses, however - the issue of share transfer to Mr Ho is slated for the inquiry's second round of hearings.
The first round, focussed on the vulnerability of casinos to money laundering and organised crime, begins on February 24.