Campbell v Australian Crime Commission - [2013] FCCA 2085

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPBELL & ANOR v AUSTRALIAN CRIME COMMISSION

[2013] FCCA 2085

Catchwords:
ADMINISTRATIVE LAW – Request for reasons under s.13 of the Administrative Decisions (Judicial Review) Act – exceptions to obligation to provide reasons.

PRACTICE & PROCEDURE – Security for costs – overseas-based applicants with no assets in Australia.

PRACTICE & PROCEDURE – Claim of public interest immunity – possible prior loss of confidentiality – request to cross-examine witness deposing to confidentiality of documents over which public interest immunity claimed.

PRACTICE & PROCEDURE – Claim of legal professional privilege – possible waiver.

Legislation:

Administrative Decisions (Judicial Review) Act 1977, s.13, sch.2

Australian Crime Commission Act 2002, s.28
Federal Circuit Court of Australia Act 1999, s.80
Federal Circuit Court Rules 2001, r.21.01
Foreign Judgments Act 1991
Evidence Act 1995 (Cth), ss.130, 131A
Evidence Act 1995 (NSW), s.131A

Cases Cited:
X7 v Australian Crime Commission (2013) 87 ALJR 858
Department of Foreign Affairs & Trade v Boswell (1992) 36 FCR 367
JJ v Board of the Australian Crime Commission (2011) 278 ALR 571
Barnes v Boulton (2004) 139 FCR 356
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642
Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd (In liq) [2011] NSWCA 84
New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Sankey v Whitlam (1978) 142 CLR 1
Police Federation of Australia v Nixon (2011) 198 FCR 267
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) (2008) 234 CLR 532
Woodroffe v National Crime Authority (1999) 168 ALR 585
Young v Quin (1985) 4 FCR 483
Traljesic v Attorney-General (Cth) (2006) 150 FCR 199
Lanyon Pty Ltd v Commonwealth of Australia (1974) 129 CLR 650
Commonwealth v Northern Land Council (1993) 176 CLR 604
Rilstone v BP Australia Pty Ltd [2007] FCA 1557

First Applicant:

PETER CAMPBELL

Second Applicant:

HENRY SMART

Respondent:

AUSTRALIAN CRIME COMMISSION

File Number:

SYG 1556 of 2013

Judgment of:

Judge Cameron

Hearing dates:

26 September & 24 October 2013

Date of Last Submission:

24 October 2013

Delivered at:

Sydney

Delivered on:

9 December 2013

REPRESENTATION

Solicitors for the Applicants:

Nyman Gibson Stewart

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicants’ application in a case filed on 19 September 2013 be dismissed.
The applicants provide security for the respondent’s costs of the proceedings in the sum of $29,701.00 in a form acceptable to the Registrar of the Court.
The proceedings be stayed until such time as the security ordered in order 2 is provided.
The applicants be refused leave to cross-examine the manager of the respondent’s NSW office.
Further argument on the respondent’s objection to producing certain documents on subpoena on the grounds of public interest immunity stand over to a date to be fixed.
The applicants be refused access to the documents contained in the confidential exhibit referred to in the affidavit of Philippa Jane…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 2085
Decision Date: 9 December 2013

CaseChat Overview and Summary

In *Campbell v Australian Crime Commission*, heard by Judge Cameron, the applicants sought reasons for decisions made by the Australian Crime Commission (ACC) to issue summonses. The core of the dispute revolved around whether these decisions were excluded from the obligation to provide reasons under section 13 of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) (ADJR Act) by virtue of Schedule 2 of that Act. The applicants also raised issues concerning security for costs and the potential loss of confidentiality or waiver of legal professional privilege in relation to documents over which public interest immunity was claimed.

The primary legal issue before the court was the interpretation of Schedule 2 of the ADJR Act, specifically paragraph (e) which exempts decisions relating to the "administration of criminal justice" and paragraph (ea) which specifically exempts decisions under the *Australian Crime Commission Act 2002* (Cth) concerning intelligence operations or investigations of State offences with a federal aspect. The applicants contended that the ACC's functions did not fall within the ordinary meaning of the "administration of criminal justice" as it pertained to Australia's accusatorial system, and that the specific inclusion of ACC decisions in paragraph (ea) indicated paragraph (e) was not intended to apply to the ACC. Conversely, the ACC argued that the administration of criminal justice encompassed decisions requiring the production of documents, the giving of information, or the summoning of witnesses, which directly applied to their decisions to issue the summonses.

Judge Cameron considered the applicants' submission that Schedule 2 should be construed narrowly as it represented a departure from the general policy of the ADJR Act. The court also noted the applicants' reliance on *X7 v Australian Crime Commission* (2013) to support their argument that the ACC's operations were distinct from the administration of criminal justice. The ACC's counter-argument was that its summons powers fell squarely within the broader scope of decisions related to the administration of criminal justice, as contemplated by the ADJR Act. The court was required to determine whether the ACC's decisions to issue summonses were captured by the exceptions in Schedule 2, thereby relieving the ACC of its obligation to provide reasons under section 13 of the ADJR Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Schedule 2 of the ADJR Act relevantly provides:Schedule 2 - Classes of decisions that are not decisions to which section 13 applies…(e)decisions relating to the administration of criminal justice, and, in particular:(i)decisions in connection with the investigation, committal for trial or prosecution of persons for any offences against a law of the Commonwealth or of a Territory;(ii)decisions in connection with the appointment of investigators or inspectors for the purposes of such investigations;(iii)decisions in connection with the issue of warrants, including search warrants and seizure warrants, under a law of the Commonwealth or of a Territory;(iv)decisions under a law of the Commonwealth or of a Territory requiring the production of documents, the giving of information or the summoning of persons as witnesses;(v)decisions in connection with an appeal (including an application for a new trial or a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge) arising out of the prosecution of persons for any offences against a law of the Commonwealth or of a Territory;…(ea)decisions under the Australian Crime Commission Act 2002 being:(i)decisions in connection with intelligence operations; or(ii)decisions in connection with investigations of State offences that have a federal aspect; … The applicants submitted that the matters referred to in para.(e) of sch.2 were to be construed by reference to the words which appear at the beginning of that paragraph, “the administration of criminal justice”, which, they argued, referred to Australia’s accusatorial system of criminal justice. They submitted that as the ACC formed no part of that system, its decisions were not excluded from the reach of s.13 of the ADJR Act. The applicants also pointed to para.(ea) of sch.2, arguing that the existence of a provision specific to the ACC indicated that para.(e) was not intended to apply to it. In support of their submission that the ACC was not part of the system of the administration of criminal justice, the applicants referred to numerous provisions of the ACC Act which, they said, demonstrated that the ACC’s operations were distinct and different from the administration of criminal justice in Australia, citing in this regard X7 v Australian Crime Commission (2013) 87 ALJR 858. The applicants also submitted that as sch.2 of the ADJR Act represented a departure from the general policy of that Act, it ought not be construed broadly: Department of Foreign Affairs & Trade v Boswell (1992) 36 FCR 367 per Hill J at 377. The applicants submitted that unless the ACC’s powers and functions were found to be part of Australia’s system of administration of criminal justice, they were entitled to be provided with the reasons for the issuing of the summonses. The ACC submitted that as well as decisions made in connection with investigations, the administration of criminal justice includes decisions made under Commonwealth laws which require the production of documents, the giving information or the summonsing of witnesses. It submitted that the latter two categories covered its decisions to summons the applicants to appear before it.

Ratio Decidendi

Legal Principle Established

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