CCXV v Commonwealth of Australia

[2018] FCCA 3922

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCXV v COMMONWEALTH OF AUSTRALIA & ORS [2018] FCCA 3922

Catchwords:
ADMINISTRATIVE LAW – Application by respondent to transfer proceedings to Federal Court – whether resources of this Court sufficient to hear and determine proceedings – whether in interests of administration of justice to transfer – whether proceedings involve questions of general importance – costs and convenience – wishes of parties – where applicant seeks to raise constitutional issues.

Legislation:

Australian Crime Commission Act 2002 (Cth), s.16
Federal Circuit Court of Australia Act 1999 (Cth), s.39(1) & (3) and 40(2)

Federal Circuit Court of Australia Rules 2001 (Cth), r.8.02(4)
The Australian Constitution, s.51(xxxix) and Chapter III

Applicant: CCXV

First Respondent: COMMONWEALTH OF AUSTRALIA

Second Respondent: THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION REPRESENTING THE MEMBERS OF THE BOARD OF THE AUSTRALIAN CRIME COMMISSION AS IDENTIFIED IN S.7B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Third Respondent: ANDERSON JEFFREY

File Number: ADG 340 of 2018

Judgment of: Judge Heffernan

Hearing date: 11 December 2018

Date of Last Submission: 11 December 2018

Delivered at: Adelaide

Delivered on: 11 December 2018

REPRESENTATION

Counsel for the Applicant: Mr M Abbott QC and Ms R Gray SC

Solicitors for the Applicant: Patsouris & Associates

Counsel for the Respondents: Mr P Hanks QC

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Pursuant to s.39(1) of the Federal Circuit Court of Australia Act 1999 (Cth), the proceedings are transferred to the Federal Court of Australia to a date and time to be advised.

2. The question of costs is reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 340 of 2018

CCXV

Applicant

And

COMMONWEALTH OF AUSTRALIA

First Respondent

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION REPRESENTING THE MEMBERS OF THE BOARD OF THE AUSTRALIAN CRIME COMMISSION AS IDENTIFIED IN S.7B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Second Respondent

ANDERSON JEFFREY

Third Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. This is an application by the respondents for an order pursuant to s.39(1) of the Federal Circuit Court of Australia Act 1999 (Cth), (‘the Act’) that these proceedings be transferred to the Federal Court of Australia. The matter comes before the Court on an originating Application for judicial review.

2. Relevantly to this application, ground 4 of the originating Application asserts the invalidity of relevant statutory provisions. Paragraph 14 of the originating Application contends that the Australian Crime Commission Act 2002 (Cth) ‘the Crime Commission Act’ seeks to impermissibly establish a process to allow for the conducting of a compulsory executive investigative process in which the privilege against self-incrimination is abrogated. Such order may be made even when a person is charged with a criminal offence. Such legislative provisions are unsupported by any relevant Head of Commonwealth legislative power, including the incidental power in s.51(xxxix) of the Australian Constitution; constitutes an abuse of the adversarial process of criminal justice and renders the statutory provisions concerning the issuing of the summons and the requirements to attend the compulsory examination incompatible with the assumptions underlying Chapter III of the Constitution.

3. Paragraph 15 of ground 4 of the originating Application contends that to the extent that s.16 of the Crime Commission Act purports to exclude a challenge including by way of judicial review of the determination, it is invalid. I have considered the submissions of counsel for the applicant and the respondent. I have considered the affidavits read by both parties. The respondent bears the onus of demonstrating to my satisfaction that this is an appropriate case to transfer to the Federal Court.

4. In deciding whether to transfer a proceeding to the Federal Court under s.39(1) of the Act, I must, pursuant to s.39(3) of the Act, have regard to the following:

   a)any Rules of Court made for the purposes of subsection 40(2);

   b)whether the proceedings in respect of an associated matter are pending in the Federal Court;

   c)whether resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and

   d)the interests of the administration of justice.

5. Pursuant to s.40 of the Act, the Rules of Court can make provision in relation to transfers of proceedings under s.39(1), and subs.40(2) provides that Rules of Court may set out factors to be taken into account. Rule 8.02(4) of the Federal Circuit Court of Australia Rules 2001 (Cth), (‘the Rules’), lists five factors that must be taken into consideration:

   a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;

   b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

   c)whether the proceeding will be heard earlier in the Court;

   d)the availability of particular procedures appropriate for the class of proceeding; and

   e)the wishes of the parties.

6. I have given consideration to the matters set out in s.39(3) of the Act and I have given consideration to the five matters identified in r.8.02(4) of the Rules. Mr Hanks QC, for the respondents, emphasises that the constitutional issue which seeks to establish that the Australian Crime Commission Act is invalid, raises a question of general importance. It is conceded by the applicant that it raises a matter of general importance and the applicant made its own submissions as to the implications of that.

7. It was submitted by Mr Hanks QC that it is appropriate that the Federal Court, having greater expertise in areas of constitutional matters, is the desirable forum in which this application should proceed.  Further, it was submitted that given the resources available to that Court, both intellectual and in terms of judicial availability and resources, it is preferable that this matter be transferred to the Federal Court and that if that were to occur, it is likely that it will be more swiftly dealt with.

8. It was further submitted by Mr Hanks QC that it is not unusual for the Federal Court to hear and determine fully developed challenges to the constitutional validity of Commonwealth laws, but such challenges are rare in this Court.  Finally, he submitted it is in the interests of the administration of justice for the proceedings to be determined with a minimum of delay and that the challenge to constitutional validity of the relevant Act be determined by a Court with acknowledged experience in constitutional issues.  It is submitted by the respondents that those matters points towards a transfer to the Federal Court.

9. Mr Abbott QC for the applicant submits that this Court has the resources, the capacity, and the expertise to deal with a matter of this kind involving the constitutional issues that will be inevitably raised as the ground of challenge is developed.  It was submitted that the affidavit of Mr Patsouris has established that this Court is capable of, when called upon to exercise its jurisdiction, hearing matters in an expeditious way and that the costs are likely to be significantly greater if the matter were to be transferred to the Federal Court.  That is a matter which is disputed by the respondents.

10. Further, it was submitted that the applicant chose to file in this jurisdiction, which he was entitled to do, and that it was considerations of costs, both as to filing fees, daily hearing fees, and this Court’s schedule of costs, in addition to the streamline procedures and informality provided by this Court, which were attractive to the applicant and upon which the applicant seeks to call.  It was submitted by Mr Abbott QC that it is in the interests of the administration of justice that these proceedings continue in this Court and perhaps to summarise inelegantly, his strong submission was that the applicant had confidence that this Court had the ability and the resources to adequately deal with the arguments that will ensue.

11. As I have said, I have considered the submissions made by both counsel. If I have not summarised every submission that was made, that is not to suggest that I have not given it consideration in the course of considering this matter. On balance, I am satisfied that this is an appropriate case to be transferred to the Federal Court under s.39(1) of the Act. I am satisfied that the resources of the Federal Court, both in terms of judicial availability and the intellectual resources and experience of the Federal Court, are better suited to the arguments that will be pursued in this matter than this Court.

12. I am further satisfied that it is in the interests of the administration of justice that it be transferred to the Federal Court because of the subject matter being the challenge to the validity of the Crimes Commission Act as a whole. I have, as I have said, considered all of the factors in s.39(3). I am satisfied with respect to paragraph (a) of r.8.02(4) of the Rules, that these proceedings are likely to involve questions of general importance, such that it is desirable for there to be a decision of the Federal Court on one or more of the points in issue. I give that consideration particular weight.

13. I give that matter greater weight than the consideration identified by Mr Abbott QC that there will be additional cost involved to the applicant in the event that this matter is transferred.  It is difficult to have any scientific or precise information as to whether or not the proceeding will be heard earlier in the Federal Court than this Court.  However, given the workload of this Court and the situation with respect to judicial resources available to hear General Federal law matters, I think it is more likely that the matter will be heard more expeditiously in the Federal Court.  I note that it is against the wishes of the applicant that the matter be transferred, but I am satisfied that this is an appropriate matter to be transferred and I am not satisfied that there is a sufficient lack of particular procedures appropriate in the Federal Court for proceedings of this kind that would tip the balance in favour of me not transferring.

14. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  16 January 2019