Cxxxviii v Commonwealth of Australia & Ors

The matter before the High Court of Australia concerned an appeal by Cxxxviii against the Commonwealth of Australia and others. The core of the dispute revolved around the validity of certain determinations made by the Board of the Australian Criminal Intelligence Commission (ACC) under amending legislation. The appellant sought to resist the revocation of special leave to appeal, arguing that the existence of a particular investigation was a prerequisite for the Board's determination to classify it as a "special investigation" under item 55 of Schedule 1 of the amending Act.

The legal issues before the Court included whether item 55 of the amending Act required the existence of an extant or contemplated particular investigation prior to the Board making a determination, and the effect of subsections 55(2) and 55(3) which purported to deem determinations and acts done pursuant to them as valid, notwithstanding potential invalidity under the previous legislation. Furthermore, the Court considered whether the amending legislation, by allowing the Board to determine federally relevant criminal conduct and public interest without specific criteria, lacked sufficient constitutional specificity to be considered a valid law, drawing parallels with arguments raised in *Plaintiff S157*.

The appellant contended that the amending Act could not create a particular investigation into existence, and that item 55's deeming provisions operated prospectively and only validated the determination itself, not the underlying investigation. The Solicitor-General for the Commonwealth argued that the retrospective amendments, specifically items 55 and 56, were analogous to provisions previously upheld by the High Court, such as in *Duncan v ICAC*, which validated past actions despite prior invalidity. He submitted that the appellant lacked standing to challenge the prospective provisions as they had not yet affected their rights, and that the constitutional challenges regarding generality were not presently in play.

Ultimately, the Court adjourned the further hearing to 28 January, ordering the appellant to file an amended notice of appeal and amended written argument by 22 January. This amended material was to include further arguments regarding the necessity of an investigation and the lack of specificity in the Board's powers. Directions for the respondents' submissions were vacated, with the Court expressing a desire for brief responsive submissions from the Solicitor-General by the week prior to the hearing.