Deripaska v Minister for Foreign Affairs

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FEDERAL COURT OF AUSTRALIA

Deripaska v Minister for Foreign Affairs [2025] FCAFC 36

Appeal from: Deripaska v Minister for Foreign Affairs [2024] FCA 62
File number: WAD 41 of 2024
Judgment of: WIGNEY, STEWART AND NESKOVCIN JJ
Date of judgment: 27 March 2025
Catchwords:

STATUTORY INTERPRETATION – where the Autonomous Sanctions Act 2011 (Cth) and Autonomous Sanctions Regulations 2011 (Cth) impose restrictions on designated persons or entities – where it was common ground that regs 14 and 15 would impinge on the entrenched jurisdiction under s 75(v) of the Constitution – where the primary judge read down regs 14 and 15 as not applying to actions taken for the objective purpose of challenging the validity of decisions or actions taken under s 75(v) of the Constitution or s 39B(1) of the Judiciary Act1903 (Cth) – whether primary judge erred – no error in primary judge’s conclusions – appeal dismissed

CONSTITUTIONAL LAW – where primary judge held that regs 14 and 15 do not have applications that would subvert the exercise of jurisdiction under s 75(v) or s 39B(1) – where primary judge held that regs 14 and 15 when read down were not inconsistent with the principles established by Ch III of the Constitution – whether primary judge erred – no error in primary judge’s conclusions

ADMINISTRATIVE LAW – judicial review of Instruments made by the Minister designating and declaring the appellant pursuant to reg 6(a) and (b) of the Regulations – where primary judge held that the Minister did not misapprehend her power when purporting to designate and declare the appellant – whether the primary judge erred – no error in primary judge’s conclusions demonstrated – Minister’s decision would nonetheless be valid by reason of item 5 of Sch 1 of the Autonomous Sanctions Amendment Act 2024 (Cth)
Legislation:

Constitution ss 75(iii), (v)

Acts Interpretation Act 1901 (Cth) ss 15A, 15AA

Autonomous Sanctions Act 2011 (Cth) ss 3(1)–(3), 4, 6(1), 9, 10, 12, 14, 16

Autonomous Sanctions Amendment Act 2024 (Cth) Sch 1 item 5

Federal Court of Australia Act1976 (Cth) s 43

Judiciary Act 1903 (Cth) s 39B(1)

Legislation Act 2003 (Cth) s 13(2)

Autonomous Sanctions Regulations 2011 (Cth) regs 3, 6, 9(1)–(3), 14, 15, 18

Autonomous Sanctions Amendment (Russia) Regulations 2022 (Cth)

Migration Regulations 1994 (Cth) reg 2.43(1)(aa)(i)

Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Ukraine) Amendment (No 4) Instrument 2022 (Cth)

Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) Amendment (No 7) Instrument 2022 (Cth)

Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) List 2014 (Cth)

Autonomous Sanctions (Sanction Law) Declaration 2012 (Cth)

Explanatory Memorandum, Autonomous Sanctions Amendment Bill 2024 (Cth)
Cases cited:

Abramov v Minister for Foreign Affairs (No 2) [2023] FCA 1099

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44

Australian Coarse Grains Pool Pty Ltd v Barley Marketing Board (1985) 157 CLR 605; [1985] HCA 38

Australian Education Union v…

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Details
Case
[2025] FCAFC 36
Decision Date

CaseChat Overview and Summary

In the case of Deripaska v Minister for Foreign Affairs, the appellant, Mr Deripaska, challenged various aspects of his designation and declaration under the Autonomous Sanctions Regulations 2011 (Cth) by the Minister for Foreign Affairs. The court was tasked with determining whether the primary judge erred in his interpretation of the Regulations, and whether the Minister's decision to designate and declare Mr Deripaska was valid. The appellant also sought to challenge the constitutionality of certain regulations on the basis that they impinged on the entrenched jurisdiction under s 75(v) of the Constitution. The court needed to decide whether the primary judge correctly interpreted the Regulations, whether the Minister misapprehended her powers, and whether the Regulations were inconsistent with the principles established by Chapter III of the Constitution.

The court held that there was no error in the primary judge’s interpretation of the relevant documents and his understanding of the Minister’s discretion. The primary judge had carefully considered the documents before the Minister, including the Explanatory Statement and the Ministerial Submission, and rejected the appellant's arguments that the Minister misunderstood her powers. The court found that the primary judge appropriately balanced the need for a busy decision-maker to not be overly constrained by forensic analysis, while still ensuring the Minister understood the discretionary nature of her powers. The primary judge's reasoning was found to be consistent and logical, and there was no error in his conclusions.

The court further held that the primary judge correctly interpreted the relevant regulations and that they were not inconsistent with the principles established by Chapter III of the Constitution. The court found that the primary judge correctly read down the relevant regulations to exclude actions taken for the purpose of challenging the validity of decisions or actions taken under s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth). The court rejected the appellant's arguments that the primary judge erred in his interpretation of the regulations, and found that the primary judge's conclusions were correct. The court also held that the Minister's decision to designate and declare Mr Deripaska was valid, notwithstanding any alleged misapprehension of her powers.

The court dismissed the appeal and ordered that Mr Deripaska pay the respondent's costs of and incidental to the appeal. The court found that there was no merit in the appellant's arguments, and that the primary judge's conclusions were correct. The court held that the regulations were not inconsistent with the principles established by Chapter III of the Constitution, and that the Minister's decision to designate and declare Mr Deripaska was valid. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE STATUTORY REGIME

[4]

The Act

[4]

The Regulations

[10]

Instruments of designation and declaration

[20]

Permits

[28]

COMMON GROUND

[32]

THE REASONS OF THE PRIMARY JUDGE

[37]

“Reading down”

[39]

Federal jurisdiction

[51]

Judicial review grounds

[53]

The broader argument

[56]

The narrower argument

[59]

DETERMINATION

[63]

“Reading down”

[63]

The broader Ch III argument [ANOA Grounds 1, 4, 5 and 6]

[93]

Misapprehension of the Minister’s powers [ANOA Ground 7]

[106]

First limb – Minister’s alleged misunderstanding of her powers

[107]

Second limb – Minister’s alleged misunderstanding of her powers

[119]

The broader argument

[120]

The narrower argument

[134]

The 2024 Amendment Act (Notice of contention)

[141]

Costs

[153]

CONCLUSION

[156]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

First, the appellant submitted that the primary judge reasoned that “[t]he only direct evidence of the former Minister’s thought process is the Explanatory Statement”: J [131]. The appellant submitted that that proposition was unfathomable, and the primary and most direct evidence of the former Minister’s thought process was contained in the Minister’s handwritten response to “Part A” of the “Decision Record”. The documents that were before the Minister comprised the Ministerial Submission and the Decision Record, which were part of the same document, the Explanatory Statement and the Statement of Compatibility. It is artificial to treat the Decision Record, as the appellant does, as a separate and distinct document. In any event, the primary judge’s reasons refer to the Decision Record, at J [27]–[31], [35], [150]–[151], and his Honour cannot be said to have overlooked it. The appellant relied upon the contents of the Decision Record to support an inference that the Minister understood her discretion to be limited to deciding whether she was satisfied that the appellant met the criteria for designation and declaration. As the reasons show, his Honour paid careful regard to the Explanatory Statement and Ministerial Submission which were before the Minister in rejecting the broader argument, that the Minister did not realise that she had a discretion at all and merely proceeded on the basis that, if satisfied that the appellant met the criteria, she was required to designate and declare him under reg 6. On the basis of the contents of the Explanatory Statement, which said that “[reg] 6 … enables the Minister for Foreign Affairs … to designate … and/or declare a person…” (emphasis added), his Honour held that this framing of the power that was being exercised properly reflected the discretionary element of the power: J [131]–[132]. Further, his Honour held that the briefings contained in the Ministerial Submission “were apt to convey to the Minister that, if satisfied that the [appellant] met the relevant criteria, she would have a choice to make”: J [140]. There was no error in his Honour’s conclusions. Secondly, the appellant submitted that the primary judge’s reasoning was self-contradictory. His Honour reasoned that “it is necessary to consider what impression [the Recommendation on the front page of the Ministerial submission] would have conveyed to a busy decision-maker”, and that “the Minister probably did not read it with the forensic attention that counsel have brought to bear”: J [136]. However, in rejecting the appellant’s submission, his Honour is said to have used precisely the kind of close textual parsing that, on his view, the former Minister would have eschewed. This argument is similarly rejected. His Honour paid appropriate and careful regard to the relevant documents in determining whether the Minister misapprehended her powers. Thirdly, the appellant submitted that the primary judge eschewed “identifying the ‘correct’ construction of the Recommendation”: J [136], yet that was one of the primary tasks that his Honour had to perform. It was a task, the appellant submitted, that Kenny J rightly performed in Abramov, which led her Honour to the correct conclusion, at Abramov [112]. His Honour did not “eschew” identifying the “correct” construction of the Recommendation in the Ministerial Submission, rather, he did not accept the appellant’s construction of it.

Ratio Decidendi

Legal Principle Established

Where a person is declared for a travel ban under reg 6(b), provisions in the Migration Regulations 1994 (Cth) make that declaration a ground for refusal of a visa (‘PIC’ 4003 in Sch 4) or for cancellation of an existing visa (reg 2.43(1)(aa)(i)). A designation under reg 6(a) and a declaration under reg 6(b) is effective for three years: regs 9(1)–(2). The Minister may, by legislative instrument, declare that a designation or declaration continues to have effect for a further three years: regs 9(1)(b), (2)(b) and (3). Where a person or an entity is designated under reg 6(a), later provisions of the Regulations dealing with prohibitions become relevant. Part 3 of the Regulations contains provisions prohibiting certain conduct to ensure that sanctions imposed under the autonomous sanctions regime are effective. Relevantly for present purposes, reg 14 prohibits dealing with designated persons or entities, and provides:14 Prohibition of dealing with designated persons or entities(1) A person contravenes this regulation if:(a) the person directly or indirectly makes an asset available to, or for the benefit of, a designated person or entity; and(b) the making available of the asset is not authorised by a permit granted under regulation 18.(1A) Strict liability applies to the circumstance that the making available of the asset is not in accordance with a permit under regulation 18.Note 1: For strict liability, see section 6.1 of the Criminal Code.Note 2: Strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of this regulation.(2) Section 15.1 of the Criminal Code applies to an offence under section 16 of the Act that relates to a contravention of this regulation.Note 1: This has the effect that the offence has extraterritorial operation.Note 2: This regulation may be specified as a sanction law by the Minister under section 6 of the Act. Reg 15 prohibits using or dealing with controlled assets and provides:15 Prohibition of dealing with controlled assets(1) A person contravenes this regulation if:(a) the person holds a controlled asset; and(b) the person:(i) uses or deals with the asset; or(ii) allows the asset to be used or dealt with; or(iii) facilitates the use of the asset or dealing with the asset; and(c) the use or dealing is not authorised by a permit granted under regulation 18.(1A) Strict liability applies to the circumstance that the use or dealing with the asset is not in accordance with a permit under regulation 18.Note 1: For strict liability, see section 6.1 of the Criminal Code.Note 2: Strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of this regulation.(2) Section 15.1 of the Criminal Code applies to an offence under section 16 of the Act that relates to a contravention of this regulation.Note 1: This has the effect that the offence has extraterritorial operation.Note 2: This regulation may be specified as a sanction law by the Minister under section 6 of the Act.