EAZ20 v Anderson
[2020] FCA 1314
•9 September 2020
FEDERAL COURT OF AUSTRALIA
EAZ20 v Anderson [2020] FCA 1314
File number: SAD 130 of 2020 Judgment of: BESANKO J Date of judgment: 9 September 2020 Date of Publication of Reasons: 15 September 2020 Catchwords: PRACTICE AND PROCEDURE — application for interim relief in a proceeding for judicial review of a decision made by an examiner of the Australian Crime and Intelligence Commission pursuant to s 28 of the Australian Crime Commission Act 2002 (Cth) to summons the applicant — whether the examiner failed to take into account a relevant consideration — whether the applicant’s attendance at the examination may expose him to a substantial risk — where no evidence of the applicant’s circumstances adduced — application for interim relief refused Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Australian Crime Commission Act 2002 (Cth) s 28
Division: General Division Registry: South Australia National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 15 Date of hearing: 9 September 2020 Counsel for the Applicant: Mr B McCloud Solicitor for the Applicant: McMahon & Co Barristers & Solicitors Counsel for the Respondent: Mr P d’Assumpcao Solicitor for the Respondent: Australian Criminal Intelligence Commission ORDERS
SAD 130 of 2020 BETWEEN: EAZ20
Applicant
AND: JEFFREY P ANDERSON
First Respondent
AUSTRALIAN CRIME AND INTELLIGENCE COMMISSION
Second Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
9 SEPTEMBER 2020
THE COURT ORDERS THAT:
1. The applicant’s application for interim relief as set out in paragraphs 1 and 2 of the orders sought in the originating application for judicial review filed on 8 September 2020 be refused.
2. The applicant pay the respondents’ costs of an incidental to the application for interim relief, to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
On 31 August 2020, an examiner acting under s 28 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) issued a summons to EAZ20 to appear before the examiner at an examination on [REDACTED] September 2020. During the afternoon of 8 September 2020, EAZ20 issued an originating application for judicial review in relation to the examiner’s decision under s 28 of the ACC Act. The application was supported by an affidavit of Angela Yvonne Gransden affirmed on 26 August 2020.
EAZ2O’s originating application for judicial review included an application for the following interim orders:
1.An interim order directing the respondents to refrain from conducting an examination scheduled at [REDACTED], and excusing the applicant from attending.
2.An interim order that any such examination planned with the applicant be adjourned until such time as this application has been heard.
At approximately 8.15 am on 9 September 2020, the application for those interim orders came on for hearing before the Court. I heard submissions from the parties and at the conclusion of those submissions I refused EAZ20’s application for interim orders. I said that I would publish reasons for my refusal and these are my reasons.
The substantive orders sought by EAZ20 in his originating application for judicial review are as follows: (1) an order setting aside the decision by the respondent(s) to issue the summons to EAZ20; (2) a declaration that the decision to issue the summons was unlawful; and (3) a direction that the examination be stayed. I was informed by counsel for EAZ20 at the hearing that the application was made under s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Section 5(1)(e) provides that a person aggrieved by a decision to which the Act applies, may apply to this Court for an order of review in respect of the decision on the ground that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Section 5(2)(b) of the ADJR Act provides that the reference to an improper exercise of a power is to be construed as including, inter alia, a reference to a failing to take a relevant consideration into account in the exercise of a power.
EAZ20 alleges in his originating application for judicial review that he is a prisoner in custody at a South Australian correctional facility and that he has been summonsed to appear at an Australian Crime and Intelligence Commission (ACIC) examination on [REDACTED] September 2020 by the first respondent who is an examiner appointed by the ACIC. He alleges that as a result of COVID‑19 restrictions on court hearings and prisoner movement, the secrecy of the examination may not be able to be preserved. He alleges that there are currently a range of COVID-19 related public health measures, and substantial restrictions on movement of prisoners in place within South Australian correctional facilities. He alleges that there has also been a corresponding reduction in criminal cases being heard in Adelaide. He alleges that these circumstances when combined mean that there have been very few, if any, prisoners being required to leave the correctional facility at which he is being held for court appearances. He alleges that the fact of EAZ20 being taken by Corrections staff to travel from the correctional facility to Adelaide for a court hearing is likely to appear highly suspicious to other prisoners who may also notice that his name will not appear in any case lists. He alleges that other prisoners being aware of his attendance at the ACIC examination may expose him to a substantial risk to his safety.
EAZ20’s case is that the relevant considerations which the examiner failed to take into account are as follows:
a.Maintaining the secrecy surrounding ACIC examinations is fundamental to ensure the proper conduct of this process. The nature of the information and material being considered during ACIC examinations makes it imperative that secrecy is maintained to protect the safety of those persons compelled by summons to give evidence.
b.The applicant is a prisoner whose movements will be noticed and observed by other prisoners. The COVID-19 related restrictions on prisoner movement and court hearings will make it obvious to other prisoners that the applicant has been required to attend an unusual court hearing, because he will be removed from the prison, and transported away in a manner which is consistent with appearing in court.
c.If a fellow prisoner becomes curious about the applicant’s movement, and tries to investigate the nature of the proceedings he must attend, the applicants name will not appear in any published case lists, which may arouse further suspicion.
d.A recent attempt at service of the applicant by the respondent which took place at Mobilong, and the surrounding circumstances discussed above are all likely to draw attention to the applicant within the prisoner population at Mobilong.
e.There is a very substantial risk that the applicant’s attendance at the examination will become known amongst other prisoners within Mobilong, and he may be exposed to violence or retribution as a consequence of his attendance.
EAZ20 alleges that the prevailing conditions of the criminal justice and corrections systems due to COVID-19 restrictions are relevant matters to the exercise of the power to compel EAZ20 to attend an examination that the respondents should have considered prior to deciding to summons EAZ20 to attend. He alleges that the respondents’ failure to consider these relevant matters may place EAZ20 at a substantial risk of harm. He alleges that, viewed against this background, it was not reasonable to summons EAZ20 to appear. None of the factual allegations set out are supported by evidence from EAZ20. He has not given any evidence in support of his application.
The affidavit of Ms Gransden was affirmed before the examiner made his decision to issue the summons. Ms Gransden is the Director, Operational Support and Performance currently working offline as the Agency COVID-19 Coordinator at the Department of Correctional Services (DCS). She states that she is authorised to speak on behalf of the DCS about its response to Novel Coronavirus 19 and the strategies and procedures being implemented to prevent an outbreak within the South Australian Correctional Services system. Those strategies and procedures are the matters which are the subject of her affidavit. Ms Gransden’s evidence is not directed specifically to EAZ20, or even the particular correctional facility where he is being detained. The evidence is directed primarily to measures being taken within the correctional services sector to deal with the risks associated with the current pandemic. One item of what seems to be relevant evidence is that throughout the sector, non-essential prisoner movements are being reduced and “technology is being used to maintain key services such as Parole Board hearings and court hearings”.
For their part, the respondents relied on an affidavit of James Douglas Edgecombe sworn on 9 September 2020. Mr Edgecombe is an investigator with the ACIC. He states that on [REDACTED] September 2020 he was “tasked” to attend the correctional facility at which EAZ20 is being held for the purposes of serving a summons issued by the examiner to EAZ20 under s 28 of the ACC Act. He refers to the basic features of the summons. He met EAZ20 at approximately 11 am in the company of another staff member of the ACIC and EAZ20 confirmed his identity to him. He handed the summons to EAZ20 and he spoke with him about the summons and his obligations under it. He advised EAZ20 that he could arrange to have the summons provided to his solicitor so that he did not need to retain his summons in prison. EAZ20 agreed to proceed in that way.
Mr Edgecombe also spoke to EAZ20 about the process that would be used to bring him to the ACIC examination. He provided EAZ20 with a “cover story” which was moulded to EAZ20’s circumstances of which Mr Edgecombe was aware and which aligned with current practices of law enforcement with respect to prisoners in custody. Mr Edgecombe states that the story was developed so that EAZ20 could rely on it and provide a credible account of his whereabouts should anyone inquire as to why he was being taken out of prison. Importantly, the story did not require him to disclose that he had been summonsed to the ACIC. Mr Edgecombe states that if the cover story was disclosed in these proceedings, it would undermine its use in future operations engaged in by the ACIC for similar activities. In addition, it could jeopardise the effectiveness by which the ACIC attempts to conceal its involvement in serving summonses like the current one in correctional services facilities, both in South Australia and nationwide, if such information were disclosed in these proceedings.
Mr Edgecombe states that he has been advised by another ACIC investigator, David Simms, and has confirmed the same from his independent assessment and review of ACIC records, that the summons was provided to EAZ20’s solicitors on the morning of 2 September 2020 as had been arranged.
Mr Edgecombe states that previously he has been personally involved in the successful removal of prisoners from facilities operated by the DCS in South Australia for the purposes of ACIC examinations since the COVID-19 pandemic occurred. He states that this had occurred safely and without any incident to any examinee. Furthermore, in each case in which he was involved, the removal of the examinee included a cover story, adapted to the circumstances, which enabled the examinee to leave the facility with impunity from other prisoners “down the track”. In each case, the cover story which had been developed takes into account issues such as the examinee’s current circumstances along with what is known to be occurring within the prison population in terms of COVID-19 management and any other relevant matter.
EAZ20 did not provide an explanation as to why his application was not issued before 8 September 2020.
The application for interim relief must fail on the grounds that EAZ20 has failed to establish an arguable case and, in any event, he has failed to establish that the balance of convenience favours interim relief. There is no evidence supporting the detailed factual allegations specifically related to EAZ20 and his circumstances. Assuming for the purposes of argument that whether and, if so, what arrangements can be made for a person’s safety is a matter which should be taken into account in the decision to issue a summons, the evidence of Mr Edgecombe of the ACIC’s practice, in respect of which I am prepared to infer the examiner would have been aware, suggests that the examinee’s safety was taken into account, not that it was overlooked. In any event, absent evidence from EAZ20, and in light of the evidence of Mr Edgecombe, the balance of convenience favours the respondents, not EAZ20.
It was for these reasons that I refused the application for interim relief.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 15 September 2020
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