Nguyen and Anor v The Commissioner of the Australian Federal Police and Ors

[2013] HCATrans 287

[2013] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B51 of 2013

B e t w e e n -

MAU DUNG NGUYEN

First Plaintiff

DUONG THI BICH LIEN

Second Plaintiff

and

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

First Defendant

JOHN PARKER

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

Writ of Summons

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 11 NOVEMBER 2013, AT 9.38 AM

Copyright in the High Court of Australia

____________________

MR G.D. WENDLER:   If the Court pleases, your Honour, I appear for the first plaintiff and the second plaintiff.  (instructed by Bruce Peters - Solicitor)

MR A.S. McDOUGALL:   If the Court pleases, I appear for the first defendant.  (instructed by Australian Federal Police)

MR G.J.D. DEL VILLAR:   Your Honour, I appear for the third defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I take it there is no actual physical appearance for the second defendant?

MR WENDLER:   No, there is not.  We understand there has been a submitting appearance filed on behalf of the second defendant.

HIS HONOUR:   Thanks, Mr Wendler.  Yes, Mr Wendler.

MR WENDLER:   During the course of last week, your Honour, my friends and I have been in communication and we have raised a document which identifies short minutes of order.  Can I hand up that document?

HIS HONOUR:   Sure.

MR WENDLER:   It is only one page.  There is typing on the back, your Honour.

HIS HONOUR:   Thanks for this.  Just before we do that, can I just ask – looking at your outline of submissions that was filed on 9 October, on the second page, paragraph 6.1, could you just explain to me in simple terms what the proposition is?

MR WENDLER: Yes. I can summarise it in this way. The power given to the Parliament of the Commonwealth in section 77(iii) of the Constitution is a power to make laws to invest State courts with federal jurisdiction. It is a unique power. It is a specific power. It is a special power. It is the only power that the Commonwealth has available to it to invest State courts with federal jurisdiction. The question then arises whether that power is – or what the legal relationship in relation to that power and the Kable doctrine is when that power is used, in effect, to invest jurisdiction in a State court in the way that the Proceeds of Crime Act in section 314 invest jurisdiction in a State court.

Now, the jurisdiction that is vested specially by 314 of the Proceeds of Crime Act is vested in the matter of examination orders which are made, or the authority to make them, by a State court exercising federal jurisdiction is in section 180, and there are categories of – in fact, seven categories of these examination orders.  What occurs from then on is that the – on the examination of the legislation is that the State court exercising federal jurisdiction effectively abdicates authority over the supervisory role of the process or system that is employed in the Act in relation to these examination orders, and that involves the employment and recruitment of a functionary described as an approved examiner who is kept on a list of proved examiners by the Executive, by a federal Executive.  That list is kept by a federal Minister.

That particular functionary then conducts, following the service of these – what are described as examination notices – conducts the examination and a scrutiny of his jurisdiction is such that it is virtually carte blanche in relation to the manner in which these examinations are conducted, including complete discretion to refer questions of law to the very court that made the examination order, in other words, even a question involving his own jurisdiction or the application of various sections in the Act touching on the examination. 

There is no obligation upon that particular non‑judicial functionary to refer any question to the Chapter III court which, in effect, has lent its authority to that process. So, in short, the issue arises as to the legal relationship between the power given to the Parliament of the Commonwealth in section 77(iii) and the application of what is conveniently described as the Kable doctrine.  That is the first aspect of it.

The second aspect of it arises in this way. The power in section 77(iii) cannot be utilised in such a way that the Chapter III court, in effect, is compelled to defeat its own laws. The principle that federal jurisdiction is via the source channel of 77(iii) is invested on the inviolable condition that the court in which it is vested must be taken in its contemporary setting, all its procedure, its organisation, its structure, its government and so on must be taken as is found at the time of the vesting of federal jurisdiction.

Here, there is a complete, in effect, system that has been employed whereby a federal non‑judicial officer is inserted, in effect, into the structure of the Supreme Court of Queensland to run these examination orders, in a way which is totally at odds with the Uniform Civil Procedure Rules in Queensland.  It is against the inviolable right to silence in the Evidence Act (Qld).

So our submission is that when one looks at this scheme of information gathering in relation to the affairs of the plaintiffs in this case, when one looks at that, analyses it, what effect is happening is that the structure of the Supreme Court is being, in effect, transmogrified via the channel of section 77(iii) which cannot be done. So that is the other view in relation to the constitutional issues that the plaintiffs seek to press.

HIS HONOUR:   Thanks, Mr Wendler.  I have to say, I was wondering whether it was appropriate to make an order for the special case before the defendants put on a defence.  Do you have any submission about that, Mr McDougall?

MR McDOUGALL:   No, I do not, your Honour.

HIS HONOUR:   Mr del Villar?

MR DEL VILLAR:   Your Honour, we do not have a difficulty with putting on a special case at the moment.  If they were – can I put it this way?  The statement of claim in its current form would need considerable amendment and so matters would be delayed further.  If they were to amend that we would then put in a defence and then the special case process would go ahead.  It does not seem from our perspective that there are many, if any, contested issues of fact involved here.  What are going to be contested are the sort of legal principles to be applied to them.

HIS HONOUR:   Right.  I suppose my diffidence really derives from the point you make about the statement of claim.

MR DEL VILLAR:   It is rather brief at the moment, your Honour, and it does not spell out with any sort of particularity how it is that those statements about examination orders being made and so forth give rise to the relief that they seek.

HIS HONOUR:   Well, that, I have to say, is my concern.  Do I take it that as a result of your discussions you are confident that the special case will state those facts that are necessary to make the questions that are sought to be agitated live?

MR DEL VILLAR:   Yes, your Honour.  Based on the arguments that you have heard, sort of put forward in summary form this morning, my understanding is the arguments are essentially twofold.  One is this Act, the Proceeds of Crime Act is somehow altering the structure of this Queensland Supreme Court and thereby breaching that principle about taking the court as you find it.  That is one argument.   The second is a little bit harder to describe simply but it seems to be there is a sort of Kable argument with

possible section 80 involvement there, but those questions, in my submission, could be drawn out in a special case.

HIS HONOUR:   All right.  Well, with some misgiving, I have to say, I will make the orders that are in accordance with the draft that I will initial and place with the papers and I will list the matter for further directions on Thursday, 12 December 2013 at 9.30 am.  Very well.  Thank you, gentlemen.  I make the orders in accordance with the draft provided, initialled by me and placed with the papers. 

Adjourn the Court, please.

AT 9.49 AM THE MATTER WAS CONCLUDED