P1 v Australian Crime Commission - [2012] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
P1 v AUSTRALIAN CRIME COMMISSION & ANOR
[2012] SASC 229
Judgment of The Honourable Justice Gray
19 December 2012
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - SPECIAL FEDERAL MATTERS
Application made by the defendants for an order for the transfer of the proceeding issued in the Supreme Court of South Australia to the Federal Court of Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - whether the Supreme Court has jurisdiction to hear the matter pursuant to section 39 of the Judiciary Act 1903 (Cth) - whether the proceeding is a special federal matter within the meaning of section 3(1)(c) and 3(1)(e) of the Jurisdiction of Courts (Cross-Vesting) Act - if the matter is a special federal matter, whether there are special reasons for the matter to be heard by the Supreme Court - whether section 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) removes any jurisdiction that the Supreme Court has to determine the claims.
Held: Application refused - the Supreme Court is invested with federal jurisdiction pursuant to section 39(2) of the Judiciary Act - the proceeding is not a special federal matter - in any event, there are special reasons for the proceeding to be determined by the Supreme Court - section 9 of the Administrative Decisions (Judicial Review) Act does not remove the jurisdiction that the Supreme Court has to determine the claims.
National Crime Authority Act 1984 (Cth); Supreme Court Act 1935 (SA) s 17 and s 31; National Crime Authority (State Provisions) Act 1984 (SA); Commonwealth Constitution s 76 and s 77; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3 and s 9; Australian Crime Commission Act 2002 (Cth) s 55A; Australian Crime Commission (South Australia) Act 2004 (SA) s 8, s 17, s 18, s 19, s 20, s 21, s 22, s 23, s 24, s 25, s 26, s 26A-26F, s 27, s 31 and Pt 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 3, s 4 and s 6; Judiciary Act 1903 (Cth) s 30, s 38, s 39 and s 39B, referred to.
Commonwealth v Baume (1905) 2 CLR 405; Beckwith v The Queen (1976) 135 CLR 569; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; East Australia Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229; Aerolineas Argentinas v Federal Airports Corporation (1993) 32 NSWLR 595; Clyne v Deputy Commissioner of Taxation [1983] 1 NSWLR 110; Woss v Jacobsen (1985) 11 FCR 243; Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 56; R v YZ [1999] NSWCCA 48; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Phillip Morries Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Computershare Ltd v Perpetual (2000) 2 VR 666; B v Australian Crime Commission [2011] FCA 1046; NEC Information Systems Australia Pty Ltd v Iveson & Ors (1992) 36 FCR 258; Telstra Corporation Ltd v CXA Communications Ltd (1998) 146 FLR 481; Metroplaza Ltd v Girvan NSW Pty Ltd (in Liq) (1991) 24 NSWLR 718; Ferdinads v District Court of South Australia & Ors [2010] SASC 265; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, considered.

P1 v AUSTRALIAN CRIME COMMISSION & ANOR
[2012] SASC 229
Civil
GRAY J.

In the within proceeding, P1 seeks relief, including a declaration that a summons directed to P1 dated 28 May 2012 and purporting to be issued by the second defendant, William Boulton, pursuant to section 19(1) of the Australian Crime Commission (South Australia) Act 2004 (SA) and served on P1 on 1 June 2012, is invalid. Orders are also sought setting aside the summons and staying the examination the subject of the summons. Further orders by way of judicial review are also sought. P1’s summons invokes the general jurisdiction of the Supreme Court as well as the jurisdiction to grant judicial review.
This is an application of the first defendant, the Australian Crime Commission, and of Mr Boulton for an order for the transfer of the proceeding issued in this Court to the Federal Court of Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
Background
On 10 June 2009, the Board of the Australian Crime Commission consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act,[1] is relevant criminal activity. On the same date, the Board, in relation to that relevant criminal activity, acting under the South Australian Act, made a determination. The instrument recording the consent and determination was made at 2.18 pm on 10 June 2009. The instrument is described as “Australian Crime Commission — State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009”. The instrument, inter alia, provides:
[1]    Where convenient referred to as the South Australian Act.
2      Commencement
This instrument commences immediately after it is made.
…
4      Authorisation
Pursuant to the duties, functions and powers conferred on the Board by the South Australian Act, the ACC is authorised to investigate matters relating to the relevant criminal activity until 30 June 2010.
Note Under paragraph 5(c) of the South Australian Act, the ACC has the further function of providing reports to the Board on the outcomes of the investigation.
5      Determination
Pursuant to paragraph 8(1)(a) and subsection 8(3) of the South Australian Act, the Board:
(a)     has considered whether ordinary police methods of investigation into matters relating to the relevant criminal activity are likely to be effective; and
(b)     determines that the ACC State investigation authorised by this instrument is a special investigation.
6      Consent
(a) For the avoidance of doubt, the consent of the Board under subsection 55A(3) of the Commonwealth Act shall continue during the currency of the State special investigation.
(b) Pursuant to subsection 55A(5A) of the Commonwealth Act, the Board consents to the performance of a duty or function, and the exercise of a power, of a kind described in subsection 55A(5) of the Commonwealth Act:
(i)    presently conferred; or
(ii)    from time to time conferred;
on the CEO or examiners of the ACC by a law of the State of South Australia, including the South Australian Act, in relation to the State special investigation, and this consent shall continue through the currency of the State special investigation.
7      Classes of persons to participate in investigation
Pursuant to paragraph 8(1)(b) of the South Australian Act, the classes of persons to participate in the State special investigation are those mentioned in Schedule 2.
8      Relevant Criminal Activity to which this instrument applies
The relevant criminal activity to which this instrument applies include offences against a law of the State of South Australia.
9      Purpose of the investigation
The purpose of the State special investigation is to:
(a)     collect and analyse criminal information and intelligence related to the relevant criminal activity, to disseminate that information and intelligence in accordance with the South Australian Act and to report to the Board; and
(b)     to identify persons involved in the relevant criminal activities, to collect evidence about those activities, to facilitate the apprehension of such persons, and to reduce the incidence and effect of such offences on the community; and
(c)     to make appropriate recommendations to the Board about reform of:
i)      the law relating to relevant offences; and
ii)     relevant administrative practices; and
iii)    the administration of the courts in relation to trials of relevant offences
The instrument in its entirety is attached as Schedule A to these reasons.
The instrument of 10 June 2009 was amended by a further instrument of the Board of the Australian Crime Commission dated 9 June 2010. The amendment was effected to paragraph 4 of the 10 June 2009 instrument by the deletion of the date 30 June 2010 and the insertion of the date 30 June 2011. The amending instrument in its entirety is attached as Schedule B to these reasons.
The instrument of 10 June 2009 was further amended by an instrument of the Board of the Australian Crime Commission dated 15 June 2011. An amendment was effected to paragraph 4 of the 10 June 2009 instrument by the deletion of the date 30 June 2011 and the insertion of the date 30 June 2014. Schedule 1 clause 1 was also amended by deleting the words “clauses 3 and 4” and by inserting “clause 3”. The amending instrument in its entirety is attached as Schedule C to these reasons.
The summons dated 28 May 2012 was issued at 1:08 pm on 30 May 2012 by Mr Boulton, the examiner. The summons addressed to P1 required that he attend before an examiner of the Australian Crime Commission at 9:30 am on Friday 15 June 2012. The summons was issued pursuant to section 19 of the South Australian Act. The summons contained a notation pursuant to section 21(1) of that Act. The notation addressed the limitations on disclosure appearing in section 22 of that Act. Annexed to the summons were the instruments referred to above. Also annexed was a statement pursuant to section 21(3) of the Act setting out the rights and obligations conferred or imposed on a person served a summons. Also annexed was a set of explanatory notes.
The summons in its entirety, including annexures other than the Board’s instruments, is attached as Schedule D to these reasons.
On 13 June 2012, P1 issued the within proceeding against the defendants, the Australian Crime Commission and Mr Boulton. The summons has been amended to seek the following relief:
1. A declaration that the summons purported to be issued by the second defendant pursuant to section 19(1) of the Australian Crime Commission (South Australia) Act 2004 (SA) is invalid.
~~2.Prohibition against the first and second defendants prohibiting them from further requiring the plaintiff to attend at the examination pursuant to the summons.~~
~~3.An injunction restraining the first and second defendants from further requiring the applicant to attend at the examination pursuant to the summons.~~
4.2. An order in the nature of certiorari, pursuant to section 17 of the Supreme Court Act 1935 (SA) or, alternatively, pursuant to Rule 199 of the Supreme Court Civil Rules 2006, quashing the summons.
5.3.                  A declaration that the determination made by instrument entitled Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2011 (“2011 Amendment”) is invalid.
6.4. An order in the nature of certiorari, pursuant to section 17 of the Supreme Court Act 1935 (SA) or, alternatively, pursuant to Rule 199 of the Supreme Court Civil Rules 2006, quashing the 2011 Amendment.
7.5.                  A declaration that the purported determination made by instrument entitled Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2010 (‘2010 Amendment’) is invalid.
8.6.                  A declaration that the purported determination made by instrument entitled Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009 (‘2009 Instrument’) is invalid.
9.7. An order in the nature of certiorari, pursuant to section 17 of the Supreme Court Act 1935 (SA) or, alternatively, pursuant to Rule 199 of the Supreme Court Civil Rules 2006, quashing the determination/s of the Board pursuant to paragraph 8(1)(a) and subsection 8(3) of the South Australian Act recorded in the 2009 Instrument, and any subsequent determination attached to the summons (‘determination/s’).
~~10.~~8.                 An order setting aside the summons requiring the applicant to attend before an examiner of the Australian Crime Commission.
~~11.~~9.                 An order staying the examination of the applicant by the first and second defendants until the final determination of this matter.
~~12.~~10.                An order pursuant to Rule 117 of the Supreme Court Civil Rules 2006 extending time for the institution of an action for judicial review.
~~13.~~11.                A declaration that the relevant statutory provisions are ultra vires the Commonwealth Constitution.
~~14.~~12.        Such further order as the Court sees fit.
~~15.~~13.        Costs.
P1 ultimately challenges the validity of the summons issued by Mr Boulton to P1 purportedly pursuant to the South Australian Act.
The Legislative Scheme
Before discussing the particular issues arising on this transfer application, a broad understanding of the history of the legislation should be recounted. In the summary that follows I have drawn on the second reading speech of the then Attorney-General when introducing the Australian Crime Commission (South Australia) Bill.[2]
[2] South Australia, Parliamentary Debates, House of Assembly, 25 February 2004, 1452-1461 (The Hon. M J Atkinson); for the use of extrinsic materials as an aid in statutory interpretation see, K-Generation v Liquor Licensing Court (2009) 237 CLR 501, 521-522.
In the early 1980s, it became apparent that there was a need in Australia for a specialist law enforcement agency which mandated combating organised crime. To this end, the National Crime Authority was established by the National Crime Authority Act 1984 (Cth), which came into force on 1 July 1984. It was also necessary to implement coordinated State legislation. In South Australia, the National Crime Authority (State Provisions) Act 1984 (SA) was enacted.
On 5 April 2002, at the Summit on Terrorism and Multi-jurisdictional Crime, a decision was made to replace the National Crime Authority with the Australian Crime Commission. The aim of this change was to establish a body which could build on the strengths of the National Crime Authority, but which did not suffer from the barriers that were preventing the National Crime Authority’s effectiveness. On 1 January 2003, the Australian Crime Commission Act 2002 (Cth) came into force. The Australian Crime Commission is a necessary part of the “investigation and prosecution of complicated and organised criminal activity of a sophisticated kind”.[3] It is, inter alia, required to collect, analyse and disseminate criminal intelligence nationally.
[3] South Australia, Parliamentary Debates, House of Assembly, 25 February 2004, 1452 (The Hon. M J Atkinson).
On 5 November 2002, an agreement was reached to begin preparation of a model States and Territories’ Bill to compliment the Australian Crime Commission Act. The model Bill featured the following:[4]
-provides for the functions of the [Australian Crime Commission] under South Australian law, including the functions of conducting investigations and intelligence operations into relevant criminal activity;
-establishes and provides for the new functions of the Board and CEO under South Australian law. The functions complement the provisions of the Commonwealth Act that establish the [Australian Crime Commission’s] governance;
-provides for the authorisation of special intelligence operations and special investigations by the Board (special [Australian Crime Commission] operations/investigations). The Board’s authorisation of special [Australian Crime Commission] operations/investigations will be subject to a number of safeguards in the form of special requirements for the composition of the Board, special voting requirements and a power for the IGC-ACC[5] to revoke the authorisation;
-provides for the investigatory powers of the [Australian Crime Commission] under South Australian law, including search powers under warrant and coercive examination powers. These powers will only be available to the [Australian Crime Commission] in special [Australian Crime Commission] operations/investigations. The [Australian Crime Commission’s] examination powers under South Australian law will be exercised by examiners, who will be independent statutory officers appointed under the Commonwealth Act;
-creates offences for failure to comply with the provisions of the Act smoothing the effective performance of the [Australian Crime Commission’s] functions under South Australian law. These offences will include failing to attend an examination or failing to answer questions, and failing to produce documents or things when required to do so by a summons. The offences in the Bill will reflect the offences contained in the Commonwealth Act and the existing South Australian [National Crime Authority] legislation; and
-repeals the existing South Australian [National Crime Authority] legislation and contains necessary transitional provisions to smooth the transition from the [National Crime Authority] to the [Australian Crime Commission] under State law and consequential amendments to other Acts that are necessary because of the [National Crime Authority’s] replacement by the [Australian Crime Commission].
[4] South Australia, Parliamentary Debates, House of Assembly, 25 February 2004, 1453 (The Hon. M J Atkinson).
[5] The IGC-ACC is the Inter-Governmental Committee of the Australian Crime Commission.
The purpose of the model Bill was to enable the States and Territories to enact legislation which compliments the Australian Crime Commission Act so as to allow the Australian Crime Commission to combat serious organised crime through the use of an “enhanced and effective national framework”.[6] The Australian Crime Commission (South Australia) Act 2004 (SA) came into force on 5 May 2004. It has been amended twice since enactment.
[6] South Australia, Parliamentary Debates, House of Assembly, 25 February 2004, 1453 (The Hon. M J Atkinson).
The Defendants’ Contentions
The defendants submitted that the within proceeding should be transferred to the Federal Court of Australia pursuant to section 6 of the Jurisdiction of Courts (Cross-Vesting) Act.
Several bases were identified by the defendants to support a submission that the within proceeding involved special federal matters within the meaning of subsections (c) and (e) in the definition of “special federal matter” as it appears in section 3(1) of the Jurisdiction of Courts (Cross-Vesting) Act. Those subsections are in the following terms:
(1) In this Act, unless the contrary intention appears:
special federal matter means:
…
(c)a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or
(e)a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
It was first contended that P1 had raised issues arising under the Commonwealth Constitution, in particular, asserting that certain provisions of the Australian Crime Commission Act 2002 (Cth) and the Australian Crime Commission (South Australia) Act are constitutionally invalid. It was then contended that the High Court has original jurisdiction pursuant to section 76(i) of the Commonwealth Constitution[7] and section 30(a) of the Judiciary Act 1903 (Cth).[8] It was further contended that, in this circumstance, the Federal Court has jurisdiction under section 39B(1A)(b) of the Judiciary Act[9] and, as a consequence, the proceeding falls within the meaning of “special federal matter” in the Jurisdiction of Courts (Cross-Vesting) Act.
[7] Section 76 of the Commonwealth Constitution is in the following terms:
The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
(i) arising under this Constitution, or involving its interpretation;
(ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject-matter claimed under the laws of different States.
[8] Section 30(a) of the Judiciary Act 1903 (Cth) provides:
In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction:
(a) in all matters arising under the Constitution or involving its interpretation; and
[9] Section 39B(1A)(b) of the Judiciary Act 1903 (Cth) provides:
The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
…
(b) arising under the Constitution, or involving its interpretation; or

Next it was submitted that P1’s case involved an assertion that the Australian Crime Commission (South Australia) Act failed to validly confer power on the Australian Crime Commission pursuant to section 55A of the Australian Crime Commission Act. In the defendants’ submission, the determinations of the Australian Crime Commission under challenge in the within proceeding do in truth arise under the Australian Crime Commission Act as that Act is the ultimate source of the power to be exercised by the examiner. It was said that the validity of the conferral of duties, functions and powers by the Australian Crime Commission (South Australia) Act on the Australian Crime Commission is dependent upon the Australian Crime Commission Act. As a consequence, it was contended that the rights and duties under review in this proceeding owe their existence to a federal law and the matter therefore arises under a federal law.
It was finally submitted that as P1 was seeking judicial review of a decision of an officer of the Commonwealth, section 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) has application and would exclude any jurisdiction that the Supreme Court would have to determine the claims against the examiner pursuant to the Jurisdiction of Courts (Cross-Vesting) Act.
Ultimately, it was contended that this Court was obliged to transfer the proceeding to the Federal Court unless there were special reasons not to do so within the meaning of section 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act.
P1’s Contentions
P1 submitted that the present proceeding is not a “special federal matter” as defined in section 3(1) of the Jurisdiction of Courts (Cross-Vesting) Act. First, it was said that the Supreme Court has jurisdiction to determine matters arising under the Commonwealth Constitution. P1 accepted that section 39B defines the concurrent jurisdiction of the Federal Court, but contended that it does not exclude the Supreme Court’s jurisdiction. Secondly, P1 contended that the present proceeding is not a matter arising under the Administrative Decisions (Judicial Review) Act. Thirdly, it was said that section 9 of that Act does not exclude all jurisdiction of the Supreme Court, including the jurisdiction conferred upon the Supreme Court by section 39(2) of the Judiciary Act.
In the alternative, P1 contended that, even if the present proceeding is a “special federal matter”, there are special reasons for the matter to be heard by the Supreme Court. In particular, P1 contended that the matter involves the interpretation of the South Australian criminal law.
Consideration
In these reasons I first address whether the Supreme Court has federal jurisdiction pursuant to section 39 of the Judiciary Act. I then consider whether the matter is a “special federal matter” pursuant to section 3(1)(e) of the Jurisdiction of Courts (Cross-Vesting) Act by considering the submissions made in respect of section 39B of the Judiciary Act. Next, I address the contentions in respect of the Administrative Decisions (Judicial Review) Act by considering whether the present proceeding is a “special federal matter” pursuant to section 3(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act. I also consider whether section 9 of the Administrative Decisions (Judicial Review) Act removes any jurisdiction that the Supreme Court has to determine the claims. Finally, whether or not it is necessary to do so, I consider whether I am satisfied that there are “special reasons” for the matter to be heard by the Supreme Court as set out in section 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act.
Section 39 of the Judiciary Act
A State Court may be invested with federal jurisdiction by a law made by Parliament under section 77(iii) of the Commonwealth Constitution.[10] Section 39(2) of the Judiciary Act is an example of such a law.
[10] Section 77 of the Commonwealth Constitution provides:
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i)defining the jurisdiction of any federal court other than the High Court;
(ii)defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii)investing any court of a State with federal jurisdiction.
Section 39 of the Judiciary Act is entitled “Federal jurisdiction of State Courts in other matters” and is in the following terms:
(1)The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.
(2)The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
Special leave to appeal from decisions of State Courts though State law prohibits appeal
(c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.
[Emphasis added.]
Evidently, section 39(2) invests the State Courts with federal jurisdiction in all matters, except as provided for in section 38, in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it. The High Court has original jurisdiction in respect of the within proceeding by virtue of section 30(a) of the Judiciary Act which confers original jurisdiction on the High Court “in all matters arising under the Constitution or involving its interpretation” and by virtue of section 76(i) of the Commonwealth Constitution. As noted earlier, both parties accepted that the High Court has original jurisdiction with regard to the present proceeding as it raises matters under the Commonwealth Constitution.
However, the State Courts cannot be invested with federal jurisdiction where the matter is the exclusive jurisdiction of the High Court.[11] Section 38 of the Judiciary Act contains matters of exclusive jurisdiction of the High Court and they include “matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.”[12] In the present proceeding, the Court was informed that the order seeking prohibition is no longer sought. The summons has been amended to delete this claim. Accordingly, the within proceeding is not a matter of exclusive jurisdiction of the High Court.
[11] See Judiciary Act 1903 (Cth) sections 38, 39(2).
[12] Judiciary Act 1903 (Cth) section 38(e).
In the present proceeding, pursuant to section 39(2) of the Judiciary Act, this Court is invested with federal jurisdiction.
A Special Federal Matter — Section 3(1)(e) of the Jurisdiction of Courts (Cross-Vesting) Act
As earlier noted, the question of whether the present proceeding is a “special federal matter” is of relevance due to section 6 of the Jurisdiction of Courts (Cross-Vesting) Act which provides:
(1)     If:
(a)     a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and
(b)     the court does not make an order under subsection (3) in respect of the matter;
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).
Note: This section has effect subject to section 6A (Special federal matters: Commonwealth authorities or officers acting under the laws of States).
(1A)However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be.
(2)If the court orders that a proceeding or part of a proceeding be transferred, the proceeding or part of the proceeding must be transferred:
(a)     if the matter for determination in the proceeding is a matter mentioned in paragraph (a), (b), (c) or (e) of the definition of special federal matter in subsection 3(1)—to the Federal Court; or
(b)     if the matter for determination in the proceeding is a matter mentioned in paragraph (ab) of that definition—to whichever of the Family Court, the Family Court of Western Australia or the Supreme Court of the Northern Territory, in the opinion of the court, is appropriate in the circumstances.
(3)The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
(4)     Before making an order under subsection (3), the court must be satisfied that:
(a)     a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State or Territory where the proceeding is pending; and
(b)     a reasonable time has elapsed since the giving of the notice for the Attorneys-General to consider whether submissions to the court should be made in relation to the proceeding.
(5)     For the purposes of subsection (4), the court:
(a)     may adjourn the proceeding for such time as the court thinks necessary and may make such order as to costs in relation to an adjournment as it thinks fit; and
(b)     may direct a party to the proceeding to give a notice in accordance with that subsection.
(6)In considering whether there are special reasons for the purposes of subsection (3), the court must:
(a)     have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in paragraph (2)(b), whichever is appropriate in the particular case; and
(b)     take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4).
…
[Emphasis added.]
It is convenient to recall that “special federal matter” is defined in section 3(1)(e) of the Jurisdiction of Courts (Cross-Vesting) Act to mean:
(e)a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
Section 39B of the Judiciary Act provides for the original jurisdiction of the Federal Court of Australia. The submissions of the defendants suggest that it has been assumed that matters falling within the original jurisdiction of the Federal Court as defined by section 39B are “special federal matters” within the meaning in section 3(1) of the Jurisdiction of Courts (Cross-Vesting) Act. For example, the defendants’ second application provides that “[b]y virtue of [section] 3(e) of the [Jurisdiction of Courts (Cross-Vesting) Act] the claims under [section] 39B constitute special federal matters”. The defendants’ written submissions provide that “[a]s the High Court’s jurisdiction is attracted by [section] 30(a) of the Judiciary Act, it is also attracted by the Federal Court under [section] 39B(1A)(b). Thus, it was said that this claim falls within the meaning of a ‘special federal matter’.” Reliance was placed on sections 30(a) and 39B(1A)(b) of the Judiciary Act conferring jurisdiction on the High Court and the Federal Court respectively in matters arising under the Commonwealth Constitution or involving its interpretation.
However, the only way in which all matters arising under section 39B of the Judiciary Act could be considered to be special federal matters is if the words forming part of the definition of “special federal matter” in section 3(1) of the Jurisdiction of Courts (Cross-Vesting) Act, “being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction”, are given no work to do. All words in a statute should prima facie be given some meaning and effect.[13] This principle was the subject of the following observation in Project Blue Sky v Australian Broadcasting Authority:[14]
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[Footnotes omitted.]
[13] See, Commonwealth v Baume (1905) 2 CLR 405, 414; Beckwith v The Queen (1976) 135 CLR 569, 574; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 674, 679, 680; Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 12-13; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 as cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) [2.26].
[14] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382.
The defendants’ interpretation would appear to be directly contrary to the express purpose of the Jurisdiction of Courts (Cross-Vesting) Act. The preamble to the Act is in the following terms:
WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable, so far as is constitutionally possible:
(a)     to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;
(b)     to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and
(c)     if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.
[Emphasis added.]
It is apparent that the Jurisdiction of Courts (Cross-Vesting) Act does not seek to remove jurisdiction from the Supreme Court, including federal jurisdiction, which had previously been conferred on it. This is further supported by section 4 of the Jurisdiction of Courts (Cross-Vesting) Act which confers additional jurisdiction on the Supreme Court and particular other courts.
An obvious difficulty confronting the defendants’ suggested interpretation can be demonstrated by considering a matter arising under the Commonwealth Constitution. If the words “being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction” are given no meaning or effect, pursuant to section 6(1) of the Jurisdiction of Courts (Cross-Vesting) Act, the Supreme Court would be required to transfer to the Federal Court all matters arising under the Commonwealth Constitution in the absence of special reasons. As section 6(1) only operates in respect of the Supreme Court of a State or Territory, if the matter arose in the District Court or Magistrates Court, there would be no such requirement to transfer.
I consider that the words “being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction” have work to do. I have set out above my reasons for concluding that this Court has jurisdiction to hear the present proceeding pursuant to section 39(2) of the Judiciary Act. Accordingly, the Supreme Court does not rely upon the Jurisdiction of Courts (Cross-Vesting) Act to provide jurisdiction to hear the present proceeding and, therefore, the present proceeding does not for this reason satisfy the definition of a “special federal matter”.
A Special Federal Matter — Section 3(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act
As noted earlier, section 3(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act forms part of the definition of “special federal matter” and includes within that definition “a matter arising under the Administrative Decisions (Judicial Review) Act”.
The basis of my above finding that the present proceeding is not a special federal matter pursuant to section 3(1)(e) of the Jurisdiction of Courts (Cross-Vesting) Act is equally applicable to section 3(1)(c) of that Act. Even if I conclude that the present proceeding is “a matter arising under the Administrative Decisions (Judicial Review) Act”, it would not satisfy the other requirement of the definition; namely, “being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction”. If accepted, the defendants’ contentions in respect of section 9 of the Administrative Decisions (Judicial Review) Act would, however, address this difficulty.
Section 9 of the Administrative Decisions (Judicial Review) Act
As mentioned earlier, the defendants contended that as P1 is seeking judicial review of an officer of the Commonwealth, section 9 of the Administrative Decisions (Judicial Review) Act would exclude any jurisdiction that the Supreme Court would have to determine the claims against the examiner pursuant to the Jurisdiction of Courts (Cross-Vesting) Act. As a consequence, it was contended that there existed a “special federal matter” within the meaning of the Jurisdiction of Courts (Cross-Vesting) Act.
P1 has invoked the general jurisdiction of the Supreme Court and in particular, the jurisdiction referred to in sections 17 and 31 of the Supreme Court Act 1935 (SA). Those jurisdictions include the jurisdiction to make declarations and to grant equitable relief. Additionally, P1 has sought to invoke the jurisdiction to grant judicial review.
Section 9 of the Administrative Decisions (Judicial Review) Act is entitled “Limitation of jurisdiction of State courts” and is in the following terms:
(1)Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:
(a)     a decision to which this section applies that is made after the commencement of this Act;
(b)     conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;
(c)     a failure to make a decision to which this section applies; or
(d)     any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.
Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.
(2)     In this section:
decision to which this section applies means:
(a)     a decision that is a decision to which this Act applies; or
(b)     a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.
review means review by way of:
(a)     the grant of an injunction;
(b)     the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or
(c)     the making of a declaratory order.
(4)     This section does not affect:
(b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or
(c)     the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.

It is convenient to note the following definitions as provided in section 3(1) of the Administrative Decisions (Judicial Review) Act:
decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a)     under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b)     by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c)     a decision by the Governor-General; or
(d)     a decision included in any of the classes of decisions set out in Schedule 1.
Note:Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.
…
enactment means:
(a)     an Act, other than:
(i)     the Commonwealth Places (Application of Laws) Act 1970; or
(ii)    the Northern Territory (Self-Government) Act 1978; or
(iii)an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or
(b)     an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c)     an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca)   an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb)   an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or
(d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
Note: Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).
The scope of section 9 is to be determined by reading the words of that provision in its legislative context.[15] The scope of the term “review” in section 9 has been confined to those actions directly seeking to examine the correctness of the decision made and may not extend to declarations concerning the applicability or compliance with relevant statutory provisions.[16] Section 9 may be inapplicable to those types of review which fall outside of the scope of review contemplated by the Administrative Decisions (Judicial Review) Act.[17]
[15] See, D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) [4.2]-[4.3], [4.23]; see also, East Australia Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, 245-246 (Gummow and Hayne JJ).
[16] See Aerolineas Argentinas v Federal Airports Corporation (1993) 32 NSWLR 595, 613 (Ireland J); Clyne v Deputy Commissioner of Taxation [1983] 1 NSWLR 110, 120.
[17] See Woss v Jacobsen (1985) 11 FCR 243, 260; Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 56, 63; R v YZ [1999] NSWCCA 48, [21].
Section 9 provides a limitation of jurisdiction of State courts. In particular, it provides that a court of a State does not have jurisdiction to review a decision to which section 9 applies. The phrase “a decision to which this section applies” refers to a decision that is the decision to which the Administrative Decisions (Judicial Review) Act applies. The phrase “decision to which this Act applies” is separately defined to include a decision of an administrative character made under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of “enactment”.
The definition of “a decision to which this Act applies” also picks up a decision of an administrative character by an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment. Paragraph (ca) picks up an Act of the State described in Schedule 3 and (cb) picks up an instrument made under an Act covered by paragraph (ca). A review of Schedule 3 discloses that none of the Acts there referred to are relevant to the within proceeding.
Counsel for the defendants submitted that, at all relevant times, the Board of the Australian Crime Commission and Mr Boulton were authorised to act and acted under the Australian Crime Commission Act. It was claimed that this was the source of their power to Act and that insofar as their actions have reference to the Australian Crime Commission (South Australia) Act, such actions remained, at all times, acts authorised under the Australian Crime Commission Act. Counsel placed particular reliance on the terms of section 55A which was said to support the above proposition.
Section 55A relevantly provides:
Object
(1)     The main object of this section is to give legislative consent to the conferral on:
(a)     the ACC; or
(b)     the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC; or
(c)     a Judge of the Federal Court or a Federal Magistrate;
of certain duties, functions and powers under State laws.
ACC
(2)A law of a State may confer on the ACC any or all of the following duties, functions or powers:
(a)     the function of investigating a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(b)     a duty, function or power that is for the purposes of an investigation referred to in paragraph (a) and that is either:
(i)of the same kind as a duty, function or power conferred on the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter); or
(ii)of a kind specified in regulations made for the purposes of this subparagraph;
(c)     the function of undertaking an intelligence operation in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(d)     a duty, function or power that is for the purposes of an operation referred to in paragraph (c) and that is either:
(i)of the same kind as a duty, function or power conferred on the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to that operation); or
(ii)of a kind specified in regulations made for the purposes of this subparagraph.
(3)     The ACC cannot, under a law of a State:
(a)     investigate a matter relating to a relevant criminal activity; or
(b)     undertake an intelligence operation;
unless the Board has consented to the ACC doing so.
Inter-Governmental Committee, Board, Chair of the Board, members of the Board, CEO, examiners and members of staff of the ACC
(4)A law of a State may confer on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that:
(a)     relates to the investigation of a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and
(b)     is either:
(i)of the same kind as a duty, function or power conferred on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter); or
(ii)of a kind specified in regulations made for the purposes of this subparagraph.
(5)A law of a State may confer on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that:
(a)     relates to the undertaking of an intelligence operation in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and
(b)     is either:
(i)of the same kind as a duty, function or power conferred on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to that operation); or
(ii)of a kind specified in regulations made for the purposes of this subparagraph.
…
Counsel for P1 submitted that section 19 of the Australian Crime Commission (South Australia) Act provides the power to issue the summons and all that section 55A of the Australian Crime Commission Act does is, in effect, to provide consent to the exercising of the powers. It was said that counsel for the defendants had conflated the consent to exercise those powers with the actual exercise of those powers. The exercise of the powers was said to come from the Australian Crime Commission (South Australia) Act.
In my view, the submissions advanced on behalf of the defendants as to the scope of section 55A should be rejected. Section 55A, as enacted by the Commonwealth Parliament, provides legislative consent to the conferral on the Board of the Australian Crime Commission and an examiner of the Australian Crime Commission of certain duties, functions and powers under State laws. Sections 55A(4) and 55A(5), inter alia, authorise the conferral on the Board of the Australian Crime Commission and an examiner of the Australian Crime Commission specified duties, functions and powers. Those duties functions and powers include the investigation of a matter relating to relevant criminal activity insofar as that activity includes offences against the law of the State. The Australian Crime Commission (South Australia) Act in respect of ACC State Investigations confers duties, functions and powers conferred on the Board and on an examiner. The Board and the examiner in respect of ACC State Investigations draw their authority and power from the provisions of the Australian Crime Commission (South Australia) Act. Part 5 of that Act, inter alia, sets out the circumstances in which a Commonwealth body or person may perform functions and exercise powers as provided by the Australian Crime Commission (South Australia) Act. Section 31 provides that a conferral of function by the Australian Crime Commission (South Australia) Act is subject to any provision of the Australian Crime Commission Act but requires the consent of the Board before the function can be performed.
Part 3 of the Australian Crime Commission (South Australia) Act is headed “Examinations”. Section 17 authorises an examiner to conduct an examination for the purposes of a special ACC investigation. Section 18, through 15 subsections, addresses the conduct of the examination. Section 19 deals with the summoning of witnesses and the taking of evidence, and section 20 addresses the power to obtain documents. Section 21 is concerned with issues of confidentiality and the powers of the examiner in that respect, and section 22 provides for offences of disclosure. Section 23 is concerned with the consequences of the failure of a witness to attend and answer questions, and section 24 then provides for the issue of a warrant for arrest. Section 25 is concerned with the giving of false or misleading evidence. Section 26 provides the circumstances in which witnesses may be protected from harm or intimidation. Sections 26A to 26F, introduced into the legislation in 2012, address the topic of contempt and the powers of the Supreme Court to deal with contempt. Section 27 provides for the legal protection of examiners, counsel and witnesses, and the final section in this Part provides for the delivery of a passport to the examiner.
It is unnecessary to refer to the detailed terms of the statutory provisions. The above summary indicates their breadth. The issue of the summons sought to be set aside in this proceeding and the proposed examination are governed by the provisions of the Australian Crime Commission (South Australia) Act. This is the manner in which the Australia-wide scheme had been designed to operate.
The compact between the Commonwealth and State is clear. Both Commonwealth and State Parliaments sought to enact a legislative scheme that would address the problems arising from Australia-wide organised crime. The scheme contemplated the need for both Commonwealth and State action. In the context of the within proceeding, the following observations may be advanced. The investigation to be conducted is relevantly an “ACC State Investigation”. To enable the investigation to proceed, recourse may be had to the Commonwealth provisions that enable the Board and an examiner to have specified duties, functions and powers conferred upon them by State legislation. The Commonwealth provisions, as discussed above, authorise a State to confer those functions on the Board and an examiner. The Australian Crime Commission (South Australia) Act, in turn, relevantly confers the specified duties, functions and powers on the Board and an examiner. Earlier in these reasons, the instruments of the Board of the Australian Crime Commission are referred to and the full terms of those instruments are contained in schedules to these reasons. These instruments bring into effect the operation of the relevant provisions of the legislation.
A review of the detailed provisions of the Australian Crime Commission (South Australia) Act discloses that the Australian Crime Commission (South Australia) Act is the source of the conferral of power. The Board and the examiner are appropriate recipients of the conferral. There is no conferral of power by the terms of the Australian Crime Commission Act. The Australian Crime Commission (South Australia) Act is replete with instances where this Court oversees the conduct of an examiner. A summons is to be issued under the Australian Crime Commission (South Australia) Act and the process is then governed by the State law with appropriate powers in this Court to ensure that the terms of the statute are complied with. Assuming for the moment that there is power to issue a summons, the decision to issue the summons is subject to review by this Court under both its general jurisdiction and its judicial review jurisdiction.
It appears to be the defendants’ contention that where a decision or function is performed by an “officer of the Commonwealth”, the supervisory jurisdiction of the Supreme Court is excluded by section 9 of the Administrative Decisions (Judicial Review) Act.
Judicial review forms part of the core constitutional function of the Supreme Court and should not be removed by implication. In my view, section 9(1)(d) does not exclude all jurisdiction that the Supreme Court would have to determine the claims against the examiner. The provisions of the Administrative Decisions (Judicial Review) Act do not remove the jurisdiction conferred upon the State Supreme Court by section 39(2) of the Judiciary Act.
In any event, I consider that the within proceeding is not a “matter arising under the Administrative Decisions (Judicial Review) Act” as the proceedings as filed do not seek relief pursuant to the provisions of that Act either expressly or by implication. Accordingly, I am not satisfied that either of the requirements of the definition of “special federal matter” in section 3(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act are met by the circumstances of the within proceeding.
Special Reasons
In light of my conclusion that the present proceeding is not a “special federal matter”, it is not strictly necessary to consider whether there are special reasons for the matter to be heard by this Court. However, as the question has been canvassed, I propose to briefly address this issue.
As noted above, section 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act provides:
The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
[Emphasis added.]
Before making an order pursuant to section 6(3), this Court must be satisfied that the Attorney-General of the Commonwealth and the Attorney-General of South Australia have been given notice to consider whether to make submissions in relation to the proceeding.[18] The notice must specify the nature of the special federal matter.[19] A reasonable time must have elapsed after the issuing of the notice before an order under section 6(3) can be made.[20] In determining whether there are special reasons for the proceeding to be heard by the Supreme Court, this Court must “have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in paragraph (2)(b), whichever is appropriate in the particular case”.[21] This Court must also take into account any submission made by the Attorney-General in relation to the proceeding.[22] In the within proceeding, the notices were issued and neither of the Attorneys-General made submissions.
[18] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) section 6(4)(a).
[19] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) section 6(4)(a).
[20] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) section 6(4)(b).
[21] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) section 6(6)(a).
[22] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) section 6(6)(b).
A consideration of the following factors drawn from P1’s outline has led me to the opinion that special reasons exist:
-This Court has particular expertise concerning the operation and interpretation of legislation of this State and also concerning the operation and scope of the South Australian criminal law. The scope and meaning of the criminal law of this State is relevant to the interpretation of the provisions of the Australian Crime Commission (South Australia) Act and to the determinations purported to be made pursuant to that Act, upon which the validity of the exercise of the powers pursuant to section 19 of that Act depend.
-The issues in this matter, while they may be determined in the exercise of federal jurisdiction, remain issues of State law.[23]
-The examiner derives authority from the Australian Crime Commission (South Australia) Act.[24]
-The legislation, in particular the Australian Crime Commission (South Australia) Act, does not operate to confer upon the Federal Court any fresh federal jurisdiction in addition to that conferred upon it by other laws of the Parliament.[25]
-The questions raised concern the exercise of powers pursuant to a State Act.
-The factual matters which arise concern matters within the exclusive jurisdiction of South Australia, namely an Australian Crime Commission State investigation in relation to State offences. If the contrary were true in that the factual matters concerned a State offence which had a federal aspect, then the matter would concern the Australian Crime Commission Act rather than the Australian Crime Commission (South Australia) Act.
-The substantive issues in dispute concern matters arising pursuant to a law of South Australia. This distinguishes the present proceeding from those matters where a “special federal matter” has been raised pursuant to the relevant provisions of the Trade Practices Act.[26]
-The Federal Court does not have special expertise concerning the interpretation of State legislation.[27]
-It is a constitutional function of the Supreme Court in the exercise of its supervisory jurisdiction to judicially review decisions of public decision makers, including the exercise of State executive functions.[28]
[23] See, Re Wakim; Ex parte McNally (1999) 198 CLR 511, [71]-[73]; Phillip Morries Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Computershare Ltd v Perpetual (2000) 2 VR 666.
[24] See, B v Australian Crime Commission [2011] FCA 1046, [36].
[25] See, NEC Information Systems Australia Pty Ltd v Iveson & Ors (1992) 36 FCR 258, 264.
[26] See for example, Telstra Corporation Ltd v CXA Communications Ltd (1998) 146 FLR 481.
[27] See, Metroplaza Ltd v Girvan NSW Pty Ltd (in Liq) (1991) 24 NSWLR 718, 722.
[28] Ferdinads v District Court of South Australia & Ors [2010] SASC 265, [4]; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

I am satisfied that there are special reasons for the proceeding to be determined by this Court. However, as noted above, in light of my earlier conclusions, there is no need to rely on section 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act as the source of jurisdiction.
Conclusion
The application to transfer the within proceeding to the Federal Court of Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act is dismissed.
Schedule A
Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009
The Board of the Australian Crime Commission:
(a)acting under subsection 55A(3) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) – has consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act 2004 of South Australia (the South Australian Act), is relevant criminal activity; and
(b)in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of subsection 55A (4) of the Commonwealth Act – has made this Determination;
and has made this instrument by resolution at [2.18pm] on [10 June] 2009.
[signed]
Chair of the Board of the Australian Crime Commission
[10 June] 2009
Name:       …
1      Name of instrument
This instrument is the Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009.
2      Commencement
This instrument commences immediately after it is made.
3      Definitions
In this instrument:
ACC means the Australian Crime Commission.
Commonwealth Act means the Australian Crime Commission Act 2002 of the Commonwealth, as amended.
high risk crime groups (HRCGs) includes a group or groups of two or more persons who are engaged in one or more of the activities described in Schedule 1 clause 3 (being offences against the laws of South Australia) and who:
(a)have a thorough understanding of law enforcement methodology and its limitations and employ counter-strategies; or
(b)     have access to law enforcement or regulatory information; or
(c)     demonstrate the willingness and capacity to corrupt officials; or
(d)demonstrate the willingness and capacity to pervert the course of justice through the intimidation of witnesses and officials and the use of violence; or
(e)who are engaged in significant ongoing serious and organised crime activity in one or more jurisdictions;
jurisdiction means the Commonwealth of Australia, a State of Australia (including the Northern Territory and Australian Capital Territory), or an overseas country;
South Australian Act means the Australian Crime Commission (South Australia) Act 2004, as amended.
relevant criminal activity means the relevant criminal activity, within the meaning of the South Australian Act, mentioned in Schedule 1.
4      Authorisation
Pursuant to the duties, functions and powers conferred on the Board by the South Australian Act, the ACC is authorised to investigate matters relating to the relevant criminal activity until 30 June 2010.
Note Under paragraph 5(c) of the South Australian Act, the ACC has the further function of providing reports to the Board on the outcomes of the investigation.
5      Determination
Pursuant to paragraph 8(1)(a) and subsection 8(3) of the South Australian Act, the Board:
(a)has considered whether ordinary police methods of investigation into matters relating to the relevant criminal activity are likely to be effective; and
(b)determines that the ACC State investigation authorised by this instrument is a special investigation.
6      Consent
(a)For the avoidance of doubt, the consent of the Board under subsection 55A(3) of the Commonwealth Act shall continue during the currency of the State special investigation.
(b)Pursuant to subsection 55A(5A) of the Commonwealth Act, the Board consents to the performance of a duty or function, and the exercise of a power, of a kind described in subsection 55A(5) of the Commonwealth Act:
(i)     presently conferred; or
(ii)    from time to time conferred;
on the CEO or examiners of the ACC by a law of the State of South Australia, including the South Australian Act, in relation to the State special investigation, and this consent shall continue through the currency of the State special investigation.
7      Classes of persons to participate in investigation
Pursuant to paragraph 8(1)(b) of the South Australian Act, the classes of persons to participate in the State special investigation are those mentioned in Schedule 2.
8      Relevant Criminal Activity to which this instrument applies
The relevant criminal activity to which this instrument applies include offences against a law of the State of South Australia.
9      Purpose of the investigation
The purpose of the State special investigation is to:
(a)collect and analyse criminal information and intelligence related to the relevant criminal activity, to disseminate that information and intelligence in accordance with the South Australian Act and to report to the Board; and
(b)to identify persons involved in the relevant criminal activities, to collect evidence about those activities, to facilitate the apprehension of such persons, and to reduce the incidence and effect of such offences on the community; and
(c)     to make appropriate recommendations to the Board about reform of:
i)      the law relating to relevant offences; and
ii)     relevant administrative practices; and
iii)    the administration of the courts in relation to trials of relevant offences
Schedule 1        Authorised investigation
1      Investigation
An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, relevant criminal activity;
(a)     was committed before the commencement of this instrument; or
(b)was in the process of being committed on the commencement of this instrument; or
(c)     may in future be committed.
2      Circumstances
The general nature of the circumstances constituting relevant criminal activity that may have been, may be, or may in future be, occurring are those implied from information available to Australian law enforcement agencies indicating that:-
(a)High Risk Crime Groups are involved in a range of serious and organised crime activity in and impacting on South Australia, including: illegal drug dealings; fraud; corruption and bribery of officials; perverting the course of justice; murder, kidnapping and other offences involving violence; extortion and blackmail; obtaining financial benefit by vice engaged in by others; theft; firearms offences; and money laundering;
(b)they tend to be sophisticated, resilient, flexible, use key facilitators and operate across multi-jurisdictional illicit commodity markets;
(c)they may generate profits through their commission of serious frauds and deceptions as a means of enabling their primary criminal activities; and
(d)effective targeting of these groups requires a multi-agency intelligence-driven approach at a national level with access to coercive powers.
3      Allegations
The general nature of the allegations constituting relevant criminal activity that may have been, may be, or may in future be, committed is that certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the following activities:
(a)     murder;
(b)     kidnapping;
(c)     blackmail, extortion, and unlawful threats;
(d)     other offences involving violence;
(e)     obtaining financial benefit by vice engaged in by others;
(f)     illegal drug dealings;
(g)     firearm offences;
(h)     bribery or corruption of public officers or abuse of public office;
(i)     theft;
(j)     deception and dishonest dealing with documents;
(k)     money laundering;
(l)offences relating to judicial proceedings contrary to Part 7, Division 3 of the Criminal Law Consolidation Act 1935 (SA);
(m)such other incidental offences that the head of the special investigation authorised by this instrument suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences mentioned in paragraphs (a) to (l).
Schedule 2        Classes of persons
1      The CEO.
2      Each person who is:
(a)     a member of the staff of the ACC; and
(b)identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to operations and investigations under the Commonwealth Act.
3      Each person who is:
(a)     an officer or member of the staff of any of the following agencies:
(i)     an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;
(ii)    the Australian Taxation Office;
(iii)   AUSTRAC;
(iv)    the Department of Immigration and Citizenship;
(v)     the New South Wales Crime Commission;
(vi)    the Queensland Crime and Misconduct Commission;
(vii) the Australian Defence Force;
(viii) the Department of Defence;
(ix)   the South Australian Department of Fisheries and Wildlife; and
(b)identified in writing by the head of that agency, or a delegate of the head, as a person whose duties include providing services in relation to operations and investigations under the Commonwealth Act.
Schedule B
Australian Crime Commission - State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2010
The Board of the Australian Crime Commission:
(a)acting under subsection 55A (3) of the Australian Crime Commission Act 2002 (the ACC Act) – has consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act 2004 of South Australia (the South Australian Act), is relevant criminal activity; and
(b)in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of subsection 55A (4) of the ACC Act – has made this Determination;
and has made this instrument by resolution on [9 June] 2010.
[signed]
Chair of the Board of the Australian Crime Commission
Name:       …
         [9 June] 2010
1      Name of Instrument
This instrument is the Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2010.
2      Commencement
This instrument commences immediately after it is made.
3Amendment of Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009
The Australian Crime Commission State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009 made by the ACC Board on 10 June 2009, is amended as follows:-
Paragraph 4 is amended by deleting 30 June 2010 and inserting 30 June 2011.
Schedule C
Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No 1 of 2011
The Board of the Australian Crime Commission:
(a)acting under subsection 55A (3) of the Australian Crime Commission Act 2002 (the ACC Act) – has consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act 2004 of South Australia (the South Australian Act), is relevant criminal activity; and
(b)in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of subsection 55A (4) of the ACC Act – has made this Determination;
and has made this instrument by resolution on [15 June] 2011.
Chair of the Board of the Australian Crime Commission
Name:       … [signed]
         [15 June] 2011
1      Name of Instrument
This instrument is the Australian High Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2011.
2      Commencement
This instrument commences immediately after it is made.
3Amendment of Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009
The Australian Crime Commission State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009 made by the ACC Board on 10 June 2009, is further amended as follows:-
Paragraph 4 is amended by deleting “30 June 2011” and inserting “30 June 2014”.
Schedule 1, clause 1 is amended by deleting “clauses 3 and 4” and inserting “clause 3”.
Schedule D
Summons No: S0142/12
SUMMONS TO APPEAR BEFORE AN EXAMINER
OF THE AUSTRALIAN CRIME COMMISSION
Issued under section 19 of the Australian Crime Commission (South Australia) Act 2004 (SA)
To:    …
Pursant to subsection 19(1) of the Australian Crime Commission (South Australia) Act 2004 (SA) (the Act), for the purposes of a special ACC investigation being conducted by the Australian Crime Commission:
1.     being satisfied that it is reasonable in all the circumstances to do so;
2.having recorded in writing the reasons for being so satisfied at 1:05pm on 30 May 2012;
3.     I summon you:
(a)     to appear at 9:30am on Friday 15 June 2012 before an Examiner at an examination at the Australian Crime Commission, Floor 11, East, Commonwealth Centre, 55 Currie Street, ADELAIDE and from day to day unless excused or released from further attendance;
(b)    to give evidence of or about the following relevant criminal activity by a high risk crime group;
i.     money laundering
ii.     illegal drug dealings, and
iii.such other incidental offences that the head of the special investigation authorised by this instrument suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences mentioned above.
Notation:
Pursuant to subsection 21(1) of the Act, a notation is included in this Summons. Pursuant to section 22 of the Act, disclosure of information about this Summons or any official matter connected with it, including information in the Annexures, is prohibited, except:
1.to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the Summons, in which case an application is to be made to the Court for the applicant’s name to be suppressed and replaced by a letter and/or number pseudonym; and
2. where section 22 of the Act does not prevent such disclosure.
[signed]
W.M. Boulton
Examiner
Issued at 1:08pm on 30 May 2012.
Annexures:
Pursuant to subsection 19(3) of the Act, a copy of the ACC Board’s determination that the investigation is a special investigation is attached as Annexure A.
Pursuant to subsection 21(3) of the Act, a statement setting out the rights and obligations conferred or imposed on a person served with, or otherwise given, this Summons by section 22 of the Act is attached as Annexure B.
A set of Explanatory Notes is attached as Annexure C.
ANNEXURE B
STATEMENT OF RIGHTS AND OBLIGATIONS
PURSUANT TO SECTION 21(3) OF THE
AUSTRALIAN CRIME COMMISSION (SOUTH AUSTRALIA) ACT 2004 (SA)
(1)Pursuant to subsections 21(1) and (2) of the Australian Crime Commission (South Australia) Act 2004 (SA) (the Act), a notation is included in the Summons to which this statement is annexed.
(2)Pursuant to section 22 of the Act, the notation prohibits disclosure of information about the Summons. To comply with the notation, you must not disclose:
(a)     the existence of the Summons or any information about it; or
(b)the existence of, or any information about, any official matter connected with the Summons; or
(c)information from which a person could reasonably be expected to infer the existence of the Summons or of any official matter connected with it.
If you breach this requirement, you are liable to a maximum penalty of $2,200 or imprisonment for one year.
(3)An official matter means any of the following (whether past, present or contingent):
(a)     the determination at Annexure A to the Summons;
(b)     an ACC investigation/operation;
(c)     an examination held by an examiner;
(d)     court proceedings.
(4)Subsection 22(2) of the Act specifies certain exceptions to the prohibition on disclosure. As permitted by Subsection 22(2) of the Act, you may make a disclosure, in general terms:-
(a)in accordance with the circumstances, if any, specified in the notation on the Summons; or
(b)to a legal practitioner for the purposes of obtaining legal advice or representation relating to the Summons or matter; or
(c)if you are a body corporate – to an officer or agent of the body corporate for the purpose of ensuring compliance with the Summons; or
(d)if you are a legal practitioner – for the purpose of obtaining the agreement of another person under subsection 23(3) of the Act to you answering a question or producing a document at an examination before an examiner.
(5)If disclosure is made to a person in the circumstances permitted by subsections 22(2), 22(3) of the Act sets out the rights or obligations of that person. A person to whom disclosure is made must not disclose the existence of, or any information about, the Summons or any official matter connected with it, except in the situations provided for in subsection 22(4). Subsection 22(4) provides the following exceptions, in general terms:
(a)if the person is an officer or agent of a body corporate served with, or otherwise given, the Summons, to:
(i)     another officer or agent of the body corporate for the purpose of ensuring compliance with the Summons; or
(ii)    a legal practitioner for the purposes of obtaining legal advice or representation in relation to the Summons or matter;
(b)if the person is a legal practitioner – for the purpose of giving legal advice or making representations, relating to the Summons or matter;
If disclosure was made to the person in a particular capacity (e.g. as an officer or agent of a body corporate or a legal practitioner as outlined in paragraph (4) above) and the person no longer holds that capacity, the person must not, in any circumstances, make a record of, or disclose the existence of, the Summons or any official matter connected with it, or disclose any information about any of them.
(6)The disclosure restrictions cease to apply after the notation in the summons is cancelled by subsection 21(4) of the Act (in which case you will be be [sic] notified by the ACC) or five years elapse after the issue of the Summons, whichever is sooner.
(7)If you have any concerns regarding your welfare following the receipt of this Summons, please communicate with the Contact Officer whose name and telephone number appear on the Summons.
ANNEXURE C
EXPLANATORY NOTES
(1)    You have been served with:
(a)a Summons to appear before an Examiner [if required: and to produce documents OR things OR documents and things];
(b)a copy of the relevant Determination of the Board of the Australian Crime Commission (Annexure A);
(c)     a Statement of Rights and Obligations (Annexure B).
(d)     these Explanatory notes (Annexure C).
(2)You must not show anyone or tell anyone about this Summons and the material served on you, except as specified in paragraph 4 of the Statement of Rights and Obligations.
(3)You may consult a lawyer about the Summons you have received, and you may also be represented by a lawyer at the examination. If you intend to be represented at the examination by a lawyer, you, or your lawyer, should communicate with the Contact Officer whose details appear on the Summons. This should be done as soon as possible after you have received the Summons because the Examiner may have reason to refuse to allow the particular lawyer you have chosen to represent you at the examination. Please show these Notes to your lawyer.
(4)The examination will be held in private and only persons authorised by the Examiner may be present.
(5)Subsections 23 (1) and (2) of the Australian Crime Commission (South Australia) Act 2004 (SA) (the Act) impose obligations on you, as a person served with a Summons and as a witness at an examination, including:
(a)you must attend the examination at the time, on the date and at the place specified in the Summons. If you fail to attend, an examiner may make an application to a Court for a warrant to be issued for your arrest (section 24 of the Act);
(b)you must take an oath or make an affirmation when required to do so by the Examiner;
(c)you must produce any document or thing required to be produced by the Summons; and
(d)you must answer the questions that you are required to answer by the Examiner.
(6)If you are a legal practitioner, subsection 23(3) provides specifically for communications made by or to you in your capacity as a legal practitioner.
(7)Pursuant to 25(1) you must not give evidence at the examination before the Examiner that is to your knowledge false or misleading in a material particular.
(8)A person who contravenes any of subsections 23(1), 23(2), 23(3) or 25(1) is guilty of an indictable offence punishable upon conviction by a fine not exceeding $22,000 or imprisonment for a period not exceeding five years.
(9)As detailed above, you must answer all questions in the examination you are required to answer by the Examiner and produce the documents and things, if any, required by the Summons. However, you are entitled to claim privilege against self-incrimination in relation to the answers you are required to give and the documents or things you are required to produce (paragraph 23(4)(c)). At the start of your examination, the Examiner will draw this entitlement to your attention, explain the effect of claiming the privilege and invite you to claim the privilege against self-incrimination.
(10)If you have any queries about the Summons or these Explanatory Notes, please communicate with the Contact Officer whose details appear on the Summons.