Panesar v Attorney-General (Cth)

Case [2025] FCA 477


EFEDERAL COURT OF AUSTRALIA

Panesar v Attorney-General (Cth) [2025] FCA 477

File number: WAD 116 of 2025
Judgment of: FEUTRILL J
Date of judgment: 14 May 2025
Catchwords:

CONSTITUTIONAL LAW – s 76(i) and s 76(ii) of the Constitution – ‘matter’ arising under the Constitution or involving its interpretation – notice under s 78B of the Judiciary Act 1903 (Cth)

PRACTICE AND PROCEDURE – urgent application for declaratory relief – original jurisdiction of the Federal Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – ‘matter’ arising under any laws made by Parliament – immediate legal right, duty or liability in administration of the law – justiciable controversy – practical utility of declaratory relief – relevance to admissibility of evidence in criminal proceeding in foreign country

STATUTORY INTERPRETATION – incorporation of treaty into Australian municipal law – Mutual Assistance in Criminal Matters Act 1987 (Cth) subject to limitations, conditions, exceptions or qualifications found in treaty – adoption of rules of customary international law into Australian common law – sovereignty and equality of States – act of state doctrine – interpretation of statutes considered with common law principles – abrogation of common law principles – whether duty, liability or obligation imposed on foreign States under Mutual Assistance Act

Legislation:

Constitution ss 76(i), 76(ii), 77(i), 109; Ch III

Extradition Act 1988 (Cth) s 11

Federal Court of Australia Act 1976 (Cth) s 19

Foreign States Immunities Act 1985 (Cth) ss 9, 10

International Arbitration Act 1974 (Cth) s 16

Judiciary Act 1903 (Cth) ss 39B, 78B

Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 5, 6, 7. 8, 9, 11, 12, 13-13AB, 14, 15, 15CA. 15CC. 38C, 26 38D, 38E, 38F, 38J, 38L, 38ZA, 43B, 43C; Divs 2, 3; Ptt II, III, IIIA – IIIB, IV, IVA, V, VI, VIII, VIIA

Mutual Assistance in Criminal Matters Amendment Act 1996 (Cth)

Federal Court Rules 2011 (Cth) r 8.11

Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth) reg 3

Crime (International Co-operation) Act 2003 (UK) s 9

Proceeds of Crime Act 2002 (UK) s 329

Cases cited:

Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564

Attorney-General (NSW) v Commonwealth Savings Bank of Australia [1986] HCA 22; 160 CLR 315

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] [1988] HCA 25; 165 CLR 30

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292

Australian Education Union v Lee [2010] FCAFC 153; 189 FCR 259

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512

Barton v Commonwealth [1974] HCA 20; 131 CLR 477

Bollag v Attorney-General (Cth) (1997) 79 FCR 198

Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270

CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216

Commonwealth Minister for Justice v Adamas [2013] HCA…

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Details
AGLC
Panesar v Attorney-General (Cth) [2025] FCA 477
Case
[2025] FCA 477
Decision Date

CaseChat Overview and Summary

The case of Panesar v Attorney-General (Cth) was heard in the Federal Court of Australia. The applicant, Mr Panesar, sought a declaration that he had an immediate legal right, duty, or liability that was justiciable and that a matter arose under the Constitution or involved its interpretation. This was in the context of a request for mutual legal assistance made by the United Kingdom to Australia. The primary focus of the case was whether the Federal Court had the jurisdiction to hear the matter and whether the relief sought was appropriate.

The central legal issue in the case was whether the Federal Court had the jurisdiction to hear the matter under the Constitution and the relevant provisions of the Judiciary Act. The court needed to determine if the matter involved a question arising under the Constitution or its interpretation and if it was a matter arising under any laws made by Parliament. Additionally, the court had to consider whether the applicant had a justiciable controversy and whether the relief sought would be of practical utility. The case also involved interpreting the Mutual Assistance in Criminal Matters Act 1987 (Cth) and determining whether the applicant's rights under the Act were affected by the admissibility of evidence in a criminal proceeding in a foreign country.

The Federal Court found that the matter did not involve a question arising under the Constitution or its interpretation and, therefore, did not fall within the Court’s original jurisdiction. The Court held that the matter did not meet the threshold of being a question arising under the Constitution or involving its interpretation. Additionally, the Court found that the applicant did not have a justiciable controversy as he did not have a specific and direct interest in the subject matter of the request for mutual legal assistance. The Court also determined that the relief sought was not of practical utility because it did not provide any clear benefit to the applicant in the context of the criminal proceeding in the United Kingdom. The Court concluded that the matter did not fall within the original jurisdiction of the Federal Court under the Judiciary Act.

The Court dismissed the originating application and reserved the costs. The dismissal of the application meant that the Federal Court did not have jurisdiction to hear the matter, and the relief sought by the applicant was not granted. The Court's decision underscored the importance of meeting the jurisdictional requirements and demonstrating a justiciable controversy and practical utility for the relief sought in cases involving constitutional and statutory interpretation.

Orders

Orders of the court

1. The originating application be dismissed.

2. Costs be reserved.

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

Background

Background to the litigation

Parts IIIA - IIIB contain provisions addressing assistance in relation to stored communications, use of surveillance devices, data held in computers and telecommunications data. Part IV addresses arrangements for persons to give evidence or assist investigations. Part IVA addresses requests in relation to certain forensic procedures. Part V contains provisions relating to custody, arrest and escape of persons in transit through Australia for the purpose of giving evidence in a proceeding or assisting in an investigation. Part VI addresses requests relating to proceeds of crime. Part VIII contains various miscellaneous provisions including provisions for making regulations and certain offences relating to misuse of materials provided as a result of requests for assistance by Australia and for disclosure of information associated with requests made by a foreign country to Australia.Relevant facts On 18 November 2010, David Green QC of the CPS wrote to the Australian Attorney-General’s Department requesting assistance in relation to an investigation named ‘Operation Centrum’. Under a heading ‘Purpose of the Request’, the letter said evidence was sought ‘for use in the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceedings related thereto) [of] the following [17 individuals identified in a table]’. The letter then said that the list contained the ‘main suspects’ and further suspects were listed in ‘Annex A’. The applicant was not identified in the table or Annex A. Under a heading ‘Summary of the Case’ the letter set out further information regarding the investigation, the suspected offending, and previous related assistance requested by the United Kingdom. Relevantly, it listed 14 companies and explained the role of those companies and that the officers of those companies were suspected to be involved in the offending. Under a heading ‘Assistance Requested’ the letter asked the Department to obtain documents from Westpac Banking Corporation and Technocash Pty Ltd. The letter then contained the following proviso:Unless you indicate otherwise, any evidence obtained pursuant to this request may be used in any criminal prosecution or other judicial proceedings arising from this investigation, including any restraint or confiscation proceedings, whether relating to the above named subject(s) or to any other person who may become a subject of this investigation. On 2 December 2010, the Commonwealth Minister for Justice issued two authorisations under s 15 of the Mutual Assistance Act authorising the making of applications for search warrants in respect of each of Westpac and Technocash. On 9 December 2010, Mr Green QC sent a further letter to the Department. The second letter requested a broader scope of documents be obtained by Australian authorities. The letter contained further information relating to two entities referred to as ‘companies’. One of the entities identified was Anami Law LLP. I infer that, although referred to as a company, that entity is a limited liability partnership. The letter indicated that the applicant and two other individuals were signatories to a bank account in the name of Anami Law.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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