Salerno, Dominic v National Crime Authority
[1996] FCA 820
•16 SEPTEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
No SG 35 of 1996
B E T W E E N :
DOMINIC SALERNO
Applicant
AND
NATIONAL CRIME AUTHORITY First Respondent
JOHN KELSO Second Respondent
GRAHAM STEVENS Third Respondent
COLIN CUNNINGHAM Fourth Respondent
CLIVE LONGLEY Fifth Respondent
DIGBY MORRISON Sixth Respondent
NOEL BAMFORD Seventh Respondent
KATHRYN HELBIG Eighth Respondent
JUDGE: North J
PLACE: Melbourne (heard in Adelaide)
DATE: 16 September 1996
REASONS FOR JUDGMENT
Before the Court is an objection to competency brought by the respondents, the National Crime Authority and some of its staff members (who are together referred to as “the NCA”), against an application for an order of review by Dominic Salerno, the applicant, under the Administrative Decisions (Judicial Review) Act 1977 (“the Judicial Review Act”), in respect of the decision of the NCA to enter and search
the home of the applicant and the office of the applicant’s solicitors and seize certain articles and documents. The objection to competency raises the issue whether the decision to enter, search and seize was a decision made “under an enactment” within the meaning of ss. 5(1) and 3(1) of the Judicial Review Act. Section 5(1) of the Judicial Review Act allows a person who is aggrieved “by a decision to which this Act applies” to apply to the Court for an order of review in respect of the decision. Section 3(1) of the Judicial Review Act relevantly defines the expression “decision to which this Act applies” as “a decision of an administrative character made .... under an enactment”. If the decision of the NCA to enter, search and seize was not made under a Commonwealth statute, the decision is not reviewable under the Judicial Review Act.
The applicant’s case is that the decision was made under the National Crime Authority Act 1984 (“the NCA Act”). The NCA contends that the decision was not made under the NCA Act because the entries, searches and seizures were effected under the authority of a general search warrant issued to the fourth respondent under s.67 of the Summary Offences Act 1953 (SA).
The entry, search and seizure at the applicant’s house was conducted on 22 March 1996, and the entry, search and seizure at the office of his solicitor was conducted on 12 April 1996. On the evidence before the Court, it is clear that the entries, searches and seizures were part of an investigation conducted by the NCA. The NCA Act, relevantly, provides for such an investigation in the following sections. Section 11(2) provides that:
“(2) The special functions of the Authority are:
(a)where a reference to the Authority made under section 13 is in force in respect of a matter relating to a relevant criminal activity - to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory; and
(b)where a reference to the Authority made in accordance with section 14 by a Minister of the Crown of a State is in force in respect of a matter relating to a relevant criminal activity - subject to subsection 14(1), to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.”
“Relevant criminal activity” is defined in s.4(1) as follows:
“‘relevant criminal activity’ means any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, committed against a law of the Commonwealth, of a State or of a Territory”.
Section 13(1) provides:
“The Minister may, after consulting the Inter-Governmental Committee, by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory.”
Section 14(1) provides:
“If a Minister of the Crown of a State has, whether or not pursuant to a law of the State, with the approval of the Inter-Governmental Committee, by notice in writing to the Authority, referred a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of that State and has not, by notice in writing to the Authority, withdrawn the reference, the Authority shall, with the consent of the Minister, perform the function of investigating that matter.”
In this case, a reference was made under s.13(1) on 9 November 1995 by the Commonwealth Minister for Justice requiring the NCA to investigate certain allegations of criminal conduct concerned with the illegal importation of narcotic drugs, the possession of illegally imported narcotic goods, the conveyance of alleged imported narcotic goods, income tax evasion, duty and excise evasion, and money laundering. A reference was made under s.14(1) on the same day by the Minister for Emergency Services for South Australia which required the NCA to investigate certain allegations of criminal conduct concerned with the unlawful production, sale or supply of a drug of dependence or prohibited substance and murder.
Colin Cunningham, the fourth respondent, is a police officer employed by the South Australia Police Department. At the time of the entries, searches and seizures he was seconded to the NCA under s.58(1)(b) of the NCA Act, which relevantly provides:
“58. (1) The Minister may make an arrangement with the appropriate Minister of the Crown of a State under which the State will, from time to time as agreed upon under the arrangement, .... :
(b)make available .... a member of the Police Force of the State, .... to perform services for the Authority.”
Section 49 then provides that the NCA shall be assisted in its functions by persons whose services are made available pursuant to arrangements made under s.58. Mr Cunningham apparently made the decision to enter, search and seize, which is the subject of the application for an order of review. He made that decision in the course of his duties with the NCA. The entries, searches and seizures were performed under the general
search warrant issued to him by the Commissioner of Police of South Australia under s.67 of the Summary Offences Act 1953 (SA), which provides as follows:
“67. (1) Notwithstanding any law or custom to the contrary, the Commissioner may issue general search warrants to such members of the police force as the Commissioner thinks fit.
(2) Every such warrant must be in the form in the schedule, or in a form to the same effect, and must be signed by the Commissioner.
(3) Every such warrant will, subject to prior revocation by the Commissioner, remain in force for six months from the date of the warrant, or for a shorter period specified in the warrant.
(4) The member of the police force named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the member may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that -
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)the member may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that -
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)the member may seize any such goods or things to be dealt with according to law.”
The decision to utilise the authority to enter, search and seize was made for the purposes of, and as part of, advancing the investigation of the NCA into the alleged criminal activities set out in the references. It was made by a person seconded to the NCA under the provisions of the NCA Act. The decision therefore had a relationship with the NCA Act. The decision could not have been made in the absence of an investigation in progress under the NCA Act. However, the immediate purpose of the decision was to activate the authority granted by the South Australian warrant. The NCA Act provided the necessary general authority to investigate, but the warrant provided the immediate authority for the decision in question. The present case is therefore one in which the making of the decision in question involves multiple sources of power. The Commonwealth Act and the State warrant were both necessary sources of power for the decision to be made.
A number of cases have dealt with the way to identify whether a decision is made under an enactment, where the enactment is one of a number of sources of power for the making of a decision.
In Australian National University v Burns (1982) 64 FLR 166 (“Burns”), the university was given power under s.23 of the Australian National University Act 1946 (Cth) to employ staff and to manage the affairs of the university generally. Pursuant to the statutory power, the university entered into a contract of employment with Professor Burns. The contract contained a clause allowing for termination on grounds of permanent incapacity. The university terminated Professor Burns’ employment on the specific ground of permanent incapacity provided in the contract. The Full Court held that the decision to terminate was not made “under an enactment” and, consequently, was not reviewable under the Judicial Review Act. In a joint judgment, Bowen CJ and Lockhart J (with whom Sheppard J generally agreed) said at 174:
“Notwithstanding that s.23 was the source of the Council’s power to appoint and dismiss the respondent in 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground, namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part of the respondent’s contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dismissed and lays down no incidents of a professor’s employment.
In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 empowered the Council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s.23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.” (emphasis added)
Sheppard J said at 183:
“I emphasize that in the present case the decision to dismiss was made pursuant to the express power in that regard contained in
the contract itself and only in the most indirect way pursuant to powers contained in the appellant’s Act. The contract itself was, of course, made pursuant to that Act.” (emphasis added)In Burns, the decision in question was also referable to multiple sources of power. The Commonwealth Act and the contract were both necessary sources of power for the decision to be made. The above passages implicitly hold that a decision will be made “under an enactment” if the enactment provides the source of power upon which the decision is directly based. The same approach was taken in reliance on Burns in Sellars v Woods (1982) 69 FLR 105, Bayley v Osborne (1984) 4 FCR 141 and Australian Film Commission v Mabey (1985) 6 FCR 107 at 129, per McGregor J.
In Post Office Agents Association Ltd & Anor v Australian Postal Commission (1988) 84 ALR 563 (“Post Office Agents”), Davies J said, at 571, in relation to the phrase “under an enactment”, that “the ADJR Act looks to the immediate or proximate source of power rather than to an ultimate source residing in federal legislation”. In that case, the Postal Services Act 1975 (Cth) gave the Australian Postal Commission (“the Commission”) power to operate postal services and to do all things incidental to the performance of that function. Under the Act, the Commission had power to make arrangements with State ministers for the performance of any act which could conveniently be done in conjunction with the performance of the functions of the Commission. Under this power, the Commission arranged with the State of New South Wales that post offices and post office agencies would sell New South Wales duty stamps. It entered into contracts with persons in New South Wales to act as post office agents. When the Commission decided to
exclude post office agents from this role, an agent and an association representing agents sought reasons under s.13 of the Judicial Review Act. His Honour upheld an objection to competency against the application for an order of review because the decision was not made under an enactment. He said, at 572-3:“The Commission was authorised to do anything which was incidental or conducive to the performance of its functions, which included the function of operating postal services, and the Commission was specifically authorised to make arrangements with the Minister of a State government for the doing of anything or any act or thing that could conveniently be done in conjunction with the performance of its functions. With respect to the sale of New South Wales duty stamps, the Commission had made such an arrangement for the sale of New South Wales duty stamps in its post offices and post office agencies. The arrangements which it had with its post office agents for the sale of those stamps were contractual arrangements. Although the ultimate source of power for the Commission’s acts was the Postal Services Act, the steps which it took to arrange with its post office agents to sell New South Wales duty stamps were made in pursuance of the Commission’s arrangement with the appropriate Minister of the New South Wales Government and, thereafter, the relationship between the Commission and its post office agents with respect to the sale of New South Wales duty stamps, the remuneration which was to be paid and received, the manner in which the stamps were to be dealt with and the period during which post office agents could continue to sell the New South Wales duty stamps were all matters arising under and governed by the contractual arrangements between the Commission and its agents.”
In General Newspapers Pty Ltd & Ors v Telstra Corporation (1993) 45 FCR 164 (“General Newspapers”) a number of printers and publishers sought orders of review of the conduct of Telecom leading to, and the decision to enter into, contracts for the publication of the white pages and yellow pages telephone books, whereby the contracts were awarded to other printers and publishers without being put out to tender.
Several Commonwealth Acts gave Telecom power to contract. The Full Court held that the conduct and decisions were not made under Commonwealth enactments and were therefore not reviewable. Davies and Einfeld JJ (with whom Gummow J generally agreed) said at 172:“The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment”.
Further, at 173:
“In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provisions for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decision.”
General Newspapers was applied in CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329.
It follows from these cases that, where there are multiple sources of power for the making of a decision, including a Commonwealth enactment, the decision will be made under that enactment if it is made directly under the enactment (Burns) or if the enactment is the immediate or proximate source of power rather than the ultimate source of power (Post Office Agents), or the decision is given force or effect by the enactment or by the principle of law applicable to the enactment (General Newspapers). Each of these formulations describes the necessary relationship between the source of power and the decision with
a view to isolating the decision made under a Commonwealth enactment and a decision made under some other source of power. While each case will depend on its own facts, these slightly different approaches all clearly require a closer rather than a more distant relationship between the decision and the federal legislation, in order that the decision be held to be made under an enactment. In Emanuele v Cahill (1987) 18 FCR 304 at 315, Neaves J described the required link between the enactment and the decision as “a sufficiently close connection”, “as a matter of substance”.
Burns, Post Office Agents and General Newspapers each involved decisions made under the law of contract or in respect of existing contracts. The contending sources of power in each case were the Commonwealth enactment conferring general powers to contract and the individual contract entered into or the general law of contract by which the relationship between the parties was regulated. In the present case, the contending sources of power for the making of the decision are the Commonwealth enactment and the general search warrant issued under South Australian law. The fact that the alternative source of power in this case is the general search warrant issued under the South Australian law, rather than the contract or the principles of the law of contract, does not make any difference to the application of the approaches taken in these cases.
Because these formulations were made in cases of multiple sources of power, there is in each formulation an implicit characterisation of the relationship of each source of power to the decision by reference to both
the source of power for the decision and the relative significance and connection of each source of power to the other. Where there is effectively only one source of power for the making of the decision, the relative role of each source of power is not a relevant factor. However, the analysis of the relationship of the sole source of power to the making of the decision is similar. Such an analysis is evident in Glasson v Parkes Rural Distributions Pty Ltd (1983) 155 CLR 234. Although this was not a case involving multiple sources of power, it bears a similarity to the present case because it also raised the possibility that the source of power resided in State legislation. The judgment emphasises that an identification of the legal source of power to make the decision is central to the determination of the question of whether a decision was made under an enactment. In that case, Commonwealth legislation provided for the Commonwealth to pay a grant to a State to reimburse the State for subsidies paid to petroleum distributors. The grant depended on the passing of State legislation implementing a scheme by which distributors could make claims against the State, with the corresponding obligation to refund any overpayment made by the State. Under the State Act, the amount due to or from a distributor was to be determined by reference to a certificate issued by a State official. This would, in turn, provide the basis for calculating the amount of the grant. A distributor sought an order of review of the decision of the State official to grant a certificate showing that the distributor was bound to refund some of the amount of the subsidy previously paid. The High Court held that a review was not available because the decision was not made under the Commonwealth legislation. Their Honours said, at 240-241:
“The appellant derived his authority to give the certificate in question from the State Act and from no other source. He was, as the scheme envisaged, appointed under the State Act to be an
authorized officer, and the power which he exercised was conferred on him by s.8(3) of that Act. The certificate derived its legal efficacy to impose a legal liability on the distributor entirely from the State Act, and in particular from s.10. No action taken under the Commonwealth Act or under the scheme could either strengthen, or detract from, the force of the certificate under s.8(3). The State Act of course proceeds on the assumption that there was in force a scheme by reference to which the amounts payable should be ascertained and an authorized officer, in giving a certificate, would be bound to consult the scheme and to ascertain the amounts payable in accordance with the scheme. However, although the scheme would give the authorized officer authoritative guidance, it did not give him power or authority to make the decision to issue the certificate and it was not the legal source of the rights and liabilities which the certificate created and imposed. Finally, the certificate issued by the appellant purports to have been issued under s.8(e) of the State Act and closely follows the words of that section, which although similar to are not the same as those of cl. E2(5) of the scheme. The issue of the certificate might have a practical effect on the rights and liabilities of the Commonwealth and the State inter se as measured by the scheme: it might lead to a repayment by the distributor to the State, and thereby affect the adjustment of accounts between the Commonwealth and the State pursuant to ss. 3 and 11 of the Commonwealth Act and cl. E7 of the scheme, but that does not mean that it was issued under the scheme. When neither the Commonwealth Act nor the scheme is the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision’s legal effect, it cannot be said that the decision was made under that enactment. For these reasons, we find it impossible to say that the certificate was issued under the authority, or in pursuance, of the Commonwealth Act or the scheme, or that it represents or embodies a decision made under the Commonwealth Act or the scheme. It was issued entirely under the State Act. It was not a decision ‘under an enactment’ within the Administrative Decisions (Judicial Review) Act, and it follows that the objection to the competency of the application was rightly upheld by McGregor J.” (emphasis added)
The same single source of power analysis had been applied earlier in the context of a decision to execute a search warrant. In Baker v
Campbell & Anor (1982) 66 FLR 29, Keely J held that the decision of a Commonwealth police officer to execute a search warrant issued under the Crimes Act 1914 (Cth) was neither a decision of an administrative character nor a decision made under an enactment. As to the latter, his Honour said, at 38:“Mr Temby sought to distinguish the decision of the Full Court in Burns’ case, saying that the contract under consideration in Burns’ case ‘did not need a statutory underpinning’ but the search warrant did. He pointed out that Burns’ case accepted that an action could, in a particular case, be both ‘under a contract’ and also ‘under an enactment’; accordingly he submitted that the court should find that the act of seeking to execute the search warrant was an act both under the warrant and under s.10 of the Crimes Act. I am unable to uphold that submission. In my opinion s.10 of the Crimes Act, upon which the applicant relies, does not in terms authorize a constable to search any premises; instead it empowers a justice of the peace in certain circumstances to ‘grant a search warrant authorizing any constable’ to search. When the constable attempted to execute the search warrant he was acting under the warrant which used the words ‘you are hereby authorized’ and concluded ‘and for so doing this shall be your sufficient warrant’. In my opinion he was acting under the warrant and was not acting ‘under’ s.10 of the Crimes Act (as contended by the applicant) - notwithstanding the fact that s.10 had at an earlier stage empowered the justice of the peace to issue the search warrant.”
In the present case, the text of the general search warrant was not put in evidence, but, assuming that it followed the form set out in the Schedule to the Summary Offences Act 1953 (SA), it would have “hereby authorised” the entry, search and seizure effected by the NCA.
In my view, the necessary relationship between the decision to act on the general search warrant and the NCA Act so that the decision can be characterised as having been made under the NCA Act is absent in
this case. The decision to act on the general search warrant was not made directly under the NCA Act. It was made by reference to the authority to search granted by the warrant. The NCA Act was the ultimate source of power to conduct the investigation and to confer powers on particular staff members of the NCA, but the immediate or proximate source of the power to enter, search and seize was the general search warrant, not the NCA Act. Again, force and effect was given to the decision by the general search warrant, not the NCA Act. The NCA Act did not authorise the entry, search and seizure, but only the investigation in the course of which the entry, searches and seizures were conducted.
For the above reasons, the objection to competency is upheld and the application for an order of review is dismissed. I will hear the parties on the question of costs.
I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of his Honour Justice North.
Associate:
Dated: 13 September 1996
Counsel for the applicant: M. Abbott QC and H. Patsouris, solicitor
Solicitors for the applicant: Condello & Co
Counsel for the respondent: S. Maharaj
Solicitors for the respondent: Australian Government Solicitor
Date of hearing: 5 August 1996
Date of judgment: 16 September 1996
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
No SG 35 of 1996
B E T W E E N :
DOMINIC SALERNO
Applicant
AND
NATIONAL CRIME AUTHORITY First Respondent
JOHN KELSO Second Respondent
GRAHAM STEVENS Third Respondent
COLIN CUNNINGHAM Fourth Respondent
CLIVE LONGLEY Fifth Respondent
DIGBY MORRISON Sixth Respondent
NOEL BAMFORD Seventh Respondent
KATHRYN HELBIG Eighth Respondent
MINUTES OF ORDERS
JUDGE: North J
PLACE: Melbourne (heard in Adelaide)
DATE: 16 September 1996
THE COURT ORDERS THAT:
The objection to competency is upheld.
The application for an order of review is dismissed.
The determination of the question of costs is adjourned to a date to be fixed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. .
C A T C H W O R D S
ADMINISTRATIVE LAW - JUDICIAL REVIEW - Investigation being conducted by NCA under Commonwealth Act - General search warrant obtained under State legislation - Decision by NCA to use warrant to conduct entry, search and seizure - Whether decision made under the Commonwealth Act - Meaning of “under an enactment”
Administrative Decisions (Judicial Review) Act 1977, ss. 3, 5
National Crime Authority Act 1984, ss. 11, 13, 14, 58
Summary Offences Act 1953 (SA), s.67
Australian Film Commission v Mabey (1985) 6 FCR 107;
Australian National University v Burns (1982) 64 FLR 166;
Baker v Campbell & Anor (1982) 66 FLR 29;
Bayley v Osborne (1984) 4 FCR 141;
CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329;
Emanuele v Cahill (1987) 18 FCR 304;
General Newspapers Pty Ltd & Ors v Telstra Corporation (1993) 45 FCR 164;
Glasson v Parkes Rural Distributions Pty Ltd (1983) 155 CLR 234;
Post Office Agents Association Ltd & Anor v Australian Postal Commission (1988) 84 ALR 563;
Sellars v Woods (1982) 69 FLR 105.
SALERNO -v- NATIONAL CRIME AUTHORITY & Ors
No SG 35 of 1996
Before: North J
Place: Melbourne (heard in Adelaide)
Date: 16 September 1996
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