WY v National Crime Authority
[2000] FCA 451
•11 APRIL 2000
FEDERAL COURT OF AUSTRALIA
WY v National Crime Authority [2000] FCA 451
ADMINISTRATIVE LAW - PRACTICE AND PROCEDURE – right of review from decision of the Chairman of the National Crime Authority – whether the applicant is entitled to a review of the decision of the Chairman pursuant to both the Administrative Decisions (Judicial Review) Act and the National Crime Authority Act
ADMINISTRATIVE LAW – review of decision of Chairman of the National Crime Authority – whether applicant entitled to challenge validity of decision on facts arising subsequently to the decision
PRACTICE AND PROCEDURE – production of documents – public interest immunity claim by National Crime Authority – whether applicant challenging decision of Chairman of National Crime Authority entitled to Chairman’s personal notes made in preparation for giving written reasons for decision
PRACTICE AND PROCEDURE – production of documents – warrants – whether applicant is entitled to have access to warrant allegedly issued for his arrest and the information laid on which that warrant was based
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 509, referred to
Hope v Council of the City of Bathurst (1980) 144 CLR 1, referred to
AB v National Crime Authority (1998) 85 FCR 538, referred to
C v National Crime Authority (1988) 78 ALR 338, considered
Bank of Valletta PLC v National Crime Authority and Another (1999) 165 ALR 60, referred toAB v National Crime Authority (1997-1998) 49 ALD 397, considered
Karmas v NSW Land & Housing Corporation (New South Wales Supreme Court, Dunford J, unreported, 12 February 1999), followedAdministrative Decisions (Judicial Review) Act 1977 (Cth), s 10
Federal Court Rules, Order 4 rule 6, Order 57 rules 1 and 2(3)
National Crime Authority Act 1984 (Cth), ss 13, 19, 25, 28, 29, 30, 32, 57WY v NATIONAL CRIME AUTHORITY & JOHN BROOME
N 714 OF 1999
WY v NATIONAL CRIME AUTHORITY
N 715 OF 1999
EINFELD J
11 APRIL 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 714 OF 1999
BETWEEN:
WY
ApplicantAND:
NATIONAL CRIME AUTHORITY
First RespondentJOHN BROOME
Second RespondentJUDGE:
EINFELD J
DATE OF ORDER:
11 APRIL 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.the application be dismissed with costs
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 715 OF 1999
BETWEEN:
AND:
WY
ApplicantNATIONAL CRIME AUTHORITY
First RespondentJUDGE:
EINFELD J
DATE OF ORDER:
11 APRIL 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.ground 1(d) of the application and paragraph 18(d) of the statement of claim be struck out
2.paragraphs (a), (b) and (d) of the schedule to the subpoena issued by the applicant on 21 September 1999 be struck out
3.each party pay his and its own costs of the motion
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
BETWEEN:
WY N 714 OF 1999
ApplicantAND:
BETWEEN:
AND:
NATIONAL CRIME AUTHORITY
First RespondentJOHN BROOME
Second RespondentWY N 715 OF 1999
ApplicantNATIONAL CRIME AUTHORITY
First Respondent
JUDGE:
EINFELD J
DATE:
11 APRIL 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
On 12 November 1998 the first respondent (the Authority) issued a summons under section 28 of the National Crime Authority Act 1984 (the NCA Act) requiring the applicant to appear at a hearing to give evidence in relation to certain matters referred to the Authority by the Commonwealth Minister for Justice. At the hearing before the second respondent who was then the Chairman of the Authority (the Chairman) on 19 and 20 November 1998, the applicant answered some questions but objected to answering certain others on the basis that he had a reasonable excuse to do so: s.30(2) of the NCA Act. After some discussion the Chairman indicated that the objection would be rejected. By letter of 17 December 1998 from his solicitor to the Authority, the applicant asked to be heard further as to his objection but by letter of 21 December, the Authority declined the request. On 29 January 1999, the applicant repeated, and on 5 February the Authority again refused, the request. Then on 13 July 1999 the Authority formally notified the applicant of its decision that the objection was not justified and informed him that an arrest warrant had been issued against him for having given false evidence to the Authority contrary to section 33(1) of the NCA Act.
On 23 July 1999 the applicant issued the present two sets of proceedings, each consisting of an application for judicial review, one under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) (first proceedings) and one under section 32(2) of the NCA Act (second proceedings). Each was accompanied by a statement of claim. Except for the claimed jurisdiction, the two proceedings, in terms of facts and result, are to all intents and purposes identical. I cannot see why the two statements of claim were issued when the filing of an affidavit in each proceeding would have sufficed: see Order 4 rule 6 and Order 57 rule 1 of the Federal Court Rules.
In all this flurry of process, the applicant sought orders setting aside or quashing the decision to decline the objections to answering the questions. On 28 October 1999 the NCA filed notices (in the first proceedings an objection to competency, in the second a motion) raising the question whether the Court has jurisdiction to deal with the matters raised or to grant the relief sought. The challenge was to the ground appearing virtually identically in paragraph 1 of the applications and paragraphs 19 (first proceedings) and 18 (second proceedings) of the statements of claim. This ground was that the applicant had a reasonable excuse to refuse to answer the questions, and thus that his claim not to do so was justified on the grounds that:
(a)answering the Questions would involve the Applicant in the commission of an offence, or alternatively expose the Applicant to a serious risk of prosecution for a violation of the laws of Switzerland
(b)the Applicant owes fiduciary and contractual obligations of confidentiality to his employer, the Bank, which would not enable him to answer the Questions without the Applicant breaching those obligations and placing the Applicant at serious risk of being liable to the Bank or placing his employment with the Bank in jeopardy
(c)answering the Questions might tend to prove the Applicant’s guilt of an offence against a law of the Commonwealth and the Director of Public Prosecutions has not given an undertaking in writing that any answer given to the Questions and any direct or indirect consequence of any answer provided by the Applicant will not be used against the Applicant in any proceedings against him for an offence
(d)the NCA has advised the Applicant that a warrant for the Applicant’s apprehension has been issued in respect of the alleged offence of giving false evidence at the hearing at which the Respondent posed the Questions and answering the Questions might tend to prove the Applicant’s guilt in respect of that alleged offence and the Director of Public Prosecutions has not given an undertaking in writing that any answer given to the Questions and any direct or indirect consequence of any answer provided by the Applicant will not now be used against the Applicant in proceedings against him for that alleged offence
(e)there are avenues available to the NCA to obtain the information it seeks from the Bank, by approaching the relevant Swiss authorities. If that course were followed by the NCA, the Bank could and would produce the information the NCA seeks of the Applicant but the Applicant would not be exposed to criminal or civil penalty or subject to the risk that the answers to the Questions would be used in prosecution of proceedings for allegedly giving false evidence at the hearing at which the NCA posed the Questions
(f)answering the Questions would involved practical difficulties for the Applicant in obtaining the information required from the Bank in order to answer the Questions
Meanwhile, on 21 September 1999, the applicant issued a subpoena to the Authority in the second proceedings requiring the production of:
(a)original or copy of any warrant for the Applicant’s apprehension which has been referred to in the Respondent’s letter dated 13 July 1999 (“the Warrant”)
(b)any information laid on which the Warrant was based
(c)any correspondence between the Respondent and the Federal Police or any prosecuting authority in respect of the Warrant
(d)any document in the Respondent’s possession or brought into existence by or on behalf of the Respondent recording the basis or grounds on which the Respondent determined to refuse the Applicant an opportunity to be heard further sought in letters from the Applicant’s solicitors to the Respondent dated 17 December 1998 to 29 January 1999
(e)any document in the Respondent’s possession or brought into existence by or on behalf of the Respondent recording any deliberation by the Respondent or the Chairperson of the Respondent on the issue of the Claim as defined in paragraph 7 of the Statement of Claim in the proceedings consequent on the letters from the Applicant’s solicitors to the Respondent dated 17 December 1998 to 29 January 1999
On 13 October 1999 the Authority moved on notice to set aside paragraphs (a) and (b) of the subpoena on the grounds that:
(a)the disclosure of the information contained in the document falling within paragraph (b) of the Subpoena is prohibited by law
(b)the disclosure of information contained in the documents falling within each paragraph of the Subpoena is contrary to the public interest and therefore access should not be granted as a matter of discretion
(c)there is no forensic purpose to be served in these proceedings by granting access to the documents falling within each paragraph of the Subpoena
All these proceedings were argued and may be determined together.
The NCA Act
Section 13 of the NCA Act gives the Authority power to conduct “special investigations” following references by the Commonwealth. By section 25 the Authority may hold hearings as part of a special investigation in accordance with rules and procedures provided for. Section 28 empowers the presiding member to require a person to appear and give evidence on oath or affirmation. Section 29 provides for compulsory production of documents. Section 30 provides:
(1)A person served, as prescribed, with a summons to appear as a witness at a hearing before the Authority shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by a member.
(2)A person appearing as a witness at a hearing before the Authority shall not, without reasonable excuse:
(a) when required pursuant to section 28 either to take an oath or make an affirmation—refuse or fail to comply with the requirement;
(b) refuse or fail to answer a question that he or she is required to answer by the member presiding at the hearing; or
(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
(3)Where:
(a) a legal practitioner is required to answer a question or produce a document at a hearing before the Authority; and
(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;
the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the member presiding at the hearing, furnish to the Authority the name and address of the person to whom or by whom the communication was made.
(4)Subject to subsections (5), (7) and (9), it is a reasonable excuse for the purposes of subsection (2) for a natural person:
(a) to refuse or fail to answer a question put to him or her at a hearing before the Authority; or
(b) to refuse or fail to produce a document or thing that he or she was required to produce at a hearing before the Authority;
that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him or her.
(5)It is not a reasonable excuse for the purposes of subsection (2) for a person:
(a) to refuse or fail to answer a question put to him or her at a hearing before the Authority; or
(b) to refuse or fail to produce a document or thing that he or she was required to produce at a hearing before the Authority;
that the answer to the question or the production of the document or thing might tend to prove his or her guilt of an offence against a law of the Commonwealth or of a Territory if the Director of Public Prosecutions has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against him or her for an offence against a law of the Commonwealth or of a Territory other than proceedings in respect of the falsity of evidence given by the person and the Director of Public Prosecutions states in the undertaking:
(c) that, in his or her opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and
(d) the general nature of those grounds.
(6)The Authority may recommend to the Director of Public Prosecutions that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Authority or to produce a document or thing at a hearing before the Authority be given an undertaking in accordance with subsection (5).
(7)It is not a reasonable excuse for the purposes of subsection (2) for a person:
(a) to refuse or fail to answer a question put to him or her at a hearing before the Authority; or
(b) to refuse or fail to produce a document or thing that he or she was required to produce at a hearing before the Authority;
that the answer to the question or the production of the document or thing might tend to prove his or her guilt of an offence against a law of a State if the Attorney-General of that State, or a person authorized by him or her, being the person holding the office of Director of Public Prosecutions, or a similar office, of that State, has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against him or her for an offence against a law of that State other than proceedings in respect of the falsity of evidence given by the person and the Attorney-General of that State, or the person so authorized, states in the undertaking:
(c) that, in his or her opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and
(d) the general nature of those grounds.
(8)The Authority may recommend to the Attorney-General of a State that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Authority or to produce a document or thing at a hearing before the Authority be given an undertaking in accordance with subsection (7).
(9)For the purposes of subsection (2):
(a) it is not a reasonable excuse for a corporation to refuse or fail to produce a document or thing that the production of the document or thing might tend to incriminate the corporation; and
(b) it is not a reasonable excuse for a natural person to refuse or fail to produce a document that is, or forms part of, a record of an existing or past business (not being, in the case of a person who is or has been an employee, a document that sets out details of earnings received by the person in respect of his or her employment and does not set out any other information) that the production of the document might tend to incriminate the person.
(10)Subsections (5), (7) and (9) do not apply where the offence in respect of which the answer to a question or the production of a document or thing, as the case requires, might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of.
(11)A person who contravenes subsection (1), (2) or (3) is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months.
Thus it is an offence under subsection (11) to refuse or fail to answer without reasonable excuse a question required to be answered. Whether a reasonable excuse has been proffered is for the Authority to determine. If the Authority determines that an objection to answering is not justified and the witness still declines to answer, prosecution for the s.30(11) offence may ensue which the witness may defend on the ground that there was a reasonable excuse not to have answered.
Section 32 permits judicial review of an adverse decision. It provides:
(1) Where:
(a) a person claims to be entitled to refuse to furnish information or produce a document that he or she is required to furnish or produce pursuant to a notice under section 20;
(b) a person claims to be entitled to refuse to produce a document that he or she is required to produce pursuant to a notice under section 29; or
(c) a person claims to be entitled to refuse to answer a question put to him or her, or to produce a document that he or she was required to produce, at a hearing before the Authority;
the Authority shall decide as soon as practicable whether in its opinion the claim is justified and notify the person of its decision.
(2)If the person is dissatisfied with the decision, he or she may apply to the Federal Court for an order of review in respect of the decision.
(3)…...
(4)On an application for an order of review in respect of a decision of the Authority under subsection (1), the Federal Court may, in its discretion, make an order:
(a) affirming the decision; or
(b) setting aside the decision.
(5)……
(6)A prosecution for an offence under section 20, 29 or 30 shall not be commenced in respect of a refusal or failure by a person to furnish information, produce a document or answer a question:
(a) if the person has claimed to be entitled to refuse to furnish the information, produce the document or answer the question, as the case may be, and the Authority decides that, in its opinion, the claim is not justified—until the expiration of the period of 5 days (excluding days on which the Registry of the Federal Court is closed) immediately after the relevant day in relation to the decision; or
(b) if the person has made an application to the Federal Court under subsection (2) for an order of review in respect of a decision by the Authority that, in its opinion, a claim by the person to be entitled to refuse to furnish the information, produce the document or answer the question is not justified—until the application, and any appeal from an order made by the Federal Court on the application, have been determined or otherwise disposed of.
(7)An order of the Federal Court under subsection (4) is, subject to any appeal from that order, conclusive for the purposes of any other proceedings.
(8)Where a person who is required to produce a document pursuant to a notice under section 29, or who is required to produce a document at a hearing before the Authority, claims that:
(a) the document contains:
(i)particular matter (in this subsection referred to as the “relevant matter”) relating to the personal affairs of the person, not being matter relating to the activities of an existing or past business; or
(ii)in the case of a person who is or has been an employee—particular matter (in this subsection also referred to as the “relevant matter”), being details of earnings received by the person in respect of his or her employment; and
(b) the person would, if the document had contained only the relevant matter, have been entitled, on the ground that production of the document might tend to incriminate him or her, to refuse so to produce the document;
the person may, whether or not he or she has made an application to the Federal Court under subsection (2) in respect of a decision by the Authority in relation to the document, make an application to the Federal Court for an order under this subsection and, if such an application is made and the document is produced to that Court, then, subject to paragraph (5)(a), that Court:
(c) if it is satisfied that the claim is justified—may, subject to paragraph (d) of this subsection, make such order as it thinks fit for the excision or concealment of the part of the document that contains the relevant matter and shall, if it makes such an order, make a further order directing that the document be delivered to the Authority after the first-mentioned order has been complied with;
(d) if it is satisfied that an undertaking of a kind referred to in subsection 30 (5) or (7) has, or 2 or more such undertakings have, been given to the person and that the person would not, if the document contained only the relevant matter and the person were now required to produce the document to the Authority, be entitled, on the ground that production of the document might tend to incriminate him or her, to refuse so to produce it—shall make an order directing that the document be delivered to the Authority; and
(e) if paragraph (d) does not apply and that Court does not make an order of the kind first referred to in paragraph (c)—shall make an order directing that the document be delivered to the Authority.
……
(12)An application to the Federal Court under subsection (2)…:
(a) shall be made in such manner as is prescribed by Rules of Court made under the “Federal Court of Australia Act 1976”;
(b) shall set out the grounds of the application; and
(c) shall be lodged with a Registry of the Federal Court within the period of 5 days (excluding days on which the Registry is closed) immediately after:
(i)in the case of an application under subsection (2)—the relevant day in relation to the decision to which the application relates; or
(ii)……
or within such further period as that Court (whether before or after the expiration of the first-mentioned period) allows.
(13)In this section, unless the contrary intention appears:
“document” includes any thing.
“prescribed notice” means a notice stating as mentioned in paragraph 32A(2)(c).
“relevant day” means:
(a) in relation to a decision of the Authority under subsection (1) in respect of a claim by a person to be entitled to refuse to furnish information, or to produce a document, that the person is required to furnish or produce pursuant to a notice under section 20—the day on which the Authority notifies the person of the decision;
(b) in relation to a decision of the Authority under subsection (1) other than a decision of the kind referred to in paragraph (a) of this definition—the day on which the Authority gives to the person to whom the decision relates a prescribed notice relating to the decision; or
(c) ……
(14)Where a decision of the Authority under subsection (1) relates to 2 or more questions, or to 2 or more documents, the decision shall, to the extent to which it relates to a particular question or document, be deemed, for the purposes of this Act, to constitute a separate decision relating to that question or document only.
(15)……
Section 57 permits certain proceedings to be taken under the Judicial Review Act:
Section 11 of the “Administrative Decisions (Judicial Review) Act 1977” has effect in relation to matters arising under this Act as if subsections (1) to (5), inclusive, of that section were omitted and the following subsection were substituted:
“(1) An application to the Court for an order of review in respect of a matter arising under the “National Crime Authority Act 1984”:
(a) shall be made in such manner, and shall contain such particulars, as are prescribed by Rules of Court and shall contain such other particulars (if any) as the Court directs;
(b) shall set out the grounds of the application; and
(c) shall be lodged with a Registry of the Court within the period of 5 days (excluding days on which the Registry is closed) after the day on which the applicant becomes aware of the matter or within such further period as the Court (whether before or after the expiration of the first-mentioned period) in special circumstances allows.”
The first proceedings
The objection to the competency of the first proceedings is based upon a reading of the NCA Act that would constitute it as the exclusive statutory base for judicial review in the current factual circumstances thereby ousting the operation of the Judicial Review Act. The Authority’s principal argument was that although the available grounds are relevantly equivalent, s. 32 reviews contain certain limitations, especially on the Court’s power to make orders (being only to affirm or set aside the determination under review), and certain special ancillary powers (for example, to stay prosecutions and deal with documents produced under summons) which do not apply under the Judicial Review Act. Although section 57 demonstrates that the Judicial Review Act is applicable to some decisions under the NCA Act, the Authority argued that that section has no application to s.32 reviews: see s.32(12) which provides its own procedures for such matters.
The applicant’s arguments were that the Judicial Review Act complements the NCA Act, that there is no implied exclusion by the NCA Act, and that the Judicial Review Act and section 57 of the NCA Act clearly provide for a joint operation.
The second proceedings
The Authority argued that an application for judicial review under section 32(2) of the NCA Act brings before the Court only the question whether the claim to be entitled to refuse to answer was justified, and not whether the witness had a reasonable excuse for refusing to answer the questions put. The Authority said that section 32(2) does not require or permit the Court to substitute its own decision for that of the Authority but that the Court’s power under that subsection is only to affirm or set aside the original decision (s.32(4)) based on the principles of administrative law. Hence, the Authority said, the Court’s task is limited to a review of the lawfulness of the decision to reject the claim for justification, although it conceded, perhaps somewhat anomalously, that the power includes whether on the facts found by the Authority the witness did or did not have a reasonable excuse for not answering. The Authority submitted that this review was limited to the material and grounds before it at the time of its decision.
The applicant submitted that the Authority’s motion as argued was tantamount to an objection to the competency of the Court to hear the matter which was by Order 57 rules 2(3) of the Federal Court Rules filed three months out of time without leave being given for an extension. It should therefore be dismissed on that ground alone. The applicant also said that if one of the applications proceeded, they should both proceed, especially as the statutory construction for which the Authority contended was at least arguable. He suggested that the construction of subsection (2) put forward by the Authority created tension with subsections (7) and (8) of section 32.
The subpoena
Through three affidavits of Garry Phillip Allen, Director of its Sydney office and a lawyer, together with a number of disclosed and confidential annexures, the Authority argued that the challenged items sought by the subpoena were required by law to be kept confidential and would, if made available, have serious prejudicial consequences to the Authority’s investigations, the prosecution of offences, and certain of its evidence. It would also reveal sources of information and investigation techniques. The Authority also said that there was no legitimate forensic purpose in the production of the information. Public interest immunity is claimed for the working drafts of the reasons for the relevant decision of the Authority on 13 July 1999 although what public interest is at stake was not identified other than by reference to and the adoption of the views expressed by Justice Dunford of the New South Wales Supreme Court in Karmas v NSW Land & Housing Corporation, unreported, 12 February 1999.
The right of review under the Judicial Review Act
The Authority’s submission that the provision for review under section 32 of the NCA Act excludes the application of the Judicial Review Act to the decision of the Authority is consistent with dicta of Northrop J in C v National Crime Authority (1988) 78 ALR 338. The applicant in that case commenced proceedings in reliance on the Judicial Review Act in order to have a decision of the Authority under section 32 of the NCA Act judicially reviewed. At 341, Northrop J said:
The applicant sought to review the decision of the Authority but instead of proceeding under s 32 of the Act and O 57 of the Federal Court Rules, the applicant commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and O 54 of the Federal Court Rules. Upon the Court drawing attention to this defect, counsel for the applicant sought leave to treat the application as if it had been brought under s 32 of the Act and O 57 of the rules. Counsel for the Authority consented to that course. Accordingly, the court gave the leave sought and proceeded as if the application had been brought under s 32 of the Act and O 57 of the Federal Court Rules.
This passage from the judgment clearly implies that the right of review of such a decision by the Authority lies under the scheme prescribed by the NCA Act, and not under the Judicial Review Act. However, the issue was not debated in the case and hence the reasons for the change of tack are not discernible from the judgment. The matter squarely arises in this case and must be decided.
It is clear that the framers of the Judicial Review Act foresaw this very situation, where two distinct rights and processes of judicial review may exist in respect of a single administrative decision, because they inserted section 10 into the Judicial Review Act:
(1)The rights conferred by sections 5, 6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:
(a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and
……
(2)Notwithstanding subsection (1):
(a) the Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and
(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:
(i)that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or
(ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
(3)In this section, “review” includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.
Although in form directed to this case, the Authority’s submission on this issue would mean that the right of review of an administrative decision under the Judicial Review Act is supplanted whenever another enactment of the Parliament provides an alternate right and procedure of review in respect of the same decision. Section 10 of the Judicial Review Act neither supports this viewpoint nor firmly displaces it. Clearly subsection (1) requires the Court to consider the appropriate basis for review on a case by case basis. On the other hand, there would be no point to subsection (2) unless the discretion not to allow two or more challenges to the one decision was freely and sensibly exercised. If, for example, one form of review was more limited than another in terms of substance, relief or even time for lodgment, it would be understandable that the most generous of the opportunities be allowed to proceed. But economy of the parties’ costs and the use of the court time are important public interests and it would be difficult to think of too many circumstances in which more than one set of proceedings on one decision would be permitted to proceed, especially where they are relevantly identical.
In my opinion, notwithstanding section 57, the adequacy of the right and procedure of review provided by section 32 of the NCA Act is sufficient to deny this applicant the right to proceed on his application founded on the Judicial Review Act: s.10(2)(b)(ii) of the Judicial Review Act. There is nothing in the NCA Act which limits the grounds for review on an application under section 32 to a narrower class of grounds than are provided for in the Judicial Review Act. However, the review procedure provided by the NCA Act and Order 57 of the Federal Court Rules, as well as the narrower range of orders that the Court may make on the conclusion of its review, serve the significant public interest of furthering the evident policy of the NCA Act, while not adversely affecting the adequacy of the right of review itself: s.32(4) of the NCA Act and s.16 of the Judicial Review Act.
The grounds of the application and statement of claim in the second proceedings
In my opinion the Authority was correct in its submission that the question for the Court in a review under section 32 of the NCA Act is whether the decision has been made in conformity with or in contravention of administrative law principles. Such a concept of reviews under section 32 of the NCA Act was implicitly accepted by then Acting Chief Justice Northrop in AB v National Crime Authority (1997-1998) 49 ALD 397, when he stated at 406-7:
Section 32(2) of the NCA Act enables a person to apply for an “order of review”. The use of the word “order” in this phrase has a limiting effect. The instances where the court conducts a hearing de novo from a decision of a non-judicial tribunal arise where the court is required “to review” the decision. The phrase “order of review” is used in the AD(JR) Act (the Judicial Review Act). In a very helpful passage in Woss v Jacobsen (1985) 11 FCR 243; 60 ALR 313 Davies J commencing at FCR 259 discusses the nature of an applicaition (sic) for an order of a review under the AD(JR) Act. As his Honour said at FCR 260; ALR 329:
“Thus, the function of review which is conferred upon the Federal Court of Australia under the AD(JR) Act is the function of ensuring that persons and authorities conferred power by enactments of the parliament shall, when acting in exercise of those powers, act within power and in accordance with power. That function is performed by the court not merely in the final order by way of review which the Court may choose to make but also and primarily in the consideration anterior thereto which the court gives in reaching its decision to grant or refuse such an order.”
……
The similarity between an application for an order of review under s 32 of the NCA Act and an application for an order of review under the AD(JR) Act is strengthened by reference to s 57 of the NCA Act which provides, in substance, by adaption (sic), that s 11 of the AD(JR) Act is to apply to applications for an order of review under s 32.……
At the hearing the court is required to decide whether the authority made its decision within and in accordance with the power conferred upon it. The Court has no power to substitute its decision for that of the authority. It is not appropriate for the court to treat the hearing of the application as a hearing de novo.
An appeal from this judgment was ultimately dismissed but the conduct of that appeal did not make it necessary for the Full Court to consider the nature of a s.32 review: see AB v National Crime Authority (1998) 85 FCR 538 at 553.
The judgment of Northrop ACJ also supports the Authority’s submission that judicial review pursuant to section 32 of the NCA Act is limited to considering the evidence and the grounds put before the Authority to justify the summonsed person’s refusal to answer questions during the original hearing. This support is derived from Northrop ACJ’s conclusion that judicial review pursuant to section 32 of the NCA Act is a review as to whether the Authority made its decision in accordance with the power conferred on it rather than a hearing de novo of the question whether the witness had a reasonable excuse not to answer the Authority’s questions. In my opinion, it follows from this distinction that the proper conduct of a s.32 review will focus on the lawfulness of the Authority’s decision on the evidence laid before it, the arguments made on behalf of the witness before the Authority, as well as those further considerations prescribed by the common law and the NCA Act: see, for example, the considerations deemed appropriate by a Full Court of this Court in Bank of Valletta PLC v National Crime Authority and Another (1999) 165 ALR 60 at 64.
It follows that an application brought in reliance on this provision can only validly seise this Court of jurisdiction in so far as it relies upon grounds and evidence either put before the Authority, or which the NCA Act and the common law require the Authority to have regard to in the making of its decision. Thus, the permitted ambit of this Court’s considerations does not justify the striking out of the entirety of ground 1 of the application commencing the proceedings nor the materially identical paragraphs of the statement of claim.
Assuming without deciding that the Authority’s motion is, by virtue of its width, tantamount to an objection to the competency of the Court to entertain the proceedings, there is nothing to suggest that the applicant has suffered any detriment, let alone prejudice, by virtue of its being filed out of time. I have therefore extended the time for filing of the Authority’s motion. As to the substance of the dispute, what the Court may in a proper case be inclined to do is strike out those aspects of the applicant’s claim which rely upon facts or considerations wholly subsequent or not relevant to the making of the Authority’s decision. Ground 1(d) of the application and statement of claim initiating these second proceeding is such a matter as it is premised on a warrant for the applicant’s arrest issued by the Authority subsequent to the making of its decision. It must therefore be struck out.
The remaining grounds in the application and the statement of claim draw upon circumstances or grounds either expressly or implicitly brought to the attention of, recognised by, or required of the Authority prior to and in the course of making its decision. Whether these grounds and circumstances gave the applicant a reasonable excuse not to answer the Authority’s questions is a question of law: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 509 at 511-512; Hope v Council of the City of Bathurst (1980) 144 CLR 1. They are thus proper considerations for the Court in determining whether the decision of the Authority was made in accordance with the principles of administrative law. They are not capable of or susceptible to summary dismissal as the Authority is now seeking.
The documents referred to in paragraphs (a), (b) and (d) of the subpoena
With respect to the Authority’s stated objection to the production of the working drafts of the reasons for the relevant decision of the Authority, the judgment in Karmas is helpful. In that case, the Residential Tenancies Tribunal applied for an order that certain notes of the members of the Tribunal made in the course of their deliberations were exempt from disclosure on the basis of a public interest immunity. Of this privilege, Justice Dunford said:
The principle was summarised by Samuels JA in Wentworth v Rares (unreported, Court of Appeal, 19 December 1990), where his Honour said:
“It has been contended … that a judge is not compellable to produce documents which have been involved in the performance of his duties as a judge, including drafts of judgments. Secondly it is put that there is a public interest immunity also which covers the situation.”
After referring to Zanatta v McCleary, his Honour went on:
“I think that there is no significant difference between prohibition upon a judge’s being called to testify and his or her being required to produce in documentary form those considerations which have been involved in the act of judgment. It is a principle, I would have thought, clearly justified by grounds of common sense and policy.”
For these reasons I am satisfied that the production of the remaining documents so far as not produced cannot be compelled both on the grounds of s 129 and public interest immunity under s 130 (of the Evidence Act 1995). The plaintiff respondent has and will have available at the hearing the transcript of the various days, the reasons for the various judgments and rulings, and will have ample opportunity to make the points that are sought to be made by reference to those documents.
The applicant in these proceedings also has and will have available at the hearing the transcript of the s.25 hearing, the written reasons for the decision of the Authority, and ample opportunity to make whatever points arise from those documents. Accordingly, the forensic purpose of the material sought by paragraphs (a), (b) and (d) of the schedule to the subpoena is negligible and the subpoena must be set aside to that extent.
Conclusion
I will make orders dismissing the first proceedings, striking out ground 1(d) of the application and paragraph 18(d) of the statement of claim in the second proceedings, and striking out paragraphs (a), (b) and (d) of the schedule to the subpoena issued by the applicant in the second proceedings on 21 September 1999.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO. Associate:
Dated: 11 April 2000
Counsel for the Applicant: Mr R. Burbidge QC and Mr F. Corsaro Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: Mr P. Hastings QC and Mr R. Wilson Solicitor for the Respondents: National Crime Authority Date of Hearing: 18 November 1999 Date of Judgment: 11 April 2000
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