CXXXVIII v Commonwealth of Australia & Ors [2019] HCATrans 251 (18 December 2019)

Last Updated: 18 December 2019

[2019] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A30 of 2019

B e t w e e n -

CXXXVIII

Appellant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

JEFFREY ANDERSON

Third Respondent

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA AND ADELAIDE

ON WEDNESDAY, 18 DECEMBER 2019, AT 9.29 AM

Copyright in the High Court of Australia
MR M.L. ABBOTT, QC: May it please the Court, I appear with my learned friend, MR C. JACOBI, for the appellant. (instructed by Patsouris & Associates)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: If it please the Court, I appear with MR T.M. WOOD on behalf of the respondents. (instructed by Australian Government Solicitor)

NETTLE J: Yes, Mr Abbott.

MR ABBOTT: If the Court pleases, I rise to resist any revocation of the grant of special leave that your Honours granted in this matter. I rely upon our brief written submissions and we do so on the following three bases, which are summarised at page 1 of our written submissions.

The first basis is that the existence of a particular investigation is not a requirement within the meaning of item 55 of Schedule 1 of the amending Act and we say that item 55 of the amending Act, properly construed, does not touch our argument concerning the necessity for the existence of an extant or at least contemplated particular investigation prior to the Board of the ACC determining that particular investigation to be a special investigation. We say this because, as we say in our brief written submissions, the amending Act and item 55 do not and cannot create a particular investigation. So much was recognised by this Court in Strickland.

NETTLE J: Mr Abbott, what do you say about 55(2) and 55(3) deeming any determination to be and always to have been valid notwithstanding that but for the new legislation it would not have been, and deeming any act done pursuant to it to be and always to have been valid notwithstanding that otherwise it would be invalid?

MR ABBOTT: We say that you can deem things so far but basically what you cannot do is deem into existence a particular investigation to which a determination attaches. We say that the operation of item 55 is contingent upon an assumption that the existence of a special investigation is constituted by the phrase “a requirement of that Act”.

NETTLE J: That was certainly the case under the legislation as it was before amendment, but now under the new provisions all that has just blown away in a sea of generality and a determination by the Board that something is in the public interest, whatever that means.

MR ABBOTT: In our submission, firstly, that only operates prospectively and, secondly, if it is taken to have been as valid and effective, et cetera, as it would have been had the determination satisfied those requirements, speaks only to the existence of the determination, not to the existence of a special investigation. We say that item 55(2) cannot bring into existence a particular investigation to which the determination relates. It might go some way to validating an invalid – and does go some way, obviously, to validating an invalid determination but it does not go any way towards creating the existence of a particular investigation.

If one accepts the proposition that determinations do not create particular investigations, they only make them special, then the effect of item 55 is to validate any irregularities in the determination, not to create the particular investigation itself.

NETTLE J: Yes, I see.

GORDON J: Mr Abbott, in Plaintiff S157 there was some suggestion by at least some members of the Court that a very general law raised serious questions about whether or not it had sufficient content to be a law. Do you challenge the validity of this legislation on those bases?

MR ABBOTT: Yes, we will. We will challenge on that basis.

GORDON J: Is that something that is going to require amendment? How is that going to be put forward?

MR ABBOTT: At paragraph 19 of our written submissions ‑ ‑ ‑

GORDON J: These are the submissions in relation to the hearing today?

MR ABBOTT: Yes. We say there are serious reasons to doubt the constitutional validity of section 55 if, on its proper construction, it has the effect of requiring courts to proceed on the basis that a particular investigation existed in circumstances where no such investigation in fact existed. We make two points basically. We say that, firstly, it means that there would be deemed to be an investigation, even if the Crime Commission had decided as a matter of fact that, like Strickland, there was not to be a special investigation.

GORDON J: Would that not require a 78B notice?

MR ABBOTT: Yes, we accept that if this matter is to go ahead then paragraphs 19 and – paragraph 19, in particular, and the way we have dealt with – and we did this very briefly, but paragraph 18 as well may require 78B notices, but we are prepared to issue them. If the Court allows this matter to proceed we would issue 78B notices in relation to the construction of the amending Act.

NETTLE J: Mr Abbott, over and above the points identified in paragraphs 18 and 19, which appear to turn on the need for an investigation, have you given any thought to the idea that the amending legislation, inasmuch as it gives purportedly to the Board the power to determine that there is federally relevant criminal conduct to be defined in the generality that it appears to permit, and to determine without reference to any criteria that it is in the public interest to do so is so lacking in specificity as not to meet the minimal requirement for constitutionality?

MR ABBOTT: We have given very preliminary thought to that because it seems to us, as your Honour has just said, that what section 55 is trying to do is do away with the requirement for there to be a particular investigation to which a determination can relate. It seems to be an attempt - we say an unsuccessful attempt to exclude the necessity for there to be an investigation.

GORDON J: I think the question is more direct than that, Mr Abbott. The question is more general, that is not limited just to the investigation. It is looking at the amending Act in its new terms and it is the lack of discernable criteria which the relevant authority has to consider in determining whether or not to proceed. It is the issues raised in Plaintiff S157 at paragraphs 101 to 103 and there is a relevant article written by Lisa Crawford about the extent to which you have a law which on its face may not be a law because of its generality.

MR ABBOTT: If your Honour pleases, that is an argument which, obviously, we have not addressed in our written outline. I must apologise, we have only had very limited time in which to prepare these submissions. I am not dropping that as an excuse, but merely to explain that we do not attempt, in our written outline, to unpack, as it were – I know that is a horrible word – to unpack what we say in paragraphs 18 and 19 about the requirement for this amending Act to impose retrospective criminal liability founded on a fiction as to the existence of a particular investigation.

NETTLE J: You need some time to work out the arguments in full that you want to advance in relation to this new legislation and to decide what 78B notices need further be given.

MR ABBOTT: We certainly do, your Honour.

NETTLE J: Mr Abbott, why do we not hear from the Solicitor‑General as to what he says about that general idea before we hear from you further?

MR ABBOTT: Thank you, your Honour.

NETTLE J: Mr Solicitor.

MR DONAGHUE: Your Honours, in our submission it is important to distinguish between the prospective operation of the amendments made to section 7C by item 15 of the amending Act and the retrospective amendments made relevantly by items 55 and 56. In this appeal it is only items 55 and 56 that are relevantly in play because the question is about the validity of the past instruments that were issued – the summons and notices issued with respect to the appellant and their validity, which is challenged, amongst other things, on the grounds that the two identified determinations were invalid ‑ ‑ ‑

NETTLE J: Mr Solicitor, may I ask you – I understand the point but if, let us say for argument’s sake, it were ultimately discerned that the prospective provisions were constitutionally invalid would a question then arise as to whether severance would operate so as to save the retrospective provision?

MR DONAGHUE: In my submission, your Honour, there would be no difficulty separating those aspects of the two regimes. The backward looking - the retrospective regime does exactly what has been done by provisions upheld by this Court on many occasions in the past, including most recently in Duncan v ICAC. It follows almost exactly the same form and it would mean that what happened in the past, whether or not it complied with the Act at the time – and of course in Duncan this Court had held in Cunneen that the particular investigation undertaken by ICAC was invalid because it exceeded the jurisdiction conferred by that Act of Parliament, retrospectively confirmed the validity of what had occurred in the past and the Court unanimously upheld that confirmation.

That is this case and if our friends were to seek to amend to include the constitutional challenge it would be a challenge that would immediately collide with Duncan and that line of authority. The issues that your Honour and Justice Gordon have raised with our friends about the prospective provisions of the Act would raise different questions but they are not in play in this appeal.

GORDON J: But they may be. That is the question. Why should they not be?

MR DONAGHUE: Because, your Honour, nothing has been done under those provisions that would engage any right or interest of the appellant. It might happen in the future that powers would be exercised that would affect their rights but at the moment they have no standing to challenge the forward – the prospective operation of the Act. So if that happens in the future they can bring a proceeding then but, at the moment, in this appeal, in our submission the issues that your Honours were raising with our friends do not arise and the constitutional point, if it were to be taken, would be doomed to fail by reason of a long line of cases culminating in Duncan. In our submission, it is not necessary or, in our submission, appropriate to keep this proceeding alive to allow the ventilation of that kind of constitutional challenge in circumstances where it could not succeed.

NETTLE J: Is it as clear as all that that the two sets of provisions would be separable so as to save the perspectives and leave the prospectives if they were invalid or might it be thought that it would so change the compositional nature of the Act that Parliament cannot intend it to stand that way?

MR DONAGHUE: In my submission there is a clear temporal distinction drawn in the Bill itself in that prospectively the regime for consideration and authorisation by the Board under section 7C has changed materially and so any future decisions of the Board made by reference to those new provisions will depend for their legal efficacy on the validity of the prospective part of the Act. But because the regime is now different prospectively than it was in the past, in my submission Parliament must sensibly have said while we appreciate post‑Strickland that there is a doubt as to the validity of what has happened before, we wish to remove that doubt and thus we look backwards and we validate what has occurred. Now that we know that everything that has happened in the past is valid, we will then put in place a different regime for the future.

In my submission they are sufficiently distinct so that the Court could not find an intention to rebut the presumption of severance that one sees in 15A of the Acts Interpretation Act, bearing in mind that the starting point is that the provision would be severable and that one would need to find a contrary intention in the scheme of the Act.

So this proceeding, in my submission, is not apt to throw into focus what the Board might do in the future. The Court would be better assisted in looking at the new provisions to see what the Board actually does and then if there is a challenge to that it will have a factual foundation of the Board having acted in accordance with the new provisions which will in a more concrete and satisfactory way then allow the issues that your Honours were raising with my friends to be ventilated if any applicant chooses to so ventilate them.

But, for the moment, the position in my submission is that your Honours have before you an appeal where, in its express terms – and if your Honours have the core appeal book the notice of appeal is at the back; it is on page 103 – where in its express terms, ground 1 on page 103, about four lines down alleges that the first and second determination – the court erred in finding that the first and second determination were validly made
within the scope of the power in section 7C of the Act. It is an express ground ‑ ‑ ‑

GORDON J: That was drafted, Mr Solicitor, in the context of an Act which was then in place which is radically different from the Act that now exists. I mean, it is plain on its face, is it not, that there would have to be an amendment of some shape or form if leave was not revoked?

MR DONAGHUE: In our submission it is, although I do not know that our friends have accepted that. We told them about this Bill the day it was introduced and we told them about it the day it was passed and we invited them to tell us what amendments would be required and none of that resulted in any acceptance that there needed to be amendment. The reason I took your Honours to it was not to ‑ ‑ ‑

GORDON J: Given the terms of the Act, they were entitled to have time to consider it and determine what their position was.

MR DONAGHUE: Your Honour, I accept that.

NETTLE J: Mr Solicitor, what if we were to, say, give Mr Abbott until getting towards the end of January to formulate his position or decide that it is not worth persisting with it and to bring you back then and to see where we go in light of what he comes up with?

MR DONAGHUE: Your Honours, I cannot oppose that course assuming the Court would vacate the existing orders that require us to file responsive submissions which I think would require us otherwise to engage with this document that will be superseded. But if the Court vacated that and brought us back once Mr Abbott has reformulated his position then I cannot oppose that.

NETTLE J: Thank you. I mean, you may be right. It may be that when he formulates the position it will be clear that what you say is correct or it may then appear that he really has an argument and we can deal with the matter on that basis.

MR DONAGHUE: I understand, your Honour. On that circumstance, I do not seek to add anything further.

NETTLE J: Thank you. Mr Abbott?

MR ABBOTT: Yes, your Honour.

NETTLE J: You have heard what the Solicitor said and no doubt what I have said. When do you think that you could get your house in order in the
sense of fully develop all the arguments that you want to advance and be ready to distribute section 78B notices drafted, if that be required?

MR ABBOTT: By the end of January, if the Court pleases.

NETTLE J: We had in mind that because of the sittings coming up in February, bringing you back around 20 January – that is a Monday - would that be achievable? It would mean you would have to give the papers to the Commonwealth at some reasonable time, say a week or so before that.

MR ABBOTT: Your Honour, that gives us very limited time. I appreciate that obviously the sittings of the Court are as you have said but we would have difficulty completing our further submissions by 17 January. This is not an easy matter to deal with.

NETTLE J: I do not suggest it is.

MR ABBOTT: We would also need to consider 78B notices and we would seek leave, if necessary, to be able to amend our notice of appeal.

NETTLE J: Why do we not say we will give you until the 22nd to prepare your paperwork and bring you back on the 28th?

MR ABBOTT: That would be most convenient, if the Court pleases.

NETTLE J: Thank you. Mr Solicitor, is there any objection to that course.

MR DONAGHUE: No, your Honour. Just to facilitate my own understanding, the Court’s intention is there would be argument on the 28th on the revocation of special leave, bearing in mind Mr Abbott’s new submissions – is that ‑ ‑ ‑

NETTLE J: That is the idea, yes.

MR DONAGHUE: Thank you.

NETTLE J: If you, having seen those, persist, as it were, in the view – I do not mean that pejoratively – that the thing is hopeless we would hear the submissions then.

MR DONAGHUE: I understand, your Honour. Thank you.

NETTLE J: In light of those circumstances the Court orders that the further hearing of this matter be adjourned to Tuesday, 28 January in Melbourne at 9.30 am and that prior to that the appellant file and serve an amended notice of appeal and amended written argument in support of the appeal to include such further, if any, arguments as the appellant seeks to advance as to the necessity for there still to be an investigation and as to the lack of specificity in the criteria by which the Board is now purportedly authorised to determine that the provisions of Part 2 will apply. Finally, it is ordered that the directions previously given for the filing of submissions by the respondents are vacated.

Mr Solicitor, I will not add an order to this effect, but I am mindful of the fact that we will be hopefully listening to some arguments on the 28th – if you can give us something, even briefly, by the end of the previous week in response to Mr Abbott’s new material we would be grateful.

MR DONAGHUE: We will do that, your Honour. Thank you.

MR ABBOTT: Your Honour, 78B notices – we will file them in the usual course with our written submissions.

NETTLE J: Yes, please. I am reminded by my sister – I did not specify, Mr Abbott, that your written submissions and section 78B notices should be filed by no later than 3 o’clock on 22 January.

MR ABBOTT: Thank you, your Honour.

MR DONAGHUE: Your Honour, just looking at my diary, I had not appreciated that the responsive submissions your Honour has asked for will be two days after Mr Abbott files.

NETTLE J: Well, you have three. If you get to them by Friday that would be helpful – the 22nd is the – yes, I see.

MR DONAGHUE: He is the 22nd, so even if the appellant could be moved forward one day that would help us in giving your Honours something in response.

NETTLE J: I think that is fair enough. I will vary the orders thus far made to substitute for 22 January as the date for filing and service of the new submissions and 78B notice 21 January 2020, otherwise the orders will stand. I shall reserve the costs of this day’s hearing.

The Court will now adjourn until Tuesday, 28 January 2020.

AT 9.53 AM THE MATTER WAS ADJOURNED