FEDERAL COURT OF AUSTRALIA

NTD8 v Australian Crime Commission (No 1a) [2008] FCA 1042

Australian Crime Commission Act 2002 (Cth)

Federal Court Rules

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446

Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536

McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574

Barnes v Boulton [2004] FCA 1219

Faulkner v Conwell (1989) 21 FCR 41

ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197

Minister for Immigration and Multicultural Affairs v Jia (2001)178 ALR 421; [2001] HCA 17

Chapman v Tickner (1995) 55 FCR 316

NTD8 v AUSTRALIAN CRIME COMMISSION

NTD 8 of 2008

REEVES J

30 JUNE 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The respondents may rely upon the affidavit of Mr Jeffrey Philip Anderson, sworn on 26 June 2008 in these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The respondent seeks to read and rely upon an Affidavit of Mr Jeffrey Philip Anderson, sworn on 26 June 2008.  Mr Anderson is the examiner who issued the Notice in question in these proceedings, under s 29 of the Australian Crime Commission Act 2002 (Cth) (‘ACC Act’). 

2                     Earlier in these proceedings, the applicant sought discovery of documents from the respondent under O15 of the Federal Court Rules.  The respondent took public interest immunity objections to providing discovery of certain documents and that issue was resolved before Justice Mansfield earlier this month. As a result, among other documents, a copy of the statement of reasons for Mr Anderson’s decision to issue the s 29 Notice has now been provided to the applicant and, indeed, has since been tendered as an exhibit in these proceedings, and marked Exhibit ‘R1’.

3                     Mr Young, for the applicant, has objected to the whole of Mr Anderson’s Affidavit on the grounds that it is not evidence of what was before the decision-maker at the time of the relevant decision and it amounts to an attempt to provide additional reasons for his decision to those already provided in the statement of reasons.  He relies upon Justice Weinberg’s decision in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 (‘Australian Retailers’), particularly at [439] and following, and including [442] where his Honour said:

“Ordinarily, there would be no reason, in a case involving judicial review, for any evidence to be placed before the Court, apart from evidence of what was before the decision- maker at the time of the relevant decision.”

4                     Counsel also relies upon Justice Weinberg’s quotations from the text by M Aaronson, B Dyer and M Groves, Judicial Review of Administrative Action (3^rd edition, 2004) at [443], the excepts from the decision of Lockhart J in Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at [455] and the decision of Sackville J in McCormack v Commissioner of Taxation (Cth)(2001) 114 FCR 574 at [456].

5                     Ms Maharaj, for the respondent, submits that the applicant was not entitled to obtain the reasons for the examiner’s decision under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). She submitted that the requirement to provide reasons under s  29 of the ACC Actis part of the accountability mechanisms in that Act, relying upon a decision of Finn J in Barnes v Boulton [2004] FCA 1219 (‘Barnes’). She submitted that a decision-maker is entitled to provide evidence to supplement his or her reasons for a decision, relying upon a decision of the Full Court of this Court in Faulkner v Conwell (1989) 21 FCR 41 (‘Faulkner’) at 47. 

6                     The brief history I have given of the applicant’s request for discovery in these proceedings shows that Mr Anderson’s statement of reasons was not provided under s 13 of the ADJR Act, undoubtedly because the applicant had no entitlement to reasons under that section.  Furthermore, the statement of reasons was not provided pursuant to s 29 of the ACC Act.

7                     In this respect, while it was not dealing with an application for judicial review, I respectfully adopt the reasoning of Finn J in Barnes as to the purpose of the requirements for an examiner to produce a statement of reasons, under the analogous provisions of             s 28(1)(A) of the ACC Act. The purpose is to provide an accountability mechanism by requiring the creation of an audit trail for the purposes of parliamentary oversight by a dedicated committee of parliament, namely the ‘Parliamentary Joint Committee on the Australian Crime Commission’.

8                     Here the applicant has obtained the statement of reasons using the established processes of this Court to obtain discovery of documents.  In my view, Mr Young is quite correct to point out, by reference to the Australian Retailers decision, that ordinarily evidence is not placed before the Court on judicial review applications, that is, apart from evidence of what was before the decision-maker at the time of the relevant decision. 

9                     However, I do not accept that that principle extends to prevent a decision-maker from either stating what he was aware of, or even providing supplementary reasons for his decision. I consider the various decisions referred to by Justice Weinberg in the Australian Retailers case make clear, that it all depends upon the circumstances of the particular application for judicial review.

10                  In this case, Mr Young says he will be asking the court to draw an inference from the absence of any express mention of the interests of the child in the statement of reasons that this matter was not taken into account by Mr Anderson in making his decision.  He will undoubtedly rely upon the line of authority in this Court that allows such an inference to be drawn in relation to administrative decisions, in particular the decision of Burchett J in ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 (‘ARM Constructions’) at 204 to 205.

11                  I also note that Justice Callinan commented on that line of authority in Minister for Immigration and Multicultural Affairs v Jia (2001)178 ALR 421; [2001] HCA 17 at [315] to [317], and queried whether it may apply to “a modern Minister of State”.  Nonetheless, his Honour did not consider it necessary to decide whether that line of authority was correct or not. 

12                  Mr Anderson’s Affidavit essentially seeks to give evidence of various matters that he says he had been aware of and took into account when he decided to issue of the Notice under s 29.  In my view, the situation here is therefore analogous to the situation that arose in Faulkner.  In that case, the respondent Taxation Commissioner wished to adduce evidence to supplement a statement of reasons provided under s 13 of the ADJR Act.

13                  The decision-maker had taken into account certain oral requests for information that the respondent Commissioner had made of the applicant which he had failed to comply with.  This information was not contained in the statement of reasons for the decision.  The Full Court of this Court rejected an argument that s 11(3) and s 13 of the ADJR Act expressed an intention to:

“override or displace establish curial modes of ascertaining what the reasons for administrative action were.” [at page 47]

14                  Here, of course, the provisions of the ADJR Act are not relevant, because the statement of reasons was not provided under that Act but was provided within the discovery process.  The Full Court went on to refer to the inference that could be drawn from the absence of such evidence in the statement of reasons for decision, and referred to Burchett Js decision in ARM Constructions, concluding that:

“... in my opinion the omission of such matter from the statement furnished in pursuance of s 13 may be supplied by evidence on the hearing of the application for an order of review.” [at page 47 per Jenkinson J with whom Woodward and Ryan JJ agreed at page 43 and page 48 respectively]

15                  I note that that decision was applied by O’Loughlin J in Chapman v Tickner (1995) 55 FCR 316 at 335 to 336.  In that case, Justice O’Loughlin allowed the Minister for Aboriginal Affairs to file what he referred to as an “unsolicited statement of reasons which was said to be an amended statement in respect of the s 10 declaration”. 

16                  For these brief reasons, I reject Mr Young’s overall objection to the receipt of the affidavit of Mr Anderson.

Associate:

Dated:         11 July 2008