FEDERAL COURT OF AUSTRALIA

Desai v Keelty [2009] FCA 1280

ADMINISTRATIVE LAW – application for writ of mandamus – whether mandamus may be issued against members of the Australian Federal Police - whether the court may make orders directing the Commonwealth government to apply diplomatic pressure on foreign governments or take certain action in United Nations fora – whether mandamus may be issued against the Department of Immigration and Citizenship, the Minister for Immigration and Citizenship or one of the Minister’s delegates

PRACTICE AND PROCEDURE – when summary judgment may be given under s 31A of the Federal Court of Australia Act 1976 (Cth)

Australian Federal Police Act 1979 (Cth) ss 8, 9, 37

Criminal Code Act 1995 (Cth) s 268.121

Federal Court of Australia Act 1976 (Cth) s 31A

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 476A

Migration Litigation Reform Bill 2005 (Cth)

Dey v Victorian Railways Commissioners (1949) 78 CLR 62, referred to

Ditfort, Re; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, cited

General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, referred to

Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308, followed

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, referred to

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, followed

O’Malley v Keelty (2005) 148 FCR 170, cited

Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354, referred to

PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd (2007) 74 IPR 372, cited

R v Arndel  (1906) 3 CLR 557, cited

R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118, cited

Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677, cited

White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298, referred to

LYDIA DESAI, PRISCILLA D'SOUZA and REBECCA DESAI v MICK KEELTY, COMMISSIONER, AUSTRALIAN FEDERAL POLICE, COMMONWEALTH OF AUSTRALIA THROUGH PRIME MINISTER KEVIN RUDD and ANDREW METCALFE, SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

VID 904 of 2008

TRACEY J

13 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be struck out.

2.         Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) there be judgment for the respondents against each of the applicants.

3.         The applicants pay the respondents’ costs of the proceeding, including the respondents’ cost of their notice of motion dated 20 April 2009.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The applicants are sisters.  They are Indian citizens.  They have disclosed that they were previously members of an organisation known as the “Exclusive Brethren”, having ceased their involvement with the organisation in 1997. Since then, they have been involved in establishing what they describe as “a pioneering, record-breaking education research organisation” called the “BOSS School” in Mumbai.  They claim that, over the past three or four years, they have come into conflict with the Exclusive Brethren and that members of that organisation have committed a range of criminal offences against them and their colleagues at the BOSS School.  Their claims were reported to the Australian Federal Police (‘the AFP”).  Federal agents considered the claims but declined to take action.  The applicants then had resort to this Court.

2                          This proceeding was commenced by an application filed on 31 October 2008.  In that application, two of the applicants (the third was later joined) sought the issuing of mandatory orders against the AFP, the Commonwealth Government and the Immigration Department.

3                          The respondents have moved the Court for orders under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) that the proceeding be dismissed.

4                          The respondents filed written submissions in support of their application.  The applicants filed detailed written submissions in opposition to the application.  The hearing of the respondents’ application was fixed for 5 November 2009.  When the matter was called on there was no appearance by any of the applicants.  Evidence presented by the respondents indicates that Ms Priscilla D’Souza departed Australia on 3 March 2009, and that her two sisters had departed Australia on the morning of the hearing.  No forewarning of their departure had been given to the respondents or to the Court.  None of them is the holder of a visa which would entitle her to return to Australia.  It cannot, therefore, be predicted when, if ever, they may again be present in this country.  In these circumstances, I determined that the hearing should continue and that I would take into account the written submissions filed on both sides.

5                          The application sought:

·          The issue of a writ of mandamus “to direct [the] Australian Federal Police … to begin criminal proceedings” against seven named persons for the  “charges” of genocide, crimes against humanity, trafficking, people smuggling, debt-bondage, slavery, “trans-national organised crime” and for “disrupting the integrity and security of international community and foreign governments”.

·          The issuing of “directions/orders to the Commonwealth Government of Australia …  to pressurise India to stop the genocide” by lodging a petition with the United Nations, urging other members of the Commonwealth of Nations to put pressure on India and by working “with other governments worldwide in a concerted effort” to put pressure on India.

·          The issue of a writ of mandamus directing the Immigration Department to grant protection visas for the applicants.

6                          The respondents contend that the applicants have no reasonable prospect of obtaining any of the relief sought in the application. 

7                          Section 31A of the FCA Act relevantly provides:

“(1)      …

(2)        The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)        the first party is defending the proceeding or that part of the proceeding; and

(b)        the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)        For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

            (a)        hopeless; or

            (b)        bound to fail;

            for it to have no reasonable prospect of success.

(4)        This section does not limit any powers that the Court has apart from this section”.

8                          In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, Gordon J noted (at 406) that, 31A was introduced in order to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”. The section empowers the Court to give summary judgment in favour of a respondent if it is satisfied that the applicant “has no reasonable prospect of successfully prosecuting the proceeding”.  This will be the case even if the application cannot be characterised as either hopeless or bound to fail.

9                          Plainly, s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 at 128-130.  Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others:  see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd (2007) 74 IPR 372 at 375 (per Kenny J).

10                        The applicants have filed extensive affidavit evidence in support of their claims.  Much of this material would, had it been objected to, have been ruled to be inadmissible.  It is not, however, necessary for the purposes of the present application, to rule on the admissibility of any of the evidence on which the applicants sought to rely.  This is because the respondents advanced their summary judgment application on the grounds that the Court lacks the jurisdiction to grant some of the relief sought and that, where it has jurisdiction, the relief sought is not, for legal reasons, able to be granted.

MANDAMUS DIRECTED TO THE AUSTRALIAN FEDERAL POLICE

11                        The first remedy which the applicants seek is the issue of a writ of mandamus requiring the AFP to commence criminal proceedings for a range of offences against seven persons who are alleged to be members of the Exclusive Brethren. 

12                        The Court has jurisdiction, under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), to deal with a proceeding in which the writ of mandamus is sought.  The writ is available to compel a public official to perform an act “which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses”:  R v Arndel (1906) 3 CLR 557 at 566-7 (per Griffith CJ).  Put more simply, the writ of mandamus requires a public official to perform a public duty.

13                        The applicants can succeed against the AFP only if the AFP has a duty to commence criminal proceedings against the named individuals for the offences which are nominated in the application.

14                        I put to one side issues such as whether the AFP, as distinct from individual police officers, can be said to have a duty to initiate prosecutions and whether the powers of the Director of Public Prosecutions might impinge on any common law power a police officer might have had to initiate criminal proceedings.  I also put to one side the question of the standing of the applicants to apply for an order that the AFP commence criminal proceedings against persons who are not alleged to have engaged in criminal conduct against any of the applicants.  There is a further question, to which I will return, about the effect of the exercise of ministerial discretion in the decision-making processes which must precede the laying of charges of genocide and crimes against humanity.

15                        The AFP is established under the Australian Federal Police Act 1979 (Cth) (“the AFP Act”).  Members of the AFP are subject to the administrative direction and control of the AFP Commissioner:  see s 37(1).  The functions of the AFP include the provision of police services in relation to the laws of the Commonwealth:  see s 8(1)(b)(i).  Members of the AFP have the same powers and duties as are conferred on a police constable in the place in which the member is acting:  see s 9(1)(c)(i) and (v).

16                        The result of this legislative scheme is that AFP officers have the same powers and duties (in relation to the enforcement of Commonwealth laws) as a police constable in the State in which the AFP officer is working would have with respect to State law enforcement.  In this way the powers and duties imposed by common law on constables are, subject to any statutory exception, conferred and imposed on AFP officers. 

17                        The presently relevant question is whether any AFP officer is under a common law duty to charge the named individuals with the offences identified by the applicants.  The answer to this question must be “no”. 

18                        Sometimes, persons are dissatisfied by the response which they receive when they complain to the police about what they see as criminal conduct.  Occasionally these disgruntled citizens have sought the issue of writs of mandamus to police officers requiring that the officers investigate allegations, make arrests or commence prosecutions.  Courts have consistently held that the writ will only be granted in exceptional cases.  This is because policing powers carry with them a wide measure of discretion such that it usually cannot be asserted, as a matter of law, that a police officer is under any unqualified duty to exercise particular powers.

19                        In R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118 at 136, Lord Denning MR said that:

“Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere.  For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the  case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought.  It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area.  No court can or should give him direction on such a matter.  He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide” (emphasis added).

20                        The width of the discretionary powers vested in police officers was emphasised by Madgwick J in O’Malley v Keelty (2005) 148 FCR 170.  His Honour said (at 179-180) that:

“Organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters.  Courts should exercise very considerable restraint before intervening in such an area …

[A] court cannot and should not compel a police force to investigate every breach of the law.  There are many mysteries in this world.  Some of them involve possible commissions of crime.  It is not, however, the responsibility of police officers to investigate all of them.  Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law.  Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted.  The requirements of the AFP Case Categorisation and Prioritisation Model are consistent with this view.  I adhere to what I said in Scott (at [69]):

except in the context of a coronial inquiry, one must allow that, if there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation.  Among other matters militating against the prospect of obtaining a conviction will often be the lapse of time since the alleged offence” (emphasis added).

21                        In Hinchcliffe v Commissioner of Australian Federal Police  (2001) 118 FCR 308, the applicants had complained to the AFP that third parties had contravened certain legislative provisions.  AFP officers examined the circumstances and sought advice from the Director of Public Prosecutions.  On being advised that the material disclosed no offence, the AFP advised the applicants that it would take no further action.  The applicants applied for writs of mandamus to require the AFP to investigate their complaint.  The application was summarily dismissed by Kenny J on the ground that it was bound to fail.  This was because the AFP was not under any relevant duty and, in any event, no tenable basis had been shown for the allegation that the AFP officers were in breach of any duty.

22                        Her Honour quoted with approval the observations of Lord Denning MR in Blackburn.  She held (at 320) that:

“I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law, if:

(1)        he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and

(2)        he or she acts appropriately upon the view which he or she has formed”.

23                        If the police officer acts consistently with these requirements and declines to investigate a complaint, it follows, as her Honour held, that no duty is imposed on the officer to consider instigating a prosecution against any alleged miscreant.

24                        When the applicants attended to make their complaint to the AFP they were received by Federal agents Mr Nicolas Read and Mr Wade Howell.  The group met for approximately half an hour during which time the applicants made various allegations of conduct that they alleged constituted criminal offences under Australian law.  On the following day two Federal agents were assigned by Mr Read to consider the allegations.  The speed with which the allegations were examined was unusual.  Federal agent Read considered that the assessment of the allegations should be accorded a high priority because of the seriousness of the offences which had, allegedly, been committed.  After a detailed consideration by his officers, Federal agent Read concluded that the allegations and materials provided by the applicants did not disclose any Commonwealth offence.  In those circumstances he determined that no further action should be taken and the applicants were so advised.

25                        The applicants, however, seek to turn the expedition with which the matters raised by them were considered to their advantage.  They submit, without evidence, that the allegations could not properly have been considered in a little over a day. 

26                        It is to be remembered that all that was considered during that time by the two officers was whether it appeared that offences might have been committed against Australian law.  This judgment fell to be made on the basis of the information supplied by the applicants.  There is no reason to doubt that the officers gave proper consideration to the question of whether an initial inquiry should be instituted into the complaints made by the applicants.  A bone fide view was formed that no further action should be taken.  In these circumstances no further duty, enforceable by a writ of mandamus, arose.

27                        There is another obstacle in the path of the applicants.  The offences of genocide and crimes against humanity are provided for in Division 268 of Chapter 8 of the Criminal Code Act 1995 (Cth) (“the Code”).  Section 268.121 of the Code provides that proceedings for an offence under Division 268 must not be commenced without the written consent of the Attorney-General.  Thus, even if the AFP, on completion of a full investigation, decided that there was evidence that one or both of these offences had been committed, it could not institute criminal proceedings against anybody in the absence of the Attorney-General’s consent.  A writ of mandamus could not compel the AFP to do so.

28                        The applicants draw attention to the provisions of s 268.121(3) which permit a person to be arrested and charged with an offence under the Division before the necessary consent has been given.  The applicants contend that AFP officers could be ordered by the Court to arrest and charge the alleged offenders without waiting for the Attorney-General’s written consent.  That is a doubtful proposition but one which need not be further considered.  On the material before them, the Federal agents were in no position to arrest or charge anybody and could not be compelled to do so.  In any event an arrest or the act of laying charges is not the same thing as commencing criminal proceedings.  In the context of s 268.121, a distinction is drawn between arrest and charging on the one hand and the commencement of criminal proceedings on the other.  The latter step involves the initiation of the curial processes which lead to a trial.  It can be taken only with the consent of the Attorney-General.  The application seeks the issue of a writ of mandamus requiring the AFP to begin such proceedings, not requiring the charging or the arrest of alleged offenders.

29                        In the absence of a relevant duty, a writ of mandamus could not be issued against the AFP.  This part of the application is bound to fail.

ORDERS AGAINST THE COMMONWEALTH GOVERNMENT

30                        The applicants have sought to have the Court make orders directing the Commonwealth government to apply diplomatic pressure to India to stop what they describe as “the genocide” of BOSS members.  This pressure would be brought to bear through international institutions such as the United Nations and the Commonwealth of Nations, and by urging other governments to apply pressure on India.

31                        The Court cannot, at the urging of an applicant, order the Commonwealth government or any officer of the government to take any step unless the Court is empowered to make a particular order and the preconditions for the making of the order have been established.  It must, therefore, be assumed that when the applicants refer to the making of “orders” against the Commonwealth government they are referring to orders of mandamus which the Court has power to grant under s 39B of the Judiciary Act.

32                        Under s 39B(1) the Court has jurisdiction “with respect to any matter in which a writ of mandamus … is sought against an officer or officers of the Commonwealth” (emphasis added).   

33                        The respondents contend, correctly, in my view, that the Court may not direct the Commonwealth government to act in the way sought by the applicants because the issues involved are not justiciable and, as a result, are not “matters” in the necessary sense. 

34                        In Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 370, Gummow J said that:

“… there will be no “matter” if the plaintiff seeks an extension of the court’s true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions.  Such non-justiciable issues include agreements and understandings … between the Australian and foreign governments… Those issues do not give rise to “matters” in the sense necessary for the exercise of federal jurisdiction”.

This passage was referred to with approval by Black CJ and Hill J in Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354 at 373.

35                        Issues which are not justiciable and fall outside the proper domain of federal courts include “issues arising out of international relations”:  see Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 307 (per Wilcox J, with whom Bowen CJ agreed).

36                        In Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677, the plaintiff commenced a proceeding in the High Court seeking declarations that the Commonwealth owed certain obligations to Aboriginal people, that it ought to move the United Nations General Assembly for an advisory opinion from the International Court of Justice as to the legal rights of Aboriginal people and that the government should negotiate with him about the terms of the foreshadowed resolution of the United Nations General Assembly.  Kirby J set aside the plaintiff’s written statement of claim for want of jurisdiction.  In dealing with the declaration which related to the securing of a resolution of the General Assembly of the United Nations, Kirby J said (at 690) that what the plaintiff was:

“… seeking … is that this court should set out to control the way in which the Commonwealth conducts Australia’s international relations … [I]n no case that could be cited, nor any that I have discovered in my own researches, has this court purported to intrude in such a way in the conduct of Australia’s international activities.  The reason why no such case could be found is plain enough although the explanation may be advanced in various ways.  It might be said that the subject matters of the declarations are not the kind of “immediate right, duty or liability” grounded in a legal norm which would present a “matter” to enliven the jurisdiction of this court under the Constitution.  This was the Commonwealth’s primary argument.  But it might also be said that the issues presented by the declarations lacked “judicially discoverable and manageable standards for resolving” a justiciable issue.  Traditionally in this country, as under like constitutional provisions in the United States, the courts have been extremely reluctant to pass upon the conduct of international relations”.

37                        Later in his reasons, his Honour said (at 692) that if a plaintiff invites a federal court to perform functions other than those properly exercisable by the judicial branch of government:

“… it matters little in practical terms whether the court, facing an objection, rules that it lacks jurisdiction for want of a “matter” engaging its powers, or that it says that any such “matter” would be non-justiciable.  In either event, the court’s duty is plain.  It should stop the proceedings forthwith.  It will thereby send the parties to the other branches of government, or to other public fora, in which they can make their complaint”.

38                        The applicants, in the present case, invite the Court to direct the Commonwealth government to adopt and prosecute a particular policy which is designed to influence the conduct of another sovereign government.  They wish the Commonwealth to engage other sovereign governments and international institutions in an attempt to have the Indian government act in a particular way.  The conduct of Australia’s international relations falls within the province of the executive government.  In the absence of legislative restraint it is a matter for the government to determine the issues which it chooses to raise with foreign governments and the manner in which it will pursue those issues with foreign governments.  The choices which the government makes in dealing with international relations are a matter for it and are not justiciable.  They do not give rise to “matters” with which the judicial branch may deal.

39                        In my view, the Court thus lacks jurisdiction to entertain this part of the applicants’ case.

MANDAMUS DIRECTED TO THE IMMIGRATION DEPARTMENT

40                        The applicants applied for protection visas under the Migration Act 1958 (Cth) (“the Migration Act”).  A delegate of the Minister rejected their applications.  They appealed, unsuccessfully, to the Refugee Review Tribunal.  In this proceeding they apply for a writ of mandamus to direct the Immigration Department to grant the visas which the Minister’s delegate has already refused to grant. 

41                        Under the Migration Act, visas are granted by the Minister or a delegate of the Minister.  The Immigration Department has no power to grant visas.  The Department has no duty enforceable by a writ of mandamus or otherwise to issue protection visas to the applicants.  For that reason alone the application is bound to fail.

42                        The application would also have failed had it been directed to the Minister or a delegate of the Minister.  This is because the application would necessarily involve the Court directing the Minister or a delegate how to exercise power conferred on them under the Migration Act, and to do so in a way in which they, having considered the applicants’ applications, have determined not to be appropriate.  This would be tantamount to judicial review of the decision-making process. 

43                        The applicants invoke the original jurisdiction of the Court.  That jurisdiction is circumscribed by s 476A of the Migration Act, in respect of decisions (including decisions to grant or refuse visas) made under that Act.  The Court does not have original jurisdiction in relation to decisions made regarding applications for protection visas.

44                        As a result, the Court cannot accede to the applicants’ application insofar as it relates to the grant of protection visas to them.

DISPOSITION

45                        The application should be struck out.  Judgment should be entered for the respondents against each of the applicants.  The applicants should pay the respondents’ costs of the proceeding, including the present application.

NOTICES OF MOTION

46                        While the proceeding has been pending in the Court, the applicants have filed a number of notices of motion which have not yet been heard and determined.

47                        These notices of motion have been brought in the proceeding but have sought relief which extends far beyond that sought in the application.  These notices of motion have, for example, sought the issue of the writ of mandamus to the Commonwealth to require it to issue provisional arrest warrants for the arrest of a number of Indian judges, and to compel the Commonwealth to petition the United Nations Security Council to take certain action in India in relation to the BOSS school and those associated with it.

48                        Had these notices of motion sought to amend the application so as to include claims for relief of this kind, the applications would, inevitably, have been refused for the same reasons which have led to the respondents succeeding in obtaining judgment pursuant to s 31A of the FCA Act.  In the event, as the application has been struck out, there is no proceeding within which the motions may any longer be pursued.

Associate:

Dated:         13 November 2009