Federal Court of Australia

Panesar v Attorney-General (Cth) [2025] FCA 477

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    In this proceeding the applicant seeks declarations against the respondent (Attorney-General) concerning the authorised and lawful use of materials the Attorney-General’s Department sent to the Home Office of the United Kingdom of Great Britain and Northern Ireland as a result of a request for assistance the Crown Prosecution Service of England and Wales made to the Attorney-General under the Mutual Assistance in Criminal Matters Act 1987 (Cth). The applicant is the accused in a trial that has commenced in the Southwark Crown Court in the United Kingdom. In that trial the applicant objects to the admissibility of the relevant materials on the ground that the CPS has used and intends using the material in a manner that is not permitted under the municipal law of the United Kingdom. He also contends that under Australian municipal law the United Kingdom authorities are not permitted to use the materials for a purpose that was not stated in the request for assistance without the prior consent of Australia. He contends that the CPS’s investigation and prosecution of him was outside the scope of the request and Australia’s prior consent was not obtained to use the materials for the purpose of that investigation and prosecution. He contends that the declarations as to the effect of Australian municipal law sought in the proceeding are relevant and will be of practical utility and of assistance to the Crown Court in the resolution of his objection to the admissibility of the material in that court.

2    The originating application came before me as an urgent duty matter because the trial has commenced and the presiding judge has deferred ruling on the admissibility of the material pending a decision in this Court. At the time of the initial hearing of the application the trial was evidently scheduled to conclude during May 2025, perhaps as early as 9 May 2025. In those circumstances, I decided that the application should be heard on an expedited basis and to attempt delivering a judgment before the conclusion of the evidence in the trial. That object has proved challenging because the issues raised in the proceeding are not altogether straightforward and have been complicated by an objection to the jurisdiction of the Court and a possible constitutional question requiring notices to be given to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth). The Court has since been informed that the jury has been discharged, but the relief claimed remains pressing.

3    As to jurisdiction, the Attorney-General contends that the Court does not have jurisdiction because the declarations the applicant seeks do not concern a ‘matter’ within the meaning of that word in s 39B(1A)(c) of the Judiciary Act. The Attorney-General also contends that the jurisdictional question involves interpretation of the Constitution because s 39B(1A)(c) uses the same expression as that which is used in s 76(ii) of the Constitution. Therefore, resolving the jurisdictional question requires the Constitution to be interpreted.

4    The substantive issue is principally a matter of statutory interpretation and construction of the communications between the CPS and Home Office, on the one hand, and the Department, on the other, during 2010 and 2011. The main question of statutory interpretation concerns the extent to which the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, done at Canberra on 6 February 1997 has been incorporated into Australian municipal law. In particular, the extent to which Art 7(3) of the Agreement has the force of law in Australia such that the United Kingdom is subject to an obligation not to use evidence or information obtained as a result of a request for purposes other than those stated in the request without the prior consent of Australia.

5    The issue of construction of the communications between the authorities of Australia and the United Kingdom centres on whether the purpose of the requests extended to the applicant as a person who was not specifically identified in the requests for assistance. The CPS asserts that the purpose extends to the applicant because the letters of request contained a proviso to the effect that, unless the Department indicated otherwise, the evidence obtained pursuant to the request may be used in any criminal prosecution arising from the investigation whether relating to the named subjects or ‘any other person who may become a subject of [the] investigation [known as Operation Centrum]’. In the communications from the Department, consistently with Art 7(3) of the Agreement, it was noted that ‘the material should not be used for any purpose other than that stated in the request without prior consultation with this Department.’ The question for construction is therefore whether the proviso formed part of the stated purpose of the request and, if so, whether the notation in the Department letter was an indication ‘to the contrary’ thereby, in effect, neutralising the proviso.

6    For the reasons that follow, there is no constitutional question requiring notices to be given under s 78B of the Judiciary Act, the Court has jurisdiction under s 39B(1A)(c) of that Act, but the Agreement and Art 7(3) is not incorporated into Australian municipal law. Further, the Mutual Assistance Act does not impose any obligation on the United Kingdom concerning the use to which that sovereign State may put material provided by Australia under the Act in the territory of that State. Any obligation imposed on the United Kingdom restricting the use to which it may put material provided by Australia pursuant to a request under the Act, or the Agreement, is a matter of international law and the municipal law of the United Kingdom and not the municipal law of Australia. Nor does the Act impose any direct or indirect obligations on the United Kingdom through the provisions of the Act.

7    It is unnecessary to construe the letters of request the Department received from the CPS. Further, it would be inappropriate to do so, even for the sake of completeness, in the circumstances of this case as it would require the Court to sit in judgment upon the lawfulness of acts of the United Kingdom carried out in the territory of that sovereign State.

8    It follows that the originating application should be dismissed.

Legislative framework

9    The objects of the Mutual Assistance Act are to regulate the provision of assistance by Australian authorities in response to requests from foreign countries, and to facilitate the obtaining by Australia of international assistance in criminal matters: s 5. The Mutual Assistance Act is not exhaustive and does not prevent the provision or obtaining of assistance by other means: s 6.

10    The Act applies to all foreign countries, but regulations may provide that the Act applies subject to, relevantly, any mutual assistance treaty between that country and Australia that is referred to in the regulations: s 7. In accordance with s 7, reg 3 of the Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth) (UK Regulations) provides that the Mutual Assistance Act applies to the United Kingdom subject to the Agreement.

11    A foreign country may make a request for assistance to the Attorney-General in writing and the request must contain certain information. But, a failure to comply with those requirements is not a ground for refusing the request: s 11. Otherwise, there are a number of circumstances in which the Attorney-General shall, must or may refuse a request: s 8. Further, the Attorney-General may determine to provide assistance subject to conditions: s 9.

12    The remaining provisions of the Act set out various kinds of requests for assistance that Australia may make to a foreign country, or that a foreign country may make to Australia and the manner in which certain powers to obtain evidence and other materials may be exercised in Australia.

13    Part II contains provisions relating to requests for taking of evidence and production of documents or other articles. Section 12 addresses requests by Australia for the purpose of a proceeding or investigation relating to a criminal matter in Australia. Sections 13 – 13AB deal with requests by a foreign country for taking evidence and production of other documents or articles in Australia for the purpose of a proceeding in relation to a criminal matter in a foreign country. Section 13A deals with requests by a foreign country for provision of material lawfully obtained by an enforcement agency in Australia where the foreign country has commenced an investigation or prosecution in relation to a serious offence.

14    Part III contains provisions relating to requests for search and seizure. Section 14 addresses requests by Australia for an appropriate authority of a foreign country to exercise compulsive powers for the production of a thing reasonably believed to be relevant to a proceeding or investigation in relation to a serious offence against an Australian law. Section 15 addresses requests by a foreign country for the Attorney-General to arrange for evidential material to be obtained where a foreign country has reasonable grounds to believe that evidential material relating to an investigation or proceeding in a foreign country involving a serious offence is located in Australia. If such a request is made, the Attorney-General may, in his or her discretion, authorise a police officer, in writing, to apply to a Magistrate or eligible Judge for one or more search warrants in respect of the evidential material.

15    Part VIIA contains provisions that address the exercise of search, seizure and powers of arrest in Australia. These provisions include:

(a)    requirements before a search warrant may be issued: s 38C;

(b)    contents of the search warrant, including that it must state ‘the purpose for which it is issued’: s 38D(1)(a);

(c)    authority and powers granted to a police officer by a search warrant, including as to the use of force: ss 38E, 38F, 38L and s 38J; and

(d)    how seized material must be dealt with by the police officer executing a warrant: s 38ZA.

16    Parts IIIA - IIIB contain provisions addressing assistance in relation to stored communications, use of surveillance devices, data held in computers and telecommunications data. Part IV addresses arrangements for persons to give evidence or assist investigations. Part IVA addresses requests in relation to certain forensic procedures. Part V contains provisions relating to custody, arrest and escape of persons in transit through Australia for the purpose of giving evidence in a proceeding or assisting in an investigation. Part VI addresses requests relating to proceeds of crime. Part VIII contains various miscellaneous provisions including provisions for making regulations and certain offences relating to misuse of materials provided as a result of requests for assistance by Australia and for disclosure of information associated with requests made by a foreign country to Australia.

Relevant facts

17    On 18 November 2010, David Green QC of the CPS wrote to the Australian Attorney-General’s Department requesting assistance in relation to an investigation named ‘Operation Centrum’. Under a heading ‘Purpose of the Request’, the letter said evidence was sought ‘for use in the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceedings related thereto) [of] the following [17 individuals identified in a table]’. The letter then said that the list contained the ‘main suspects’ and further suspects were listed in ‘Annex A’. The applicant was not identified in the table or Annex A.

18    Under a heading ‘Summary of the Case’ the letter set out further information regarding the investigation, the suspected offending, and previous related assistance requested by the United Kingdom. Relevantly, it listed 14 companies and explained the role of those companies and that the officers of those companies were suspected to be involved in the offending. Under a heading ‘Assistance Requested’ the letter asked the Department to obtain documents from Westpac Banking Corporation and Technocash Pty Ltd. The letter then contained the following proviso:

Unless you indicate otherwise, any evidence obtained pursuant to this request may be used in any criminal prosecution or other judicial proceedings arising from this investigation, including any restraint or confiscation proceedings, whether relating to the above named subject(s) or to any other person who may become a subject of this investigation.

19    On 2 December 2010, the Commonwealth Minister for Justice issued two authorisations under s 15 of the Mutual Assistance Act authorising the making of applications for search warrants in respect of each of Westpac and Technocash.

20    On 9 December 2010, Mr Green QC sent a further letter to the Department. The second letter requested a broader scope of documents be obtained by Australian authorities. The letter contained further information relating to two entities referred to as ‘companies’. One of the entities identified was Anami Law LLP. I infer that, although referred to as a company, that entity is a limited liability partnership. The letter indicated that the applicant and two other individuals were signatories to a bank account in the name of Anami Law.

21    Under a heading ‘Further Assistance Requested’ the second letter relevantly asked that the two companies be added to the list of companies included in the first letter. The letter contained the same proviso set out at paragraph [18] and also said:

For the avoidance of confusion, I confirm that Requests 1 and 2 of my initial request relate to all of the companies and persons set out in that letter and not just the persons listed as part of Annex A.

22    On 16 December 2010, AFP officers attended the last known premises for Technocash, but were advised the company had relocated.

23    On 7 January 2011, the Minister for Justice issued a further authorisation under s 15 of the Mutual Assistance Act authorising the making of applications for additional search warrants in respect of Technocash, in part due to Technocash’s new address and in part due to the second letter of request. The covering memorandum to the Minister noted:

UK authorities have recently obtained bank records that disclose the transmission of money from Technocash to bank accounts in the name of two additional businesses that UK authorities believe are controlled by the main suspect, Avtar Singh Hare, and his associates. The entities, Anami Asset Management Ltd and Anami Law LLP, and a signatory to one of the accounts, [the applicant], have been added to the entities and individuals listed in the revised authorisation for Operation Centrum. As previously advised, the individuals and entities named in the authorisations are the subjects of the UK investigations.

24    The authorisation identified the records sought as those ‘relevant to the investigation of Avtar Singh Hare and others (known as Operation Centrum)’, and identified the applicant in the list of individuals and entities to whom records might relate.

25    The AFP obtained a warrant under s 38C of the Mutual Assistance Act on 10 January 2011 and executed it on Technocash on 14 January 2011. On 18 January 2011 an officer of the Department signed a direction under s 38ZA of the Mutual Assistance Act requiring the AFP to provide the seized material from Technocash to the Department. On 23 March 2011 Melanie Lindner of the Department wrote to the Home Office of the United Kingdom enclosing the material seized from Technocash. The letter, relevantly, included the following statement:

Please note that the enclosed material should not be used for any purpose other than that stated in the request without prior consultation with this Department.

26    On 20 May 2011 the AFP obtained a warrant under s 38C of the Mutual Assistance Act in respect of Westpac and executed it on 27 May 2011. On 14 June 2011 an officer of the Department signed a direction under s 38ZA of the Mutual Assistance Act requiring the AFP to provide the seized material from Westpac to the Department. On 14 June 2011 Ms Lindner wrote to the Home Office enclosing the material seized from Westpac. The letter included the same note as that set out in the preceding paragraph.

27    Thereafter, Australian authorities took no further formal steps under the Mutual Assistance Act.

28    On 10 April 2013 the applicant was interviewed under caution by officers of Her Majesty’s Customs and Excise. About seven and half years later, the applicant became aware that it was alleged that he had committed certain criminal offences. The applicant was charged with two counts of acquiring, using or having in his possession criminal property contrary to s 329(1) of the Proceeds of Crime Act 2002 (UK). The particulars of the first count aver that the applicant committed the offence on or about 14 May 2010. The particulars of the second count aver that he committed that offence between 21 and 24 November 2010. On 16 November 2020 a Magistrate sent the applicant for trial in the Crown Court. That trial was scheduled to commence on 7 April 2025 before his Honour Judge Bartle KC in the Southwark Crown Court.

29    In the week before the trial was scheduled to commence the applicant’s legal representatives requested the CPS provide details of the provenance of certain documents that the prosecution had indicated that it intended to adduce in evidence. In response to that request the applicant’s legal representatives received copies of the CPS’s letters of request of 18 November 2010 and 9 December 2010 and the Department’s letters by which documents were sent of 23 March 2011 and 14 June 2011 and certain other communications between the CPS and Department during 2010 and 2011.

30    On 14 April 2025 Alex Johnson of the CPS wrote a letter to the Department. In the letter he indicates that the material the Department sent to the Home Office in 2011 obtained from Technocash was key evidence in the applicant’s trial and the applicant had challenged the admissibility of that evidence on the ground that it cannot be established that no restriction was placed on the use of the Technocash evidence by the Department when it was provided to the Home Office. Under a heading ‘Assistance sought’ attention was drawn to the proviso referred to in paragraph [18] and the note referred to in paragraph [25] (referred to in the letter as ‘paragraph 6’) and then said:

We are seeking from you absolute clarity as to whether:

A.    Does paragraph 6 raise any restriction in relation to the Technocash material, sent to the Home Office on 23.3.11, that would restrict its use in the prosecution of [the applicant] for money laundering?

B.    If there is a restriction, please could you now consider permitting that use?

(Emphasis omitted.)

31    On 15 April 2025 Rhianna Walker of the Department wrote to the CPS. The letter summarised the history of the provision of the material and previous correspondence and said: ‘We are of the view that paragraph 6 of the letter is consistent with Article 7(3) of the Agreement.’ The letter referred to and set out the proviso and said:

7.    Accordingly, the question as to whether UK authorities may rely on the above-referenced stated purpose in using the material provided by Australian authorities for Operation Centrum in the criminal proceedings against [the applicant], a person not identified in the requests as a subject of Operation Centrum, is whether the criminal prosecution of [the applicant] arises/has arisen from the investigation known as Operation Centrum. We are of the view that this question is a matter for the UK authorities to determine.

32    On 16 April 2025 Mr Johnson wrote again to the Department. In that letter he expressed the view that the CPS was ‘firmly of the view that the criminal prosecution arises from the investigation known as Operation Centrum, and accordingly, that [the Department has] not imposed any restriction on the use of the material that would prohibit the prosecution of [the applicant].’ The letter indicated that the CPS had been informed of the applicant’s intention to apply in a federal court in Australia for a declaration to the effect that the CPS’s view in relation to the absence of any restriction on the use of the material was wrong. The letter requested, ‘in light of that litigation’, the Department’s explicit consent to use the material obtained from Technocash in the prosecution of the applicant. On 17 April 2025 Susis Williamson de Vries of the Department wrote to the CPS and affirmed the Department’s position in its letter of 15 April 2025 and said: ‘Notwithstanding [the position expressed in the earlier letter set out in paragraph [31] above], I confirm that Australian authorities consent to the use of the material as proposed in your correspondence.’

33    In an affidavit of Radhia Karaa sworn 22 April 2025 she deposes that the CPS has made extensive and prolonged use of the materials it received from the Department in 2011. She deposes that it was used in the investigation of the applicant including the process by which he was requested to attend and be interviewed under caution. The material was used in the applicant’s questioning and in the process which led to the decision to charge and to prefer charges against him. She deposes that it also featured in the criminal procedure that resulted in sending the applicant’s trial from the Magistrate’s Court to the Crown Court, preparation of evidence bundles and evidence for use in the trial, arraignment in the Crown Court and the prosecution seeking to tender it in evidence at his trial.

34    The transcript of the trial in the Crown Court on 16 April 2025 reveals that the admissibility of the relevant material is a matter of some importance for the trial. As matters stand, his Honour Judge Bartle KC was persuaded by the applicant’s counsel to defer ruling on the admissibility of the material until a decision is made in a federal court in Australia. His Honour expressed the tentative view that, while he would not be bound by a declaration of an Australian court, ‘the effect of any decision in Australia will be something which will have a profound effect, I anticipate, in relation to this case’. It appears that the trial commenced on 22 April 2025 and was expected to be completed on 9 or 16 May 2025.

The applicant’s claim

35    The applicant seeks declaratory relief in the following terms:

1.    By reason of Article 7(3) of the [Agreement] referred to in Schedule 1 to the [UK Regulations], the only authorised and lawful purpose for which the documents provided by the [Department] to the Home Office of the United Kingdom on 23 March 2011 (pursuant to requests made by the United Kingdom on 18 November 2010 and 9 December 2010 to which the [Department] replied on 23 March 2011) may be used were and are limited to the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceeding related thereto) in the United Kingdom of the following natural persons: [the 17 persons identified in the first letter of request and the two companies identified in the second letter of request].

1A.    Given that United Kingdom authorities used the evidence and information referred to in paragraph 1 above, for the purposes of investigating and prosecuting [the applicant] without the Australian authorities’ consent from at least 2012:

(a)    the United Kingdom authorities did not have and cannot now obtain the Australian authorities’ “prior consent” within the meaning of Article 7(3) of the [Agreement]; and

(b)    the United Kingdom authorities’ letters to officers of the [Department], dated 14 April 2025 and 16 April 2025, were incapable of eliciting the requisite prior consent for that use.

Jurisdictional and constitutional issues

36    The Court has such original jurisdiction as is vested in it by laws made by the Parliament: s 19(1) of the Federal Court of Australia Act 1976 (Cth). Section 39B(1A)(c) of the Judiciary Act provides that the original jurisdiction of the Court includes jurisdiction in any ‘matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted by any other criminal matter.’ Section 19(1) of the Federal Court Act and s 39B(1A)(c) of the Judiciary Act reflect s 76(ii) and s 77(i) of the Constitution which provide respectively that Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament and may make laws defining the jurisdiction of any federal court other than the High Court.

37    The Attorney-General objects to the jurisdiction of the Court in this proceeding on the ground that there is not a ‘matter’ within the meaning of that word in s 39B(1A)(c) of the Judiciary Act because the applicant’s claim does not involve any justiciable controversy between the applicant and the Attorney-General. The applicant’s claim does not identify any immediate right, duty or liability to be established in the proceeding and the declarations sought are divorced from any attempt to administer Australian municipal law (the Mutual Assistance Act and UK Regulations).

38    Therefore, the jurisdictional question is whether the jurisdiction vested in the Federal Court under s 39B(1A)(c) of the Judiciary Act authorises the Court to entertain claims for declarations, by the applicant against the Attorney-General, as to obligations imposed on the United Kingdom under the Mutual Assistance Act, in circumstances in which the applicant is the subject of a criminal prosecution in the United Kingdom in which it is contended that a declaration of the Court would have practical utility for determination of the admissibility of evidence in his trial.

39    The Attorney-General also submits that the objection to jurisdiction involves the interpretation of the Constitution for the purposes of s 78B of the Judiciary Act because there is a dispute between the parties as to whether there is a ‘matter arising under any laws made by the Parliament’ within the meaning of s 39B(1A)(c) of that Act and that section, in turn, reflects the text of s 76(ii) of the Constitution. The Attorney-General submits that in these circumstances it is impossible for the Court to resolve the jurisdictional objection without determining the meaning of the text of s 76(ii) of the Constitution and, therefore, the jurisdictional issue is a matter involving the interpretation of the Constitution: Attorney-General (NSW) v Commonwealth Savings Bank of Australia [1986] HCA 22; 160 CLR 315 at 327-328.

40    Section 78B of the Judiciary Act provides, relevantly:

78B    Notice to Attorneys-General

(1)    Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2)    For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

(a)    may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

(b)    may direct a party to give notice in accordance with that subsection; and

(c)    may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

(3)    For the purposes of subsection (1), a notice in respect of a cause:

(a)    shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and

(b)    is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.

…

(5)    Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

41    The Attorney-General has given notice that the proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act to the other Attorneys-General in accordance with Form 18 and r 8.11(2) of the Federal Court Rules 2011 (Cth). The Attorney-General informs the Court that responses from seven of the eight other Attorneys-General have been received all indicating that they do not wish to intervene in the proceeding.

42    At the time of the hearing, I was not persuaded that the jurisdictional issue involves a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act. As a consequence, and due to the urgent nature of the application, I heard argument on that question which, because of its nature, necessarily required the parties to make submissions on the jurisdictional issues and, also, on the substantive issues raised in the proceeding. I then reserved my decision on the question of whether I am duty bound not to proceed unless and until satisfied that notice of the cause has been given and a reasonable time has elapsed for consideration of the question of intervention in the proceeding or removal of the cause to the High Court. I also reserved my decision on the extent to which the cause may continue concerning matters severable from any matter arising under the Constitution or involving its interpretation. I then adjourned the application part-heard with a view to re-listing it should I decide that I am duty-bound not to proceed and one or more Attorneys-General wants to intervene, or proceed to determine the application if none wants to intervene or I decide that s 78B(1) is not applicable.

Is there a ‘matter’ arising under the Constitution or involving its interpretation?

43    For the reasons that follow, the jurisdictional issues the Attorney-General has raised in this proceeding do not involve a matter arising under the Constitution or its interpretation for the purposes of s 78B(1) of the Judiciary Act.

44    Section 78B of the Judiciary Act is not engaged merely because a party asserts that the cause involves a matter arising under the Constitution or involving its interpretation: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 (Toohey J); Glennan v Commissioner of Taxation (Cth) [2003] HCA 31; 198 ALR 250 at [14] (Gummow, Hayne and Callinan JJ); Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [17] (Debelle J, Sulan and Vanstone JJ agreeing); Australian Education Union v Lee [2010] FCAFC 153; 189 FCR 259 at [23] (Greenwood, Tracey and Buchanan JJ). Section 78B only operates when the circumstances it postulates are made to appear to the Court. What the section contemplates is ‘a constitutional question which is a live issue in the proceeding’: Narain v Parnell (1986) 9 FCR 479 at 489 (Burchett J). Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [14] (French J); Nikolic v MGICA Ltd [1999] FCA 849 (French J); Daniels at [17]; Green v Jones [1979] 2 NSWLR 812; 39 FLR 428 at 435 (Hunt J); Narain at 486-489 (Burchett J); State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 at 557 (Kirby P). A matter should really and substantially arise under the Constitution or involve its interpretation before it attracts the operation of s 78B: C G Berbatis Holdings at [13]; Daniels at [17]; Narain at 489.

45    Section 78B was not intended to permit never-ending challenges to matters which have already been determined by the High Court, particularly recently by that Court: Green v Jones at 818. The same may be said of an interpretation of the Constitution that is long-settled and the cause merely involves the application of that settled meaning to the facts and circumstances of the case at hand. In such circumstances it could not be said that the constitutional question was truly ‘live’ or not ‘concluded’ or that the matter ‘really and substantially’ involves interpretation of the Constitution. As will be explained shortly, the term ‘matter’, where used in Ch III of the Constitution, has a meaning long and well-settled by the High Court as does the expression ‘arising under any laws made by the Parliament’. Plainly, I am bound to apply the meaning or the interpretation of that expression that the High Court has declared. The jurisdictional objections that the Attorney-General has made do not involve any novel interpretation or expansion of the meaning of the relevant text. The objections involve an orthodox application of the settled meaning to the applicant’s claims in the proceeding. In these circumstances I do not consider that s 78B(1) is engaged or applicable.

46    In any event, as mentioned, seven of the Attorneys-General have responded indicating their intention not to intervene since the s 78B notice was filed and served on the Attorneys-General on 29 April 2025. As at the time of giving these reasons, I am informed that one Attorney-General has not responded to the Commonwealth Attorney-General’s s 78B notice. I am satisfied, having regard to the urgent nature of the relief sought, that even if s 78B of the Judiciary Act is engaged, a reasonable time has elapsed since the giving of the notice for consideration and that any duty not to proceed has been discharged.

Is there a ‘matter’ arising under the Mutual Assistance Agreement or UK Regulations?

47    In the case of Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920 [1921] HCA 20; 29 CLR 257 (at 265) a majority of the High Court said:

… we do not think that the word “matter” in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If a matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purposes may, we think, adopt any existing method of legal procedure of invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. …

48    That passage is now regarded as containing the settled prima facie meaning of the word ‘matter’ where it appears in Ch III of the Constitution: Crouch v Commissioner for Railways (Q) [1985] HCA 69; 159 CLR 22 at 37-38 (Mason, Wilson, Brennan, Deane and Dawson JJ); State Bank of New South Wales at 563 (McHugh J).

49    In AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 Kiefel CJ, Gordon and Steward JJ said that ‘matter’ has two elements: ‘the subject matter itself as defined by reference to the heads of jurisdiction [in s 75 and s 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy’. As to the second element their Honours said that ‘[e]xceptional categories aside, there can be no ‘matter’ within the meaning of Ch III of the Constitution unless “there is some immediate right, duty or liability to be established by the determination of the Court” in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief’: AZC20 at [31]-[32] citing CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 at [27] (French CJ, Kiefel, Bell and Keane JJ) and Unions NSW v New South Wales (“Unions NSW [No 3]”) [2023] HCA 4; 277 CLR 627 at [15] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). In a similar way, in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 (at [62]), Gaudron and Gummow JJ suggested that the task of identification of the ‘matter’ the subject of a proceeding is to approached as a tripartite inquiry: (1) identification of the subject matter for determination; (2) identification of the right, duty or liability to be established in the proceeding; (3) identification of the controversy between the parties for the quelling of which the judicial power of the Commonwealth is invoked. While the inquiries are pursued separately ‘all are related to the basal question “is there a ‘matter’ in the sense required by Ch III of the Constitution?” …’.

50    However the identification of the ‘matter’ is approached, the ‘requirement to identify some ‘immediate right, duty or liability’ to be established by determination of the court ‘reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy’.’: AZC20 at [32], citing Palmer v Ayres [2017] HCA 5; 259 CLR 478 at [27]. Further, as Gaudron J observed in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [49]:

Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court’s determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v Commonwealth [[1999] HCA 14; 197 CLR 510 at 526], ‘[i]f there is no legal remedy for a “wrong”, there can be no “matter”’.

But, it would be to invert the reasoning in Truth About Motorways to say that, if there is no ‘wrong’, nevertheless there is a ‘matter’ so long as there is an available remedy: Re McBain at [66].

51    As to the first element or identification of the subject matter falling within s 76(ii) of the Constitution, it is also well settled that a matter will ‘arise under’ a law of the Parliament in a number of ways. These, and the applicable authorities, were summarised by a Full Court (Allsop CJ, Besanko and White JJ) in Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 as follows:

18    A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416.

52    Although the applicant claims a declaration in terms that by reason of the Agreement referred to in the UK Regulations the authorised and lawful purposes for which the documents provided by the Department to the Home Office are limited, he made it clear in his submissions that the substance of the applicant’s claim is that by operation of the Mutual Assistance Act and UK Regulations an obligation is imposed on the United Kingdom, as the ‘Requesting Party’, in the terms of Art 7(3) of the Agreement. The Attorney-General accepts that the applicant’s claim in this respect is not ‘colourable’ or incapable of legal argument and, for that reason, may be a matter ‘arising under’ a law of the Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act. As explained later, that concession is appropriate. The real nature of the Attorney-General’s objection is that the applicant’s claim does not meet the second element of a ‘matter’ because there is no justiciable controversy between the parties to the proceeding.

53    The Attorney-General submits that the applicant does not claim any declarations that relate to the manner in which the Attorney-General, or any other person, has exercised power under the Mutual Assistance Act or UK Regulations. Rather, the applicant seeks a primary declaration about the legal consequences of acts the Attorney-General lawfully and properly carried out in Australia for the United Kingdom in the United Kingdom. And, the applicant seeks a secondary declaration about the legal consequences of acts of the United Kingdom carried out in the United Kingdom.

54    The Attorney-General submits that no aspect of the declarations sought identify any immediate right, duty or liability to be established and, consequently, there is no justiciable controversy to be quelled between the parties to this proceeding. The relevant controversy is between the CPS and the applicant in the United Kingdom in criminal proceedings instituted in that country. The declarations sought in this proceeding are divorced from any attempt to administer the law (the Mutual Assistance Act or UK Regulations) in respect of which the declarations are sought. There are three points flowing from these matters that the Attorney-General submits demonstrate that there is no justiciable controversy between the parties to this proceeding amenable to resolution by the Court.

55    First, the question as to whether or not the documents provided to the Home Office have been misused in the United Kingdom will be determined by the courts of England and Wales under English law. The Attorney-General refers to s 9(2) of the Crime (International Co-operation) Act 2003 (UK) as the applicable English law and R v Gill [2017] EWCA Crim 1612 as an example of the application of that law by the Court of Appeal of England and Wales. The Attorney-General submits that there is no role that a declaration of this Court could play in determining misuse of the documents under English law and, by reference to Mokbel v Attorney-General (Cth) [2007] FCA 1536 at [65]-[68] (Gordon J) and Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159; 163 FCR 111 at [35] (Gray ACJ, Jessup and Middleton JJ), this Court could not make a declaration concerning the lawfulness of the use of the documents in the United Kingdom by representatives of the Government of the United Kingdom.

56    Second, the issue the applicant requests this Court to determine is not identical to the issue which must be determined by the Crown Court in England which is seized with jurisdiction for the applicant’s prosecution. In this respect, the Attorney-General submits that the question raised in this proceeding is whether the documents should not be used ‘without prior consent’ for the purposes of Art 7(3) of the Agreement (emphasis added). Whereas, the question that arises under s 9(2) of the Crime International Co-operation Act (UK) is whether evidence may not be used ‘without consent’. The Attorney-General submits that this illustrates the flaw in the application because, in making the requested declarations, this Court will not be ruling on the statute that will be applied in the United Kingdom to determine the lawful use and admissibility of documents (evidence) in that forum.

57    Third, there is no controversy between the applicant and the Attorney-General which may be quelled by the declarations sought. The controversy is between the applicant and the Crown (UK) who is not a party to this proceeding. Therefore, no declaration made in this proceeding could bind the Crown (UK). Nor could any declaration bind the Crown Court in England or any other court of England and Wales. The possibility of the Crown Court regarding a declaration of this Court as persuasive falls short of enlivening this Court’s jurisdiction. Rather, it is an indication that what is really sought is an advisory opinion which is not a ‘matter’ for the purposes of s 39B(1A)(c) of the Judiciary Act.

58    Notwithstanding the Attorney-General’s formidable submissions, the question as to whether the applicant’s claim meets the description of a ‘matter … arising under a law of the Parliament’ is answered by reference to the applicant’s assertions, not by reference to the merits of his substantive claim. It is sufficient that the claim be genuinely in controversy and that it give rise to an issue capable of judicial determination. Any other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [34]-[46] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). It is important, therefore, to identify the nature of the applicant’s claim to ascertain whether it falls within s 39B(1A)(c) of the Judiciary Act.

59    The essence of the applicant’s claim is that the Mutual Assistance Act and UK Regulations ‘draw into’ Australian municipal law the terms of the Agreement. In particular, Art 7(3) of the Agreement. The applicant contends that, through the application of the Agreement as Australian law, in effect, an obligation is imposed on the United Kingdom, as a matter of Australian municipal law, that it must not use the documents the Attorney-General provided under the Mutual Assistance Act for a purpose that was not expressed in the letters of request without the Attorney-General’s prior consent. The applicant contends that the purpose expressed in the letters of request did not include the investigation and prosecution of him for the offences for which he has been charged in the United Kingdom. The applicant contends that it is now too late for the United Kingdom to obtain the Attorney-General’s consent to use the documents for that purpose because it was necessary to obtain that consent prior to that use.

60    Self-evidently, the claim does not involve any right, obligation, liability or duty of the applicant arising out of the Mutual Assistance Act and UK Regulations. Nonetheless, the claim could be characterised as involving an obligation of the United Kingdom and a corresponding right of Australia that relevant documents not be used for a purpose other than that stated in the request without Australia’s prior consent. That is not an abstract question because it involves the legal effect of acts that have taken place. A dispute about such an obligation and right may be a ‘matter … arising under a law of the Parliament’ because it involves an obligation or right alleged to have its source in a law of the Parliament. Further, there is no general proposition that the immediate right, duty or liability to be established by the determination of the Court must be a right, duty or liability in which the opposing parties have correlative interests: Re McBain at [67] (Gaudron and Gummow JJ). However, in the context of the applicant’s claim in this proceeding, identification of an asserted obligation of the United Kingdom arising under the Mutual Assistance Act and UK Regulations is necessary, but not sufficient, to establish the existence of a matter.

61    The passage from Re Judiciary and Navigation Acts cited earlier contains two concepts. One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it: Mellifont v Attorney-General (Qld) [1991] HCA 53; 173 CLR 289 at 303 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ). The primary purpose of exercising judicial power is not the maintenance of legal principle, that is incidental to the primary purpose which is the determination of the dispute in hand: Fencott v Muller [1983] HCA 12; 152 CLR 570 at 609. The function of the Court is not giving of legal answers or the declaration of legal principle – it is the resolution of a controversy about a legal right, duty or liability: Unions NSW New South Wales at [13]-[22]. Thus, there is no ‘matter’ within the constitutional meaning of that term unless there is a remedy available at the suit of the person instituting the proceeding in question. A bare declaration with no foreseeable consequences is so divorced from the administration of the law that it does not involve a matter for the purposes of Ch III of the Constitution: Truth About Motorways at [48], [52] (Gaudron J).

62    In CGU Insurance a majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) said (some footnotes omitted):

30    The justiciability requirement encompassed in the concept of “matter” appears in the description of that term by the majority in Fencott v Muller as “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy” [Fencott v Muller at 603 (Mason, Murphy, Brennan and Deane JJ)]. It has an evaluative element as also appears from the majority judgment in Fencott v Muller [at 608 (Mason, Murphy, Brennan and Deane JJ)]:

“What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.”

The evaluative element is illustrated by, but not confined to, the delineation of the so called “accrued jurisdiction” to entertain non-federal claims in federal jurisdiction, by their Honours’ observation that it is:

“a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.”

[Fencott v Muller at 608]

63    In National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627 Allsop CJ observed:

84    Once one appreciates that the controversy identified independently of the proceedings is the matter, and if the matter is one that engages s 75 or s 76, the whole or part of that matter can be the subject of proceedings in a federal court if that court has jurisdiction to hear the matter by conferral of the relevant jurisdiction by reference to s 75 or s 76. If only part of the matter is sought to be resolved by the proceeding the court will not be denied authority to decide it because no federal issue is involved in the proceeding, as long as the question that arises in the proceeding can properly be seen to be part of a matter within federal jurisdiction, that is as part of “the controversy which is amenable to judicial determination in the proceeding”: Croome v Tasmania at CLR 125; ALR 400; Fencott v Muller at CLR 591 and 603; ALR 54 and 64, Crouch v Commissioner at CLR 37–8; ALR 11–12; and Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265–6; 27 ALR 193. To require the proceeding itself to raise the federal issue, if only part of the controversy is the subject of the proceeding, is to import the narrower conception of “case and controversy” into Ch III of the Constitution and thereby to narrow it. Any restriction on bringing part of the controversy before the court in a proceeding that does not seek to resolve the whole controversy must be found elsewhere.

64    In CGU Insurance the liquidators of a company (Akron) commenced proceedings against three former directors and another company (Crewe Sharp) that was also alleged to have been a director of the company under an extended meaning of ‘director’ in which the liquidators asserted claims under the Corporations Act 2001 (Cth). Crewe Sharp and a former director made claims in respect of the proceeding under a contract of insurance and CGU had declined the claim. Crewe Sharp subsequently entered into a creditors’ voluntary liquidation. Neither Crewe Sharp nor its liquidators accepted the denial of liability. The liquidators of Akron applied to join CGU to the proceeding and to amend its claim to include a declaration to the effect that CGU was liable to indemnify Crewe Sharp under the contract of insurance. A majority of the High Court concluded that the interest upon which the claim for declaratory relief was based and CGU’s denial of liability under the policy were sufficient to constitute a justiciable controversy between the Akron liquidators and CGU because the liquidators’ claim was based on the legal consequence created by s 562 of the Corporations Act by which, in the event that CGU was liable to indemnify Crewe Sharpe, the Akron liquidators had a right to the proceeds of the insurance policy payable to Crewe Sharp in respect of its liability to Akron. Although the declaration would only be binding between the liquidators of Akron and CGU, in circumstances in which the insureds were also parties, albeit not claiming relief against CGU, it was unlikely that the insureds or CGU would be permitted to relitigate, in subsequent proceedings, issues which had been determined or could properly, and should, have been agitated in the proceedings against CGU. Therefore, the declaration against CGU had foreseeable consequences for the whole controversy: CGU Insurance at [67]-[68].

65    The declaration that the applicant seeks in this proceeding is analogous to a ‘construction summons’ in which an applicant seeks a declaration as to a legal right (or obligation) arising from the construction of an instrument: e.g., Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270 at [46]. A declaration of right in that context may meet the description of a ‘matter’, even though it will not resolve the whole controversy, if it has foreseeable consequences for the parties. In this regard, Allsop CJ observed in National Australia Bank:

106    In Truth About Motorways v Macquarie, Gaudron J emphasised at [52] that the inability to make a declaration if it will produce no foreseeable consequences for the parties was not simply a question of discretion, but, for a federal court, involves a question of jurisdiction, because if it be the case, that is if a declaration produces no foreseeable consequences, it is so divorced from the administration of the law as not to involve a matter; and so cannot engage the judicial power of the Commonwealth. So much can be accepted; but foreseeable consequences are to be assessed by the place of the declaration in the controversy that otherwise exists or existed, and the practical and real effect that it may have on the controversy or the consequences of the controversy. In Ainsworth it was that there may be amelioration of reputational harm. In Edwards v Santos it was establishing a legal certainty in the operation of the legislation which was relevant to the respective bargaining positions of the parties in a wider controversy.

66    It follows from these and other authorities that it is important to focus on the nature of the controversy as a whole and not the specific nature of the claim in a proceeding to determine whether there is a ‘matter’ for the purposes of s 39B(1A)(c) of the Judiciary Act. Where a declaration is sought in a proceeding it is the foreseeable consequences of that declaration for the whole controversy that must be considered not only the consequences for the parties directly concerned in the claim in which declaratory relief is sought. The whole controversy in this case may be taken to extend to the use by the CPS of the relevant documents in the United Kingdom and any restrictions placed on that use under the municipal law of the United Kingdom.

67    The applicant submits that circumstances in which the declarations are sought in this proceeding are analogous to those of the plaintiffs in Croome v Tasmania [1997] HCA 5; 191 CLR 119. In that case, the plaintiffs sought declarations that certain sections of the Criminal Code (Tas) were invalid under s 109 of the Constitution because they were inconsistent with a provision of the Human Rights (Sexual Conduct) Act 1994 (Cth). The plaintiffs pleaded in their statement of claim that they had engaged in conduct which, if the impugned provisions of the Code were operative, rendered them liable to prosecution, conviction and punishment. The plaintiffs had sufficient interest to support an action for a declaration of invalidity even though the Tasmanian director of public prosecutions had no proposal to prosecute because they were liable to prosecution if the provisions were not declared invalid: Croome at 127-128 (Brennan CJ, Dawson and Toohey JJ), 138 (Gaudron, McHugh and Gummow JJ).

68    Notwithstanding that there are analogies with the authorities to which reference has been made, these authorities are all distinguishable in that in each case the declarations were sought in proceedings to which all parties with an interest in the controversy were joined. Therefore, each party was bound directly or practically by the declaration sought in the proceeding. In the case of CGU Insurance, although Crewe Sharp, as insured, and CGU, as insurer, were not technically bound by any declaration as to their rights under the insurance policy, the High Court considered that they were practically so bound. That conclusion was based on acceptance that, as parties to the proceeding, they would be precluded in any later proceeding between them from adopting a position inconsistent with the declaration. In Croome, although there was no proposal to prosecute the plaintiffs, the State of Tasmania was a proper contradictor because it had an interest in the validity of the legislation of that State. In this case, the United Kingdom (or Crown (UK)) is not a party to the proceeding. Nor could it be made a party because the United Kingdom, as a foreign State, is immune from the jurisdiction of the Court unless it were to submit to the jurisdiction: s 9, 10 of the Foreign States Immunities Act 1985 (Cth). A declaration of the Court would be neither de jure nor de facto binding upon the United Kingdom. Accordingly, the declarations sought have no foreseeable consequence in terms of precluding the Crown (UK) from advancing a case in the Crown Court that is inconsistent with any declaration this Court may make in this proceeding against the Attorney-General. To that extent the declarations sought have a foreseeable consequence for the controversy as a whole.

69    Nonetheless, declarations of right may be made not only for the purpose of binding the parties to the proceeding, but also because the declaration has practical consequences for the party seeking the declaration. The circumstances in which a declaration was made in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 are illustrative of this point. In that case the Commission prepared and published a report tarnishing the reputations of the appellants without according them procedural fairness. If the appellants had received advance notice of the Commission’s intention to report adversely, its failure to accord them procedural fairness would have entitled them to relief by way of prohibition. However, after the fact, certiorari to quash the report could not be granted because the report was of no legal effect and had no direct or indirect legal consequences. However, the report had the practical effect of ‘blackening the appellants’ reputations’. The appellants were granted declaratory relief for the purpose of remedying that practical effect: Ainsworth at 580-581 (Mason CJ, Dawson, Toohey and Gaudron JJ). In substance, in this proceeding, the applicant seeks declaratory relief against the Attorney-General not for the legal or practical consequences that a declaration would have on the ability of the Crown (UK) to advance an argument contrary to the declaration in the Crown Court, but because of the practical consequences that a declaration of this Court may have in assisting the applicant to meet the argument of the Crown (UK) and to advance his own case in that court.

70    The applicant contends that he has a sufficient interest in the claimed declaratory relief because a declaration about the effect of Australian municipal law and asserted obligation of the United Kingdom under that law may have a bearing on the manner in which the Crown Court approaches the admissibility of the documents at his trial. He asserts that the Crown (UK) intends relying on communications from the Department in which the Department has expressed the view that the question as to whether the CPS may rely on the proviso in the criminal proceedings against the applicant, as a person not identified in the request as a subject of Operation Centrum, is whether the criminal prosecution of the applicant arises or has arisen from the investigation known as Operation Centrum. Further, the Department has purported to give ‘consent’ to the use of the documents for investigating and prosecuting the applicant after the fact. On that hypothesis, there would be practical utility in a court declaring the correct position as a matter of Australian law regarding the permitted use of the documents as, to the extent that it may be relevant to the Crown Court, a declaration of this Court is more authoritative of the effect of the letters of request as a matter of Australian municipal law than the views expressed by officers of the Department in correspondence with the CPS.

71    For the purpose of considering if there is a ‘matter’ and the Court has jurisdiction, it is not necessary to determine the merits of the applicant’s contentions about the practical utility a declaration would have in the Crown Court. He asserts it would have that utility and there is no reason to consider that contention is colourable or hopeless. The declarations, if made, would bind the Attorney-General and, in those circumstances, it is highly unlikely that the Attorney-General would continue to maintain the position the Department has adopted in its communications with the CPS regarding the use to which the United Kingdom authorities may put the documents or that consent may now be given nunc pro tunc for past use of the documents without consent. In the circumstances, I am not persuaded that it is unarguable that the claimed declarations could not be made on the ground that to do so would be of no practical utility: see, e.g., Samsonidis at [35]. Whether, of course, on the merits and in the exercise of the Court’s discretion it would be appropriate, in the circumstances, to do so is another matter.

72    The last matter that the Attorney-General raised concerns this Court’s jurisdiction to grant a declaration concerning the lawfulness of the use of the documents in the territory of the United Kingdom. In the case of the second declaration claimed, its terms are framed on the assumption that the United Kingdom authorities used the documents for the purposes of investigating and prosecuting the applicant without consent. It is inevitable that in making a declaration in those terms the Court would be required to sit in judgment of the lawfulness of acts of the United Kingdom done within the territory of the United Kingdom.

73    The principle of sovereignty and equality of States represents the basic constitutional doctrine of the law of nations. The corollaries of sovereignty and equality include jurisdiction, prima facie exclusive, over the territory of a State and the permanent population living there and a duty of non-intervention in the area of exclusive jurisdiction of other States: Brownlie’s Principles of Public International Law, Crawford, 9th Ed, OUP (2019) at 431.

74    In Underhill v Hernandez (1897) 168 US 250 (at 252) Fuller CJ, in connection with sovereignty and equality of States, said:

Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

75    Further, in Oetjen v Central Leather Company (1918) 246 US 297 (at 304), as to this ‘act of state’ doctrine the Supreme Court of the United States of America explained that:

To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly “imperil the amicable relations between governments and vex the peace of nations”.

76    Likewise, and for similar reasons, the courts of one sovereign State do not adjudicate upon transactions between States: Cook v Sprigg [1899] AC 572 at 578. See, also, South Australia v Commonwealth [1962] HCA 10; 108 CLR 130 at 141 (Dixon CJ) where it was said, albeit in the context of a dispute arising under an inter-governmental agreement between South Australia and the Commonwealth and not an international agreement, that a court’s function does not extend to consideration of undertakings and obligations depending entirely on political sanctions. Therefore, the subject of breach of treaty, as opposed to breach of Australian municipal law, is non-justiciable and not a ‘matter’ for the purposes of s 39B(1A)(c) of the Judiciary Act.

77    In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] [1988] HCA 25; 165 CLR 30 (Spycatcher) a majority of the High Court (Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ) acknowledged that there is a long-recognised principle of customary international law that, in general, a court will not adjudicate upon the validity of acts and transactions of a foreign sovereign State with that sovereign’s own territory: Spycatcher at 40-41. While the precise nature and scope of the ‘act of state’ doctrine is not settled, the doctrine is incorporated into Australian common law. However, as a part of the common law, Parliament is free to abrogate the principle and pass legislation that is inconsistent with it: Habib v Commonwealth [2010] FCAFC 12; 183 FCR 62 at [121] (Jagot J, Black CJ agreeing). Where the Parliament enacts legislation that has the effect of abrogating the ‘act of state’ principle, it is no objection to this Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act (or s 76(ii) of the Constitution) that the subject matter is not justiciable because it will require the Court to adjudicate upon the validity of the acts and transactions of a foreign State within that State’s territory: Habib at [125]-[132] (Jagot J, Black CJ agreeing), [24]-[37] (Perram J). Nonetheless, in the absence of legislation abrogating the principle, the ‘act of state’ doctrine may render a dispute ‘non-justiciable’ and, therefore, not a ‘matter’ for the purposes of s 39B(1A)(c) of the Judiciary Act: Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; 126 FCR 354 at [64]-[68] (Black CJ and Hill J), Habib at [42] (Perram J) citing Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 370-371 (Gummow J).

78    As already mentioned, the applicant’s claim is founded upon the Mutual Assistance Act and UK Regulations imposing an obligation on the United Kingdom not to use the documents provided by the Attorney-General for purposes outside those stated in the letters of request without Australia’s prior consent. The effect of that claim is an assertion that the Australian Parliament has enacted legislation imposing limitations on the independence of the United Kingdom, as a sovereign State, and its freedom of action within its own territory. That is, the asserted effect of the Australian law is to abrogate the common law ‘act of state’ doctrine. As previously mentioned, the question of whether the applicant’s claim meets the description of a ‘matter’ in s 39B(1A)(c) of the Judiciary Act is to be assessed by reference to the applicant’s assertions, not by reference to the merits of his claim. The Attorney-General also does not dispute that the applicant has asserted a claim that arises under a law of the Parliament. Therefore, on the assertions postulated, the ‘act of state’ doctrine does not stand in the way of this Court adjudicating upon the applicant’s claim in the proceeding.

79    For all the foregoing reasons, the applicant’s claim raises a justiciable controversy and meets the description of a ‘matter’ in s 39B(1A)(c) of the Judiciary Act. The Court has jurisdiction to adjudicate upon the applicant’s claim.

Is Art 7(3) of the Agreement incorporated into Australian municipal law?

80    Article 7(3) of the Agreement provides:

3.    The Requesting Party shall not use for purposes other than those stated in a request evidence or information obtained as a result of it, without the prior consent of the Requested Party.

81    The ‘Parties’ to the Agreement are ‘The Government of Australia’ and ‘The Government of the United Kingdom of Great Britain and Northern Ireland’. The Agreement does not define or describe the terms ‘Requesting Party’ or ‘Requested Party’ but it is plain that these are references to the relevant Party to the Agreement that has made a request or to which a request has been made as the context requires. Accordingly, in circumstances in which Australia has received a request from the United Kingdom, Art 7(3) imposes an obligation under international law upon the United Kingdom not to use the evidence or information obtained as a result of that request for purposes other than those stated in the request without the prior consent of Australia. And, the opposite is the case in circumstances in which the United Kingdom has received a request from Australia.

82    The applicant contends that, by operation of s 7 of the Mutual Assistance Act and reg 3 of the UK Regulations, the Agreement was incorporated into Australian municipal law. As a consequence, Art 7(3) of the Agreement forms part of Australian municipal law and, where the Department has received a request from the CPS, imposes an obligation on the United Kingdom. That is, the applicant contends that, read together, the Mutual Assistance Act and UK Regulations have made obligations that the United Kingdom owes Australia as a matter of international law obligations that the United Kingdom also owes Australia as a matter of Australian municipal law.

83    I do not accept the applicant’s contention for a number of reasons.

Imposition of obligations on the UK in the territory of the UK is contrary to customary international law

84    Although there is a degree of uncertainty regarding the manner in which rules of customary international law are considered to form part of the common law, a rule of customary international law will be adopted or received into the common law except to the extent that the rule is inconsistent with legislation or judicial decisions of final authority: see, Crawford at 63-68. See, also, the discussion of the authorities and applicable principles in Nulyarimma v Thompson [1999] FCA 1192; 96 FCR 153 at [23]-[31] (Wilcox J), [83]-[132] (Merkel J). Therefore, subject to a manifest contrary intention, general words in legislation are to be read subject to principles of customary international law forming part of the common law and not as intended to apply to persons or subjects which, according to those principles, municipal law of the kind in question should not include: Polites v Commonwealth [1945] HCA 3; 70 CLR 60 at 68 (Latham CJ), 77 (Dixon J), 80-81 (Williams J). Similarly, legislation should be interpreted in favour of a construction that is consistent with the obligations of Australia under an international treaty: Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 38 (Brennan, Deane and Dawson JJ). This is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 287 (Mason CJ and Deane J). However, provided that the subject matter of the legislation falls within the power of the Commonwealth Parliament, if a manifest contrary intention appears, that legislation is not invalid because it conflicts with a principle of customary international law or Australia’s obligations under a treaty and the court is bound to give effect to the legislation as part of Australian municipal law: Polites at 69, 78, 81.

85    While it is theoretically possible, I would not readily conclude that Parliament intended to enact a law that imposes the obligation in Art 7(3) upon the United Kingdom because it is manifestly contrary to customary international law for one State to intervene and purport to exercise jurisdiction in the territory and, prima facie, exclusive jurisdiction of another State. Such a law would also be contrary to the ‘act of state’ doctrine, which, as has already been noted, forms part of the common law of Australia because enforcement of the obligation would necessarily require Australian courts to sit in judgment of the acts of the United Kingdom in the territory of the United Kingdom. Further, it would be virtually impossible to enforce such a law in an Australian court because the United Kingdom would be immune from the jurisdiction of those courts without submitting to their jurisdiction. Put shortly, it would be perverse to attribute to Parliament an intention to enact a law imposing obligations on a foreign sovereign State that was impotent for want of a mechanism of enforcement of that law through municipal courts.

The Agreement is not incorporated into Australian municipal law

86    Entry into an international agreement creates no rights, liabilities or duties under Australian municipal law. It is necessary for Parliament to enact legislation that adopts, in whole or in part, and with or without qualification and modification the terms of the international agreement as part of Australian municipal law: Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 198 at [12] (Gleeson CJ, Gummow, Hayne and Heydon JJ), [59] (McHugh J) and the authorities there cited.

87    Where it is contended that Parliament has enacted legislation adopting an international agreement, the first step is to ascertain, with precision, what is the Australian law. That is, what and how much of an international instrument Australian law requires to be implemented. That requires a process which involves ascertaining the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires: NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52 at [61] (Callinan, Heydon and Crennan JJ, Gummow ACJ agreeing).

88    As already mentioned, the objects of the Mutual Assistance Act are to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which power may be exercised under that Act and to facilitate the obtaining by Australia of international assistance in criminal matters: s 5. There is no part of the express object of the Mutual Assistance Act that involves regulation of the obtaining by a foreign country of international assistance in a criminal matter.

89    Section 7 of the Mutual Assistance Act provides:

7    Application of Act

(1)    Subject to this section, this Act applies to all foreign countries.

(2)    The regulations may provide that this Act applies to a foreign country subject to:

(a)    any mutual assistance treaty between that country and Australia that is referred to in the regulations; and

(b)    any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations.

(3)    If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then:

(a)    if the treaty relates wholly to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or

(b)    if the treaty relates in part to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.

90    Regulation 3 of the UK Regulations provides that the Mutual Assistance Act applies to the United Kingdom subject to the Agreement, a copy of the text of which is set out in Sch 1. Article 1 of the Agreement provides that the ‘Parties shall, in accordance with this Agreement, grant each other assistance in the investigation, restraint and confiscation of the proceeds of crime’.

91    It follows that, as the Agreement relates ‘in part to the provision of assistance in criminal matters’, s 7(3)(b) of the Mutual Assistance Act is engaged and the ‘Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters’ (emphasis added). These are words of restriction not of expansion. The ambit of the provisions of the Mutual Assistance Act are not expanded by any provisions of the Agreement. Rather, the provisions of the Act remain unchanged in operation except to the extent that the operation may be ‘read down to accord with provisions in the [Agreement] which restrict [their] operation in defined circumstances’: Bollag v Attorney-General (Cth) (1997) 79 FCR 198 at 214-215 (Merkel J). That construction of s 7 of the Act and reg 3 of the UK Regulations is consistent with the approach that has been taken to s 11 of the Extradition Act 1988 (Cth) which uses similar words to apply that Act subject to any limitations, conditions, exceptions or qualifications found in an applicable treaty: Oates v Attorney-General (Cth) [2001] FCA 84; 181 ALR 559 at [16] (Lindgren J) affirmed in Oates v Attorney-General [2002] FCAFC 80; [2002] FCA 347; 118 FCR 544 at [20]-[23] (O’Loughlin & Whitlam JJ).

92    The applicant submits the effect of s 7 of the Mutual Assistance Act and UK Regulations is to ‘draw into municipal law the terms of the [Agreement]’: Todhunter v United States of America (1995) 57 FCR 70 at 76D (Black CJ, Gummow and Lindgren JJ); Jacobi v United States of America [1996] FCA 962 at 3 (Kiefel J). Todhunter and Jacobi also concerned the Extradition Act. In my view, the Full Court’s characterisation of the effect of the regulations under consideration in Todhunter as ‘to draw into municipal law the terms of the Treaty’ is not authority for the proposition that the effect of the regulations were to give the relevant treaty the force of Australian municipal law. The expression ‘draw into’ is consistent with the manner in which the applicable legislation was construed in Oates (FCA) and Oates (FCAFC) and the Extradition Act was expressed to apply subject to any limitations, conditions, exceptions or qualifications found in the treaty. Provisions of that nature do not have the effect of giving a treaty the force of Australian municipal law: Hempel v Attorney-General (Cth) (1987) 77 ALR 641 at 652 (French J) citing Barton v Commonwealth [1974] HCA 20; 131 CLR 477 at 507 (Jacobs J).

93    While there is always a danger in construing an instrument by reference to what is not said, the construction favoured in these authorities is also supported by the absence of clear and unambiguous express words conveying a Parliamentary intention to give the Agreement force of law in Australia. In other legislative contexts, the Parliament has used an express statement that the relevant international agreement ‘has the force of law in Australia’. See, e.g., s 16(1) of the International Arbitration Act 1974 (Cth). No such clear and unambiguous language is used in the Mutual Assistance Act and UK Regulations.

94    It also is important to bear in mind that the task is to identify the extent to which the Mutual Assistance Act and UK Regulations adopt a treaty as part of Australian municipal law for the purpose of meeting the objects of the Mutual Assistance Act. To the extent that the provisions of a treaty may deal with the subject matter of the Act in more expansive terms or may deal with subject matters that are not included in the Act, Australia is not precluded from providing assistance to the other State under the other terms of that treaty or otherwise. As previously mentioned, s 6 provides that the Act does not prevent the provision or obtaining of international assistance in criminal matter in a manner that falls outside the ambit of the Act. Assistance in those circumstances is merely not a subject matter that falls within the ambit and operation of the provisions of the Mutual Assistance Act including the exercise of coercive powers to obtain information in Australia in response to a request from a foreign country.

95    In my view, s 7 of the Mutual Assistance Act and reg 3 of the UK Regulations do not enact or give the terms of the Agreement force of law in Australia. Therefore, if Art 7(3) has any effect as part of Australian municipal law it must be ‘drawn in’ to Australian law in the manner described in Todhunter, Oates (FCA) and Oates (FCAFC). That is, Art 7(3) must operate as a limitation, condition, exception or qualification to one or more of the provisions of the Mutual Assistance Act.

Article 7(3) of the Agreement is not relevantly ‘drawn into’ Australian municipal law

96    A consequence of the Mutual Assistance Act applying subject to any limitations, conditions, exceptions or qualifications in the Agreement is that the determination of the extent to which the Act is modified by the Agreement with respect to any particular provision of the Act involves three steps. First, it is necessary to construe the text of the Mutual Assistance Act and the provision it is contended is modified by a provision of the Agreement. Second, it is necessary to construe the relevant provisions of the Agreement for what it is; an international agreement or treaty: Commonwealth Minister for Justice v Adamas [2013] HCA 59; 253 CLR 43 at [32] (the Court). Third, it is necessary to ascertain the meaning of any limitation, condition, exception or qualification set out in the Agreement by the application of ordinary principles of statutory construction: Minister for Home Affairs (Cth) v Zentai [2012] HCA 28; 246 CLR 213 at [65] (Gummow, Crennan, Kiefel and Bell JJ). That involves a comparison between the meaning of the applicable provision of the Act, on its proper construction in the first step, and the meaning of the applicable provision of the Agreement, on its proper construction, in the second step.

97    The construction of the Mutual Assistance Act involves orthodox and well-established principles of statutory interpretation. The text of an international instrument, as enacted, qualified or modified by Australian law, is not interpreted according to particular domestic rules of interpretation because a treaty should have the same meaning for all States which are party to it. The general principles of treaty interpretation contained in the Vienna Convention on the Law of Treaties, which is generally accepted as declaratory of customary international law, are applied to the interpretation of the treaty text: Kingdom of Spain v Infrastructure Services Luxembourg sàrl [2023] HCA 11; 275 CLR 292 at [38] (the Court). Its text must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of the object and purpose of the treaty: Oates v Attorney-General (Cth) [2003] HCA 21; 214 CLR 496 at [43]; Adamas at [32]. While the principles of treaty interpretation are similar to the principles of statutory construction, there are differences. But, in this case, neither party submits that application of the principles of treaty interpretation to the text of the Agreement requires any particular or special rule of interpretation and, therefore, that task may be approached in essentially the same manner as construction of the text of the Act.

98    The relevant provisions of the Mutual Assistance Act relating to a request by the United Kingdom for assistance in the investigation, restraint and confiscation of the proceeds and instruments of crime are ss 15, 11, 8, 9, 43B and 43C. Section 11(1) provides that a request by a foreign country for international assistance in a criminal matter may be made to the Attorney-General or a person authorised by the Attorney-General to receive such a request. Section 11(2) provides that the request must be in writing and must include or be accompanied by certain information, but a failure to comply with that subsection is not a ground for refusing the request.

99    Section 15 provides:

Where:

(a)    a proceeding or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country;

(b)    there are reasonable grounds to believe that evidential material relating to the investigation or proceeding is located in Australia; and

(c)    the foreign country requests the Attorney-General to arrange for the evidential material to be obtained;

the Attorney-General may, in his or her discretion, authorise a police officer, in writing, to apply to a Magistrate or eligible Judge for one or more search warrants in respect of the evidential material.

(Note omitted.)

100    Division 2 and Div 3 of Pt VIIA contain provisions relating to applications for, and the issue and execution of, search warrants requested by foreign countries in Australia. Relevantly, the requests for assistance the CPS sent to the Department were for the issue and execution of search warrants for certain bank documents.

101    As already mentioned, s 8 describes the circumstance in which a request for assistance shall be, must be or may be refused. Section 9 provides that assistance under the Mutual Assistance Act may be provided to a foreign country subject to such conditions as the Attorney-General determines.

102    Section 43B(1) provides that if, as a result of a request made by the Attorney-General under the Act, any material has been sent to Australia by a foreign country for the purpose of a proceeding or investigation in relation to a criminal matter, the material is not to be used intentionally for any other purpose without the approval of the Attorney-General. Section 43B(2) provides that such material is also inadmissible in any proceeding other than the proceeding in respect of which it was obtained unless the Attorney-General approves of that use. Section 43B(4) provides that any ‘person’ who contravenes s 48B(1) commits an offence punishable, on conviction, by a term of imprisonment not exceeding 2 years. Section 43C makes it a criminal offence for a ‘person’ to intentionally disclose the contents of a request for assistance, or that a request has been made or that it has been granted or refused except to the extent necessary to perform duties or with the Attorney-General’s approval.

103    Articles 1 – 8 of the Agreement deal with aspects of the subject matter of ss 11, 15, 8, 9, 43B and 43C of the Mutual Assistance Act.

104    As already mentioned, Art 1 provides that the Parties shall, in accordance with that agreement, grant to each other assistance in the investigation, restraint and confiscation of the proceeds and instruments of crime. Article 2 provides that the Agreement shall be without prejudice to other obligations between the parties pursuant to other treaties and shall not prevent the Parties or their law enforcement agencies from providing assistance to each other pursuant to other treaties or arrangements. Section 7(3)(b) of the Mutual Assistance Act describes the effect that the Agreement has on the Act with respect to assistance in the investigation, restraint and confiscation of the proceeds and instruments of crime. It follows from these Articles of the Agreement and s 7 of the Act that the Mutual Assistance Act applies to the United Kingdom unaffected by the Agreement except where the assistance requested pertains to the investigation, restraint and confiscation of the proceeds and instruments of crime.

105    Article 3 provides that requests for assistance shall be made through the central authorities of the parties (the Home Office and the Attorney-General’s Department). That may be regarded as a limitation or condition on the manner in which the United Kingdom may request assistance under the Act, but it has no implications for this proceeding.

106    Article 4 addresses the form and contents of requests. Article 4(1) requires requests to be in writing. Article 4(2) requires requests to include certain statements. Article 4(3) provides that if the Requested Party considers that the information contained in the request is not sufficient to enable the request to be dealt with, that Party may request that additional information be furnished. Section 11(2) also requires a request to be in writing and include or be accompanied by four classes of information. Article 4(2) requires statements on six classes of information. Three of the classes in Art 4(2) correspond directly with the classes in s 11(2) (name of authority concerned, nature of the criminal matter and purpose of request). Two other classes in Art 4(2) (details of Requesting Party procedure or requirement and desired time limit for compliance with the request) generally correspond with the last class in s 11(2) (any information that may assist giving effect to the request), but are not coextensive with that class. The final class in Art 4(2) (identity, nationality and location of the person or persons who are the subject of the investigation or proceeding) does not correspond with any class in s 11(2). Section 11 also does not contain an equivalent of Art 4(3), but there is no prohibition on the Attorney-General requesting further information to enable a request to be dealt with under the Act.

107    It is not necessary to consider if and the extent to which the provisions of Art 4(2), including the last class of information, meet the description of a ‘limitation, condition, exception or qualification’ so as to modify the form of any request made under s 11 of the Act because s 11(2) provides that a failure to comply with that subsection is not a ground for refusing the request. That aspect of the Act is not modified by Art 4. Therefore, any failure to comply with the formal requirements of s 11(2), whether or not modified by Art 4(2), is not a ground for refusing the request. Further, if a request complies with information requirements of Art 4(2) of the Agreement, it should also comply with s 11(2) of the Act. Otherwise, the formal requirements of a request are not of direct relevance to Art 7(3)of the Agreement.

108    Article 6(1) provides that assistance may be refused in five circumstances. The circumstances described in Art 6(1)(a) generally correspond with the circumstances described in s 8(1)(e) of the Act (prejudice sovereignty or Australian interests), Art 6(1)(b) with s 8(2)(d) (prejudice a criminal investigation or proceeding in Australia), s 8(2)(e) (prejudice safety of any person), and s 8(2)(f) (excessive burden on Australian resources) and Art 6(1)(d) with s 8(2)(c)(i) (person acquitted or pardoned). There is no direct equivalent of Art 6(1)(c) (not an activity that would result in confiscation in the territory of the Requesting Party) or Art 6(1)(e) (request relates to a confiscation order which has been satisfied), however, s 8(2)(g) of the Act provides that a request may be refused if in the opinion of the Attorney-General it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted. Otherwise, the circumstances in which a request may be refused in accordance with Art 6(1) do not confer such a broad discretion on the Requesting Party. The Agreement also does not deal with the subject matter of other provisions of s 8 by which a request shall be, must be or may be refused. Section 8(1) provides that the request shall be refused if in the opinion of the Attorney-General the request relates to certain offences that would involve breaches of human rights or military law. Section 8(1A) provides that the request must be refused if it relates to an offence in respect of which the death penalty may be imposed in the foreign country. Section 8(1B) provides that the request may be refused if the Attorney-General believes that assistance may result in imposition of the death penalty. It is not necessary for the purposes of this proceeding to undertake the task of ascertaining the extent to which Art 6(1) of the Agreement limits, conditions, excludes or qualifies the provisions of s 8 of the Act as it has no bearing on drawing Art 7(3) of the Agreement into the provisions of the Act.

109    Article 6(2) provides: ‘Before refusing to grant a request for assistance, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to conditions, it shall comply with them.’ Therefore, Art 6(2) purports to impose an obligation on the Requested Party to ‘consider’ whether assistance may be granted subject to such conditions as it deems necessary and on the Requesting Party to comply with such conditions as may be imposed on the assistance. There is no direct equivalent of Art 6(2) in the Act. Section 9 provides that assistance may be provided to a foreign country subject to such conditions as the Attorney-General determines, but there is no obligation on the part of the Attorney-General to consider doing so. Nor does s 9 or any other provision of the Act purport to impose an obligation on a foreign country to comply with a condition the Attorney-General has determined applies to the requested assistance. In any event, to the extent that Art 6(2) imposes obligations to consider and comply, these are in the context of one of the circumstances in Art 6(1) enlivening the discretion to refuse a request for assistance. That is, the first clause of Art 6(2) should be understood to read ‘Before refusing to grant a request for assistance [on a ground referred to in Art 6(1)] …’. Unlike s 9 of the Act, Art 6(2) does not confer a general discretion to grant a request of assistance on conditions determined by the Requested Party. Rather, it imposes an obligation for the Requested Party to consider whether assistance may be granted subject to certain conditions and a discretion to impose such conditions in circumstances in which it may refuse assistance on one or more of the grounds set out in Art 6(1). Therefore, I do not consider that Art 6(2) limits, conditions, excludes or qualifies the power of the Attorney-General to provide assistance subject to conditions under s 9 of the Mutual Assistance Act.

110    Article 8(1) provides, relevantly, that the Parties may make requests for information and evidence for the purpose of identifying proceeds or instruments of crime which may become liable to restraint or confiscation. Article 8(2) provides that assistance which may be given under that Article includes but is not limited to three matters: providing information and documents; taking evidence or statements and producing documents; and searching for, seizing and delivering to the Requesting Party relevant material. Article 8(3) provides that the Requested Party may postpone the delivery of the material requested if it is required for proceedings in respect of criminal or civil matters in its territory. The Requested Party shall, upon request, produce certified copies of documents. Article 8(4) provides that where required by the Requested Party, the Requesting Party shall return material provided under that Article when no longer needed for the purpose for which it was supplied. Article 8 is broadly similar, but not identical, to a number of the provisions of the Act including s 15. Again, it is not necessary for the purpose of the proceeding to undertake the task of ascertaining the extent to which Art 8 limits, conditions, excludes or qualifies any of those powers as these provisions are not of direct relevance to Art 7(3) of the Agreement.

111    Article 7 addresses confidentiality and restricting the use of evidence and information. Article 7(1) requires a Requested Party, to the extent requested, to keep confidential a request for assistance and its contents and supporting documents, and the fact of granting the request except to the extent that disclosure is necessary to execute the request. Article 7(2) requires the Requesting Party, if so requested, to keep confidential any evidence and information provided by the Requested Party except to the extent that disclosure is necessary for the investigation or proceedings described in the request. As already mentioned, Art 7(3) restricts the Requesting Party’s use of evidence or information obtained as a result of a request to the purpose stated in a request without prior consent of the Requested Party.

112    It is useful, at this juncture, to make the obvious point that the rights, duties, liabilities and obligations under the Agreement are imposed on the Parties to that Agreement as a matter of international law. However, s 43B and s 43C of the Mutual Assistance Act as a matter of Australian municipal law touch on the subject matter of Art 7(3) and Art 7(1) of the Agreement. These sections may be regarded as mechanisms by which Australia may ensure compliance with its international obligations pertaining to the purpose for which material is sent to Australia as result of a request by Australia under the Act and maintaining confidentiality of information associated with the requests made by foreign countries. However, none of the provisions of the Mutual Assistance Act purport to impose an obligation on any foreign country, including the United Kingdom, with respect to use that a foreign country may make of material provided by Australia in response to a request under the Act.

113    Section 43B and s 43C were added to the Act by the Mutual Assistance in Criminal Matters Amendment Act 1996 (Cth). In the second reading speech, the purpose of these amendments was explained as follows: Department of the Senate, Paper No 3091, presented 10 September 1996, p 8.

When foreign countries provide sensitive material to us in response to a mutual assistance request or where they make their own requests to Australia for assistance it is often an expectation of the foreign country that confidentiality of the information be respected and that its use be restricted. Unless Australia meets such confidentiality requirements, it is likely to find that other countries will be legally unable, or reluctant, to provide assistance to us.

The amendments therefore provide for offences of intentional unauthorised use and disclosure.

An additional bar to unauthorised use is that proposed clause 43B provides that material received from a foreign country is inadmissible in any proceedings other than those for which it was obtained from the foreign country unless the Attorney-General has approved such use. This inadmissibility will extend to derivative use. In other words any information, document, article or thing obtained directly or indirectly as a result of unauthorised use will not be admissible in any other proceedings and may not be used for the purposes of any other investigation. The Attorney-General would not normally approve such use or disclosure without first receiving any necessary consent of the foreign country.

I believe these particular amendments will contribute to the further development and continuation of productive mutual assistance relationships with foreign countries.

114    Insofar as Art 7(3) is concerned, the relevant subject matter of s 43B is a circumstance in which Australia is the Requesting Party and the United Kingdom is the Requested Party. In those circumstances, it might be arguable that Art 7(3) is ‘drawn in’ to Australian municipal law in that Art 7(3) may limit, condition or qualify the Attorney-General’s ability to approve the use of the material for any other purpose without the ‘prior consent’ of the United Kingdom. Otherwise, neither s 43B nor any of the other potentially relevant sections of the Act deal with the use to which a foreign country may put material Australia (or the Attorney-General) has provided to that country as a result of a request for assistance. That is, Art 7(3) of the Agreement, in its application to the United Kingdom as a Requesting Party, is not ‘drawn in’ to Australian municipal law because that Article does not limit, condition, exclude or qualify any provision of the Mutual Assistance Act addressing the use that a foreign country may make of material provided to that country by Australia as a result of a request for assistance.

Obligations are not imposed on foreign countries under the Mutual Assistance Act

115    Notwithstanding that the applicant’s declaratory relief is framed by reference to alleged duties, liabilities or obligations of the United Kingdom arising from incorporation of the Agreement into Australian municipal law, in the course of the oral hearing and, perhaps, by way of his written submissions in reply, the applicant extended the legal foundation for the declarations to s 9 and s 13A of the Mutual Assistance Act.

116    Regarding s 9 of the Act, the applicant submits that by operation of that provision, assistance under the Act may be provided to a foreign country subject to such conditions as the Attorney-General determines. The applicant submits that the United Kingdom’s compliance with Art 7(3) of the Agreement is a condition of the assistance provided to the United Kingdom because the provisions of the Act apply to the United Kingdom subject to the ‘conditions’ of the Agreement. Therefore, in effect, by operation of the Agreement compliance with Art 7(3) is always a condition of the assistance provided to the United Kingdom under the Act. Ingenious as that argument may be, it does not take the applicant’s submission any further than his primary contention that Art 7(3) is ‘drawn in’ to the Act.

117    The subject matter of s 9 is the Attorney-General’s discretion to provide assistance ‘under this Act’ subject to conditions. Article 7(3) of the Agreement does not place any limit, condition, exclusion or qualification on the Attorney-General’s discretion. Article 7(3) may, however, be a factor taken into account in the exercise of the Attorney-General’s discretion when assistance is provided to the United Kingdom under the Act. Where, as here, the use to which a foreign country may put material provided by Australia is governed by the provisions of a treaty, it may not be thought necessary to place any specific condition on the assistance provided. Therefore, I do not consider that Art 7(3) is ‘drawn in’ to Australian municipal law through s 9 of the Act.

118    Regarding s 13A of the Mutual Assistance Act, the applicant submits that, pursuant to s 13A(4) of the Act, in authorising the provision of material to a foreign country, the Attorney-General may specify the uses to which that material can be put. For similar reasons to s 9, because s 13A(4) confers a discretion on the Attorney-General, in the case of that section relating specifically to use of materials, Art 7(3) is not ‘drawn in’ through the existence of a discretionary power. This argument also does not assist the applicant because, for the reasons that follow, s 13A(4) is not relevant to this case.

119    Sections 13A(1), 13A(2) and 13A(3) provide, subject to various conditions, that the Attorney-General may authorise the provision to a foreign country of ‘material lawfully obtained by an enforcement agency in Australia’. Material of that nature is defined non-exhaustively in s 13A(6) as follows:

“material lawfully obtained by an enforcement agency in Australia” includes:

(a)    material obtained from individuals or entities by consent; and

(b)    material obtained by warrant or the exercise of a coercive power by a court in Australia for the purpose of a domestic investigation or prosecution.

120    Relevantly, s 13A(4) provides:

In authorising the provision of material to a foreign country, the Attorney-General may specify the uses to which that material can be put.

121    Section 13A was inserted into the Mutual Assistance Act by the Surveillance Devices Act 2004 (Cth). The explanatory memorandum to that Act relevantly explained that ‘Foreign countries often request material that is in the lawful possession of law enforcement agencies, such as material obtained by consent or search warrant’, and indicated that s 13A of the Mutual Assistance Act was, ‘without limiting alternative processes that may be available under the [Mutual Assistance Act] or otherwise’, intended to provide ‘an additional means of providing material to foreign countries’: Explanatory memorandum for the Surveillance Devices Bill (No 2) 2004, p 48.

122    Section 13A is addressed to requests for material that has been lawfully obtained by an enforcement agency in Australia and is in the possession of that enforcement agency. While ‘material lawfully obtained by an enforcement agency in Australia is defined to include material obtained by warrant or the exercise of coercive power of a court in Australia for the purposes of a domestic investigation or prosecution’, material lawfully obtained in execution of a warrant under Pt VIIA at the request of a foreign country could fall within the meaning of that expression. Section 13A also differs from s 13 in that s 13 applies for the ‘purpose of a proceeding in relation to a criminal matter in [a foreign country]’ whereas s 13A applies where a foreign country has ‘commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country’. Therefore, s 13A applies in similar circumstances to those where the search and seizure power in s 15 may be invoked. Nonetheless, it is tolerably clear that it was not necessary for the Act to be amended to include s 13A in order for the Attorney-General to have power to send the material seized to a foreign country. Section 38ZA provides that after a police officer has seized a thing while executing a warrant he or she must, amongst other things, retain the thing pending the Attorney-General’s direction about how to deal with the thing. The Attorney-General may, by written notice, give the police officer a direction about how to deal with the thing including requiring the police officer to send it to a foreign country.

123    In this case, the evidence demonstrates that the Attorney-General gave directions to the Australian Federal Police to deliver the materials seized to the Department. The Department then sent the material to the Home Office. There is no evidence of the Home Office making a separate request for provision of the material after it was seized and while it was in the possession of the Australian Federal Police. Therefore, s 13A is not applicable in the circumstances of this case.

124    In any event, s 9 of the Act provides the Attorney-General with a discretion to provide assistance subject to such conditions as he or she determines. As already mentioned, that power is sufficiently wide to permit the Attorney-General to place limits on the use to which materials provided to a foreign country can be put as a condition of the assistance provided.

125    Whether the use to which material can be put be specified under s 13A(4) or be a condition of assistance under s 9 of the Act, in conferring power on the Attorney-General under these provisions, Parliament has not imposed any duty, liability or obligation on a foreign country to comply with the Attorney-General’s specification or condition as a matter of Australian municipal law. To the extent that the Attorney-General specifies uses or places conditions on assistance, these may result in a foreign country having duties, liabilities or obligations as a matter of international law. Such duties, liabilities or obligations, however, do not arise and are not enforceable as a matter of Australian municipal law.

126    The Mutual Assistance Act is concerned with international assistance in criminal matters in Australia. The Act regulates requests made by Australia and requests received by Australia. As the provisions of the Act to which reference has already been made indicate, the Act sets out in detail the circumstances in which assistance may be granted by the Attorney-General in Australia following receipt of a request, and the powers which may be exercised in Australia to provide that assistance. But, the Act does not purport to regulate the manner in which foreign countries respond to requests made by Australia or what foreign countries may do with materials received from Australia in those foreign countries. Those matters are left for the municipal law of the foreign countries. Likewise, although the Act controls the use in Australia of materials received as a result of assistance provided by a foreign country, going so far as to criminalise its intentional misuse, no provision of the Act purports to regulate the use of materials obtained by a foreign country in the territory of that foreign country as a result of assistance provided by Australia.

127    Aside from s 13A(4) and s 9, the nearest the Mutual Assistance Act approaches regulating a foreign country’s actions is a requirement to give certain undertakings where the assistance requested in Australia involves surveillance devices or sending prisoners or arranging for non-prisoners to travel to a foreign country to give evidence: ss 15CA(1)(c)(i), 15CC(1)(c)(i), 26(3)(b). However, there is no suggestion in the Act that these undertakings are intended to be enforceable as a matter of Australian municipal law as opposed to international law.

128    The context, objects and provisions of the Mutual Assistance Act and UK Regulations, as a whole, reflect a legislative intention, relevantly, to regulate the provision of assistance by Australia, not to regulate the use to which material provided to a foreign country is then put by that country. For example, even in circumstances where a judge or magistrate presides over the taking of evidence for the purpose of a proceeding in a foreign country, they are prohibited from making any ruling about the admissibility of evidence in that foreign proceeding: s 13(2A). That legislative intention is consistent with basic principle of customary international law of sovereignty and equality and the ‘act of state’ doctrine to which reference has been made earlier in these reasons.

Conclusion

129    For the foregoing reasons, Art 7(3) of the Agreement is not incorporated into Australian municipal law as a law imposing an obligation on the United Kingdom, when it is the Requesting Party, not to use evidence or information obtained as a result of a request for purposes other than those stated in the request without the prior consent of Australia, as the Requested Party. Likewise, there is no provision of the Mutual Assistance Act, as applied to the United Kingdom subject to the limitations, conditions, exclusions and qualifications in the Agreement, by which a duty, liability or obligation is imposed on the United Kingdom. There is also no duty, liability or obligation imposed on the United Kingdom under the Act to comply with a condition determined by the Attorney-General not to use material sent to the United Kingdom as a result of a request for a purpose other than that stated in the request without the prior consent of Australia, or the Attorney-General or the Department.

Construction of correspondence between the Home Office and the Department

130    The conclusions regarding the provisions of the Mutual Assistance Act and UK Regulations render it unnecessary to consider the proper construction of the letters of request and the extent to which a purpose of the requests included the investigation and prosecution of the applicant. Likewise, it is unnecessary to consider the proper construction of the Department’s letters sending materials to the Home Office and the extent to which that correspondence conveyed a limit on the use to which the United Kingdom may put the materials as a condition of the assistance Australia provided to the United Kingdom.

131    Regarding the Department’s letters to the Home Office of 23 March 2011 and 14 June 2011 and the notation in them about the use to which the material enclosed with those letters may be put, for the sake of completeness, I record that I do not regard the notations as comprising a condition of assistance for the purposes of s 9 or a condition of use for the purposes of s 13A(4) of the Mutual Assistance Act. The expression used in the notation ‘should not be used for any purpose other than stated in the request’ paraphrases ‘shall not be used for purposes other than those stated in a request’ in Art 7(3). That is, the notation is an allusion to the existing obligation under the Agreement. The notation also uses the expression ‘without prior consultation with this Department’ whereas the Agreement uses the expression ‘without prior consent of [Australia]’. Again, that is an allusion and, albeit imperfect, paraphrasing of the terms of Art 7(3). In my view, the notation, as a whole, is no more than an imperfect and diplomatic (or polite) allusion to and reminder of the obligation in Art 7(3) of the Agreement.

132    In any event, there is a significant difference between ‘prior consultation’ and ‘prior consent’. Therefore, if the Department letter was intended to impose a condition on the use of the materials, the condition imposed was less stringent than the existing obligation under the Agreement. That would be an inexplicable, if not bizarre, exercise of the discretionary power under s 9 or s 13A(4) of the Mutual Assistance Act. Accordingly, I do not infer from the contents of the Department’s letters that the Attorney-General exercised or intended to exercise any power under the Act to impose a condition on the use to which the United Kingdom can put the materials provided to it under s 9 or s 13A(4) of the Act.

133    In circumstances in which it is unnecessary to do so and where the Crown Court will be called upon, at least, to construe the letters of request in the application of English law and determination of the admissibility of certain of the materials the Department provided to the Home Office, I do not consider it would be appropriate, even for the sake of completeness, to express any view on the construction of those letters. I also do not consider that it would be appropriate because it will necessarily require me to sit in judgment if not directly, then indirectly, on the lawfulness of the acts of officers or agents of the Crown in right of the United Kingdom carried out in the territory of the United Kingdom: Mokbel at [59]-[60] (Gordon J). Whatever might be limits to the scope of the ‘act of state’ doctrine, the lawfulness of the acts of the CPS investigating and prosecuting crimes against the laws of the United Kingdom in the United Kingdom fall squarely within that doctrine.

Disposition

134    The originating application must be dismissed. I will hear the parties on costs if they are not agreed.

Associate:

Dated:    14 May 2025