Federal Court of Australia

Huynh v Commonwealth of Australia [2025] FCA 531

ORDERS

THE COURT ORDERS THAT:

1.    This proceeding be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant pay the respondents’ costs of and incidental to this proceeding as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The respondents seek summary dismissal of this proceeding upon the basis that this Court has no jurisdiction to entertain it by reason of legislative amendments to the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) made by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) (Jurisdiction Amendment Act). Those amendments carved out, from jurisdiction otherwise vested in this Court by the Judiciary Act and the ADJR Act, jurisdiction to entertain judicial review of decisions that are collateral to a prosecution for a federal criminal offence, or an appeal arising out of such a prosecution.

2    The respondents contend that this proceeding, brought by way of an amended originating application, falls squarely within the carve out created by the Jurisdiction Amendment Act, while the applicant contends that the respondents have not adduced sufficient evidence to establish that the carve out applies at all. The dispute largely turns on the meaning of the operative phrase “related criminal justice process decision” contained within s 9A(4) of the ADJR Act and s 39B(3) of the Judiciary Act, both inserted by the Jurisdiction Amendment Act.

3    For the reasons that follow, I find that this proceeding falls within the carve out from the jurisdiction otherwise bestowed upon this Court, and that as a result this Court does not have jurisdiction to entertain the proceeding. Accordingly, the proceeding must be dismissed with costs.

4    Although I am satisfied that s 39B(1C)(d) of the Judiciary Act bestows jurisdiction on the Supreme Court of New South Wales to entertain the challenge advanced by the applicant, I am not satisfied that a transfer would be appropriate in the circumstances. This obviates the need to determine whether this Court has the power to order a transfer despite not having jurisdiction.

Background to this proceeding

5    On 1 November 2023, a search warrant that had been issued under s 3E of the Crimes Act 1914 (Cth) was executed by members of the Australian Federal Police (AFP) at the applicant’s residence in Dural, New South Wales. An executing officer and constables assisting (within the meaning of s 3C(1) of the Crimes Act) seized numerous items from the property, including:

(a)    cash;

(b)    eight vehicles, including two Ferrari vehicles, one McLaren vehicle, two Lamborghini vehicles and three BMW vehicles; and

(c)    a number of luxury watches

(together, the Seized Items).

6    The third condition in the search warrant as to evidential material overtly sought to be searched for, and if found, seized, was that there must be reasonable grounds for suspecting it would afford evidence as to the commission of the following offences:

(a)    obtaining a financial advantage by deception contrary to s 134.2 of the Criminal Code (Cth), particularised in two different ways; and

(b)    dealing with the proceeds of crime involving money worth $1,000,000 or more, contrary to s 400.3(1) of the Criminal Code.

7    On 1 November 2023, the same date of the warrant’s issue and execution, the applicant was charged with an offence under s 134.2 of the Criminal Code. That charge was subsequently withdrawn on 30 August 2024.

8    Between 30 May 2024 and 23 August 2024, the applicant’s legal representatives contacted the AFP and the Department of Health and Aged Care, seeking explanations for the ongoing retention of the Seized Items and requesting their return. The AFP provided a brief response and directed the applicant to contact the Department for further information. The applicant did not receive a response from the Department.

9    On 28 August 2024, the applicant was charged with:

(a)    two counts of dealing with the proceeds of crime involving money worth $1,000,000 or more, contrary to 400.3(1) of the Criminal Code; and

(b)    two counts of dishonestly intending to cause a loss, contrary to s 135.1(3) of the Criminal Code, a provision not referred to in the third condition of the search warrant.

The prosecution of those offences is currently before the Local Court of New South Wales at Parramatta. A Crown Case Statement, stated to be for the District Court of New South Wales, was filed in the Local Court on 24 January 2025.

10    While the two counts of dishonestly intending to cause a loss contrary to s 135.1(3) of the Criminal Code were not listed in the third condition of the search warrant, seizure under the warrant was not confined to evidence in relation to the named offences, but extended to other things found and believed on reasonable grounds to be evidence of another indictable offence: see Crimes Act s 3F(1)(c) and (d)(ii) and the definitions of “evidential material” in s 3C and of “thing relevant to an indictable offence” in s 3. Under those definitions, seizure is not confined to evidence.

11    Further, s 3F(1)(d)(iii) authorises the seizure of “evidential material” and “tainted property” within the meaning of the Proceeds of Crime Act 2002 (Cth). Proceedings under that Act are not brought in this Court and there is no evidence before me on that topic.

12    On 17 October 2024, the applicant commenced this proceeding by filing an originating application. He then filed an amended originating application (AOA) on 15 November 2024. The AOA challenges the seizure, sharing (by the AFP with the Department) and continuing retention of the Seized Items taken from the applicant’s home on 1 November 2023, and seeks their return.

13    At the hearing of the respondents’ challenge to jurisdiction, counsel for the applicant indicated that at least some of the Seized Items had been transferred from the AFP to the Department. However, nothing turns on this for the purposes of determining the question of jurisdiction. The Seized Items remain in the possession of either the AFP or the Department.

The carve out amendments

14    Relevantly, this Court has original jurisdiction ordinarily bestowed:

(a)    by the ADJR Act in relation to decisions of an administrative character made, proposed to be made, or required to be made under most Acts of the Commonwealth Parliament: see the definitions in s 3 of “decision to which this Act applies” and “enactment”, and the terms of ss 5 to 7;

(b)    by s 39B(1) of the Judiciary Act with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

15    For many years leading up to the enactment of the Jurisdiction Amendment Act, judicial review applications had been brought to challenge various aspects of the validity and use of search warrants issued under Pt IAA of the Crimes Act, and the predecessor to that Part, being s 10. Those applications had entailed various challenges to the issue of warrants, to their validity on their face, to the lawfulness of their execution, to the lawfulness of seizures under them, or to the retention of material that had been seized. A view was taken, by the relevant authorities involved in or concerned about federal law enforcement, that this form of collateral challenge had sometimes been utilised to impede criminal investigations and prosecutions: see Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395 at [6]-[15] (O’Loughlin, North and Weinberg JJ).

16    The general stance of this Court on a challenge to the search warrant process, independently of any jurisdictional question, has been to leave the question of whether material seized under a search warrant should be retained for possible use in a criminal proceeding (whether extant or pending) or returned, to the court in which the criminal proceeding is or is likely to be taking place, albeit sometimes with a degree of nuance in the exercise of discretion: see Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; 257 FCR 166 at [152], [158]-[162] (Logan, Rangiah and Bromwich JJ).

The carve out provisions and their prior interpretation

Section 39B of the Judiciary Act

17    The respondents contend that, by virtue of s 39B(1C)(a) and s 39B(1C)(c) of the Judiciary Act, this Court lacks jurisdiction in respect of this proceeding. Section 39B relevantly provides:

(1C)    Subject to subsection (1D), at any time when:

(a)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or

(b)    an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

(c)    the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

(d)    the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.

(1D)    Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

…

(3)    In this section:

…

“related criminal justice process decision”, in relation to an offence, means:

(a)    a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(i)    decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(ii)    a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(iii)    a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(iv)    a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(v)    a decision in connection with an appeal arising out of the prosecution; or

…

18    Subsection (1C) of s 39B of the Judiciary Act was inserted by item 13 in Schedule 2 of the Jurisdiction Amendment Act. In the Revised Explanatory Memorandum for the Jurisdiction of Courts Legislation Amendment Bill 2000 (Cth), circulated by the then Attorney-General, it was stated in relation to Schedule 2:

Schedule 2 to the bill deals with the judicial review of the decisions under federal laws in federal, state and territory courts, but in the specific context of criminal prosecution.

The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.

Schedule 2 to the bill contains amendments of the Administrative Decisions (Judicial Review) Act 1977, the Corporations Act 1989 and the Judiciary Act 1903 that will, in federal criminal matters, restrict defendants' access to administrative law remedies.

Defendants will not be able to use the AD(JR) Act to challenge decisions to prosecute. Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced.

Further, defendants in state and territory courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on state and territory supreme courts.

19    This object is stated in similar terms in the Second Reading Speech by the Attorney-General for that Bill:

New subsection 39B(1C) is added, to provide that when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court does not have jurisdiction to hear an application made by the defendant under section 39B(1) in relation to a decision made in the criminal justice process in relation to that offence; and the Supreme Court of the State or Territory in which the prosecution is being heard is given jurisdiction with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to those decisions.

An application that is extinguished by the operation of subsection 39B(1C) could be re-commenced if the prosecution or appeal, as the case may be, were discontinued.

20    Section 39B must, like all legislation, be construed in way that is consistent with the language and purpose of all the provisions in the statute: Project Blue Sky Inc v Australian Broadcast Authority [1998] HCA 28; 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). Courts have placed emphasis on giving effect to the Legislature’s intentions in their construction of s 39B. However, sometimes the legislature may choose to advance their overt purpose by means that exceed addressing only the immediate and obvious concern; and sometimes the courts take an expansive view of the scope of such legislation in order to achieve the stated overall objective.

21    Jiang is an example of an expansive view being taken of the limitation imposed on the jurisdiction otherwise bestowed. In that case, the respondent sought to set aside search warrants issued under s 198 of the Customs Act 1901 (Cth), long after they had been obtained and executed, with evidence seized and a law enforcement proceeding commenced. The execution of those search warrants resulted in evidence being obtained and a “Customs prosecution” being commenced in the District Court. That prosecution was not, as might be assumed by the title, a criminal proceeding, but rather a hybrid type of proceeding created by the Customs Act that is not criminal, nor strictly civil: see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161.

22    The non-criminal character of the District Court proceeding in Jiang gave rise to the Full Court’s consideration of the application of the jurisdictional carve out expressed in terms of the criminal justice process and the decisions made in such a process. Having regard to the particular features and characteristics of Customs prosecutions, the Full Court in Jiang found that a decision taken in the course of an investigation leading to a Customs prosecution, such as a decision to issue a search warrant, was nonetheless a “related criminal justice process decision” and one “made in the criminal justice process”. Their Honours stated the following in relation to the construction of the phrase “related criminal justice process decision” at [81]:

The meaning to be attributed to an expression such as “a related criminal justice process decision” which is a legislative construct, does not reflect any established usage. The underlying purpose of Sch 2 of the Jurisdiction of Courts Act, as expressed so clearly in the second reading speech, must constantly be borne in mind. A construction which promotes the purpose or object underlying an Act is to be preferred to a construction that would not promote that purpose or object: s 15AA of the Acts Interpretation Act 1901 (Cth).

23    The Full Court in Jiang overturned the primary judge’s decision that this Court did have jurisdiction. In the course of doing so, their Honours made the following observations in relation to the amendments that inserted ss 39B(1B)-(1F) of the Judiciary Act:

[14]    Schedule 2 of the Jurisdiction of Courts Act was plainly intended, as the Minister made clear in his Second Reading Speech, to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process. The aim of the Act is to remove collateral access to federal administrative law procedures and remedies in this Court, at least in those cases where a prosecution for an offence against a law of the Commonwealth has been commenced.

[15]    The new provisions contained in Sch 2 reflect a belief on the part of the legislature that it is no longer sufficient to rely upon the exercise by the civil courts of a discretion to deny judicial review in such cases to avoid the dangers of fragmentation of the criminal justice process. For so long as there exists jurisdiction to review decisions taken in the course of that process, there will be scope for those affected by those decisions to challenge them in this Court. The risk that an unsuccessful applicant may be required to pay the costs of such proceedings seems to have done little to dissuade their being brought.

24    In an application of the principles enunciated in Jiang, Robertson J in McCarthy v Commissioner of Taxation [2013] FCA 715; 249 FCR 140 at [39] held that the Federal Court has no jurisdiction in respect of at least the parts of the application before his Honour which impugned the validity of the search warrants and sought the return of material seized under those warrants or the destruction of that material. In relation to the balance of the claims, his Honour did not expressly decide whether the carve out in 39B(1C) would apply to deprive this Court of jurisdiction, on the basis that even if the Court continued to have jurisdiction to hear and determine them, it would be inappropriate to do so: McCarthy at [50]-[51]. However, his Honour made the following comments in obiter at [66]:

In my opinion, although it is unnecessary for me to decide the point in light of the conclusions I have come to above, bearing in mind the mischief to which the provision is directed, the inconvenient and apparently unintended consequences of the broader construction and the principle referred to in the immediately preceding paragraph, the better construction is that s 39B(1C) operates to take away jurisdiction from this Court only in respect to the part or parts of the matter in which the defendant seeks the prescribed relief in relation to the criminal justice process decision and that this is to be tested by the effect of the relief claimed, if it were granted, on the criminal proceedings.

25    It should be noted that while the respondents brought McCarthy to the attention of the Court, and disputed the above conclusion insofar as it suggested a residual retention of jurisdiction by this Court, it nonetheless helped the respondents in the particular circumstances of this case because of the overt nexus between the search warrant that was executed at the applicant’s home and the criminal proceeding against him presently before the Local Court. Those proceedings are apparently destined to be in the District Court given the limited nature of committal proceedings in that State in which there is no longer any requirement for determination by a magistrate of there being a case to answer.

26    The substance of the applicant’s case on jurisdiction seems to be that he is not challenging the seizure, sharing and retention of the Seized Items to impede the prosecution against him, but rather to prevent the AFP and/or the Department from retaining them for a purpose collateral to that criminal proceeding. In that context, he contends that s 39B(1C) of the Judiciary Act and also s 9A(1) of the ADJR Act considered below, should be interpreted so as not to exclude this Court’s jurisdiction in the particular circumstances of this case.

27    That argument should be rejected because I am unable to accept that the statutory construction task in this case should be conducted in that way. More generally, legislation may be enacted deliberately to cover a wider field, or a narrower field, than the circumstances that motivated its enactment. It may also go further than intended or fail in an aspiration to go as far as intended. Either way, extrinsic material cannot be used to change the meaning of what has been legislated, as opposed to a more limited role in assisting to ascertain what that meaning is: see R v JS [2007] NSWCCA 272; 230 FLR 276 at [142]-[143] (Spigelman CJ, with Mason P agreeing with additional observations on a constitutional point, and McClellan CJ at CL, Hidden and Howie JJ agreeing without more).

28    The carve out provisions in the Judiciary Act and the ADJR Act are broad in their expression, and in particular are overtly wider in scope than the specific object sought to be achieved, as identified in the extrinsic material, of avoiding fracturing of the criminal process and delay. The definition of “related criminal justice process decision” captures a wide range of decisions made in the criminal justice process. That cannot be regarded as other than deliberate. As such, although the Legislature’s decision to insert the carve out provisions was evidently informed by concerns about fragmentation and delay in the criminal justice process, the final form of the legislation went much further than solely addressing that concern. Extrinsic material cannot be used to change the meaning of the legislation by creating an additional requirement that does not arise from the words used.

29    This broad view of the operation of the carve out provisions, despite the more limited ambit of the objectives and concerns expressed in the extrinsic material, is consistent with the observations of the Full Court in Jiang at [14]-[15], reproduced above.

Section 9A of the ADJR Act

30    Section 9A(1) of the ADJR Act has a carve out to jurisdiction in similar terms to s 39B(1C) of the Judiciary Act and relevantly provides that:

(1)    Subject to subsection (2), at any time when:

(a)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or

(b)    an appeal arising out of such a prosecution is before any court;

no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.

…

(4)    In this section:

…

related criminal justice process decision, in relation to an offence, means:

(a)    a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(i)    decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(ii)    a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(iii)    a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(iv)    a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(v)    a decision in connection with an appeal arising out of the prosecution; or

…

31    As mentioned above, s 9A of the ADJR Act was inserted at the same time as s 39B of the Judiciary Act to restrict defendants’ access to administrative law remedies in respect of decisions relevantly related to the criminal justice process, but without bestowing like jurisdiction on any other court. This is reflected in the Explanatory Memorandum to the Jurisdiction Amendment Act:

New subsection 9A(1) prevents a court from hearing, continuing to hear or determining an application made by the defendant under the ADJR Act for review of a related criminal justice process decision when a prosecution for an offence, or an appeal arising out of a prosecution is before any court.

32    Since the definition of “related criminal justice process decision” in s 9A(4) of the ADJR Act is identical to the definition in s 39B(3) of the Judiciary Act, much of the analysis stated above also applies to the limits of the Court’s jurisdiction in the context of the ADJR Act.

Consideration

33    The question of jurisdiction in this case turns on the meaning to be given to the definition of the phrase “decision in connection with the investigation, committal for trial or prosecution of the defendant”, which appears in subparagraph (a)(i) of the definition of “related criminal justice process decision” in both s 39B(3) of the Judiciary Act and s 9A(4) of the ADJR Act. The applicant contends that, in the particular circumstances of this case, in order for the Court to be satisfied that it does not have jurisdiction to entertain the applicant’s AOA, there needed to be evidence adduced by the respondents that the material seized by AFP officers in the course of executing the search warrant, for which he seeks the return, was likely required to be in evidence in the prosecution of the indictable offences before the Local Court. I am unable to accept that contention for two reasons.

34    First, despite raising the question of jurisdiction and contending that this Court does not possess it, the respondents had no onus to establish an absence of jurisdiction. Rather, once the question is raised, the Court has both “the duty and the authority to consider and decide whether a claim or application before the court is within its jurisdiction”: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [3] (Kiefel CJ, Gordon and Steward JJ); see also the authority cited in support of that proposition in the footnote to [3] in AZC20, being New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [31]; Hazeldell Ltd v The Commonwealth [1924] HCA 36; 34 CLR 442 at 446; Re Nash [No 2] [2017] HCA 52; 263 CLR 443 at [16]; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [21]-[23], [65]; see also Citta at [38]-[40]. In the present circumstances, it is clear that the applicant needed to satisfy the Court that it did have jurisdiction, a serious doubt to the contrary having been raised.

35    Secondly, in this case at least, the question of jurisdiction is best addressed by reference to:

(a)    the terms of the relief sought in the AOA by which the applicant challenges the seizure, sharing and continued retention of the Seized Items under the search warrant; and

(b)    the terms of subparagraph (a)(i) of the definition of “related criminal justice process decision”,

with evidence only being relevant and necessary to the extent required to establish that the relief sought is in relation to a decision in connection with the investigation, committal for trial or prosecution of the defendant.

36    The scope of the criminal offences brought against the applicant in the Local Court goes beyond allegedly illegally obtaining money from the Commonwealth and extends to cover the use to which such money was allegedly put. Given this, it is not difficult to infer that any overt decision to not return the Seized Items, and, if such a decision was not in fact made the undisputed fact of their retention, as well as the seizure in the first place and the sharing with the Department as the affected agency whose fraud investigation was evidently being assisted by the AFP, was related to the investigation that, at least in part, gave rise to the offences that are now before the Local Court and apparently destined for the District Court.

37    A part of the prosecution case as set out in the Crown Case Statement describes allegations of substantial payments being made to car dealers from accounts of the applicant’s pharmacy business that appear to be unrelated to that business, and of funds allegedly obtained as a result of the conduct forming part of the charges being directed, inter alia, to such personal expenses. In those circumstances, I readily infer that any action or decision in relation to the retention of the Seized Items took place within the investigation of which the obtaining of the search warrant and its execution formed a part.

38    The use to which the Seized Items might be put in the criminal proceeding pending against the applicant may well be highly relevant to the question of whether the relief sought under the AOA, or some version of that relief, should be granted by a court that is conferred with jurisdiction. However, that evidence need only be considered to the extent it is relevant, or potentially relevant, to the existence and thereby exercise of jurisdiction, and thus is limited to, and should not go further than, what is necessary to determine whether that jurisdiction exists.

39    I conclude that the evidence establishes that:

(a)    The search warrant issued under s 3E of the Crimes Act, which authorised the seizure of the Seized Items, was obtained and executed in the course of the investigation into whether the applicant had committed offences of the kind identified in the search warrant itself, noting that wider seizure can be authorised by such a warrant: see, eg. s 3F(1)(d)(i) of the Crimes Act.

(b)    The applicant was charged with one such offence on the day of the execution of the search warrant.

(c)    That charge was replaced by the four charges that are now being prosecuted before the Local Court, including two counts of an offence of the kind also named in the search warrant.

(d)    The obtaining of the search warrant, its execution and the seizure of the Seized Material form part of the investigation giving rise to that prosecution.

40    Any decision that has been made (or was not made but sought to be made by the applicant) in relation to the Seized Items was therefore plainly a decision “in connection with” that investigation, being the necessary nexus contained within subparagraph (a)(i) of the definition of “related criminal justice process decision”. That definition is therefore engaged, and as a result s 39B(1C) of the Judiciary Act and s 9A of the ADJR Act are both engaged.

41    This Court therefore does not have jurisdiction to entertain the AOA.

Conclusion

42    The proceeding must be dismissed with costs. The applicant, if this was the conclusion reached, sought a transfer of the proceeding to the Supreme Court. I do not consider a transfer to be appropriate in all the circumstances. It will be a matter for the applicant as to whether he wishes to commence such a proceeding.

Associate:

Dated:    23 May 2025