a CATCHWORDS Administrative law - judicial review - interlocutory relief to stay committal proceedings - application to review Treasurer's consent to prosecution under s.70 Banking Act - alleged offences under Regulation 41 Banking (Foreian Fychante) Regulations - collateral purpose - abuse of process - preach of natural justice - pona fide consent - Ib etter of Request procadure - interlocutory relief refused Administrative Decisions (Judicial Peview) Act, 1977 Banking Act. 1959 Banking (Foreian Exchange) Peaqulations AN TKENCTE MUFCHISCGN v SUL JOHN FEATING No. WA 26 of 1984 Morling J. Pertn io m {1 ctb i 1f1 Lo ny IN THE FEDERAL COURT OF AUSTRALTA WESTERN AUSTRALIA DISTRICT REGISTRY No. WA 26 of 1984 GENERAL DIVISION BETWEEN: IAN McKENZIE MURCHISON Appizcant AND: PAUL JOHN KEATING Pasponasnt ORDER JUDGE MAKING ORDER 3 Morling Jd. DATE OF OFDEP 2 28 dune 1984 WHERE MADE t Perth THE COURT ORDERS THAT: w an o A 1. The aprlication be dism2 ie iV)fag ui Q oO iT a un Ww Applicant to vay respon 'S Oo IN THE FEDERAL COUPT OF AUSTRALIA WESTEPN ANSTRALIA DISTRICT FEGISTRY No. WA 76 of 1984 -~- rH GENERAL DIVISTON BETWEEN : IAN McKENSIE MUPCHISON Applicant AND: PAUL JOHN KEATING Respondent MOFLING J. 28 June 1984 PEASONS FOR JUDGMENT This 18 an application for interlocutorv relief in ar applicarion made under the Administrative Decisions (Judicial BPeriew) Act 1977 ("the Judicial Peview act"). In the subetanrive proceedings the applicant seeks review of a number Tommonvealth of Australia. By virtue of 3.70'1) of tne Eanking Acer 1959 the Treasurer s written consent is required to proceedings for an offence against that Act or the regulations made thereunder. The decisions wnich the applicant seeks to have reviewed are decisions made by the respondent consenting to the institution 27 proceedings aqainst the applicant for alleaed effences against the Bankina (Foreian Exchange) Peaqulations and "ne Tyzmes Acre 1914 and decisions made by the respondent ora 2. person authorised by him that those proceedings be on indictment rather than by summary prosecution. The decisions are described in the application for review in the following terms: "Ca) a decisio Ww mad@ onor about the 22nd July 198 a «ta the institution ort nsenti ad n e) proceedinas aqainst the Applicant alleqing an offence against Pequiation 41 of the Banking 'Fore1gn Exchange'? Fequlaticns: 'Dd a decision made on a date unknown to the Applicant by the Respondent OF a person autnorised ov him sO races with that prosecuticn as would have been possible if consent had peen given pursuant to Section 70(2) of the Banking Act 1959 and amendments; am) | decision made pv ch r 1D Pespona wy qt on oar about wT to wvo 1D it > "Ty D iy nN c fu yt '< i 'DO ip 3) $ a Q s rT dD tb Ss 1D new) Q it 1D insticaticen or nm " vy 'D ed nas against Kr otf we B n Ay)cot w I- i 'D Q fm =] 'Q ty iv 'D 'D ma Ba ATMALNST re] 'D uw Bankirad 'Foreign Exchange) Fetulations) and the Crimes Act 1914 and amendments: a aR detisien maze on a2 aate unknown t- the soplircant v the Ferpondent or ai persan with the said a a D p authorised by nim ta pro tive prosecutzens on indictment rather than py summary prosecution as would nave been iss) possible if consent had been aiven pursuant to Section 70(2) of the Banking Act 1959 and amendments. The applicant claims to be aaqqrieved by the decisions because, so he alleges, he has been improperly and unnecessarily charaged with the offences, and has been rendered liable to trial on unaictment rather than by summary trial which 1s a longer and more extensive procedure involving a potential liability to more serious penalties, without sufficient cause. He also claims fhat the charges were brought for a collateral purpose and my wv ~ 'Db involved an apuse 90 process of the court in wnich they were Temmenced, The applicant relies upon a number of the grounds veferred to in s.5(1) of the Judicial Review Act. He alleges a breach of the rules of natural vustice, failure to cbserve proceaures required by law, improper exercise of the power cenrerred by the enactment under which tne decisicns were made, errors of law, and absence of avidence or other material cto justify the decisions. It 1s aintenaed that committal proceedings against the applicant will commence on 16 Tuly next and 1t 1s estimated that tne proceedings wili extend over a period of several weeks. Since the final hearing of the application for review carrot pe conpleted before the committal procesdinas are due to commence, 4. committal proceedings until his application under the Judicial Review Act has been finallv determined. The respondent concedes that the decisions made by the a D respondent «9 nsent to the institution of the proceedings against the applicant were decisions of an administrative character made under the Bankina Act and hence are administrative dec1is1ons for the purposes of the Judicial Review Act. The prosecutor of the charges is not a party to the present proceedings, However, counsel for the respondent conceded that if I were or the opinion that a case for interlocutory relief had otherwise peen made out, 1t would be possible to frame an order unaer s.15 of the Judicial Review Act effectiveiv staving the committal proceedings pending a final hearing of the application in this court. In making this concession. ctounsel for the respondent did net apandor an argument tnat he may wish foe oresent at the final hearing to the effect tnat a cansent to whe institution of rroceedinys. onc 2D qiven, 15 pevond recall oy the responder and pevona sutsernsicn or revocation by the court. That is a substantial quesricn whith has not neen araued before me. The erinciples upon which interlocutorv relief snouid be aqranted in an appiication under the Judicial Review Act were accepted as those being laid down in Australian Coarse Grain Pool Pry Limited v Barlev Marketing Board of Queensland (1982) . That 1s tas crsidering whether inter- w BP a a D s ra ¥) a = >% D i » w my m a c = AiD 1Q Lay wp po] wr D a. vr > D proper approach 1s first 5. to enquire whether there 1s a serious question to be tried, and then to determine the matter on the balance of convenience. The Australian Coarse Grain Pool Case was not, of course, a case under the Judicial Review Act. Nevertheless whether the appropriate test in a case brought under that Act is that laid down in the Australian Coarse Grain Pool Case, or the slightly aifferent test propounded by Keelv J. in Peakins vo Cuthill (1981) 34 ALR 6569, i.e. whether circumstances exist which make zt just tnat the court should grant interlocutory relier, 1s of littie consequence for the purposes of deciding the present case. I agree with the observation made by the Full Court in Faingold & Ors v Sammit & Anor (4+ January 1984) tnat it will be a1fficul wT for an applicant 'to show tnat circumstances exist making 2t just for the court to aqrant interlocutory relief unless ait is demonstrated that the applicant has a point of substance to argue which, if successful. would result in a Judament in his favour. Ioturn now to consider the evidence in support of the application. It 1¢ important to oear in tand tnat tne evidence is not ina final state and tnat any view tnat I express on tne In dealing with the facts For the rurposes oF th iD Loy tas cw Tt H erer fir 'So Le Ww wl 1Dfo wu 't me] ra BF nm pr) io B fs) a b cr g PB B be S i) fa mn O) ry Cc f-9 Lary Oo wna yeyard as the strongest around rel1ed upon by the applicant. That us the around referred toin s.5(1):e) of the Judizial 1) ns wa am Peview Act, 1.9. tnat the maxing of each or tne eecisi an 6. improper exercise of the power conferred by the enactment in pursuance of which it was purported to have been made. The more important particulars furnished by the applicant in support of this around were as follows: "Bla) Ehe consent to the institution of the first prosecution given in July 1983 was qiven fora collateral purpose in that there was no immediate intention to proceed with such a charqe against the Applicant but the real purpose of the consent was to allow Commonwealth officers unknown to the Applicant but including representatives of all or any of: - (1) the Roval Commzssion and, (ii) the Special Prosecutor, and (111) the Federal Police to avall of a Letter of Request procedure to ths Government of Singapore to allow evidence to be taken compulsorily in Singapore under the provisions of the Extradition Act 1976 (Singapore) from persons resident in Singapore who would not otherwise have peen amenable to enquiries by or from such Commonwealth officers tn craer to advance tne aeneral enauir1es peindg anzertaken Dv the Poyal Commission ana/or tne Special Prosecutor, een rhe consent bo the znstzrtution of tne prosecutions in Fepruary 13384 was improper and an ADdDuse of power as ait was asa result of and q2pencent uren the investigations of Commonwealth officers in Findapore which nad p2en made possible py the improper institution of the first prosecution and its consequences as set out in particular 3(a) above,' The rairst consent aiven bv the respondent to the instituticn oF proceedings against tne applicant was given an 22 Juiy 1983. Follawing the ussue of that consent a police officer on 27 July 1983 swore a complaint against the apriicant tnat batween 31 duly 1981 and 31 Dacember i381 the applicant, roncrary to Fequlatr n+l cf the Bankrustry «Foreian 7. Exchange) Regulations, entered into an arrangement with other persons for the purpose of defeating the operation of the regulation. This complaint was numbered 09030. On 22 February 1984 five other complaints were made against the applicant alleging further breaches of the regulations. Notwithstanding that the first complaint was made on 27 July 1983, the first occasion when the applicant was actually served with or charged with any of- the above offences was 9 February 1984 when complaint No. 09630. was served upon him. Thereafter he appeared in the Court 'oftgetty Sessions at Perth on 13 February 1984 when the charge was remanded. Shortly thereafter the applicant was served with the remaining complaints and these came before the Court of Petty Sessions on 27 February 1984. The first that the applicant knew of the possibility of any charge against him was on 1 June 1983 when he was spoken to by officers of the Australian Federal Police. He was then told that they had reason to believe that he had committed certain statutory offences. The applicant had previously attended, in obedience toa writ of subpoena, before the Royal Commission into the activities of the Federated Ship Painters and Dockers Union. He gave evidence to the Commission on a number of occasions in 1982 and was asked questions which included questions as to the transactions that are the subject of the charges laid against him. On 18 October 1983, at a time when the applicant was to be again summonsed before the Royal Commission, his counsel was advised by letter from the Special Prosecutor that the 8. 'Australian Federal Police had formed the view, on the evidence then presently available to them, that a prima facie case existed against the applicant of having breached the provisions of Regulation 41 of the Banking (Foreign Exchange) Regulations. The letter continued: "The Federal Police are in the course of obtaining evidence from overseas, and to this end, they have laid a charge for a breach of Regulation 41 aqainst your client, thereby enabling them to pursue a 'Letter of Request' procedure'. The charge has not been served, nor is it proposed that it will be served until such time-- asjt has been concluded on all of the evidence" gathered by the investigating police that a substantial offence or offences have been committed." It thus appears that although the applicant did not know the precise details of the charge that was subsequently served upon him, he was informed of the existence of the charge approximately four months before 1t was served. The Letter of Request procedure referred to in the Special Prosecutor's letter 1s a procedure available under the Extradition Act 1976 (Singapore) pursuant to which a Singaporean Magistrate may be authorised to take evidence for the purpose of a criminal proceeding pending in a foreign country. Similar legislation is in force in the Crown Colony of Hong Kong. It appears that pursuant to Letters of Request evidence was taken from aonumber of persons in Singapore and Hong Kong in the latter part of 1983 and that these persons produced a number of documents which were subsequently forwarded, in conformity with the appropriate procedure, to the authorities in Australia. 9. It was submitted on behalf of the applicant that there 1s no legislation in force in Australia authorising the issue of the Letters of Pequest to the Governments of Singapore and the Crown Colony of Hona Kona. Whether this 1s the case or not, counsel for the respondent conceded tnat the evid O)) nee aiven ct nd 1D rey pursuant to the Letters of ke could not ne t in the Q ues 1D D r proceedings against the appiicant in Australia. in making this ccncession, counsel did not concede that a document produced in Singapore or Hong Kona and forwarded to Australia miant rot be admissible in the proceedings in Australia against the applicant, if the requisite proof of such document were otherwise available so as to justify its reception into evidence. It appears that on each of the two occasions on which the respondent gave his consents to the prosecutions he did so in responsێ to a minute advising nim of the alleged preaches of the Requlations. In the case of the consent given on 22 Julv 1923 the respondent was furnzsned WIth A minure based primarily or material proviasd dv the Spet1al Proseturor, The pinnate included nackaround material on tne appointmenrc and actiririas execution of which the appiicant was claimed to be involved, a Prosecuter advised that a prima facie case existed azainct, unter alios, the applicant. and a statement setting out matters which were said to maxe it urdqent to lay the charge against the applicant so as to obtain Judicial assistance to tne acquisition Fh i) c ow i oO necessary 1tecuTentary evidence Irom overseas. The m1 10. also included material, including a recommendation, advising the respondent of the Treasury Department's views on the alleged offence anda reference to the possibility of prosecution by indictment. Attached to the minute was a draft form of consent to prosecute. A separate minute was submitted to the Treasurer in relation to his consent of 8 February 1984. This minute contained information which was also based primwarily on naterial provided by the Special Prosecutor. The information was Similar to that contained ain the earlier minute and referred to leqal advice from the Special Prosecutor to the effect that he was satisfied a rrima fac existed aaainst., inter alias, B 1D a o wn wD the applicant in respect of the offences alleged against him. The minute referred to advice from the Special Prosecutor that proceedings be hrought by way of indictment. The Letters of Request were issued on 20 Septemper 1983. A&lcnough, as appears from tne Special Prosecutor's letter Pp to wnich I have already referred, the applicant was told that the Letter of Feaquest pracsaure was being pursued. he was nor advised of the precise time and place of the hearings in Sinaapore and Hong Konq. Te is mow convenient toa turn to the primary attack made on the cansent to the instituticn of tne First prosecutlicn. Tne oP) mak Db in 'D applicant alleges Enat the evidenc Ss out A prima facie ca iD i?) , a '"% oO that this consent was not, in truth, given for tn s 1B 'D p wr ns +t w enalling tne prosecution ro ne brought, but ratner ro ll. collateral purpose of allowing Commonwealth officers to avail themselves of the Letter of Request procedure in order to advance the general enquiries being undertaken by the Royal Commzssion and/or the Special Prosecutor. In support of this submission the applicant points to the delay tnat occurred between the obtaining of the consent and the time when he was first charged with the first offence, 1.9. a delay of about seven months. He also points to the statement made in the Special Prosecutor''s letter that the Federal Police were in the course of obtaining evidence from overseas and that "to this end, they have laid a charge for a breach of Fegqulation 41 against vour client, thereby enabling them to pursue a Letter of Request procedure". Feliance was also placed upon the fact that the minute placed before the respondent in order to obtain his consent referred to the fact that it was rhought urgent to lay the Fegulation 41 charges so as to obtain judicial assistance to the acquisition of necessary documentary evidence from overseas. Whilst the use of thn 1D i Oo iT iad 'D s fe) aly en) D Q in) u tr 'S 's Qo no 1D A c bay Dp without motirt= to tne anplicant of the soerific time and place when 1t was propesea to implement 1f in Sinaapore and Hcna Fond might be thought to be less than satisfactory in some respects, I do not think i1t demonstrates that the respondent's consent of July 19823 was not given bona fide for the purpose of enabling the first charge No. 09030 to pe broudht against tne applicant. On the material furnished to the respondent it was entirely proper for him to give his consent to the bringing of that prosecution. The fact that. as at July 1983, all the facts surrounding the charge wers not known to the Snecial Prosecutcr 12. or the Federal Police did not make it improper to seek the respondent's consent to the institution of the charge. It is plain from the Special Prosecutor's letter that he was minded not to serve the charage upon the applicant uf his further investigations established that a substantial offence had not been committed. The utilization of the hetter of Request procedure to obtain information that might throw licht upon the qravity of an offence as to which prima facie evidence already existed was no more than the taking of a step to ascertain whether the charge should be prosecuted to a conclusion. I do not think that 1t can be correctly aescribed as the pursuit of a purpose foreian to the prosecution of the charaqe itself. Nor 1s 1t to the point that there 1s no legislative warrant for the Letter of Request procedure, if indeed that is the case. Ido not find it necessary to determine for the wnautnories2, 1 Rorears TO m2 £9 22 4 STEP taken in the ceurse of the presecurcison of the charges rrougnt against the applicant ana other alleged offencers. This peing so, tnere 1s no basis ror TNAYACTSErLSinY uf as a step taken for a vourpnose disassociated with and¢ foreimn ro Ehe prosecution. Thus, even if 1t couid be snown that 1t was known to the resvondent wnen he charge as the basis for the subsequent Letter of Pequest 13. his consent. For these reasons I am of tne opinion that. on the evidence presently before the court, there is not a sufficiently ser1lous question to be tried on this aspect of the case to warrant the aqrant of interlocutory relief. For the same reasons, a sufficiently serious question has not been raised in respect of the February 1984 consents. Counsel for the applicant submitted that these consents were given as a result of the acquisition by Commonwealth officers of aunformation wrongfully obtained by means of the Letter of Request procedure, Even 1£ I were wrong in my view that the untentzon to pursue those procedures did not invalidate the consent given in Julv 1983, the February 1984 consents would not be invalid. The mere fact that evidence to support tne charges was wrongfully obtained could not affect the validity of the consents given by the Treasurer under s.70 of the Banking Act. It 1s plain that such evidence would not, ver se, be inadmissibie in tne proceedings against tne anplicant, but could Ireland (1970) 126 7.L.R. 321 at e.ite; Bunning v Crass (13973) 141 C.L.R. 54: Herecve v dermes $128?) #49 ALLLR. LES and on appeal (1983) 51 A.L.R. 109. This being so, 1t can nardlv be suggested that the obtaining of such evidence affects the validity of the consents to prosecute. A number of other matters were relied upon as invali- dating the consents. it 1s undesiranle chat I should a pres wi view on many of these matters at this interlocutory D anv Tir fag u th vT ave T a 'b ut wT ey 1D 1D < eiDa D co] s 1b Lf) 1) be] at pa ib at oO ns oh) it bed D court w o sav ths 14. does not raise a serious issue, lét alone a prima facie case, as to the validity of the consents. However, in deference to the careful and detailed arqument presented by counsel for the pplicant, I should make a few brief comments upon some of tne I do not think the evidence presently before the ccurt raises a ser1ous question whether the consents were granted for 1@ purpos2 of aavancing the enquirie of tne Royal Commission and the Special Prosecutor and were not granted as the result of any complaint from the Reserve Bank or asa result of the infringement of any policy of the Bank (Particular 3(c)). Nor do I think that any failure by the respondent to consider a uest made on oehalf of the Crown in riqht of the State of Queensland for the grant to tne applicant of immunity cf Dy osecutieon as an inducement to tne applicant to qive evidence £ QO ro of -rown in charaes pending against other persons in myeensiana could oossibly affect the validity of the consent ru ular Sidi areL responiaent personally faliea to consider wnetner any cf the eroasecutions should be instituted. On the evidence presently before tne court as ra tne material which was placed osfore tne respondent by his Devnartment I «22 not tnink tnat tnsre 1s any support for this allegation. mcr is there any support, as tne evidence presently stands, for the alleqations that the cffences alleaqed ta nave aneen committed by the applicant were of sucn a trivial matur2 that tnev did onct warrant pwprosecuticn aon 15. indictment (Particular 3(q)) or at all (Particular 3(h)). Nor 1s there any evidence at this stage to support the argument (Particular 3(3)) that the institution of the prosecution was based upon an unjustified assumption by the respondent or his advisers that the applicant received a substantial benefit abroad from his role in tne alleqed transactions. It was also alleged (Particular 3(1)) that the consent to the anstitution of prosecutions involved the respondent and tne complainant using disclosures made by the applicant in evidence vefore the koval Commission in contravention of s.sDD of the Roval Commissions Act and constituted an abuse of the power to consent to the institution of proceeding. Feliance was placed upon Sorpvy wv The Commonwealth (1983) 57 ALR 242 especially at p.252, There 15 no 2vidence presentiy before the court to estaplish this allegation Further, even if there were, it would be a matter for the court hearing the charges to decide whether the eviderce should se adnitted. I do nar think the use of such evidence by the respondent would be an apuse of his power to give nis consent under s.70 of tne Banxcinag Act. Altnough the arquments to which I have already referred were aavanced in support of the cantention that the applicart was entitled to relief cupor the wzround referred to in $.3'1:13) of tne Fuditiai Feview Act, ine same arquments, or variations cf them, were relied upon te support submissions that tne consents snould be reviewed under other paraaraphs of s.5/1). Tk us onlv necessary to metic® one furtner Sunmission. It was 16. contended that a breach of the rules of natural justice occurred in connection with the making of the decisions ain that the respondent farled to consiaer the explanations for the applicant's conduct which were ava1rlable to him or his advisers, i) TOo ny H D and mag2 nis decisions without referenc 1gnorance. of The initial difficulty 1n the way of this submission 15 inat the viving of the consents did not affect the rights of the applicant. The consents did not subject the applicant to any senalty or punishment. The necessity to obtain the Treasurer's tonsent to a prosecution under the Banking (Foreign Exchange) Regulations 15 no more than an administrative safequard against the formulation of cnaraes which the Treasurer mignt think da not warrant prosecution. See The Meaizal Roard af Sueencland v Byrne (1959) 100 CLR 582 at 594, Jee also, Nrieol v Attorney- Seneral tar the rate oof Vicereria .igal Vik. AT P.35%-1 tnere contigeration vas qiven rt? SIR L301 «1s evariding for the tifencte ATALNET Tre Act witch "ne tonsent of the Minister At O,300-1 of tne reoort If tha. case surtay 5, 2ala: "The notion that tne consenz of the Minzster to the pringing of sucn proceedings cannot pe given perore extending to an alileged offender tne coportunity to o¢ neard does not Fit readily into tne pattern of swnicn in tne rast nave bean neld to attract the erinctirles of nazural justice. As Mansfisld, 3. said in Ccav v Joseph Pease (Ptvy.) Lta., C1965] St... gd. 81, at of. Glina judament with which che cther mempers of the Full Court of Ougensiand aareed: 'Ry nis consent tne Actornev-General does tat aecide any controversy, noy ao2s ne give any binding or autneoritative Aeclision wnich aerermines auesticns of rights and 17. liabilities. His consent may affect the liability of a person after a controversy has been decided by an appropriate judicial tribunal, but his consent does not in anyvwav determine a right or liability. The Attorney-General's act 1S, im my opinion, an executive act authorised by Parliament as incidental to aits leqislative power.' The discretion of the Attorney-General was also considered in Barton v R. (1981), 55 A.L.d.R. 31. In that case Gibbs and Mason, dd. quoted with apparent approval from Professor Edwards The Law Officers of the Crown, 1964 where he, at (55 A.L.J.R.) p.35, said of the Earl of Halspuryv, L.C.'s speech in Lendon County Mouneil v aAttornev-General, £19023 A.c. 165, at p.289: Inaeed, Lord Halsbury might well have done further and drawn the exact analoay between the Attorney's responsibility in instituting a relator's action and the exercise ef his authority in tnase areas of criminal Prosecutions, for exampie, nalle prosequi, "consent" offences and 2x offic unrormations in which the ficer s fiat 1s the kev senior Law 0 which sets the macniner In all these instance mr criminal proceedings, th accountable not to tne Courts for the manner in which he discretionary authority.' of lustice in motion. pracing poth civil and e Attorney-General is TD's hy but to Parliament his aiscnardes In my view this dis s.381(2) bel m Oy 's Bow Qondtat pDIer wes ome) voors pib pw ney aor ih o< 3 Paare) mana 'Qe on "Dd Tounsel for tne aoplicant was unarle te eoint ta any authority to suppert tne proposition that tne rules of natural stice have anv aprilcation to the making oF a cetision by 2 the Crown to nerrit 7 ne application in such a case. 18. In view of the conclusions I have reached on the strength of the applicant's case on the evidence as 1t presently stands, it is unnecessary to consider whether in the exercise of the court's discretion 1t should decline to make an order which would have the effect of intruding into the committal proceed- unas. Cf. Lamb v Moss (1983) 49 A.L.R. 533. It is'also unnecessary for me to consider the question of the balance of convenience. However, since this matter was argued I should,express my view upon it. In the circumtances of the present case I" think the balance of convenience would have been in favour of granting interlocutory relief had the applicant been able to establish that the evidence presently before the court raised a sufficirently serious question as to the validity of the consents. The validity of the consents is in the nature of a threshold point upon which the success of the charges against the respondent must depend. Having regard to the very considerable expense to which the applicant and the prosecutor will be put in the committal proceedings it would have been convenient for the threshold point to be determined before those proceedings commence, had there been sufficient doubt as to the validity of the consents. In the result, the application for interlocutory relief must be dismissed with costs. /7