Deripaska v Minister for Foreign Affairs [2024] FCA 62

Federal Court of Australia

Deripaska v Minister for Foreign Affairs [2024] FCA 62 File number: WAD 15 of 2023

Judgment of: KENNETT J

Date of judgment: 8 February 2024

Catchwords: ADMINISTRATIVE LAW – judicial review of Instruments made by the Minister designating and declaring the applicant pursuant to item 6A(a) of reg 6 of the Autonomous Sanctions Regulations 2011 (Cth) (Regulations) – whether Regulations infringe common law right to be represented by lawyer of one's own choice – whether use of amending instrument effectively designated and declared applicant for purposes of reg 6 – whether Minister misunderstood nature of power being exercised by failing to appreciate scope of her discretion – whether Minister was aware of discretion – whether Minister aware she had discretion to designate and declare, neither designate nor declare, and designate or declare the applicant – materiality of failure to appreciate scope of discretion – inferences to be drawn from Minister not having been called to give evidence – whether rational foundation for Minister's state of satisfaction that applicant met criteria in item 6A – application dismissed CONSTITUTIONAL LAW – judicial power of the Commonwealth – whether regs 14 and 15 have applications that would subvert the exercise of jurisdiction under s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth) – whether Regulations are invalid by reason of inconsistency with the constitutional entrenchment of that jurisdiction – where s 75(v) introduces an "entrenched minimum provision of judicial review" – whether designation under the Regulations prevents designated persons or entities from obtaining legal representation to challenge decision – whether terms of Regulations can be read down to exclude actions taken for the purpose of challenging designation or other things purportedly done under the Autonomous Sanctions Act 2011 (Cth) in proceedings commenced under s 75(v) or 39B(1) CONSTITUTIONAL LAW – implied freedom of political communication – where parties agreed that Regulations burdened the implied freedom – where Regulations impede lawyers' ability to communicate meaningful advice or representations to or on behalf of a designated person or entity – whether nature of such communications is political – whether Regulations serve a legitimate purpose in allowing Australian government to pursue foreign policy objectives through sanctions – whether Regulations proportionate to the achievement of legitimate purpose – Regulations not invalid by reason of infringement of the implied freedom