Case: Chief Executive Officer of Customs v Jiang [2001] FCA 145 ; [2001] 111 FCR 395
Outcome: considered
The background to the enactment of s 9A ADJR Act was explained by the Full Court of the Federal Court in Chief Executive Officer of Customs v Jiang [2001] FCA 145 ; [2001] 111 FCR 395. O'Loughlin, North and Weinberg JJ considered the history of judicial review of decisions made in the context of criminal prosecutions, including the second reading speech for the Bill introducing the legislation. Their Honours observed: &#8226; As a general principle, the civil courts appreciate that it is of vital importance that regulatory bodies and law enforcement agencies not be hindered unduly in their task of investigating full allegations of criminality, that most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts, and that the civil courts generally deny judicial review of such decisions on discretionary grounds (at page 399). &#8226; Section 9A ADJR Act (and ss 39(1B)-(1F) and s 39B(3) Judiciary Act ) were introduced 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 these legislative provisions was to remove collateral access to federal administrative law procedures and remedies in the Federal Court where a prosecution for an offence against a law of the Commonwealth had commenced (at page 400). 55 Reference to the absolute exclusion of jurisdiction in these circumstances was made by Federal Attorney-General Darryl Williams in the second reading speech to the Jurisdiction of Courts Legislation Amendment Bill 2000, Sch 2 of which inserted s 9A ADJR Act and s 39B Judiciary Act . In particular, the Attorney-General said: '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. ... Defendants will not, at any time, 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. Section 39B of the Judiciary Act is also to be amended so 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 will not have jurisdiction to hear an application made by the defendant in relation to a decision in the criminal justice process relating to that offence.' (Index to Parliamentary Debates (Hansard) 2000 First Session of the Thirty-ninth Parliament, House of Representatives vol 231, 8 March 2000 p 14111) 56 I also note similar comments in the Explanatory Memorandum to the Jurisdiction of Courts Legislation Amendment Bill 2000 p 28. 57 Further, while it is clear that the mischief the legislation intended to address was unmeritorious delaying tactics in the criminal justice process caused by collateral access rights of defendants to federal administrative law procedures and remedies, the legislation is clear on its face. Section 9A contains no reference to, and nor should it be read in such a way as to require, an analysis of the motives of an applicant in bringing an Application for an Order of Review of a decision to obtain a search warrant. The motives of the applicant in seeking review of the related criminal justice process decisions are irrelevant. In applicable circumstances, such as those before me, the jurisdiction of the Federal Court to review an administrative decision is excluded. 58 The manner in which the application is framed with respect to the second respondent raises further issues which in my view should be addressed separately, although the first respondent's submissions concerning s 9A ADJR Act also encompassed the position of the second respondent.