Case: Barnes v Boulton [2004] FCA 1219 , 139 FCR 356
Outcome: cited
however, needs to be taken when considering the use to which reasons recorded for the purposes of s 29(1A) can be put. Care must be taken because Schedule 2(ea) to the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that the requirement to provide a statement of reasons imposed by s 13 of that Act does not apply to decisions of the Australian Crime Commission, including " decisions in connection with intelligence operations ". Counsel for the Commission urged that the legislative intent to exclude an entitlement to reasons should not be circumvented by reliance upon the record of reasons imposed by s 29(1A). That requirement, it was contended, may have been imposed to enhance decision-making and to facilitate accountability to Parliament &#8212; but not the Courts: cf Barnes v Boulton [2004] FCA 1219 , 139 FCR 356. There in issue was an asserted entitlement to be provided with the comparable record of reasons imposed by s 28(1A) of the 2002 Act before a person summonsed to give evidence was required to answer any questions. In rejecting that entitlement, Finn J concluded: [29] The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an "audit trail". Under s 59 of the Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee's powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC's investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme. What was not in issue in those proceedings was whether or not a record of reasons could or should be made available to a court in circumstances where the decision to exercise a power such as s 28 or s 29 was the subject of an application for judicial review. Where an exercise of power is the subject of a legitimate challenge by way of judicial review, it would seem curious that an existing written account as to why that power was being exercised should not also be available to this Court. If any part or parts of that record attracted a claim for public interest immunity privilege, or any other privilege, that claim can be resolved &#8212; as it was in the present proceedings. But, again, that issue need not be resolved. The records of reasons were in fact made available to this Court, albeit not the " statement of facts and circumstances " or the " legal submissions " to which they refer. Where the reasons of an examiner are available, it is considered that they should be carefully construed. Given the width of the powers conferred upon an examiner, a responsible exercise of those powers would require that the reasons disclose on their face that the examiner has given careful consideration to both the nature of the power being exercised and the circumstances of the case before him. Although the reasons of the examiner in the present proceedings do not disclose the careful consideration of the facts and circumstances which is required, that deficiency is not sufficient in the present case to make out the argument now sought to be advanced by the Applicants. The December 2008 notices required production within a little over a week; the January 2009 notices allowed some two weeks.