VID784/2024 – Kant – Submissions (21 October 2024)

Details of Filing

Document Lodged: Submissions
Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)
Date of Lodgment: 21/10/2024 3:45:53 PM AEDT
Date Accepted for Filing: 21/10/2024 4:07:56 PM AEDT
File Number: VID784/2024
File Title: JAN MAREK KANT v CHIEF EXECUTIVE OFFICER OF THE NATIONAL ANTI-CORRUPTION COMMISSION
Registry: VICTORIA REGISTRY – FEDERAL COURT OF AUSTRALIA

No. VID784/2024

JAN MAREK KANT
Applicant

CHIEF EXECUTIVE OFFICER OF THE NATIONAL ANTI-CORRUPTION COMMISSION
Respondent

Date: 21 October 2024

Applicant’s Submissions

Timeline

  1. The Applicant made a NACC disclosure on 14 Nov 2023.
  2. The National Anti-Corruption Commission (NACC) provided a response to the Applicant’s 14 Nov 2023 NACC disclosure by email sent on 12 Dec 2023.
  3. The Applicant’s requested access to documents with information about his 14 Nov 2023 NACC disclosure under Freedom of Information Act 1982 on 03 Jun 2023.
  4. The Respondent provided a decision on the Applicant’s 03 Jun 2023 request, including refusal to give the Applicant access to “Document 3”, on 05 Jul 2024.
  5. The Applicant requested “internal review”, of the 05 Jul 2024 access refusal decision, under Freedom of Information Act 1982 on 06 Jul 2024.
  6. The Respondent provided a decision on the Applicant’s 06 Jul 2024 request, including refusal to give the Applicant access to Document 3, on 05 Aug 2024.
  7. The Applicant applied for relief in the Court on 06 Aug 2024.

Respondent

  1. The Chief Executive Officer of the National Anti-Corruption Commission, as officer and not a natural person with that job title or description, is the Respondent. Distinction between the NACC and its Chief Executive Officer is arbitrary.
  2. The Public Service Act 1999 and the Legal Services Directions made under s.55ZF Judiciary Act 1903 bind the Respondent in this proceeding.

A matter of government and politics

  1. No reasonable person can believe the 12 Dec 2023 response to substantially address matters of the 14 Nov 2023 NACC disclosure. The reasonable person test must in this instance have regard to what

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an EL2 officer of the NACC, with authority to decide whether or not to deal with a corruption issue, may believe.

  1. Noting required the National Anti-Corruption Commissioner or his delegate to provide a response to the Applicant’s 14 Nov 2023 NACC disclosure.
  2. In producing the 12 Dec 2023 response to the Applicant, the NACC and/or its officers:
    a. Intended to cause detriment to the Applicant; or,
    b. Intended to obtain some (if trivial) benefit for himself or themselves; or
    c. Acted with spectacular incompetence.
  3. “Injury to (a) person’s feelings”, as in meaning of 25A(1) Privacy Act 1988, is “detriment” in 29(2) National Anti-Corruption Commission Act 2022.
  4. In producing the 12 Dec 2023 response to the Applicant, the NACC took a reprisal against him.
  5. 5.3 of the policy on Assessment of Corruption Issues shows incompetence is pervasive in the NACC.
  6. Except so far as the offending conduct is attributable to gross incompetence, the NACC and/or its officers acted with criminal purpose in producing the 12 Dec 2023 response to the Applicant.
  7. Information about the NACC’s 12 Dec 2023 response to the Applicant is information about “governments and political matters” in meaning of Nationwide News Pty Ltd v Wills.
  8. The freedom of the Australian people to discuss governments and political matters circumscribes the legislative powers conferred on the Parliament by the Constitution; any restrictions on freedom of discussion must be appropriate and adapted to the fulfilment of that purpose.
  9. The judiciary must ensure the government is accountable to the people of this country and the executive branch of government carries out its functions in accordance with the law. The executive (and legislature) must know if it fails to meet its obligations there will be remedy against it.
  10. In determining whether to make any order, the Court must have regard to the primacy of the free communication and disclosure of information.

Section 47C of the FOI Act

  1. The FOI Guidelines at [6.55]12 don’t provide that “the only consideration is whether the document includes content of a specific type” and “no type of harm is required to result from disclosure”.

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  1. The FOI Guidelines at [6.22] don’t apply to deliberative matter per se (“exclusio alterius” also makes this list exhaustive).
  2. The NACC’s decision to refuse access to Document 3 pursuant to 47C(1) Freedom of Information Act 1982 is unreasonable.
  3. s.47C Freedom of Information Act 1982 impermissibly curtails common law freedoms communication.
  4. s.47C Freedom of Information Act 1982 impermissibly curtails a constitutional freedom of political communication.
  5. s.47E Freedom of Information Act 1982 impermissibly circumvents a constitutional requirement of responsible government.
  6. 47C(1) Freedom of Information Act 1982 must be read to exclude documents such as Document 3; or otherwise, s.47C Freedom of Information Act 1982 stands in excess of the legislative power of the Parliament.

Section 47E of the FOI Act

  1. The FOI Guidelines at [5.20] don’t apply to 47E(d) Freedom of Information Act 1982.
  2. The decision to refuse access to Document 3 pursuant to s.47E Freedom of Information Act 1982 (ostensibly) has nothing to do with a “taxation law” referred to in 6.91 of FOI Guidelines.
  3. The NACC’s decision to refuse access to Document 3 pursuant to s.47E Freedom of Information Act 1982 is unreasonable.
  4. s.47E Freedom of Information Act 1982 impermissibly curtails common law freedoms communication.
  5. s.47E Freedom of Information Act 1982 impermissibly curtails a constitutional freedom of political communication.
  6. s.47E Freedom of Information Act 1982 impermissibly circumvents a constitutional requirement of responsible government.
  7. s.47E Freedom of Information Act 1982 must be read to exclude documents such as Document 3; or otherwise, it stands in excess of the legislative power of the Parliament.

Section 47F of the FOI Act

  1. The FOI Guideline [6.143] doesn’t apply in assessment of whether a disclosure of information “might advance the public interest in government transparency and integrity”.

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  1. The NACC’s decision to refuse access to Document 3 pursuant to s.47F Freedom of Information Act 1982 is unreasonable.
  2. It is in the public interest that names of senior (e.g. EL2) NACC officers involved in producing the 12 Dec 2023 response to the Applicant be published (or otherwise made known/available to the public).
  3. 47F(2) Freedom of Information Act 1982 impermissibly curtails common law freedoms communication.
  4. 47F(2) Freedom of Information Act 1982 impermissibly curtails a constitutional freedom of political communication.
  5. 47F(3) Freedom of Information Act 1982 impermissibly curtails common law freedoms communication.
  6. 47F(3) Freedom of Information Act 1982 impermissibly curtails a constitutional freedom of political communication.
  7. 47F(3) Freedom of Information Act 1982 impermissibly circumvents a constitutional requirement of responsible government.
  8. Every person is a person entitled to carry on the occupation of social worker insofar as it involves “provision of care for the physical or mental health of people”
  9. 47F(5) Freedom of Information Act 1982 impermissibly curtails common law freedoms communication.
  10. 47F(5) Freedom of Information Act 1982 impermissibly curtails a constitutional freedom of political communication.
  11. 47F(5) Freedom of Information Act 1982 impermissibly circumvents a constitutional requirement of responsible government.
  12. 47F(1) Freedom of Information Act 1982 must be read to exclude documents such as Document 3; or otherwise, s.47F Freedom of Information Act 1982 stands in excess of the legislative power of the Parliament.

Section 93A of the FOI Act

  1. Together with the FOI Guidelines, 93A Freedom of Information Act 1982 impermissibly curtails common law freedoms communication.
  2. Together with the FOI Guidelines, 93A Freedom of Information Act 1982 impermissibly curtails a constitutional freedom of political communication.
  3. Together with the FOI Guidelines, 93A Freedom of Information Act 1982 impermissibly circumvents a constitutional requirement of responsible government.
  4. s.93A Freedom of Information Act 1982 stands in excess of the legislative power of the Parliament.

Unlawfulness

  1. The NACC’s refusal to give the Applicant access to Document 3 is unlawful because (inter alia) either:

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a. 47C(1), s.47E & 47F(1) Freedom of Information Act 1982 must be read to exclude documents such as Document 3, therefore the refusal is without lawful grounds; or,
b. The NACC’s refusal makes s.47C, s.47E, s.47F & s.93A Freedom of Information Act 1982 ultra vires the Constitution, therefore the refusal is without lawful grounds.

Remedy & Competence

  1. The Court may require the NACC give the Applicant access to Document 3 with writ of quo warranto; alternatively,
  2. The Court may require the NACC give the Applicant access to Document 3 with writ of mandamus.
  3. s.23 Federal Court of Australia Act 1976 empowers the Federal Court to issue writs of quo warranto.
  4. 39B(1) Judiciary Act 1903 empowers the Federal Court to issue writs of mandamus.
  5. 39B(1A) Judiciary Act 1903 empowers the Federal Court to adjudicate on questions of constitutional validity of Commonwealth legislation.

Costs

  1. The Respondent or his lawyer provided “legal services (or) related services” to the Applicant in giving him “bogus” advice. A party to a civil proceeding giving a counterparty bogus advice is dishonest, and therefore unlawful when done by a person to whom Public Service Act 1999 applies.
  2. 37N(4) Federal Court of Australia Act 1976 requires the court, in exercising the discretion to award costs, take account of the Respondent having acted unlawfully in the proceeding.
  3. 4.2 Legal Services Directions 2017 requires the Respondent pay costs if this proceeding is a “test case in the public interest”. This proceeding is a test case in the public interest.
  4. The Applicant seeks his costs, assessed otherwise than on an indemnity basis, in accordance with 37P(6) Federal Court of Australia Act 1976.

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