VID784/2024 – Kant – Submissions (25 November 2024)

Details of Filing

Document Lodged: Submissions
Court of Filing FEDERAL COURT OF AUSTRALIA (FCA)
Date of Lodgment: 25/11/2024 4:41:30 PM AEDT
Date Accepted for Filing: 26/11/2024 8:34:21 AM 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: 25 November 2024

Applicant’s Submissions in Reply
Procedural minutia &c.

  1. Paragraph [12] in the Respondent’s 22 Nov 2024 submissions is embarrassing.

Form 69

  1. The Respondent cites Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski) in support of his assertion that constitutional issues raised in the proceeding should be apparent from the originating application and points of claim. [14] Przybylowski concerned an application for orders under section 11(1) of Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act). Rule 31.01 requires an originating application for orders under section 11(1) of the AD(JR) Act be in accordance with Form 66.
  2. An originating application in Form 66 must include an applicant’s Grounds of application and reasons for grievance. The Applicant commenced this proceeding with an originating application in Form 69. The Grounds of application and reasons for grievance aren’t required in an originating application in Form 69.

Migration proceedings in the Federal Circuit Court

  1. The Respondent cites FEY17 v Minister for Home Affairs [2020] FCA 1014 (FEY17) in support of his suggestion that this application should be dismissed for want of particulars. [15] FEY17 is an appeal to the Federal Court of a decision of the Federal Circuit Court of Australia dismissing an application under 44.05 Federal Circuit Court Rules 2001 (as in force in 2020). 44.13 Federal Circuit Court Rules 2001 confirms the grounds of an application under 44.05 of those Rules must appear in the originating process.
  2. The Respondent also relies on FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950 (FKV17) at [45] to support his suggestion that this application should be dismissed for want of particulars. FKV17 was an application, for judicial review of judgement of the Federal Circuit Court, “dismissed with costs” in the Federal Court. The

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Full Court of the Federal Court subsequently set aside the order dismissing FKV17 (except costs) in FKV17 v Minister for Home Affairs [2022] FCAFC 93.

  1. The Federal Court affirming a decision to dismiss an application wanting in particulars doesn’t imply the Court can dismiss an application for lack of particulars when particulars aren’t required.

Pleadings

  1. The originating application was accompanied by an affidavit in accordance with subrules 8.05(2) and 8.05(4). By necessary implication of Rules 8.05(2), 16.31 & 31.11(1), a Respondent to an application for relief under section 39B of the Judiciary Act 1903 who requires pleadings or particulars [15,44,62,65] must apply for an order that the proceeding continues on pleadings.
  2. Pleadings weren’t filed in this proceeding; the Applicant’s submissions don’t expand a case (stated by him in pleadings which don’t exist). [84]

Affidavits & FOI Guidelines

  1. For reason of it being unfairly prejudicial to his case [13, 71, 72], the Applicant objects to use of pages 9 & 10 of “CAM-1” for purpose of assessing whether information in Document 3 is information of a kind to which freedoms of communication or requirements of responsible government apply.
  2. For the purposes of this proceeding, Document 3 contains information about the weighing and evaluation of information, and consideration of an appropriate course of action, with respect to a possible corruption issue disclosed to the Respondent by the Applicant on 14 Nov 2023.
  3. For reason of it being unfairly prejudicial to his case [13, 17 – 21, 28, 29], the Applicant objects to use of pages 221 through 260 of “CAM-5”.
  4. For the purposes of this proceeding, Version 1.3 of Part 6 of FOI Guidelines doesn’t exist and never existed. Paragraphs [20, 21, 25 – 27, 30 – 33] of the Respondent’s 22 Nov 2022 submissions must be struck out. Every reference to Part 6 of FOI Guidelines in the Respondent’s FOI decision is a reference to the same-numbered item of Version 1.4 of Part 6 of the FOI Guidelines reproduced in “JMK-7”.

Further hearings

  1. The originating application is to be determined on written submissions filed in accordance with orders made by Justice Horan on 20 Sep 2024. The Court taking further submissions in this matter [84] would be procedurally unfair.

Abuse of process &c.

  1. The Respondent seeks dismissal of this application to prevent the publication of opinion/reasoning (judicial and otherwise by consequence) with respect to:
    a. items 10 through 17 of the Applicant’s 21 Oct 2024 submissions; and,
    b. items 18 through 20 of the Applicant’s 21 Oct 2024 submissions, as relate to items 10 through 17 of those submissions

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  1. The Respondent seeking this application be dismissed (instead of it being determined on its merits) is:
    a. abuse of process; and,
    b. attempt to restrain political communication; and,
    c. attempt to restrain communication of a kind protected by s.71 of the Constitution; and
    d. dishonest according to the standards of ordinary people, and therefore unlawful when done by a person to whom Public Service Act 1999 applies.

Rights of Access and Communication

  1. A constitutional requirement of responsible government guarantees right of access to government documents. The Freedom of Information Act 1982 provides only an administrative framework for accessing documents to which constitutional right of access already applies. [56] The words “every person has a legally enforceable right” in 11(1) Freedom of Information Act 1982 are nugatory.
  2. Right of access to at least those government documents required to resolve justiciable controversies is guaranteed by Chapter III of the Constitution. A common law right of access [56] to every kind of document derives from Chapter III of the Constitution by effect of s.80 Judiciary Act 1903.
  3. The common law freedoms of communication which the applicant asserts are curtailed [44] are those discussed in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (AG(SA)). AG(SA) appears in the Applicant’s 21 Oct 2024 List of Authorities. The Applicant served the List of Authorities together with his 21 Oct 2024 Submissions.
  4. Legislative power is conferred on the Parliament [65.2] “subject to (the) Constitution”, including the implicit provisions of the Constitution.

Remedy

  1. A person who fails to prove, on quo warranto, his authority to make a particular decision (or engage in particular conduct) must not make the decision (or engage in the conduct). [67] The Respondent failing to prove his authority to withhold Document 3 would require him to release it.
  2. A writ of quo warranto need not (necessarily) issue before a Respondent is required to prove in Court his authority to make a particular decision (or engage in particular conduct); it may issue upon judicial determination of a matter and function not unlike writs of mandamus or prohibition. [67] An order in nature of quo warranto can be made like any order of the Court.
  3. Mandamus is an order compelling or directing a lower court or administrative decision maker to perform mandatory duties correctly. A peremptory mandamus commands performance of the duty which was the subject of (a writ of mandamus) but remains unperformed9. [68]

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  1. A writ or order in nature of certiorari, [68,69] or otherwise allowing the Respondent to again decide on the release of Document 3, isn’t sought by the Applicant and wouldn’t be appropriate.
  2. As the Applicant made known at the 20 Sep 2024 case management hearing, the Information Commissioner is (generally) incompetent to provide remedy in this matter. [75] The Applicant would also be unable to appeal (to this or any other court) from a decision of the Administrative Appeals Tribunal [76] on a question of law; this would constitute a human rights violation. A more satisfactory or convenient remedy is not available. [75,77]

Costs

  1. The Respondent should pay the Applicant’s costs regardless of whether the Applicant succeeds. [78] This is especially true if the Court accepts assertions that the FOI Officer referring to incorrect paragraphs of FOI Guidelines in his decision statement doesn’t make it unlawful [20, 21, 28, 33].
  2. It is in the public interest that questions of constitutional validity of legislation be adjudicated upon. [79] This is true even if the constitutional validity of impugned legislation is confirmed.
  3. It is in the public interest that the executive (and legislature) is held accountable for its conduct and decisions, and made to carry out its functions in accordance with the law. [79] This includes determining what practices of the executive (or legislature) are lawful.
  4. The Court “must take account” of the Respondent and/or his lawyer having acted unlawfully; accordingly, the Applicant seeks costs awarded against the Respondent (and/or his lawyer) on punitive/exemplary bases. [81, 82]
  5. The Court may order more than $50,000.00 in costs [83] against the Respondent.

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