Panesar v Attorney-General (Cth) - Constitutional Law Appeal on Mutual Assistance Evidence Jurisdiction

Original Word Document (119.8 KB) Federal Court of Australia

Panesar v Attorney-General (Cth) [2026] FCAFC 46

| Appeal from: | | Panesar v Attorney-General (Cth) [2025] FCA 477 | |
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| File number: | WAD 185 of 2025 | | |
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| Judgment of: | MOSHINSKY, SARAH C DERRINGTON AND STELLIOS JJ | | |
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| Date of judgment: | 15 April 2026 | | |
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| Catchwords: | CONSTITUTIONAL LAW – whether primary judge erred in finding there was a “matter” – whether there was a justiciable controversy between the parties – where appellant sought declaration that Australian officials had not consented to use of evidence obtained for specified purpose – where evidence obtained and provided to United Kingdom officials under Mutual Assistance in Criminal Matters Act 1987 (Cth) – where concurrent criminal proceeding in United Kingdom | | |
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| Legislation: | Constitution, ss 75, 76, 77

Acts Interpretation Act 1901 (Cth), s 2B

Foreign States Immunities Act 1985 (Cth), ss 9, 10

Judiciary Act 1 903 (Cth), ss 39B(1A), 78B

Mutual Assistance in Criminal Matters Act 1987 (Cth), ss 5, 7, 9, 11, 13, 13A, 13AB, 15, 15B, 15CA, 15CC, 15D, 26, 27, 28B, 34, 34J, 38C, 38ZA

Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth)

Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, done at Canberra on 6 February 1997 | | |
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| Cases cited: | AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512; [2023] HCA 26

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10

E dwards v Santos Ltd (2011) 242 CLR 421; [2011] HCA 8

Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519; [2022] HCA 5

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53

Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16

Samsonidis v Commissioner, Australian Federal Police (2007) 163 FCR 111; [2007] FCAFC 159

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11 | | |
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| Division: | General Division | | |
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| Registry: | Western Australia | | |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights | | |
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| Number of paragraphs: | 63 | | |
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| Date of hearing: | 19 November 2025 | | |
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| Counsel for the Appellant: | Mr AP Young KC with Mr J McComish | | |
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| Solicitor for the Appellant: | K&L Gates | | |
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| Counsel for the Respondent: | Mr EM Heenan SC with Ms NA Wootton and Mr SR Pack | | |
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| Solicitor for the Respondent: | Australian Government Solicitor | | |
ORDERS

| | | WAD 185 of 2025 |
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| BETWEEN: | SANJAY SUNDEEP SINGH PANESAR

Appellant | |
| AND: | ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Respondent | |

| order made by: | MOSHINSKY, SARAH C DERRINGTON AND STELLIOS JJ |
| DATE OF ORDER: | 15 APRIL 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs in an amount to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1 The issue to be considered in these reasons concerns whether the Court had jurisdiction to hear and determine the proceeding at first instance.

2 Before the primary judge, the appellant, Mr Sanjay Sundeep Singh Panesar, sought declarations against the respondent, the Attorney-General of the Commonwealth of Australia, relating to the lawful use, by the Crown Prosecution Service of England and Wales (CPS), of materials that were sent by the Department of the Attorney-General of the Commonwealth of Australia to the Home Office of the United Kingdom of Great Britain and Northern Ireland (UK Home Office). It was contended that the use and intended use of the materials in the CPS’s prosecution of Mr Panesar in the Southwark Crown Court were contrary to the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Mutual Assistance Act). That contention was premised on the proposition that s 7 of the Mutual Assistance Act operated to give the force of law in Australia to Art 7(3) of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, done at Canberra on 6 February 1997 (Mutual Assistance Treaty or Treaty).

3 Mr Panesar appeals on the grounds that the primary judge erred in:

(1) finding that the Mutual Assistance Act and the Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth) (Mutual Assistance Regulations or Regulations) did not give Art 7(3) of the Mutual Assistance Treaty the force of law in Australia (Ground 1);

(2) declining to find that the permitted uses of the documents and information provided by the Department to United Kingdom authorities were limited in accordance with Art 7(3) of the Mutual Assistance Treaty by reason of the terms of correspondence between those authorities on 18 November 2010, 9 December 2010 and 23 March 2011 (Ground 2); and

(3) declining to grant declaratory relief (Ground 3).

4 The Attorney-General has filed a notice of contention contending that the application before the primary judge should have been dismissed on the basis that the Court did not have jurisdiction to determine the application because the application did not give rise to a “matter” within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth). A notice of a constitutional matter under s 78B of the Judiciary Act was issued to the Attorneys-General of the Commonwealth, States and Territories on 9 July 2025. None of the other Attorneys-General has decided to intervene in this appeal.

5 For the reasons which follow, we are satisfied that the appeal should be dismissed on the basis that the primary judge did not have jurisdiction to hear and determine the application.

Background

6 The background is outlined in detail at [17]-[34] of the primary judgment (PJ). In short, Mr Panesar is the subject of a criminal prosecution (UK t rial) brought by the CPS. Some of the evidence which the CPS intends to use in the UK trial was obtained with the assistance of Australian authorities in 2010 and 2011 pursuant to the Mutual Assistance Act and Mutual Assistance Treaty. Mr Panesar has challenged the admissibility of that evidence in the UK trial on the ground that it cannot be established that no restriction was placed on the use of the evidence by the Department when it was provided to the UK Home Office.

Chronology of the original request for assistance

7 On 18 November 2010, the CPS wrote to the Department requesting assistance obtaining documents from Westpac Banking Corporation and Technocash Pty Ltd in relation to an investigation named “Operation Centrum”. That letter identified that the purpose of the request was to obtain evidence “for use in the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceedings related thereto) [of] the following [17 individuals identified in a table]”. The letter identified (in Annex A) a list of further suspects. Under the heading “Summary of the Case”, the letter also included a list of 14 companies whose directors were suspected of being involved in the offending. Mr Panesar was not identified in the letter or in Annex A.

8 The letter also contained the following proviso:

Unless you indicate otherwise, any evidence obtained pursuant to this request may be used in any criminal prosecution or other judicial proceedings arising from this investigation, including any restraint or confiscation proceedings, whether relating to the above named subject(s) or to any other person who may become a subject of this investigation.

9 On 2 December 2010, the Minister for Justice of the Commonwealth of Australia issued two authorisations under s 15 of the Mutual Assistance Act authorising the making of applications for search warrants in respect of each of Westpac and Technocash.

10 On 9 December 2010, the CPS sent a further letter requesting that two further “companies”, one of which was Anami Law LLP (which the primary judge inferred was a limited liability partnership), be included in the list of companies whose directors were suspected to be involved in the offending. The letter indicated that Mr Panesar and two other individuals were signatories to a bank account in the name of Anami Law. The letter also included a proviso in identical terms to that extracted above at [8].

11 On 7 January 2011, the Minister for Justice issued a further authorisation under s 15 of the Mutual Assistance Act authorising the making of applications for additional search warrants in respect of Technocash, in part due to Technocash having relocated to a new address and in part due to the letter of 9 December 2010. The authorisation identified the records sought as those “relevant to the investigation of Avtar Singh Hare and others (known as Operation Centrum)”, and identified Mr Panesar in the list of individuals and entities to whom records might relate. The covering memorandum to the Minister noted:

UK authorities have recently obtained bank records that disclose the transmission of money from Technocash to bank accounts in the name of two additional businesses that UK authorities believe are controlled by the main suspect, Avtar Singh Hare, and his associates. The entities, Anami Asset Management Ltd and Anami Law LLP, and a signatory to one of the accounts, Sanjay Panesar, have been added to the entities and individuals listed in the revised authorisation for Operation Centrum. As previously advised, the individuals and entities named in the authorisations are the subjects of the UK investigations.

12 The Australian Federal Police (AFP) obtained a warrant under s 38C of the Mutual Assistance Act on 10 January 2011 and executed it on Technocash on 14 January 2011.

13 On 18 January 2011 an officer of the Department signed a direction under s 38ZA of the Mutual Assistance Act requiring the AFP to provide the seized material from Technocash to the Department.

14 On 23 March 2011 the Department wrote to the UK Home Office enclosing the material seized from Technocash. The letter stated:

Please note that the enclosed material should not be used for any purpose other than that stated in the request without prior consultation with this Department.

15 Similar steps were taken in relation to Westpac. Australian authorities took no further formal steps thereafter under the Mutual Assistance Act.

Correspondence between the CPS and the Department about Mr Panesar’s challenge to admissibility of the evidence

16 On 14 April 2025, the CPS wrote to the Department outlining Mr Panesar’s challenge to the use in the UK trial of the evidence obtained by Australian authorities from Technocash and seeking to clarify whether the Department’s statement in the letter of 23 March 2011 would restrict the use of that material by United Kingdom authorities, and if there was such a restriction, requesting that the Department consider permitting that use.

17 On 15 April 2025, the Department indicated to the CPS that it was of the view that: (a) the statement in the letter of 23 March 2011 was consistent with Art 7(3) of the Mutual Assistance Treaty; (b) accordingly, the question as to whether the provided material could be used in the criminal proceeding was a question as to whether the prosecution arose from Operation Centrum; and (c) such a question was a matter for United Kingdom authorities to determine.

18 On 16 April 2025, the CPS indicated to the Department that they were firmly of the view that the criminal prosecution arose from Operation Centrum. The letter nonetheless requested the Department’s explicit consent to the use of the material obtained from Technocash for the prosecution. The following day, the Department wrote to the CPS reaffirming the Department’s position in its letter of 15 April 2025 and stated:

Notwithstanding [the position expressed in the 15 April 2025 letter], I confirm that Australian authorities consent to the use of the material as proposed in your correspondence.

The UK trial

19 In the transcript of the UK trial in the Crown Court on 16 April 2025, his Honour Judge Bartle KC expressed the tentative view that, while he would not be bound by a declaration of an Australian court as to the admissibility of the evidence obtained by Australian authorities from Technocash, “the effect of any decision in Australia will be something which will have a profound effect, I anticipate, in relation to this case”. His Honour was persuaded to defer ruling on the admissibility of the material until a decision was made by a court in Australia. When the matter came before the primary judge, the UK trial had commenced on 22 April 2025 and was expected to be completed on 9 or 16 May 2025.

20 On 7 May 2025, the original jury for the UK trial was discharged. Mr Panesar currently awaits retrial. The parties jointly informed this Court, by email dated 11 December 2025, that a preparatory hearing in the retrial is presently scheduled for March or April 2026 with Mr Panesar’s retrial to now commence on 11 May 2026.

Relief sought from the primary judge

21 The terms of the declaratory relief sought before the primary judge will become important to our reasons below. The relief sought in the amended originating application was in the following terms:

1. By reason of Article 7(3) of the [Mutual Assistance Treaty], referred to in Schedule 1 to the [Mutual Assistance Regulations], the only authorised and lawful purposes for which the documents provided by the Respondent’s Department to the Home Office of the United Kingdom on 23 March 2011 (pursuant to requests made by the United Kingdom on 18 November 2010 and 9 December 2010 to which the Respondent’s Department replied on 23 March 2011) may be used were and are limited to the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceeding related thereto) in the United Kingdom of the following natural persons: [there followed a list of the 17 persons identified in the table to the CPS letter of 18 November 2010].

Together with the following companies: [there followed the names of the two companies referred to in the CPS letter of 9 December 2010].

1A.    Given that United Kingdom authorities used the evidence and information, referred to in paragraph 1 above, for the purposes of investigating and prosecuting [Mr Panesar] without the Australian authorities’ consent from at least 2012:

(a)    the United Kingdom authorities did not have and cannot now obtain the Australian authorities’ “prior consent” within the meaning of Article 7(3) of the [Mutual Assistance Treaty]; and,

(b)    the United Kingdom authorities’ letters to officers of the Respondent’s Department, dated 14 April 2025 … and 16 April 2025 …, were incapable of eliciting the requisite prior consent for that use.

The primary judgment

22 The proceeding came before the primary judge as duty judge. In seeking declarations, Mr Panesar contended that, under Australian municipal law, the United Kingdom authorities are not permitted to use the materials for a purpose which was not stated in the request to the Department without Australia’s prior consent, and that Australia’s prior consent was not obtained to use the materials for the purpose of the investigation and UK trial.

23 The primary judge concluded that:

(1) “[Mr Panesar’s] claim raises a justiciable controversy and meets the description of a ‘matter’ in s 39B(1A)(c) of the Judiciary Act. The Court has jurisdiction to adjudicate upon [Mr Panesar’s] claim”: PJ at [79].

(2) “Art 7(3) of the [Mutual Assistance Treaty] is not incorporated into Australian municipal law as a law imposing an obligation on the United Kingdom, when it is the Requesting Party, not to use evidence or information obtained as a result of a request for purposes other than those stated in the request without the prior consent of Australia, as the Requested Party. Likewise, there is no provision of the Mutual Assistance Act, as applied to the United Kingdom subject to the limitations, conditions, exclusions and qualifications in the [Treaty], by which a duty, liability or obligation is imposed on the United Kingdom. There is also no duty, liability or obligation imposed on the United Kingdom under the [Mutual Assistance] Act to comply with a condition determined by the Attorney-General not to use material sent to the United Kingdom as a result of a request for a purpose other than that stated in the request without the prior consent of Australia, or the Attorney-General or the Department”: PJ at [129]; see also PJ at [6].

(3) It was unnecessary to construe the correspondence between the Department and the CPS and, indeed, “it would be inappropriate to do so, even for the sake of completeness, in the circumstances of this case as it would require the Court to sit in judgment upon the lawfulness of acts of the United Kingdom carried out in the territory of that sovereign State”: PJ at [7].

Legislative framework

Mutual Assistance Act

24 The questions in this appeal require consideration of provisions of the Mutual Assistance Act. The objects of the Mutual Assistance Act include “to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act”: s 5(a).

25 That stated object is put into effect, in part, by the request process identified in s 11. Subsection 11(1) provides:

11 Request by foreign country

(1)    A request by a foreign country for international assistance in a criminal matter may be made to the Attorney-General or a person authorised by the Attorney-General, in writing, to receive requests by foreign countries under this Act.

26 A request must be in writing and must include or be accompanied by certain information, although a failure to comply with that requirement is not a ground for refusing the request: s 11(2). Section 9 provides that:

9 Assistance may be provided subject to conditions

Assistance under this Act may be provided to a foreign country subject to such conditions as the Attorney-General determines.

27 Provisions of the Mutual Assistance Act in relation to requests for assistance by foreign countries include: ss 13 to 13AB (requests by foreign countries for the taking of evidence or the production of documents); s 13A (requests by foreign countries for provision of material lawfully obtained); s 15 (requests by foreign countries for search and seizure); s 15B (requests by foreign countries for stored communications); s 15CA (requests by foreign countries for surveillance devices); s 15CC (requests by foreign countries for assistance in relation to data held in computers); s 15D (requests by foreign countries for telecommunications data); s 26 (requests for giving of evidence at hearings in foreign countries); s 27 (requests for assistance in relation to investigations in foreign countries); s 28B (requests by foreign countries for forensic procedures); s 34 (requests for enforcement of foreign orders); and s 34J (requests for restraining orders relating to foreign criminal proceedings). Other provisions of the Mutual Assistance Act regulate, control or facilitate the operation of those request mechanisms. Some of those provisions were relevant to the circumstances leading to the proceeding before the primary judge, but none are directly relevant to the determination of the issues at first instance or on appeal.

28 The operation of the Mutual Assistance Act can be affected by the entry by Australia into a mutual assistance treaty with another country or other countries. The process by which a treaty might affect the Act is prescribed by s 7 of the Mutual Assistance Act, which relevantly provides:

7 Application of Act

(1)    Subject to this section, this Act applies to all foreign countries.

(2)    The regulations may provide that this Act applies to a foreign country subject to:

(a)    any mutual assistance treaty between that country and Australia that is referred to in the regulations; …

(3)    If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then

(a)    if the treaty relates wholly to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or

(b)    if the treaty relates in part to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.

29 The United Kingdom comes within the expression “foreign country” as used in s 7 because it is a country “outside Australia and the external Territories”: see Acts Interpretation Act 1901 (Cth), s 2B. Made pursuant to s 7(2) of the Mutual Assistance Act, reg 3 of the Mutual Assistance Regulations provides:

3 Application of Act

The Mutual Assistance in Criminal Matters Act 1987 applies to the United Kingdom subject to the Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, done at Canberra on 6 February 1997, a copy of the text of which is set out in Schedule 1.

30 The primary judge appeared to assume that s 7(3)(b) of the Mutual Assistance Act was applicable in the circumstances of this case. On the other hand, the parties at the hearing of the appeal were in agreement that s 7(3)(a) was the applicable paragraph. Which paragraph is applicable is of no consequence because the relevant conditions for their operation are the same. For convenience, we will assume that the parties are correct that s 7(3)(a) applies.

Mutual Assistance Treaty

31 The preamble to the Mutual Assistance Treaty states that, in agreeing to the terms of the Treaty, the parties were “[desiring] to provide the widest measure of mutual assistance in the investigation, restraint and confiscation of the proceeds and instruments of crime”.

32 Article 1(1) of the Mutual Assistance Treaty provides:

The Parties shall, in accordance with this Agreement, grant to each other assistance in the investigation, restraint and confiscation of the proceeds and instruments of crime.

33 Requests for assistance under the Treaty are made through the “central authorities” of the parties: the Home Office is the United Kingdom’s central authority and the Department is identified as the central authority in Australia: Art 3(1) and (2). Article 4 of the Mutual Assistance Treaty prescribes the form and content of requests. Article 5(1) provides that “[a] request shall be executed as permitted by and in accordance with the domestic law of the Requested Party and, to the extent not incompatible with such law, in accordance with any requirements specified in the request”.

34 Mr Panesar relies upon Art 7(3), which provides:

The Requesting Party shall not use for purposes other than those stated in a request evidence or information obtained as a result of it, without the prior consent of the Requested Party.

35 We will return to Mr Panesar’s contentions in relation to the operation of Art 7(3).

Did the primary judge have jurisdiction to grant the relief sought?

36 “All courts have the duty and the authority to consider and decide whether a claim or application brought before the court is within its jurisdiction”: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512; [2023] HCA 26 at 3. By her notice of contention, the Attorney-General contends that the primary judge erred in concluding that the Court had jurisdiction. For the following reasons, we consider that the Court did not have jurisdiction to determine Mr Panesar’s application for relief.

The primary judge’s reasons on jurisdiction

37 The primary judge concluded that the Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act to hear and determine the application for relief. That provision confers on the Court original jurisdiction in any “matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. Subsection 77(i) of the Constitution, when read with the subject matter identified in s 76(ii) (“arising under any laws made by the Parliament”), is the constitutional source of the power supporting the enactment of s 39B(1A)(c). The conferral of jurisdiction pursuant to s 77(i) is circumscribed by the constitutional requirement that there be a “matter”. Accordingly, there must be a “matter” before the Court for it to exercise jurisdiction under s 39B(1A)(c) of the Judiciary Act.

38 In a carefully considered judgment, the primary judge’s reasons involved a number of propositions and conclusions. It is necessary to set them out at some length:

(1) “[T]he question as to whether [Mr Panesar’s] claim meets the description of a ‘matter … arising under a law of the Parliament’ is answered by reference to the applicant’s assertions, not by reference to the merits of his substantive claim. It is sufficient that the claim be genuinely in controversy and that it give rise to an issue capable of judicial determination”: PJ at [58].

(2) “Self-evidently, the claim does not involve any right, obligation, liability or duty of [Mr Panesar] arising out of the Mutual Assistance Act and … Regulations. Nonetheless, the claim could be characterised as involving an obligation of the United Kingdom and a corresponding right of Australia that relevant documents not be used for a purpose other than that stated in the request without Australia’s prior consent. That is not an abstract question because it involves the legal effect of acts that have taken place. … Further, there is no general proposition that the immediate right, duty or liability to be established by the determination of the Court must be a right, duty or liability in which the opposing parties have correlative interests: Re McBain [ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16] at 67. However, in the context of [Mr Panesar’s] claim in this proceeding, identification of an asserted obligation of the United Kingdom arising under the Mutual Assistance Act and … Regulations is necessary, but not sufficient, to establish the existence of a matter”: PJ at [60].

(3) “A bare declaration with no foreseeable consequences is so divorced from the administration of the law that it does not involve a matter for the purposes of Ch III of the Constitution: Truth About Motorways [Pty Ltd v Macquarie I nfras tru cture Investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11] at [48], 52”: PJ at [61].

(4) “Where a declaration is sought in a proceeding it is the foreseeable consequences of that declaration for the whole controversy that must be considered not only the consequences for the parties directly concerned in the claim in which declaratory relief is sought. The whole controversy in this case may be taken to extend to the use by the CPS of the relevant documents in the United Kingdom and any restrictions placed on that use under the municipal law of the United Kingdom”: PJ at [66].

(5) “In this case, the United Kingdom (or Crown (UK)) is not a party to the proceeding. Nor could it be made a party because the United Kingdom, as a foreign State, is immune from the jurisdiction of the Court unless it were to submit to the jurisdiction: [ss] 9, 10 of the Foreign States Immunities Act 1985 (Cth). A declaration of the Court would be neither de jure nor de facto binding upon the United Kingdom. Accordingly, the declarations sought have no foreseeable consequence in terms of precluding the Crown (UK) from advancing a case in the Crown Court that is inconsistent with any declaration this Court may make in this proceeding against the Attorney-General. … Nonetheless, declarations of right may be made not only for the purpose of binding the parties to the proceeding, but also because the declaration has practica l consequences for the party seeking the declaration”: PJ at [68], [69].

(6) “In substance, in this proceeding, [Mr Panesar] seeks declaratory relief against the Attorney-General not for the legal or practical consequences that a declaration would have on the ability of the Crown (UK) to advance an argument contrary to the declaration in the Crown Court, but because of the practical consequences that a declaration of this Court may have in assisting [Mr Panesar] to meet the argument of the Crown (UK) and to advance his own case in that court”: PJ at [69].

(7) “[Mr Panesar] contends that he has a sufficient interest in the claimed declaratory relief because a declaration about the effect of Australian municipal law and asserted obligation of the United Kingdom under that law may have a bearing on the manner in which the Crown Court approaches the admissibility of the documents at his trial. He asserts that the Crown (UK) intends relying on communications from the Department in which the Department has expressed the view that the question as to whether the CPS may rely on the proviso in the criminal proceedings against [Mr Panesar], as a person not identified in the request as a subject of Operation Centrum, is whether the criminal prosecution of [Mr Panesar] arises or has arisen from the investigation known as Operation Centrum. Further, the Department has purported to give ‘consent’ to the use of the documents for investigating and prosecuting [Mr Panesar] after the fact. On that hypothesis, there would be practical utility in a court declaring the correct position as a matter of Australian law regarding the permitted use of the documents as, to the extent that it may be relevant to the Crown Court, a declaration of this Court is more authoritative of the effect of the letters of request as a matter of Australian municipal law than the views expressed by officers of the Department in correspondence with the CPS”: PJ at [70].

(8) “For the purpose of considering if there is a ‘matter’ and the Court has jurisdiction, it is not necessary to determine the merits of [Mr Panesar’s] contentions about the practical utility a declaration would have in the Crown Court. He asserts it would have that utility and there is no reason to consider that contention is colourable or hopeless. The declarations, if made, would bind the Attorney-General and, in those circumstances, it is highly unlikely that the Attorney-General would continue to maintain the position the Department has adopted in its communications with the CPS regarding the use to which the United Kingdom authorities may put the documents or that consent may now be given nunc pro tunc for past use of the documents without consent. In the circumstances, I am not persuaded that it is unarguable that the claimed declarations could not be made on the ground that to do so would be of no practical utility: see, e.g., Samsonidis [v Commissioner, Australian Federal Police (2007) 163 FCR 111; [2007] FCAFC 159] at [35]. Whether, of course, on the merits and in the exercise of the Court’s discretion it would be appropriate, in the circumstances, to do so is another matter”: PJ at [71].

(9) “For all the foregoing reasons, [Mr Panesar’s] claim raises a justiciable controversy and meets the description of a ‘matter’ in s 39B(1A)(c) of the Judiciary Act. The Court has jurisdiction to adjudicate upon [Mr Panesar’s] claim”: PJ at [79].

Consideration of jurisdiction

39 By her notice of contention, the Attorney-General contends that the Court lacks jurisdiction due to the absence of a “matter” within the meaning of s 39B(1A)(c) of the Judiciary Act. It is common ground that “matter” has the same meaning in that provision as it does in ss 75 and 76 of the Constitution.

40 The Attorney-General relies on the classic statement in Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920 (1921) 29 CLR 257; [1921] HCA 20 at 265, 266-267 that there can be no matter within the meaning of ss 75 and 76 of the Constitution unless “there is some immediate right, duty or liability to be established by the determination of the Court”; see also Hobart International Airport Pty Ltd v Clarence City Coun ci l (2022) 276 CLR 519; [2022] HCA 5 at [29].

41 The Attorney-General also relies on the established principle that the Court will not entertain “an abstract question of law not involving the right or duty of any body or person” nor make “a declaration of law divorced or dissociated from any attempt to administer it”: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53 at 303.

42 The Attorney-General submits that the primary judge correctly held (at [60]) that “[s]elf-evidently, the claim does not involve any right, obligation, liability or duty of [Mr Panesar] arising out of the Mutual Assistance Act [or the] … Regulations”. The Attorney-General submits, however, that the primary judge erred (at [60]) in stating that “[n]onetheless, the claim could be characterised as involving an obligation of the United Kingdom and a corresponding right of Australia that relevant documents not be used for a purpose other than that stated in the request without Australia’s prior consent”.

43 The Attorney-General submits that that statement involved three errors:

(1) First, the corollary of the primary judge’s acceptance that there was no right, duty or liability of Mr Panesar (or the Attorney-General) to be determined is that what was sought by Mr Panesar was an advisory opinion on the operation of the Treaty and the Regulations divorced from any attempt to administer them.

(2) Second, the characterisation of the claim as involving an “obligation” and a “corresponding right” did not take it outside the scope of the principles applicable to the question whether there exists a “matter” within the meaning of ss 75 and 76 of the Constitution.

(3) Third, that the immediate right, duty or liability need not be one in which the opposing parties have “correlative interests”, as his Honour observed at 60, is not to the point where there was no immediate right, duty or liability to be established at all.

44 The Attorney-General submits that, insofar as the primary judge reasoned (at [65]) that the declaratory relief sought was analogous to a “construction summons” and that such a declaration may satisfy the description of “matter” if it has “foreseeable consequences for the parties” in the context of the “whole controversy”, the so-called “practical” or “foreseeable” consequences relied on by the primary judge (at [69]-[71]) do not satisfy the requirements for a “matter” in the absence of a justiciable controversy. The Attorney-General refers to AZC20 as illustrative of the point.

45 In his submissions in response, Mr Panesar submits that the primary judge was correct to have rejected the Attorney-General’s jurisdictional objection. Mr Panesar submits that the primary judge’s decision did not involve any of the three asserted errors. He submits that the relevant officers of the Department were expressly engaged in administering the Mutual Assistance Act and the Regulations as they applied to Mr Panesar, and that so much is made clear by the correspondence passing between the Australian and United Kingdom authorities in April 2025.

46 Mr Panesar submits that his complaint was not “divorced from any attempt to administer that law”; rather, it arose directly from what Mr Panesar says was the improper administration of that law by Australian officers, most obviously so far as it concerned the meaning of “prior consent”, and the sufficiency of any consent only subsequently given.

47 Mr Panesar submits that the second asserted error takes the matter no further. He submits that: the restriction on the unauthorised use of the requested materials without prior consent was imposed by Australian officers acting in accordance with Australian law; that engages the heartland of this Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act; that there may also be consequences of those restrictions under English law does not mean that the proper identification of the nature and quality of the restrictions was not a matter justiciable under Australian law.

48 Mr Panesar submits that the third asserted error is equally unavailing.

49 Mr Panesar also submits that AZC20 is distinguishable. He submits that, here, the jurisdiction of the Court was invoked for the purpose of obtaining declaratory relief about the lawfulness of the actual administration by Australian officers of Australian law (in a manner positively adverse to Mr Panesar’s interests) about the meaning of “prior consent”.

50 In our view, for the reasons that follow, there was no “matter” within the meaning of s 39B(1A)(c) of the Judiciary Act and therefore the Court did not have jurisdiction.

51 The real issue raised by Mr Panesar in his proceeding at first instance can be stated as follows: whether the CPS’s past and proposed use of the documents and information provided by Australia to the United Kingdom in 2010-2011 pursuant to the Treaty were and are permissible under Art 7(3) of the Treaty. This statement of the issue reflects the declarations that Mr Panesar sought in paragraphs 1 and 1A of his amended originating application (see [21] above).

52 Art 7(3) provides that the Requesting Party (here, the United Kingdom) shall not use for purposes other than those stated in a request evidence or information obtained as a result of the request without the prior consent of the Requested Party (here, Australia). Mr Panesar’s contention, in summary, was that the United Kingdom requested the documents and information for the purpose of investigation and any subsequent prosecution of the 17 individuals named in the 18 November 2010 letter and the two companies identified in the 9 December 2010 letter (and thus, not for the purpose of investigation or prosecution of Mr Panesar). Mr Panesar further contends that, insofar as it might be said that Australia consented (in 2025) to the use of the documents and information for a wider purpose (including investigation and prosecution of Mr Panesar) that did not constitute “prior consent” as required by Art 7(3).

53 The fundamental difficulty for Mr Panesar (in relation to the “matter” issue) is that the issue outlined above is concerned with the interpretation and application of the Treaty, which is an agreement between the Governments of Australia and the United Kingdom. It follows that the resolution of that issue would not involve the establishment of any right, duty or liability of Mr Panesar. The determination would be an advisory opinion about the meaning and application of the Treaty.

54 If and to the extent that Mr Panesar contends that, through the letters sent in 2025, the Department adopted a particular position or stance on the interpretation and application of the Treaty, and Mr Panesar wishes to challenge that position or stance, this contention does not take matters any further. The issue remains one concerning the application and interpretation of the Treaty. As stated above, the determination of that issue would be an advisory opinion.

55 It may be that the issue raised by Mr Panesar by his proceeding at first instance could be framed differently as follows: whether the CPS’s past and proposed use of the documents and information provided by Australia to the United Kingdom in 2010-2011 pursuant to the Treaty were and are permissible under Australian municipal law (namely, the Mutual Assistance Act and the Regulations). While this way of framing the issue does not reflect the terms of the declarations sought, it does reflect some of Mr Panesar’s submissions. Part of Mr Panesar’s case is that the provisions of the Treaty form part of Australian municipal law.

56 However, even if the issue were reframed in that way, it would not overcome the difficulties for Mr Panesar in relation to the “matter” issue. The parties to the proceeding at first instance were Mr Panesar and the Attorney-General (of the Commonwealth of Australia). It is not apparent that there was any real controversy between Mr Panesar and the Attorney-General about the issue as so reframed. The issue whether the CPS’s past and proposed conduct was and is permissible under Australian municipal law is really one between Mr Panesar and the CPS; however, the CPS was not joined as a party to the proceeding at first instance. For these reasons, even if the issue is reframed as indicated above, there is no real controversy between the parties and therefore no “matter”.

57 Mr Panesar submits that the issue raised for determination concerned the administration of Australian municipal law by the Department, and thus that there is a justiciable controversy between him and the Attorney-General. Mr Panesar objects to the position or stance taken by the Department in the 2025 correspondence with the United Kingdom authorities. However, in both form and substance, the correspondence concerns the meaning and application of the Treaty rather than any provision of Australian municipal law. This takes one back to the problem discussed earlier: the Court is being asked by Mr Panesar to provide an opinion about the meaning and application of the Treaty in circumstances where Mr Panesar is not a party to, and has no enforceable rights under, the Treaty. Any such opinion would be advisory in nature.

58 In reaching the conclusion that the Court had jurisdiction, the primary judge relied on Mr Panesar’s contentions (which the primary judge considered to be arguable) that a favourable determination would have the following foreseeable consequences:

(1) a declaration as to the effect of Australian law could have a bearing on the manner in which the UK Crown Court approaches the admissibility of the relevant documents at Mr Panesar’s trial (PJ at [69]-[70]); and

(2) if the declarations were made, it is “highly unlikely” that the Attorney-General would continue to maintain the position or stance that the Department adopted in its 2025 communications with the CPS (PJ at [71]).

59 However, even if it be accepted that either or both of these were foreseeable consequences of a determination of either or both of the issues identified above, they would not be enough to overcome the fundamental difficulties in relation to “matter” that have been set out above. In the face of those difficulties, the fact that a determination of the Court may have foreseeable consequences of the type outlined above is not sufficient to constitute a “matter”.

60 The three cases relied on by Mr Panesar in relation to foreseeable consequences (Hobart International Airport; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10; and Edwards v Santos Ltd (2011) 242 CLR 421; [2011] HCA 8) are each distinguishable. The possibility that a determination of this Court on the meaning and application of the Treaty may be influential (even very influential) in the resolution of admissibility issues in the UK trial, or may be influential (even very influential) on the position adopted by the Department about the meaning and application of the Treaty, does not give the applicant a sufficient interest comparable to that which existed in any of those cases.

61 For these reasons, we consider that the primary judge erred in concluding that the Court had jurisdiction. We therefore uphold the notice of contention.

Disposition

62 It follows that the appeal is to be dismissed. Given that we have concluded that the primary judge did not have jurisdiction to hear and determine the declaration application, it is not necessary to determine, and we do not consider it appropriate to determine, Grounds 1, 2 or 3.

63 There is no apparent reason why costs should not follow the event. We will therefore make an order that Mr Panesar pay the Attorney-General’s costs, to be agreed or assessed by a Registrar of the Court.

| I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Sarah C Derrington and Stellios. |
Associate:

Dated: 15 April 2026

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