P v Australian Crime Commission [2005] FCA 55 (8 February 2005)

Last Updated: 8 February 2005

FEDERAL COURT OF AUSTRALIA

P v Australian Crime Commission [2005] FCA 55

STATUTES – Australian Crime Commission Act 2002 (Cth) – validity of summons issued under s 28(1) – nature of power to issue summons – requirement for a valid summons – whether jurisdictional basis for summons required to be stated on its face


Australian Crime Commission Act 2002 (Cth) ss 7C, 24A, 28


X v Australian Crime Commission [2004] FCA 1475 applied
A v Boulton [2004] FCAFC 101; (2004) 207 ALR 342 cited
R v Romeo (1982) 30 SASR 243 cited
George v Rockett [1990] HCA 26; (1990) 170 CLR 104 cited
Ousley v R [1997] HCA 49; (1997) 192 CLR 69 applied
Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 cited
Barnes v Boulton [2004] FCA 1219 cited
National Crime Authority v A1 (1997) 75 FCR 274 cited
















P v AUSTRALIAN CRIME COMMISSION

No SAD 16 of 2005





FINN J
ADELAIDE
8 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 16 OF 2005

BETWEEN:	P APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The interim injunction of 1 February 2005 be dissolved.
2. The application be dismissed.
3. The applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 16 OF 2005

BETWEEN:	P APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT

JUDGE:	FINN J
DATE:	8 FEBRUARY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is yet another application testing the limits of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The hearing has been expedited. The applicant, to whom I will refer as "P", has been summoned under s 28(1) of the Act by an examiner to give evidence, to quote the summons, "in relation to your knowledge of and involvement in the illegal activities of [AB], [CD] and other members and associates of the [EF Club]".

2 The summons was issued for the purposes of a special Australian Crime Commission ("ACC") investigation which was authorised and determined by the Board of the ACC: see s 7C(1)(c) and (d) of the ACC Act; on 15 May 2003 for a period which was extended by a further authorisation and determination of 28 April 2004. The validity of the latter authorisation and determination is formally challenged in this proceeding, though it is conceded that the grounds of that challenge were rejected in my decision in X v Australian Crime Commission [2004] FCA 1475. For the reasons I gave in X, I uphold the validity of the amending authorisation and determination in this matter as well.

3 The burden of the present application is to have the summons that has been issued declared invalid. To appreciate the basis upon which invalidity is asserted it is necessary to refer both to the structure of the ACC Act and to the terms of the 2003 Authorisation and Determination.

The ACC Act

4 The ACC is a statutory corporation one of the functions of which is to investigate matters relating to "federally relevant criminal activities" when authorised so to do by the Board of the ACC. The Board, apart from authorising an investigation may determine that that investigation is a "special investigation": s 7C(1)(d). The significance of such a determination is that it triggers the ACC’s access to a range of statutorily conferred coercive powers one of which is to conduct an examination under s 24A of the Act. The Act provides for the appointment of examiners: see Part II, Division 3, Subdivision B; who may conduct an examination for the purposes of a special investigation.

5 Section 28 of the Act, which is of central importance in this proceeding, provides insofar as presently relevant that:

"(1) An examiner may summon a person to appear before the examiner at an examination to give evidence ...

(1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.

(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board ... or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC ... investigation to which the examination relates, it would prejudice the effectiveness of the special ACC ... investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC ... investigation.

...

(7) The powers conferred by this section are not exercisable except for the purposes of a special ACC ... investigation."

6 No particular form is specified in or under the Act with which a summons is required to comply.

7 When the Board of the ACC determines that an investigation is a special investigation, its determination must, as required by s 7C(4):

"(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and

(b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and

(c) set out the purpose of the operation or investigation."

The Determination

8 The title of the Determination made by the Board on 15 May 2003 was "Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003". The Determination (cl 3) defines "established criminal networks (ECNs)" to include:

"... a group or groups of two or more persons who are engaged in one or more of the activities described in Schedule 1 clause 3, and who:

(a) have a thorough understanding of law enforcement methodology and its limitations; or

(b) have access to law enforcement or regulatory information; or

(c) demonstrate the willingness and capacity to corrupt officials; or

(d) demonstrate the willingness and capacity to pervert the course of justice through the intimidation of witnesses and officials."

9 Schedule 1 to the Determination describes the investigation to be undertaken. Insofar as presently relevant, it provides:

"1. Investigation

An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, federally relevant criminal activity:

(a) was committed before the commencement of this Instrument; or

(b) was in the process of being committed on the commencement of this Instrument; or

(c) may in future be committed.

2. Circumstances

The general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, occurring are those implied from information available to Australian law enforcement agencies indicating that established criminal networks are involved in the following activities within Australia: the supply of illegal drugs; corruption and bribery of officials; perverting the course of justice; violence related offences; and securities market misconduct: emphasis added.

3. Allegations

The general nature of the allegations constituting federally relevant criminal activity that may have been, may be being, or may in future be, committed is that from 1 January 1990 certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the following activities": emphasis added.

There followed a list of thirty-two "activities".

The Summons

10 I merely repeat that the summons that was issued required P (insofar as presently relevant) –

"... to give evidence in relation to your knowledge of and involvement in the illegal activities of [AB], [CD] and other members and associates of the [EF Club]."

The Alleged Invalidity of the Summons

11 I should note at the outset that it has not been suggested (a) that the examiner was not, or could not properly have been, satisfied that it was reasonable in all the circumstances to issue this summons: cf s 28(1A) of the ACC Act; (b) that the summons was issued otherwise than for the purposes of the special investigation: cf s 28(7) of the Act; or (c) that the summons was not accompanied by a copy of the Board’s Determination: s 28(2); or did not set out, so far as reasonably practicable, the general nature of the matters in relation to which the examiner intended to question P: cf s 28(3).

12 In these circumstances it might well be said – properly in my view – that the application should be dismissed as (i) the power to issue the summons was an administrative power; (ii) all of the express jurisdictional or formal requirements have been complied with and (iii) the summons is to be "presumed valid until the ... decision [to issue it] is set aside in appropriate proceedings": Ousley v R [1997] HCA 49; (1997) 192 CLR 69 at 130; X v Australian Crime Commission, at [22].

13 Despite the above, it has been contended that the summons is invalid, not because the examiner was without power to issue a summons to P, but because it did not adequately disclose the jurisdictional basis for its issue. It is contended that the Determination authorised an investigation of a circumscribed character. That circumscription is to be found in cl 3 of Schedule 1 and it was the stipulation that "certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the [specified] activities". While the summons to P indicated it was intended to question him in relation to "his knowledge of and involvement in the illegal activities" of named and unnamed members and associates of a club, because of his alleged participation in those illegal activities and because of the circumscribed nature of the investigation, it failed to identify whether he was a "certain person" or an "other person". In so doing, it is said, it failed adequately to state its jurisdictional basis and it is to be inferred from the statute that such was required. The Act abrogates a witness’ privilege against self-incrimination: A v Boulton [2004] FCAFC 101; (2004) 207 ALR 342. Given that the summon relates to P’s own involvement in illegal activities, and because of that abrogation, he is entitled, it is said, to know the jurisdictional basis on which he has been summonsed. The summons is sufficiently analogous to a search warrant as to make the case law on warrants appropriate sources of principle in this matter. As the above contention reflects, reliance is placed in this regard on R v Romeo (1982) 30 SASR 243 at 245; George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111; Ousley v R [1997] HCA 49; (1997) 192 CLR 69 at 88-99; and Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361. I should also add that the principles of natural justice were invoked, albeit increasingly mutedly, to support the requirement that the jurisdictional basis of the summons be disclosed.

14 I mean no disrespect to counsel in setting out the applicant’s contention in short form. The primary answer to it lies in the construction of the ACC Act itself and can be equally shortly stated.

15 The issuing of a summons under the ACC Act is an administrative action which, in appropriate proceedings, is subject to judicial review: Ousley v R, at 130-131. The only jurisdictional precondition prescribed in the Act for the issue of a summons is that the examiner is satisfied that it is reasonable in all the circumstances to do so: s 28(1A). Though the examiner is obliged to record in writing the reasons for the issue of a summons, the person summonsed is not given a right to be provided with those reasons: Barnes v Boulton [2004] FCA 1219 at [22]- [29]. As I earlier noted, it is not alleged in this proceeding that the examiner did not have the satisfaction required by s 28(1A).

16 While the Act does not prescribe a form for summonses it imposes two stipulations in respect of them. The first is that it must be accompanied by a copy of the Board’s special investigation determination: s 28(2). This occurred in the instant case. The second is that, subject to a proviso relating to prejudicing the effectiveness of the investigation, the summons shall set out so far as is reasonably practicable "the general nature of the matters in relation to which the examiner intends to question the persons [summonsed]:" s 28(3). The present summons clearly satisfied this requirement. Together these requirements serve in a general way to inform a witness of the general nature of the investigation being undertaken and, though not exhaustively, of what that witness might expect by way of questioning. As such they serve in some degree natural justice purposes. While the former specifies the scope of the investigation for the purposes of which the summons has been issued, neither, in my view, is intended to serve the purpose of stating the actual jurisdictional basis of a summons as such.

17 Importantly, the s 28(3) requirement has a purpose far removed from what is implicit in the applicant’s challenge to the summons. Its function is to inform a witness as to the general matters on which it was intended he or she be questioned. In the present case it clearly informed P of this. In so doing it fulfilled its statutory purpose. And it had no other.

18 The summons disclosed on its face the matter it was required to disclose and it had appended to it what was required to be appended. The Act has not gone on to require further disclosure on the face of the summons. I can see no reason for the implication that any other matter must be disclosed as a prerequisite to the validity of the summons: Ousley v R at 82-83; 110-111; 128. There is a clear policy manifest in the Act to ensure the effectiveness of special investigations and to use generalised descriptions (s 7C(4)(a)), non-disclosure (s 28(3)) and imposed secrecy obligations to that end. Given the functions of the ACC, it is unsurprising that this is the case. However, it is that policy which tells strongly against any such implication as the applicant propounds.

19 I do not underestimate the significance that the statutory abrogation of the privilege against self incrimination may have, potentially, in erecting procedural fairness requirements for the conduct of an examination of a person where the relevant Act itself is silent about such requirements. For the reasons I have given, the text and structure of the ACC Act leave no part for that abrogation to play in prescribing requirements under the Act.

20 I would dismiss the application.

21 I should also indicate, though, that I do not agree with the circumscribed construction the applicant has sought to place upon the "allegations clause" (cl 3) of Schedule 1 to the Determination. That clause must be construed in the context both of the Determination to which it is scheduled and of clause 2. It is clear that the concern of the Determination and of the Schedules is with the activities of "Established Criminal Networks", a term defined in the Determination as I have earlier noted. The "certain persons/other persons" description in clause 3 is, in my view, properly to be construed as a reference to such networks. Its reference to "certain persons" in this context is not a limiting stipulation of particular named persons who have been the subject of allegations. Rather it is a statement of allegation that persons constituting an established criminal network have together, or in concert with another or other persons, been engaged in, etc., in one or more of the criminal activities tabulated in the clause. So seen it delimits the types of person who are subject to investigation, i.e. persons in established criminal networks. It does not name any of them (though the names of some might well be known to the ACC), nor does it need to name them: National Crime Authority v A1 (1997) 75 FCR 274 at 289-290. Rather, the purpose of the investigation as revealed in the Determination is "to identify and apprehend persons" who have been or are involved in the federally relevant activities specified in clause 3.

22 I will order that the application be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn .

Associate:

Dated: 8 February 2005

Counsel for the Applicant:	Ms L Powell with Dr C Bleby
Solicitor for the Applicant:	Patsouris & Associates
Counsel for the Respondent:	Dr S Donaghue
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 February 2005
Date of Judgment:	8 February 2005