|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 19 February 2009
FEDERAL COURT OF AUSTRALIA
A. B. Pty Limited v Australian Crime Commission [2009] FCA 119
ADMINISTRATIVE LAW – notice served by Australian Crime Commission – notice requires production of documents – need for documents to be “specified” – ambit of power conferred – reasonableness of time permitted for production
STATUTES – statutory duty to record reasons
Acts Interpretation Act
1901 (Cth) s 25D
Administrative Decisions (Judicial Review) Act
1977 (Cth) ss 5(1)(d), 5(1)(e), 11, Sch 2(ea)
Australian Crime
Commission Act 2002 (Cth) ss 7A, 22, 29, 29A, 57
Australian
Securities and Investments Commission Act 2001 (Cth) ss
30–33
Bankruptcy Act 1966 (Cth) s 77C
Income Tax
Assessment Act 1936 (Cth) s 264
Trade Practices Act
1974 (Cth) s 155
A v Boulton [2004] FCAFC 101, 136 FCR 420,
cited
Adamson v Noall [1967] VR 105, cited
Barnes v Boulton
[2004] FCA 1219, 139 FCR 356, cited
Australian Securities Commission v
Lucas (1992) 36 FCR 165, cited
Butler v Board of Trade [1971] Ch
680, cited
CK Nominees Australia Pty Ltd v Official Receiver (WA)
[2007] FCAFC 118, 160 FCR 524, cited
Commissioner of Taxation v Citibank
Limited (1989) 20 FCR 403, cited
Deputy Commissioner of Taxation v
Ganke [1975] 1 NSWLR 252, cited
Elias v Pasmore [1934] 2 KB 164,
cited
Federal Commissioner of Taxation v Australia and New Zealand Banking
Group Ltd [1977] FCA 23; (1979) 143 CLR 499, cited
Fieldhouse v Commissioner of
Taxation (1989) 25 FCR 187, cited
F H Faulding & Co Ltd v
Commissioner of Taxation [1994] FCA 1492; (1994) 54 FCR 75, cited
G H Photography Pty
Ltd v McGarrigle [1974] 2 NSWLR 635, cited
Grant v Commissioner of
Taxation [2000] FCA 1383, 104 FCR 1, cited
Industrial Equity Ltd v
Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649, cited
The
Integrated Financial Group Pty Ltd v Australian Securities and Investments
Commission [2004] WASCA 213, 187 FLR 7, cited
Kennedy v Baker
[2004] FCA 562, 135 FCR 520, cited
O’Reilly v the Commissioners
of the State Bank of Victoria (1983) 153 CLR 1, cited
McCormack v
Commissioner of Taxation [2001] FCA 1700, 114 FCR 574, cited
McVey v
Commissioner of Pay-roll Tax (Vic) [1985] HCA 73; (1985) 85 ATC 4,131, cited
Minister
for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24,
cited
Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD
493, cited
Norwest Holst Ltd v Secretary of State for Trade [1978] Ch
201, cited
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57
FLR 368, cited
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983)
152 CLR 328, cited
S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357,
cited
Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner
of Taxation [1985] FCA 213; (1985) 6 FCR 356, cited
Telstra Corporation Ltd v
Australian Competition and Consumer Commission (No 2) [2007] FCA 493, 97 ALD
652, cited
X v Australian Crime Commission [2004] FCA 1475, 139 FCR
413, cited
Macquarie Dictionary (4th ed, 2005)
A. B. PTY LIMITED v AUSTRALIAN CRIME COMMISSION
AND ANOR
NSD 2011 of 2008
A.C. PTY LIMITED v AUSTRALIAN CRIME COMMISSION AND ANOR
NSD 2013
of 2008
FLICK J
19 FEBRUARY 2009
SYDNEY
THE COURT ORDERS THAT:
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
eSearch on the Court’s website.
|
IN THE FEDERAL COURT OF AUSTRALIA
|
|
|
NEW SOUTH WALES DISTRICT REGISTRY
|
NSD 2013 of 2008
|
|
BETWEEN:
|
A. C. PTY LIMITED
Applicant |
|
AND:
|
AUSTRALIAN CRIME COMMISSION
First Respondent G. E. SAGE
Second Respondent |
|
JUDGE:
|
FLICK J
|
|
DATE OF ORDER:
|
19 FEBRUARY 2009
|
|
WHERE MADE:
|
SYDNEY
|
THE COURT ORDERS THAT:
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
eSearch on the Court’s website.
|
BETWEEN:
|
A. B. PTY LIMITED
Applicant |
|
AND:
|
AUSTRALIAN CRIME COMMISSION
First Respondent G. E. SAGE
Second Respondent |
|
IN THE FEDERAL COURT OF AUSTRALIA
|
|
|
NEW SOUTH WALES DISTRICT REGISTRY
|
NSD 2013 of 2008
|
|
BETWEEN:
|
A. C. PTY LIMITED
Applicant |
|
AND:
|
AUSTRALIAN CRIME COMMISSION
First Respondent G. E. SAGE
Second Respondent |
|
JUDGE:
|
FLICK J
|
|
DATE:
|
19 FEBRUARY 2009
|
|
PLACE:
|
SYDNEY
|
REASONS FOR JUDGMENT
These two grounds invoke s 5(1)(d) and (e) respectively of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
(i) acted with some degree of promptitude after becoming aware that a notice had been served upon his client in obtaining the legal advice of both Junior and Senior Counsel; and
(ii) was otherwise unaware of the time within which an application was to be filed.
THE DECEMBER 2008 NOTICES
Electronic copies, or where they are not available, paper copies of ... * records containing the following information and the following documents:
i. Certificate of registration/incorporation;
ii. Register of members (shareholders);
iii. Register of directors;
iv. Register of Secretaries;
v. Share of allotment and share transfer journals;
vi. Share certificates;
vii. ASIC statutory returns
viii. All documents lodged with ASIC (where available);
ix. Minutes of general meetings;
x. Minutes of meetings of directors;
xi. Register of charges created by the company over company property; and
xii. Company seal.
* The term ... in this schedule includes all business units or subsidiary companies of ...
The only notation on the face of this notice, and each of the other notices issued pursuant to s 29, informing the person to whom it was given as to the purpose for which the notice was issued is the notation that the “Australian Crime Commission is conducting a special operation” and that an examiner whose signature is indecipherable states that he is “satisfied that it is reasonable in all the circumstances to do so” to require the production of the documents thereafter listed in the Schedule. The identity of the examiner is not otherwise stated — nor any means disclosed by which to establish his identity or even whether he has been properly appointed as an examiner. What the “special operation” is is also left without further elaboration. But the notice does disclose the detail that it was “(i)ssued at 11.32 hours on 8 December 2008”.
(i) a notice to be valid must identify the documents sought to be produced with a reasonable degree of particularity — and each of the notices lacked the requisite degree of particularity or specificity as required by s 29;
(ii) when making the decision to issue the notices, the examiner failed to take into account a relevant consideration — namely the relevance of the documents to the special operation being undertaken; and
(iii) a notice to be valid must permit a reasonable time within which the documents required to be produced may be collated and thereafter produced — the time permitted by the notices being said to be unreasonable.
The ambiguity and lack of precision in the terms employed in the notice was said by the Applicants to only compound the difficulties involved in complying with the notices within the times allowed. These submissions are probably quite discrete — if there is an ambiguity in the terms employed by a notice such that it cannot be said to be authorised by s 29, it would not matter how much time was allowed for compliance.
THE STATUTORY CONTEXT AND SECTION 29
The ACC has the following functions:
(a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;
(b) to undertake, when authorised by the Board, intelligence operations;
(c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;
(d) to provide reports to the Board on the outcomes of those operations or investigations;
(e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board;
(f) to provide advice to the Board on national criminal intelligence priorities;
(g) such other functions as are conferred on the ACC by other provisions of this Act or by any other Act.
Power to obtain documents
(1) An examiner may, by notice in writing served on a person, require the person:
(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and
(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.
(1A) Before issuing a notice 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 notice. The record is to be made:
(a) before the issue of the notice; or
(b) at the same time as the issue of the notice; or
(c) as soon as practicable after the issue of the notice.
(2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation.
(3) A person shall not refuse or fail to comply with a notice served on him or her under this section.
(3A) A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.
(3B) Notwithstanding that an offence against subsection (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(3C) Where, in accordance with subsection (3B), a court of summary jurisdiction convicts a person of an offence against subsection (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.
(4) Subsections 30(3) to (5) and (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner.
(5) A failure to comply with any of the following provisions does not affect the validity of a notice under subsection (1) of this section:
(a) subsection (1A) of this section, in so far as that subsection relates to the making of a record;
(b) section 29A, in so far as that section relates to a notice under subsection (1) of this section.
Provision is made in s 46B for the appointment of an “examiner” by the Governor-General. An examiner has, “in the performance of his or her functions ... the same protection and immunity as a Justice of the High Court”: s 36(1). Section 29 had as its counterpart s 29 in the National Crime Authority Act 1984 (Cth).
(a) an intelligence operation that the ACC is undertaking ...; or
(b) an investigation into matters relating to federally relevant criminal activity that the ACC is conducting ...
In addition to the power conferred by s 29, s 28 confers a power to summon witnesses and take evidence. Provision is also made for those circumstances where a witness fails to attend or fails to answer questions asked during an examination (s 30) and also for the issue of a warrant for the apprehension of a person (s 31).
Australia is a liberal democracy with a broad tradition of at least nominal resistance to encroachment upon established rights and freedoms. That view is reinforced by its adherence to the International Covenant on Civil and Political Rights, which relevantly provides in Art 17, inter alia, that:
“No-one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence ...”
The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected.
Legislation, it has been accepted, will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, “unless a legislative intent to do so clearly emerges, whether by express words or necessary implication”: A v Boulton [2004] FCAFC 101 at [54], [2004] FCAFC 101; 136 FCR 420 at 434 per Kenny J (Beaumont and Dowsett JJ agreeing).
[12] There are competing factors to be taken into account when considering the proper construction of s 264. On the one hand, it is to be remembered that the section interferes with a person’s freedom to elect not to provide information, whether it is to the revenue authorities or to a law enforcement agency. Not only is s 264 an interference with personal liberty, a refusal or failure to comply with s 264 is an offence, attracting a fine or even a term of imprisonment: see ss 8C, 8D and 8E of the Taxation Administration Act 1953 (Cth). On the other hand, the principal source of revenue for the Commonwealth is income tax. It is notorious that many and varied devices are employed to avoid the incidence of that tax. Sometimes, outright fraud is involved. For this reason the Parliament found it necessary to give the Commissioner power to make wide ranging enquiries to investigate whether tax is due. In these circumstances, the Court should proceed on the footing that the intention was to give the Commissioner an effective, but not an oppressive or unfair, power of investigation.
There are like “competing factors” to be taken into account in the present statutory context. Lord Denning MR observed that “[i]n a wicked world, it not unknown for books and papers to be destroyed or lost”: Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201 at 224. That was in 1978. The world is now even more “wicked” — and even less safe.
Insofar as the last proposition is concerned, it may be noted that the introductory words to the notice are as follows:
Electronic copies, or where they are not available, paper copies of ... records containing the following information and the following documents ...
Those appearing for the Commission accepted that there would be compliance with the present notices if there were produced “electronic copies” of the documents thereafter mentioned. The notices would not require “electronic copies” to be generated if they otherwise were not within the possession or control of the Applicants. It was also accepted by the Commission that if there were no such “electronic copies” and there were not available “paper copies” of those documents, the notices similarly would not require the person served to go away and produce a paper copy such that it could thereafter be produced in compliance with the notices. The Commission reserved its position as to whether s 29 could in other cases be invoked to impose an obligation to produce a “document or thing” not otherwise presently in existence.
UNCERTAINTY
Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd v Buckingham County Council ( [1961] AC 636): “If it is impossible, on construction of the condition, to reach a conclusion as to what was in the craftsman's mind, the condition is meaningless and must be read as pro non scripto It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause” ([1961] AC at 670).
Their Honours further observed at 375:
The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.
On appeal, the decision was affirmed: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328. See also: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [36] to [43], 97 ALD 652 at 660 to 662 per Bennett J. Each statutory provision, of course, presents its own potential difficulties in construction. Section 155, for example, employs the language of “information” (Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 at [18], [2004] FCAFC 267; 140 FCR 170 at 175 to 176 per Tamberlin J) — a term less certain in meaning than a “document”.
It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty.
The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner’s powers. To so hold would be to impose an impossible burden on the Commissioner.
A notice which is valid under s 264 may thus be “of considerable breadth”: Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 193 per Hill J. His Honour there further observed that the validity of a notice should not be “approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it”: (1989) 25 FCR 187 at 208.
[39] The appellant made a subsidiary submission that the notice was not reasonably clear about what documents were required. The submission centred on the expression “associated entities” which is used in the definition of “examinable affairs” set out on the third page of the notice (containing extracts from the Act). The expression “associated entities” is defined in the Act (though that definition was not sent with the extracts) and the expression “private company” which is found in the definition of “associated entities” is a defined expression. In my opinion, the primary judge was correct in concluding that the Court should, when construing a notice of the type under consideration, take a “broad common sense approach”, an expression which fairly synthesises the more detailed discussion of the Full Court in Pyneboard 57 FLR at 374-375; 39 ALR at 570-571. In construing the reference to “examinable affairs” and looking at the definition, including the expression “associated entities”, a recipient could reasonably be expected to understand that the notice was seeking documents concerning the direct dealings of the bankrupt as well as documents concerning the financial affairs of associated entities. That term described with sufficient clarity and as an ordinary English expression what was comprehended by the more precise definition including the reference to private company.
1. to mentioned or name specifically or definitely; state in detail. 2. to give a specific character to. 3. to name or state as a condition. – verb (i). 4. to make a specific mention or statement.
The accepted public importance of the functions entrusted to the Commission can be no reason to construe the power conferred by s 29 in any manner other than that which the words and the context naturally bear. Nor is there any reason to construe the term “specify” in s 29 in the phrase “a document or thing specified in the notice” in any different manner to the manner in which the same term is used elsewhere in that section.
It is not in dispute that a notice given under par. (1) (b) may validly require the production of something less than all the books, documents and other papers in the custody or control of the recipient relating to the income or assessment of the named person. It may, for example, specify particular documents. Such a notice, if correctly drawn, will make it clear that the requirement extends to the particular documents because they are included in the class of documents of which the Commissioner is authorized to require production.
As the Commissioner’s coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produce to the class of which the Commissioner is authorised to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner’s authority ...
His Honour concluded at 539:
...the demand for production must be so formulated that it expresses the limitation impose[d] by the section.
After expressing the view that a notice issued under s 264(1)(b) must identify the documents required to be produced with “sufficient clarity”, Gibbs ACJ continued at 525:
However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, “your books of account”) may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind — a requirement to produce documents relating to the income or assessment of some person — and a notice requiring the production of documents not so related is beyond the scope of the power.
See also: Jacobs J at 541 to 542; Murphy J at 547. See also: Hart v Commissioner of Taxation [2005] FCA 1748 at [95] to [97], [2005] FCA 1748; 148 FCR 198 at 227 to 228 per Greenwood J.
... so far as form is concerned, a notice issued under s 155 of the Trade Practices Act to be valid must contain the following information:
(a) it must disclose on its face sufficient information to identify the “matter” with respect to which the recipient of the notice is thought to be capable of giving information, evidence or producing documents; and
(b) the notice must contain sufficient information to disclose the necessary relationship between the information or documents sought and the matter in respect of which that material is sought.
This has been described as the “entitlement disclosure condition”: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ.
Where an application under subsection (1) is made to an issuing officer, the issuing officer may issue a warrant authorizing a member of the Australian Federal Police or of the Police Force of a State, or any other person, named in the warrant, with such assistance as he or she thinks necessary and if necessary by force:
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and
(c) to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things so seized to any person participating in the special ACC operation/investigation.
Subsection (2) does not authorise the issue of a warrant confined to the seizure only of “specified things”. The degree of detail required to be set forth in a warrant is that provided for in s 22(5) which provides as follows:
A warrant issued under this section shall:
(a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the special ACC operation/investigation and with which the things of the relevant kind are connected;
(b) state whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;
(c) include a description of the kind of things authorized to be seized; and
(d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.
Subsection 5(c) likewise does not employ the language of “specified” things. In that respect, s 22 may provide a greater degree of latitude in the language permitted to identify the things that may be seized. Perhaps in the case of a search warrant a greater confidence is reposed in those executing the warrant to seize only that which is authorised. A warrant once having been issued, it is thereafter those executing the warrant who make the decisions as to what they may lawfully seize. In the case of a notice issued pursuant to s 29 it was evidently considered appropriate by the legislature to impose upon the person served with such a notice less room for ambiguity and a greater degree of precision as to that which he was required to produce. But why a search warrant is required to contain a “statement of the purpose for which the warrant is issued” (s 22(5)(a)), and why there is no such like requirement in the case of a s 29 notice, was not explained by Counsel for the Commission.
Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant.
The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.
A FAILURE TO CONSIDER A RELEVANT CONSIDERATION
MATERIAL FACTS
I had regard to the following material for the purposes of being satisfied under subsection 29 (1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the notice:
(a) A statement of facts and circumstances dated 3 December 2008
(b) Legal submissions dated 3 December 2008
The form of the record thereafter continued to set forth the Schedule of documents required to be produced and concluded:
Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above :
(1) I was satisfied that the investigation/operation was within the terms of the Determination and that the Determination was still operative.
(2) I was satisfied that it was reasonable in all the circumstances that the Notice be issued to the party to whom it is directed.
(3) I was satisfied that it was reasonable in all the circumstances that the Notice be issued in the terms approved by me.
(4) I was satisfied that this was an appropriate Notice for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation or investigation and that a failure to do so might be contrary to the public interest.
(5) I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 be in the terms approved by me.
A call was made for the production of the “statement of facts and circumstances” and for the “legal submissions” referred to. It was considered that those documents were not of immediate relevance to the arguments sought to be advanced by the Applicants and, had it been necessary to resolve the issue, a claim for public interest immunity would in all likelihood have prevailed.
(i) make no express reference to the “relevance” of the documents required to be produced to the “special operation” being undertaken; and
(ii) make no express reference to the potential volume of documents required to be produced — that volume being emphasised by the extension of the notices to “all business units or subsidiary companies” and by the absence of any time constraint within which the “corporate records” are required to be produced.
(i) even if attention is confined to the reasons as provided by the examiner, it is not at all apparent that consideration was not given to the relevance of the documents required to be produced (and the potential large number of such documents) to the “special operation” being undertaken. It is difficult to conclude that the relevance of the documents required to be produced was not at the forefront of the examiner’s mind when issuing the notice; and
(ii) if there be any doubt, however, that doubt is resolved by recourse to the terms of the notices themselves. Each record on their face that the documents “are relevant to the said special operation”.
Reliance upon a third argument is rejected. This third argument sought to focus upon:
(iii) s 29(5) which provides that failure to comply with s 29(1A) “does not affect the validity of a notice” issued under s 29(1). This subsection simply provides that a failure to comply with the requirement to record in writing the reasons for the issue of a notice does not affect the validity of the notice. The case for the Commission was that it had in fact complied with the requirement; the case of the Applicants was that, having complied with the requirement, the Applicants could then rely upon the reasons provided to expose what the examiner’s reasons were and what he had — and had not — taken into account. Had the record of those reasons provided by the examiner disclosed a failure to take into account a consideration which the examiner was “bound” to take into account (Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J), s 29(5) would not have protected that notice from invalidity. Section 29(5) may have protected the validity of the notice had the inadequacy in the record of reasons been put in issue — but it would not protect such reasons as were provided from scrutiny.
The onus upon the Applicants to prove a failure to take into account the consideration identified has not been discharged.
[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 — as it was in the present proceedings. But, again, that issue need not be resolved.
UNREASONABLENESS AS TO TIME
... the question for consideration by the Court is an objective one and does not depend on the subjective views of the Commissioner. To adopt a contrary view would give rise to such a Draconian situation as to demand the clearest and most explicit words in s 264, and this I do not find.
See also: McVey v Commissioner of Pay-roll Tax (Vic) [1985] HCA 73; (1985) 85 ATC 4,131 at 4,137 per Kaye J. The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive.
There remains to be considered the availability to the appellants of the grounds upon which they object to a particular requirement to produce documents, namely, that it is harsh, oppressive and unreasonable.
The mere fact that compliance with a requirement to furnish information or to produce documents would be burdensome will not invalidate that requirement in a s 155 notice (see Melbourne Home of Ford v Trade Practices Commission (No 3) ((1980) 47 FLR 163); Riley McKay Pty Ltd v Bannerman ((1977) 31 FLR 129). Nor will objective harshness, unreasonableness or oppressiveness of a requirement in such a notice constitute an independent ground of invalidity. If invalidity by reference to these qualities is to be established, it must be by reference to the implied general limitation upon the power conferred by s 155(1) of the Act to which reference has already been made, namely, that it is a condition of a valid exercise of the power that it be used in good faith for the purpose for which it was conferred and with regard to the effect that the exercise of the power will have upon those affected thereby. It is only if the harshness, oppressiveness or unreasonableness of a requirement in a s 155 notice is, in all the circumstances, such as to warrant the conclusion that the requirement could not have been imposed in good faith or could only have been imposed to achieve a collateral purpose or without regard to the burden which it would impose upon the recipient, that harshness, oppressiveness or unreasonableness will result in invalidity.
The fact that compliance with the notice will be onerous or in the end result may be impossible and thereby expose the taxpayer to a sanction, will not of itself impose any limitation on the use of the power.
(i) there had been produced at least some of the documents the subject of the earlier notices;
(ii) the terms of the earlier notices had been confined; and
(iii) contact had been made between officers of the Commission and the Applicants.
Prior to 16 January 2009, an officer of the Commission had been told in respect to the former notices that “it is going to be impossible to get all that information together now before Christmas ...”. In a separate conversation in late December 2008, the same officer of the Commission had been told that “it is an extremely difficult and busy time of the year for us ...”. Significantly, however, a letter forwarded on 16 December 2008 to the Commission addressed the time permitted in the notices issued on that date and stated in part:
Please note that the information sought cannot be collated and provided within the time allowed under the notice (namely at 10am Wednesday 17 December 2008). We further note that there are matters in the notice which seek information that we do not have readily available or in our possession. There are also some doubts as to whether some of the information sought can be provided or disclosed to you.
We would therefore ask for a further 28 days with which to comply with the Notice.
The estimate provided by the Applicants to the Commission as to the amount of time required to comply with the notice and produce the documents identified was “a further 28 days”. Christmas, of course, intervened.
“... I will have you charged for failing to comply with the Notice”
and further stated that:
“It should take you 5 minutes to print the information in 1 and 2 off your system. I want that information provided no later than tomorrow.”
Counsel for the Commission accepted that the officer had no authority to make either the threat or the demand. Those administering the Australian Crime Commission Act 2002 (Cth) are wielding power conferred in wide terms by the legislature. It is of importance that they do not assume even greater power than they already have. They already have enough power.
CONCLUSIONS
ORDERS
Dated: 19 February 2009
In proceeding NSD 2011
of 2008:
|
Counsel for the Applicant:
|
Mr A Canceri
|
|
|
|
|
Solicitor for the Applicant:
|
Mr J Nasr
|
|
|
|
|
Counsel for the Respondents:
|
Ms S T Chrysanthou, on 17 February 2009
Ms S J Maharaj QC, on 19 February 2009 |
|
|
|
|
Solicitor for the Respondents:
|
Ms M E Hickton (Australian Crime Commission)
|
In proceeding NSD 2013 of 2008:
|
|
|
|
Solicitor for the Applicant:
|
HPL Lawyers
|
|
|
|
|
Counsel for the Respondents:
|
Ms S T Chrysanthou, on 17 February 2009
Ms S J Maharaj QC, on 19 February 2009 |
|
|
|
|
Solicitor for the Respondents:
|
Ms M E Hickton (Australian Crime Commission)
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/119.html