GG v Australian Crime Commission [2009] FCA 759 (20 July 2009)

Last Updated: 20 July 2009

FEDERAL COURT OF AUSTRALIA

GG v Australian Crime Commission [2009] FCA 759

ADMINISTRATIVE LAW – challenge to two summonses issued by second respondent under Australian Crime Commission Act 2002 (Cth) – whether summonses invalid because second respondent failed to record in writing reasons for issuing summonses – whether summonses invalid because second respondent failed to record in accordance with Act reasons in writing for issuing summonses – whether second respondent could not have been satisfied that it was reasonable in all circumstances to issue summonses – whether second summons invalid because it did not require applicant to give evidence as “witness” – whether second summons invalid because it was not accompanied by written statement of rights and obligations – whether second summons invalid because copy of determination did not accompany summons or, alternatively, determination invalid – whether second respondent exercised power to issue summons correctly

Held: application dismissed – all grounds of challenge to summonses fail.

ADMINISTRATIVE LAW – challenge to authorisation and determination made by resolution of Board of first respondent under Australian Crime Commission Act 2002 (Cth) – instrument authorised investigation and determined it to be special investigation – whether determination invalid because Chair of Board did not convene or attend meeting at which determination made and determination in writing not under hand of Chair of Board – whether determination invalid because purposes stated in determination exceed scope of investigation under Act – whether determination invalid because Board did not actually draw conclusion as to whether ordinary police methods of investigation were likely to be effective in investigating federally relevant criminal activity – whether determination invalid because of various deficiencies in resolution of Board – whether determination invalid because Board did not resolve class or classes of persons who were to be able to participate in investigation – whether determination invalid because Board purported to consent to first respondent conducting investigation or intelligence operation under a law of a State without identifying law of State in question – whether determination invalid because Board purported to authorise investigation of allegations comprising offences which head of special investigation suspects may be directly or indirectly connected with, or may be part of, course of activity involving commission of offences referred to earlier in determination – whether determination invalid because Board did not set out findings on material questions of fact and refer to evidence or other material on which those findings were based

Held: application dismissed – all grounds of challenge to determination fail.

Acts Interpretation Act 1901 (Cth) ss 13, 20, 25D, 33
Australian Crime Commission Act 2002 (Cth) ss 4, 7, 7B, 7C, 7D, 7E, 7F, 7G, 7J, 12, 16, 19, 24A, 25A, 26, 27, 28, 29, 29A, 29B, 30, 31, 55A, 59A
Australian Federal Police Act 1979 (Cth) s 19
Judiciary Act 1903 (Cth) s 39B

AA v Board of the Australian Crime Commission [2009] FCA 642 followed
A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591 referred to
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 referred to
Australian Crime Commission v NTD8 [2009] FCAFC 86 referred to
Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213 cited
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 referred to
D v Australian Crime Commission [2006] FCA 660; (2006) 152 FCR 497 followed
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 cited
P v Board of Australian Crime Commission [2006] FCAFC 54; (2006) 151 FCR 114 referred to
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to
R v Hughes (2000) 202 CLR 535 referred to
SS v Australian Crime Commission (2009) 256 ALR 474 followed
X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413 cited

GG v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON
SAD 176 of 2008

BESANKO J
20 JULY 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 176 of 2008

BETWEEN:

GG Applicant

AND:	AUSTRALIAN CRIME COMMISSION First Respondent JEFFREY PHILIP ANDERSON Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	20 JULY 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondents’ costs of the application.
   

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
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 176 of 2008

BETWEEN:

GG Applicant

AND:	AUSTRALIAN CRIME COMMISSION First Respondent JEFFREY PHILIP ANDERSON Second Respondent

JUDGE:	BESANKO J
DATE:	20 JULY 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant in this proceeding challenges an authorisation and determination made by the Board of the Australian Crime Commission (“the Board”) under s 7C of the Australian Crime Commission Act 2002 (Cth) (“the Act”) and two summonses issued by an examiner under s 28 of the Act and served on the applicant. The applicant’s proceeding is brought under s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”). He seeks declarations that the determination and each of the two summonses is invalid.
2. The Australian Crime Commission (“the Commission”) is the first respondent and the examiner, Mr Jeffrey Philip Anderson, is the second respondent.

The facts and grounds of challenge

The summonses

3. In October 2008, the applicant was served with a summons to appear before the Commission. The summons was issued by the second respondent at 11.26 am on 8 October 2008. I will refer to this summons as the first summons.
4. The first summons stated that the Commission was conducting a special investigation pursuant to a determination of the Board, a copy of which was attached to the summons. The determination of the Board is an eight-page document which is entitled Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008. In these reasons, I will refer to this determination of the Board as the determination.
5. The first summons stated that the examiner, being satisfied that it was reasonable in all the circumstances to do so, pursuant to s 28(1) of the Act, summoned the applicant to attend at 1.00 am on Tuesday, 21 October 2008 before an examiner at an examination to be held for the purpose of the said special investigation. A place was then identified and the summons stated that the applicant’s attendance was required to give evidence of federally relevant criminal activity involving his knowledge of the federally relevant criminal activities of a named person and two named companies. The summons stated that the applicant’s attendance was required “from day to day unless excused or released from further attendance”.
6. There are obligations in the Act relating to disclosure of certain information. An examiner may include a notation on a summons that information about the summons or any official matter connected with it not be disclosed. In this case, the second respondent included such a notation on the first summons. In those circumstances, he was required, and did, serve with the summons a written statement of rights and obligations under s 29B of the Act. The written notice which accompanied the first summons set out the rights and obligations under s 29B(1) and (2) and referred to, without setting out, the rights and obligations under s 29B(3). No reference was made to s 29B(4).
7. Finally, the first summons referred to the obligations of the person served with the summons set out in s 30 of the Act.
8. The second respondent prepared written reasons for his decision to issue the summons. There were some minor redactions of the document put before me. That was done on the basis of a claim for public interest immunity by the respondents. In the Reasons document the examiner set out the purpose of the summons and then under the heading “Material Facts” he stated:

“I had regard to the following material for the purposes of being satisfied under subsection 28(1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the summons:
(a) A statement of facts and circumstances dated 7 October 2008 and
(b) Legal submissions dated 7 October 2008.”

The examiner sets out his conclusions under the heading “Consideration”:

“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 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 Summons be issued to the person to whom it is directed.
3. I was satisfied that it was reasonable in all the circumstances that the Summons be issued in the terms approved by me.
4. I was satisfied that the summons does, so far as is reasonably practicable, set out the general nature of the matters in relation to which it is intended to question the person.
5. I was satisfied that, in the particular circumstances of the special ACC operation to which the examination relates, it would prejudice the effectiveness of the special ACC operation for the summons to state beyond that which it does the general nature of the matters in relation to which the examiner intends to question the person.
6. I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that a failure to do so might be contrary to the public interest.”
   
9. The Reasons document identified the return date for the summons as 21 October 2008 at 1.00 pm. The Statement of Facts and Circumstances document dated 7 October 2008 (referred to in the Reasons document) was tendered, but it is very heavily redacted. The Legal Submissions document (also referred to in the Reasons document) dated 7 October 2008 was tendered and it is partly redacted. Again, the redactions were done on the basis of a claim for public interest immunity by the respondents. The latter document details the history of the determination (and earlier determinations) and the purpose of the special investigation.
10. As I have said, the first summons required the applicant to attend before an examiner at 1.00 am on Tuesday, 21 October 2008. The applicant, his counsel, Mr Michael Abbott QC, and his solicitor, Mr Harry Patsouris, attended at the nominated place at that time, but no one was present.
11. The applicant was served with a second summons. The second summons was issued by the second respondent at 3.30 pm on 23 October 2008. It required the applicant to attend at 9.30 am on Monday, 10 November 2008. The federally relevant criminal activity was described in terms similar to the description in the first summons, save and except that it included activity “involving yourself” and, in addition to the reference to the named person and two named entities, it referred to “and other entities”. Other than the matters to which I have referred, the second summons was in the same terms as the first summons.
12. Like the first summons, the second summons had the determination and a written statement of rights and obligations attached to it.
13. The examiner prepared written reasons for his decision to issue the second summons. There were some differences between the examiner’s reasons for issuing the second summons and his reasons for issuing the first summons. The “federally relevant criminal activity” involved, not only the applicant’s knowledge of the activity of others, but also his own activity. Furthermore, the material the examiner had regard to included, not only a Statement of Facts and Circumstances document dated 23 October 2008 and Legal Submissions document dated 22 October 2008, but also “© My knowledge obtained from a recent examination”. The following appears under the heading “Material Facts”:

“I had regard to the following material for the purposes of being satisfied under subsection 28(1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the summons:
(a) A statement of facts and circumstances dated 23 October 2008,
(b) Legal submissions dated 22 October 2008 and
© My knowledge obtained from a recent examination.”

The following appears under the heading “Consideration”:

“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 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 Summons be issued to the person to whom it is directed.
3. I was satisfied that it was reasonable in all the circumstances that the Summons be issued in the terms approved by me.
4. I was satisfied that the summons does, so far as is reasonably practicable, set out the general nature of the matters in relation to which it is intended to question the person.
5. I was satisfied that, in the particular circumstances of the special ACC operation to which the examination relates, it would prejudice the effectiveness of the special ACC operation for the summons to state beyond that which it does the general nature of the matters in relation to which the examiner intends to question the person.
6. I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that a failure to do so might be contrary to the public interest.”
   
14. The Statement of Facts and Circumstances document dated 23 October 2008 was put in evidence, but it is heavily redacted. The Legal Submissions document dated 22 October 2008 was tendered and it is partly redacted. Again, the redactions were done on the basis of a claim for public interest immunity by the respondents.
15. The applicant attended before the second respondent on 10 November 2008. Mr Abbott QC and Mr Patsouris appeared for the applicant. Mr Abbott asked for the examination to be adjourned while a challenge to the determination and the second summons was pursued before this Court. He pointed out that the contention of the applicant was that the determination had not been signed by the Chair of the Commission.

The grounds of challenge to the summons

16. The applicant challenges the second summons on a number of grounds. Some of those grounds are the grounds upon which he challenges the first summons.
17. I commence with a brief description of the grounds of challenge common to both summonses. The applicant submits that both summonses are invalid because the second respondent failed to record in writing his reasons for issuing the summonses, failed to record in accordance with the Act his reasons in writing for issuing the summonses and could not have been satisfied that it was reasonable in all the circumstances to issue the summonses.
18. The applicant submits that the second summons is invalid for a number of reasons. First, the second summons is invalid because it did not require the applicant to give evidence as a “witness”. Secondly, the second summons is invalid because it was not accompanied by the written statement of rights and obligations required by s 29A(3) of the Act. Thirdly, the second summons is invalid because a copy of the determination did not accompany the summons, or, alternatively, the determination was invalid. Fourthly, the applicant submits that the examiner did not exercise the power in s 28(1) correctly because he failed to consider whether the first summons was spent and whether the circumstances in which it was spent were relevant to the issue of the second summons and failed to consider whether he had the power to issue the second summons in circumstances where “by his own actions” in not attending at the date, time and place specified in the first summons, he had made it “impossible for the examination pursuant to the first summons to take place”. There were some other grounds of challenge which were not pleaded and which were raised for the first time in counsel’s closing submissions in reply.
19. The trial of this proceeding came on quickly and amendments to the application and statement of claim were made at a late stage. The respondents made informal discovery at a late stage. One document the respondents discovered and which the applicant sought to tender, and to reopen his case for that purpose, was a summons identical to the first summons, save and except for the fact that the time for attendance is 1.00 pm, not 1.00 am as appeared in the first summons. This summons was not served on the applicant. The respondents opposed the applicant’s application to reopen his case in order to tender the summons, but indicated that they did not wish to call any further evidence if the application was allowed. I reserved my decision. In the circumstances, I will allow the application, and the summons (including Annexure “B”), which I will refer to as the third summons, will be marked Exhibit “A6”.

The determination

20. The determination was a result of a resolution of the Board passed at a meeting held on 25 June 2008. The resolution was in the following terms:

“... resolved, in terms of the instrument Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 provided to the Board in the Agenda papers for this item, to authorise the ACC to undertake a special investigation, determined to be a special investigation and authorisation, until 30 June 2009.”

21. The determination itself contains the following note at the beginning of the document:

“The Board of the Australian Crime Commission made this instrument under section 7C of the Australian Crime Commission Act 2002 by resolution at 2.44 am/pm

on 25 June 2008

[signature of Mr T Negus]
Chair of the Board of the Australian Crime Commission
Dated 25th June 2008”

22. Having regard to the grounds of challenge to the determination, the following clauses and schedules in it are relevant to the grounds of challenge.

“4 Authorisation
Pursuant to paragraph 7C(1)(c) and subsection 7A(c) of the Act, the ACC is authorised to investigate the matter mentioned in Schedule 1 relating to federally relevant criminal activity until 30 June 2009.
...

6 Determination
Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the Act, the Board:
(a) has considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 relating to federally relevant criminal activity are likely to be effective; and
(b) determines that the investigation mentioned in Schedule 1 is a special investigation.

7 Description of general nature of the circumstances or allegations
The general nature of the circumstances or allegations constituting the federally relevant criminal activity are described in Schedule 1.

8. Activities to which this Instrument Applies

The serious and organised crime to which this Instrument applies includes offences against a law of the Commonwealth, a law of a State or a law of a Territory.

9 Purpose of the investigation
The purpose of the investigation is:
(a) to collect and analyse criminal information and intelligence relating to the federally relevant criminal activities, to disseminate that information and intelligence in accordance with the Act and to report to the Board; and
(b) to identify and apprehend persons involved in the federally relevant criminal activities, to collect evidence about those activities and to reduce the incidence and effect of those activities; and
(c) to make appropriate recommendations to the Board about reform of:
(i) the law relating to relevant offences; and
(ii) relevant administrative practices; and
(iii) the administration of the courts in relation to trials of relevant offences.

10. Classes of persons to participate in investigation
Pursuant to paragraph 7C(1)(e) of the Act, the classes of persons to participate in the investigation mentioned in Schedule 1 are those mentioned in Schedule 2.

11 Consent to conferral of State powers

(a) Pursuant to subsections 55A(3) of the Act the Board consents to the ACC conducting an investigation or an intelligence operation as described in Schedule 1 under a law of a State as presently, or from time to time applies, and this consent shall continue through the currency of those investigations and intelligence operations.
(b) Pursuant to subsection 55A(5A) of the Act, the Board consents to the performance of a duty or function, and the exercise of a power, of a kind described in subsection 55A(5A) of the Act:
(i) presently conferred; or
(ii) from time to time conferred;
on the CEO or examiners of the ACC by a law of a State, in relation to this intelligence operation, and this consent shall continue through the currency of the operation.”

“Schedule 1 Authorised investigation
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.
...

3 Allegations

The general nature of the allegations that federally relevant criminal activity may have been, may be being, or may in future be, committed, is that from  1 January 1995 certain persons in concert with one another or with other persons, may be engaged in one or more of the following activities:
...

17. any of the following activities being offences that may have been, or may be, connected, directly or indirectly, with a course of activity involving the commission of any of the offences mentioned in paragraphs (a) to (p):

...
(xii) such other incidental offences the head of this ACC special investigation suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences referred to in paragraphs (a) to (p);”

“Schedule 2 Classes of persons
(section 6)
1 The CEO.
2 Each person who is:
(a) a member of the staff of the ACC; and
(b) identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations.

3. Each person who is:

(a) an officer or member of the staff of any of the following agencies:
(i) an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;
(ii the Australian Taxation Office;
(iii) AUSTRAC;
(iv) the Department of Immigration and Citizenship;
(v) the New South Wales Crime Commission;
(vi) the Queensland Crime and Misconduct Commission; and
(b) identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACC operations and investigations.”

23. Mr T Negus was Deputy Commissioner Operations of the Australian Federal Police in June 2008 and was Chair of the Board meeting held on 25 June 2008 (see [20] above). He is referred to in the Board minutes as “Acting Commissioner Tony Negus”. The Board minutes record an apology from Mr M J Keelty, who was Commissioner of the Australian Federal Police in June 2008.
24. It appears that Mr Keelty travelled overseas between 14 and 27 June 2008. Before he left, he wrote a letter dated 3 June 2008 to Mr Negus in the following terms:

“Tony Negus
Deputy Commissioner Operations
AFP Headquarters
GPO Box 401
CANBERRA ACT 2601

PERFORMING THE FUNCTIONS OF COMMISSIONER

I require you to perform the functions of Commissioner from 3.00 pm on Saturday 14 June until 9.00 am Friday 27 June 2008. During this period I will [sic] on official overseas related travel.

Under Part IV, Section 19(1) of the Australian Federal Police Act you are to exercise all the powers and perform all the functions and duties of the Commissioner, including disciplinary matters.

[signed]

M J Keelty”

The grounds of challenge to the determination

25. The applicant submits that the determination is invalid on a number of grounds. First, it is invalid because the Chair of the Board did not convene or attend the meeting at which it was made, and the determination in writing was not under the hand of the Chair of the Board. Secondly, the determination is invalid because the purposes stated in clause 9 of the determination exceeded the scope of an investigation under the Act. Thirdly, the determination is invalid because the Board did not actually draw a conclusion as to whether ordinary police methods of investigation were likely to be effective in investigating federally relevant criminal activity. Fourthly, the determination is invalid because of various deficiencies in the resolution of the Board. Fifthly, the determination is invalid because the Board did not resolve the class or classes of persons who were to be able to participate in the investigation (see clause 10 and Schedule 2). Sixthly, the determination is invalid because the Board purported to consent to the Commission conducting an investigation or intelligence operation under a law of a State pursuant to s 55A(3) of the Act (see clause 11(a) of the determination) without identifying the law of the State in question. A similar difficulty is said to arise in relation to s 55A(5A) of the Act (see clause 11(b)). Seventhly, the determination is invalid because, by clause 3(q)(xii) of Schedule 1 of the determination, the Board purported to authorise the investigation of allegations comprising offences which the head of the special investigation suspects may be directly or indirectly connected with, or may be part of, a course of activity involving the commission of offences referred to earlier in the determination. As with the summons, there was also a ground of challenge to the determination which was not pleaded and which was raised for the first time in counsel’s closing submissions in reply.

The issues

Validity of summonses

26. The applicant challenges the validity of the first and second summonses. He also contends that the third summons, which it will be recalled was not served on the applicant, is relevant to the question of the validity of the first and second summonses.
27. The second summons is the summons that ultimately led to the applicant attending before the second respondent and its significance is obvious. The significance of the first summons is less obvious. It is a reasonable inference that, by mistake, it incorrectly referred to the time for attendance as 1.00 am instead of 1.00 pm. The applicant contends that the fact the first summons was issued and served is relevant to the second respondent’s decision to issue the second summons and I will deal with the contention in due course. The significance of his claim that the first summons is invalid is less obvious. However, I do not need to dwell on that question because the grounds of challenge to the first summons are the same as some of the grounds of challenge to the second summons and, for reasons I will give, I reject the grounds of challenge in relation to the second summons.
28. The significance of the third summons is not at all apparent. It is true that its existence is unexplained, but I do not think any inference can be drawn from its existence that supports the grounds of challenge to the first summons or the second summons.
29. The grounds of challenge to the second summons can be put into various categories. First, there are grounds of challenge relevant to the documents themselves, that is, the summons itself, the determination and the written statement of rights and obligations. Secondly, there are grounds of challenge relevant to the record in writing of the second respondent’s reasons. Thirdly, there are grounds of challenge which, by reference to the second respondent’s reasons, are relevant to the second respondent’s decision to issue the second summons. Finally, there is a challenge to the second summons on the basis that it was not issued for the purposes of a special ACC investigation because the determination is invalid. I deal with this last ground of challenge in a separate section of these reasons when I consider the applicant’s grounds of challenge to the validity of the determination.
30. I turn now to consider the grounds of challenge to the second summons.

Evidence as a “witness”

31. The first ground of challenge to the second summons is that it failed to state that the applicant was required to give evidence as a “witness”. It is submitted that the second summons was therefore deficient “on its face”. The applicant referred to various sections in the Act which refer to a person appearing before an examiner in response to a summons as a witness: ss 25A(6), (7) and (8), 26, 27, 28 (heading), 30 and 31. I leave to one side the fact that a section heading is not part of an Act: Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”) s 13(3). There is nothing in the Act which requires a summons to state that the person to whom it is directed is required to give evidence as a witness. It is not clear to me whether, by making this submission, the applicant was suggesting that he could only be required to give evidence as a witness in the sense that he could not be required to give evidence of his own activities or involvement in the activities of others. If he was suggesting that, it is plainly not a proposition supported by the provisions of the Act. The provisions of the Act have the effect of removing the privilege against self-incrimination: s 30(4) and (5) (see A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420).

A copy of the determination

32. The second ground of challenge to the second summons is that it was not accompanied by a copy of the determination. The Act provides that a copy of the determination must accompany the summons: s 28(2).
33. This ground of challenge was not the subject of any submissions by the applicant. It must be rejected because the evidence tendered by the applicant included evidence from his solicitor that he was served with the second summons and it was accompanied by a copy of the determination.

The written statement of rights and obligations

34. The third ground of challenge to the second summons is that there was a failure to comply with s 29A(3) of the Act.
35. The relevant provisions of s 29A and s 29B of the Act are as follows:

“29A Disclosure of summons or notice etc. may be prohibited

(1) The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.
(2) A notation must not be included in the summons or notice except as follows:
(a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice:
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an operation or investigation;
(b) the examiner may include the notation if satisfied that failure to do so might prejudice:
(i) the safety or reputation of a person; or
(ii) the fair trial of a person who has been or may be charged with an offence; or
(iii) the effectiveness of an operation or investigation;
(c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.
(3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice.
(4) If, after the ACC has concluded the operation or investigation concerned:
(a) no evidence of an offence has been obtained as described in subsection 12(1); or
(b) evidence of an offence or offences has been assembled and given as required by subsection 12(1) and the CEO has been advised that no person will be prosecuted; or
(c) evidence of an offence or offences committed by only one person has been assembled and given as required by subsection 12(1) and criminal proceedings have begun against that person; or
(d) evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by subsection 12(1) and:
(i) criminal proceedings have begun against all those persons; or
(ii) criminal proceedings have begun against one or more of those persons and the CEO has been advised that no other of those persons will be prosecuted;
all the notations that were included under this section in any summonses or notices relating to the operation or investigation are cancelled by this subsection.
(5) If a notation is cancelled by subsection (4), the CEO must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation.”

“29B Offences of disclosure

(1) A person who is served with, or otherwise given, a summons or notice containing a notation made under section 29A must not disclose:
(a) the existence of the summons or notice or any information about it; or
(b) the existence of, or any information about, any official matter connected with the summons or notice.
Penalty: 20 penalty units or imprisonment for one year.
(2) Subsection (1) does not prevent the person from making a disclosure:
(a) in accordance with the circumstances, if any, specified in the notation; or
(b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(c) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or
(d) if the person is a body corporate—to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
(e) if the person is a legal practitioner—for the purpose of obtaining the agreement of another person under subsection 30(3) to the legal practitioner answering a question or producing a document at an examination before an examiner.
(3) If a disclosure is made to a person as permitted by subsection (2) or (4), the following provisions apply:
(a) while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4);
(b) while he or she is no longer such a person, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them.
Penalty: 20 penalty units or imprisonment for one year.
(4) A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information:
(a) if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):
(i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
(ii) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(iii) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or
(b) if the person is a legal practitioner—for the purpose of giving legal advice, making representations, or obtaining assistance under section 27, relating to the summons, notice or matter; or
(c) if the person is a legal aid officer—for the purpose of obtaining legal advice or representation relating to the summons, notice or matter.”

36. In this case, the second respondent included in the second summons a notation of the type described in s 29A(1). Furthermore, the summons was accompanied by a written statement of rights and obligations purportedly setting out the rights and obligations conferred or imposed by s 29B. However, the written statement of rights and obligations set out the rights and obligations in s 29B(1) and (2) but it did not set out the rights and obligations in s 29B(3) and (4). The applicant submits that that constituted a failure to comply with s 29A(3) because a person “otherwise given” a summons within the subsection may be a person to whom disclosure has been made within s 29B(3) or (4) and therefore for whom the relevant rights and obligations are those in s 29B(3) and (4). The rights and obligations in those subsections were not set out in the written statement and, therefore, there was a breach of s 29A(3) of the Act.
37. I reject this submission for the same reasons I rejected the same submission in AA v Board of the Australian Crime Commission [2009] FCA 642 (“AA”). In that case, I said (at [45]-[48]):

“The applicant submits that a person otherwise given the summons within the terms of s 29A(3) includes a person given the summons, not only by the Commission or an examiner, but by a person served with the summons, or by a person who has been given the summons by a person who in turn has received the summons from the person served with the summons. The applicant submits that if this proposition is correct then it follows that the Statement should set out the obligations and rights in s 29B(3) and (4) either because the words ‘otherwise given, a summons’ in s 29B(1) have a different meaning from the same words used in s 29A(3), or because a person ‘otherwise given, a summons’ can fall within the terms of both s 29B(1) on the one hand and s 29B(2) and (4) on the other.

The respondents submit that the Act creates two classes, namely, a class of persons served with a summons or otherwise given a summons by the Commission or an examiner, and a class of persons to whom disclosure is made by a person in the first class or by a person otherwise in the second class. The obligations and rights of the first class are set out in s 29B(1) and (2) and the obligations and rights of the second class are set out in s 29B(3) and (4). On this analysis, the written statement referred to in s 29A(3) must set out the obligations and rights set out in s 29B(1) and (2), but need not set out the obligations and rights in s 29B(3) and (4).

In my opinion, the construction of s 29A and s 29B of the ACC Act advanced by the respondents is the correct one. First, the respondents’ construction means the words ‘otherwise given, the summons’ are given the same meaning in the two sections. Secondly, the construction is consistent with the distinction suggested by the structure of s 29B between a person directly involved with the Commission or an examiner in that he or she has been served with a summons or otherwise given a summons by the Commission or an examiner, on the one hand, and a person to whom disclosure has been made, on the other. Thirdly, the respondents’ construction avoids the practical difficulties that the applicant’s construction creates in terms of the obligation placed on the Chief Executive Officer of the Commission by s 29A(5).

This issue was also an issue considered by Jagot J in SS. Again, I have reached my conclusions independently of her Honour’s decision. However, with respect, her Honour’s reasons neatly summarise why in this case the applicant’s submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]):

‘Three matters are apparent from this scheme.

First, the scheme distinguishes between a person ‘served, or otherwise given’ a summons or notice and a person to whom a person ‘served, or otherwise given’ a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words “served, or otherwise given” whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS’s case that the words ‘otherwise given’ in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice.

Second, treating a person to whom disclosure has been made about a summons or notice as a person ‘otherwise given’ the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words ‘or otherwise given’ must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS’s construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS’s case) s 29B(1) as well. This makes the statutory scheme nonsensical.

Third, and as the ACC pointed out, if SS’s construction is correct then the CEO’s obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS’s construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)).

These considerations indicate that the ACC’s submission must be accepted.’”

“SS” is the decision of Jagot J in SS v Australian Crime Commission (2009) 256 ALR 474.

Reasons – adequacy of record

38. The second respondent’s reasons consist of the Reasons document, the Statement of Facts and Circumstances document and the Legal Submissions document. As I have said, all documents are redacted to some extent on the ground of public interest immunity; the Reasons document is only slightly redacted, the Facts and Circumstances document is heavily redacted and the Legal Submissions document is partly redacted. The second respondent was under an obligation to record in writing his reasons for issuing the summons: s 28(1A). Section 28(8) provides that a failure relating to the making of the record does not affect the validity of a summons.
39. The relevant provisions of s 28 are as follows:

“28 Power to summon witnesses and take evidence

(1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.
(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. The record is to be made:
(a) before the issue of the summons; or
(b) at the same time as the issue of the summons; or
(c) as soon as practicable after 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 that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.
...

(7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.
(8) A failure to comply with any of the following provisions does not affect the validity of a summons 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) subsection (2) of this section;
(c) section 29A, in so far as that section relates to a summons under subsection (1) of this section.

40. The second respondent recorded in writing the reasons for his decision to issue the summons. Neither party suggested that the second respondent had reasons which were not in the written documents and, in my opinion, he complied with s 28(1A) of the Act.
41. The applicant submitted that, by reason of s 25D of the Acts Interpretation Act, the second respondent was required to set out in his reasons his findings on material questions of fact and refer to the evidence or other material on which those findings were based, and that he had not done that. It was not in this case contended by the respondents, as it had been by the respondents (albeit in the context of s 29 of the Act) in A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591 at 607 [54] per Flick J, that s 25D was engaged. I do not need to examine the question of whether the second respondent set out his findings or material questions of fact and referred to the evidence or other material on which those findings were based because, in my opinion, s 25D was not engaged and, even if it was, a failure to comply with its provisions would not lead to the conclusion that the second summons is invalid.
42. Section 25D of the Acts Interpretation Act provides as follows:

“25D Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”

43. In AA, I considered whether s 25D of the Acts Interpretation Act applied to an examiner’s obligation in s 28(1A) of the Act to record in writing the reasons for his or her decision to issue a summons. I held that it did not. I said (at [29]-[30]):

“For s 25D of the Acts Interpretation Act to be engaged, it must be established that s 28(1A) of the ACC Act imposes an obligation on an examiner to give written reasons for his or her decision to issue a summons. In my opinion, the applicant cannot establish that matter. Section 28 does not impose an obligation on an examiner to give reasons to an examinee or to give the written record of his reasons to an examinee: Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356. That decision was not challenged by the applicant. In the course of his decision in that case, Finn J said (at 363-364 [28]-[29]):

‘It is important to note that the present application is not one for judicial review of the examiner’s decision. Rather it asserts an entitlement to be provided with Mr Boulton’s record of reasons — an entitlement the satisfaction of which is said to be a precondition to the holding of the examination. The short answer to the claim is that s 28(1A) in its setting gives no such right expressly and there is no conceivable basis in this context for implying such a right: cf R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at 686 ff; let alone for making the provision of such reasons a jurisdictional precondition to the holding of an examination. Neither context nor legislative purpose: cf Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 78 ALJR 585 at [11]; and see generally Spigelman, ‘The poet’s rich resource: Issues in statutory interpretation’ (2001) 21 Aust Bar Rev 224; lend any support to such an implication.

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 [sic] 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 ACC 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.’

In my opinion, an obligation to record in writing the reasons for a decision or act (which is the obligation imposed by s 28(1A) of the ACC Act) is quite different from an obligation to give written reasons for a decision (which is the obligation postulated by s 25D of the Acts Interpretation Act). The latter, no doubt, includes giving written reasons to the person affected by the decision and publishing written reasons. The obligation in s 28(1A) to record in writing the reasons for the issue of a summons does not engage the obligation in s 25D of the Acts Interpretation Act to set out in an instrument giving the reasons the findings on material questions of fact and to refer to the evidence or other material on which those findings are based.”

44. I went on to say that, even if s 25D applied, a failure to set out findings on material questions of fact and refer to the evidence or other material on which those findings were based would not, because of s 28(8), lead to invalidity. I said (at [31]-[34]):

“The applicant’s argument must fail for another reason, even if (contrary to my conclusion) s 28(1A) of the ACC Act engaged the obligation in s 25D of the Acts Interpretation Act. If I assume s 25D was engaged and I assume the examiner’s reasons did not satisfy the requirements of s 25D, the applicant’s argument must nevertheless fail because s 28(8)(a) of the ACC Act provides that a failure to comply with s 28(1A), ‘in so far as that subsection relates to the making of a record’ does not affect the validity of a summons. The applicant submits that s 28(8)(a) only relates to the time when the record is made. In other words, the applicant submits that s 28(8)(a) is only engaged where the record is not prepared at one of the times specified in s 28(1A)(a), (b) and (c). It is not engaged, so the argument proceeds, where the failure relates to the contents of the record. I see no justification for drawing such a distinction. The words describing the failure as one relating to the ‘making of [the] record’ are wide enough to cover obligations both as to the time at which the record is made and as to its contents.

The applicant referred to the fact that the provisions specifying times in s 28(1A), that is to say (a), (b) and (c), were part of the same amendment, that is, the Australian Crime Commission Amendment Act (No 168 of 2007) (Cth), which introduced s 28(8). The applicant submits that I should infer from that fact that s 28(8)(a) relates only to the time at which the reasons are to be recorded in writing. I was referred to the Explanatory Memorandum for the Australian Crime Commission Amendment Bill 2007. I reject this contention. For the reasons I have given, there is no reason to read down the words in s 28(8)(a) and in fact the Explanatory Memorandum supports the construction which I think is the proper one. The explanation for the introduction of s 28(8) of the ACC Act is as follows:

‘Item 5

Subsections 28(1A) and 28(2) and section 29A prescribe a range of technical requirements for issuing a summons under subsection 28(1).

Subsection 28(1A) requires an examiner to record in writing the reasons for the issue of the notice.

Subsection 28(2) provides that a summons issued under subsection 28(1) must be accompanied by a copy of the determination by the ACC Board that the intelligence operation is a special operation, or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

Section 29A sets out the circumstances in which an examiner who issues a summons under section 28 is required to include in the summons a notation to the effect that the disclosure of information about the summons, or any official matters connected with it, is prohibited (except in circumstances specified in the notice). The section sets out when a notation must or may be made, prescribes the form and content of the notation, and provides for cancellation of the notation.

This item adds a new subsection 28(8) to the ACC Act to provide that a failure to comply with the requirements set out in subsections 28(1A) – to the extent that the subsection relates to the making of a record – and 28(2) and section 29A of the ACC Act does not render a summons issued under subsection 28(1) invalid.

The purpose of this amendment is to ensure that ACC operations/investigations are not undermined by reason of an examiner’s failure to comply with these technical requirements.

This provision does not apply to substantive procedural obligations, such as the requirements under subsection 28(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue the summons and under subsection 28(3) that the summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person.’

I do not think the second ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant.

The issues raised in the second ground were the same as issues considered by Jagot J in SS. I have decided the issues in the same way as her Honour (see [88]-[92]).”

45. As in AA, I do not think that s 25D of the Acts Interpretation Act was engaged in relation to an examiner’s obligation to record in writing the reasons for the issue of the summons. Even if that is wrong, and it was engaged, a failure to comply with it would not lead to the invalidity of the summons by reason of s 28(8)(a).

Reasons – exercise of power

46. The Act required the second respondent to be satisfied that it was reasonable in all the circumstances to issue the second summons: s 28(1A). The applicant made a number of complaints about the second respondent’s reasons which I think, when properly analysed, were challenges to his decision to issue the second summons.
47. There were no detailed submissions on the grounds upon which the decision to issue a summons under s 28(1) may be challenged on an application under s 39B of the Judiciary Act. I gave brief consideration to some of the issues which arise in AA (at [13]-[18]). I propose to proceed on the basis that if the second respondent’s decision involved any of the matters which constitute jurisdictional error then it is invalid (see Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-180).
48. The first ground upon which the applicant challenged the second respondent’s decision to issue the second summons was that the second respondent considered that he was issuing the second summons for the purposes of an operation, whereas the determination authorised an investigation. Section 28(7) provides that the powers conferred by the section are not exercisable except for the purposes of a special ACC operation/investigation. Section 24A provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation.
49. The Act draws a distinction between an intelligence operation and an investigation (s 7C(1)(c)) and a special operation and a special investigation (s 7C(1)(d), (2) and (3)). The Act contains definitions of “ACC operation/investigation”, “special ACC operation/ investigation” and “intelligence operation” in s 4. They are as follows:

“ACC operation/investigation means:
(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.”

“special ACC operation/investigation means:
(a) an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or
(b) an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.”

“intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.”

There is no definition in the Act of “investigation”.

50. In [13] above, I set out passages from the second respondent’s reasons for issuing the second summons. It will be seen that paragraphs 1), 5) and 6) refer to “the operation” or “the special ACC operation”. This is clearly an error, but the question is whether it establishes that the second respondent addressed the wrong matter in the sense that he considered that he was issuing the summons for the purposes of a special operation rather than a special investigation, or at least that he did not appreciate the difference.
51. The summons itself refers to a special investigation and it has the determination attached to it. The determination plainly relates to a special investigation. The Statement of Facts and Circumstances document refers to a special investigation and to the determination and the Legal Submissions document refers to the determination and to a special investigation. It seems to me that, looking at the documents as a whole, it has not been established that the second respondent misunderstood the nature of the instrument pursuant to which he was issuing the summons. It is more likely that some of the dangers of using a standard form document have been realised (see the observations of the Full Court of this Court in Australian Crime Commission v NTD8 [2009] FCAFC 86 at [34]).
52. The second ground upon which the applicant challenged the second respondent’s decision to issue the second summons was that he misunderstood the exercise he was performing. The applicant referred to the fact that the Legal Submissions document is referred to under the heading, “Material Facts” and to the fact that in one part of the reasons he states that he had regard to “© My knowledge obtained from a recent examination” and yet when setting out his conclusions under the heading “Consideration” he makes no reference to that piece of information. It seems to me that, however one looks at those matters, neither of them establishes an error which is a jurisdictional error.
53. The third ground upon which the applicant challenged the second respondent’s decision to issue the second summons is that the second respondent did not consider, or properly consider, the inclusion of the notation referred to in s 29A of the Act. In formulating his reasons for including the notation, there is nothing to prevent the second respondent from relying on each of paragraphs (a), (b) and (c) in s 29A(2) (see [35] above). Furthermore, it is clear from the reference in paragraph 6), “in the terms approved by me”, (see [8] above) that he addressed the terms of the notation.
54. The fourth ground upon which the applicant challenged the second respondent’s decision to issue the second summons involved an examination by the applicant of the various documents comprising the second respondent’s reasons for the decision to issue the second summons and of the documents comprising the second respondent’s reasons for issuing the first summons, and a submission that it emerged from that examination that he did not address the right questions.
55. The first submission was that the Reasons document indicated that the second respondent considered he was bound to include a notation on the summons, whereas the standard form part of the Statement of Facts and Circumstances document indicated that the notation was included as a matter of discretion. I do not think there is anything in this point. The documents must be read as a whole and I am not satisfied that the second respondent misunderstood the decision he was making under s 29A of the Act.
56. The second submission was that there were a number of errors in the Legal Submissions document.
57. The following statement appears in the Legal Submissions document:

“On 8 June 2008 approval was given by the Governance Operations Committee to continue this investigation under the Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008.”

It would seem that this is an error because the determination was not made until 25 June 2008, but there is nothing to suggest that it led the second respondent into a type of error that is a jurisdictional error.

58. There is a summary in the Legal Submissions document of the meaning of “serious and organised crime” as that phrase is used in the Act. An example is given of certain offences “such as illegal drug dealings”. The applicant submitted that the determination has nothing to do with illegal drug dealings and that the reference to illegal drug dealings is misleading. This criticism is misplaced, as the relevant passage is doing no more than describing the types of offences which can fall within the definition of serious and organised crime.
59. The following statement appears in the Legal Submissions document:

“The circumstances mentioned in clause 2 of schedule 1 to the determination arise from certain activities disclosed by various suspicious transactions and events listed in that clause which cannot be readily explained by possibilities other than federally relevant criminal activity.”

The applicant submitted that there are no “suspicious transactions and events” listed in paragraph 2 of Schedule 1 of the determination. It is true that the transactions and events in that paragraph are described in broad terms, but that does not make the determination invalid, or support a claim that the second respondent fell into jurisdictional error in issuing the second summons.

60. The following statement appears in the Legal Submissions document:

“17. Submissions in support of the proposition that the Examiner should be satisfied that it is reasonable in all the circumstances to issue a notice under subsection 29(1) of the Australian Crime Commission Act, 2002”

The subject of a notice under s 29(1) of the Act was irrelevant because such a notice was not issued in the case of the applicant. It probably appears in the document because it is part of a standard form which is used. At all events, when regard is had to the whole of the evidence, its inclusion in the Legal Submissions document does not suggest that the second respondent misunderstood the nature of the task he was undertaking.

61. The applicant submitted that a comparison of the Legal Submissions document in relation to the first summons and the Legal Submissions document in relation to the second summons establishes that the second respondent did not consider the question of whether a notation pursuant to s 29A(1) of the Act should be included in the second summons. The submission must be rejected in light of the clear statement by the second respondent in the Reasons document that he considered it appropriate to include in the second summons a notation under s 29A of the Act.
62. Finally, the applicant referred to the fact that, in terms of the matters for examination, the second summons is broader than the first in that it adds federally criminal activity “involving yourself” and “other entities”. He submitted that a comparison of the second respondent’s reasons in the case of each summons establishes that the expansion of the reach of the summons was not justified. I reject that submission for a number of reasons. First, it is based on the assumption that the first summons was as broad as it could have been on the material then available. The correctness of that assumption has not been established. Secondly, it requires me to draw inferences about the material before the second respondent at the time he issued the second summons in circumstances where there is no basis for me to do that. In fact, the reference to “© My knowledge obtained from a recent examination” suggests that there was additional material.
63. The fifth ground upon which the applicant challenged the second respondent’s decision to issue the second summons is that the second respondent did not take into account, in reaching his decision, the fact that the first summons had been issued and served on the applicant. The second respondent plainly had the power to issue the second summons (see s 33(1) of the Acts Interpretation Act) and the fact is that, by mistake, the wrong time (that is, 1.00 am instead of 1.00 pm) was included on the first summons. Plainly, the second respondent would have been aware of the circumstances surrounding the first summons.

Conclusion as to validity of summons

64. The grounds of challenge to the summonses, other than that based on the claim that the determination is invalid, fail. I turn now to consider the grounds of challenge to the validity of the determination.

Validity of determination

65. The applicant contends that the determination is invalid on a number of grounds.
66. The determination itself does not affect a right or liability of the applicant. The second summons does affect a right or liability of the applicant because he is required to attend an examination by reason of it.
67. As I have already said, s 24A of the Act provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation and s 28(7) provides that the powers conferred by the section are not exercisable except for the purpose of a special ACC operation/investigation.
68. On the face of it, and leaving aside the effect of s 16 of the Act, where the Board does not authorise an investigation and determine that it is a special investigation, the power to issue a summons and to conduct an examination for the purposes of a special investigation is not engaged.
69. Section 16 of the Act provides relevantly:

“If:
...
(b) an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation;
then, except in a proceeding instituted by the Attorney-General of the Commonwealth or the Attorney-General of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made.”

70. I was told by the parties that there is no case which determines in an authoritative way the scope and effect of s 16. The section was referred to in passing in P v Board of Australian Crime Commission [2006] FCAFC 54; (2006) 151 FCR 114 at 121 [24]- [26] and D v Australian Crime Commission [2006] FCA 660; (2006) 152 FCR 497 at 503 [31] per Mansfield J.
71. Section 16 would only be engaged in this case if the summons was an act or thing done by the Commission because of the determination. Section 7 of the Act provides for the establishment of the Commission and that the Commission consists of, inter alia, the examiners. It would seem to follow that the issue of the second summons is an act or thing done by the Commission because of the determination. On the face of it, by reason of s 16, the second summons cannot be challenged, reviewed, quashed or called in question on the ground that the determination was not lawfully made.
72. The respondents referred to Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and submitted that s 16 was engaged in circumstances where the determination was not lawfully made because of an error of law which did not go to jurisdiction, or because of a failure to comply with a provision of the Act which was not an inviolable jurisdictional restraint. In other words, they accepted that s 16 was not engaged where the determination was not lawfully made because of jurisdictional error, or a failure to comply with an inviolable jurisdictional restraint. I do not need to consider the scope and effect of s 16 because I do not think any of the grounds upon which the determination is challenged are made out.
73. I turn now to examine those grounds.

Chair of the Board

74. The Act deals with the composition of the Board and it provides for a Board composed of 14 members with the Commissioner of the Australian Federal Police as Chair of the Board: s 7B. The Chair has various powers and functions in relation to meetings of the Board. He or she may convene meetings of the Board: s 7D. He or she must preside over meetings of the Board: s 7E(a). There is one exception to this last requirement. A person who is another eligible Commonwealth Board member (defined in s 4) and who is nominated, in writing, by the Chair may preside over a meeting of the Board if the Chair is not present: s 7E(b).
75. In June 2008, the Commissioner of the Australian Federal Police was Mr Keelty. Mr Keelty did not preside over the meeting of the Board on 25 June 2008. Mr Negus presided over the meeting (see [23]) above).
76. The applicant submits that the meeting held on 25 June 2008 was not validly constituted and the resolution in favour of the determination was not validly passed. It follows, submits the applicant, that the determination was not validly made.
77. I reject the applicant’s submission because I do not think there was a failure to comply with the Act. It is not necessary for me to consider whether, had there been a failure, it would have had the consequence for which the applicant contends.
78. In AA, the applicants applied for interlocutory injunctions restraining the holding of their examinations and I heard the applications after judgment was reserved in this proceeding. One of the determinations which was challenged in that case was in fact made at the Board meeting held on 25 June 2008 and Mr Negus signed the determination as Chair of the Board. The same argument was put as is put in this case and the same letter from Mr Keelty to Mr Negus dated 3 June 2008 was relied on by the respondents for the purposes of s 19(1) of the Australian Federal Police Act 1979 (Cth) (“AFP Act”).
79. I held that Mr Negus had and was able to exercise all the powers and was required to perform all the functions and duties of the Commissioner on 25 June 2008. The Commissioner’s letter dated 3 June 2008 established that he was absent from Australia and that Mr Negus was the next most senior member who was available. By virtue of s 19(4), the order of seniority was as determined by the Commissioner and it was a reasonable inference from the letter that the Commissioner had determined that Mr Negus was the next most senior member who was available.
80. In AA, I rejected a submission that s 19(1) only operated in relation to powers, functions and duties under the AFP Act. I said (at [60]):

“The applicant submits that s 19(1) is restricted to powers, functions and duties under the AFP Act and does not authorise the next most senior member to perform the role of presiding over a meeting of the Board under the ACC Act. The applicant referred to s 69C of the AFP Act in support of his argument. This section gives the Commissioner the power to delegate in writing to certain officers, all or any of the Commissioner’s powers, functions or duties under the Act. I am unable to see how s 69C assists in the interpretation of s 19 of the AFP Act, which must be construed according to its terms. The applicant also referred to s 17(4) of the AFP Act, which provides that the Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by the Act as are determined by the Governor-General. The applicant suggested that this subsection is directed to powers, functions and duties of the Commissioner under other Acts. I do not think that is right. Section 17(4) is directed to terms and conditions of the Commissioner’s office not provided for (that is, not dealt with) in the AFP Act. They are to be determined by the Governor-General. In my opinion, the words in s 19(1) of the AFP Act are quite general and there is no reason to restrict them to powers, functions and duties under the AFP Act.”

The same conclusion applies in this case.

81. On 25 June 2008, Mr Negus was performing, for the time being, the duties of the office or position of Commissioner of the Australian Federal Police. In AA, the respondents submitted that fact engaged s 20 of the Acts Interpretation Act, which is in the following terms:

“20 Mention of an officer in general terms
Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position.”

I accepted that argument. I said (at [62]-[64]):

“The applicant submits that s 20 of the Acts Interpretation Act is not engaged by s 7B(3) and s 7E of the ACC Act because the reference to the Commissioner of the Australian Federal Police in s 7B(3) is not a mention or reference to a person holding or occupying a particular office or position in general terms. The submission is that a mention or reference in an Act to, for example, a director of a company or an officer of an organisation would be a mention or reference in general terms, but a mention or reference to an office occupied by one person is not a mention or reference in general terms.

A similar issue arose in the case I have heard (see [12]) and I had the benefit of detailed submissions on the point in that case. Both parties referred me to the submissions in that case.

In my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms, such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case.”

82. The same conclusion applies in this case, subject to my consideration of the applicant’s submission that the Act reveals a contrary intention. He referred to the composition of the Board (s 7B(2)), its important functions (s 7C), the quorum and voting requirements (s 7F and s 7G) and the provisions dealing with the passing of resolutions outside of Board meetings (s 7J). He submitted that the Act contains only a limited power to delegate (s 59A) and that the Commissioner’s power in s 7E(b) of the Act to nominate a person to preside at a meeting of the Board is quite limited. To a point, those matters may be accepted, but I do not think that they reveal a contrary intention within s 20 of the Acts Interpretation Act.
83. The applicant also submitted that if each State Act had an equivalent to s 19(1) of the AFP Act (a matter which was not established) then a consequence of the respondents’ argument is that the Board might, at a particular meeting, be composed of quite junior members. It seems to me that is an unlikely possibility, but, in any event it can be said on the other side that it is unlikely that Parliament intended that the Board be unable to transact its business in the event that, for example, a number of police commissioners are absent from duty or from Australia.
84. The determination is not invalid because Mr Negus was Chair of the Board meeting held on 25 June 2008.

Purpose of the investigation

85. Clause 9 of the determination sets out the purpose of the investigation (see [22] above).
86. The applicant submits that the purposes identified in clause 9 are not proper purposes of an investigation as defined in the Act. He submits that the purposes relate to acts the Commission is not authorised to perform under the Act or to acts which may be part of an operation under the Act but not an investigation under the Act. He submits that the acts identified in the first purpose (clause 9(a)) might form part of an operation but do not form part of an investigation. He submits that the acts of apprehending persons (clause 9(b)) and making recommendations to the Board about law reform (clause 9(c)) are not acts the Commission is authorised to perform under the Act.
87. The Act requires the Board to set out in its determination the purpose of an operation or investigation: s 7C(4)(c). As I have said, the Act does draw a distinction between an operation and an investigation. In describing the functions of the Board, it identifies as functions the following:

“7C Functions of the Board
(1) The Board has the following functions:
...
(c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;
(d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation.

The definitions in s 4 of “ACC operation/investigation”, “intelligence operation” and “special ACC operation/investigation” are set out above (at [49]). The Act requires the Board to consider “whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective” before determining that an intelligence operation is a special operation (s 7C(2)) and it requires the Board to consider “whether ordinary police methods of investigation into the matters are likely to be effective” before determining that an investigation is a special investigation (s 7C(3)).

88. There are a number of answers to the applicant’s submission. The first point is that a statement of purpose is not the authorisation itself. The authorisation is contained in clause 4 and Schedule 1 of the determination, both of which are unexceptional (see [22] above). Secondly, there is no definition of “investigation” in the Act and there is no reason to think that, reading the Act as a whole, some of the acts comprising an operation may not also form part of an investigation. There may be questions of degree involved, but the point is that there is no reason to think that the two functions are mutually exclusive. Thirdly, the Act gives the Commission incidental powers. Section 19 of the Act provides:

“19 Incidental powers of ACC
The ACC has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its functions, and any specific powers conferred on the ACC by this Act shall not be taken to limit by implication the generality of this section.”

89. Finally and significantly, the terms of s 12 of the Act should be noted. It relevantly provides:

“12 Performance of functions

(1) Where the ACC, in carrying out an ACC operation/investigation, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the CEO must assemble the evidence and give it to:
(a) the Attorney-General of the Commonwealth or the State, as the case requires; or
(b) the relevant law enforcement agency; or
(c) any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.
Note: The CEO may also disseminate information in certain circumstances to law enforcement agencies and other bodies: see section 59.

(1A) Where the ACC, in carrying out an ACC operation/investigation, obtains evidence that would be admissible in confiscation proceedings, the CEO may assemble the evidence and give it to:
(a) the Attorney-General of the Commonwealth or the State, as the case requires; or
(b) a relevant law enforcement agency; or
(c) any person or authority (other than a law enforcement authority) who is authorised to commence the confiscation proceedings.

(3) Where, as a result of the performance of any of the ACC’s functions, the Board considers that a recommendation should be made to the Commonwealth Minister or to the appropriate Minister of the Crown of a participating State, being a recommendation:
(a) for reform of the law relating to relevant offences, including:
(i) evidence and procedure applicable to the trials of relevant offences;
(ii) relevant offences in relation to, or involving, corporations;
(iii) taxation, banking and financial frauds;
(iv) reception by Australian courts of evidence obtained in foreign countries as to relevant offences; and
(v) maintenance and preservation of taxation, banking and financial records;
(b) for reform of administrative practices; or
(c) for reform of administration of the courts in relation to trials of relevant offences;
the Board may make the recommendation to the Commonwealth Minister, or to that Minister of the Crown of that State, as the case may be.

(6) Where the ACC has obtained particular information or intelligence in the course of performing one or more of its functions, nothing in this Act shall be taken to prevent the ACC from making use of the information or intelligence in the performance of any of its other functions.”

90. It seems to me that the first purpose (clause 9(a)) identifies a proper incidental function of an investigation, particularly in light of the fact that one of the functions of the Board is “to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC” (s 7C(1)(g)).
91. The second purpose (clause 9(b)) in so far as it refers to apprehending persons is a proper purpose having regard to s 12(1) and the third purpose (clause 9(c)) is a proper purpose having regard to s 12(3).
92. The determination is not invalid because of the statement of purpose in clause 9.

A matter to be determined

93. The applicant submits that the determination is invalid because the Board did not, before making the determination, decide that ordinary police methods of investigation into the matters were not likely to be effective. For present purposes, I will proceed on the assumption that the Board had to be satisfied that ordinary police methods of investigation into the matters were not likely to be effective, although I note that on the face of it that is not what s 7C(3) provides. There were no detailed submissions on the construction of the subsection. The short answer to the applicant’s submission is that there is no evidence that the Board was not so satisfied. There is no requirement that such a state of satisfaction be set out in the determination and there is simply no evidence that the Board was not so satisfied at the meeting on 25 June 2008. The onus is on the applicant to establish the invalidity of the determination: X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413 at 419-420 [22] per Finn J; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA.
94. The determination is not invalid because the Board did not satisfy itself that ordinary police methods of investigation into the matters were not likely to be effective.

The Board’s resolution

95. The resolution of the Board passed at the meeting held on 25 June 2008 is set out above (at [20]).
96. The applicant submits that the Board did not authorise the Commission to investigate matters relating to federally relevant criminal activity and determine that the investigation was a special investigation. Furthermore, it did not specify the class or classes of persons to participate in the investigation.
97. There is no doubt that the resolution is not drafted with the precision and clarity it could have been. The Board is not empowered to authorise the Commission to undertake a special investigation, determined to be a special investigation and authorisation. The Board is not empowered to authorise the Commission to undertake an investigation. It is able to authorise the Commission to undertake intelligence operations. The Board does not authorise a special investigation; it authorises an investigation and determines it to be a special investigation. The Board does not determine an authorisation; as I have said, it determines an investigation to be a special investigation.
98. These difficulties with the drafting of the resolution must be acknowledged; however, the matter is one of substance, not form, and the Board is not required to use any particular form of words. Furthermore, it is reasonable to infer from the minutes and the determination that the latter document was the document before the Board. The determination makes it perfectly clear that the Board was authorising an investigation and determining it to be a special investigation, and I do not think that there is any real doubt that the Board understood the acts it was performing.
99. The submission that the Board resolution was deficient because it did not identify the class or classes of persons who were to participate in the investigation misunderstands the effect of the Act. The class or classes of persons who are to participate in the investigation must be identified in the determination (which, subject to the next ground, they are); it is sufficient that they be identified by reference to the instrument before the Board.
100. The determination is not invalid because the Board’s resolution of 25 June 2008 does not comply with the provisions of the Act.

Class or classes of participating persons

101. Section 7C(1)(e) provides that one of the functions of the Board is to determine, in writing, “the class or classes of persons to participate in such an ... investigation”. Clause 10 and Schedule 2 of the determination are set out above (at [22]).
102. The applicant submits that items 2(b) and 3(b) of Schedule 2 exceed the powers of the Board under s 7C(1)(e) of the Act, in that they “impermissibly purport to delegate to persons other than the Board the power to identify persons authorised to participate in the special investigation mentioned in the Determination”.
103. The submission was considered by Mansfield J in D v Australian Crime Commission [2006] FCA 660; (2006) 152 FCR 497 at [28]- [60] and rejected. With respect, I think his Honour’s decision is correct and I will follow it.
104. The determination is not invalid because it does not identify the class or classes of persons to participate in the investigation.

Consent to conferral of State powers

105. The Commission is a Commonwealth authority created under Commonwealth legislation. On the face of it, the Commission cannot perform or exercise duties, functions or powers under State laws without the consent of the Commonwealth Parliament: Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213 at 219 [15]. Section 55A is designed to give that legislative consent in certain circumstances. The section relevantly provides:

“Object
(1) The main object of this section is to give legislative consent to the conferral on:
(a) the ACC; or
(b) the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC; or
(c) a Judge of the Federal Court or a Federal Magistrate;
of certain duties, functions and powers under State laws.

ACC
(2) A law of a State may confer on the ACC any or all of the following duties, functions or powers:
(a) the function of investigating a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(b) a duty, function or power that is for the purposes of an investigation referred to in paragraph (a) and that is either:
(i) of the same kind as a duty, function or power conferred on the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter); or
(ii) of a kind specified in regulations made for the purposes of this subparagraph;
(c) the function of undertaking an intelligence operation in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(d) a duty, function or power that is for the purposes of an operation referred to in paragraph (c) and that is either:
(i) of the same kind as a duty, function or power conferred on the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to that operation); or
(ii) of a kind specified in regulations made for the purposes of this subparagraph.
(3) The ACC cannot, under a law of a State:
(a) investigate a matter relating to a relevant criminal activity; or
(b) undertake an intelligence operation;
unless the Board has consented to the ACC doing so.

Inter-Governmental Committee, Board, Chair of the Board, members of the Board, CEO, examiners and members of staff of the ACC
(4) A law of a State may confer on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that:
(a) relates to the investigation of a matter relating to a relevant criminal activity in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and
(b) is either:
(i) of the same kind as a duty, function or power conferred on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter); or
(ii) of a kind specified in regulations made for the purposes of this subparagraph.
(5) A law of a State may confer on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC a duty, function or power that:
(a) relates to the undertaking of an intelligence operation in so far as the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and
(b) is either:
(i) of the same kind as a duty, function or power conferred on the Inter-Governmental Committee, the Board, the Chair of the Board, a member of the Board, the CEO, an examiner or a member of the staff of the ACC by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to that operation); or
(ii) of a kind specified in regulations made for the purposes of this subparagraph.
(5A) The CEO or an examiner cannot perform a duty or function, or exercise a power, under a law of a State:
(a) relating to the investigation of a matter relating to a relevant criminal activity; or
(b) relating to the undertaking of an intelligence operation;
unless the Board has consented to the CEO or the examiner doing so.
...
(7) Subsections (2), (4), (5), (5B) and (5C) do not extend to a law of a State to the extent to which that law purports to confer any duty that is in contravention of any constitutional doctrine restricting the duties that may be conferred on:
(a) authorities of the Commonwealth; or
(b) members of authorities of the Commonwealth; or
(c) Judges of a court created by the Parliament.
...
(14) In this section (other than subsection (9)):
intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a relevant criminal activity.”

(As to the reason for subsection (7) of s 55A, see R v Hughes (2000) 202 CLR 535.)

106. Clause 11(a) of the determination purports to be a consent by the Board in relation to the Commission and clause 11(b) purports to be a consent by the Board in relation to the CEO and examiners. Clause 11 is set out in [22] above.
107. The applicant submits that clause 11(a) of the determination is not a consent within s 55A(3) because it does not comply with that subsection. It does not identify a particular law of a State. In the case of existing State laws, it fails to identify the particular law and the problem is exacerbated by the reference to a law of a State as “from time to time applies”. The same point, mutatis mutandis, is made in relation to clause 11(b), although it is said to be stronger here because a particular duty or function or power must be identified.
108. I see no reason why the Board may not give general consents of the type given in clause 11 of the determination. In any event, there are two limiting factors, namely, the limits on the legislative consent (see s 55A(2)(b) and (5)(b)) and the limit imposed by the determination which refers to the currency of the investigation.
109. Clause 11(b) refers to “this intelligence operation”. Having regard to the Board resolution and the determination as a whole, that is plainly a drafting slip and must be read as a reference to the investigation.
110. The determination is not invalid because the consents given by clause 11 do not comply with s 55A of the Act.

The description of “federally relevant criminal activity”

111. The applicant submits that item 3(q)(xii) in Schedule 1 (see [22] above) is an attempt by the Board “to delegate impermissibly and prospectively its obligation to identify, at the time of making the Determination, the circumstances or allegations known or believed by it to constitute federally relevant criminal activity”.
112. The definitions of “federally relevant criminal activity”, “relevant criminal activity” and “serious and organised crime” in s 4 of the Act are as follows:

“federally relevant criminal activity means:
(a) a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or
(b) a relevant criminal activity, where the relevant crime:
(i) is an offence against a law of a State; and
(ii) has a federal aspect.”

“relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.”

“serious and organised crime means an offence:
(a) that involves 2 or more offenders and substantial planning and organisation; and
(b) that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
(c) that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
(d) that is a serious offence within the meaning of the Proceeds of Crime Act 2002, an offence of a kind prescribed by the regulations or an offence that involves any of the following:
(i) theft;
(ii) fraud;
(iii) tax evasion;
(iv) money laundering;
(v) currency violations;
(vi) illegal drug dealings;
(vii) illegal gambling;
(viii) obtaining financial benefit by vice engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory;
(xii) perverting the course of justice;
(xiii) bankruptcy and company violations;
(xiv) harbouring of criminals;
(xv) forging of passports;
(xvi) firearms;
(xvii) armament dealings;
(xviii) illegal importation or exportation of fauna into or out of Australia;
(xix) cybercrime;
(xx) matters of the same general nature as one or more of the matters listed above; and
(da) that is:
(i) punishable by imprisonment for a period of 3 years or more; or
(ii) a serious offence within the meaning of the Proceeds of Crimes [sic] Act 2002;
but:
(e) does not include an offence committed in the course of a genuine dispute as to matters pertaining to the relations of employees and employers by a party to the dispute, unless the offence is committed in connection with, or as part of, a course of activity involving the commission of a serious and organised crime other than an offence so committed; and
(f) does not include an offence the time for the commencement of a prosecution for which has expired.”

113. Schedule 1 of the determination sets out details of the authorised investigation. Paragraph 1 of Schedule 1 sets out the nature of the investigation. Paragraph 2 sets out the general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, committed and paragraph 3 sets out the general nature of the allegations that federally relevant criminal activity may have been, may be being, or may in future be, committed. Item 3(q)(xii) appears in paragraph 3.
114. There are two answers to the applicant’s submission. First, the Board’s obligation is to determine and describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity (see s 7C(4)(a)). Secondly, the power in item 3(q)(xii) is very limited. The offences must be incidental and directly or indirectly connected with, or may be part of, a course of activity involving the commission of any offences referred to in paragraphs (a) to (p) of paragraph 3 of Schedule 3.
115. The determination is not invalid because of the presence of item 3(q)(xii) in the determination.

Conclusion as to validity of determination

116. The applicant submitted in his closing submissions in reply that the determination was invalid because the Board did not set out its findings on material questions of fact and refer to the evidence or other material on which those findings were based. This allegation was not pleaded by the applicant.
117. In my view, the allegation is plainly untenable. The allegation depends upon a conclusion that the provisions of the Act engage s 25D of the Acts Interpretation Act. The Act requires that the authorisation of an investigation and determination that the investigation is a special investigation be in writing (s 7C(1)(c), (d) and (3)) and for the determination to describe, state and set out the matters in s 7C(4). However, s 25D of the Acts Interpretation Act is not engaged because the Act does not require the Board “to give written reasons” for the functions and acts it performs under the Act. I refer to my earlier discussion of the scope and effect of s 25D of the Acts Interpretation Act (see [41]-[43] above).
118. The grounds of challenge to the determination fail. In the circumstances, it is unnecessary to consider the scope and effect of s 16 of the Act.
119. I should note that the respondents did not argue in the alternative that, if I held that some paragraphs in the determination were invalid, they could be severed, leaving the balance of the determination as an operative instrument.

Conclusion

120. All of the applicant’s challenges to the summonses and the determination fail and, in the circumstances, the application must be dismissed with costs.
     

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 20 July 2009

Counsel for the Applicant:	Mr M L Abbott QC
Solicitor for the Applicant:	Patsouris & Associates
Counsel for the Respondents:	Ms S J Maharaj QC
Solicitor for the Respondents:	Australian Crime Commission

Date of Hearing:	6, 16, 20 March 2009
Date of Judgment:	20 July 2009