*P* v Board of the Australian Crime Commission [2006] FCAFC 54 (28 April 2006)

Last Updated: 2 May 2006

FEDERAL COURT OF AUSTRALIA

"P" v Board of the Australian Crime Commission [2006] FCAFC 54

AUSTRALIAN CRIME COMMISSION – investigation, special investigation, authorization of intelligence operations and investigations, determine whether a special operation or investigation.

PRACTICE AND PROCEDURE – validity of determination or authorization, requirement that authorization or determination be in writing, whether requirement can be satisfied in one instrument by reference to another instrument, whether instruments can be read together.

PRACTICE AND PROCEDURE – whether an authorization or determination can be amended.




Australian Crime Commission Act 2002 (Cth) ss 4A, 7, 7A, 7B, 7C, 7G(4), 8, 9, 16, 22, 28, 46B(1)
Acts Interpretation Act 1901 (Cth) s 33(3)


X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413 considered
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 considered
Dainford Ltd v Smith [1985] HCA 23; (1984-1985) 155 CLR 342 followed











"P" v THE BOARD OF THE AUSTRALIAN CRIME COMMISSION, JOHN PLANTA HANNAFORD AND AUSTRALIAN CRIME COMMISSION

SAD 42 of 2005




MANSFIELD, DOWSETT AND LANDER JJ
28 APRIL 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 42 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	"P" APPELLANT
AND:	THE BOARD OF THE AUSTRALIAN CRIME COMMISSION FIRST RESPONDENT JOHN PLANTA HANNAFORD SECOND RESPONDENT AUSTRALIAN CRIME COMMISSION THIRD RESPONDENT
JUDGES:	MANSFIELD, DOWSETT AND LANDER JJ
DATE OF ORDER:	28 APRIL 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.










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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 42 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	"P" APPELLANT
AND:	THE BOARD OF THE AUSTRALIAN CRIME COMMISSION FIRST RESPONDENT JOHN PLANTA HANNAFORD SECOND RESPONDENT AUSTRALIAN CRIME COMMISSION THIRD RESPONDENT

JUDGES:	MANSFIELD, DOWSETT AND LANDER JJ
DATE:	28 APRIL 2006
PLACE:	HEARD IN ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

AUSTRALIAN CRIME COMMISSION

1 The third respondent ("ACC") is established pursuant to the Australian Crime Commission Act 2002 (Cth) (the "Act") and consists of a Chief Executive Officer, the examiners and members of its staff. Examiners are appointed by the Governor-General pursuant to subs 46B(1). ACC also has a Board: s 7B. The Board members are:

‘...
(a) the Commissioner of the Australian Federal Police;
(b) the Secretary of the Department;
(c) the Chief Executive Officer of the Australian Customs Service;

(d) the Chairperson of the Australian Securities and Investments Commission;
(e) the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979;
(f) the Commissioner or head (however described) of the police force of each State and of the Northern Territory;
(g) the Chief Police Officer of the Australian Capital Territory;
(h) the CEO.’

2 ACC’s functions, as prescribed by s 7A, are:

‘(a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;
(b) to undertake, when authorised by the Board, intelligence operations;
(c) to investigate when authorised by the Board, matters relating to federally relevant criminal activity;
(d) to provide reports to the Board on the outcomes of those operations or investigations;
(e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board;
(f) to provide advice to the Board on national criminal intelligence priorities;
(g) such other functions as are conferred on the ACC by other provisions to this Act or by any other Act.’

3 Section 7C provides:

‘7C Functions of the Board

(1) The Board has the following functions:

(a) to determine national criminal intelligence priorities;

(b) to provide strategic direction to the ACC and to determine the priorities of the ACC;
(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;
(e) to determine, in writing, the class or classes of persons to participate in such an operation or investigation;
(f) to establish task forces;
(g) 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;
(h) to report to the Inter-Governmental Committee on the ACC’s performance;
(i) such other functions as are conferred on the Board by other provisions of this Act.

...

Special operations

(2) The Board may determine, in writing, that an intelligence operation is a special operation. Before doing so, it must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.

...

Special investigations

(3) The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective.

...

Further details

(4) A determination under subsection (2) or (3) must:

(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and
(b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and
(c) set out the purpose of the operation or investigation.

Informing the Inter-Governmental Committee

(5) The Chair of the Board must, within the period of 3 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter-Governmental Committee.

When determination takes effect

(6) A determination under subsection (2) or (3) has effect immediately after it is made.’

4 The term "special ACC operation/investigation" is defined in s 4 to mean:

‘(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.’

5 Section 7G(4) provides:

‘The Board cannot determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination.’

This appeal concerns investigations and special investigations. It will not be necessary to address the parallel provisions concerning operations and special operations.

COERCIVE POWERS

6 Under s 22 of the Act an examiner or a member of ACC’s staff, who is also a member of the Australian Federal Police or a State police force, may apply for the issue of a search warrant in connection with a special investigation. An examiner may, in connection with such an investigation, summon a person to appear to give evidence and to produce documents: s 28(1). Section 28(2) requires that any such summons be accompanied by a copy of the Board’s determination that the investigation is a special investigation. This appeal arises out of the issue of such a summons.

INTER-GOVERNMENTAL COMMITTEE

7 The Inter-Governmental Committee referred to in s 7C(5) is established by s 8 of the Act and consists of representatives of the Commonwealth and participating States. Its functions are prescribed by s 9(1) as follows:

‘...

(a) to monitor generally the work of the ACC and the Board;
(b) to oversee the strategic direction of the ACC and the Board;
(c) to receive reports from the Board for transmission to the Governments represented on the Committee and to transmit those reports accordingly;
(d) such other functions as are conferred on the Committee by other provisions of this Act.’

8 The Inter-Governmental Committee is also specifically authorised to oversee determinations made under ss 7C(2) and 7C(3): s 9(2). Section 9(7) empowers it to revoke such a determination.

THE INVESTIGATION

9 On 15 May 2003, the Board made an "Authorization and Determination" pursuant to s 7C. That document was in the form of a written "instrument" described as the ‘Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003’ (the "first instrument"). Clause 4 provided:

‘Pursuant to par 7C(1)(c) and subsection 7A(d) of the Act, the ACC:

(a) is authorised to investigate the matter mentioned in Schedule 1 relating to federally relevant criminal activity until 31 May 2004; and
(b) is requested to provide a report to the Board on the outcomes of this investigation at the first Board meeting after 31 May 2004.’

10 Clause 5 recorded that the Board had considered the matters prescribed by s 7C(3) and determined that the investigation should be a special investigation. Clause 6 provided that the classes of persons to participate in the investigations were those mentioned in Sch 2.

11 Clause 7 provided:

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

12 Clause 8 stated:

‘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 incidents and effects 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 relations to trials of relevant offences.’

13 Paragraphs 1 and 2 of Sch 1 described the investigation as:

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

(a) was committed before the commencement of this instrument; or
(b) was in the process of being committed on the commencement of this instrument; or
(c) may in future be committed.

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

14 Paragraph 3 recited that:

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

15 A list of various kinds of illegal conduct followed, including drug-related offences, fiscal offences and migration offences. Schedule 2 identified various classes of persons who were to participate in the investigation. It is not necessary to identify them for present purposes.

16 Section 7C(1)(c) provides that the Board may "authorize" (in writing) an investigation. Sections 7C(1)(d) and 7C(3) provide that it may "determine" (in writing) that an investigation is "special". Section 7C(1)(e) provides that it may "determine" (in writing) the classes of persons to participate in the investigation. Section 7C(4) prescribes the content of a determination pursuant to s 7C(3). The distinctive terms, "authorize" and "determine", are reflected in the title of the first instrument and in the headings of paragraphs 4 and 5, demonstrating that the Board was aware of the different functions being performed. The first instrument clearly:

• authorized the investigation;
• determined that it be a special investigation;
• determined the classes of persons who were to participate in it; and
• satisfied the requirements of s 7C(4) as to content.

EXTENSION OF THE INVESTIGATION

17 On 28 April 2004, the Board made a further "Authorization and Determination" (the "second instrument") as follows:

‘(1) Name of instrument

This instrument is the Australian Crime Commission’s Special Investigation Authorisation and Determination (Established Criminal Networks) Amendment No 1 of 2004.

(2) Commencement

This instrument commences immediately after it is made.

(3) Amendment of Australian Crime Commission’s Special Investigation Authorisation and Determination (Established Criminal Networks) 2003.
The Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003 made by the ACC Board on 13 May 2003 and signed by the Chair of the Board on 15 May 2003, is amended as follows:

Paragraph 4(a) and 4(b) delete 31 May 2004 and insert 31 May 2005.’

Again, the use in the title of the words "Authorization" and "Determination" suggest that the Board intended that the instrument satisfy the relevant requirements of s 7C.

THE SUMMONS AND THE ORIGINAL APPLICATION

18 The summons which is the subject of these proceedings was issued on 22 December 2004. It summoned the appellant to give evidence ‘in relation to your knowledge of and involvement in the illegal activities of [AB], [CD] and other members and associates of the [EF] Club’. We assume that copies of both instruments were served with the summons. By application filed on 28 January 2005 the appellant sought a declaration that the summons was invalid and other associated relief. The only presently relevant ground is that the first instrument had expired and the second instrument was not valid. Finn J had previously upheld the validity of the second instrument in connection with a challenge to another summons. See X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413. In the decision under appeal his Honour again upheld the validity of the second instrument, and therefore of the summons, adopting his earlier reasoning in X. He dismissed the application. This is an appeal from that decision.

THE APPEAL

19 The hearing of the appeal has been seriously disrupted. It came on in Adelaide on 15 August 2005, before a Court constituted by Hill, Dowsett and Lander JJ. After the hearing the Court asked the parties to make further submissions concerning identified matters, and the appeal was listed for further argument in Sydney on 24 August 2005. Hill J died suddenly, and so it did not proceed on that day. The Court was reconstituted by the addition of Mansfield J, and the appeal was listed for re-hearing on 29 November 2005. On that day, after preliminary argument, the parties indicated that they were unable to proceed, and so the appeal was adjourned for further argument on 21 March 2006. The delay has been unfortunate, given the nature of these proceedings.

20 In the course of this lengthy history, the appellant obtained leave to amend its original application so as to challenge the validity of the Board’s decision to make the second instrument as well as the decision to issue the summons. The first and second respondents were joined as parties to the appeal.

APPELLANT’S SUBMISSIONS

21 The appellant submits that:

• notwithstanding s 16 of the Act (which is set out below) the appellant may challenge the validity of the decision to issue the summons;
• the appellant may also challenge the validity of the second instrument as authority for the issue of the summons;
• the second instrument is invalid for that purpose by reason of the Board’s failure to comply with the requirements of s 7C of the Act that:

•	the Board authorize in writing any investigation (s 7C(1)(c));
•	if an investigation is to be a special investigation, the Board so determine in writing (ss 7C(1)(d), 7C(3) and 7C(4));
•	in so determining, the Board must consider whether ordinary police methods of investigation into the matters to be investigated are likely to be effective (s 7C(3)); and
•	any written determination pursuant to s 7C(3) must refer to such consideration;

and
• the summons is therefore also invalid.

ERRONEOUS ASSUMPTIONS

22 Before considering the statutory provisions in detail and the arguments concerning their meaning, it is appropriate to mention three assumptions which appear to be central to the appellant’s argument, all of which we consider to be misconceived. The first appears in par 40 of the appellant’s revised outline of contentions. He asserts that the time limit imposed on the investigation by the first instrument reflected the period during which the Board considered that ordinary police powers would not be effective for the purposes of the investigation. We see no reason for reading the first instrument in that way. It is more likely that the Board simply authorized the investigation for the period which it considered appropriate, given its subject matter. There is no reason to infer that it contemplated the investigation being conducted partly as an "ordinary" investigation. This misconception is not fatal to the appellant’s case, but it tended to colour his submissions. The second misconception is that any written determination pursuant to s 7C(3) must refer to the Board’s consideration of the effectiveness of ordinary police methods. Section 7C(3) requires only that such determination be in writing. Section 7C(4) prescribes certain matters which must be included in it, but they do not include the Board’s consideration of ordinary police methods. The appellant argues that there would be no point in requiring consideration of the matter unless the fact of such consideration was recorded in the written determination. We see no merit in that argument.

23 Thirdly, the appellant asserts that the Board, in making the second instrument, did not consider the efficacy of ordinary police methods. We see no basis for this assumption. The only justification offered is that the Board referred to the matter in the first instrument but did not do so in the second instrument. This proposition is based upon the erroneous assumption that such consideration must be referred to in the written instrument. Given that there was no obligation to refer to it in either instrument, no such inference can be drawn. The overall argument appears to be:

• because the efficacy of ordinary police methods must be considered, such consideration must be recorded in writing;
• because such consideration was not recorded in writing in the second instrument, the matter must not have been considered.

Neither inference is justified.

APPELLANT’S STANDING

24 Section 16 of the Act provides:

‘If:

(a) ...
(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.’

25 The appellant submits that for three reasons, s 16 has no present application. The first is that the section assumes a valid determination that the investigation is a special investigation. In this case, the appellant challenges the validity of the second instrument as such a determination. Secondly, the appellant submits that the act of the examiner in issuing the summons was not an act or thing done by ACC, notwithstanding the fact that by virtue of s 7, ACC ‘consists of’ the CEO, the examiners and members of its staff. Thirdly, he submits that in any event, by virtue of the decision of the High Court in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, s 16 must be read ‘so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act’ (per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]), and that, as there was no valid determination pursuant to s 7(3), the issue of the summons was in excess of jurisdiction.

26 The first and second submissions raise interesting questions of construction. However, because of the approach taken by the respondents to the effect of the decision in Plaintiff S157, it will not be necessary to address those matters. As we understand it, the respondents concede, for present purposes at least, that subsections 7C(3) and (4) impose ‘inviolable restraints’ upon the exercise of the power to make a determination. Failure to observe such ‘restraints’ would invalidate any determination. A summons issued in connection with the relevant special investigation would also be invalid and reviewable, notwithstanding the provisions of s 16. In those circumstances, the appellant has standing to challenge the validity of the summons. However we doubt whether he has standing to challenge the validity of the second instrument other than in the course of such a challenge. The respondents’ concessions make it unnecessary to decide that matter.

GOVERNANCE OF ACC

27 In order to understand the relevant aspects of the Act, it is appropriate to consider the overall governance structure which it establishes. That structure – Inter-Governmental Committee, the Board and ACC – is unusual, as are some aspects of ACC’s functions. These aspects probably reflect the fact that ACC is a creature of the Commonwealth but is to operate in areas which have been historically, and are primarily, regulated by the States. ACC’s operational and investigative functions are limited to those authorized by the Board. Such authorization may only be granted in connection with serious and organized crime, committed or anticipated, against a law of the Commonwealth, a State or a Territory. Where the relevant law is a State law, the crime must have a federal aspect. See ss 4, 4A and 7A. The definition of "federal aspect" in s 4A is particularly complex. It is likely that the intention was to ensure constitutional validity of the Act by limiting the functions of ACC to areas in respect of which the Commonwealth Parliament might legislate. It was probably intended that ACC operate in support of agencies such as those represented on the Board, rather than in competition with them. The composition of the Board may also have been designed to prevent encroachments on the areas of responsibility of those and other Commonwealth and State law enforcement and intelligence agencies.

THE REQUIREMENT FOR WRITING

28 Section 7C(1) authorizes the Board to do certain things "in writing". The appeal has proceeded upon the basis that the requirements for writing in s 7C means that relevant decisions to authorize or determine identified matters must be evidenced in writing or reduced to writing. Section 7C(1) suggests that the Board is to supervise closely ACC’s operation. The intention also seems to be that instructions given by the Board be clearly recorded. No doubt that reflects the role of ACC and the need to avoid overlap between its activities and those of other agencies. The requirement for writing also facilitates the performance by the Inter-Governmental Committee of its functions. In summary, it seems likely that the requirement for writing prescribed by subs 7C is concerned with the control, supervision and accountability of ACC.

29 The requirements for writing in s 7C(1)(d) and s 7C(3) serve another purpose. Pursuant to s 28(2), a summons requiring a person to appear for examination must be accompanied by a copy of the relevant determination pursuant to s 7C(3). Section 7C(4) provides that such a determination is to identify the general nature of the circumstances or allegations constituting the relevant criminal activity, the federal nature of the investigation and its purpose. The purpose of serving a copy of the determination with the summons is to demonstrate to the person summoned:

• the authority by which the summons has been issued; and
• the nature of the subject matter with respect to which he or she is to be examined.

THE INSTRUMENTS

30 We turn to the instruments. There is no challenge to the validity of the first instrument. It is an authorization for the purposes of s 7C(1)(c) and a determination for the purposes of s 7C(1)(d) and (e), s 7C(3) and s 7C(4). Paragraph 4 is an authorization pursuant to s 7C(1)(c); par 5 is a determination pursuant to s 7C(1)(d), s 7C(3) and s 7C(4) and par 6 is a determination pursuant to s 7C(1)(e). The authorization of the investigation continued until 31 May 2004. Presumably, the determinations also continued until that date. By the second instrument the Board purported to amend the first instrument by substituting the date ‘31 May 2005’ for the date ‘31 May 2004’. Clearly, the intention was that the effective life of the investigation, determined to be a special investigation, be extended until 31 May 2005.

31 The Act does not expressly authorize amendment of an authorization or determination. However there is also no express power to place a time limit upon an investigation. One might readily infer, however, that the power of the Board to determine national criminal intelligence priorities and strategic direction necessarily implies a power to limit the extent of an investigation. It would otherwise be difficult to determine questions of priority and strategic direction. An implied power to impose a time limit implies a power to extend that time limit. Parliament would hardly have intended that an incomplete investigation should end simply because such a time limit had expired. In any event, it is accepted that s 33(3) of the Acts Interpretation Act 1901 (Cth) (the "Acts Interpretation Act") authorizes repeal, recission, revocation, amendment or variation to an authorization or determination pursuant to s 7C. However, pursuant to s 33(3), such power is ‘exercisable in the like manner and subject to the like conditions’ as would be an exercise of the power itself. The thrust of the appellant’s case is that the power to amend is subject to the requirements as to writing found in s 7C. The respondents accept that proposition. Of course, the power to amend a determination and the power to vary the duration of such an investigation may not be coterminous. However no such point was taken in this appeal.

32 The appellant submits that in making the second instrument, the Board did not comply with the requirements prescribed in s 7C. Firstly, he submits that the Board did not consider the question of whether ordinary police methods of investigation were likely to be effective as required of s 7C(3). We have given our reasons for rejecting that submission. The appellant then submits that the second determination does not satisfy the requirements for writing contained in ss 7C(1), (3) and (4). That submission potentially raises the following questions:

• whether the continuation of the investigation after 31 May 2004 was authorized in writing;
• whether there was a written determination that after that date, the investigation be a special investigation;
• whether that determination fulfilled the requirements of s 7C(4); and
• whether there was a written determination as to the classes of persons who were to participate in the investigation.

The first instrument dealt with all of these matters. The second instrument did not deal expressly with any of them, other than by reference to the first instrument. The question is whether the second instrument can be read with the first instrument so as to satisfy such statutory requirements. The appellant’s submissions focussed primarily upon the extent to which the second instrument satisfied the requirements of s 7C(1)(c) and 7C(3), those provisions being fundamental to the validity of the summons.

33 The second instrument was clearly intended to authorize continuation of the investigation. It referred directly to the first instrument, which authorized the investigation for a limited period, and extended that period. No doubt for this reason, the second instrument was entitled "Authorization". Given that the investigation had previously been determined to be a special investigation, it is arguable that the second instrument should necessarily be construed as extending it as a special investigation, at least in the absence of any indication to the contrary. In any event, the second instrument was also entitled "Determination", suggesting that the Board recognized the need to satisfy the requirements of s 7C(1)(d) and (e) and s 7C(3) and (4). It must have intended that the second instrument be read with the first instrument in order to achieve that result.

34 Section 7C says nothing about the form which an authorization or determination must take. It does not expressly require that any necessary writing be contained in one document. It may be inconvenient, impracticable, or even impossible to do so. For example, we see no difference in theory or practice between, on the one hand, reading the two instruments together and, on the other, reading the first instrument in conjunction with its attached schedules. The use of schedules is a common and convenient drafting technique. Had the Board attached the first instrument to the second instrument, it seems unlikely that the present challenge could have been successfully launched. The difference between the use of schedules and incorporating one document into another by reference is one of degree. The question is whether the statutory prescription has been satisfied.

35 The decision of the High Court in Dainford Ltd v Smith [1985] HCA 23; (1984-1985) 155 CLR 342 offers support for the course adopted by the Board. In that case, the Court considered the statutory power of the body corporate of a block of home units to make by-laws conferring upon unit owners the right to exclusive possession of parts of the common property. In purported exercise of that power, the body corporate assigned to a unit holder, the right to occupy a car space which was to be identified by the developer at a later stage. At 348, Gibbs CJ said:

‘The question for decision is whether [the relative legislative provision] requires that the by-law shall itself define that part of the common property which is allotted for the exclusive use of the proprietor of a particular lot, or whether it permits the definition to be made by means of a separate instrument, such as the notice contemplated by by-law 40. The sub-section does not in terms require that the part of the common property whose exclusive use is conferred on a proprietor shall be identified in the by-law itself. There is no general principle that a power to make by-laws may not be exercised by referring to some other document and incorporating or applying it, provided that what is referred to is sufficiently certain: Wright v T.I.L. Services Pty Ltd ...; Sobania v Nitsche .... There is no reason in principle why a by-law should not confer rights in respect of property which is not defined in the by-law itself, but which can be identified with certainty by reference to another document or to extrinsic facts. By-law 40 itself confers on a proprietor the exclusive use of part of the common property, notwithstanding that the identity of the proprietor, and the part to which he is entitled, must be ascertained by reference to a notice given to the body corporate.’

36 At 358 Wilson J said:

‘What is essential is that the by-law itself be the authority for the exercise over a part of the common property of the rights that are granted in respect of it. In my opinion, by-law 40 satisfies such a requirement. It confers on each proprietor the right to exclusive use of such part of the common property as is to be identified in a particular way, namely, by notification to the Council of the body corporate within a stated time. It is the by-law and not the notification that is the source of the right to exclusive use.’

37 Dawson J agreed with both Brennan CJ and Wilson J.

38 In this case, too, there is no statutory requirement that the relevant authorization or determination be contained in one document. The purposes of the requirement for writing may adequately be served by reading two documents together. It follows that the second determination, when read with the first determination, satisfied all the requirements of s 7C.

39 In X, Finn J considered the same question, although it may have been presented in a slightly different way. Our reasons for dismissing the appeal are similar to his Honour’s reasoning concerning that question. The appellant has not, before us, raised the other matters considered by Finn J in X.

ORDERS

40 The appeal must be dismissed with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Dowsett and Lander.

Associate:



Dated: 28 April 2006

Counsel for the Appellant:	Mr Abbott QC Dr Bleby
Solicitor for the Appellant:	Patsouris & Associates
Counsel for the Respondents:	Ms Mortimer SC Ms Maharaj QC
Solicitor for the Respondents:	Australian Crime Commission
Date of Hearing:	15 & 24 August 2005 21 March 2006
Date of Judgment:	28 April 2006