GG v Australian Crime Commission [2010] FCAFC 15 (26 February 2010)

Last Updated: 2 March 2010

FEDERAL COURT OF AUSTRALIA

GG v Australian Crime Commission [2010] FCAFC 15

Citation:		GG v Australian Crime Commission [2010] FCAFC 15
Appeal from:		GG v Australian Crime Commission [2009] FCA 759
Parties:		GG v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON
File number:		SAD 117 of 2009
Judges:		DOWNES, JESSUP & TRACEY JJ
Date of judgment:		26 February 2010
Catchwords:		ADMINISTRATIVE LAW – Review of a decision of the Australian Crime Commission – Decision made under s 28 of the Australian Crime Commission Act 2002 (Cth) to issue a summons to the appellant – Whether the examiner made a jurisdictional error in failing to differentiate between a special operation and a special investigation – Where the examiner’s record of decision contains an error of law on the face of the record - Where no evidence or explanation given for the examiner’s apparent error – Where examiner fundamentally misunderstood the statutory basis for his authority to issue the summons – Appeal allowed
Legislation:		Acts Interpretation Act 1901 (Cth) s 20 Australian Crime Commission Act 2002 (Cth) ss 7A, 7A(b), 7B, 7B(3), 7C, 7C(1)(c), 7D, 7E, 28, 28(1), 28(1A), 28(3), 28(4), 28(7), 29, 29(1), 29(1A), 29(2), 46B Australian Federal Police Act 1979 (Cth) ss 17, 19(1) Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c)
Cases cited:		AB Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 175 FCR 296, referred to Australian Crime Commission v NTD8 (2009) 177 FCR 263, distinguished Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356, cited Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, cited Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, cited
Date of hearing:	16 and 17 November 2009
Date of last submissions:	17 November 2009
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	41

Counsel for the Appellant:	Mr M Abbott QC and Mr T Cox
Solicitor for the Appellant:	Patsouris & Associates
Counsel for the Respondents:	Ms S Maharaj QC & Ms J Gleeson
Solicitor for the Respondents:	Australian Crime Commission

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 117 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GG Appellant

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

JUDGES:	DOWNES, JESSUP & TRACEY JJ
DATE OF ORDER:	26 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the court on 20 July 2009 be set aside.

3. In place of those orders –

(a) it be declared that the summons issued by the second respondent on 23 October 2008 requiring the appellant to attend before him at 9.30 am on 10 November 2008 is invalid;

(b) it be ordered that the respondents pay the appellant’s costs.

4. The respondents pay the appellant’s costs of the appeal.

5. The operation of part (b) of order 3, and of order 4, above be stayed for 14 days.

6. The parties have liberty to apply on the matter of costs within the said period of 14 days.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 117 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GG Appellant

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

JUDGES:	DOWNES, JESSUP & TRACEY JJ
DATE:	26 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J

1 A decision by an examiner to issue a summons under s 28 of the Australian Crimes Commission Act 2002 (Cth) is an exercise of the executive power of the Commonwealth. Examiners exercising this power must approach their task with care, attending to the requirements of the Act and the general law. It is fundamental that examiners must understand the statutory basis upon which they are acting. The fact that decisions under the section may impose onerous obligations which will generally interfere with individual freedoms, serves only to emphasise this duty.

2 The examiner issuing the summons challenged before us failed to comply with these obligations. This is apparent from the errors and inconsistencies in the documents. Errors and inconsistencies in documents would not go unnoticed and would be corrected by an examiner properly exercising the power. The summons should be set aside.

3 I agree with the joint reasons of Jessup and Tracey JJ relating to the summons and with their reasons generally.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate: [sgd]

Dated: 26 February 2010

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 117 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

GG Appellant

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

JUDGES:	DOWNES, JESSUP & TRACEY JJ
DATE:	26 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

JESSUP & TRACEY JJ

4 This is an appeal from a judgment of a single Judge of the court given on 20 July 2009 in a proceeding in which the appellant sought declaratory and other relief, under s 39B of the Judiciary Act 1903 (Cth), against the first respondent, the Australian Crime Commission ("the Commission") constituted under the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") and against the second respondent, Jeffrey Philip Anderson ("the examiner"), an examiner appointed under s 46B of the ACC Act. The primary Judge dismissed the appellant’s application.

5 The proceeding before the primary Judge was complicated by the existence of a great many more issues than are necessary to determine on appeal (and, if we may so observe with respect to those involved, than had any realistic prospect of producing a positive outcome for the appellant). For present purposes, it will be sufficient if we identify the basic facts of the case as follows.

6 Acting under s 7C of the ACC Act, on 25 June 2008 the Board of the Commission ("the Board") authorised the Commission to investigate matters relating to "federally related criminal activity" referred to in a schedule to the instrument of authorisation. At the same time, the Board determined that the investigation would be a special investigation. The Board made this authorisation and determination at a meeting presided over by the Deputy Commissioner of Operations of the Australian Federal Police, Mr Tony Negus. The existence of the special investigation enlivened the provisions of Div 2 of Pt II of the ACC Act, which authorised an examiner (and, in the context of the present case, the examiner) to conduct an examination. Acting purportedly pursuant to the power given by s 28(1) of the ACC Act, on 23 October 2008 the examiner summoned the appellant to attend at 9:30 am on 10 November 2008 to give evidence of federally relevant criminal activity involving himself and other persons. The appellant did attend at that time, and his counsel submitted that he proposed to challenge the validity of the summons pursuant to which he attended. The examination was adjourned to permit that to be done. The proceeding before the primary Judge was the result of that challenge.

7 In that proceeding, the appellant challenged not only the summons under s 28 of the ACC Act, but also the authorisation and determination made under s 7C thereof. It is convenient to consider first the latter aspect of the appellant’s challenge. As his case was refined on appeal, the appellant’s point was that the meeting of the Board on 25 June 2008 was improperly constituted because the Commissioner of the Australian Federal Police was not presiding.

8 Section 7B of the ACC Act provides for the establishment of the Board. Subsection (2) provides as follows:

Board members (2) The Board consists of the following members: (a) the Commissioner of the Australian Federal Police; (b) the Secretary of the Department; (c) the Chief Executive Officer of Customs;

(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.

It is provided in s 7B(3) that "the Commissioner of the Australian Federal Police is the Chair of the Board". By s 7D of the ACC Act, the Chair of the Board has power to convene meetings of the Board. Section 7E provides as follows:

A meeting of the Board must be presided over by: (a) if the Chair of the Board is present – the Chair; or (b) otherwise – another eligible Commonwealth Board member who is present and who is nominated, in writing, by the Chair to preside.

9 As noted above, on the facts of the present case, the meeting of the Board on 25 June 2008 was presided over by Mr Negus. He was not the Commissioner of the Australian Federal Police. According to the appellant, that circumstance invalidated the proceedings of the meeting, including the constitution of the special investigation pursuant to which he was summoned to attend before the examiner.

10 According to the respondents, the appellant’s point is answered completely by s 20 of the Acts Interpretation Act 1901 (Cth) ("the AI Act"), which provides as follows:

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.

The respondents say that the reference to the Commissioner of the Australian Federal Police in s 7B of the ACC Act is a reference to a person "in general terms" within the meaning of s 20 of the AI Act and includes, therefore, all persons who occupied, or performed the duties of, the office of the Commissioner.

11 The respondents submit that, on 25 June 2008, Mr Negus was occupying for the time being, and was performing the duties of, the office of Chief Commissioner of the Australian Federal Police. That office is established under s 17 of the Australian Federal Police Act 1979 (Cth). Section 19(1) thereof provides as follows:

At any time when the Commissioner or a Deputy Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the Commissioner or a Deputy Commissioner, as the case may be, the next most senior member who is available has, and may exercise, all the powers (except a power to make a declaration under subsection 40D(4)), and shall perform all the functions and duties, of the Commissioner or the Deputy Commissioner, as the case may be.

On 3 June 2008, the Commissioner of the Australian Federal Police wrote a letter to Mr Negus in the following terms:

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 [be] 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.

Although s 19(1) operates according to its own terms, the reference to it in the Commissioner’s letter justifies the inference that Mr Negus was in fact "the next most senior member who is available" within the meaning of the subsection. No submission to the contrary was made on behalf of the appellant. In the circumstances, the respondents say that, on 25 June 2008, Mr Negus was performing the duties of Commissioner and, by the operation of s 20 of the AI Act, the reference to the Commissioner in s 7B(3) of the ACC Act included a reference to him.

12 The appellant resisted the respondents’ use of s 20 of the AI Act on two grounds. First, it was submitted that s 7B(3) of the ACC Act did not refer to the Commissioner of the Australian Federal Police "in general terms". Quite what terms would have been more "general" than those used by the subsection was never made clear. Section 20 is concerned with ensuring that the operation of a statute is not defeated when the occupant of an office referred to as such (and without any conspicuous concern with the identity of that occupant under particular circumstances) happens not to be in actual occupation of, or performing the duties of, the office at a particular time. As a matter of ordinary language, we consider that s 7B(3) uses general terms in the sense that it identifies a person by reference to the position occupied by him or her, rather than by reference to any special or particular characteristics of the person as an individual. Legislation which referred, for example, to "the Governor-General", to "the Solicitor-General", to the secretary of a Department or to the chief executive officer of an authority would, in our view, rightly be described as referring to any such officer "in general terms". Thus we reject the submission that s 7B(3) of the ACC Act does not refer to the position of Commissioner of the Australian Federal Police "in general terms".

13 The appellant’s second point with respect to s 20 is that the terms of the ACC Act evince a "contrary intention". We do not, however, perceive any contrary intention in the terms of s 7B of the ACC Act itself. If anything, quite the opposite. The reference, for example, to "the Commissioner or head (however described) of the Police Force of each state and of the Northern Territory" is a generic one. The concern of s 7B is to constitute the Board with whatever officials happen to be occupying the offices so identified. There is no concern with the individual identity of those officers so described. Further, s 7B identifies the most senior person in each of a number of relevant authorities and bodies, thereby constituting the Board in a representative way. We see absolutely no concern in these provisions with the individual identity of Board members.

14 As we understand the appellant’s submissions, it was not ultimately suggested that s 20 of the AI Act could not apply to Board members generally. However, it was submitted that, when one came to the position of Chair, the ACC Act evinced a contrary intention. However, apropos the application of s 20, we are unable to discern, in the terms of s 7B of the ACC Act, any relevant distinction between the Chair, and the other members, of the Board.

15 The appellant also relied on s 7E of the ACC Act. It was said that, by providing for a mechanism for the nomination of another "eligible Commonwealth Board member" to preside at a meeting of the Board, s 7E in effect amounted to a comprehensive statement of what should happen, and therefore of what was permissible, in the absence of the Chair. So much may be accepted, but, with respect to the problem presently at hand, the submission begs the question. Section 20 of the AI Act operates by reference to s 7B(3), not s 7E, of the ACC Act. That is to say, the Chair of the Board is either the Commissioner of the Australian Federal Police or, by the operation of s 20, the person who is occupying, or is performing the duties of, that position. So long as there is such a person, there will be a "Chair" for the purposes of s 7E. There may still be circumstances where that person will not be present at a particular meeting of the Board, and it is then that another eligible Commonwealth Board member may be nominated under s 7E(b). We do not see in s 7E of the ACC Act any intention contrary to the operation of s 20 of the AI Act with reference to s 7B(3) of the ACC Act.

16 For the above reasons, we reject the appellant’s contention that the meeting of the Board on 25 June 2008 was not properly constituted.

17 We turn next to the appellant’s challenge to the examiner’s summons issued on 23 October 2008. That challenge was based on a number of grounds, but, for reasons which will appear, it is necessary to refer to one only of them. That ground requires us to commence by adverting to the distinction which the ACC Act makes between an "operation" and an "investigation".

18 Under s 7A(b) of the ACC Act, it is a function of the Commission "to undertake, when authorised by the Board, intelligence operations". An "intelligence operation" is "the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity". Under s 7A(c), it is a function of the Commission "to investigate, when authorised by the Board, matters relating to federally relevant criminal activity". There is no definition of "investigation", but a "special ACC operation/investigation" is:

(a) an intelligence operation that the [Commission] 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 [Commission] is conducting and that the Board has determined to be a special investigation.

19 By s 7C(1)(c) of the ACC Act, it is a function of the Board to authorise the Commission to "undertake intelligence operations or to investigate matters relating to federally relevant criminal activity"; and, by paragraph (d) of the subsection, it is a function of the Board "to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation". Subsections (2) and (3) of s 7C are as follows:

(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.

(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.

20 From the provisions of the ACC Act to which we have referred, it is clear that an intelligence operation differs from an investigation in respects which are, or at least may be, important. In deciding whether the matter before it is "special", and requires a determination as such under s 7C, the Board is directed to consider different questions, and to inform itself by reference to different criteria, depending upon whether the matter is an intelligence operation or an investigation.

21 As we have said, s 28 of the ACC Act empowered the examiner to summon the appellant for the purposes of the special investigation. Subsections (1), (1A), (4) and (7) of s 28 are as follows:

(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. ...

(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.

...

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

22 Section 29 of the ACC Act is similar in many respects to s 28, but is concerned with the power of an examiner to obtain documents. Subsections (1), (1A) and (2) of s 29 are as follows:

(1) An examiner may, by notice in writing served on a person, require the person:

(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and

(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation.

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

(a) before the issue of the notice; or (b) at the same time as the issue of the notice; or (c) as soon as practicable after the issue of the notice.

(2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation.

23 On 23 October 2008, the examiner recorded his reasons for issuing the summons directed to the appellant. Although the name of it was redacted, the reasons identified an "operation" as providing the statutory authority for the summons. After stating the "purpose of summons" in terms which, as the document was put before the primary Judge, were partially redacted, the examiner’s reasons continued as follows:

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 (c) My knowledge obtained from a recent examination (sic). 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.

24 In the proceeding before the primary Judge, the respondents tendered each of the documents identified as (a) and (b) under the heading "Material Facts" in the extract set out above. Apart from formal details, the statement of facts and circumstances was almost wholly redacted. Some of those formal details, however, are presently relevant. The document provided, seemingly in the way of a pro-forma, for the insertion of "operation/investigation name". The words "special investigation", followed by a word or words that was or were redacted, were then set out. Item 14 on the document consisted of a sub-heading in the following terms: "A concise statement of the facts or circumstances that are the subject of the ACC investigation". Everything under that sub heading was redacted. Item 15 was as follows: "A concise statement of the purpose for which the examination is sought". Everything under that sub heading was also redacted.

25 The "legal submissions", referred to in (b) under the heading "Material Facts" in the examiner’s reasons, were only slightly redacted in the form in which they were tendered below. The submissions were organised under two numbered paragraphs, each serving as a sub heading for the discussion which followed on the matters to which it related. The first was paragraph 16 as follows:

A concise summary of the subject matter in respect of which the Board of the ACC has authorised the ACC to undertake a special intelligence operation, or the matters relating to federally relevant criminal activity in respect of which the Board of the ACC has authorised the ACC to undertake a special investigation:...

The second was paragraph 17 as follows:

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:...

26 Under paragraph 16, the submissions identified the special investigation the subject of the resolution of the Board of 25 June 2008, and the scope and objects of that investigation as identified in the schedule to that resolution. They referred to the connotation of "federally relevant criminal activity" and to that of the term "serious and organised crime" in the ACC Act. They identified the nature of the criminal allegations which were the subject of the special investigation, again as identified in the schedule to the Board’s resolution.

27 Under paragraph 17 in the submissions, the following first appeared:

I submit that it is reasonable in all the circumstances to issue a notice under subsection 29(1) of the Australian Crime Commission Act 2002.

Submissions – which were written in the first person singular – then proposed that the investigation was an investigation into federally relevant criminal activity, in that it related to an offence which had certain (partially redacted) characteristics. After dealing with those characteristics, and with certain other things that were also redacted in the form in which the document was tendered, the submission noted that "in addition to the legal requirements referred to above, the summons requires the attendance of [the appellant] to give evidence at an ACC examination". Save for a reference to the temporality of the suspected criminal activity, the remaining provisions of the submission were redacted.

28 It has been held by a single Judge of the court that s 28(1A) of the ACC Act neither obliges an examiner to provide reasons to the addressee of the summons nor entitles the addressee to receive a copy of the examiner’s record made under that subsection: Barnes v Boulton [2004] FCA 1219; (2004) 139 FCR 356 at 363. In the present case, the appellant accepted that position. However, subject to the redactions to which we have referred, the appellant had been provided with the record of the examiner’s reasons. He used that record, and the other documents referenced in it, in his challenge to the examiner’s decision that it was reasonable in all the circumstances to issue the summons. The respondents accepted that the legality of a decision under s 28 of the ACC Act, as such, was justiciable under s 39B of the Judiciary Act. They raised no objection to the court looking at the examiner’s record, and at the documents referred to in it, for the purpose of the challenge which the appellant made to the legality of the examiner’s decision. Indeed, the proceeding was conducted, both originally and on appeal, by reference to a close examination of those documents.

29 The appellant’s point (or at least one of his points) was that the examiner’s discretion to issue the summons under s 28 wholly miscarried because he misunderstood the nature of the task in which he was engaged. If the examiner had misunderstood his task, clearly his discretion would have miscarried, and the resulting summons would not be valid: Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177.

30 The appellant pointed to two circumstances as demonstrating that the examiner had misunderstood the nature of the task upon which he was engaged. First, in several places, his reasons suggested that he was of the view that it was a special operation, rather than a special investigation, which provided the statutory authority for the summons which he issued. The reasons were headed with the name of an operation (not of an investigation); the examiner said that he was satisfied that the operation (not investigation) was within the terms of the Board’s determination of 25 June 2008; he expressed his satisfaction under s 28(3) of the ACC Act that prejudice would arise if the summons stated beyond that which it did the general nature of the matters in relation to which he intended to question the appellant by reference to a special ACC operation (not investigation); and he stated his satisfaction under s 29A of the ACC Act (with respect to a notation to the effect that the disclosure of information about the summons is prohibited) by reference to anticipated prejudice to the effectiveness of the operation (not investigation). In each of these respects, according to the appellant, the examiner’s own record of reasons demonstrates that he perceived himself to be dealing with an operation, not an investigation.

31 Under s 28(7) of the ACC Act, the power to issue a summons is "not exercisable except for the purposes of a special ACC operation/investigation". When the definition of "special ACC operation/investigation" (see paragraph 15 above) is read into this provision, it is clear that the power to issue a summons is exercisable only for the purposes of the particular intelligence operation or investigation which provides statutory authority for the examiner’s act. It is, we consider, essential not only that the examiner is aware of whether the proceeding (to use a neutral term) before him or her is an intelligence operation or an investigation, but also that he or she directs his or her mind to the respects in which the issue of the summons will further the purposes thereof.

32 The second circumstance upon which the appellant relied in his contention that the examiner misunderstood the nature of the task upon which he was engaged was to be found in the legal submissions upon which the examiner relied in deciding to summon the appellant to attend to give evidence. In those submissions, the examiner was urged to issue a notice under s 29(1) of the ACC Act, not a summons under s 28(1) thereof. Although there are some passages in the submissions which would give some support for the notion that it was a s 28 summons that was being recommended, the actual submission, in terms, is that a s 29 notice should be issued. At best, the submissions are muddled in this respect. The examiner’s reliance upon them, without comment, as a basis for issuing a summons under s 28 justifies the strong inference either that he did not read them, or, if he did, that he truly considered that he was concerned with s 29, rather than with s 28.

33 We are bound to say that the respondents did not have any satisfactory answer to the problems to which we have adverted. It was submitted on their behalf, in effect, that the terms of the examiner’s reasons, and of the legal submissions which he had before him, contained inconsequential slip ups of the kind that often occur when standard form documents are used across different situations. It was said that, looking at the documents generally, we should accept that the examiner well knew that he was issuing a summons under s 28, and that he was dealing with a special investigation, rather than with a special intelligence operation. In the latter respect, it was pointed out that the Board’s determination (which, ex facie, related to an investigation) was (as required by s 28(2)) attached to the summons. It was said that the examiner must surely have known that he was operating under s 28 and with reference to a special investigation.

34 The respondents also supported the way in which the primary Judge dealt with this aspect of the appellant’s case. With respect to the distinction between an intelligence operation and an investigation, his Honour said:

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]).

With respect to the distinction between the power arising under s 28 and the power arising under s 29, his Honour said:

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.

35 In Australian Crime Commission v NTD8 (2009) 177 FCR 263 at 270, the Full Court endorsed the following observation by Flick J in AB Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 175 FCR 296 at 313:

[T] he reasons as provided bear some of the hallmarks of a lack of attention being given by the examiner to the task being undertaken and some of the hallmarks of a standard form of reasons employed in such other instances upon which the examiner may have been called upon to exercise the power conferred by s 29. There is, for instance, not only the unacceptable brevity of the reasons provided but there is also a lack of attention as to whether the examiner was conducting a "special operation" or a "special investigation". The notices record that a "special operation" was being undertaken – but the record of the reasons does not consider it appropriate to confine itself in a like manner. Those against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked.

36 The formulaic statements of satisfaction in AB Pty Ltd and in NTD8 bear a strong similarity to the corresponding statements in the evidence before the primary Judge in the present case. In NTD8, the power being exercised was that for which s 29 of the ACC Act provides, and there was no suggestion of a confusion with s 28. The Full Court’s concern was that the terms of the reasons given under s 29(1A) (which corresponds with s 28(1A)) were so cursory, and so much in the way of a mere recital of the terms of the statutory criteria, as to cause one to doubt whether they amounted to a record of reasons at all. However, their Honours were not required to decide the case on that basis, principally because, as we read their reasons, the examiner had given evidence at first instance. How he approached the issue of the s 29 notice, and the way he exercised his discretion, were matters of primary evidence.

37 In the present case, we are obliged to confront the questions which did not need to be determined in NTD8 (or, for that matter, in AB Pty Ltd). Here, the examiner did not give evidence; and the only evidence of his reasons is that set out in the written record made under s 28(1A) and the legal submissions upon which he relied. Had the examiner given evidence below that he was well aware that the documents which were before him (and, with respect to the reasons themselves, of which he was the author) followed a standard formula, that he was not misled thereby, that he well understood the nature of the investigation which gave him statutory authority to issue the summons, that he was quite conscious of the task in which he was engaged, and that he had good reasons for acting as he did, the case might have presented very differently. However, that was not the state of the evidence below. On the case as it was presented, we cannot agree that the problems which so clearly appear from the documents were properly regarded as errors which could be forgiven, or as no more than the result of the use of standard form documents without substantive consequences.

38 A summons under s 28 of the ACC Act, if valid, requires the person to whom it is addressed to attend for examination, at which time he or she may be required to take an oath or affirmation and to answer questions. Such a person, it must be remembered, is presumptively one who has not been charged with any offence and, indeed, one who need not even be suspected of having committed any offence. The function of issuing a summons under s 28 is a serious one, and a court should not be so cynical to infer, without any evidence from its author, that a document probably does not mean what it says. With respect to the primary Judge, therefore, we do not agree with the way in which his Honour disposed of the appellant’s challenges to the examiner’s decision under s 28(1) of the ACC Act.

39 In our view, the only evidence before his Honour, and before this Full Court, of the way in which the examiner approached his task under s 28(1) strongly bespeaks a fundamental misunderstanding of the statutory basis of authority which the examiner had for the issue of a summons. Consistently with the authorities to which we have referred in paragraph 26 above, we are of the view that the discretion which the examiner exercised in relevant respects miscarried.

40 The only relief which the appellant sought was by way of declaration. Such a remedy is amply comprehended within the jurisdiction given by s 39B(1A)(c) of the Judiciary Act, and it was not submitted on behalf of the respondents that, if otherwise justified, a declaration should be refused on discretionary grounds.

41 For the foregoing reasons, we would allow the appeal and make the declaration sought by the appellant. We would order the respondents to pay the appellant’s costs – both at first instance and on appeal - but, lest there should be any circumstances of which we are unaware which may bear upon the appellant’s entitlement to those costs, the operation of those orders should be stayed for 14 days, with liberty to apply.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup & Tracey.

Associate: [sgd]

Dated: 26 February 2010