FEDERAL COURT OF AUSTRALIA

CXXXVIII v Commonwealth of Australia [2019] FCAFC 54

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    I have had the advantage of reading in draft the reasons for judgement of Charlesworth J. I agree with her Honour, for the reasons which she gives, that there is no merit in grounds 1 to 4 in the notice of appeal. Where I respectfully differ from her Honour is in relation to the fate of ground 5. This ground relates to the second notice. For the reasons given below, I consider that ground 5 has merit.

2    The facts pertinent to ground 5, the reasons of the learned primary judge and the submissions of the parties are each summarised by Charlesworth J. I repeat only so much of these as is necessary to explain my reasons for judgement. For consistency, I adopt her Honour’s abbreviations.

3    Ground 5 raises for consideration whether the second notice to produce exceeded the power conferred by s 21A of the Act because:

(a)    it imposed an incoherent requirement to produce a thing at the time and place of service with an express requirement to produce items in “possession, custody and control”; and

(b)    no reasonable examiner could be satisfied that it was “reasonable” to issue a notice in those terms.

4    Section 21A(1) of the Act provides:

Notices to produce a document or thing

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

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

(b)    to produce to that person at that time and place a specified document or thing relevant to a special ACC operation/investigation;

if the examiner is satisfied that issuing the notice is reasonable in all the circumstances.

Note: The examiner may need to include a notation in the notice (see section 21B).

5    In formulating the notice, the time for compliance, the examiner has specified is, materially, “produce forthwith at the time and place of service the documents or things specified in the Schedule to this Notice relevant to the special ACIC investigation”. In the Schedule, the notice states, “You are required to produce the following things in your possession, custody or control”, followed by an itemised list.

6    Neither the word, “forthwith” nor the expression, “possession, custody or control” appears in s 21A. That is not to say that the use of either in a notice necessarily renders that notice beyond the scope of the power to order production conferred by s 21A(1)(b).

7    The word “forthwith” is frequently employed in legal drafting. Of course it must take its meaning from the context in which it is employed but usually it means as soon as is reasonably practical and, in particular, without deliberate or unnecessary delay: Stroud’s Judicial Dictionary (8th Edition, 2012), p 1124.

8    In the Federal Court Rules 1979 (Cth) (since repealed), O 35, r 4(1), it was a requirement that “an order which requires a person to do an act shall specify the time within which he is required to do the act”. That is very similar to the requirement in s 21A(1) of the Act that a notice stipulate a “specified time”. In Australian Securities Commission v MacLeod (No 2) (1993) 40 FCR 461 (MacLeod), it fell to Drummond J, in the context of determining a motion for contempt, to consider whether an order which required a list of property to be delivered “forthwith upon service of a copy of this order” was a sufficient delimitation of the period of time for the doing of that act for the purposes of that rule of court. His Honour held that it was. In the course of so doing, Drummond J offered, at 464 – 465, a most helpful survey of pertinent authority. The passage concerned is a little lengthy but, in my view, his Honour’s summary is relevant by analogy. I therefore set it out in full:

In Freeman v Trimble (1906) 6 SR (NSW) 133, Simpson CJ in Eq dismissed contempt proceedings against a person in possession of certain documents who had been ordered to “forthwith deliver over the same” to a receiver because the stipulation in the order that the documents were to be delivered “forthwith” was not a sufficient compliance with a rule of court similar to O 35, r 4(1). Simpson CJ preferred the obiter dictum of Jessel MR in Gilbert v Endean (1878) 9 Ch D 259 at 266 and a statement in H W Seton, Forms of Decrees, Judgments and Orders In Equity (6th ed) to the decision in the contempt case of Thomas v Nokes (1868) LR 6 Eq 521, saying that the “preponderance of authority” favoured the view that “forthwith” was not sufficient. The preponderance of authority, however, now very much favours the contrary opinion of the Master of the Rolls in Thomas v Nokes (supra): see Halsbury's Laws of England (4th ed, 1974), Vol 9, par 60, note 2 and G J Borrie and N V Lowe, The Law of Contempt (2nd ed, 1983), p 427, note 4.

In the context of a statutory provision, Harmon LJ in Hillingdon London Borough Council v Cutler [1968] 1 QB 124 at 135 said:

“... ‘forthwith’ is not a precise time and, provided that no harm is done, ‘forthwith’ means any reasonable time thereafter ... it may involve action within days: it may not involve action for years ...”

This reflects the meanings that “forthwith” can have. In the Macquarie Dictionary the following appear as meanings of “forthwith”: “(1) immediately; at once; without delay; (2) as soon as can reasonably be expected.

9    Having offered this summary, Drummond J stated at 465:

It is certainly preferable for an order to specify, by reference to a nominated number of days or other intervals of time, the period within which an act required by an order must be done, especially in a case in which there is any possibility that the order will not be complied with. But I am not prepared to hold that this word, so commonly used in statutes, subordinate legislation and commercial documents, is a delimitation of the period of time within which an order can require an act to be done that is insufficient for the purposes of the rule. There is nothing in the words of O 35, r 4 that would require a contrary conclusion.

10    In Egglishaw v Australian Crime Commission (No 3) (2009) 259 ALR 458 (Egglishaw), in respect of the power of an examiner to order production then found in s 29 of the Act, Besanko J necessarily assumed that it authorised the specification of “forthwith” as the time for production, in holding that the specification was not, in the circumstances, unreasonable. Even though MacLeod was not cited by his Honour, the outcome in Egglishaw is consistent with the views expressed by Drummond J about the meaning of that word “forthwith” and the conclusion reached by his Honour.

11    In my view, for like reasons to those given by Drummond J in MacLeod, “forthwith” is a permissible specification of a time for production for the purposes of s 21A of the Act.

12    As Drummond J highlighted by reference to the Macquarie Dictionary in the passage from MacLeod quoted, one but not the only meaning that “forthwith” can convey is “immediately”. The difficulty is that, in this notice, the examiner has chosen to augment it with “at the time and place of service”. The result, in my view, is a confusion of temporal specifications on the face of the notice or, as the appellant put it, incoherence. The language chosen by the examiner is qualitatively different to that upheld as permissible by Drummond J in MacLeod. Instead of “forthwith upon service”, whereby the measuring of compliance with the requirement “forthwith” runs from the moment of service, the examiner has chosen two different temporal measures, “at the time … of service”, which is the moment of service, and “forthwith”, which looks to me to run from the time of service. I do not consider that it is possible to construe the requirement as just meaning, ‘immediately at the time of service’.

13    It may be that the appellant could produce an item specified in the schedule to the notice not at the time of service of the notice but within a reasonable time thereafter. That would mean that production occurred “forthwith” but it would not be at the time of service. In circumstances where non-compliance may be attended with a penal consequence of imprisonment for up to five years, such confusion in a notice is unacceptable. To formulate a notice in such terms is not just unreasonable; it is unauthorised by s 21A. That is because, contrary to the requirement found in that section, the notice specifies not one time for production but two, leaving it uncertain as to when production is required.

14    It was put that severance was possible. In relation to severance of specifications in search warrants, the relevant authorities were summarised by Wigney J in Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 at [227] – [231] in a passage approved by the Full Court on the subsequent appeal: Caratti v Commissioner of Australian Federal Police (2017) 257 FCR 166 (Caratti) at [46]. Assuming in the respondent’s favour that those principles are relevant by analogy to a notice to produce, then, as the Full Court observed in Caratti at [47], “the key issue in determining whether severance can take place is whether the invalid part of the search warrant can be separated from the valid parts remaining”. The problem in the present case would then be that separation is just not possible. The result of the examiner’s infelicitous drafting of the notice is that temporal differentiation is impossible.

15    It is, to say the least, a very moot point indeed as to whether the validity of the notice should be measured by analogy by principles developed in relation to the validity of search warrants. The general principles with respect to the latter were canvassed in detail by the Full Court in Caratti, including, at [40], recognition that what had emerged was “a test of sufficiency to indicate the area of search, not precision or particular accuracy”. This was informed by practical considerations relating to the opaque knowledge of events that may attend the stage of an investigation when a search warrant is sought and also practical considerations attending the execution of a search and identification of material falling within its terms. Different considerations arise in relation to statutory notices to produce.

16    A separate body of authority, not canvassed in either Caratti or Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, a notable earlier case in the Full Court with respect to the validity of search warrants, has developed in relation to the validity of notices to produce issued pursuant to statutory powers to require by notice production of particular documents or things. This body of authority is the more apt in the circumstances of the present case, in my view.

17    A leading case in this line is Commissioner of Taxation v Australia & New Zealand Banking Group Ltd; Smorgon v Commissioner of Taxation (1979) 143 CLR 499 at 515 (Smorgon). In Smorgon, at 537, Mason J observed in relation to notices purportedly issued under the power of the Commissioner of Taxation to require production then found in s 264 of the Income Tax Assessment Act 1936 (Cth), “[a]s the Commissioner’s coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid.” That statement, in my view, has like application to a notice purportedly issued under s 21A of the Act.

18    Here, s 21A of the Act mandates what some other statutory production powers carry with them by necessary implication, namely, the specification of a time for production. Whether present explicitly or by implication, the compliance time specification for production must be reasonable: McVey v Commissioner of Pay-roll Tax (Vic) (1985) 16 ATR 413 and Clarke v Deputy Commissioner of Taxation (1988) 20 ATR 701 (Clarke). In Clarke, Spender J, at 709, collected and summarised a number of authorities concerning the reasonableness of the allowance of time for production in statutory notices to produce:

A notice under s 264 must allow a reasonable time for compliance. In Ganke v DCT (NSW) (1975) 5 ATR 292; 25 FLR 98, Nagle J (with whom Street CJ and Begg J agreed) said at (ATR) 297; (FLR) 105:

… I feel that where one implies into the section a giving of time, or a prescribing of time, that time must be “a reasonable time”. To this effect I wish to call attention to the remarks of Wallace P in R v Skurray (1967) 86 WN (Pt 1) (NSW) 1 at 3: “It is well settled, and good sense, that where a penal provision requires an act to be done either without a time being stipulated, or even where the act must be done “forthwith”, a reasonable time is implied sufficient to enable performance to be effected.

Yeldham J indicated in Ganke v DCT (NSW) (1982) 13 ATR 440 at 443; 78 FLR 455 at 458 that, normally, whether a reasonable time had been allowed was a question of fact. The test is an objective one. He concluded:

I think that a conclusion that a period of 14 days was sufficient to enable a public company to lodge returns for seven years is so unreasonable that it denotes an error of law on the part of the tribunal of fact.

The time frame here was very short, but the nature of the enquiries to be made, the volume of material to be examined, the likely extent of the existence of circumstances calling for further enquiry of affected clients, are factors that, in my opinion, do not permit a conclusion that the time allowed for compliance was so unreasonable that no reasonable person in the position of Mr Newton could have fixed it.

19    Elliott v Deputy Commissioner of Taxation (1990) 21 ATR 283 (Elliott) is another case in which a challenge was made to the validity of a statutory notice to produce on grounds which included that the time allowed for production was unreasonable. It is of assistance in the present context because of the allowance by Burchett J, at 289, that a notice which required both production and attendance to give evidence would not necessarily be rendered wholly invalid by non-compliance with statutory requirements in relation to production, the obligation to give evidence being severable. It would be consistent with Elliott to approach the present case on the basis that, if a portion of the production requirement could be seen to be in conformity with s 21A of the Act and the language of the notice admitted of severance, then the notice would not be wholly invalid. Melbourne Home of Ford Pty Ltd v Trade Practices Commission [No 2] (1979) 40 FLR 428 in which Smithers J declared particular production obligations to be beyond power but otherwise upheld the validity of the notice, offers an example of this type of severance.

20    Unreasonableness in a temporal specification in a notice to produce might be found just on the face of the notice or as a matter of fact flowing from the nature and extent of what is required to be produced within the time specified in the notice. The present is in the former category of case. The temporal inconsistency is apparent on the face of the notice. Severance is not possible. It was for the examiner, not the Court, to specify a time and to do so in a way which was not inextricably confusing. The present case is quite different to those cases where it is possible to sever from a production notice a specified requirement which falls within the terms of the governing statutory power from another which falls outside the terms of the statutory power.

21    I do not, with respect, consider that validity can be given to the notice by reading it as if the adjective, “immediate” governed “possession, custody or control”.

22    As with “forthwith”, the expression, “possession, custody or control” or cognates are frequently employed in legal drafting. In Goeben Pty Ltd v Chief Executive Officer of Customs (No 2) (1996) 68 FCR 301 (Goeben), at 306-307, Davies J made the following observations as to the meaning of the expression:

The expression “possession, custody or control”, which appears in s 33 of the Tobacco Act, is a common one. It is used by courts in relation to subpoenae duces tecum: see eg Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 143, per Mason J. The term appears in s 35A of the Customs Act. A similar term “possession, custody or power” is used in the Federal Court Rules 1979 (Cth) with respect to discovery of documents.

Such terms have a wide denotation. In Commissioner of Taxation (Cth) v Australian & New Zealand Banking Group Ltd; Smorgon v Commissioner of Taxation (1979) 143 CLR 499, where the term in question was “in his custody or under his control” in s 264(1) of the Income Tax Assessment Act 1936 (Cth), Mason J said (at 532-533):

“The primary definition of ‘custody’ in the Shorter Oxford English Dictionary is ‘Safe keeping, protection; charge, care, guardianship’.

…

The content of ‘control’ is somewhat different from that of ‘custody’; however, both are ‘wide enough to include many types of possession which are not commensurate with full ownership’ (Johnston, Fear and Kingham v Commonwealth (1943) 67 CLR 314 at p 324, per Rich J). It is difficult to ascribe a precise meaning to ‘control’ in s 264 as the content of the word is normally dictated by its context and can vary from sole absolute dominion over the object ‘controlled’ to ‘something weaker than “restraint”, something equivalent to “regulation”’ (Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 385, per Dixon J). Although the use of the composite expression ‘in his custody or under his control’ does not assist us in determining the precise limits of the meaning of ‘control’, it does evidence a legislative intention to employ the words in their widest sense.

…

There is to my mind no reason to limit the scope of ‘custody and control’ to ‘exclusive custody and control’.”

23    As his Honour pointed out, the term may comprehend both an agent who has actual corporeal control of goods or documents and the person on whose behalf those goods or documents are held. And the custody or control need not be exclusive.

24    An appeal from his Honour’s judgement was later dismissed by the Full Court: Goeben Pty Ltd v Chief Executive Officer of Customs (1997) 74 FCR 36.

25    Once again, regard must be had to context but, when the expression, “possession, custody or control” is read in the context of the notice, no different meaning to that given to it in the authorities referred to by Davies J in Goeben is evident in the present case. Later in time but to different effect is another customs case, Comptroller General of Customs v Zappia (2018) 92 ALJR 1053, in which, at [30], Kiefel CJ, Bell, Gageler and Gordon JJ observed of the expression, “possession, custody or control” that “none of the terms, “possession”, “custody” or “control” has a fixed legal meaning” and that, “the power or authority of a person in relation to a thing connoted by any one or more of those terms in statutory collocation is a question of degree”. As these observations indicate, the expression fell for construction in a statutory context but the context of its use in the second notice is, in my view, such as to make the following further observations in respect of the expression in the joint judgement, at [32], relevant by analogy:

The reference to “the possession, custody or control” of dutiable goods is appropriately construed as a compendious reference to that degree of power or authority which is sufficient to enable a person to meet the [statutory] obligations …

In the present case, the reference to “possession, custody or control” is, in my view, appropriately construed as a compendious reference to that degree of power or authority in respect of the items in the schedule which is sufficient to allow the appellant to produce them.

26    There is no occasion, arising from the language of the notice, to introduce the word “immediate” by implication. To qualify the expression “possession, custody or control” by the adjective, “immediate” would leave the temporal confusion described intact. Severance is one thing; introducing into a notice a word which the examiner did not employ is quite another. Further, the price of introducing the word would be creating a different uncertainty in the notice. If, for example, the appellant had electronic communications devices not on his person at the time when the notice was served on him but, instead, at other premises under his control or even just in his luggage, now off-loaded from an aircraft and moving around a conveyor belt in the arrivals area of the airport, would that fall within or outside the ambit of the production obligation if the qualifier, “immediate” were present? To introduce that adjective may be to raise different questions on the facts as to whether the requirement made of the appellant by the notice was or was not reasonable and hence beyond what s 21A lawfully authorised. If the examiner had intended immediate of compliance, the place for that was in the temporal specification.

27    The temporal specification being one which governed all that was sought to be produced and incapable of severance, it follows that the second notice is wholly invalid. It failed to comply with the requirement found in s 21A of the Act that it specify a time for production.

28    For these reasons, I would declare that the second notice is invalid.

Associate:     

Dated:    3 April 2019

REASONS FOR JUDGMENT

BROMWICH J:

29    I agree with Charlesworth J and with her Honour’s reasons, save to the extent that my reasons as to why appeal ground 5 must be dismissed are slightly different. I do not consider that there is any process of implication required to give meaning to the second notice or to find that it is valid. What was required for compliance was confined by its terms.

30    The second notice was valid according to its terms as properly understood, and was apparently fully complied with by the appellant. There was no obligation imposed upon him to produce anything described in the schedule to that notice that was not capable of being produced “forthwith at the time and place of service”. He had no obligation to produce anything of the type described that was not capable of being produced by him there and then. There is no suggestion that he had anything in his possession, custody or control at the time and place that the second notice was served on him that met the description of what was required to be produced beyond what was in fact produced. If that were to be proven to be incorrect, then only to that extent would there be a failure to comply with the second notice. 

31    Even if a declaration had been sought below, or on appeal, as to the limited effect of the second notice, such a declaration would have nothing useful to say as it would be directed to what the appellant was not required to produce. Declaratory relief must focus on the determination of legal controversies, and is not an appropriate power to be exercised in respect of circumstances that have not occurred and might never happen, or will produce no foreseeable consequences for the parties: Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; 120 IPR 133 at [77], citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582. In light of the conclusion that I have reached, no consequence could arise from it being shown that the appellant had not produced an item described in the notice that was not in his possession, custody or control at the time and place that the second notice was served on him.

32    The appeal should be dismissed with costs.

Associate:

Dated:    3 April 2019

REASONS FOR JUDGMENT

CHARLESWORTH J:

33    This appeal concerns the validity of two summonses and two notices to produce served on the appellant by officers of the Australian Crime Commission (ACC) under or purportedly under the Australian Crime Commission Act 2002 (Cth).

34    The first summons and the first notice were served on the appellant at Adelaide Airport on 26 June 2018. On the following day the appellant commenced an application for judicial review in the Federal Circuit Court (FCC) under s 5 and s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the first summons and the first notice.

35    The second summons and the second notice were served on the appellant on 28 June 2018 at the offices of his solicitor. Shortly afterward, the appellant amended his originating application for judicial review so as to include a challenge to the validity of the second summons and the second notice.

36    In the proceedings before the primary judge, the respondents conceded that the first summons and the first notice were invalid and so of no legal effect. The primary judge otherwise rejected the grounds for review challenging the validity of the second summons and the second notice: CXXXVIII v Australian Criminal Intelligence Commission & Anor [2018] FCCA 2400 at [152].

ISSUES AND OUTCOME

37    The amended notice of appeal contains six grounds. Grounds one to five are pressed. They broadly raise three issues.

38    The first issue is whether the primary judge erred in failing to make a finding that the first notice and the first summons were invalid and in failing to grant declaratory relief to that effect. There is no appealable error of the kind asserted: see [67] – [76] below.

39    The second issue, described by the appellant as the principal issue on the appeal, is whether the primary judge erred in failing to find that a determination made by the Board of the ACC was incapable of validly supporting the issue of the second summons and the second notice. The second summons and the second notice are not invalid for the reasons contended for by the appellant: see [78] – [123] below.

40    The third issue is whether the primary judge erred in failing to find that the second notice was invalid because, or to the extent that, it imposed obligations on the appellant with which it was impossible to comply. This issue is raised by the fifth ground of appeal. For the reasons given at [125] – [149] below, when property construed, the second notice is not invalid. Accordingly I would order that the appeal be dismissed.

41    Before turning to the grounds of appeal it is necessary to survey the provisions of the Act and the relevant instruments that are said by the ACC to validly support the issue of the second summons and the second notice.

THE ACT

42    Section 7 of the Act establishes the Australian Crime Commission, defined in the Act by the abbreviation ACC: see s 4(1). The Act makes provision for the ACC to change its name, which it did from 1 July 2016. The now-named Australian Criminal Intelligence Commission (ACIC) is the same body referred to in the Act as the ACC. In these reasons it is convenient to use the abbreviation ACC.

43    Section 7B of the Act establishes the Board of the ACC. The Chair of the Board is the Commissioner of the Australian Federal Police. The Board’s membership otherwise includes the head of the police force of each State of Australia and of the Northern Territory and the Australian Capital Territory.

Functions and powers of the Board

44    The functions of the Board are prescribed in s 7C. The functions conferred by s 7C(1)(c) and (d) have particular significance for this appeal:

(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;

45    The expression “federally relevant criminal activity” is defined in s 4(1) of the Act to mean a relevant criminal activity where the relevant crime is either an offence against a law of the Commonwealth or a Territory or an offence against a law of a State having a federal aspect. The expression “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. The expression “relevant crime” is defined to include “serious and organised crime”. That phrase, too, is defined, although nothing on this appeal turns on its meaning.

46    Section 7C(3) provides that the Board may determine, “in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, [the Board] must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity” (my emphasis).

47    The emphasised words were inserted by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) in 2015. Prior to that amendment, Hayne and Bell JJ (Kiefel J agreeing) in X7 v Australian Crime Commission (2013) 248 CLR 92 said this of the words “consider” and “effective”:

146    …  Although s 7C(3) provides that a ‘special investigation’ cannot be undertaken without the Board of the ACC first considering ‘whether ordinary police methods of investigation into the matters are likely to be effective’, it must be read as requiring the Board of the ACC not only to consider this question, but also to determine that ordinary police methods are not ‘likely to be effective’. In the context of the ACC Act, ‘effective’ can and must be understood as meaning ‘effective to permit the laying of charges against offenders’. The word ‘effective’ cannot and should not be read, in the context of the ACC Act generally, or in the particular context of s 7C(3), as embracing any larger task of deciding whether individual criminal guilt is demonstrated. It is only by the engagement of judicial power consequent upon the laying of a charge that individual criminal guilt will be determined.

147    The ACC may therefore execute its function of investigating matters relating to federally relevant criminal activity by using the extraordinary processes of compulsory examination only when the Board of the ACC has determined that ordinary police methods are not ‘likely to be effective’ to lead to the laying of charges.  …

48    In light of this passage and the subsequent amendment, s 7C(3) must now be construed as requiring the Board to not only consider whether but to decide that, ordinary police methods are not likely to be effective “at understanding, disrupting or preventing the federally relevant criminal activity” before making a determination that an investigation is a special investigation.

49    Section 7C(4) provides that a determination made under s 7C(3) must:

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

(b)    state that the relevant crime is, or the relevant 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.

Functions and powers of the ACC

50    It is a function of the ACC to investigate, when authorised by the Board, matters relating to federally relevant criminal activity and to provide reports to the Board on the “outcomes” of its investigation: s 7A(c) and (d).

51    Relevantly, s 4(1) of the Act defines the expressions “ACC operation/investigation” and “special ACC operation/investigation” as follows:

ACC operation/investigation means:

…

(b)    an investigation into matters relating to federally relevant criminal activity that the ACC is conducting.

…

special ACC operation/investigation means:

…

(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.

52    These expressions are used throughout the Act to differentiate between investigations that are the subject of a determination made by the Board under s 7C(3) and investigations that are not. The powers that may be exercised by the ACC depend upon whether an investigation being conducted by the ACC has been determined by the Board to be special. As such, the valid exercise of the invasive and coercive powers conferred for the purposes of a “special” ACC investigation necessarily depends upon the legality of the determination giving the investigation that character.

53    This appeal concerns two coercive powers conferred under Pt II of the Act: the power to issue a notice to produce a document or thing conferred by s 21A of the Act and the power conferred by s 28 of the Act to compel, by summons, a person to appear before the ACC for examination. These powers may only be exercised by persons appointed as examiners pursuant to s 46B of the Act. The third respondent is such a person.

54    Subject to its terms, s 21A of the Act provides that an examiner may, by issuing a written notice served on a person, require the person to attend at a specified time and place before a member of the staff of the ACC and to produce to that person “at that time and place” a specified document or thing relevant to a special ACC investigation. A person served with such a notice commits an offence if he or she does not comply with it: s 21A(4).

55    Section 24A(1) of the Act provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation. The examiner may summon a person to appear before an examiner at such an examination to give evidence, or to produce any document or thing referred to in the summons, or both: s 28(1). The power to issue a summons may not be exercised except for the purposes of a special ACC operation/investigation: s 28(7).

56    A summons requiring a person to appear at an examination must be accompanied by a copy of the determination of the Board that the investigation into matters relating to federally relevant criminal activity being conducted by the ACC is a special investigation: s 28(2). In addition, a summons shall, in accordance with s 28(3):

… unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.

INSTRUMENTS

57    On 4 September 2013 the Board made the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 (2013 Instrument). The Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) Amendment No.1 of 2016 (2016 Instrument) was made by the Board on 8 June 2016. As its title suggests, the 2016 Instrument effected amendments to the 2013 Instrument. The two instruments read together may be referred to as the Amended Instrument, although they are not consolidated.

58    Paragraphs 4 and 6 of the 2013 Instrument, were originally expressed as follows:

4    Authorisation

Pursuant to paragraph 7C(1)(c) and subsection 7A(c) of the Act, the Board authorises the ACC to investigate specified criminal activity until 30 June 2016.

…

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 specified criminal activity are likely to be effective;

(b)    determines that ordinary police methods of investigation into specified criminal activity are not likely to be effective; and

(c)    determines that the investigation authorised by this instrument is a special investigation.

59    By the 2016 Instrument, the words “until 30 June 2016” were deleted from para 4 and the following was inserted after para 6(c):

On 8 June 2016, the Board before making the amendment to paragraph 4:

(i)    considered whether ordinary police methods of investigation into the specified criminal activity are likely to be effective at understanding, disrupting or preventing the specified criminal activity;

(ii)    determined that ordinary police methods of investigation into the specified criminal activity are not likely to be effective at understanding, disrupting or preventing the specified criminal activity; and

(iii)    determines that the investigation authorised by this instrument, as amended, remains a special investigation.

60    The Amended Instrument contains a request that the ACC provide a report to the Board on the outcomes of the investigation at or before the first Board meeting after 30 June 2016 and 30 June each year thereafter: 2013 Instrument, para 5; 2016 Instrument, para 3.

61    Paragraph 9 of the Amended Instrument describes the purposes of the investigation in the following terms:

9    Purposes of the investigation

The purposes of the investigation are;

(a)    to collect and analyse criminal information and intelligence relating to specified criminal activity by HRCTs and associated entities, to disseminate that information and intelligence in accordance with the Act and to report to the Board; and

(b)    to identify entities involved in specified criminal activity by HRCTs, to collect evidence about that activity, and to facilitate the apprehension, and if appropriate, the prosecution of such entities (including through the referral of information to other bodies); and

(c)    to reduce the incidence and effect of specified criminal activity by HRCTs (including any adverse impacts on Australia’s national interests) including through:-

  (i)    disruption and prevention;

(ii)    making the markets, sectors, infrastructure and capabilities exploited by HRCTs more resilient to HRCT activity; and

(d)    to make appropriate recommendations to the Board and other bodies about reform of:

(i)    the law relating to relevant offences;

(ii)    relevant administrative practices; and

(iii)    the administration of the courts in relation to trials of relevant offences.

62    The “specified criminal activity” referred to in paras 4 and 9 is defined to mean “the federally relevant criminal activity described in Schedule 1”. Clause 1 of Sch 1 describes the “matter to be investigated” as whether, in accordance with the allegations mentioned in cl 3 and the circumstances mentioned in cl 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 the future be committed;

and, if so, the nature and extent of that activity and the identity and role of entities involved in it.

63    Clause 3 states that the general nature of the allegations constituting federally relevant criminal activity are that persons defined as “highest risk criminal targets” (HRCTs) may be engaged in concert with one another or with other entities in one or more activities specified in a list itemised (a) to (k). The listed activities include “serious drug offences” (a), “cross-border firearms trafficking” (c), “tax evasion” (e), “money laundering” (f) and “identity crime” (i), contrary to laws specified in respect of each activity. The offences referred to fall within the phrase “serious and organised crime” as defined in s 4(1) of the Act.

64    HRCTs are defined in para 3 of the Amended Instrument to mean persons or entities that an authorised ACC officer has reasonable grounds for suspecting:

  (a)    may be engaged in specified criminal activity in one or more jurisdiction;

(b)    may have a high level of intent and ability to commit specified criminal activity; and

  (c)    may have one or more of the following attributes:

  (i)    a high degree of resilience to disruption by law enforcement;

(ii)    a thorough understanding of law enforcement methodology and its limitations and employ counter-strategies;

  (iii)    access to law enforcement or regulatory information;

  (iv)    a willingness and capacity to corrupt officials;

(v)    a willingness and capacity to pervert the course of justice through the intimidation of witnesses and officials and the use of violence;

65    Clause 2 of Sch 1 is expressed as follows:

2    Circumstances

The general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, occurring are those implied or suggested from information available to the ACC and other Australian law enforcement agencies indicating that:

(a)    HRCTs are responsible for a significant proportion of serious and organised crime, and represent a serious risk to Australia’s economy, business and institutions and thereby Australia’s national interests;

(b)    HRCTs are typically involved in the trade of illicit commodities such as drugs and firearms but may be enablers of criminal activity (e.g. through the provision of money laundering services or secure communications). HRCTs are increasingly involved in cyber and technology enabled crime and have international linkages; or

(c)    HRCT criminal activity is resilient to traditional law enforcement investigations and ACC experience with the investigation of such HRCT activity indicates that, to be effective, ACC and partner bodies need to adopt a collaborative approach encompassing each of the following elements:-

(i)    the development of more comprehensive intelligence in relation to the nature and extent of HRCT criminal activity (including evaluation of persons not currently listed on the NCTL or whose impact on Australians or Australia’s national interests is not yet fully assessed);

(ii)    preventing, disrupting, disabling and dismantling identified HRCT criminal enterprises through enforcement, regulation, policy and other action;

(iii)    enhanced collaboration with international bodies and private sector bodies; and

(iv)    the use of ACC coercive powers to facilitate the collection of intelligence and evidence in relation to HRCT criminal activity not available through other information collection methods.

(footnote omitted)

GROUNDS 1 AND 2

66    These grounds allege that the primary judge erred:

1.    in failing to find that the first Summons to Appear before an Examiner (‘the First Summons’) and the first Notice to Produce to a staff member of the ACC (‘the First Notice’) were invalid and in failing to make any declarations and consequential orders in respect thereof.

2.    in finding, at [152] that ‘... although the First Summons was issued without a proper jurisdictional basis, it was capable of being rectified by a subsequent exercise of administrative power by [the Examiner] in the form of the Second Summons’ in circumstances where the invalidity of the First Summons and the First Notice was conceded by the respondents.

67    The first summons was expressed to have been issued for the purpose of “the special ACC investigation supported by” the 2013 Instrument. No reference was made to the 2016 Instrument in the first summons, nor was the first summons accompanied by a copy of the 2016 Instrument.

68    Similarly, the first notice contained a statement to the effect that it had been issued for the purpose of “the special ACC investigation supported by” the 2013 Instrument, without reference to the 2016 Instrument.

69    As has been mentioned, in the course of the proceedings before the primary judge it was conceded by the ACC that the 2013 Instrument could not support the issue of the first notice or the first summons. The basis for the conceded invalidity was the failure of the examiner to comply with the requirement that the first summons be accompanied by the relevant determination in accordance with s 28(2) of the Act. The 2013 Instrument, standing alone, did not contain the relevant determination because it had, at the relevant time, been amended by the 2016 Instrument.

70    The ACC’s concession was expressly recognised by the primary judge (CXXXVIII [25]). Unsurprisingly, the remainder of his Honour’s reasons principally focused upon the grounds of review impugning the second summons and the second notice.

71    As a consequence of the ACC’s concession, there was no ongoing controversy between the parties concerning the validity of the first summons and the first notice and the parties’ respective rights and obligations in relation to them. As the primary judge correctly observed, the concession rendered many of the grounds of review otiose: CXXXVIII [44].

72    The primary judge was not legally obliged to grant declaratory relief, whether by reference to the ACC’s concession or otherwise. To the extent that the “failure” to make a declaration of invalidity involved the exercise of a discretion, no error in the exercise of the discretion has been shown such as would justify this Court’s intervention on appeal: House v The King (1936) 55 CLR 499.

73    It follows that the first ground of appeal is not established.

74    As to ground 2, when read in isolation, the reasons of the primary judge at [152] are suggestive of error in that the invalidity of the first summons was not legally capable of “rectification” by the issue of a further summons. However, that portion of the reasons must be understood in the context of the appellant’s argument (not pressed before this Court) that the issue of the second summons constituted an abuse of process because of the invalidity of the first notice and the circumstances surrounding its issue and service.

75    Elsewhere in his reasons, the primary judge said that it would be illogical if an invalid exercise of power were to have the effect of permanently preventing the examiner from exercising the same power again: CXXXVIII [142]. The passage at [152] must be understood in that context. So understood, the “rectification” to which his Honour referred was the circumstance that although the first summons was not legally effective to compel the appellant’s attendance for examination, the second summons was. Similarly, although the first notice was not legally effective to compel the production of the documents or things mentioned in it, the second notice was, his Honour held, legally effective to achieve that result. Whether his Honour was correct in the last-mentioned conclusion is the subject of the fifth ground of appeal.

76    The arguments in support of the second ground of appeal should be rejected.

GROUNDS 3 AND 4

77    These grounds are expressed as follows:

The learned Federal Circuit Court Judge erred:

…

3.    in finding that the First Summons, the First Notice and the Second Summons and the Second Notice were validly supported by determinations namely:

(a)    a determination entitled Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets (No. 2) 2013 (‘the first Determination’), and

(b)    an amending Determination entitled Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets (No. 2) Amendment No. 1 of 2016 (‘the second Determination’)

and in finding that the First and Second Determinations were made within the scope of power in s7C of the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’), and specifically erred by reason that:

(i)    the First and Second Determinations did not, and could not, constitute a particular special ACC investigation;

(ii)    there was no determination made that an investigation was a special investigation;

(iii)    the purported First and Second Determinations did not describe as required by s7C(4) of the ACC Act the general nature of the circumstances or allegations constituting the activity, being the activity constituting a particular special ACC investigation.

4.    in finding that the second Summons was valid, in that as required by s28(2) of the ACC Act the Second Summons was not accompanied with any determination of a particular special ACC investigation.

78    The third ground of appeal asserts appealable error concerning the validity of the first summons and the first notice. That part of the ground cannot succeed because it attributes to the primary judge a finding his Honour did not make. As has been explained, the basis for invalidity conceded by the ACC made it unnecessary for the primary judge to consider the validity of any determination made by the Board in connection with the first summons and first notice.

79    In contrast, the second summons and second notice contained statements to the effect that they were issued for the purposes of “the special ACC investigation being conducted by the Australian Criminal Intelligence Commission (ACIC) under the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) 2013, as amended”. The following reasons are concerned with the validity of the authorisation and determination said to support the issue of the second summons and the second notice.

Submissions

80    The appellant does not dispute that at the time that the second summons and second notice were issued the ACC was conducting an investigation in fact.

81    The critical issues are whether the investigation in fact being conducted was authorised by the Board in the valid performance of its function under s 7C(1)(c) and whether the investigation was validly the subject of a determination made pursuant to and in conformity with s 7C(3).

82    The appellant’s principal submission is that the word “investigation”, as used in s 7C and elsewhere in the Act, means a “particular” investigation and the meaning of the word “matters” in s 7C(1)(c) is similarly confined.

83    The appellant submits that for an activity to be an investigation it must be “particular” in the sense that it has “an organising principle in time, place, circumstance, or event (or a combination of these) that is capable of formulating the basis for inquiry”: it is something that is capable of being carried out, capable of generating evidence and capable of a conclusion. Support for this construction was drawn from a number of provisions in which the word “investigation” was used or by which powers in connection with an investigation were conferred, including ss 12(1), 22, 29A(4) and s 29B. Relatedly, it was submitted that the word “matters”, as used in s 7C(1)(c), means particular conduct, circumstances or states of affairs and associated mental states relating to federally relevant criminal activity.

84    Construing the word “investigation” in s 7C(3) to mean “a particular investigation” would, the appellant submitted, serve the desirable purpose of affording meaningful protection to persons subject to the exercise of the ACC’s invasive and compulsive powers, especially by way of those provisions that require that some information about the scope and purpose of the investigation be disclosed to a person served with a summons or notice to produce, namely ss 7C(4), 28(2) and 28(3). Construing the words “investigation” and “matters” in this way would ensure, for example, that the recipient of a summons would be provided with more detailed or meaningful information about the allegations to which the examination may relate and so assist the person to identify that the examiner’s compulsive powers are exercised for the purpose of the “particular” investigation that has been determined by the Board to be “special” and for no other purpose. The construction favoured by the appellant was also said to enable a court exercising supervisory jurisdiction to establish the metes and bounds of an examiner’s invasive powers in a particular case and so guard against abuse.

85    The appellant’s submissions otherwise concerned the proper construction of the Amended Instrument itself. On this topic it was submitted that the determination recorded in para 6(c)(iii) of the Amended Instrument was not a determination about an investigation, properly construed, because it was not a determination about a particular investigation having an organising principle around conduct, circumstances, states of affairs, mental states or a combination of those things.

86    The appellant submitted that the Amended Instrument impermissibly purported, first, to prospectively authorise, in an omnibus fashion, any number of investigations yet to be constituted and, second, to prospectively determine any subsequent investigation that happened to fall within the extremely broad parameters of the authorisation to be “special”. The Board had not and could not validly determine any one of the innumerable authorised investigations to be “special”, it was submitted, because the matters to be considered (that is, decided) by the Board under s 7C(3) are matters that by their nature could not be decided hypothetically or in the abstract. They could only be considered and decided in respect of a “particular” investigation that is either on foot or within the Board’s actual contemplation at the time that the determination is made. It was not conceptually possible to fulfil the condition in s 7C(3) in relation to the seemingly infinite combinations and permutations of “matters relating to federally relevant criminal activity” falling within the scope of the authorisation given in the Amended Instrument, so it was argued.

87    The primary judge rejected similar arguments on the judicial review application. His Honour understood the arguments as constituting a challenge to the breadth of the matters authorised by the Board to be investigated by the ACC by para 4 of the Amended Instrument and to involve a related challenge to the validity of the determination in connection with such extremely broad subject matter: CXXXVIII [92] – [103]. Understood in that way, the argument is one that has been rejected by this Court in the decided cases to which the primary judge referred and to which he was bound: XCIV v Australian Crime Commission (2015) 234 FCR 274, XX v Australian Crime Commission (No 3) [2016] FCA 437; (2016) 335 ALR 180; XXVII v The Commonwealth [2017] FCA 320; (2017) 265 A Crim R 519.

88    After the primary judge dismissed the appellant’s application for judicial review, the High Court delivered judgment in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 361 ALR 23 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The issue in Strickland was whether compulsive examination powers had been validly exercised by the ACC for the purpose of a special ACC investigation. The determinations said by the ACC to support the exercise of the powers were the Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 and the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010. Those instruments were expressed in similar terms to the Amended Instrument and were made in the exercise of the same powers and the performance of the same functions at issue in this case.

89    Pointedly, the instruments at issue in Strickland did not include within their coverage the particular criminal activity alleged to have been engaged in by a company in which the appellants were alleged to be involved. The appellants had been compulsorily examined in respect of the affairs of the company and the information obtained in the examinations had led to the commencement of criminal proceedings against them. The questions arising on each appeal were whether the ACC had acted in unlawful violation of each of the appellant’s common law right to silence and, if so, whether the prosecutions should be permanently stayed. The respective judgments differed in their responses to the second question. There was however, a unanimous finding that the ACC had purported to exercise coercive powers not for the purposes of an investigation in fact being conducted by the ACC, but for the extraneous and improper purpose of aiding an investigation in fact being conducted by the Australian Federal Police (AFP). Kiefel CJ, Bell and Nettle JJ said (at [70]) that officers of the ACC had “acted at all times simply as a facility for the AFP to cross-examine the appellants under oath for the AFP’s own purposes”. In a passage pertinent to this appeal, their Honours went on to say (at [71]):

The determinations were incapable in and of themselves of constituting a special ACC investigation. At most, they amounted to authorisations for the conduct, in future, of investigations yet to be identified or undertaken and a stipulation that, if in future any such investigation were conducted, it would be a special ACC investigation. The question of whether such an investigation was conducted was a question of fact and the availability of the examination power depended on the existence of an investigation in fact.  …

90    In a footnote to that passage, their Honours said:

Whether the determinations would have been effective to render any such investigation a special ACC investigation is a question of law which, for present purposes, need not be decided.

91    The footnoted passage raises a question of law of the same kind as that agitated in the third ground of this appeal, but does not suggest an answer to it.

92    As was observed by Kiefel CJ, Bell and Nettle JJ, the question of whether a special ACC investigation is conducted is a question of fact, and the availability of the examination power depends upon the existence of an investigation that in fact and law has been determined to be special. Their Honours said (at [71]) that at least four considerations led to the conclusion that the determination itself did not constitute (that is, bring into existence) an investigation in fact:

…  First, as is apparent from s 24A of the ACC Act, the power to conduct an examination is an ancillary power available to be used ‘for the purposes of a special ACC operation/investigation’. As was held in GG v Australian Crime Commission, that implies that it is a power which is available for the purposes of a particular investigation. Otherwise, an ACC examiner required to make a determination whether to invoke the power could not sensibly decide whether the proposed examination would be ‘for the purposes of’ that investigation. Secondly, in order to construe s 24A as authorising the invocation of the examination power in the absence of an extant special ACC investigation, it would be necessary to strain the meaning of the words ‘for the purposes of a special ACC operation/investigation’ to include the meaning ‘for the purposes of examining persons in relation to matters which are not the subject of an ACC investigation’. Thirdly, inasmuch as s 25A(6) provided for the presence of ‘counsel assisting the examiner … in relation to the matter to which the ACC operation/investigation relates’ and authorised counsel assisting to ask questions on any matter judged by the examiner to be ‘relevant to the ACC operation/investigation’, the provision implicitly assumes the existence of a separate ACC investigation and thus a ‘matter’ to which that specific investigation relates and hence to which the questions may be relevant. Fourthly, to hold otherwise would be to read ‘for the purposes of a special ACC operation/investigation’ as meaning for the purpose of any line of enquiry, howsoever suggested, and of whatever significance or insignificance, as to a matter which perchance satisfies the description of one of the kinds of federally relevant criminal activity delineated in a determination. Given the nature of the examination power, and its effect upon the liberty of the subject, that is not a construction which presents as at all probable.

93    For the appellant it is submitted that the language of Kiefel CJ, Bell and Nettle JJ at [70] and [71] is apt to describe the Amended Instrument now under consideration by this Court: it amounts, at most, to an authorisation for the conduct, in future, of investigations yet to be identified or undertaken and a stipulation that, if in future any such investigation were to be conducted, it would be a special ACC investigation. Similarly, at least implicitly, it is argued that the “investigation” in fact being carried out by the ACC amounts to a line of enquiry into activities that perchance happen to come within the specified criminal activity broadly defined in the Amended Instrument. It is, the appellant submits, an investigation in respect of which no valid determination under s 7C(3) of the Act has been or can reasonably be made.

Consideration

94    In my view, the third ground of appeal is not established because, in summary:

(1)    Subject to s 7C(3) the Board may authorise an investigation into subject matter as broad in scope as the language of the Act permits. The adjective “particular” does not assist to ascertain the scope of the subject matter to which an investigation may permissibly relate.

(2)    The investigation described in para 4 of the Amended Instrument was capable of being authorised, and was in fact authorised in the valid performance of the function conferred on the Board by s 7C(1)(c) of the Act.

(3)    It has not been shown that the investigation described in para 4 of the Amended Instrument was not in fact constituted and was not conducted by the ACC in fact.

(4)    The investigation authorised by the Board was the subject of a determination made in the valid performance of the Board’s function conferred by s 7C(1)(d) and it has not been shown that no such determination could validly be made in conformity with the condition imposed by s 7C(3).

(5)    To the extent that particular matters relating to the appellant or his associates were the subject of investigatory activities by the ACC, it has not been shown that the investigatory activities did not or could not constitute the pursuit of lines of inquiry within that investigation authorised by para 4 of the Amended Instrument and determined to be special by para 6.

Meaning of “investigation” and “matters”.

95    The proposition that the Amended Instrument did not, of itself, have the effect of constituting, creating or commencing an investigation by the ACC must be accepted. Whether an investigation has been “constituted” and is being conducted by the ACC are questions of fact. The questions do not arise on this appeal, at least not in the same way that they arose in Strickland. As the appellant has acknowledged, an investigation was in fact being conducted by the ACC and for the ACC’s purposes. It is in the course of that investigation that, it may be inferred, the ACC considered the appellant to be an appropriate subject for the exercise of its coercive powers.

96    The word “investigation” must, of course, be construed in the context of the Act read as a whole and in a manner consistent with the statutory purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In its ordinary meaning, the word may be understood as referring to an inquisitorial activity and so must have as its subject matter something that is capable of forming the basis of an inquiry. An investigation is something that is capable of generating material to be employed in the fulfilment of its stated purpose. However, in the particular statutory context, and in light of what is said below, the material need not necessarily be in the nature of “evidence” at least if that word is intended to refer to evidentiary material gathered solely to aid in the proof of a criminal charge.

97    It must also be accepted that the word “investigation”, in context, must refer to an activity that is capable of producing outcomes of a kind that are contemplated by the Act: see s 7A(c) and (d); see also XXVII at [119] – [120]. However, the Act does not require that an investigation have a “conclusion” in the sense of a fixed end date or pre-determined terminating event: XXVII at [117] – [124]; see also XXVII v Commonwealth of Australia (2018) 161 ALD 291 at [42] (Dowsett J), [77] – [89] (Wigney J) and [155] (Bromwich J). Moreover, by s 7C(3) and s 7C(4)(c) of the Act, it is apparent that the permissible purpose of an investigation will include the understanding, disrupting or preventing the criminal activity to which the investigation relates. These are words of broad import. There is nothing in the text or context of the provisions to suggest that “understanding, disrupting or preventing” the activity must be achieved by the sole means of gathering evidence for use in the trial of a criminal charge. The amendment to s 7C(3) of the Act (introduced after the High Court delivered judgment in X7), makes that clear.

98    As to the asserted requirement that an investigation have an organising principle, to my mind that should go without saying. However, to identify that requirement does little to inform the question of how wide or varied the subject matter of a single investigation may permissibly be.

99    In my view, the permissible scope of an investigation is not to be found in the meaning of the word “investigation”. Rather, the permissible scope of an investigation must be discerned from the whole of the phrase “investigate matters relating to federally relevant criminal activity” as those are the words that the Legislature has used in s 7C(1)(c) to define the limits of the Board’s authorisation function. The phrase must, of course, be construed in its statutory context (including in the context of the condition imposed by s 7C(3)). It is a defined phrase embedded with further terms that are themselves expressly and comprehensively defined.

100    The defined phrase “relevant criminal activity” indicates that the subject matter of an investigation need not concern or respond to a particular allegation that a relevant offence has been committed, is being committed or may be committed by a person or class of persons. The concept is wider than that. It includes any circumstances implying that (for present purposes) serious and organised 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. Where circumstances imply that serious and organised crime is being committed, it may be that the Board will not, at the time of an authorisation or determination, have in its possession information identifying or tending to identify the persons responsible for engaging in or organising the criminal activity, the particular offences that might sanction the activity, the scale of the activity, the place of its commission or other particulars. The discovery of as yet unknown particular information of that kind may permissibly form a part of the investigatory purpose.

101    In the use preferred by the appellant, the word “particular” otherwise introduces a narrowing concept that is not to be found in the language of a statute in which so many words and concepts are expressly defined. Moreover, to say that an investigation must be a “particular” investigation before a determination can be made in respect of it is to introduce a requirement the outer boundaries of which are difficult to draw. In addition, the word blurs the concept of an investigation (properly construed) on the one hand and the concept of the particular “matters” that may be the subject of inquiry within an investigation on the other. It is apt to confuse the concept of a permissibly broad investigation with the narrowing lines of inquiry that may arise in the ordinary course of it. The question of how broad the subject matter may be is a critical one, but the resolution of the question is not to be found in the word “particular”.

102    With one qualification, on the proper construction of the Act the Board may authorise an investigation the subject matter of which is described in terms as wide as the language of the statute permits. The qualification is that the subject matter and scope of the investigation must be something in respect of which the mandatory condition in s 7C(3) can be fulfilled in a real and practical sense if the investigation is to be validly determined to be special. In other words, the matters to be investigated cannot be defined in such ephemeral or ill-defined terms that consideration cannot meaningfully be given, and a decision cannot meaningfully be made, as to whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity to which the investigation relates. Whether the Amended Instrument fulfils this condition is a mixed question of fact and law, turning as much on the proper construction of the Amended Instrument as it does on the Act itself.

Proper construction of the Amended Instrument

103    The appellant submits that the Amended Instrument records nothing more than the making of a generalised determination about a category or topic and so cannot be a valid determination about the particular investigation in which the summonses and notices were issued. It could not have that characteristic, the appellant submitted, because the precondition in s 7C(3) could not lawfully be met unless and until the particular investigation was underway or at least within the Board’s contemplation.

104    Textually, s 7C(1)(c) and s 7C(1)(d) of the Act (extracted at [44] above) are provisions that speak to each other: the Board may authorise an investigation and determine that investigation to be special. Consistent with that construction, by para 4 of the Amended Instrument, the Board authorised the ACC to conduct an investigation and, by para 6(c), the Board determined that investigation to be a special investigation. Nothing in the words employed in the Amended Instrument evince an intention to prospectively determine that each of an unknown number of multiple discrete “investigations” that may or may not be constituted in the future are each to be special ACC “investigations” in the event that they are ever commenced.

105    As I have said, properly construed, the determination in para 6(c) purports to make “special” the investigation authorised in para 4 and no other investigation. Whether it was within the power of the Board to authorise an investigation in such broad terms is, of course, a different question. But there is nothing to suggest that the Board intended to do anything other than its plain words suggest. As such, I reject the submission that the Amended Instrument before this Court “at most” did or purported to do what the dicta at [70] and [71] of Strickland suggests in relation to the instruments there under consideration by Kiefel CJ, Bell and Nettle JJ.

Valid authorisation

106    In XXVII the applicant contended that the authorisation purportedly given by para 4 of the Amended Instrument was not made in the valid performance of the Board’s function conferred by s 7C(1)(c) of the Act because of the breadth of the subject matter of the investigation it purported to authorise. It is convenient to repeat what I said in that case:

115    Consistent with what was said in A1, this Court has repeatedly rejected the proposition that the Board can only authorise a special investigation into ‘specific and confined criminal activity’: XX at [50] – [51] (Perry J); XCIV at [101] – [104] (Wigney J). In LX, Besanko J said (at [30]) that the following reasoning in A1 (at 294), applied with equal force to special investigations under the ACC Act:

The NCA should not be regarded as outside its charter so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred.

116    Although that passage related to the scope of the authority of the NCA as an investigative body, rather than the scope of the authority of a Commonwealth Minister under the NCA Act to refer a matter to the NCA for investigation, Besanko J nonetheless applied the same reasoning in determining that the 2013 instrument (being the same instrument impugned in this case) was not impermissibly broad in its subject matter.

107    The appellant is correct to say that the submissions advanced in that case did not expressly invite the Court to construe the words “investigation” and “matters”. The grounds for judicial review nonetheless depended upon the proper construction of the Act, as did the grounds of review in each of the authorities cited. The appellant’s submissions on this appeal do not cause me to reconsider the conclusions expressed in XXVII or to reconsider the correctness of prior judgments of this Court to the same effect: XCIV, XX, LX v Commonwealth of Australia [2016] FCA 441; (2016) 338 ALR 667 (Besanko J).

Conduct of an authorised investigation in fact

108    The appellant’s concession that there was in fact an “investigation” was a narrow one. As I understood the concession, it went no further than to acknowledge that the ACC was in fact investigating a state of affairs having some connection with the appellant that perchance fell within the description in Sch 1 to the Amended Instrument. At least implicitly the appellant’s submissions proceeded from an assumption that an investigation having the breadth of that authorised by the Board under para 4 of the Amended Instrument had not been “constituted” in fact.

109    It will be recalled that in Strickland there was a proper evidentiary basis to support a finding that no ACC investigation had been created at all. The ACC argued, unsuccessfully in that case, that an investigation had been constituted by the instruments themselves. The passage at [71] in Strickland is to be understood as being specifically directed at that unmeritorious argument.

110    The difficulty for the appellant in the present case is that there is no evidence that the broad investigation authorised or purportedly authorised by para 4 of the Amended Instrument was not in fact being conducted by the ACC at the relevant time. To the extent that the appellant’s argument depends on the factual assertion that the investigation had not in fact been constituted, that is a question of fact in respect of which the appellant bore the onus of proof on his application for judicial review.

111    The evidence before the primary judge, and before this Court on appeal, includes the written reasons given by the examiner for the issue of the second notice. The examiner refers to a “project”, having “approval under” the Amended Instrument to “investigate” the activities of a particular serious and organised crime syndicate. The syndicate is alleged to maintain extensive connections with other serious and organised crime syndicates named on a list of criminal targets. The same list of targets is referred to in the definition of HRCTs in the Amended Instrument.

112    The language of the examiner is consistent with the examiner having been deployed to a “project” having the task of pursuing an identifiable line of inquiry within the broader context of the investigation that had been authorised by (although not constituted by), the Amended Instrument. The evidence does not show that the project is a discrete investigation requiring its own special determination. There is no evidentiary basis for a finding that the “project” formed no part of the investigation authorised by para 4 of the Amended Instrument. The evidence is consistent with there being an organisational structure within the ACC in which particular lines of enquiry within the investigation are pursued by personnel deployed to projects within it. It is not necessary to make positive findings of fact on these questions. It is sufficient to say that the evidence does not prove the fact that the appellant asserts.

113    Whether the broad investigation described in and authorised by the Amended Instrument could validly form the subject of a determination made pursuant to s 7C(3) of the Act is a different issue involving questions of fact and law.

Valid determination in relation to the investigation in fact conducted

114    The Board is not required to give written reasons for a determination made in accordance with s 7C(3). Notwithstanding, there are at least five considerations supporting the conclusion that the investigation approved by para 4 of the Amended Instrument was validly determined to be special.

115    First, by para 6(c)(i) of the Amended Instrument, the Board stated in writing that it had in fact considered whether ordinary police methods of investigation into the specified criminal activity are likely to be effective at understanding, disrupting or preventing the specified criminal activity (as that term is defined). The appellant does not contend that the Board did not in fact give consideration to the matter required to be considered under s 7C(3) of the Act before recording that fact in para 6(c)(ii).

116    Secondly, validity of the determination must be assessed in light of the “specified criminal activity” referred to in para 4, being a phrase defined in para 3 to be the federally relevant criminal activity described in Sch 1. Read together, cll 1, 2 and 3 of Sch 1 limit the meaning of the phrase “specified criminal activity” in significant ways. Especially significant is the meaning of “HRCTs” as used in cl 2 and cl 3 because it is the activities of that class of persons and their associates that form the subject matter of the investigation. For an entity to fall within the definition it is necessary that an authorised officer of the ACC have reasonable grounds for suspecting that the entity has any one or more of the attributes specified in para (c) of the definition of HRCTs in para 3 (extracted at [64] above). The attributes there referred to may properly bear upon an assessment as to whether ordinary police methods of investigation into that class of person are likely to be effective at understanding, disrupting or preventing the specific criminal activity.

117    Thirdly, the circumstance that cl 3 of Sch 1 contains a list of a multitude of offences does not, of itself, deny the investigation of an “organising principle”. Nor does it render the investigation something that the Board cannot validly make a determination under s 7C(3) about. The clause must be read in the context of the Amended Instrument as a whole. The multitude of offences are listed in connection with eleven classes of activity, each of which is not to be understood in isolation from the others. It is not surprising that conduct engaged in in the course of those classes of activity may constitute more than one offence or, indeed, a series of interrelated offences. Organised activities engaged in by persons with the defined attributes of HRCTs may of their nature have a degree of factual and legal complexity and may involve the commission of multiple offences of different kinds. To require greater particularity would introduce a requirement that the Board first have before it an allegation that a particular offence or class of offence has been, or is about to be, committed before a valid determination can be made. That is not a requirement to be found in the language of the Act itself. If it be a matter of degree, the appellant has not shown how the number of offences listed in cl 3, when read in context, constitutes a breach of an essential condition on the exercise of the Board’s functions or powers.

118    Relatedly, the allegations in cl 3 are confined so as to refer to activities in which HRCTs may be engaged not as isolated individuals but “in concert with one another or with other entities”. The circumstance that the investigation may potentially concern multiple persons in connection with multiple offences in my view is a reflection of the nature of the organised criminal activity to be investigated. Considered together with one or more of the attributes that a HRCT must be reasonably suspected to have, the feature of a common enterprise further confines the subject matter of the investigation. In my view the very nature of organised crime is clearly a factor that may legitimately inform the question of whether ordinary police methods of investigation are likely to be effective at understanding, disrupting and preventing it.

119    Fourthly, the description of “circumstances” in cl 2 includes a statement of fact to the effect that HRCT criminal activity is resilient to traditional law enforcement investigations, together with a statement of an opinion to the effect that, to be effective, the ACC and partner bodies need to adopt a collaborative approach encompassing the elements identified in cl 2(c) (see [65] above).

120    The appellant did not assert that the opinion expressed in cl 2(c) was not open to the Board to lawfully form, having regard to the facts as the Board stated them to be in that clause and having regard to the HRCT definition.

121    Fifthly, one of the purposes of the investigation is to reduce the incidence and effect of specified criminal activity by HRCTs by making the markets, sectors, infrastructure and capabilities exploited by them more resilient to their activities: Amended Instrument, para 9(c)(ii). Another method of reducing the incidence of the activity is the enhanced collaboration with international and private sector bodies. Another is by means of regulation and policy. These are methods of prevention and disruption of criminal activity that are potentially more holistic, sophisticated and nuanced than the detection and prosecution of particular crimes committed by particular persons or classes of persons. In light of the fact stated and the opinion expressed by the Board in cl 2 of Sch 1 of the Amended Instrument, the appellant has not shown that it could not be open to the Board to determine that ordinary police methods of investigation are not likely to be effective at understanding, disrupting or preventing the specified activity in those more systematic ways.

Conclusion

122    The second summons and second notice to produce were supported by the valid determination made in para 6(c)(iii) of the Amended Instrument. Accordingly, the third ground of appeal does not succeed.

123    The fourth ground of appeal cannot succeed as the summons was, in accordance with s 28(2) of the Act, accompanied by the valid determination of the Board made under s 7C(3) to the effect that the investigation being conducted by the ACC was special. It has not otherwise been shown that s 28(3) of the Act was not complied with in respect of the special investigation the ACC was conducting.

GROUND 5

124    The fifth ground of appeal is that the primary judge erred in failing to find that the second notice to produce exceeded the power conferred by s 21A by reason that:

(i)    the Notice imposed an incoherent requirement to produce a thing at the time and place of service with an express requirement to produce items in ‘possession, custody and control’,

(ii)    no reasonable examiner could be satisfied that it was ‘reasonable’ to issue a Notice in those terms;

125    The second notice was expressed in the following terms:

I, an Examiner duly appointed under section 468 of the Australian Crime Commission Act 2002 (Cth) (the Act), pursuant to subsection 21.A.(1) of the Act, for the purposes of the special ACC investigation being conducted by the Australian Criminal Intelligence Commission (ACIC) under the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 as amended:

1.    being satisfied that it is reasonable in all the circumstances to do so;

2.    having recorded in writing the reasons for being so satisfied at 2.26pm on 28 June 2018;

3.    require you to:

(a)    attend forthwith upon service before a member of the staff of the Australian Criminal Intelligence Commission, and

(b)    produce forthwith at the time and place of service the documents or things specified in the Schedule to this Notice relevant to the special ACIC investigation.

Emphasis added

126    The Schedule to the notice stated:

You are required to produce the following things in your possession, custody or control:

1.    All electronic communications devices (whether currently used or not) including but not limited to Blackberry devices, tablet computers (such as I-Pads), desktop and laptop computers; and

2.    All mobile telephone handsets and sim-cards.

127    The appellant submits that the notice merged the formulation of words of a kind typically used in a search warrant on the one hand with a formulation of words commonly used on a subpoena on the other, and that this produced the incoherent result that the recipient of the notice was required to “produce forthwith and at the time and place of service” things that were not in his immediate possession or physical custody or control at that time and place.

128    The primary judge identified the issue as one involving the same considerations that arose before Besanko J in Egglishaw v Australian Crime Commission (No 3) [2019] FCA 1027; (2009) 259 ALR 458. Besanko J rejected a submission that a notice to produce issued under s 29 of the Act (as then in force) was legally defective because it specified a requirement that a document or thing be produced “forthwith”. The issue was whether the decision to issue a notice in such terms was affected by legal unreasonableness.

129    Like s 21A(4) of the Act as then in force, s 29 conferred power on an examiner to, by notice in writing, require a person “to attend, at a time and place specified in the notice” to produce “at that time and place” a document or thing specified in the notice that was relevant to a special ACC operation/investigation. Besanko J said (at [89]):

The ACC Act gives the examiner the power to fix the time for production and this is not a case in which an Act is silent on the time within which a statutory obligation must be performed. In other words, this is a not a case in which the law must imply a requirement that the performance of a statutory obligation must take place within a reasonable time because, under the ACC Act, the examiner has the power to fix the time for performance. However, as the decision in A B illustrates, that does not mean that the examiner’s decision as to the time within which documents or things must be produced is unexaminable. I do not need to examine in detail the grounds upon which an examiner’s decision as to the time for production may be successfully challenged because I am satisfied that ‘forthwith’ was a reasonable time in the circumstances of this case, or at least that the applicant has not established that an examiner could not reasonably take the view that it was a reasonable time.

130    At least implicitly, this passage proceeds from the assumption that the statutory requirement that the examiner specify a time for compliance may be fulfilled by specifying that there be compliance forthwith. On the facts of the case, the documents in issue were in the recipient’s actual physical possession at the time that the notice to produce was served and so it was unnecessary to consider the potential for elasticity in the word “forthwith”.

131    Returning to this appeal, the primary judge referred to an affidavit sworn by an ACC investigator who said that he had served the first notice on the appellant at Adelaide Airport on 26 June 2018. The investigator deposed that:

As a result of having the notice served on him, the [appellant] produced a large Apple i-phone and stated that he was not in possession of any other electronic communication devices.

132    The primary judge held that this narrative indicated that there was no “unreasonable or unfair level of incoherence in respect of the obligations placed on [the appellant] or any uncertainty on what he was required to do in the circumstances prevailing”. His Honour found that the appellant did not have to leave the airport or make any other enquiries to retrieve his iPhone and to produce it in accordance with the notice to produce. His Honour continued (at [112]):

…  Although it may be the case that potentially he had other ‘electronic communication devices’ available to him which were not in his immediate possession, this did not affect the immediate application of the notice to produce in question to his circumstances

133    The primary judge accepted the submission of the ACC to the effect that it was appropriate that the notice stipulate production of the documents or things in question immediately, because of the examiner’s assessment of the “operational reality” which confronted the ACC at the time. The same considerations applied to the second notice, pursuant to which the investigator again seized the appellant’s mobile telephone after briefly returning it to him at the offices of his solicitor at the time that the second notice was served.

134    With respect to the primary judge, I do not consider the principles discussed in Egglishaw to provide a complete answer to the question that arose on the application for judicial review and that now falls to be determined on this appeal. Having identified that the appellant potentially had items described in the notice to produce that were not in his immediate possession, the primary judge did not determine the consequences of that finding, particularly in relation to the validity of the notice to produce, whether in part or in whole.

135    Counsel for the ACC acknowledged that the notice was unhappily drafted. Counsel submitted that the notice should have read “produce forthwith at the place of service”. The words “time and” were surplus, Counsel submitted, in the sense that they “had no work to do”. As the words were surplus, it was submitted, they could not invalidate the notice. Counsel did not accept that the words “custody or control” were otherwise problematic.

136    The ACC’s submission, as I understand it, was that the severance of the words “time and” would preserve a legal requirement that the appellant produce “forthwith” the things described in the Schedule to the notice that were not in his immediate possession but that were nonetheless in his “possession, custody or control” within the widest meaning of that phrase. Counsel did not explain how the word “forthwith” might be understood by the recipient, having regard to the nature of the items referred to in the Schedule.

Consideration

137    Section 21A(4) of the Act authorises the invasion of the rights and interests of a person in the appellant’s possession. As the High Court said in George v Rockett (1990) 170 CLR 104 (at 110 – 111):

Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

138    I accept the submission that it was impossible to comply with the requirement to produce forthwith and at the time of service the things described in the Schedule to the notice that were not in the appellant’s immediate physical possession, his immediate and personal custody and his actual physical control at that time.

139    In light of the nature of the power and the consequences of its exercise for the individual, s 21A of the Act should not be construed so as to authorise the issue of a notice that imposes a requirement with which it is impossible to comply. More specifically, the Act evinces an intention that the power to issue a notice to produce be conditioned with the requirement that the obligations imposed by the notice be capable of discharge within the time specified for compliance. The second notice would not comply with that condition if the phrase “possession custody or control” were interpreted to mean anything other than immediate possession, actual physical custody or immediate physical control.

140    Subject to a contrary intention, the Act and all instruments made under it are to be construed in accordance with the Acts Interpretation Act 1901 (Cth) (AI Act). Section 46(1)(c) of the AI Act provides that any instrument made pursuant to the Act is to be read and construed so as not to exceed the power of the person upon whom the power to make the instrument is conferred.

141    In the present case, the appellant made no submission to the effect that the Act evinced a contrary intention such that s 46(2) of the AI Act should have no application to an instrument made under it, including an instrument in the nature of a notice to produce.

142    The ACC’s submission that the words “time and” should be severed or “ignored” cannot be accepted. The excision of those words would have the consequence that the notice would require, or purport to require, production “forthwith and at the place of service” things in the appellant’s custody or control that may take hours, days or weeks to locate. Whatever flexibility may reside in the word “forthwith” it cannot be stretched so far. Moreover, the present statutory context is one in which the examiner must specify a time and place for compliance. That condition cannot be fulfilled by specifying that the things in question be produced as soon as reasonably practicable. The word “forthwith” must be construed to mean without delay. In the present factual context the word adds little or nothing to the requirement that the described things be produced at the time of service.

143    As has been mentioned, the phrase “You are required to produce things in your possession, custody or control” would create an impossible and unreasonable obligation if it were interpreted to capture things that the appellant could not reasonably produce immediately at the time and at the place that the second notice was served. To construe the notice in that way would render it an instrument made in excess of the examiner’s authority.

144    However, each of the words possession, custody and control are amenable to a narrow construction. They may, indeed should, be interpreted to refer to immediate possession, actual physical custody and actual physical control. Expressed another way, the second notice is not to be interpreted so as to compel the production of any item or thing that was not capable of immediate production at the time and place that the second notice was served on the appellant. On that interpretation, the second notice is not an instrument made in excess of the examiner’s powers.

145    As the words employed in the notice are capable of reading down in accordance with that provision, I do not consider it necessary to resort to general law principles of severance as discussed and applied by Wigney J in Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 at [227] – [231] (approved by the Full Court in Caratti v Commissioner of Australian Federal Police (2017) 257 FCR 166 at [46]).

146    It remains to consider whether the appellant was entitled to relief in respect of the second notice in the terms sought in the proceedings before the primary judge.

147    In my view, the proper interpretation of the second notice remains a subject of controversy between the parties. The primary judge proceeded on the factual basis that it was possible that there were additional items of the kind described in the Schedule to the notice that were unable to be immediately produced by the appellant at the time and at the place that the first notice was served. I would proceed on the same assumption in relation to the second notice. The ACC’s submissions on this appeal confirm that the ACC persists in the position that the second notice compels production of any such additional items without delay.

148    In the result I would not accept the construction of the second notice advanced by either party to the appeal. The consequence of that for the appellant is that I would not grant the relief sought in the proceedings before the primary judge, namely a declaration to the effect that the second notice is invalid. Properly construed it is not invalid, whether in whole or in part.

149    Nor would I grant a declaration in terms reflecting the proper construction of the second notice. That alternate form of relief was not sought before the primary judge and nor was it sought on this appeal.

150    It follows that the appeal should be dismissed with costs.

Associate:    

Dated:    3 April 2019