Federal Court of Australia

VII v Purcell (Examiner) [2025] FCAFC 135

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs as assessed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from orders made by a judge of this Court dismissing an application for judicial review by the appellant, who was to appear before an examiner at the Australian Criminal Intelligence Commission: VII v Purcell [2025] FCA 202. By 11 grounds of review, the application before the primary judge alleged invalidity of:

(a)    a determination made by the Board of the Commission authorising an intelligence operation to occur; and

(b)    a summons, based on the determination, requiring the appellant to appear before an examiner of the Commission and to give evidence.

The primary judge found that both the determination and the summons were valid.

2    The respondents below and on appeal are the examiner, Mr Andrew Purcell, and the Commonwealth of Australia.

3    One ground out of six asserting invalidity of the determination and one ground out of four asserting invalidity of the summons are maintained on appeal. The appellant contends that the primary judge erred in finding that:

(a)    the power to make the determination in s 7C(2) of the Australian Crime Commission Act 2002 (Cth) was constitutionally valid (judicial review ground 9; appeal ground 2); and

(b)    the summons issued based upon the determination made under that provision met the statutory requirements in s 28(3) of that Act (judicial review ground 1; appeal ground 1).

4    The appellant seeks orders allowing the appeal and setting aside the primary judge’s orders dismissing the judicial review application with costs, an injunction restraining the respondents from examining him pursuant to the summons, a declaration that he cannot lawfully be examined pursuant to the summons, and costs. Success on either ground would be sufficient for the appellant to be granted the relief sought.

5    Because ground 2 asserts constitutional invalidity, notices were duly served as required by s 78B of the Judiciary Act 1903 (Cth). None of the Attorneys-General elected to intervene.

6    In these reasons the following terms are used:

Act: Australian Crime Commission Act 2002 (Cth), with all references to statutory provisions in these reasons being to those in the Act unless stated to the contrary.

Commission: Australian Crime Commission created under s 7(1), defined in s 4(1) as the ACC and by s 7(1A) able to be referred to by any name or acronym specified in the regulations and thereby also known as the Australian Criminal Intelligence Commission (ACIC), being the title that was used in the documents, before the primary judge and in this appeal.

Board: The Board of the Commission established by s 7B.

Examiner: Mr Andrew Purcell, the first respondent, appointed under s 46B(1).

Determination: the determination made by the Board under s 7C(2), on 12 December 2022, titled “Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022”, expiring three years later on 11 December 2025 by the operation of s 7C(4G)(b)(i).

Summons: the summons that was addressed to the appellant and issued by the Examiner on 9 February 2024, annexing the Determination, a statement of rights and obligations as required by s 29A(3) and explanatory notes.

Application: the application for the Summons made by an officer of the Commission on 8 February 2024.

SOFAC: the “Statement of Facts and Circumstances” in Part A of the Application, produced by the Commission in response to a notice to produce in the primary proceeding, but heavily redacted upon grounds of public interest immunity which were not challenged.

Commonwealth Minister: the Minister of State administering the Act.

Committee: the Inter-Governmental Committee established by s 8 consisting of the Commonwealth Minister and a minister from each participating State and Territory nominated by the Premier or Chief Minister as the case may be.

The relevant provisions of the Act

7    Only a subset of the provisions of the Act addressed by the primary judge require attention in these reasons by reason of the narrower case on appeal. As already noted, that narrower focus is on the constitutional validity of s 7C(2), which provided for the making of the Determination (which would also inform the validity of the Summons), and the validity of the Summons by reference to an asserted failure to comply with specific statutory criteria for its issue in s 28(3), along with relevant contextual provisions.

Overview of key provisions that are generally relevant

8    The Commission consists of the Chief Executive Officer (CEO), examiners and members of staff: s 7(2). Its functions relevantly include undertaking, when authorised by the Board, “special ACC operations”. The Determination on its face authorised a special ACC operation.

9    The relevant interpretation provisions in s 4(1) include the following (no ellipses used to reflect definitions that are not reproduced):

federally relevant crime means a relevant crime that is:

(a)    an offence against a law of the Commonwealth or of a Territory; or

(b)    an offence against a law of a State that has a federal aspect [as defined in s 4A].

intelligence operation means an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime, but that may involve undertaking investigations relating to a federally relevant crime.

relevant crime means a serious and organised crime or Indigenous violence or child abuse:

(a)    that may have been, may be being, or may in future be, committed; and

(b)    that is an offence against a law of the Commonwealth, of a State or of a Territory.

Note:    See also subsection (2) (which expands the meaning of relevant crime in certain circumstances).

serious and organised crime means an offence:

(a)    that involves 2 or more offenders and substantial planning and organisation; and

(b)    that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and

(c)    that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and

(d)    that is a serious offence, an offence against Subdivision B or C of Division 471, or D or F of Division 474, of the Criminal Code, an offence of a kind prescribed by the regulations or an offence that involves any of the following:

    (i)    theft;

    (ii)    fraud;

    (iii)    tax evasion;

    (iv)    money laundering;

    (v)    currency violations;

    (vi)    illegal drug dealings;

    (vii)    [the list continues, with certain exceptions]

special ACC operation means an intelligence operation that the Board has authorised to occur under subsection 7C(2).

10    The Board consists of the Commissioner of the Australian Federal Police (who is the Chair), the CEO, the Secretary of the Attorney-General’s Department, the Comptroller-General of Customs, the Chairperson of the Australian Securities and Investments Commission, the Director-General of Security, the Commissioner of Taxation, and the Commissioner or head of the police force of each State and Territory: s 7B(2) and (3).

11    The functions of the Board relevantly include, in s 7C(1)(c), authorising an intelligence operation to occur, by a determination made in writing under s 7C(2). As noted in the definition above, such an intelligence operation so authorised is defined by s 4(1) as a “special ACC operation”. In this appeal there is no dispute that the Determination, on its face, authorised such an operation. The only challenge is to the constitutional validity of the provision pursuant to which it was issued.

12    A quorum of the Board is nine members excluding the CEO: s 7F. Questions arising at a Board meeting are generally determined by majority, with the Chair (or a person nominated by the Chair if absent) having a deliberative vote, and if necessary a casting vote, and the CEO not being a voting member at all: s 7G(1), (2) and (3). However, a determination under s 7C(2) cannot be made unless at least nine board members vote in favour, of which at least two must be Commonwealth Board members (that is, holders of Commonwealth positions): s 7G(4).

13    The appellant does not suggest that there was any irregularity in the process by which the Board voted for, and thereby made, the Determination. However, the absence of any requirement to give reasons forms part of the appellant’s argument as to constitutional invalidity.

14    A determination may identify the federally relevant crime to which it relates at whatever level of generality the Board considers appropriate, including by reference to categories of those crimes or suspected offenders, or any specific allegations of such crimes or offenders: s 7C(4). While the duration of a determination is limited to three years, it may be revoked by the Board at any time: s 7C(4D), (4G).

15    A determination allows the Commission to exercise a range of coercive powers, relevantly here the power to summon a person to attend a compulsory examination, that is not otherwise exercisable: s 28(7). It is not in doubt that a summons compelling the answering of questions is a substantial incursion into a person’s common law rights. As Deane J stated in Baker v Campbell [1983] HCA 39; 153 CLR 52 at 116.6:

It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment.

16    That principle, commonly referred to as the principle of legality, has been stated and restated many times by the High Court, and has been traced back to United States v Fisher (1805) 6 US 358 at 390 (Marshall CJ): see the detailed discussion by Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196, especially at [307]–[314]. The headnote to the authorised report of Lee succinctly summarises the conclusion that their Honours reached, as part of the majority that upheld the validity of s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW), empowering the Supreme Court of New South Wales to make an order for the examination of a person charged with criminal offences about conduct that was the subject of criminal charges against that person:

The principle of legality exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government. It does not exist to shield those rights etc from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

17    There are important offsetting features to some of the incursions on common law rights by the Act. As was pointed out in R v CB [2011] NSWCCA 264; 291 FLR 113 (McClellan CJ at CL, with whom Buddin and Johnson JJ agreed):

[96]    It is important to appreciate as the ACC submitted that the so called “right to silence” expresses not a single right, but is a shorthand description of an amalgam of immunities the most prominent of which, for present purposes, are the immunity of an accused from being required to answer questions or provide information which is incriminating, from being compelled to give evidence at their own trial and (to some extent) from having adverse comment made on his or her failure to give evidence or provide information.

[97]    In some respects, the ACC Act abrogates a number of immunities associated with the shorthand description of “right to silence.” It obliges persons summonsed to appear at an examination to answer questions (see section 30(2)) and abrogates the privilege against self-incrimination (section 30(4)). However, by reason of the retention of “use immunity” in section 30(5) of the ACC Act in relation to answers given at an inquiry over an objection based on self-incrimination and the confidentiality provisions in sections 25A(9) and 29A of the ACC Act designed to protect the fairness of trials of persons who have been or may be charged with an offence, it is clear that the ACC Act operates to protect the fairness and integrity of extant trials by preserving them from the effect of its qualification of the “right to silence”.

18    A person served with a summons to appear as a witness at an examination is required to answer the examiner’s questions, even if the answer would tend to incriminate the person. Non-compliance with such requirements gives rise to serious consequences, including statutory contempt with the possibility of incarceration for the duration of the life of a determination predominantly as coercion to comply, and indeed beyond that time to meet other objectives, such as denunciation, retribution and deterrence. There is also a range of criminal offences for behaviours such as giving false evidence, with sanctions of fines and imprisonment. Such consequences are far from theoretical as Judges of this Court regularly deal with contempt cases for refusal to answer questions at Commission examinations, and in a series of cases have imposed prison sentences of both determinate and indeterminate duration.

19    Section 8 establishes the Committee, which is required to meet at least twice a year. Provision is made for any member of the Board to attend any meeting and to participate in discussions if the Committee members present consent. The functions of the Committee are described in s 9 and include monitoring generally the work of the Commission and the Board, overseeing their strategic direction, and receiving reports from the Board to transmit to the governments they represent.

20    Section 9 also provides that, within 30 days of being given a copy of a determination, the Committee may request further information from the Chair of the Board, which must be provided unless the Chair considers disclosure could prejudice the safety or reputation of persons or the operations of law enforcement agencies (in which case the request must be referred to the Commonwealth Minister, to address that claim of prejudice). Within 30 days of making such a request, the Committee may revoke the determination and notify the Chair and the CEO accordingly.

21    The Commonwealth Minister can give written directions or guidelines to the Board with respect to its functions generally, but cannot do so in relation to particular special ACC operations without the approval of the Committee: s 18. The Commonwealth Minister, or a State or Territory Minister on the Committee, may also request information concerning a specific matter relating to the Commission’s conduct in the performance of its functions from the Chair of the Board or the CEO. Such information must be provided, but requests from State or Territory Committee members are again subject to the same exception for prejudice as applies for information requested by the Committee: s 59.

Particular parts of s 7C relevant to ground 2 – constitutional validity of the Determination

22    In relation to ground 2, contending that s 7C(2) is constitutionally invalid, the following provisions are central:

7C Functions of the Board

(1)    The Board has the following functions:

…

(c)    to authorise, by determination made under subsection (2), an intelligence operation to occur;

…

Special ACC operations/investigations

(2)    The Board may make a determination, in writing, authorising an intelligence operation to occur.

Note 1A: An intelligence operation that the Board has authorised to occur under this subsection is a special ACC operation (see the definition of special ACC operation in subsection 4(1)).

Note 1: See also subsection 7G(4) for the voting rule that applies in relation to such a determination.

Note 2: See also Division 2 for the examination powers available if a determination is made.

…

(4A)    The only condition for the exercise of the power under subsection (2) or (3) is that the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise an intelligence operation, or an investigation relating to a federally relevant crime, to occur.

…

(4C)    A determination under subsection (2) or (3) must, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it is authorising an intelligence operation, or an investigation relating to a federally relevant crime, to occur, set out the purposes of the operation or investigation.

…

(4E)    A special ACC operation can be undertaken only while a determination under subsection (2) is in force.

…

(4G)    A determination under subsection (2) or (3) is in force during the period:

(a)    beginning immediately after the determination is made; and

(b)    ending at the earliest of the following:

(i)    the end of the period of 3 years beginning immediately after the determination is made;

(ii)    the end of the day on which the determination is revoked under subsection (4D);

(iii)    if the determination is revoked under subsection 9(7)—when the CEO is notified of the revocation.

…

(4J)    The validity of the determination is not affected by any failure to comply with subsection (4C).

(4K)    A determination made under subsection (2) or (3) is not a legislative instrument.

Informing the Inter-Governmental Committee

(5)    The Chair of the Board must, within the period of 7 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter-Governmental Committee.

23    An important part of the appellant’s constitutional invalidity argument is that s 7C(4A) clearly and expressly provides that the only condition for the exercise of the power under s 7C(2) or (3) is that the Board considers:

on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise an intelligence operation … to occur.

Section 28 as relevant to ground 1 – validity of the Summons

24    The consequences for non-compliance with the coercive obligations outlined earlier in these reasons are reflected in requirements attendant upon obtaining and issuing a summons. It is the content of one of those requirements, in s 28(3) reproduced below, that is raised by the first appeal ground in relation to the validity of the Summons.

25    Central to ground 1, s 28 deals with examiners’ powers to summon witnesses and sets out compliance requirements for a summons, including certain formal requirements that are not in dispute in this case, such as the requirement in s 28(2) for a summons to be accompanied by a copy of the determination made by the Board. Nevertheless, it is helpful to reproduce s 28 in full, given s 28(3) needs to be considered in the context of the entire provision:

28 Power to summon witnesses and take evidence

(1)    An examiner may summon a person to appear before an examiner at an examination to do either or both of the following:

(a)    give evidence;

(b)    produce any documents or other things referred to in the summons;

if the examiner is satisfied that issuing the summons is:

(c)    in all cases—reasonable in all the circumstances; and

(d)    in the case of a post-charge, or post-confiscation application, summons—reasonably necessary for the purposes of the relevant special ACC operation/investigation even though:

(i)    the person has been charged or the confiscation proceeding has commenced; or

(ii)    that charge or proceeding is imminent.

(1A)    The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:

(a)    before the issue of the summons; or

(b)    at the same time as the issue of the summons.

(2)    A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination made by the Board under subsection 7C(2) or (3).

(3)    A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, 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.

Note: Those matters could relate to a charge or confiscation proceeding against the person (see subsection 25A(6A)).

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

(5)    An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:

(a)    the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b)    the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.

(6)    In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.

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

(8)    A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons.

Severability

(9)    Without limiting its effect apart from this subsection, this Act also has the effect it would have if:

(a)    paragraph (1)(d) had not been enacted; or

(b)    paragraph (1)(d) were, by express provision, confined to dealing with a charge against the person or such a charge that is imminent; or

(c)    paragraph (1)(d) were, by express provision, confined to dealing with a confiscation proceeding against the person that has commenced or is imminent.

Overview of the grounds of review maintained on appeal

26    Judicial review ground 1 before the primary judge is maintained in substance by appeal ground 2. The appellant continues to assert on appeal that the Summons failed to comply with s 28(3) because it failed to set out, so far as is reasonably practicable, the general nature of the matters in relation to which he was to be questioned.

27    Judicial review ground 9 before the primary judge is maintained in substance by appeal ground 2. The appellant continues to assert that s 7C(2) is constitutionally invalid in purporting to confer on the Board a power that is capable of being exercised in such a way that it is impossible to ascertain the scope or limits of a “special ACC operation” so as to be inconsistent with both the nature of executive power under the Constitution (presumably a reference to s 61) and with Ch III and s 75(v) of the Constitution, or “lacks the essential content necessary … to constitute a ‘law’ as it does not identify or determine the content of a law as a rule of conduct or declaration as to power, right or duty”.

28    The primary judge dealt with the judicial review grounds relating to the validity of the Determination first, before considering the grounds concerning the validity of the Summons. It is logical and convenient to do the same with the appeal grounds, because a finding of constitutional invalidity of s 7C(2) inevitably leads to invalidity of not just the Determination, but also the Summons.

Ground 2:    Asserted error in upholding the constitutional validity of s 7C(2) going to the validity of the Determination

Summary of the Determination

29    It is convenient to commence by reproducing the following paragraphs of the primary judge’s reasons which summarise the key features of the Determination, described by the appellant in his written submissions as being uncontroversial:

[8]    The operative provisions of the Determination are contained in cll 4 and 5, which provide as follows:

4.    Determination

4.1    The Board, pursuant to s 7C(4A) of the Act, considers, on the basis of the collective experience of the Board members voting at the meeting, that it is in the public interest that the Board authorise the intelligence operation identified in paragraph 4.2 to occur.

4.2    Pursuant to s 7C(2) of the Act, the Board makes a determination authorising an intelligence operation to occur relating to the Specified Financial Offences that may have been, may be being, or may in future be, committed.

5.    Purposes of the intelligence operation

The purposes of the intelligence operation identified in paragraph 4.2 are:

(a)    primarily, to collect, correlate and analyse criminal information and intelligence about Specified Financial Offences that may have been, may be being, or may in future be, committed, including by:

(i)    undertaking investigations;

(ii)    identifying those persons and entities involved in the commission of Specified Financial Offences (including organised crime groups, associates, and facilitators (such as government officials and private sector professionals),

(iii)    identifying the relationships between different persons and entities involved in the commission of Specified Financial Offences;

(iv)    understanding the methods and techniques used in the commission of Specified Financial Offences;

(v)    understanding the dynamic and changing environment in which Specified Financial Offences are committed; and

(vi)    identifying vulnerabilities in Australia’s financial system (including the banking and financial services industries; remittance, money transfer and payment systems; and gambling, betting and wagering services);

(b)    to collect evidence about Specified Financial Offences that may have been or that may be being committed (including by undertaking investigations);

(c)    to disseminate the information, intelligence and evidence referred to in paragraphs (a) and (b) above, in accordance with the Act, including to:

(i)    assist in the development of government policy and law reform; and

(ii)    facilitate enforcement, prevention, disruption and regulation activities (including, where appropriate, arrests, seizures, confiscations and prosecutions); and

(d)    contribute to the national database of criminal information and intelligence relating to the commission of Specified Financial Offences.

[9]    The term “Specified Financial Offence”, which is central to the operation of cll 4 and 5 of the Determination, is defined as follows in cl 3.2:

Specified Financial Offence means an offence that:

(a)    involves 2 or more offenders and substantial planning and organisation;

(b)    involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques;

(c)    is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind;

(d)    listed in Schedule 1 to this Instrument; and

(e)    is punishable by imprisonment for a period of three years or more (except in relation to those offences identified in items (12) and (14) of Schedule 1 to this Instrument);

but does not include an offence identified in paragraph (e) or (f) of the definition of serious organised crime in the Act.

[10]    Schedule 1 sets out a list of specific offences against various provisions of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code), the Foreign Acquisitions and Takeovers Act 1975 (Cth), the Autonomous Sanctions Act 2011 (Cth) and the Corporations Act 2001 (Cth), as well as related offences against other provisions of the Criminal Code, the Corporations Act, the Bankruptcy Act 1966 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Customs Act 1901 (Cth), and the Taxation Administration Act 1953 (Cth). The final item in Schedule 1 specifies an offence of the same or a similar kind to those in the preceding items that is an offence against a law of a State and that “has a federal aspect”.

[11]    The offences specified in items (1) to (6) of Schedule 1 of the Determination are concerned with obtaining property or a financial advantage by deception, or other fraudulent conduct (Divs 134 and 135 of the Criminal Code); money laundering, including dealing with the proceeds or instruments of crime (Div 400 of the Criminal Code); financial information offences under Pt 10.8 of the Criminal Code, including dishonestly obtaining or dealing in personal financial information, which involve conduct causing a benefit or loss of at least $10,000; offences relating to sanctions under Pt 3 of the Autonomous Sanctions Act which involve conduct causing a benefit or loss of at least $10,000; and offences involving market misconduct and other prohibited conduct relating to financial products and financial services (Pt 7.10 of the Corporations Act).

[12]    The balance of Schedule 1 sets out “related items” which specify various classes of offences that must relate to any of the offences identified in items (1) to (6) or, in the case of a State offence covered by item (24), must be an offence of the same or a similar kind to the offences identified in items (1) to (23) and must have a “federal aspect”.

[13]    Clause 6 and Schedule 2 of the Determination set out the classes of person to participate in the intelligence operation for the purposes of s 7C(1)(e) of the ACC Act.

The primary judge’s decision

30    The primary judge’s reasons for upholding the constitutional validity of s 7C(2) are at J[141]-[161], leading to the rejection of judicial review ground 9 at J[162]. Those determinative paragraphs are incorporated by reference rather than reproduction and are addressed (and in places reproduced) only to the extent necessary in considering the competing arguments.

The ground of appeal

31    The appellant asserts that the primary judge erred in finding that s 7C(2) was constitutionally valid because:

(a)    section 7C(2) confers on the Board a power that is capable of being exercised in such a way that it is impossible for:

(i)    an examiner exercising powers under the Act;

(ii)    persons subject to the exercise of those powers; or

(iii)    a court exercising judicial power in connection with the exercise of those powers;

to ascertain the scope or limits of a special ACC operation and as such is inconsistent with both the nature of executive power under the Constitution and with Ch III, and in particular s 75(v); and/or

(b)    section 7C(2) does not identify or determine the content of a law as a rule of conduct or declaration as to power, right or duty, and accordingly lacks the essential content necessary to constitute a “law”.

General points of principle

32    The applicable legal principles concerning constitutional validity are not in dispute, with the parties focusing instead on whether the relevant provisions of s 7C could be characterised as engaging those principles. As such, it is convenient to begin by setting out the general principles, before turning to the characterisation of s 7C(2) in its legislative context.

33    The centrepiece of the appellant’s case for constitutional invalidity turns on seeking to apply the observations of a plurality of the High Court in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [101]-[102] and [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) and Graham v Minister for immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [48] (Kiefel CJ and Bell, Gageler, Keane, Nettle and Gordon JJ).

Plaintiff S157 and Graham

34    Plaintiff S157 was a case in which two provisions of the Migration Act 1958 (Cth) were read down rather than invalidated. The plurality of Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [101]-[102] stated and effectively criticised a submission by the Commonwealth about the hypothetical outer reaches of its legislative power. The Commonwealth had submitted that the Parliament might validly confer on the Minister an open-ended discretion in relation to aliens coming to Australia, or could simply grant a bare power for that purpose and issue non-binding guidelines as the balance of the statute: [101]. That would have bestowed a discretion that was unfettered. The plurality observed that while there was legislative authority to authorise subordinate legislation under any head of power in wide and general terms, it still had to be made with respect to such a power. Their Honours said at [102] (omitting footnotes; key passage relied upon by the appellant bolded):

The inclusion in the Act of such provisions to the effect that, notwithstanding anything contained in the specific provisions of that statute, the Minister was empowered to make any decision respecting visas, provided it was with respect to aliens, might well be ineffective. It is well settled that the structure of the Constitution does not preclude the Parliament from authorising in wide and general terms subordinate legislation under any of the heads of its legislative power. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan may be cited for that proposition. But what may be “delegated” is the power to make laws with respect to a particular head in s 51 of the Constitution. The provisions canvassed by the Commonwealth would appear to lack that hallmark of the exercise of legislative power identified by Latham CJ in The Commonwealth v Grunseit, namely, the determination of “the content of a law as a rule of conduct or a declaration as to power, right or duty”. Moreover, there would be delineated by the Parliament no factual requirements to connect any given state of affairs with the constitutional head of power. Nor could it be for a court exercising the judicial power of the Commonwealth to supply this connection in deciding litigation said to arise under that law. That would involve the court in the rewriting of the statute, the function of the Parliament, not a Ch III court.

35    The appellant also relies upon further observations of the plurality in Plaintiff S157 at [104]:

The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decisionmaker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

36    The appellant accepts that the plurality’s reasoning has never been deployed to invalidate any law, but maintains that the validity of s 7C(2) is a live question, referring to questions raised about the validity of this provision in the course of an application to revoke the grant of special leave to appeal in CXXXVIII v Commonwealth [2019] HCATrans 251 at lines 104-107 and 153-159 (Gordon J) and at lines 138-143 (Nettle J).

37    An invitation to apply obiter reasoning of the kind engaged in Plaintiff S157 in response to an ambit submission by the Commonwealth in that case, to invalidate legislation, calls for considerable caution. That is so notwithstanding the appellant’s submission that this reasoning has been cited by intermediate appeal courts and by the High Court in a number of decisions, most recently in Ravbar v The Commonwealth [2025] HCA 25; 423 ALR 241. In Ravbar at [420], Jagot J observed that no analogy could be drawn between the satisfaction of the relevant Minister under the provision being challenged, that it was in the public interest for a division of a union to be placed under administration as expressly confined by the objects of the Act containing the provision, and “a law, for example, providing that ‘notwithstanding anything contained in the specific provisions of that statute, the Minister was empowered to make any decision respecting visas, provided it was with respect to aliens’ as referred to in Plaintiff S157/2002”. The appellant referred to this point in Ravbar to support the existence of a limitation on legislative power of the kind described in Plaintiff S157, and to show that validity could be found where a power conditional upon the satisfaction of the “public interest” was limited by express legislative objects, which he argued did not exist in the context of s 7C(2).

38    In support of the Plaintiff S157 argument about ostensible limits being incapable of ascertainment or enforcement by Ch III courts so as to render a provision invalid, the appellant also relies upon Graham at [48] (Kiefel CJ and Bell, Gageler, Keane, Nettle and Gordon JJ):

What Parliament cannot do under s 51(xxxix) or under any other source of legislative power is enact a law which denies to this Court when exercising jurisdiction under s 75(v), or to another court when exercising jurisdiction within the limits conferred on or invested in it under s 77(i) or (iii) by reference to s 75(v), the ability to enforce the legislated limits of an officer’s power. The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.

39    The immediate observation to be made is that the theoretical legislation posited by the Commonwealth in Plaintiff S157, which would give entirely or very substantially unfettered power to the executive is, as the respondent submits, a far cry from s 7C(2), especially given the context in which it appears. However, the appellant sought to develop the theme expressed in Graham by conducting a detailed examination of the legal and practical operation of the exercise of the power bestowed by s 7C(2), as conditioned by s 7C(4A), to argue that it denies a Ch III court the ability to enforce the legislated limits of the power.

Plaintiff M61

40    Another general point of principle that needs to be addressed is the extent to which the reasoning in Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; 243 CLR 319 assists either side’s arguments, because the primary judge relied upon it by analogy in upholding the validity of s 7C(2): J[147]-[149]. The appellant contends that the primary judge erred in interpreting, and therefore applying, the High Court’s reasoning on the question of validity. The substance of the appellant’s point is that the paragraphs of Plaintiff M61 relied upon by the primary judge (principally [56]-[59]), did not support the validity of the public interest aspect of the power under challenge, because validity was determined not on that basis, but rather upon the basis that there was nothing invalid in bestowing a non-compellable power; that is, a power that did not have to be exercised, so was not amenable to mandamus for that reason, such that the public interest aspect was not considered. As such, the appellant contends that Plaintiff M61 was neutral, rather than supportive, of validity of the public interest condition in s 7C(4A) for the exercise of the power in s 7C(2).

41    The Commission submits in response to this discrete point that Plaintiff M61 at [56], which refers to the entirety of the provision that was unsuccessfully challenged, not just the subsection referring to non-compellability, at least contains seriously considered dicta that a provision which contains a power exercisable by reference to a public interest test without identified criteria was not, implicitly for that reason alone, a provision of so little content as not to constitute an exercise of legislative power or to be a law, as a rule of conduct or a declaration as to power, right or duty. However, as developed below, the undefined nature of the public interest test is but one aspect of the appellant’s argument so that even if read in that way, such dicta does not markedly advance the conclusion required to be reached either way.

42    The primary judge did not err in concluding that Plaintiff M61 did not support the appellant’s case for invalidity, which was the ultimate conclusion reached at J[149], but this does not do much to support the respondents’ argument as to validity. Read carefully, Plaintiff M61 does not really advance either side of the present debate because it concerned a very different legislative regime. While the reliance upon it by analogy by the primary judge did not entail error, it provides less support for the conclusion that his Honour reached than might otherwise be apparent.

NAAJA v NT

43    The respondents contend that the appellant is attempting to maximise the prospect of constitutional invalidity by arguing that s 7C(2) confers an unlimited power without any discernible criteria, citing the observations of the now Chief Justice of the High Court, when a puisne judge, in North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA; 256 CLR 569 (NAAJA v NT) at [75] (Gageler J).

44    While Gageler J was in dissent in NAAJA v NT, his Honour’s observations and accompanying statements of principle capture the essence of the competing arguments sometimes present in cases such as these, of which the appellant’s case has a somewhat similar flavour (as contended by the respondents). His Honour’s description of the common response, asserting validity, is not entirely foreign to the respondents’ argument either. His Honour describes both arguments and the approach to be taken in determining constitutional validity, as follows (footnotes embedded):

[75]    The arguments divide along battlelines not unfamiliar where questions about the constitutional validity of a law are abstracted from questions about the concrete application of that law to determine the rights and liabilities of the parties. The party seeking to challenge validity advances a literal and draconian construction, even though the construction would be detrimental to that party were the law to be held valid. The party seeking to support validity advances a strained but benign construction, even though the construction is less efficacious from the perspective of that party than the literal construction embraced by the challenger. The constructions advanced reflect forensic choices: one designed to maximise the prospect of constitutional invalidity; the other to sidestep, or at least minimise, the prospect of constitutional invalidity. A court should be wary.

[76]    “If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open” [Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [28]]. The nature of that mandated choice must not be misunderstood. The choice, where binary, is between two constructions: both of which are reasonably open in the application of ordinary principles of statutory construction; one of which is in opposition to the Constitution, the other of which is in conformity with the Constitution [Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 504 [71]]. Questions as to the severance or reading down of otherwise invalid provisions aside [cf Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 92. See, relevantly, s 59 of the Interpretation Act (NT)], a court has no warrant for departing from ordinary principles of statutory construction in pursuit of constitutional validity. And a court has no warrant for preferring one construction of a statutory provision over another merely to avoid constitutional doubt [Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 381 [65]-[66]].

45    In NAAJA v NT at [77] and [78], Gageler J cautioned against giving a strained interpretation to a statute to preserve constitutional validity. Avoiding that vice gives effect to the clear words of Parliament, even if they result in invalidity; facilitates reliance on the ordinary meaning of statutory language by administrators, those affected by the legislation, and advisers; enhances accessibility to the law and accountability of the Parliament to the electorate; ensures administration of a law according to its terms, even if draconian; and exposes judicial reasoning as to any doubts about validity even if the legislation is found to be valid. Such an approach must be kept in mind when characterising the legislative provisions sought to be impugned.

The competing arguments

46    The competing arguments as to the validity of s 7C(2) loosely fall into several categories with some overlap, argued to produce either validity or invalidity, both individually and cumulatively. It is convenient to deal with each in turn to address the competing arguments one-by-one, and then together.

Public interest as the sole condition for the exercise of power

47    The appellant takes issue with the fact that there is a single condition for the exercise of power in s 7C(2), being that the Board considers, on the basis of their collective experience, that it is in the public interest that they authorise the intelligence operation relating to a federally relevant crime to occur. He contends that the public interest criterion is an illusory condition because it has no fixed or precise content and is unbounded in the specific context of s 7C(2).

48    The appellant describes the “public interest” criterion as “nebulous and elastic”, being without any definition, criteria or guidance as to what can be taken into account. There is also no requirement to record what is in fact taken into account. This latter point is made clear by way of analogy from cases which found that the prior criterion, since repealed, which referred to the efficacy of ordinary methods of policing, did not need to be referred to by the Board in the determination: see P v Board of the Australian Crime Commission [2006] FCAFC 54; 151 FCR 114 (P v Board of ACC) at [22]-[23] (Mansfield, Dowsett and Lander JJ). Similarly, the Board is not obliged to give reasons or grounds when making a determination: Z v Australian Crime Commission [2010] FCA 803; 188 FCR 85 at [100] (Reeves J). The appellant contends that the absence of any criteria or guidance, or need to give reasons, is a feature contributing to a conclusion of invalidity. The appellant’s case overtly is not that the power to make a determination is merely inadequately restrained, which might not lead to invalidity, but rather that it is of such indefinite width that the condition for exercising it is incapable of enforcement at all; that there is no way for a Ch III court to identify or enforce the limits of the power conferred.

49    While the appellant does not go so far as to say that making the exercise of the power in s 7C(2) conditional upon the fulfilment of a single condition would necessarily lead to a conclusion of invalidity, the fact that the public interest criterion is the sole condition does form part of his argument. In that context, the appellant drew attention to amendments made in 2019 which removed certain criteria for exercising the power in s 7C(2). Previously, before making a determination to authorise an intelligence operation, the Board had to consider the effectiveness of alternative investigative methods which do not involve the use of powers in the Act. Those provisions were replaced with the sole condition now contained in s 7C(4A). The appellant contends that the removal of such express mandatory considerations has resulted in a criterion which has no conceivable limits. For this reason, he argues that there is no real content to the test of public interest because the legislative regime does not define or limit the range of factors that might inform the public interest.

50    As to the breadth of the public interest criterion in s 7C(4A), the respondents rely on Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 and particularly on [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), as follows, omitting footnotes:

Criterion (f) was “that access (or increased access) to the service would not be contrary to the public interest”. It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

51    While not explicitly stated in the provision, the respondents argue that the assessment of public interest in the Act should be read in a way that is consistent with the observations in Pilbara, as being confined by the subject matter, scope and objects of the Act. The respondents submit that this sort of discretion is commonplace in Commonwealth legislation, none of which have been found to exceed the limits identified in Plaintiff S157. The respondents rely upon the most recent rejection of such an argument in Ravbar, in which the challenged provision allowed a Minister to make a public interest determination, seemingly on an entirely unconstrained basis, for a scheme to place a union or one of its branches under administration. Indeed, in addition to a list of prescribed matters that had to be provided for, the scheme contemplated in Ravbar could provide for any other matters that the Minister considers appropriate. The substance of the respondents’ point is that if such a “broad textured provision” did not attract a comparison to the hypothetical invalid law in Plaintiff S157, it was difficult to see how a power that was much more clearly defined could possibly do so.

52    The respondents contend that the defined nature of the power arises from the substantive and procedural requirements for satisfying the public interest test. In terms of procedural requirements, the respondents point in particular to the voting requirements described at [12] above, the maximum duration of the determination being no longer than three years described at [14] above, and the requirement in s 28(2) to attach a copy of the determination to the summons. In relation to the substantive public interest criterion, the respondents submit that the notion of public interest is tied to the collective experience of the voting Board members, which reflects Parliament’s judgment that such a body of individuals is well-placed to decide whether that threshold is met before authorising the Commission to utilise coercive powers. In that way, the conclusion that such an authorisation is in the public interest is required to be made in the context of the particular and unusual scheme created by the Act, as identified in P v Board of ACC (Mansfield, Dowsett and Lander JJ), which informs when a determination might be in the public interest. Their Honours said (at [27]):

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

53    Weighing up the competing arguments on the public interest test, the appellant’s proposition that the public interest criterion is nebulous and elastic does not accord with the more benign characterisation given to such a test by the High Court in Pilbara. While it is certainly broad in the present context and lacks any statutorily prescribed criteria, that is a function of the nature of the power being exercised, the objectives sought to be achieved, and the importance of such an overarching consideration to be applied before activities of this kind can be authorised, extending, but not confined to, the use of coercive powers. The requirement of the collective experience of very high-level officials holding leadership positions in a range of areas, federal, state and territory, affected by, or concerned with, the sorts of activities that the Commission is directed to examining, does not detract from the reliability and utility of the public interest test, but rather enhances it. Decisions by such a repository of power, while difficult to make amenable to routine judicial review, also provide some assurance that such important decisions are not left to those who then carry out their implementation. The presumption of regularity has a sound practical foundation. If this was the only basis advanced for invalidity, it would fail. To the extent that it is relied upon as a contributing feature, it tends towards being consistent, rather than inconsistent, with validity.

Breadth of concepts under the Act

54    This category is conveniently approached by referring first to the argument advanced by the respondents. The respondents accept that the provisions pointed to by the appellant are cast in wide and permissive terms but take issue with characterising them as conferring an essentially unfettered power upon the Board. They submit that the Board’s power in s 7C(2) is fettered in the sense that:

(a)    The power is confined by a series of defined terms with express limits. It requires an intelligence operation relating to a federally relevant crime as defined (in s 4(1), reproduced above). And the power is framed by reference to confined purposes such as collecting, correlating, analysing or disseminating information or intelligence, where that information or intelligence relates to a federally relevant crime.

(b)    The reference in the condition in s 7C(4A) for the exercise of the s 7C(2) power to “relat[e] to” a federally relevant crime requires the “existence of a connection or association” between the two, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [87] (McHugh, Gummow, Kirby and Hayne JJ), such that the Act and not the Board identifies and defines the necessary subject matter of a determination.

55    While the term “federally relevant crime” is defined broadly, the appellant does not appeal from the primary judge’s finding on the validity of ss 24A, 25A or 28, which were challenged by reference to that term in judicial review grounds 3 and 10. That challenge was rejected by his Honour by reference to the observations of Wigney J as to the validity of that term in XCIV v Australian Crime Commission [2015] FCA 586; 234 FCR 274 at [140], and also in the application of that term to State offences with a federal aspect by the decision of the Full Court in S v Australian Crime Commission [2006] FCAFC 5; 149 FCR 361 at [8] (Ryan J) and [50] (Emmett J), referring also to the decision of Mansfield J at first instance in S v Australian Crime Commission [2005] FCA 1310; 144 FCR 431 at [23]–[24] (S v ACC): see J[169].

56    The primary judge quoted the following passage from Wigney J’s reasons in XCIV at J[171]:

No constitutional challenge is made to the definition of “federally relevant criminal activity” [scil; “federally relevant crime”] which is the lynchpin of both the s 7C determination power and the s 28 summons power. That is not surprising. The first limb of the definition, which involves Commonwealth offences, is plainly constitutionally valid. It is “supported by as many heads of power as from time to time have been exercised by the Parliament to create offences against Commonwealth laws”: R v Hughes (2000) 202 CLR 535 at [40]. The constitutional validity of the second limb, which relates to State offences with a “federal aspect”, was also confirmed in S v Australian Crime Commission (2006) 149 FCR 361.

57    It follows, the respondents contend, that the basis for the exercise of the power in s 7C(2) contains a clear nexus to a validly invoked head of constitutional power, which is a signpost to validity of the power, given the prominence this assumed in Plaintiff S157; and that power is therefore, while broad, not limitless. The respondents contend that such a nexus is itself a real, and therefore not illusory, constraint on the exercise of the power to make a determination.

58    The appellant asserts to the contrary that the extraordinary breadth of these concepts, which work together to define the scope of the subject matter for the Board, and by corollary, the ambit of the intelligence operation that the Board is to assess against the public interest, means that they do not act as meaningful constraints. The appellant contends that a number of authorities cited in his reply submissions permit a determination to be made upon the basis of an indirect or less than substantial connection between the criminal information, intelligence or investigations and the federally relevant crime. This is based on the breadth of the definition of a federally relevant crime, which includes crimes being committed in the past (unless a limitation period for an offence has expired per (f) of the definition of serious and organised crime in s 4(1)), present or future, and the very nature and purpose of an intelligence operation. An example is that the intelligence operation does not necessarily proceed from any discovered offence, being investigatory or inquisitorial in nature, and has even been found to entail the Commission embarking on a fishing expedition, citing XCIV at [110]-[111] (Wigney J). These aspects are said to combine to produce an overall feature that the appellant relies upon as an asserted indicator of invalidity, namely that s 7C(2) allows the Board to:

authorise an operation to be carried out which is primarily directed towards collecting information that has some indirect connection or relationship with the possibility that any relevant offence against a law of any Australian jurisdiction has at any stage been or will at any stage be committed, and to do so solely on the grounds that it considers such an exceptionally ill-defined operation to be in the public interest.

59    The appellant accepts that a federally relevant crime is confined to those involving two or more offenders, substantial planning, and engaging the definition of “serious and organised crime” in s 4(1) (with the exception of incidental offences as defined in s 4(2)), but maintains that there are no logical constraints or bounds on the criterion of public interest, given its breadth and the imprecision in the various concepts it employs. In particular, the appellant disputes the Commission’s contention that the definition of “intelligence operation” is any fetter on the Board’s power under s 7C(2), or otherwise supplies any content to the discretion.

60    Again weighing up the competing arguments, the appellant’s reliance upon asserted weaknesses in the requirement in s 7C(4A) of a federally relevant crime, a term and concept at the centre of the Commission’s functions and powers, does not survive close scrutiny. While the concept covers many activities, it is far from being ambulatory. It is tied to an identifiable category of offences, but limited to a subset of them of higher levels of seriousness, both in terms of the range of offence provisions themselves and in terms of their objective seriousness, with references to multiple participants, planning and the offences amounting to serious and organised crime as defined. While the ambit remains wide, it is confined in material ways. The asserted imprecision relied upon is a feature of the myriad of ways in which such criminal activities may be able to be carried out. But the focus is clearly on more serious and systematic types of criminal conduct. This aligns with the function of the Commission, being a national organisation specialising in high end criminal intelligence and associated investigations. The making of determinations, rather than providing authorisation at large, provides focus in what otherwise would likely be an amorphous and poorly directed process. It is a sound basis for concluding that this structure contributes to validity, rather than invalidity.

Possibility of judicial review

61    Section 7C(4C) provides that a determination must set out the purpose of an intelligence operation, but only to the extent that the Board considers appropriate having regard to the generality at which it is authorising that operation; and s 7C(4J) provides that the validity of a determination is not affected by any failure to comply with subsection (4C): see the text of the relevant parts of s 7C reproduced above at [22]. The appellant relies upon the generality that this permits for the terms of a determination, in that, to be valid, it ultimately need not:

(a)    refer to the purposes of an intelligence operation at all;

(b)    require the identification of any particular offence, conduct, transaction, person or timeframe; or

(c)    even refer to the fact that the Board has considered the public interest (although the presumption of regularity would entail accepting this had occurred given it is the decision-making criterion), nor how the Board identifies the federally relevant crime, nor the voting or the reasons for concluding that it is in the public interest.

62    The substance of his argument appears to be that given there is no requirement to record many of the features commonly used to ground an application for judicial review, it is difficult to conceive of a successful challenge to the Board deciding that an intelligence operation is in the public interest. In this way, the affected person or a court is limited in their ability to assess the lawfulness of the determination, which the appellants say is an additional factor pointing in favour of invalidity, as outlined in the discussion regarding Graham above.

63    In response to the appellant’s reliance on Graham, the respondents contend that the provision found to be invalid in that case applied a blanket and inflexible rule on the court receiving evidence which had been taken into account in the decision under review, with there being nothing of that nature in this case. While a broadly defined power can make judicial review difficult, many things, such as successful claims of public interest immunity, can also have that effect. However, this does not deny some scope for judicial review. The respondents rely upon the observation by Mason J in Church of Scientology Inc v Woodward [1982] HCA 78; 154 CLR 25 at 61:

The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.

64    The underlying, and in places overt, thrust of the respondents’ case is that the appellant’s arguments rise no higher than the statutory regime making judicial review of a decision of the Board to make a determination difficult. Such difficulty arises by reason of the very nature of the power, the fact that it is broadly defined, and the fact that it depends on a group of people with collective expertise across a range of fields assessing the public interest in authorising, in this case, an intelligence operation (which includes undertaking investigations), directed to a wide range of past, current and future stipulated financial offences. Despite this, the respondents contend that the power falls squarely within the ambit of what could reasonably be expected of an organisation that, by its alternative title and aspects of its legislated functions, is directed to criminal intelligence activities.

65    The respondents also point to the exercise of the power as also being subject to the duty of legal reasonableness as described in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]-[24] (French CJ) and at [65] (Hayne, Kiefel and Bell JJ).

66    The appellant contends in rebuttal that the duty of legal reasonableness is no answer, because it would not have saved a hypothetical law of the kind addressed in Plaintiff S157 and therefore cannot save s 7C(2) if it is otherwise invalid.

67    Again, weighing up the competing arguments, for reasons explained above and below, s 7C(2) is not invalid solely because of its broad nature. The generality permitted for the terms of a determination is not in and of itself a compelling basis for supporting a conclusion of invalidity. The purpose of a determination is not to authorise open-ended and directionless activity by the Commission, but rather to permit a thorough yet focused examination of the causes and manifestations of the most serious examples of federal, and federally related, organised criminal activity.

68    To require the Commission to identify the precise purpose of the intelligence operation, or to identify any particular offence, conduct, transaction, person or timeframe in advance, would amount to approaching this task from the wrong end of the process. The process of making a determination is not directed to drawing up a charge for an offence after evidence has been obtained, nor with investigating an offence already suspected of being committed, but rather the antecedent activity of ascertaining whether, when, where, how and, if possible, by whom, such behaviour has been, is or is likely to be, engaged in. It is not confined to traditional concepts of investigation, prosecution, conviction and punishment, although these may well be features, but is also directed to more advanced and prophylactic outcomes of detection, disruption and prevention. It is more akin to wide-ranging intelligence activities by organisations such as the Australian Security Intelligence Organisation (ASIO), based on looser criteria and endorsed by the High Court more than four decades ago in Church of Scientology: see in particular Mason J at 61, where his Honour observed, in addition to the portion reproduced above at [63]:

The first three matters to which I have referred do not make the issue of relevance to security insusceptible of judicial determination. Intelligence is relevant to security if it can reasonably be considered to have a real connexion with that topic, judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument – that there is no real connexion between the intelligence sought and the topic. The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials.

69    It follows that the limits on judicial review identified by the appellant do not lead to, or substantially contribute to, a conclusion of invalidity.

Repository of power – accountability issues

70    The appellant takes issue with the identity of the repository of power at the time that a decision is made. This is advanced in two respects: the Board not comprising elected officials accountable to parliament, which in some unclear way is said to reinforce the “limitless breadth” of the public interest criteria in s 7C(2); and to an apparently much lesser extent the lack of identification in how each member of the Board voted. The second aspect may be addressed immediately: it is not apparent how the absence of a breakdown of voting would lead or even contribute to a conclusion of invalidity. It is the response to the first point that matters.

71    The appellant points to at least nine of the Board members being individuals drawn from disparate backgrounds with their own institutional interests and priorities, who are not political officers personally accountable to the Parliament or the electorate for the administration of the Act or their evaluation of the public interest. As well, a determination is not a legislative instrument (per s 7C(4K)) and therefore does not need to be tabled in Parliament. This is said to matter because the presence of this feature in other statutory contexts reinforces the amorphous nature of the public interest as a decision-making criterion. By contrast, case law discussing the concepts of public interest or national interest, especially in the field of migration law, often concern powers that are vested in Ministers and accompanied by a requirement to table a statement in Parliament setting out inter alia the reasons for thinking that their actions are in the public interest, with the appellant citing in particular Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 and Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336. The appellant asserts that such a requirement is a manifestation of responsible government by providing accountability to Parliament in recognition of the special nature of the decision being made. The appellant contends that there is nothing of that kind here, despite the powers being arguably even more remarkable.

72    The respondents acknowledge that the power in s 7C(2) lacks political accountability in the sense that it is not exercised by a Minister who is directly accountable to Parliament and to the electorate. Despite this, the respondents point to the Board (and to an extent, the CEO) being accountable to the Committee described at [19] above (made up of the Commonwealth Minister and a minister from each participating State and Territory) and to the oversight powers bestowed on the Commonwealth Minister described at [21] above, as imposing meaningful constraints in the form of accountability to elected representatives. In particular, the respondents point to the power of the Committee to revoke a determination (which is already limited to a three-year duration) and to seek information (albeit directed to the Commission itself rather than the Board, there being no duty to do so and there being exceptions allowing for that not to be provided), and the power of the Commonwealth Minister to give directions and to issue guidelines (albeit of limited scope in some respects).

73    It is unclear how, as the appellant submits, the characteristics of the repository of the power conferred by s 7C(2) reinforces the “breadth” of the condition for the exercise of that power, namely, whether it is in the “public interest” to authorise an intelligence operation or investigation. Nevertheless, the need for the collective experience of a majority of very high-level officials holding relevant leadership positions to be deployed in determining whether it is in the public interest to exercise power under s 7C(2) counts against a conclusion that the concept of the “public interest” is unbounded. The fact that only a subset of them may participate in the making of a given determination is neither here nor there. The very high level of official eligible to be a member of the Board is of itself significant. That is even more so when regard is had to the voting requirements and both the individual and collective qualities required to be applied to the decision-making process. While the Board has less political accountability compared to a decision-making body comprised of one or more elected officials, that has no effect on the validity of s 7C(2).

Overall effect and conclusion

74    The appellant relies upon the cumulative effect of the preceding four features to characterise the power reposed in the Board as being unbounded in nature and of indefinite width in relation to the concept of public interest in the context of the Act, such that it transgresses the constitutional limitation identified by the plurality in Plaintiff S157 and confers a power whose ostensible limits are incapable of enforcement by Ch III courts: Graham at [48], reproduced above.

75    The appellant has evocatively spelt out the features of the legislative regime concerning how determinations are made and advanced his arguments with some force. It has been a skilful forensic exercise befitting the seriousness of the issue raised. The details of his argument and the respondent’s contrary argument have been set out in considerable detail above. The threshold for invalidity is a high and exacting one. The question for determination is whether that high threshold has been surmounted.

76    For the reasons above and below, neither the individual features identified by the appellant, nor their collective effect, compels a conclusion of invalidity.

77    For completeness, it should be noted that substantially the same competing arguments were apparently advanced before the primary judge, although they have been developed somewhat further on appeal in certain respects. His Honour’s conclusions in key respects support and prefer the respondents’ arguments over those advanced by the appellant. Unless those conclusions are shown to be incorrect, this ground of appeal must fail. His Honour said in particular:

[150]    The power conferred on the Board by s 7C(2) is wide, but it is not unlimited and it remains amenable to judicial review in respect of both the procedural requirements and the substantive conditions on making a determination to authorise a special ACC operation. The requisite number of Board members must vote in favour of making the determination in accordance with s 7G(4). The determination must be in writing. It must identify the federally relevant crime and set out the purposes of the intelligence operation, albeit that the Board is afforded some latitude as to the level of generality with which the determination does so. The Board must consider that it is in the public interest to authorise the intelligence operation to occur.

[151]    The concept of the public interest is undoubtedly broad, particularly in circumstances where it is based on the collective experience of Board members comprising senior Commonwealth officers from various law enforcement, security, taxation and regulatory agencies together with State and Territory police chiefs. Nevertheless, the public interest or the national interest are accepted criteria by which a statutory power may be exercised, at least where the relevant power operates on rights and liabilities that otherwise have a sufficient connection to a head of Commonwealth legislative power. Such criteria have not been treated as rendering a statutory power unreviewable.

[152]    In so far as the applicant contended that s 7C(2) purports to empower the Board to authorise a special ACC operation that is so broad or undefined that it becomes impossible for a court to determine its scope or limits, it must be kept in mind that an intelligence operation authorised by a determination under s 7C(2) must meet the definition contained in s 4, including that it is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime. The same may be said in relation to a determination made under s 7C(3) to authorise an investigation relating to a federally relevant crime. Thus, the outer limits of any special ACC operation/investigation are confined by reference to federally relevant crimes within the meaning of the ACC Act, whether that be categories or specific allegations of federally relevant crimes or categories of suspected offender or specific offender: see s 7C(4). Nevertheless, the Parliament has clearly indicated its intention that a special ACC operation/investigation does not need to be limited to particular offences or particular conduct, transactions or persons: s 7C(4CA).

[153]    The making of a determination under s 7C(2) or (3) enlivens coercive powers in relation to examinations under Div 2 of Pt II of the ACC Act. However, an examiner can only exercise those powers for the purposes of the special ACC operation/investigation: ss 24A(1), 28(7). In this regard, the purposes of the special ACC operation/investigation are those set out in the determination made by the Board under s 7C(2). At an examination, a witness may be examined or cross-examined on any matter that the examiner considers relevant to the special ACC operation/investigation: s 25A(6). However, contrary to the applicant’s submissions, this does not confer on the examiner an unconfined discretion to allow the witness to be questioned on any subject, regardless of its relevance to the matters within the scope of the special ACC operation/investigation. Section 25A(6) contemplates that a witness may be examined or cross-examined by a counsel assisting the examiner, by a person who is authorised to appear at the examination, or by a legal practitioner representing the witness at the examination. The role of the examiner is to constrain such questioning to matters that are relevant to the special ACC operation/investigation. While any rulings on relevance are entrusted to the subjective opinion of the examiner, they must be consistent with the scope and purpose of the ACC Act and in accordance with the principles of legal reasonableness.

78    There is a minor infelicity in J[150], perhaps amounting to a minor error, in that the Board is not required to identify the federally relevant crime to which the determination relates and although a determination must set out the purposes of the operation, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it is authorising an intelligence operation, failure to do so will not affect the determination’s validity: ss 7C(4), (4J). But apart from that, the primary judge’s analysis above is entirely sound. The appellant reargued a number of these points but did not establish any error in his Honour’s reasoning.

79    The primary judge also detailed the material changes to the Act in 2019 at J[154]-[159], noting at J[155] that this had been downplayed in the second reading speech for the Bill that became the amending Act. His Honour correctly observed (at [160]):

Ultimately, however, the fact that the current provisions may be more broadly drafted than previously does not deprive those provisions of content nor does it confer on the Board an arbitrary or unreviewable discretionary power. In so far as any critique of the width of the discretion or the scope of the powers entrusted to the Board raises policy issues, those are properly matters for the Parliament and do not go to the constitutional validity of the provisions. It is open to the Parliament to consider that the conferral on the ACIC of broad powers is warranted to address serious and organised crime, which may involve conduct and networks extending across state and international borders and employ sophisticated technologies to evade detection, rendering its participants “highly resilient to traditional investigative and intelligence-gathering methodologies” (see the Second Reading Speech at p 6345). In so far as the conferral of coercive powers under the ACC Act has an undoubted impact on the rights of individuals, this is capable of being taken into account both in the construction of the relevant statutory provisions and in the proper exercise of the powers by the officers on whom they are conferred.

80    In light of the further analysis above, and a searching examination of the appellant’s arguments, the primary judge’s reasons for rejecting the appellant’s case as to invalidity are also sound and free from error (at [161]):

Accordingly, I do not accept the applicant’s submission that s 7C(2) of the ACC Act is invalid on the basis that it confers an unbridled discretion that is not governed by any discernible criteria and is not susceptible to judicial review. Nothing in s 7C(2) derogates from the High Court’s original jurisdiction under s 75(v) of the Constitution or this Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to review the decisions and actions of the ACIC. A determination made under s 7C(2) provides the ACIC with authority to conduct a special ACC operation/investigation, and affects the rights and liabilities of persons who may be subjected to the exercise of powers conferred by the ACC Act for the purposes of that operation or investigation. As discussed further below, it does so by reference to federally relevant crimes, which provide a sufficient connection with a head or heads of Commonwealth legislative power. Section 7C(2) is therefore a valid law of the Commonwealth.

81    The appellant has understated the effect of the provisions that constrain the scope of the power in s 7C(2) and the capacity of an affected person to challenge compliance with the statutory scheme, notwithstanding the real difficulties associated with such a review.

Conclusion

82    Properly considered, the Board, while having a broad discretion to make determinations authorising the exercise of quite sweeping powers, is not given anything close to “carte blanche” to simply act as it sees fit, as alleged by the appellant. The primary judge was correct to conclude that s 7C(2) is constitutionally valid. This ground of appeal must therefore fail.

Ground 1:    Asserted error in upholding of the validity of the Summons

Section 28(3) and how it was addressed in the Summons

83    Appeal ground 1 turns on the meaning of s 28(3) in the context of the rest of s 28, and how the obligations thereby imposed were sought to be met. Section 28(3), reproduced again for ease of reference, provides:

A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, 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.

84    The Summons expressly addressed the requirement imposed by s 28(3) at cl 5 as follows:

General nature of matters in relation to which you are to be questioned (section 28(3))

5.    At the examination, you are to be questioned in relation to matters of the following general nature:

(a)    dealing with money and other property (including digital currency, electronic funds, cash and luxury assets) that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs (including cocaine, methylamphetamine and MDMA);

(b)    the use of encrypted communication devices and messaging applications to facilitate such activities; and

(c)    the identities of other persons and entities (in Australia and overseas) involved in such activities, particularly the ’Ndrangheta, and the nature and extent of their involvement.

The SOFAC

85    The appellant’s argument before the primary judge and on appeal in relation to the validity of the Summons relies upon the SOFAC part of the Application, and in particular [65]. That paragraph is as follows (in the context of [64] and [66], all with the unchallenged redactions applied by the Commission upon grounds of public interest immunity):

[64]    The examinee may be able to provide information regarding the [redaction] 'Ndrangheta [redaction].

[65]    [redaction] The examinee is to be questioned on his practices, specifically engaging other SOCs to conduct illicit activities on behalf of himself and the [redaction].

[66]    The information and evidence supplied by the examinee is expected to [redaction] the 'Ndrangheta, current involvement in illicit activities and use of [redaction] for money laundering purposes.

86    It is important for [65] of the SOFAC to be placed in the context of the description of the Application provided by the primary judge, again described by the appellant in his written submissions as uncontroversial, as follows:

[16]    The relevant offences were identified in the Application as offences against specified provisions in Div 400 of the Criminal Code, which deals with money laundering, and related offences against specified provisions in Divs 302 and 307 of the Criminal Code, which respectively deal with trafficking controlled drugs and import-export offences (including importing and exporting border controlled drugs or border controlled plants, possessing border controlled drugs or border controlled plants that are unlawfully imported or reasonably suspected of having been unlawfully imported, and importing and exporting marketable quantities of border controlled precursors).

[17]    Paragraph 11 of the Application addressed how the summons application related to the Specified Financial Offences under the Determination, including the criteria requiring the involvement of two or more offenders and substantial planning and organisation, the use of sophisticated methods and techniques, and commission in conjunction with other offences of a like kind.

(a)    In relation to the involvement of two or more offenders and substantial planning and organisation, the Application referred to “the Calabrian Mafia, otherwise known as ’Ndrangheta, and Ndrangheta transnational Australia group (NTAG)”, stating that “[t]he ’Ndrangheta is the wealthiest and most powerful Italian criminal organisation, and ranks among the world’s most powerful transnational serious organised crime (TSOC) syndicates”. The application stated that the ’Ndrangheta “are historically connected to large scale drug trafficking and associated money laundering and leverage off their global footprint to facilitate this offending”. Further, the Application stated that the nature of the Specified Financial Offences required substantial planning and organisation, including “the involvement of multiple layers of individuals in order for the cross jurisdictional importations to occur as well as the obfuscation of funds from law enforcement and regulatory bodies”.

(b)    In relation to the use of sophisticated methods and techniques, the Application stated that “[e]ngaging in the laundering of criminal proceeds derived from drug importation and trafficking offences involves complex and sophisticated methods in order to avoid detection by law enforcement”, and that such methods and techniques “involve a complex layering of company structures and transactions to obfuscate the source and disguise the movement of illicitly-derived funds”. The Application also referred to the use of dedicated encrypted communication devices (DECDs) by persons and entities involved in the illicit activities.

(c)    The Application stated that the relevant offending involved “the suspected commission of multiple offences of a like kind in conjunction with each other, namely, repeated instances of money laundering being committed to launder the financial proceeds derived from criminal activities”.

[18]    Paragraph 12 of the Application summarised the purposes of the special ACC operation relevant to the summons application, largely reproducing the purposes set out in paragraph 5 of the Determination.

[19]    The Application stated that, as part of the intelligence operation authorised by the Determination, the ACIC was conducting a project to investigate the involvement of the ’Ndrangheta in the commission of Specified Financial Offences, including “the networks and methodologies used by ’Ndrangheta to launder and obfuscate criminal proceeds, as well as other related offences, such as the importation, manufacture and distribution of border-controlled drugs”: Application at [18]. The project “seeks to identify and understand the instances where, and the extent to which, the Specified Financial Offences may have been, may be being, or may in the future be, committed by members and associates of the ’Ndrangheta”: Application at [27].

[20]    By way of background, the Application addressed the nature and criminal activities of the ’Ndrangheta, including persons or entities based in Australia, and the use by ’Ndrangheta of DECDs and messaging applications in connection with serious organised criminal activities.

[21]    The Application set out information relating to the applicant, including his personal details, criminal history and criminal associations. In relation to the specific evidence that was sought from the applicant and its relevance to the special ACC operation, the Application stated that “[i]t is suspected that the examinee can provide information or evidence that is relevant to the Operation about the commission of Specified Financial Offences being conducted [redacted] and other SOC [serious organised crime] groups in Victoria and around the globe”: Application at [61]. The Application continued (at [62]):

Specifically, it is believed that the examinee, as a prominent member of the [redacted], will be able to provide details regarding Italian Organised Crime and reputed ’Ndrangheta involvement in money laundering [redacted] remitting the proceeds of drug importations and domestic trafficking.

[22]    Paragraphs [63]–[66] of the Application, which were heavily redacted in the copy that was adduced into evidence, addressed details of the information that the applicant might be able to provide regarding the ’Ndrangheta, including current involvement in illicit activities and money laundering. In particular, paragraph [65] stated that the applicant “is to be questioned on his practices, specifically engaging other SOCs to conduct illicit activities on behalf of himself and the [redacted]”.

[23]    The Application stated that the applicant is not currently charged with any offence, nor are any charges imminent, and no confiscation proceedings have been commenced or are imminent: Application at [68]–[69].

[24]    In relation to whether it was reasonable in all the circumstances for an examiner to issue a summons, the Application relevantly stated at [70]–[71]:

It is believed that the examinee can provide evidence that is relevant to the Operation and would assist in achieving the purposes set out in paragraph 5 of the Determination. The examinee is believed to have direct knowledge and criminal involvement, in the importation and trafficking of drugs and Specified Financial Offences including money laundering activities. [Redacted] criminal activities including the importation of border-controlled drugs and use of DECD’s, therefore his knowledge of these matters will assist to build the ACIC’s understanding of the current ’Ndrangheta landscape within Australia.

The matters of which the examinee is to be examined are within the scope of the Operation and it is expected that the examinee will [redacted] by gathering relevant information in pursuit of the purposes in paragraph 5 of the Determination.

The primary judge’s decision

87    The primary judge’s reasons for rejecting the challenge to the validity of the Summons by reason of asserted non-compliance with the requirements of s 28(3) are at J[184]-[197], leading to the rejection of judicial review ground 1 at J[198]. Those determinative paragraphs are incorporated by reference rather than reproduction. The two particular paragraphs in which the primary judge is alleged to have erred, J[196] and [197], benefit from the context of the two paragraphs preceding them, J[194] and [195], and are as follows:

[194]    To support his contention that the Summons failed to set out the general nature of the matters in relation to which he is to be questioned, the applicant relied on information that had been included in the Application, in so far as it was not the subject of any public interest immunity claim, arguing that this demonstrated that it was reasonably practicable for such information to be set out in the Summons. This argument misstates the relevant question, which is not whether it was reasonably practicable to include the information, but whether it was necessary to include such information in order to set out the “general nature” of the matters in relation to which the applicant is to be questioned.

[195]    The Application descended into further detail as to the specific evidence that it is believed the applicant can provide that is relevant to the special ACC operation authorised by the Determination. The Application nevertheless distinguished (at [76]) between the specific evidence the applicant is likely to give, and the general nature of the matters in relation to which he will be questioned. It is apparent that the latter drew upon the former. The fact that the Application contained more specific or extensive information does not of itself establish that such information was essential to convey the general nature of the matters that are the subject of the examination in compliance with s 28(3) of the ACC Act.

[196]    In my view, the general nature of the offences referred to in paragraph [11] of the SOFAC is captured by the description of the matters set out in paragraph 5 of the Summons. The applicant’s submissions placed particular emphasis on a statement contained in paragraph [65] of the SOFAC that the applicant “is to be questioned on his practices, specifically engaging other SOCs to conduct illicit activities on behalf of himself and the [redacted]”. The applicant contended that this allegation is different in nature, and not just in detail, from the statement in the Summons that the applicant is to be questioned about the involvement of persons and entities in the relevant criminal activities. The applicant characterised the statement in paragraph [65] of the SOFAC as raising a “serious allegation” of agency, in that the applicant did not simply have knowledge of the involvement of other persons or entities but that he had himself engaged such persons or entities to conduct illicit activities on his behalf. The applicant submitted that there was a “disconnect” between such an allegation and the statement in the Summons of the general matters about which the applicant is to be questioned.

[197]    In my view, this submission is without merit. Any questions about the applicant’s engagement of other persons to conduct illicit activities falls within the general nature of identifying persons and entities involved in dealing with proceeds of crime, including from the importation and trafficking of controlled drugs, and the nature and extent of their involvement. Paragraphs [61]–[67] of the Application (which were subject to redactions) contained details of the specific evidence that was sought from the applicant and its relevance to the special ACC operation, including his connection with the ’Ndrangheta and its reputed involvement in money laundering and remitting the proceeds of drug importations and domestic trafficking. In order to comply with s 28(3), the Summons was not required to set out specific allegations against the applicant, nor to include all of the information contained in the Application that was before the examiner for the purposes of deciding whether it was reasonable in all the circumstances to issue the Summons under s 28(1) of the ACC Act.

88    The appellant does not suggest that the primary judge failed to capture his argument, but rather that his Honour’s conclusion about it was wrong.

The ground of appeal and the appellant’s argument

89    This ground of appeal asserts that the primary judge erred at J[196]-[198] in finding that the Summons complied with s 28(3) by:

(a)    incorrectly finding that the Summons set out, so far as is reasonably practicable, the “general nature of the matters” in relation to which the appellant was to be questioned; and

(b)    failing to take into account the natural justice aspect of the legislative purpose when evaluating whether the Summons complied with s 28(3).

90    In his written and oral submissions, the appellant reiterates the serious incursion on his common law rights by the obligations imposed by the Summons and the serious consequences flowing from non-compliance with a valid summons. So much is not in doubt, as noted above at [18]. Acknowledging that the proviso in s 28(3) was not invoked, which allowed the Examiner not to “set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned” if it would prejudice the effectiveness of the special ACC operation, the appellant relies upon:

(a)    the observation by Finn J in P v Australian Crime Commission [2005] FCA 55 at [16] that the requirements in s 28(3) “serve in some degree natural justice purposes”;

(b)    the observation by Charlesworth J in XXVII v The Commonwealth of Australia [2017] FCA 320; 265 A Crim R 519 as part of [52] that the purpose of the requirements in s 28(2) and (3) is to:

enable the recipient of a summons to ascertain, in a general way, the limits of the authority of the examiner to conduct the examination and also to identify whether the matters being inquired into at the hearing are relevant or capable of being considered to be relevant to the special investigation.

(Emphasis in original.)

(c)    the observations by Mansfield J in S v ACC at [30] that failure to fulfil the essential conditions governing the issue of a summons in s 28(3) will invalidate it, citing Ousley v The Queen [1997] HCA 49; 192 CLR 69 at 88-89, with his Honour further observing at [37]:

Section 28(3) recognises the desirability of a witness being notified in advance of the matters upon which questions should be anticipated. But it does so in qualified terms. It prescribes the circumstances in which such notice should be given. There are obvious considerations of fairness to a proposed witness by being so notified. The examination itself may be more efficiently conducted if such notification is given. But s 28(3) prescribes when that notification is to be given, and the extent of the notification if it is to be given, having regard to the respective interests of the witness and of the effective conduct of the special ACC investigation of which the examination is a part.

91    With the above general propositions in hand, the appellant turns to a number of cases dealing with the requirements to state the general nature of an identified thing in other statutory contexts which have addressed what was required in those particular contexts. In particular, he:

(a)    refers to the following legislative provisions: s 19(3)(a) of the Australian Securities and Investments Commission Act 2001 (Cth); s 249L(1)(b) of the Corporations Act 2001 (Cth); Sch 1, cl 1(c)(ii) of the Expiation of Offences Regulations 2011 (SA); and s 13(2)(a) of the repealed National Crime Authority Act 1984 (Cth);

(b)    points to the observation by Jenkinson J in Australian Securities Commission v Graco (1991) 29 FCR 491 at 495 that the expression “general nature” invites “both comprehensiveness and brevity in description of the matter, and gives no encouragement to definitional particularity”, which was quoted with approval by the Full Court in Kennedy v Australian Securities and Investments Commission [2005] FCAFC 32; 142 FCR 343 (Black CJ, Merkel and Emmett JJ) at [110];

(c)    submits that the meaning of the “general nature of the matters” for questioning in s 28(3) is informed by the purpose of the requirement for its inclusion in a summons, and what is necessary to identify the “general nature” will also be informed by the relevant “matter” itself, citing the relatively recent South Australian Court of Appeal decision of City of Playford v Mathie [2025] SASCA 45 at [94] (Kourakis CJ, Doyle and David JJA), concerned with whether the “general nature” of a road traffic offence was set out in an expiation notice;

(d)    asserts that the word “matter” in the present context bears the ordinary meaning of an affair, subject or thing, citing A1 v National Crime Commission (1996) 67 FCR 464 (Merkel J) at 472, with that statement of principle being unaffected by a successful appeal on a different point (National Crime Commission v A1 (1997) 75 FCR 274) and also citing Jenkinson J in Graco at 497-8;

(e)    asserts that, when read with [11(a)] of the SOFAC summarised at J[17], the matters that he is to be questioned about are outlined at [65] of the SOFAC, and the unredacted parts of that document confirm that he is to be questioned on “his practices, specifically engaging other SOC [Serious and Organised Crime] groups to conduct illicit activities on behalf of himself and” a person whose name is redacted. Despite this, the description of the “matter” in the Application “finds no expression in the Summons”;

(f)    asserts that the primary judge’s finding at J[197] that this topic “falls within the general nature of” the matter set out at [5(c)] of the Summons, namely “the identities of other persons and entities” involved in the nominated activities and the “nature and extent of their involvement”: J [197], cannot be sustained, for two interrelated reasons.

92    First, the appellant contends that the matter at [65] of the SOFAC should be characterised as not merely being a more specific description of the matter in [5(c)] of the Summons, but as being “different in kind”. This is said to be so because:

(a)    [65] of the SOFAC “embodies an alleged practice adopted by [him] of recruiting others to act as agent — both for himself, and for others — in the conduct of unspecified ‘illicit activities’”, and this is a relevant part of the “matter” about which he is to be questioned; whereas

(b)    [5(c)] of the Summons “conveys no hint of that alleged practice” because it only refers “in generic terms to the identities and involvement of others in the activities described at [5(a)-(b)]”.

93    The appellant asserts that [5(c)] of the Summons cannot be said to “subsume the qualitatively distinct matter of the recruitment of agents” by him, because the matter set out at [65] of the SOFAC has certain distinctive features involving serious allegations of complicity, common purpose and joint criminal enterprise on the part of the appellant. Such allegations, if proven, could give rise to criminal liability on the part of the appellant, irrespective of whether he personally engaged in the physical elements of an offence: Mitchell v The King [2023] HCA 5; 276 CLR 299 at [55] (Gordon, Edelman and Steward JJ). These features are alleged to be missing from [5(c)] of the Summons as it does not refer to the appellant acting as an alleged principal and authorising other parties to carry out illegal activities as agents. The appellant submits that the distinct nature of agency means that a fair description of its “general nature” is not satisfied by a reference to only “the nature and extent of the involvement of others”. In that way, the appellant goes so far as to say that the Summons conceals the defining feature of the matter of agency, which concerns the role of the appellant in enlisting or authorising third parties.

94    Second, the appellant contends that in concluding that the Summons set out the general nature of the matters he was to be questioned upon, his Honour “pays no heed” to the purpose of the requirement in s 28(3), which includes at least considerations of natural justice and fairness to the person proposed to be examined, being a requirement imposed by s 15AA of the Acts Interpretation Act 1901 (Cth). The appellant asserts that he was required to be put on notice of the Commission’s intention to question him on his supposed practice of engaging other serious and organised crime groups to carry out illicit activities on his behalf and on behalf of others, and in failing to so, the Summons adopted “an unduly expansive view of the generality required”.

95    While the appellant acknowledges that s 28(3) seeks to strike a balance between the interests of a witness and the effective conduct of a special ACC operation, of which the examination forms part, citing the first instance decision (upheld on appeal) of Mansfield J in S v ACC at [37], he asserts that the generality of a summons cannot be such as to render nugatory the legislative concern to afford some measure of protection to a witness, including by way of fair notice of lines of inquiry, citing North J in Australian Securities Commission v Avram (1996) 70 FCR 481 at 487-488. He asserts that the requirement for this degree of detail of notice is fortified by the extraordinary nature and consequences of the power conferred, as adverted to earlier in these reasons. These matters, he contends, “stand firmly against” a construction of s 28(3) which would denude the phrase “general nature of the matters” of meaningful content, in this case, by eliding the matter of his purported practice of engaging others to act as agents, with the matter of the identity and involvement of others.

96    The appellant further asserts that it was reasonably practicable to set out the general nature of the matter of recruitment or agency in the Summons because it had already been set out in specific terms in the Application. By way of example, the appellant contends that a compliant summons could simply have stated words to the effect of “the appellant is to be questioned about his role in engaging other serious organised criminals to perform the nominated activities on behalf of himself and others”. Such disclosure, the appellant argues, would promote the legislative object of preserving some fairness to him in order to maintain his rights as someone subjected to the Commission’s compulsory examination powers.

The respondents’ argument

97    The respondents address the appellant’s submissions in a myriad of ways, but as the critical point advanced in support of this ground of appeal relies upon the Application as a means of identifying what was wrong with the Summons, it is convenient to focus on the response to this indispensable part of the appellant’s argument. The respondents point out that the Application forms no part of the legislative scheme, but rather is an internal document evidently developed and deployed by the Commission to give structure to the overt requirements of that scheme. If the point made by the respondents on this issue is correct, and the primary judge has identified what was required without error being established, the Court need go no further.

98    The respondents characterise the appellant’s approach as dissecting the SOFAC part of the Application to locate additional information that could have been mentioned in the Summons. That is described as inverting the approach mandated by s 28(3), because, they argue, it is not open simply to point to more information that could have been mentioned in the Summons in order to contend that it should have been included as a requirement. On this argument, what matters is the minimum that is required to meet the threshold of setting out the general nature of the matters about which the recipient is to be questioned; and whether the primary judge erred in the assessment of what was required.

99    The second limb of this aspect of the respondents’ argument is that even if dissecting the Application in this way was permissible, it fails on the face of that document because, as the primary judge pointed out at J[195], the Application at [76] distinguishes between specific evidence sought from the appellant, and the general nature of the matters in relation to which he was going to be questioned. The primary judge found that the general drew upon the specific, which it plainly enough did: the chapeau to [76] of the SOFAC, which then reproduced the same text as the subparagraphs in [5] of the Summons, stated:

Noting the specific evidence considered the examinee is likely to give (as outlined above), it is submitted that the general nature of the matters in relation to which the examinee will be questioned are as follows:

Consideration

100    The other statutory provisions and the cases that have referred to and interpreted them, as relied upon by the appellant, have some limited general relevance, but say little of real use about s 28(3) and how it was sought to be met in this case. In particular, the requirements attaching to the expiation periods for traffic offences described in Playford v Mathie are of no real assistance to the very different legal and factual context present here.

101    The requirement in s 28(3) is to “set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned”. That requirement is subject only to an exception that it would prejudice the effectiveness of the special ACC operation for the summons to do so, which was not invoked. The core of the appellant’s case, as set out in some detail above, is that, when regard is had to the contents of the Application, the ordinary obligation to disclose the general nature of the matters in relation to which he was to be examined was not complied with, having regard to the fundamental rights in peril and the consequences of not complying with the compulsion.

102    The appellant’s argument focuses on the role of the SOFAC, and in particular [65]. He ultimately challenges the primary judge’s finding at J[197] that the topic of him being questioned on his practices, specifically engaging other serious and organised crime groups to conduct illicit activities on behalf of himself and someone else falls within what is identified in cl 5(c) of the Summons, and in particular the phrase “the identities of other persons and entities” involved in the nominated activities and the “nature and extent of their involvement”. This argument relies upon identifying essentially quite fine and semantic differences that, apart from anything else, goes far beyond the general nature of the matters in relation to which the appellant was to be questioned. It is not to the point that more detail could have been provided about any of the specific topics proposed to be the subject of questioning, or even that the contemplated questioning might go beyond the four corners of the description given in [5(c)], or for that matter, [5(a)] or [5(b)] of the Summons, because that is of itself a significant advance on what the provision requires. To do so would introduce an unnecessary degree of specificity into a requirement expressly cast in general terms. None of the authorities cited by the appellant, properly understood, supports any requirement to do this.

103    The best answer to the appellant’s case on this ground, which relies upon a detailed and forensic comparison between the contents of the specific information in a small part of the unredacted portions of the SOFAC and the more general information identified in [5] of the Summons, and in particular subparagraph (c), is to go back to the primary judge’s reasons. His Honour made the following correct and astute observations:

(a)    As part of J[194], the relevant question posed by s 28(3) is:

not whether it was reasonably practicable to include the information, but whether it was necessary to include such information in order to set out the “general nature” of the matters in relation to which the applicant is to be questioned.”

(b)    As part of J[195], the fact that the Application contained more specific or extensive information than was reflected in the Summons:

does not of itself establish that such information was essential to convey the general nature of the matters that are the subject of the examination in compliance with s 28(3) of the ACC Act.

(c)    After identifying the appellant’s argument on this topic at J[196] and noting that the general nature of the offences referred to in [11] of the SOFAC was captured by [5] of the Summons, his Honour found at J[197]:

Any questions about the applicant’s engagement of other persons to conduct illicit activities falls within the general nature of identifying persons and entities involved in dealing with proceeds of crime, including from the importation and trafficking of controlled drugs, and the nature and extent of their involvement. … In order to comply with s 28(3), the Summons was not required to set out specific allegations against the applicant, nor to include all of the information contained in the Application that was before the examiner for the purposes of deciding whether it was reasonable in all the circumstances to issue the Summons under s 28(1) of the ACC Act.

104    For completeness, we are also of the view that the matters that are referred to in [5(a)] of the Summons extend to and include the topic of questioning referred to at [65] of the SOFAC. The topic of questioning referred to at [65] of the SOFAC, namely, the appellant’s practices, specifically of engaging other [people and organisations involved in serious organised crime], clearly falls within the general topic of “dealing with money and other property … that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs”, as provided for in [5(a)] of the Summons. Contrary to the appellant’s submissions, on a plain reading of [5(a)] of the Summons, the topic of questioning contemplated by that sub-paragraph is not confined to matters concerning the appellant’s own conduct but at least extends to relevant conduct engaged in by others on his behalf.

105    The appellant also contended that a summons which did not comply with the requirements of s 28(3) would be invalid, a point that is contested by the respondents. However, it is not necessary to consider this argument as compliance with s 28(3) has been established.

Conclusion

106    The primary judge was correct to conclude that the Summons did not fail to comply with s 28(3). This ground of appeal must therefore fail.

Overall Conclusion

107    As both grounds of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    7 October 2025