FEDERAL COURT OF AUSTRALIA

S v Australian Crime Commission [2005] FCA 1310

ADMINISTRATIVE LAW - summons for examination issued under s 28(1) of the Australian Crime Commission Act 2002 (Cth) – whether summons complied with essential requirement governing its issue under s 28(3) and described general nature of matters for examination –- conditional nature of requirement of disclosure

CONSTITUTIONAL LAW – validity of Australian Crime Commission Act 2002 (Cth) – validity of s 4A of the Act – where Act gives ACC power to investigate state offences with a federal aspect – whether definition of ‘federal aspect’ in s 4A ensures Act is supported by a federal head of power

Australian Crime Commission Act 2002 (Cth)

Judiciary Act 1903 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

National Crime Authority Act 1984 (Cth)

Australian Crime Commission Establishment Act 2002 (Cth)

National Crime Authority Amendment Act 2000 (Cth)

Director of Public Prosecutions Act 1983 (Cth)

Corporations Act 1989 (Cth)

Corporations (Western Australia) Act 1990 (WA)

Corporations (Western Australia) Act 1990 (WA)

R v Hughes (2000) 202 CLR 535 discussed

Tickner v Bropho (1993) 114 ALR 409 cited

Re an Application under the Aboriginal and Torres Strait Islander Commission Act 1989

Re Yanner (2000) 176 ALR 1 cited

Wacando v Commonwealth (1981) 148 CLR 1 cited

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 applied

Harper v Costigan (1983) 72 FLR 140 cited

P v Australian Crime Commission [2005] FCA 55 discussed

National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 cited

Barnes v Boulton [2004] FCA 1219 cited

S v AUSTRALIAN CRIME COMMISSION

SAD 125 of 2005

MANSFIELD J

16 SEPTEMBER 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

1                     Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) deals with examinations under the ACC Act.  Division 2 comprises ss 24A to 36.  Section 24A empowers an examiner to conduct an examination for the purposes of a special Australian Crime Commission (ACC) operation/investigation (as defined in s 4 of the ACC Act).

2                     On 12 May 2005 the ACC served on the applicant a summons to attend before an examiner to give evidence in relation to his ‘knowledge of and involvement in illegal activities since 1 January 1990’ and ‘his knowledge of and involvement in the illegal activities of any other person since 1 January 1990’.

3                     The summons was issued by an examiner under s 28(1) of the ACC Act.  It provides:

‘An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.’

Section 28(2) required the summons to be accompanied by a copy of the determination of the Board of the ACC that (relevantly) the investigation is a special investigation.  The documents accompanying the summons were a determination by the Board dated 15 May 2003 to that effect in the Instrument entitled Australian Crime Commission Special Investigation Authorization and Determination (Established Criminal Networks) 2003 and a further determination dated 28 April 2004 by Instrument entitled Australian Crime Commission Special Investigation Authorization and Determination (Established Criminal Networks) Amendment No 1 of 2004 extending the investigation to 31 May 2005.  After the issue of the summons, by further determination dated 26 May 2005 by Instrument entitled Australian Crime Commission Special Investigation Authorization and Determination (Established Criminal Networks) Amendment No 1 of 2005 the investigation was further extended.

4                     Pursuant to the summons the applicant was to be examined at 9.00 am on 8 June 2005.  However, on 6 June 2005, following the applicant’s application for interim injunctive relief, the examiner undertook to adjourn that examination until further notice.  It has been adjourned pending the determination of the primary relief sought in this application.

5                     The application is made under s 39B of the Judiciary Act 1903 (Cth) seeking a declaration that the ACC Act is invalid or, alternatively s 4A of the ACC Act is invalid, and secondly an order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) quashing or setting aside the summons on the basis that the summons is invalid. In essence, its validity is challenged on the basis that an essential pre-condition for its issue under s 28(3) of the ACC Act was not satisfied.

Legislative framework

6                     The ACC is a statutory body established under s7 of the ACC Act.  The ACC Act is the product of substantial amendments made to the National Crime Authority Act 1984 (Cth) (the NCA Act) effected by the Australian Crime Commission Establishment Act 2002 (Cth).  The Second Reading Speech for the Australian Crime Commission Establishment Bill 2002 (Hansard, House of Representatives, 26 September 2002, pp 7328 to 7330) indicates the following.  The ACC was developed by the governments of the Commonwealth, the States and Territories as a replacement for the National Crime Authority (NCA), the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence.  It was designed to build on the successes of those bodies to develop more effective national law enforcement operations in partnerships with state and territory police forces.  It was hoped to improve the ability to combat serious and organised crime operating across jurisdictional boundaries.  The ACC was thus designed to enhance law enforcement coordination and cooperation at a national level, by setting up a co-ordinated national criminal intelligence framework.

7                     The functions of the ACC are set out in s 7A of the ACC Act.  Its functions include investigating, when authorised by the Board, matters relating to ‘federally relevant criminal activity’ and to provide reports to the Board on the outcomes of those investigations:  subs 7A(c) and (d).  The Board of the ACC is established under s 7B of the ACC Act.  The Board consists of 13 voting members and the CEO of the ACC as a non-voting member. The voting members include the head of each Federal, State and Territory police force, the heads of the Australian Securities and Investments Commission and the Australian Customs Service, the Director-General of Security, the Secretary of the Attorney-General’s Department, and the Commissioner of the Australian Federal Police.  Its composition reflects the national co-operation giving rise to the establishment of the ACC referred to in the Second Reading Speech.

8                     The functions of the Board include authorising the ACC to investigate matters relating to ‘federally relevant criminal activity’ and to determine whether such an investigation is a special investigation:  subs 7C(c) and (d).  Before determining under s 7C(3) that an investigation is a special investigation, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective.  Section 7C(4) prescribes the content of such a determination.  It provides that a determination must:

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

(b)              state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offences or offences; and

(c)        set out the purpose of the operation or investigation.’

9                     Such a determination, inter alia, enlivens the coercive examination powers of an examiner under Div 2 of Pt II of the ACC Act.  Examiners are members of the ACC (together with its Chief Executive Officer and the members of its staff):  s 7.  They are appointed under s 46B of the ACC Act. 

10                  Critical to the applicant’s attack on the validity of the ACC Act is the definition of ‘federally relevant criminal activity’ as meaning:

‘(a)      a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory; or

(b)       a relevant criminal activity, where the serious an organised crime:

(i)                 is an offence against a law of a State; and

(ii)               has a federal aspect.’

The element of the definition referring to an offence against a State law having ‘a federal aspect’ is the focus of the contentions.

11                  ‘Relevant criminal activity’ is defined as:

‘… any circumstances implying, or any allegations, that a serious and organised crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.’

12                  Section 4A of the Act prescribes when a State offence has a ‘federal aspect’.  As it is a pivotal provision to the present application, its full terms are set out.  It provides:

‘Object

(1)       The object of this section is to identify State offences that have a federal aspect because:

(a)               they potentially fall within Commonwealth legislative power because of:

(i)                 the elements of the State offence; or

(ii)               the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be elements of the offence); or

(b)               either:

(i)                 the ACC investigating them is incidental to the ACC investigating an offence against a law of the Commonwealth or a Territory; or

(ii)               the ACC undertaking an intelligence operation relating to them is incidental to the ACC undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory.

Federal Aspect

(2)       For the purposes of this Act, a State offence has a federal aspect if, and only if:

(a)               both:

(i)                 the State offence is not an ancillary offence; and

(ii)               assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State – the provision would have been a valid law of the Commonwealth; or

(b)               both:

(i)                 the State offence is an ancillary offence that relates to a particular primary offence; and

(ii)               assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State – the provision would have been a valid law of the Commonwealth; or

(c)                assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence – that provision would have been a valid law of the Commonwealth; or

(d)               both:

(i)                 the ACC is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and

(ii)               if the ACC is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence – that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i); or

(e)                both:

(i)                 the ACC is undertaking an intelligence operation relating to an offence against a law of the Commonwealth or Territory; and

(ii)               if the ACC is undertaking, or were to undertake, an intelligence operation relating to the State offence – that operation is, or would be, incidental to the operation mentioned in subparagraph (i).

Specificity of acts or omissions

(3)       For the purposes of paragraph (2)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (2)(c)

(4)       A State offence is taken to be covered by paragraph (2)(c) if:

(a)               the State offence affects the interests of:

(i)                 the Commonwealth; or

(ii)               an authority of the Commonwealth; or

(iii)             a constitutional corporation; or

(b)               the State offence was committed by a constitutional corporation; or

(c)                the State offence was committed in a Commonwealth place; or

(d)               the State offence involved the use of a postal service or other like service; or

(e)                the State offence involved an electronic communication; or

(f)                 the State offence involved trade or commerce:

(i)                 between Australia and places outside Australia; or

(ii)               among the States; or

(iii)             within a Territory, between a State and a Territory or between 2 Terrritories; or

(g)               the State offence involved:

(i)         banking (other than State banking not extending beyond the limits of the State concerned); or

(ii)        insurance (other than State insurance not extending beyond the limits of the State concerned); or

(h)               the State offence relates to a matter outside Australia.

(5)       Subsection (4) does not limit paragraph (2)(c).

Definitions

(6)       In this section:

            ancillary offence, in relation to an offence (the primary offence), means:

(a)               an offence of conspiring to commit the primary offence; or

(b)               an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

(c)                an offence of attempting to commit the primary offence.

            Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

            constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

            electronic communication means a communication of information:

(a)               whether in the form of text; or

(b)               whether in the form of data; or

(c)                whether in the form of speech, music or other sounds; or

(d)               whether in the form of visual images (animated or otherwise); or

(e)                whether in any other form; or

(f)                 whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

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

State offence means an offence against a law of a State.’

The validity of s 4A of the ACC Act

13                  The definition of ‘federal aspect’ was introduced into the NCA Act by the National Crime Authority Amendment Act 2000 (Cth) (the 2000 NCA Amendment Act) in November 2000.  Both the Second Reading Speech for the National Crime Authority Amendment Bill 2000 (Hansard, Senate, 11 October 2001, p 18245) and its Explanatory Memorandum articulate that the definition of ‘federal aspect’ was introduced into the Act following the decision of the High Court in R v Hughes (2000) 202 CLR 535 (Hughes).  That is apparently common ground between the parties.

14                  Hughes concerned the power of the Commonwealth to give the Commonwealth Director of Public Prosecutions (the Commonwealth DPP) the power to conduct prosecutions for offences against State laws.  Such prosecutions took place under a co-operative legislative scheme between the Commonwealth and the States, in which the States conferred certain functions and powers upon the Commonwealth DPP and the Commonwealth sanctioned the conferral.  In question were certain provisions of the Director of Public Prosecutions Act 1983 (Cth) and the Corporations Act 1989 (Cth), which authorised the prosecution by the Commonwealth DPP of the appellant for offences provided for under the Corporations Law (WA).  The Corporations (Western Australia) Act 1990 (WA), read with the provisions of the Director of Public Prosecutions Act 1983 (Cth), conferred on the Commonwealth DPP, subject to Commonwealth law, the power to institute and carry on prosecutions for indictable offences against ss 1064(1) and 1311(1)(a) of the Corporations Law (WA).  Section 47(1) of the Corporations Act 1989 (Cth) permitted the making of regulations giving a Commonwealth officer the prescribed functions and powers expressed to be conferred by the Corporations (Western Australia) Act 1990 (WA).  Regulation 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth) (the Regulations) provided that the Commonwealth DPP had the functions and powers expressed to be conferred on him by ss 29 and 31(1) of the Corporations (Western Australia) Act 1990 (WA).

15                  The High Court held that s 47(1) of the Corporations Act 1989 (Cth) and reg 3(1)(d) of the Regulations were valid, being supported by s 51(i) and s 51(xxix) of the Commonwealth Constitution.

16                  The point drawn from Hughes by the applicant emerges from a passage at the conclusion of the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 558 where their Honours said:

‘The present case emphasises that for the Commonwealth to impose on an officer or instrumentality of the Commonwealth powers coupled with duties adversely to affect the right of individuals, where no such power is directly conferred on that officer or instrumentality by the Constitution itself, requires a law of the Commonwealth supported by an appropriate head of power.’

17                  Kirby J at 583 made observations to the same effect.

18                  In the particular circumstances of Hughes, the High Court regarded the particular provisions as within the Commonwealth powers.  The majority said at 555-556:

‘The DPP Act in a sense 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.  State law may create offences in fields where it would have been competent for the Parliament of the Commonwealth to enter directly by its own offence-creating legislation.  The power conferred by s 51(xx) with respect to foreign corporations and trading or financial corporations is an obvious example.  In such a situation, a federal law which specifies that certain Commonwealth officers have powers and functions expressed to be conferred by the State law with respect to the prosecution of State offences is a law with respect to that head of federal legislative power.  This will be true of perhaps the very great majority of offences created by the State legislation which adopts the Law.’

19                  Kirby J concurred with the majority, holding that the particular laws in issue in Hughes were valid.  His Honour said at 582:

‘Because the context of the accused’s case is one which undoubtedly involves activity that constitutes trade and commerce with other countries and affairs external to Australia, the federal laws authorising the conferral on the Commonwealth DPP of functions and powers under the WA Corporations Act are invalid in so far as they affect the accused.  They sustain the performance by the Commonwealth DPP of the function of prosecuting the accused.’  (references omitted)

20                  As the parties accept, the presently relevant provisions of the ACC Act were introduced in the light of the High Court decision in Hughes.  Both the Second Reading Speech and the Explanatory Memorandum explain that the introduction of ‘federal aspect’ into the ACC Act was done to ensure that the ACC only has the power to investigate a State offence if the subject of the State offence is a subject which comes within a head of Commonwealth power.  The Second Reading Speech states:

‘The High Court’s decision in Hughes questions the capacity of Commonwealth authorities to exercise powers and functions conferred on them by state legislation, in situations where the power or function is coupled with a duty and there is no federal head of power to support that power, function or duty.

The bill amends the National Crime Authority Act to ensure that when the authority is investigating offences there is a connection with a federal head of powers [sic] in as many situations as possible.  This is achieved by expanding the scope of Commonwealth references to include offences against a law of a state where that state offence has a federal aspect.  In addition, where the authority is under a duty to investigate a matter pursuant to a state reference, then those references will be limited to matters that have a federal aspect.  The bill also amends the act to clarify that the authority does not have any duty or obligation under Commonwealth law to perform any function or exercise any power conferred by a state law, unless there is a federal aspect.’

The Explanatory Memorandum, after outlining the then proposed subsections 4A(1) and 4A(2)(2)(a) and (b) states:

‘These provisions will make it clear that, for the purposes of the powers of the Authority, a State offence will have a federal aspect when the subject of the State offence is a matter over which the Commonwealth could legislate.  There is no requirement for the Commonwealth to have actually legislated in relation to that subject, provided that the Commonwealth has a head of power under which it could legislate on the matter.’

21                  The applicant contends that, despite that apparent intention, s 4A has failed to prescribe criteria for when an offence against a State law has a federal aspect which has a proper constitutional foundation.  Consequently, it is contended, s 4A is beyond power.  It would also follow that any determination of the Board of the ACC in the exercise of its functions to investigate a federally relevant criminal activity, where that activity involves or is based upon a serious and organised crime which is an offence against a law of a State and has a federal aspect (that is, only comes within subcl (b) of the definition of ‘federally relevant criminal activity’) would be unauthorised and ineffective.  Much is made of the object provision in s 4A(1), in particular the use of the word ‘potentially’ in s 4A(1)(a) of the ACC Act.

22                  In my judgment, the contention seeks to elevate the object clause of the section to a status it does not enjoy.  An objects clause in legislation, together with other intrinsic indicia to its proper construction, is relevant to the proper construction of the legislation:  see e.g. Tickner v Bropho (1993) 114 ALR 409, per Black CJ at 417-418, per Lockhart J at 433-434, and per French J at 441.  Dowsett J in Re an Application under the Aboriginal and Torres Strait Islander Commission Act 1989; Re Yanner (2000) 176 ALR 1 at 32 pointed out, however, that such a clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear.  His Honour relied upon the observations of Gibbs CJ and of Mason J in Wacando v Commonwealth (1981) 148 CLR 1 at 15-16 and 23 respectively.  See also the discussion in Pearce & Geddes ‘Statutory Interpretation in Australia’, Butterworths, 5ed (2002), [4.40] at 122-123.

23                  The relevant substantive provision is s 4A(2).  It defines when a State offence has a federal aspect.  A State offence has a federal aspect if, and only if, the Commonwealth had the power to enact a valid law creating that offence.  Subsections 4A(2)(a)(ii), (b)(ii) and (c) all require that, if the Commonwealth had enacted the offence, it ‘would have been’ (my emphasis) a valid law of the Commonwealth.  Subsections 4A(2)(d) and (e) refer to matters incidental to investigations concerning offences against a law of the Commonwealth or a Territory.  Subsection 4A(4) then indicates certain of the matters by which the commission of certain acts constituting a State offence would fall within Commonwealth legislative power.  Its terms clearly limit the circumstances in which a State offence has a federal aspect to those in which, either generally or in specific circumstances, the Commonwealth could have (that is, has power to have) enacted that offence or an offence in respect of that conduct.

24                  Accordingly, in my view, the attack upon s 4A of the ACC Act on the ground that it has no constitutional foundation must fail.  There may arise a question whether, in respect of a particular determination by the Board of the ACC, that determination falls within the scope of a ‘federally relevant criminal activity’ but that is a different question.  It is not an issue on this application in relation to the relevant determinations of the Board, although I am informed that there are separate proceedings in which that question has been raised.

25                  The use of the word ‘potentially’ in s 4A(1) is ambiguous.  It could be taken to mean simply that the State offences have a federal aspect because they could be the subject of a valid Commonwealth enactment, if the Commonwealth decided to pass such a law.  It could be taken to mean that the State offences have a federal aspect because it is possible or arguable that they could be the subject of a valid Commonwealth enactment, or might possibly be the subject of a valid Commonwealth enactment.  In the context of s 4A as a whole, in my view the former of those two alternatives is the correct one.  Section 4A(2) is clear, and subs 4A(4) and (6) also indicate the condition for a State offence having a federal aspect is the existence of power in the Commonwealth to enact such an offence, not merely the possible existence of such a power.  That view is also consistent with the legislative intention as expressed in the Second Reading Speech and the Explanatory Memorandum referred to above.  It also accords with the approach to the construction discussed e.g. by Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 504-505.

26                  The applicant alternatively submits that s 4A is invalid because it is so generally expressed.  It is said that:

‘… it is impossible to discern to a degree of certainty that is reasonable in the circumstances the State offences which fall within the definition of ‘federally relevant criminal activity’ by reason of s 4A of the Act.  Recipients of summonses and their legal representatives, as well as the ACC and its examiners, are left to speculate as to what State offences may fall within the definition, in circumstances where by s 30 of the Act:

(a)               a failure to answer questions or produce documents to the ACC is an offence punishable upon conviction by a fine of up to 200 penalty units ($22,000) or imprisonment for a period of up to five years; and

(b)               the privilege against self-incrimination is unavailable.’

27                  One can understand the difficulty confronting the applicant in the present circumstances.  Apart from challenging the validity of s 4A of the ACC Act, he is confronted with a determination of the Board under 7C the validity of which he is challenging in separate proceedings as being beyond power, and then with a summons the validity of which he is also challenging as being unauthorised by the ACC Act.  There is clearly a complex series of steps to be taken to determine whether, ultimately, he has properly been summonsed under s 28 of the ACC Act so that he must comply, inter alia, with s 30.  He has also signalled that he may wish to decline to answer certain questions put to him at the proposed examination, notwithstanding s 30, if those questions are not properly within the scope of the determination.

28                  Those matters, however, do not of themselves support the proposition that s 4A of the ACC Act is invoked.  In Hughes, in the majority judgment at 551-552, their Honours made the point that difficulties of interpretation by reason of ‘pick up’ provisions such as s 4A do not entail invalidity.  There may be difficulties in knowing whether a particular determination of the Board is a valid one, because the scope of Commonwealth power to show the federal aspect in relation to that determination may not have been definitively determined by the High Court.  But, in my view, s 4A is not invalid because, in some circumstances, the extent of its reach may be debatable.  It sets out in terms which are clear, and in terms which fall within the power of the Commonwealth, when a State offence has a federal aspect.  The fact that, in some circumstances, a person summonsed under s 28 may dispute that, or may have difficulty in determining whether, a question during an examination is authorised by a valid determination by the Board, or by the summons, does not lead to the conclusion that s 4A of the ACC Act is itself beyond power.  Morling J in Harper v Costigan (1983) 72 FLR 140 (Harper v Costigan) discussed the courses of action available to a person in the position of the applicant in such circumstances.

The Validity of the Summons

29                  The applicant challenges the validity of the summons on the basis that it does not comply with s 28(3) of the ACC Act.

30                  It may be accepted that the validity of the summons is dependent upon the fulfilment of the essential conditions governing its issue.  Failure to do so invalidates the summons:  Ousley v R (1997) 192 CLR 69 at 88-89.  Section 28(3) specifies the condition which, the applicant contends, was not complied with in relation to the summons.  It provides:

‘(3)      A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the 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 examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.’

31                  The summons contained only the following information which might satisfy s 28(3), namely that the applicant was required to give evidence in relation to his –

‘ … knowledge of and involvement in illegal activities since 1 January 1990 and (his) knowledge of and involvement in the illegal activities of any other person since 1 January 1990.’

32                  The examiner by affidavit sworn on 4 July 2005 has deposed to the fact that, before issuing the summons, he considered the particular circumstances of the relevant special ACC investigation.  He decided that the terms of the summons set out, so far as was reasonably practicable, the general nature of the matters in relation to which he intended to examine the applicant.  He further decided that it would prejudice the effectiveness of the special ACC investigation for the summons to set out any further details of the matters about which he intended to question the applicant.  That affidavit simply adopts the wording of s 28(3).  It does not descend to provide any information about why the examiner formed those views.  The examiner was not cross-examined.

33                  In my judgment, the summons does not set out the general nature of the matters in relation to which the examiner intends to question the applicant.  The only limiting expression is the time period.  It is barely limiting.  It covers a period of some 15 years up to the present time.  The balance of the description in the summons is not, in any meaningful way, descriptive of the general nature of the matters the subject of the proposed examination.  It covers ‘illegal activities’, but the examination power can only arise when there has been a determination of the Board that the ACC should investigate federally relevant criminal activities and that the investigation is a special one.  The context of s 28(3) is the necessary existence of relevant criminal activity of a particular character.  Moreover, s 28(2) requires the relevant determination of the Board to accompany the summons.  The requirement in s 28(3), if it were simply to set out the general nature of the matters the subject of the proposed examination, would obviously require something more specific than could be discerned from the fact that there was power to issue the summons and from a reading of the accompanying determination.  It does not do so.

34                  However, that is not the obligation imposed by s 28(3).  It is a conditional obligation.  Firstly, the obligation arises to give the general nature of the matters upon which it is intended to question a proposed examinee unless the examiner is satisfied, in the particular circumstances, that to do so would prejudice the effectiveness of the special ACC investigation.  Secondly, the obligation to provide such information extends only so far as it is reasonably practicable to do so.  Counsel for the ACC also pointed out that the examiner is empowered to question an examinee in relation to any matter that relates to a special ACC investigation, even if the summons has not put the examinee on notice that the topic of such questions is not described in that part of the summons setting out the general nature of the matters about which it was proposed to ask questions.

35                  Finn J in P v Australian Crime Commission [2005] FCA 55 at [16] explained that the two requirements of s 28(2) and s 28(3) –

‘ … serve in a general way to inform a witness of the general nature of the investigation being undertaken and, though not exhaustively, of what that witness might expect by way of questioning.  As such they serve in some degree natural justice purposes.’

In that case, as his Honour pointed out at [11], it was not suggested that the summons did not set out, so far as reasonably practicable, the general nature of the matters in relation to which the examiner intended to examine the witness.  He also found at [16] that the summons clearly satisfied the requirement of s 28(3).  The contention, which his Honour rejected, was that the summons did not adequately disclose the jurisdictional basis for its issue.

36                  There are obvious reasons why s 28(3) is expressed in the way it is.  It is part of the process available to an examiner to pursue a special ACC investigation.  The investigation does not involve determining issues between parties.  It concerns the investigation of serious and organised crime.  It is clearly the legislative intention that such an investigation should not be frustrated by compulsory disclosure to a witness of the topics or matters upon which questioning is intended, where such disclosure might affect the efficacy of the proposed examination.  In National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Mason, Wilson and Dawson JJ said at 323-324:

‘There is considerable force in the Commission’s claim that to comply with the directions of the Federal Court would frustrate the purpose of the hearing.  It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going.  For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry.  Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment.  Having regard to the express statutory injunction of s 38(1)(d) of the N.C.S.C. Act, it would clearly be a denial of natural justice if the Commission in the present hearing received evidence adverse to News Corporation without providing an opportunity to News Corporation to be heard.  An effective examination of such persons would require that the substance of the adverse information received during the investigation be disclosed to them.  Legal representation would be permitted to such witnesses with the opportunity for their further examination by counsel and for submissions to be made touching matters covered by the examination.  There is no reason why the Commission should not welcome, time permitting, any request by News Corporation that further persons be called to give evidence.  A hearing conducted along these lines, subject to what we have to say in a moment about the publication of the Commission’s views, would in our opinion be fair in all the circumstances.’

See also the observations of Morling J in Harper v Costigan at 154.

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.

38                  Importantly, s 28(3) places the responsibility for deciding whether setting out the general nature of the matters in relation to which the examiner intends to question the witness would prejudice the effectiveness of the examination upon the examiner.  It is the satisfaction of the examiner which is the criterion for whether notification should be given of the matters for questioning.  The starting point of s 28(3) is that the summons should, so far as is reasonably practicable, set out the general nature of the matters in relation to which the examiner proposes to question the witness.  It recognises that, in the public interest the effectiveness of the investigation would be prejudiced if such notice is given in particular circumstances.  It then places the satisfaction of the examiner on that question as the meter by which is measured the existence of prejudice to the effectiveness of the special ACC investigation by the giving of such notice.  Importantly, also s 28(1A) requires the examiner to be satisfied that the issue of a summons is reasonable in all the circumstances and it requires the examiner to record in writing the reasons for the issue of the summons (although those reasons are not available to the person summonsed:  Barnes v Boulton [2004] FCA 1219).

39                  In my judgment, the examiner has shown that he was satisfied that setting out in any detail beyond that specified the general nature of the matters in relation to which he proposed to question the applicant would prejudice the effectiveness of the special ACC investigation.  That was a responsibility with which he was charged.  He is not shown to have misunderstood it.  Indeed, in the exercise of a judgment on that matter, there is good reason for the examiner to be the person making that decision.  The examiner is part of the ACC and would have a significant awareness of the nature and progress of the special ACC investigation.  He is the person who has been obliged to comply with s 28(1A).

40                  No particular criticism of the examiner’s affidavit was made by senior counsel for the applicant, other than that it should have been more detailed.  What is apparent is that the examiner was first satisfied that the disclosure of the general nature of the matters the subject of his proposed questioning would prejudice the effectiveness of the special ACC investigation.  He also suggests that he then decided that the very general information in the summons was all that was reasonably practicable to disclose.  The latter step is the first one referred to in the affidavit.  It is not clear to me that the limiting expression about the nature of the general matters to be set out, namely that is be set out ‘so far as reasonably practicable’, is itself also intended to permit the withholding of detail about the general nature of the matters about which questioning is planned in the particular circumstances.  That expression may simply be to address and limit, in a practical sense, the material required in the summons.  That matter was not specifically the subject of submissions on behalf of the applicant and I do not need to further address it.

41                  The applicant submitted in the alternative that if the examiner was satisfied that setting out the general nature of the matters in relation to which he proposed to question the applicant would prejudice the special ACC investigation, it was misleading to state in the summons that the examiner wished to question him about ‘illegal activities’ when the examiner must have known that the questions were to be confined to certain areas of activity.  The contention is that to express the summons in that way was not a proper exercise of the power conferred upon the examiner by s 28(3).  It was argued that it was necessary for the summons expressly to state that notice of the general topics for examination are not provided because the examiner is satisfied that to do so would prejudice the effectiveness of the investigation. 

42                  Neither s 28(3) nor any other provision in Div 2 of Part II of the ACC Act requires the summons to be so expressed.  By s 28(3), the summons need not set out the general nature of matters in relation to which the witness is to be questioned if the examiner reaches the requisite state of satisfaction regarding possible prejudice to the investigation.  Once the examiner has reached that state of satisfaction, the summons need not set out the general nature of the matters in relation to which the person is to be examined.  The form of the summons is not prescribed.  In P v ACC Finn J said at [16]-[18]:

‘While the Act does not prescribe a form for summonses it imposes two stipulations in respect of them.  The first is that it must be accompanied by a copy of the Board’s special investigation determination: s28(2). . . .The second is that, subject to a proviso relating to prejudicing the effectiveness of the investigation, the summons shall set out so far as is reasonably practicable “the general nature of the matters in relation to which the examiner intends to question the persons [summonsed]:” 28(3). . . Together these requirements serve in a general way to inform a witness of the general nature of the investigation being undertaken and, though not exhaustively, of what that witness might expect by way of questioning. As such they serve in some degree natural justice purposes. While the former specifies the scope of the investigation for the purposes of which the summons has been issued, neither, in my view, is intended to serve the purpose of stating the actual jurisdictional basis of a summons as such.  (original emphasis)

Importantly, the s28(3) requirement has a purpose far removed from what is implicit in the applicant’s challenge to the summons.  Its function is to inform a witness as to the general matters on which it was intended he or she be questioned. In the present case it clearly informed P of this. In doing so it fulfilled its statutory purpose. And it had no other.

The summons disclosed on its face the matter it was required to disclose and it had appended to it what was required to be appended.  The Act has not gone on to require further disclosure on the face of the summons.  I can see no reason for the implication that any other matter must be disclosed as a prerequisite to the validity of the summons: Ousley v R at 82-83; 110-111; 128.  There is a clear policy manifest in the Act to ensure the effectiveness of special investigations and to use generalised descriptions (s7C(4)(a)), non-disclosure (s28(3)) and imposed secrecy obligations to that end.  Given the functions of the ACC, it is unsurprising that this is the case.  However, it is that policy which tells strongly against any such implication as the applicant propounds.’

43                  The ACC Act does not require the summons to record on its face that the examiner has reached the view that to disclose the general matters the subject of questioning would prejudice the special ACC investigation.  There is also no reason to imply such a prerequisite for the validity of the summons from the ACC Act itself.  Section 28 addresses what the summons is required to contain.  Natural justice also does not necessitate, nor is it better served by, such a disclosure on the face of the summons.  The obligation to give natural justice under s 28(3) is confined.  So much is evident from the text of s 28(3) itself.  It provides that:

‘nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.’

Nothing prevents the examiner from questioning the person summonsed about any matters not stated in the summons.  The person is not entitled to be given notice of all of those topics about which he or she might be questioned.  As Finn J pointed out in the passage referred to above, the requirements of both s 28(2) and s 28(3) ‘together serve only in a general way to inform the person summonsed of the general nature of the investigation being undertaken and, though not exhaustively, of what that the person summonsed might expect by way of questioning.’  In that context, a right to be expressly informed of the examiner’s decision to withhold particulars and to have disclosed that he considers that such disclosure would prejudice the effectiveness of the investigation cannot be implied.  Such a right could only possibly be implied. 

44                  In my judgment, for the reasons given, the applicant has not shown that the summons did not comply with the requirements of s 28(3) in the particular circumstances.

Order

45                  The application is dismissed.  The applicant should pay to the ACC costs of the application.

Associate:

Dated:              15 September 2005